County of Elgin v. Municipality of West Elgin, 2012 ONAFRAAT 7

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph ON N1G 4Y2 Tel: 519 826-3433, Fax: 519 826-4232 Toll Free: 1 888 466-2372 Ext. 6-3433 Email: appeals.tribunal.omafra@ontario.ca

Guelph ON N1G 4Y2 Tél. : 519 826-3433, Téléc. : 519 826-4232 Sans frais : 1 888 466-2372 poste 6-3433 Courriel : appeals.tribunal.omafra@ontario.ca

Talbot Line Drain Municipality of West Elgin

Talbot Line Drain (RE) 2012 ONAFRAAT 7

Drainage Act

April 11, 2012

DATE OF DECISION:

April 17, 2012

2012-07

2012 ONAFRAAT 7

TALBOT LINE DRAIN Section 54(1) Appeal

Municipality of West Elgin

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by the County of Elgin, St. Thomas, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Talbot Line Drain in the Municipality of West Elgin.

Before:

Kirk Walstedt, Chair; Enio Sullo, Vice-Chair; Bill Schaefer, Member

Appearances:

John M. Spriet, Spriet Associates London Limited - Engineer who prepared the Report

Peter Dutchak, Deputy Director of Engineering Services, County of Elgin - Appellant

DECISION OF THE TRIBUNAL

This hearing was held in the Municipal Building, Municipality of West Elgin, (the Municipality) in Rodney, Ontario on April 11, 2012. The County of Elgin (the County) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54(1) of the Drainage Act (the Act) from the decision of the Court of Revision, dated July 21, 2011 from the Engineer’s Report on the Talbot Line Drain dated May 5, 2011 (the Report), prepared by Spriet Associates London Limited (the Engineer), and signed by John M. Spriet, P.Eng.

Norma Bryant, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this hearing. The Clerk of the Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with notice of rescheduling of the hearing dated January 16, 2012.

Background

The County of Elgin undertook a $5 million reconstruction of a 17 km section of Talbot Line (County Road No. 3) in the Municipality of West Elgin. In conjunction with the road reconstruction project, the County filed several petitions for drainage, under Section 4 of the Drainage Act, in order to establish, improve or otherwise legalize the drainage outlets for the road and adjacent lands. The current Engineer’s Report was prepared in response to one of those petitions.

The Engineer’s Report provides for the drainage of approximately 36 hectares of lands and road in Lots 16 and 17, Concessions 12 and 13 in the Municipality of West Elgin. The work comprises the construction of approximately 1,200 m of closed drain tile both on and off the Talbot Line right-of-way for an estimated cost of $72,700 of which $25,751 was assessed to eight private land parcels and $46,949 was assessed to Talbot Line.

The Court of Revision for the Municipality ordered changes to the assessments: namely, that the assessment for outlet to Roll No. 050-142 (P. Parezanovic) be reduced to $1,363 (a reduction of $1,363) and the assessment for benefit to Roll No. 050-138-10 (T. Da Silva & G. Norton-Da Silva) be reduced to $1,420 (a reduction of $3,000). In both cases, the reductions were reapportioned as increased assessments to the County of Elgin.

Issues

Should the assessments against the Appellant be amended?

Evidence

Engineer – John Spriet, P. Eng.

Mr. Spriet testified that he prepared the Report pursuant to a Section 4 petition for drainage filed by the County of Elgin, being the road authority for Talbot Line. He explained that the petition was one of several filed by the County seeking legal status for the drainage of the road and adjacent private lands as part of the road reconstruction of Talbot Line. He described the work proposed by his Report as being the construction of a closed tile drain with an outlet to Brock Creek where it crosses Talbot Line in Lot 16. He said that he designed the tile using a 38 mm drainage coefficient to handle the flows from the entire 36 hectare watershed, which includes both the road and private lands. He further testified that parts of the drain associated with the crossing of Talbot Line were previously constructed by the County so he did not include this work in his Report.

Mr. Spriet went on to testify that he routed the new drain tile along a low run on the Da Silva property that was originally part of the adjacent farmlands Roll No. 050-138 (D. Small). He explained that when he started his Report, the Da Silva property was comprised of approximately 1 acre of land but later increased to approximately 5 acres as a result of a 4 acre land severance and conveyance from Small to Da Silva. Mr. Spriet said that there may have been an old “award” drain in the same location but he was unable to verify its existence. Mr. Spriet added that among other things, his Report addresses the concerns expressed by the Conservation Authority with respect to ongoing damage to the surface drainage caused by livestock on the Da Silva property.

Mr. Spriet testified that he used the Todgham method to calculate the assessments. He explained his methodology in detail by referring to a series of 10 calculation sheets that he put into evidence. In general, he said that he divided the drain into five sections, assigned a cost to each section and then apportioned each section cost to special benefit, benefit and outlet assessments. He explained that in calculating the benefit assessment to the County, he considered what it would cost the County for a hypothetical drain located along the road to drain the road only. He said that he gave the County a special assessment because they were the petitioner for the drainage and also to make the project more palatable to the other landowners. With respect to the Da Silva property, he said that he assigned 47% of the costs in that section as a benefit to Da Silva because of the low run on those lands.

