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, chemin Stone Ouest
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
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
Laister Drain Branches 1, 3 and 4 Township of Blandford-Blenheim
Laister Drain (RE) 2012 ONAFRAAT 8
STATUTE:
Drainage Act
HEARING:
April 17, 2012
May 11, 2012
2012-08
NEUTRAL CITATION:
2012 ONAFRAAT 8
LAISTER DRAIN BRANCHES 1, 3 AND 4
TOWNSHIP OF BLANDFORD-BLENHEIM
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 Casey Fanta of Dunford Royal Cattle Company Inc., Woodstock, Ontario; under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Laister Drain Branch 1, 3 and 4 in Township of Blandford-Blenheim.
Before:
Paula Lombardi, Vice-Chair; Jack Young, Vice-Chair: and Cor Kapteyn, Vice-Chair.
Appearances:
Casey Fanta, representative for Dunford Royal Cattle Company Inc. – Appellant
Paul Courey, legal counsel for Township of Blandford-Blenheim - Respondent
Ken Smart, K. Smart Associates Limited- Engineer who prepared the Report
John Dean, witness for the Appellant
DECISION OF THE TRIBUNAL
This hearing was held in the Council Chambers of the Township of Blandford-Blenheim (“Township”) in Drumbo, Ontario on April 17, 2012. Mr. Casey Fanta on behalf of Dunford Royal Cattle Company Inc., appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) under Section 54(1) of the Drainage Act (“Act”), The Appeal of Mr. Fanta was from the decision of the Court of Revision, dated October 5, 2011 on the Laister Drain Branches 1, 3 and 4.
Ms. Lesley Lehman, Deputy Clerk of the Township, attended the hearing and performed the duties of the Clerk of the Tribunal.
Preliminary Matters
As a preliminary matter prior to the start of the hearing, the Tribunal issued an Order making all landowners assessed and/or compensated in the Engineer’s Report parties to this hearing. The Clerk of the Township filed an Affidavit of Service with the Tribunal confirming that all parties had been served with the Notice of Hearing dated December 19, 2011.
Background
The project is located in Lots 5, 6, & 7 of Concession 2, and Lot 6 of Concession 3 in the geographic Township of Blandford. The Laister drainage area is now partially located in the municipality of the City of Woodstock and the municipality of the Township of Blandford-Blenheim. The Township of Blandford-Blenheim is the administrating municipality for this drainage project. The proposed construction work on the Laister Drain 1 is immediately west of Blandford Road where it crosses over Highway 401.
The construction work associated with this appeal relates to Branch 1 of the Laister Drain and involves construction of a section of tile drain from the southern limit of Highway 401, northward under Highway 401 and continues approximately 450 m through agricultural land to an outlet in an open channel on the west side of Blandford Road.
The Engineer’s Report for the drainage work was prepared by K. Smart Associates Limited (“Engineer”) on the Laister Drain Branches 1, 3 and 4 dated August 5, 2011 (“Report”). The Report provides for drainage improvements in the Laister Drain, Branch 1 watershed, in Pt. Lot 6, Concession 2 and 3 of the Township and also assesses the existing Laister Drain, Branches 1, 3 and 4 for maintenance purposes.
The process for the improvements to the Laister Drain began when the Drainage Superintendent for the Township requested that a review be conducted, in accordance with the Act, of the Laister Drain, Branch 1. The Engineer was appointed by resolution of Council for the Township on September 17, 2009. The Engineer conducted an on-site meeting with the owners of property in the area on September 17, 2009. The Engineer also held a meeting with the Ontario Ministry of Transportation (“MTO”) regarding the drain on Highway 401 on November 30, 2009. On April 13, 2011 another meeting was held with the Township Drainage Superintendent and the MTO. A subsequent meeting was then held with the property owners located in the Laister Drain Branch 1 watershed upstream of Blandford Road on May 5, 2011 to review the work that would be recommended to the Township.
The Laister Drain dates back to 1915, there are numerous reports on this drain in the 1950s, 1969, 1978 and 1982. The portion of the tile drain being replaced at this time was constructed in 1915 and 1969. In 1969, the Laister Drain was extended up to the Branch 2 tile outlet and then continued further downstream north to Concession 4. Branches 1 and 2 of the Laister Drain were improved throughout the drainage area and a new Branch 3 constructed. The Engineer has determined that a section of Branch 1 of the Laister Drain needs to be replaced and the capacity increased.
In or around 2008/2009 Highway 401 in the Laister drainage area was increased from four lanes to six lanes. The Appellant claimed that the construction completed by the MTO caused the recent drainage problems and therefore the MTO should be assessed a higher amount for the reconstruction of the Laister Drain, Branch 1.
