Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1, chemin Stone Ouest 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: Luckins Drain West and Luckins Drain East City of Sarnia

Luckins Drain (RE) 2013 ONAFRAAT 16

STATUTE: Drainage Act

HEARING: October 4 and October 21, 2013

DATE OF DECISION: November 29, 2013

2013-16

NEUTRAL CITATION: 2013 ONAFRAAT 16

LUCKINS DRAIN WEST AND LUCKINS DRAIN EAST

City of Sarnia

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 Mr. and Ms. Norm Walker, Brights Grove, Ontario; under Section 54(1) of the Drainage Act from the decision of the Court of Revision and by Mr. and Ms. Herbert Gallaway, Brights Grove, Ontario; under section 48(1) from the Engineer’s Report on the Luckins Drain West and Luckins Drain East in the City of Sarnia.

Before: Paula Lombardi, Vice-Chair; Jack Young, Vice-Chair; Sharon Weitzel, Member

Appearances: Mr. Herbert Gallaway - Appellant Mr. Norm Walker - Appellant Mr. Scott McEachran, Assistant Solicitor - Counsel for the Municipality Mr. Ray Dobbin, P. Eng., R. Dobbin Engineers Inc. - Engineer who prepared the report

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) held this hearing in the Council Chambers of The Corporation of the City of Sarnia (the “Municipality” or “City”) in Sarnia, Ontario on October 4 and October 21, 2013. The Engineer’s Report dated August 31, 2012 for Luckins Drain West and Luckins Drain East (the “Report”), was prepared by R. Dobbin Engineering Inc., and signed by Ray Dobbin, P. Eng., (the “Engineer”). The appeal to the Tribunal was filed by Mr. and Ms. Norm Walker (the “Walkers”) and Mr. and Ms. Herbert Gallaway (the “Gallaways”).

Brad Loosley, Acting Deputy City Clerk of the Corporation of the City of Sarnia 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 the hearing. The Municipality filed an Affidavit of Service, dated August 21, 2013, as proof that all parties had been served with the notice of hearing.

At the start of the hearing on October 4, 2013, the Tribunal was advised that the Ontario Ministry of Transportation (“MTO”) was assessed for a portion of the work being completed but had not received notification of the assessment from the Municipality. The Drainage Act (“Act”) requires that a notice be provided to all owners of lands assessed for the drainage works. The Tribunal adjourned the hearing to allow the Municipality to provide notice to the MTO. Prior to the hearing date rescheduled for October 21, 2013 the MTO confirmed that it received the notification of the assessment from the Municipality and would not be appearing at the continuation of the hearing.

The Municipality filed a second Affidavit of Service dated October 7, 2013, as proof that all parties had been served with the notice of adjournment and rescheduling of the hearing to October 21, 2013.

Background

The project is located on Lots, 7, 8 and 9, Concession 8 in the City of Sarnia. The land use in the area is a mix of agricultural and residential.

The Engineer’s Report for the Luckins Drain West and Luckins Drain East was prepared pursuant to a request under section 78 of the Act from Bruce Benny, Janice Wilkinson, Robert Jackson and Herb Gallaway. The proposed work divides the Luckins Drain into two separate and distinct projects: Luckins Drain West and Luckins Drain East.

The existing drainage works consists of two open channels. The west portion extends westerly from Telfer Diversion Channel on the south side of Michigan Line to an outlet to the Hind Drain on the west side of Telfer Road. The Hind drain continues northwards as an open channel to an outlet to Perch Creek. Perch Creek extends to the Telfer Diversion Channel Drain. The east portion extends westerly from the west side of Brigden Road on the south side of Michigan Line to an outlet to the Telfer Diversion Channel Drain (between lots 8 and 9). The Telfer Diversion Channel Drain continues north as an open channel to Lake Huron.

The Report does not propose any work on the Luckins Drain West and the Schedule of Assessments for Luckins Drain West provides for future maintenance only.

