Agriculture, Food and Rural Affairs Appeal Tribunal
Appeal: MacKenzie Camp Road Municipal Drain 2012 Township of Ashfield-Colborne-Wawanosh
MacKenzie Camp Road Municipal Drain (RE) 2013 ONAFRAAT 1
Statute: Drainage Act
Hearing: December 10, 2012
Neutral Citation: 2013 ONAFRAAT 1
MACKENZIE CAMP ROAD MUNICIPAL DRAIN - 2012 Township of Ashfield-Colborne-Wawanosh
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.
AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Eva Kehrer, Elora, Ontario; and Arthur and Jacqueline Simpson, Goderich, Ontario under Section 48(1) of the Drainage Act from the Engineer’s Report on the MacKenzie Camp Road Municipal Drain 2012 in the Township of Ashfield-Colborne-Wawanosh.
Before: Paula Lombardi, Vice-Chair; Jack Young, Vice-Chair; Bill Schaefer, Member
Appearances: Jeremy Taylor – R.J. Burnside & Associates Limited Valerie M’Garry – Counsel for the Township of Ashfield-Colborne-Wawanosh Arthur and Jacqueline Simpson – Appellants relying on written submissions only
DECISION OF THE TRIBUNAL
This hearing was held in the Council Chambers for the Township of Ashfield-Colborne-Wawanosh, (the “Municipality”) in Goderich, Ontario on December 10, 2012. There were initially two appeals to the Agriculture, Food and Rural Affairs Appeals Tribunal (“Tribunal”) under section 48(1) of the Drainage Act (the “Act”) from the engineer’s report on the MacKenzie Camp Road Municipal Drain 2012 (the “Project”). The engineer’s report dated June 6, 2012 (the “Report”), was prepared by R.J. Burnside & Associates Limited (the “Engineer”), and signed by Jeremy Taylor, P.Eng. The two appeals were filed by: Eva Kehrer; and, Arthur and Jacqueline Simpson (“Simpsons”).
Linda Andrew, Deputy 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 Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with notice of hearing dated October 1, 2012.
At the start of the hearing, Ms. M’Garry, counsel for the Township, provided the Tribunal with a copy of an e-mail from Mr. Isaac de Rijcke, counsel for the Appellant Ms. Kehrer, advising that Ms. Kehrer had instructed him to withdraw her appeal and to not appear before the Tribunal. The Tribunal confirmed with Ms. Kehrer that she wished to withdrew her appeal and did not want to participate in the hearing. Ms. Kehrer advised that she had decided to work cooperatively with the Municipality to resolve any outstanding issues that she may have with respect to the Project.
The Simpsons filed written submissions outlining their appeal with the Tribunal on November 27, 2012 but choose not to attend the hearing.
Background
The Project was initiated when three landowners petitioned the Municipality for drainage works under the Act. The petitioning landowners included: Mr. Jim Simpson; Ms. Kehrer; and, Ms. Harris.
In response to the petition, the Municipality appointed the Engineer to prepare the Report under the Act. Mr. Taylor was designated the Engineer in charge of the project in accordance with section 8(2) of the Act.
The Project is located in the northwest section of the geographic Township of Ashfield, Lots 23 and 24, Front Concession NTP. The objective of the Project is to convey the stormwater from the watershed through the existing, very steep gully area, and to control the soil erosion that is occurring to the gully and surrounding cottage properties.
The watershed area for the Project consists of an agricultural area of approximately 70 hectares (173 acres) between Highway 21 and Lake Huron, and a strip of cottage properties fronting on the shoreline of Lake Huron. The surface water in the project area currently runs off MacKenzie Road, North Service Road and the agricultural property outlets into Lake Huron through the existing gully that is situated between the cottage properties.
The elevation difference between the top of the gully and Lake Huron is approximately twenty (20) metres over a distance of sixty (60) metres creating a steep slope. The gully is situated on a fourteen (14) foot strip of property that is owned by the Municipality, the cottage property to the north owned by Ms. Kehrer, and the cottage property to the south owned by Mark and Lynne Harris. The control of erosion in the gully area necessitated the initiation of this Project.
On July 28, 2011, the Engineer held an on-site meeting, in accordance with section 9 of the Act, with the petitioning landowners, the Municipality and Maitland Valley Conservation Authority (“MVCA”). A second on-site meeting was held on February 5, 2012 with the majority of the affected landowners.
The Project commences at the outlet to Lake Huron and continues upstream through the steep gulley and consists of a 600 mm pipe on a 33% gradient with an outlet structure to dissipate the energy of the flow and control erosion at the lakeshore. Proposed construction under the North Service Road consists of a 750 mm pipe on a 9% gradient, with a ditch inlet catch basin located in the ditch on the east side of the North Service Road.
