Millbrook Drain (Re), 2013 ONAFRAAT 10

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, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Millbrook Drain Town of Kingsville

Millbrook Drain 2013 (RE) ONAFRAAT 10

STATUTE:

Drainage Act

HEARING:

May 30, 2013

DATE OF DECISION:

July 15, 2013

2013-10

NEUTRAL CITATION:

2013 ONAFRAAT 10

MILLBROOK DRAIN Town of Kingsville

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 Estate of Hubert Finaldi, Kingsville, Ontario; under Section 48(1) and Section 54(1) of the Drainage Act from the Engineer’s Report and from the decision of the Court of Revision or from its omission, neglect or refusal to hear or decide an appeal on the Millbrook Drain in the Town of Kingsville.

Before:

Kirk Walstedt, Chair; Enio Sullo, Vice-Chair; Tim Mousseau, Member

Appearances:

Tim R. Oliver, P.Eng., Dillon Consulting Limited, Engineer who prepared the Report

Ruth Orton-Pert, Counsel for Town of Kingsville

Michael Laba, Karry & Laba, Barristers & Solicitors, Counsel for the Appellant

Irene Finaldi, Estate Trustee for the Appellant

Cindy Prince, Amico Properties Inc., Assessed Landowner

DECISION OF THE TRIBUNAL

This hearing was held in the Town of Kingsville (the “Town”) on May 30, 2013. The Engineer’s reconsidered drainage report dated May 29, 2012 (the “Report”), was prepared by Dillon Consulting Limited and signed by Tim R. Oliver, P. Eng., (the “Engineer”). The appeal was filed by Michael Laba, Counsel for the Appellant.

Sandra Kitchen, Deputy Clerk of the Town of Kingsville, 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 Town filed an Affidavit of Service with the Tribunal as proof that all parties had been served with notice of hearing dated April 22, 2013.

Background

The original Engineer’s report, dated January 25, 2010, was prepared pursuant to a petition submitted by the Town of Kingsville Road Authority and by Amico Properties Inc. (“Amico”) in October 2007. The petition was submitted in part to provide a legal drainage outlet for a portion of Road 2 East and surrounding lands in the Town of Kingsville. Council accepted the petition under Section 4 of the Drainage Act (the Act) and appointed Dillon Consulting Limited to prepare the report.

The original report recommended incorporating an existing private ditch on the residential zoned Amico lands into a municipal drain and relocating it easterly onto the neighbouring agriculture zoned Finaldi lands. The purpose of the relocation was to facilitate the development of the Amico lands into a residential subdivision. The estimate cost for the proposed works in the original report was $66,500.

Subsequent to an appeal by Finaldi, the report was referred back by Council to the Engineer for reconsideration. In his resubmitted Report, the Engineer increased the allowances under Section 29 of the Act which resulted in a new estimated cost for the project of $93,000.00.

The reconsidered Report, which is the subject of this hearing, is dated May 29, 2012 and was adopted by Council on November 26, 2012.

Issues

1. Under Section 48(1) of the Drainage Act, the Tribunal is to determine:

i) whether the benefit to be derived from the drainage works is commensurate with the estimated cost;

ii) whether the drainage works should be modified; and,

iii) whether the compensation or allowances provided by the Engineer are inadequate or excessive.

2. Under Section 54(1) of the Drainage Act, the Tribunal is to determine whether the assessments are appropriate.

Evidence

Evidence of Tim R. Oliver, P. Eng., Dillon Consulting Limited, the Engineer who Prepared the Report

Mr. Oliver confirmed the timing and purpose of his original report dated January 25, 2010 and his reconsidered Report dated May 29, 2012. He testified at the first onsite meeting, he learned that a proposed residential subdivision incorporating 79 lots had been approved and was in the process of being developed on the Amico lands. He said the Road Authority was requesting a legal outlet for road drainage. The existing drainage was southerly through a private ditch approximately 350 m (1,148 ft) in length. This ditch extended for about 140 m (459 ft) on the Amico property, after which it jogged to the east onto the Finaldi property, and continued as an open ditch to its outlet in the Scratch Wigle Drain. In addition, he said surface drainage from certain agricultural properties on the north side of the road was being directed through a road culvert into this existing private ditch.