The open channel was last improved pursuant to an engineer’s report dated March 11, 1968. At that time the open channel was reconstructed to the south of the road allowance on the abutting farmlands. A new access culvert to the west half of lot 9 was also installed. In 1968 the Luckins Drain continued upstream from its outlet to the Hind Drain on the west side of Telfer Road to the west side of Brigden Road. After the work was completed in 1968, sometime in the 1970s, the Telfer Diversion Channel Drain was constructed to provide a drainage outlet for the construction of Highway 402, bisecting the Luckins Drain at Lot 8/9 and the outlet to Hind Drain. Thereby creating a western portion of Luckins Drain while the eastern portion of Luckins Drain continued to outlet to the Telfer Diversion Channel. Subsequently, the Luckins Drain was dammed on the west side of the Telfer Diversion Channel Drain and the pump station referred to in the 1968 engineer’s report is no longer in existence.

The Report proposes to incorporate changes to the Luckins Drain East by replacing and lowering access culverts and improving the existing open channel. The Report also incorporates changes to the Luckins Drain West and develops a Schedule of Maintenance. However, no work is being proposed in the Report for Luckins Drain West.

Luckins Drain West includes the area downstream from the Telfer Diversion Channel Drain located at Lot 8/9 to the west of Telfer Road that outlets to the Hind Drain.

Luckins Drain East includes the area from the west side of Brigden Road to an outlet to the Telfer Diversion Channel Drain located at the Lot 8/9 Line.

The work set out in the Report for Luckins Drain East includes: the removal and replacement of access culverts numbers 4 (north part of the east half of lot 8) and 5 (east half and west half of lot 8) at a lower grade; and, replacing the outlet pipe from Luckins Drain East to the Telfer Diversion Channel at a lower grade.

The estimated cost of the work to improve the existing channel is $39,811 and the estimated cost of replacing the access culverts along Luckins Drain East and outlet works to the Telfer Diversion Channel is $29,255. The Report assesses the cost of the works to 16 privately owned land parcels and two public roads, one owned by the City and the other owned by the MTO.

The Report was considered and adopted by Council for the Municipality on October 1, 2012. The Court of Revision heard appeals from Mr. and Ms. Walker on November 29, 2012. The decision of the Court of Revision denied the appeal and accepted the Report as written. No written appeal was submitted to the Court of Revision by Mr. Gallaway although he was in attendance at the hearing on November 29, 2012.

Issues

1. Should the assessments and/or allowances to the Appellants be amended?

2. Are any proposed modifications to as requested by the Appellant, Mr. Galloway, appropriate in the circumstances?

Evidence

Mr. Ray Dobbin, P. Eng., the Engineer who prepared the Report

The Engineer described the process followed in preparing his Report and provided an overview of the project, including the information set out in the background section above. Mr. Dobbin explained that sometime in the 1970s the Telfer Diversion was constructed and resulted in Luckins Drain being split into two parts. The Engineer testified that the maintenance provisions have not been changed since the 1968 Report.

The Engineer clarified that all land owners in the area were invited to the initial on-site meeting and that an owner along the east branch of Luckins Drain expressed concern with the drainage in the area. Another request under section 78 of the Act was submitted after the initial meeting by four landowners including Mr. Gallaway.

The Engineer explained that the natural flow of surface waters in the area of the Luckins Drain is south to north which is confirmed by the subsurface drainage in the area. The existing open channel cuts off the natural flow of water in a northerly direction across Michigan Line. The Engineer stated that Michigan Line has been built up over time as a result of traffic and on-going maintenance to improve drainage of waters away from the road surface. Based on the Engineer’s investigations it was concluded that the existing access culverts are no longer at grade and undersized to accommodate a 1:5 year storm.

In accordance with the Act, the Engineer prepared a Schedule of Assessments for lands and roads affected by the work and responsible for the costs of the work under the Act. The Engineer assessed public utilities and road authorities as required by section 26 of the Act.