With respect to the $1,363 reduction in outlet assessment by the Court of Revision to Roll No. 050-142 (P. Parezanovic), Mr. Spriet testified that during the Court of Revision hearing, Mr. Parezanovic presented a drawing showing that his lands had been tiled to the Mumford Drain and not to the Talbot Line Drain. However, he said that the surface drainage still goes into the Talbot Line Drain. Mr. Spriet testified that he saw Mr. Parezanovic’s drawing for the first time at the Court of Revision hearing. Based on the new information presented by Mr. Parezanovic, and responding to questions from the panel, Mr. Spriet said that he now agrees and supports the $1,363 reduction in outlet assessment made by the Court of Revision. However, he remarked that if he had been given an opportunity to do a reassessment, he would have reassigned costs to all the remaining affected parties, not just the County as ordered by the Court of Revision.

Appellant – Peter Dutchak, County of Elgin

Mr. Dutchak testified that the County’s $5 million dollar project for a 17 km long reconstruction of Talbot Line began with public meetings in 2007 with construction following in 2008 and 2009. He said that as part of the project, the County undertook a complete review of the existing drainage systems with the objective of legalizing the outlets while maintaining the historical watersheds. Mr. Dutchak commented that the County could have designed the new drains to serve the road only but that would have been short sighted. He noted that although the road was high and dry and did not flood, the County was nevertheless interested in cleaning up the area and making sure the outlets were all legal. Accordingly, they filed several petitions for drainage under Section 4 of the Drainage Act, including the one associated with the current Report.

Mr. Dutchak testified that the County supports the Engineer’s assessments which formed part of the Report prior to the Court of Revision’s decision. He said that the County understands that roads typically end up paying the lion’s share of costs as special assessments, particularly in cases where they are the petitioner as is the case here. He stated that the County accepts and agrees with the Todgham method used by Mr. Spriet in calculating the assessments. He remarked that while the County does not like the heavy assessments imposed by the Engineer, they accept the assessments as such because they are technically concise and consistent with industry practice applied by other experienced drainage engineers.

Mr. Dutchak testified that County Council directed staff to file an appeal to the decision by the Municipality’s Court of Revision to avoid the establishment of a negative precedence. He said that the County objects to the unjust and arbitrary actions of the Court of Revision in this case which imposed extra assessments to the County. He said that the Court of Revision’s actions were unfounded, unjust and lacked any clear rationale.

With respect to the benefit assessment to Roll No. 050-138-10 (T. Da Silva & G. Norton-Da Silva), Mr. Dutchak suggested that the Da Silva’s may not have realized the costs associated with the drain when they bought the 4 acres of land from Roll No. 050-138 (D. Small). However, he said that does not justify the actions of the Court of Revision that resulted in an assessment reduction to Da Silva and a corresponding assessment increase to the County.

In summary, Mr. Dutchak asked the Tribunal to reject the assessment reductions to Da Silva and Parezanovic. He added that should the Tribunal decide to confirm the assessment reductions granted by the Court of Revision, then the costs should be spread amongst all other affected parties, not just the County.

Findings

The Tribunal finds the Engineer’s method of calculating the assessments to be technically sound, compliant with the Act and in keeping with accepted practice.

The Engineer acknowledged that the new evidence provided for the first time by Mr. Parezanovic at the Court of Revision hearing justifies the $1,363 reduction in his outlet assessment granted by the Court. However, the Engineer testified that he would have reassigned the assessment to all the affected parties instead of just the County as ordered by the Court of Revision. Accordingly, the Tribunal will order that Court’s decision to reduce Mr. Parezanovic’s assessment by $1,363 be confirmed but will order that the costs be reapportioned to all remaining affected parties.

There was no evidence presented at the hearing to rationalize or justify the decision of the Court of Revision to reduce the benefit assessment to the Da Silva property by $3,000 and impose the amount onto the County of Elgin. Under the circumstances, the Tribunal is unable to deduce any reasonable explanation for the Court’s action and is therefore surprised by the Court’s decision. The Tribunal agrees with the Appellant’s arguments that the Court of Revision actions were unfounded and without clear rationale. Therefore, the Tribunal will order that the decision by the Court of Revision in this regard be rescinded and that the benefit assessments to Da Silva and the County be reinstated to those contained in the Report.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

The decision of the Court of Revision to reduce the outlet assessment to Roll No. 050-142 (P. Parezanovic) by $1,363 is confirmed. The decision of the Court of Revision to increase the Talbot Line (County of Elgin) outlet assessment by $1,363 is rescinded; instead, the outlet assessments shall be increased (decreased) as follows:

050-078-10 (S. & A, Simon)....................................... $280 050-078-20 (D. & B. McKillop).................................... $52 050-076 (D. & B. McKillop)......................................... $30 050-138 (D. Small)...................................................... $107 050-138-10 (Da Silva & G. Norton-Da Silva).............. $40 050-138-50 (C. Rybiak).............................................. $288 050-141 (C. & R. Innes)................................................ $80 050-242 (P. Parezanovic)........................................ ($1,363) Talbot Line (County of Elgin)..................................... $486

The decision by the Court of Revision to reduce the assessment for benefit to Roll No. 050-138-10 (Da Silva & G. Norton-Da Silva) by $3,000 and increase the benefit assessment to Talbot Line (County of Elgin) is rescinded. The assessment for benefit to Da Siva and the County of Elgin shall be reinstated to those contained in the Report.
The non-administrative costs of the Municipality in respect of this appeal shall form part of the cost of the drainage works, and it is ordered that there be no other order as to costs and all parties shall be responsible for their own costs.

Dated at Maidstone, Ontario this 17^th^ day of April, 2012.