Mr. Oliver testified at the onsite meeting he also learned the petition for drainage was signed both by Amico and the Town of Kingsville Road Authority, and as such he determined the petition was valid under Sections 4(1)(b) and 4(1)(c) of the Act. Mr. Oliver stated he was told that Amico would be draining the subdivision property through an urban storm sewer system which would also outlet into the Scratch Wigle Drain, and the existing private ditch on their property was not required by Amico. Mr. Oliver testified that if left in its current location the existing path of the open ditch on the Amico property would be in the rear yards of the proposed new lots in the subdivision which would be problematic for future maintenance purposes. He also explained the Finaldi lands did not require drainage into either the existing private ditch or into the proposed new drain, and therefore would not be assessed for any costs of the new drain.

Mr. Oliver said the drainage area for the new drain comprises about 27 acres (10.9 ha) of surface water drainage on the north side of the road, about 3 acres (1.2 ha) of road drainage, and 2 residential lots on the south side of the road.

Mr. Oliver testified the upper portion of the proposed new drain on the Finaldi property will be a closed tile drain while the lower portion will be an open drain. He said in his opinion the closed portion of the new drain will be a benefit to Finaldi since it will still allow Finaldi to continue to use this portion of the property for agricultural purposes, albeit a shallow swale for overflow purposes would have to be maintained. The proposed open section of the drain on the Finaldi property will be in the same location and will not exceed 6 m (19.7 ft) in width. Mr. Oliver explained that, in his original report, Section 29 allowances for the use of the 6 m (19.7 ft) corridor were based on an agricultural valuation for the Finaldi property for both the closed and open portions of the new drain.

Mr. Oliver elaborated on the reasons for the original report being sent back by Council for reconsideration, these being to examine any possible alternatives for the location of the drain and to determine if the allowances in the original report were adequate. As a result of the request for reconsideration, Mr. Oliver explained in detail how he examined a possible alternative route into the C.A. Quick Drain, another municipal drain in the area. This alternative proved to be more costly (estimated at $158,000), and was rejected by Mr. Oliver. Mr. Oliver also said he examined a second alternate outlet into the Sutak Drain, another adjacent municipal drain, and this alternative proved to be even more costly than the C.A. Quick Drain alternative, and as a result was also rejected.

With respect to the land value for Section 29 allowances for the Finaldi property, Mr. Oliver testified that since an independent appraisal had not been received from Finaldi, Council instructed him to obtain an independent appraisal for land valuation purposes. A copy of the appraisal report was included in the reconsidered Report and the Section 29 allowances were amended based on the appraiser’s valuation of $42,000 per acre for the portion of the drain on the Finaldi property.

Mr. Oliver indicated in addition to the 6 m (19.7 ft) corridor for the drain, an additional 7.5 m (24.6 ft) was specified in the Report in order to allow access for the construction of the drain as well as future maintenance. A damage allowance for the entire length of the drain for this 7.5 m (24.6 ft) working corridor was included in the Report to compensate for possible crop damage and compaction during construction. As well, an allowance under Section 31 was made in the Report to recognize the incorporation of the existing open ditch into the drain. Mr. Oliver pointed out the total allowances provided in the reconsidered Report are $25,000, as opposed to the allowances in the original report of $7,250.

Mr. Oliver then explained his rationale for allocating assessment, explaining that of the work proposed in the Report, 100% of the cost to replace the existing road culvert is being assessed to the Road Authority as per Section 26 of the Act. In addition, 100% of the cost of constructing the closed portion of the drain is being assessed to Amico as a special benefit. The cost for the open section of the drain is being assessed equally between the Road Authority and Amico. The remaining balance is being assessed as outlet liability to the Road Authority. Future maintenance costs are being assessed to all lands in the drainage area.