The Engineer explained that forty-five per cent (45%) of the costs associated with replacing the culverts were assessed as a benefit assessment to the benefitting properties. Of this forty-five per cent, twenty-two per cent (22%) was assessed to the road authority having jurisdiction over Michigan Line and remaining costs assessed to upstream properties as an outlet assessment based on the equivalent hectares.

Also, fifty per cent (50%) of the costs to replace the outlet pipe to the Telfer Diversion Channel are assessed to the Telfer Diversion Channel Drain and the other fifty per cent (50%) to all properties situated along Luckins Drain East as an outlet assessment (based on equivalent hectares).

The Engineer testified that two-thirds (67%) of the costs associated with the channel improvements are assessed as a benefit assessment to the owners on the south side of Michigan Line and the remaining one-third (33%) as an outlet assessment to upstream properties based on equivalent hectares. The two-thirds benefit assessment is further divided with 50% of the benefit assessed to the property owners situated along the length of the drain that have a direct benefit from the drainage works, 25% assessed to the Road Authority responsible for Michigan Line, and 25% as a benefit by cutoff to the property owners on the north side of Michigan Line

Allowances are included in the report pursuant to the provisions of section 30 of the Act for the culvert installation and for the disposal of excavated material. The allowances for the right-of-ways are based on a land value of $18,000 per hectare. Crop allowances are based on the value of one full crop for one year and fifty per cent (50%) of the crop in the following year. The Engineer used a rate of $1,200 per hectare for one year of crop loss.

In the case of Mr. Galloway’s land, the Engineer explained that the existing culvert is a private culvert and therefore it would not be maintained by the City. The Engineer testified that Mr. Galloway receives a benefit of forty-five per cent (45%) and is assessed in general accordance with how culverts are assessed. The Engineer clarified that an investigation of Mr. Galloway’s culvert with a probe confirmed that settling had occurred and the culvert was no longer functioning to its capacity.

In the case of Mr. Walker’s land, The Engineer explained that the 1968 Report included lands north of Michigan Line that were primarily farmland and were assessed both outlet and benefit.

The Engineer testified that comparison of the benefit by cutoff assessment in the present report to the benefit assessment the 1968 Report is difficult as the 1968 assessment also includes access culvert assessments among other items. In the Report subject to this appeal, the Engineer separated culverts from channels. The Engineer confirmed that the channel continues to perform the same purpose of cutting off water flow as it did in 1968.

The Engineer explained that the Telfer Diversion Channel was split into two drains and because of this a new schedule of maintenance, Schedule Assessment No. 3 for Luckins Drain West, was divided amongst the property owners. The Engineer clarified that the assessments for Luckins Drain East included the culverts and channels as set out in the Schedules of Assessment 1 and 2.

In response to questions, the Engineer clarified that there is no work proposed for Luckins Drain West in the Report and, because of this, only an updated Schedule of Maintenance was required for Luckins Drain West. However, the Engineer testified that Luckins Drain East required new culverts and an improved grade line along with improvements to the drain. In the Engineer’s opinion, the drainage problems associated with Luckins Drain East could not be resolved through drain maintenance due to the elevation and poor grade line.

Mr. Norm Walker, Appellant

Mr. Walker testified that his reasons for challenging the Report were due to his opinion that: the City does not assess its taxes properly; the City did not maintain the drain; and, the rural, farm, urban tax structure is ineffective. Mr. Walker expressed concern about how the Engineer came up with the assessments.

Mr. Walker expressed concern that the East Sproule Drain and the Lambert-Bulman Drain control and contains both the surface and subsurface water on his property. In his opinion, he does not rely on the Luckins Drain nor does he feel that any water is being diverted or contained by the Luckins Drain. As a result, in Mr. Walker’s opinion, he derives negligible benefit from the Luckins’ Drain and should not be assessed for the drainage works.