The Appellant filed the appeal under section 54(1) of the Act and, as a result, the Tribunal has limited jurisdiction to only consider the amount of the assessments and cannot deal with the engineering aspects of the Report.
The Appellant's land is located immediately upstream of the Highway 401 right of way.
Issue
Is it appropriate for the Tribunal to amend the assessment against the lands of Casey Fanta of Dunford Royal Cattle Company Inc. and allocate a higher assessment to the MTO drainage area?
Evidence
Engineeer’s Overview
Mr. Ken Smart, P.Eng., the Engineer who prepared the Report, provided an overview of the project and description of the method used to calculate the assessments. Mr. Smart was of the professional opinion, based on the research and investigation that he conducted, that the Laister Drain was left in good condition after the reconstruction of Highway 401. There was one exception of a catch basin on the south side of Highway 401 that had been covered over and was subsequently reopened to resolve the issue. The MTO inspected the Laister drain under Highway 401 with a video camera and based on the results of the video inspection, Mr. Smart stated “that the existing crossing wasn't in very good shape.” This conclusion resulted in Mr. Smart recommending in the Engineer’s Report that the section of tile drain under Highway 401 be replaced. The proposed drain replacement is 600 mm (24”) in diameter and will provide 50% more capacity than the existing tile.
Mr. Smart then proceeded to describe the area of land being drained from Highway 401 to the Laister drain. The area of the Laister Drain around Highway 401 was surveyed using GPS equipment to verify the watershed limits situated within the Highway 401 right-of-way. Mr. Smart concluded that the present MTO watershed area, based on the GPS survey, is 8.8 hectares being approximately 1 hectare larger than what was identified in the 1982 engineering report for the area. The Engineer used the 8.8 hectare MTO watershed area to calculate the assessments in the Engineer’s Report.
The Tribunal questioned Mr. Smart on the drainage that existed in the area of Highway 401 prior to MTO constructing the two additional lanes. Mr. Smart advised that prior to the Highway 401 reconstruction, the area of the right-of-way located on the North side of Highway 401 and West of Blandford Rd. had flowed directly to the Laister Drain Branch 1 by means of a ditch, catch basins and a drainage pipe located within the MTO right of way.
On the issue of the amount of assessments allocated to the various property owners, Mr. Smart stated that he had used the Todgham Method to distribute the cost of the work. This method involves breaking the drain up into sections and assigning the cost of each section as benefit and outlet assessments to the lands using each section of the drain. A summary of this calculation is shown at page 27 of the Report. Mr. Smart directed the Tribunal to the calculations in the Report to show that a substantial component of the cost was assessed to the roads and not to the area property owners. Of the $406,210 assessment for the Laister Drain Branch 1, the MTO, the Township of Blandford-Blenheim, and City of Woodstock have been assessed $358,403 representing approximately 88% of the costs associated with the work being proposed. Mr. Smart indicated that his approach to the allocation of costs was to ensure that the property owners were paying no more than they would be assessed if the 1950s drain had been replaced.
Submissions of the Appellant – Casey Fanta for Dunford Royal Cattle Inc.
Mr. Fanta referred to a written statement that was submitted to the Tribunal office on April 3, 2012 that described the drainage problem as being directly related to the reconstruction of Highway 401. Mr. Fanta’s position was that the landowners should not be held responsible to repair a problem that did not exist prior to MTO’s expansion of Highway 401.
Mr. Fanta’s property is referred to as Contrans Income Fund in the Report. Mr. Fanta has been involved in the property for ten years and has lived on the property for the past seven years. Mr. Fanta advised the Tribunal that in his experience his property now floods more regularly, and more drainage is coming across his property than what existed prior to the expansion of Highway 401. Mr. Fanta expressed concern that the MTO made changes to the drainage area without obtaining the prior approval of the Township. Mr. Fanta’s opinion is that that additional water is being directed to the drain by the MTO but was unclear as to how much additional water was added. Mr. Fanta pointed out to the Tribunal that Highway 401 is now six lanes and no longer has a centre grassed median.
Mr. Fanta identified an area south of Highway 401 where he claimed water now sits where it had never previously existed and indicated that some of the trees in the area have tipped over. Mr. Fanta in response to a question raised by Township’s legal counsel stated that it was his position that his property had been appropriately assessed compared to the other property owners in the area and acknowledged that there was nothing wrong with the engineer's calculations set out in the Report.