Mr. Oliver indicated that some of the revisions to the assessment requested at the Court of Revision for the reconsidered Report were granted, however no changes were considered based on an appeal from Finaldi since there were no costs assessed to the Finaldi property.

Upon cross examination by Mr. Laba, Mr. Oliver testified the information regarding changes to the Town’s Official Plan with respect to the Finaldi property came to light as a result of the appraisal report. Mr. Oliver stated in his opinion, only the 6 m (19.7 ft) corridor where the new closed portion and the open portion of the municipal drain will be located should be entitled to the Section 29 allowance, since this is the only area permanently impacted by the construction of the new drain.

On further questioning by Mr. Laba, Mr. Oliver agreed that in addition to the 6 m (19.7 ft) corridor described in his Report, he was also recommending a further 7.5 m (24.6 ft) working corridor adjacent to the drain for construction and future maintenance, and that this working corridor, “…shall remain open and clear with no trees, buildings, fences, etc. occupying this area.” Mr. Oliver suggested that his statement restricting the use of the working easement was included in the Report as a precautionary statement to advise that if there were to be obstructions in the area that required removal or relocation in order to facilitate maintenance on the drain in the future, the owner could possibly be liable for any costs involved. Mr. Oliver further suggested that there is a distinction between the 6 m (19.7 ft) corridor where the drain is constructed and the 7.5 m (24.6 ft) corridor for construction and future maintenance in that the area in the 6 m (19.7 ft) corridor includes a shallow swale that the owner might choose not to use for crop production, whereas the working corridor can continue to be used for crop production after construction is complete. Mr. Oliver further suggested that the compensation allowances in his Report were adequate and in compliance with the Act.

Mr. Laba then questioned Mr. Oliver as to the benefit of the project for the area being drained. Mr. Oliver testified that he determined the benefit for the project exceeded the cost, taking into account all aspects of the existing conditions and the fact that a legal outlet for the Road Authority does not currently exist.

Responding to questions from the Tribunal, Mr. Oliver testified at the present time the Amico property was vacant but was ready for development and is presently being used for agricultural purposes. Mr. Oliver did not know whether the value established by the appraiser for the Finaldi property was based on a transfer of deed or just as an easement for the purpose of the drain.

Evidence of Cindy Prince, for Amico Properties Inc., Assessed Landowner

Ms. Prince testified Amico has been involved with this project since October of 2007. She testified Amico owns and has developed several properties in the immediate area and at present has several properties on hold in the area of the proposed drain, which have been designated and zoned residential, and are in an approved Plan of Subdivision. She said Amico is anxious to develop the property adjacent to the Finaldi lands. She pointed out that the Finaldi property, which consists of slightly over 51 acres (20.6 ha), has an assessed value as of 2012 of $192,000.00, which translates to under $4,000.00 per acre while the appraisal completed by the Municipality indicated a value of $42,000.00 per acre.

Ms. Prince testified as a result of the initial complaint by Finaldi with respect to the low valuation of their property, the designation in the Town’s Official Plan for a strip of the Finaldi property was changed to Residential to recognize this strip might be used to accommodate the new municipal drain. In Ms. Prince’s opinion, the Finaldi farm, other than this small portion, is currently designated and zoned agricultural, and will likely not be developed as residential property within the next twenty years. Ms. Prince also testified that in her opinion, the existing appraisal of $42,000 per acre is ten times the actual current value of the property. Nevertheless, she said Amico supports the Report, including the allowances to Finaldi.

Evidence of Irene Finaldi, Estate Trustee for the Appellant

Ms. Finaldi testified Mr. Hubert Finaldi was her father, and that he passed away in 2000.