According to Mr. Walker the allocation of costs for the work associated with the Luckins Drain are unbalanced and that the cut-off costs are too high. Mr. Walker expressed concern that the costs set out in the Report are approximately 3 ½ times higher than the costs set out in the 1968 Report for the Luckins Drain. Mr. Walker also felt that he was paying two-thirds more than the two farms located on the west side of the Telfer Diversion drain and could not understand why he was assessed at a higher rate.

Upon questioning from the Tribunal, Mr. Walker admitted that he never spoke to the City about conducting maintenance on the Luckins Drain.

Mr. Herbert Gallaway, Appellant

Mr. Gallaway testified that he had the same concerns as Mr. Walker and that resolving the drainage issue should be paid for by the City. In 2000 Mr. Gallaway noticed a sinkhole on his property at the culvert. Mr. Gallaway contacted the City and they repaired the sinkhole at no cost to Mr. Gallaway.

Mr. Gallaway expressed concern about some landowners having written agreements that they will have their culverts replaced by the City at no cost to the landowner. However, upon questioning from the City’s legal counsel Mr. Gallaway admitted that he did not have a copy of any agreement.

In Mr. Gallaway’s opinion the residents in the area are being charged to increase the length in the culvert from six (6) metres to ten (10) metres and did not understand why a longer culvert was necessary. Mr. Gallaway indicated that he lived in the area for twenty-eight years and during that time no maintenance was conducted in the ditches. Mr. Gallaway advised the Tribunal that he complained to the City about garbage in the culverts and all the City did in response to the complaint was post a sign about illegal dumping.

Findings

The Tribunal did not hear any substantive evidence to support a reduction in the assessments of the Galloway or Walker properties nor was any information provided to support any changes or alterations to the Report. Accordingly, the Tribunal will uphold the decision of the Court of Revision and deny the appeals of Mr. Walker and Mr. Galloway.

The Tribunal does not accept the arguments made by Mr. Walker that the improvements to the Luckins Drain will be of no benefit to him and that his assessments are too high.

The Tribunal finds that the principles applied by the Engineer to determine the Schedule of Assessments are consistent with the requirements of the Act and generally accepted practice.

The Engineer’s assessments for benefit for the Luckins Drain East are separated into two categories: (1) benefit and, (2) benefit by cutoff. An assessment for a benefit relates to the construction of a channel and includes direct improvements to the adjacent land for the removal of water. The Engineer’s Assessment for benefit by cutoff applies when the water has been directed away from a property so that the water no longer flows through that property.

The Tribunal notes that the Engineer’s assessments for the Walker property is for a benefit by cutoff since the channel along the south side of Michigan Line cuts off the previous natural northward flow across their property.

The Tribunal notes that Mr. Walker relied on the assessments set out in the 1968 Report for the Luckins Drain as a comparison to determine whether or not he was appropriately assessed. However, the assessments in the 1968 Report include culvert and other works and therefore it is not an appropriate comparison to the assessments in the Report subject to this appeal which separate culverts from channels.

The Tribunal accepts the analysis presented by the Engineer that when the cost of the culverts and other work is removed from the 1968 assessment, the benefit by cutoff assessment in the two reports is comparable.

There is no work proposed in the Report for Luckins Drain West which is why the lands to the west of Mr. Walker are only being assessed as part of a Schedule of Maintenance and not assessed for any of the work being completed. The lands in Luckins Drain East, where the Walker property is located, are being assessed for new culverts, channel grading and maintenance.

The Tribunal agrees with the suggestion that in or around 1974 when the entrance culvert for Mr. Galloway’s house was constructed, it was not incorporated into this drainage project. Because of this, there is no provision or requirement for the City to maintain the existing culvert. The new culvert being proposed in the Report will become part of the municipal drain and maintained by the City in accordance with the maintenance schedule.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. That the assessments set out in the Engineer’s Report dated August 31, 2012 be confirmed;
2. That 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 the parties shall be responsible for their own costs.

Dated at London, Ontario this 29th day of November, 2013.