Mr. Fanta called John Dean as a witness. Mr. Dean is a property owner whose land is located at the lower end of the Laister Drain Branch 1, on the east side of Blandford Road. Mr. Dean referred the Tribunal to section 23(2) of the Act, regarding assessment for “Injuring Liability” that states that if water is artificially caused by any means to flow upon or injure any land or road where the water is caused to flow the responsible party may be assessed for injuring liability with respect to drainage works to relieve the injury that it causes.
Mr. Dean stated that during the expansion of Highway 401 the MTO had constructed a 36 inch culvert along the north side of the westbound lane under Blandford Road to transport water to the Highway 401 ditch west of Blandford Road to the Laister Drain Branch 1. Mr Dean was of the opinion that prior to the expansion of Highway 401 this water had flowed in a northerly direction onto the property owned by the Ministry of Natural Resources and did not enter Laister Drain Branch 1. Mr. Dean concluded that because of the additional water added to the Laister Drain and the MTO was responsible for the drainage problems and should be assessed for injuring liability.
Ken. Smart - Engineer
Mr. Smart reiterated that the MTO watershed as defined by the GPS survey is the same as the MTO drawing and the approximately 8.8 hectares represents the MTO watershed which is slightly larger than the area of the MTO watershed in the earlier reports. Mr. Smart advised the Tribunal that that he had taken into consideration the increased runoff due to the removal of the grass median on Highway 401 and the additional impermeable surface added from the expansion of Highway 401 from four lanes to six lanes. Mr. Smart, in assessing the MTO lands, used more than double the runoff coefficients in designing the drain and when preparing the schedule of assessments. The Engineer’s Report assessed the MTO $75,000 for construction of a tile drain downstream of Highway 401 which is based on the cost of constructing a 525 mm (21“) tile from Highway 401 to the outlet. Based on this assessment, the property owners were only assessed for the equivalent of the replacement of the 1915 drain.
On the issue of injuring liability, Mr. Smart’s position was that it is treated identical to “outlet liability” and that it is common practice to assess outlet liability and injuring liability together under the heading “Outlet”. These assessments are based on “volume and rate of flow” as described in section 23(3).
On the issue of the 36 inch diameter culvert under Blandford Road, Mr. Smart confirmed that the culvert is located on MTO property and is specifically situated to handle MTO water and that the Township had no control over the culvert.
Findings
The Tribunal reviewed the evidence regarding the catchment area on the MTO lands, north of the westbound 401 lanes and west of Blandford Road, that Mr. Dean claimed had previously flowed north onto the MNR property. On this issue, the Tribunal accepts the testimony of Mr. Smart with respect to the GPS field survey and the original MTO drawings indicating that the runoff from this area on Highway 401 previously flowed easterly through catch basins and drainage pipes directly to the Laister Drain Branch 1.
The Tribunal also accepts that the MTO has the right to drain this section of its watershed through the new culvert under Blandford Road on the North Side of Highway 401 to the Laister Drain. On the issue of injuring liability, it has been a long-standing procedure of drainage engineers to include “injuring liability” along with the “outlet liability.” Both types of liability are included under one heading as they both relate to the area of land drained and incorporated into the project.
The Appellant only appealed the assessment as it relates to his property and did not appeal the engineer’s report.. Mr. Fanta, advised the Tribunal that he did not feel that his land had been inappropriately assessed as compared to the assessments of his neighbours. Mr. Fanta also indicated that he agreed that there was nothing wrong with the Engineer's calculations, Mr. Fanta’s concern only related to the amount of water being drained from Highway 401 into Laister Drain Branch 1 and that because of this, he feels the MTO should be assessed at a higher rate.
There are two factors that affect the amount of runoff from land: (1) the area of land drained; and, (2) the runoff coefficients for that land. Mr. Smart testified that the area of land drain from Highway 401 is now assessed at 8.8 hectares and that this was the area used in the calculation of the assessments. Mr. Smart testified that the runoff coefficient to the Highway 401 property had been increased to take into account the removal of the grass median and the additional lanes added during the expansion of Highway 401 in the area.
The Appellant did not provide any evidence to contradict the findings or the testimony of the Engineer nor was any evidence put forward to show that the MTO watershed area had been inappropriately assessed. There was no evidence showing that additional land from the Highway 401 right-of-way was being added to Laister Drain Branch 1. The Appellant failed to provide the Tribunal with sufficient evidence that would support any amendment to the Schedule of Assessments for this project.
ORDER OF THE TRIBUNAL
The Tribunal orders as follows:
The appeal by Casey Fanta of Dunford Royal Cattle Company Inc., under Section 54(1) of the Drainage Act be denied; and,
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 are responsible for their own costs.
Dated at London, Ontario this 11^th^ day of May, 2012.