Ms. Finaldi said she has lived on the subject property since 1967. She indicated the open ditch on the Amico property existed since at least the time her father purchased the property in 1967 from Mr. Sutak. The portion of the ditch on her property was constructed by her father around 1973 to handle surface water draining from the Sutak (now Amico) property. She agreed that the existing private drain outlets into the Scratch Wigle Drain and that there have been no issues with this private drain. She said her property drains directly south into the Scratch Wigle Drain and does not require the existing private drain or the new municipal drain.

Ms. Finaldi testified that her intention is to develop her property “sometime down the road” as residential property but for now she said that she had only made some inquiries. She indicated she was not aware that some portion of her property had been designated residential by the Town of Kingsville. She was however aware of the appraisal received by the Engineer and the Town, indicating a value of $42,000 per acre for the affected property. She said she disagreed with the appraisal, indicating that her research shows that the value should be $50,000 per acre.

Ms. Finaldi stated she disagreed with moving the drain onto her property since the existing drain on the Amico property has been there for at least 46 years. Ms. Finaldi also disagreed with the amount allowed for compensation for moving the drain onto her property. She said that the alternative route to the C.A. Quick Drain should be pursued instead.

On cross examination by Ms. Orton-Pert, Ms. Finaldi testified she had no experience in developing property and has had no property owned by her either previously developed or in the process of being developed. Ms. Finaldi said she did participate in some of the meetings related to the Amico subdivision, but did not participate in any of the meetings for amendments to the Town’s Official Plan. Ms. Finaldi was aware that she would require an application to the Town to change the Official Plan designation for her property in order to develop it as a residential subdivision, but to date she had not done so. Ms. Finaldi further indicated she has talked to about three or four people about developing her property, but could not recall specifically who they were, with the latest being around 2005. She said she has refused any offers to date to purchase or develop her property.

When questioned by the Tribunal about whether she had ever had her own appraisal done on her property, Ms. Finaldi indicated she had not. Ms. Finaldi could also not recall what the present assessed value of her property was.

Arguments by Michael Laba, Counsel for the Appellant

Mr Laba clarified that although the appeal was initiated under both Sections 48 and 54 of the Act, the primary grounds for the appeal were under Sections 48(1)(a), 48(1)(b) and 48(1)(c) of the Act.

Mr. Laba noted there was no evidence presented at the hearing to suggest that the existing private drain was not functioning. He argued that there were prescriptive rights associated with the existing drain and as such the entire cost of the works proposed by the Report should be assessed against Amico.

Mr. Laba argued the cost to service such a small portion of the roadway is excessive and not commensurate with the benefit derived. Accordingly, he said that the drainage works should be modified to leave the upper portion of the proposed drain in its existing location, and the Finaldi lands should not have to bear the burden of the relocation of this portion of the drain onto their property, particularly since the Finaldi lands do not contribute or require any drainage into this new drain.

With respect to compensation, Mr. Laba argued that the existence of the 7.5 m (24.6 ft) working corridor in the Engineer’s Report, in addition to the 6 m (19.7 m) corridor established for the new covered drain, restricts the use of this additional section of property in the same manner as the corridor established for the drain itself, and as such should be compensated at the same rate as the 6 m (19.7 ft) corridor, namely at a value of $42,000 per acre. In support of his argument, Mr. Laba introduced a paper presented at the 2010 Drainage Conference, which references a Tribunal case as well as several Court cases on the subject of compensation for lands required for drainage. Based on information contained in this paper, Mr. Laba argued that full compensation should be made not only for the 6 m (19.7 ft) corridor where the drain is to be located, but also the for the 7.5 m (24.6 ft) working corridor for the purpose of construction and future maintenance of the drain. He said that by applying the valuation of $42,000 per acre, the Finaldi lands should be compensated an additional $27,514.20 for the working corridor.

Arguments by Ms. Ruth Orton-Pert, Counsel for the Town

With respect to the Appellant’s position that the cost for the works is not commensurate with the benefit derived, Ms. Orton Pert argued that the potential liability to the Town of Kingsville in not providing a proper outlet for the road drainage also needs to be taken into consideration.