The Report proposes to partially fill the gully and provide an open channel for emergency overflow. An open channel is proposed along the east side of the North Service Road to divert runoff from entering the cottage properties located between the North Service Road and Lake Huron. The Project is designed for a 100 year storm and a pond is proposed to be constructed on the agricultural property to the east of the North Service Road and north of MacKenzie Camp Road. The pond would create storage that would attenuate flows by approximately 50% thereby reducing the size of the downstream pipe structure. The outlet from the pond is a ditch inlet catch basin which is connected to the catch basin on the east side of the North Service Road by a 200 mm pipe on a 2% gradient.
Mr. and Ms. Simpson submitted a written appeal to the Tribunal on the basis that the Project is excessive and unwarranted. Neither Mr. Simpson nor Ms. Simpson appeared before the Tribunal and requested that the Tribunal rely on their written submissions dated November 27, 2012.
Issues
Should the drainage works be modified as requested by Mr. and Ms. Simpson?
Evidence
The Engineer provided an overview of the Report outlining the design process and describing the various segments of the Project. There were no other witnesses at the hearing who provided testimony to contradict the Engineer’s Report, nor were the Appellants in attendance to ask questions of the Engineer.
The Engineer addressed the issues raised in the written appeal filed with the Tribunal by the Simpsons. The Engineer advised that the 100 year storm event was used to design the Project due to the very steep slope of the gully giving rise to potential damage from erosion. The Engineer indicated that although the 100 year storm was used to model peak flow, the use of the storage pond to attenuate peak flows allowed the Engineer to reduce the pipe size to the equivalent of a 25 year storm event.
In response to the Simpson’s concerns about the use of the existing fence rows as berms to control and slow the rate of the surface water, the Engineer advised that existing fence lines are not considered part of the municipal drainage system. Existing fence lines have no status under the Report and, taking into account general agricultural practices, fence lines are generally not maintained and can be easily altered and/or removed. The Engineer confirmed that the storage pond coupled with the berm would reduce the rate of flow entering the Project allowing for a more economical design. The berm included as part of the Project is subject to regular maintenance.
In their written submissions the Simpsons raised a concern that their land is currently under drained out of the watershed. The Engineer confirmed that this statement is correct. The Engineer indicated that the under drainage of the Simpsons’ property was taken into consideration in calculating the assessments for the Simpsons. A reduction in the equivalent acres for the Simpsons’ property was calculated at a factor of 0.9 whereas a normal reduction of 0.67 is applied to most agricultural drains. The Engineer advised that the factor of 0.9 was applied to this Project and was designed primarily to control and provide a safe outlet for surface water. In their written submissions, the Simpsons recommended the use of a rock riprap design as a less expensive alternative to the current design. The Engineer referred to examples cited by the Simpsons where rip rap is commonly used on channels with a moderate gradient and that in this situation with an extreme gradient and high water velocities, the use of rip rap would result in the stone being picked up and washed down the gully.
The Engineer outlined the two onsite meetings that were held with the landowners in the area to receive input and concerns about the Project. The Engineer stated that the proposed berms and channel along the North Service Road is to protect the cottage properties from the erosion that is being caused by water flowing across the agricultural lands towards Lake Huron. The Engineer also outlined the consultation process and cooperation that occurred with the MVCA and confirmed that the MVCA had issued a permit for the Project.
Ms. Harris, a landowner in the area, and one of the petitioners for the drainage works, filed written comments with the Tribunal advising that she and her brother own a cottage property adjacent to the south of the area of the proposed Project. Ms. Harris confirmed that during a major storm event in June 2010, land to the south of the Harris’ cottage underwent significant erosion, resulting in the shifting of the cottage foundation which they repaired at their own expense.
Ms. Harris indicated that, in her opinion, the design proposed by the Engineer is the best possible option in the circumstances. Ms. Harris requested that the Tribunal deny the Simpsons appeal to allow the Project to move forward as soon as possible.
The Engineer advised that in his professional opinion, the Project addressed the drainage problems in the area, mitigated erosion problems and dealt with the concerns of the landowners associated with the flow of surface water from the agricultural lands through the gully towards Lake Huron.
Findings
The Tribunal accepts the testimony and evidence provided by the Engineer. There was no evidence or testimony provided at the hearing to contradict the Engineer. The Tribunal confirms the Engineer’s Report and does not order any modifications to the Project.
The Tribunal did, however, raise a question with what could be interpreted as a discrepancy between the Engineering Report and the Geotechnical Report prepared by LVM dated February 24, 2012, (“LVM Geotechnical Report”) with respect to the drawings showing the bottom width of the overflow channel. A discrepancy exists in the bottom width of the overflow channel shown on drawing 4 of the LVM Geotechnical Report and the Typical LVM Channel Section shown on drawing C701 of the Engineer’s Report. The Tribunal recommends that this discrepancy be reviewed prior to initiating detailed design and construction activities.
ORDER OF THE TRIBUNAL
The Tribunal orders as follows:
The appeal by Arthur and Jacqueline Simpson is denied.
The non-administrative costs of the municipality for these appeals shall form part of the costs of the drainage works.
There will be no other order of costs and all parties are responsible for their own costs.
Dated at London, Ontario this 4th day of January, 2013.