Mr. Orton-Pert suggested that the issue as to whether or not there are prescriptive rights to use the existing private drain is not a matter for the Tribunal to decide and should not be considered relevant.

Mr. Orton-Pert submitted the Drainage Act provides that the Engineer can determine the most efficient location for a drain, despite the fact that the drain may not necessarily be located on the lands that are being drained.

Ms. Orton-Pert put into evidence a certified copy of a map from the Town’s Official Plan, and suggested the area for the new drain (6 m) (19.7 ft)), was designated residential, with the balance of the Finaldi property designated agricultural.

Ms. Orton-Pert introduced a paper from the 1998 Drainage Engineer’s Conference. In particular she referred to an interpretation of Section 29 allowances, which indicates that allowances under Section 29 are only provided to lands that are permanently taken out of production as a result of the construction of a new drainage works. She pointed out that the Engineer has provided allowances to Finaldi under Section 29 of the Act even for the enclosed portion of the new drain, even though the area over top of the drain can continue to be farmed. Accordingly, she argued that the Report provides sufficient compensation to the Finaldi lands.

Findings

In general, the Tribunal is disturbed by the actions and omissions of the Town of Kingsville and Amico which led up to the need to invoke the Drainage Act in dealing with the existence of the private ditch. There was no evidence presented at the hearing to suggest that there had been any attempt to incorporate the private ditch into the storm sewer system for the Amico subdivision. The Tribunal is convinced that the flow associated with the private ditch could have (and should have) been incorporated into the storm sewer system for the Amico subdivision. Had that been done, there would not have been any need to involve Finaldi, who, for reasons explained below, will now have to bear the burden of having the drain located on their lands while receiving little or no benefit from the drain. It is regrettable that the Tribunal must now also decide on this matter.

With respect to Section 48(1)(a) of the Act, the Tribunal finds that the Appellant did not provide any expert or other engineering evidence sufficient to refute the Engineer’s opinion that the benefit for the construction of the drain exceeded the cost thereof. The Tribunal notes that the Engineer examined two alternative routes for the new drain and determined that the most efficient and economical route to be the one recommended in his Report.

Despite the Appellant’s argument under Section 48(1)(b) of the Act that the upper portion of the drain should remain in its present location on the Amico lands, the Tribunal accepts the evidence of the Engineer that leaving the drain in its present location is impractical because it would result in the drain being located in the rear yards of the proposed residential lots and would prove difficult for future maintenance. The new location and alignment of the drain eliminates this problem.

Furthermore, the Tribunal notes the Engineer made an effort to accommodate the Appellant through the use of a closed drain in the upper section of the drain, where an open drain could have been sufficient. Accordingly, the Tribunal is satisfied with the location of the drain as proposed by the Engineer in his Report.

The evidence is that the Finaldi lands are currently being used for agricultural purposes and the Town’s Official plan recognizes the lands as such except for a strip along the west property line (adjacent to the Amico lands) which is recognized as residential. The evidence is unclear as to the width of the Finaldi strip of land designated residential except that the residential designation was put in place to accommodate the proposed drain. While the Appellant and the Town disagreed as to the limit of the residential lands on the Finaldi property, neither party could point to any definitive evidence to quantitatively identify the limit.

In his Report, the Engineer provided an allowance of $22,000 to Finaldi under Section 29 of the Act based on a residential land value rate of $42,000 per acre for the 6 m (19.7 ft) width occupied by the drain. He did not provide an allowance under Section 29 for 7.5 m (24.6 ft) working corridor adjacent to the drain, but did provide an allowance of $500 to Finaldi under Section 30 for damages to crops and compaction of soil. While the Engineer did not present any evidence as to the location of the residential/agricultural boundary on the Finaldi lands, based on his handling of the allowances under Section 29 and 30, he appears to have assumed the boundary to be at the limit of the 6 m (19.7 ft) width of the drain.

The key issue to be decided by the Tribunal is whether the Finaldi lands should be compensated under Section 29 of the Act for the 7.5 m (24.6 ft) working corridor. If so, the precise location of the boundary between the residential and agricultural designations becomes relevant in deciding whether to compensate at the residential value or the agricultural value. Furthermore, if there is to be compensation for the working corridor under Section 29, the Tribunal must decide how to value that allowance.

The Appellant submitted that the 7.5 m (24.5 ft) working corridor should be compensated at the rate of $42,000 per acre (the same rate as the 6 m (19.7) width to accommodate the drain). In making its determination on this matter, the Tribunal undertook a detailed review of the case law referenced in the papers presented by the parties. The cases reviewed by the Tribunal include the following:

• Cowper Essex v Acton Local Board (1889) L.r. 14 A.c. 153(H.L.)

• Bruce v. Dixon (1957) O.W.N. 489(Ont. C.A.)

• Carpenter et al. v. Smith (1951) 1951 CanLII 113 (ON HCJ), 2 D.L.R. 609 (Ont. S.C.)

• Chronic v. Pugh et al (1891) 136 Ill. 539 (Supreme Court of Illinois)

• Dundas Street Bridges (1904) 8 O.L.R. 52 (Ont. H.C.J.)

• Euphemia v. Brooke (1898) (Ont. Drainage Referee)

• Huson v. Norwich (1892) 1893 CanLII 2 (SCC), 19 O.A.R. 343 (Ont. C.A.)

• Prittie v. Toronto (1892) 19 A.R. 503 (Ont. C.A.)

• Re Richardson v. Toronto (1889) 17 O.R. 491 (Ont. H.C.J.)

• Rhodes v. Raleigh (1898) (Ont. Drainage Referee)

• Weeks v. Rogalski (1954) 1953 CanLII 110 (ON HCJ), 4 D.L.R. 439 aff’d 1955 CanLII 148 (ON CA), 1 D.L.R. (2d) 709 (Ont. S.C.)

• Region of Niagara Sloma Drain (1995) unreported (Ont. Drainage Tribunal)

Dundas Street Bridges and Huson v. Norwich, as well as other cases not provided by the parties, support the proposition that the Act is remedial legislation that should receive a large and liberal construction which avoids narrow technical interpretation. The Tribunal agrees with this interpretive approach. Considering this interpretive approach and the cases provided, in particular Re Richardson v. Toronto, Cowper Essex v Acton Local Board, Prittie v. Toronto, Rhodes v. Raleigh, and Chronic v. Pugh, it is clear that in Ontario (and other jurisdictions) lands used for drainage works are subject to an easement that ought to be compensated for.

The only outlier case is the Region of Niagara Sloma Drain, interestingly submitted by the appellant, where the Drainage Tribunal held that there were no provisions in the Act for granting allowances for a right-of-way for the purposes of maintenance and repair. Despite this outlier case, the Tribunal is aware that Engineer’s frequently provide allowances for the maintenance right-of-way easement. In this case, while the lands may be used for some purposes despite the restriction put on them in the Report, there will be a (more or less) permanent restriction of use because of the drainage works and the land use restrictions in the Report. Considering the interpretive approach to the Act, we find that restrictions to land use provided in the Report use should also be allowed for under Section 29.

Since Municipalities are bound by the Act to maintain municipal drains, an implied easement exists adjacent to every drain to allow such maintenance to be done. The Tribunal is of the view that the preponderance of the case law indicates that such easements exist, whether or not they are specified by an Engineer, and such easements are taking that they should be compensated. In this case, the Engineer did specify a 7.5 m (24.6 ft) working corridor and imposed restrictions (no fences, buildings, trees, etc.) on its use.

The Tribunal finds that the 7.5 m (24.7 m) working corridor specified by the Engineer on the Finaldi land is an integral part of the drain that features land use restrictions and therefore should be compensated under Section 29 of the Act. The evidence is that a residential designation was placed on the Finaldi land to accommodate the drain. Since the working easement is an integral part of the drain and since the residential designation was put in place to accommodate the drain, it follows that the both the 6 m (19.7 ft) drain width and the 7.5 m (24.6 ft) working corridor should be considered to be within the residential designated strip for valuation purposes. Therefore, the Tribunal finds that the compensation for the 7.5 m (24.6 ft) working corridor under Section 29 of the Act, should be determined considering a residential land value of $42,000 per acre.

The Engineer’s evidence is that he did not provide a Section 29 allowance for land to Finaldi for the 7.5 m (24.6 ft) working corridor because the corridor will not be permanently impacted; that is, Finaldi will be able to continue farming the corridor following the construction of the drain. This reasoning is also supported by the 1998 Drainage Engineer’s Conference paper submitted by the Town. The Tribunal is aware that this logic is commonplace among Drainage Engineers preparing reports under the Act, where allowances under Section 30 are often provided. However, in this case, the Tribunal is not convinced the working corridor on the Finaldi lands will not be permanently impacted.

The Tribunal notes that although the Finaldi land is currently designated predominantly as, and is being used for, agriculture, the parcel is surrounded on three sides by urban residential or institutional lands. While the Tribunal acknowledges the evidence that there are no imminent plans to develop the Finaldi lands and that such development may some years away, the Tribunal is convinced by the mere location of the lands that development can and will occur at some point. When that happens, the owner of the Finaldi land will have to deal with the existence of the municipal drain (including the working corridor) being created by this Report. The owners of the Finaldi lands will then face the same issues and costs as Amico faced this time around.

There was no evidence to suggest that the working corridor should be any wider or narrower than specified by the Engineer. Accordingly, based on the foregoing reasons, the Tribunal will order compensation to Finaldi under Section 29 of the Act for the 7.5 m (24.6 ft) working corridor. The Tribunal notes that for purposes of calculating the compensation, the Engineer used a rate of $7,636 per acre for agricultural land (in his original report) and $42,000 per acre for residential land (in his new Report). In making its determination of the compensation to Finaldi for the 7.5 m (24.6 ft) working corridor, the Tribunal will discount the residential land value ($42,000 per acre) by the agricultural value ($7,636 per acre) to arrive at a net value of $34,364, recognizing the continued use of the land for agriculture while imposing limitations on future development. Using the discounted rate, the Tribunal will order Section 29 allowances to Finaldi in the amount of $22,500 for the working corridor. In view of the compensation provided to Finaldi for the working corridor, the Municipality may charge Finaldi for any increased maintenance costs that arise if the land use restrictions (no trees, fences, etc.) imposed by the Engineer are not followed by the owners of the Finaldi lands.

The Tribunal will not order any changes to the compensation to Finaldi under Section 30 of the Act for potential loss of crops and compaction of soil that may occur during the construction of the new drain.

The Tribunal will not order any changes to the Report under Section 54 since there were no substantive arguments presented by the Appellant. However, the Tribunal is troubled by the refusal by the Court of Revision to hear an appeal by Finaldi. According to Mr. Oliver, the Court of Revision did not hear the Finaldi appeal because there were no costs assessed to the Finaldi property. However, the Tribunal notes the Finaldi property is indeed assessed for future maintenance of the drain and as such, the Tribunal finds that the Court of Revision should have heard the Finaldi appeal pursuant to Section 46(1) of the Act.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The Report shall be amended as follows:

a. the allowances for land under Section 29 of the Act in Schedule B for Property Roll No. 350-00300 (Hubert Finaldi) shall be changed from $22,000 to $44,500.00;

b. the total allowances under Schedule B shall be changed from $25,000 to $47,500;

c. The total project estimate shall be amended from $93,000 to $115,500.

d. All assessments in Schedule C (under Special Benefit, Benefit and Outlet) shall be adjusted pro rata.

2. The appeal under Section 54(1) of the Act is denied.

3. 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 Maidstone, Ontario this 15^th^ day of July, 2013.