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:
Jacques Drain 2012 Township of East Zorra-Tavistock
Jacques Drain 2012 (RE) 2013 ONAFRAAT 5
STATUTE:
Drainage Act
HEARING:
April 9, 2013
May 8, 2013
2013-05
NEUTRAL CITATION:
2013 ONAFRAAT 5
Jacques Drain 2012 Township of East Zorra-Tavistock
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 Gerald Kennedy, Woodstock, Ontario; and Lois Snider, Hickson, Ontario under Section 48(1) of the Drainage Act from the Engineer’s Report on the Jacques Drain 2012 in the Township of East Zorra-Tavistock.
Before: Paula Lombardi, Chair; Enio Sullo, Vice-Chair; Tim Mousseau, member
Appearances:
Gerald Kennedy - Appellant
Robert Carnegie, on behalf of Lois Snider - Appellant
Ken Smart, K. Smart Associates Ltd. - Engineer who prepared the Report
Dennis O’Neil – Director of Public Works, East Zorra Township
Robert Walton – Director of Public Works, County of Oxford
DECISION OF THE TRIBUNAL
This hearing was held in the Township of East Zorra-Tavistock, (the “Municipality”) in Hickson, Ontario on April 9, 2013. Gerald Kennedy and Lois Snider appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) under Section 48(1) of the Drainage Act (the “Act”) from the Engineer’s Section 4 Report on the “Jacques Drain 2012” (the “Engineer’s Report”).
Jeff Carswell, CAO for the Municipality, performed the duties of the Clerk of the Tribunal.
PRELIMINARY MATTERS
Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Engineer’s Report parties to the hearing.
The CAO for the Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with the notice of hearing.
BACKGROUND
The Engineer’s Report was prepared by K. Smart Associates Ltd. dated July 13, 2012. Mr. Ken Smart (the “Engineer”), a professional engineer with that firm, was designated under section 8(2) of the Act for overall responsibility for the Engineer’s Report.
The Jacques Drain was originally constructed as an Award Drain pursuant to a report dated May 30, 1906, and was incorporated as a Municipal Drain in 1928. A further report on the Jacques Drain was prepared in 1968, and several improvements have occurred since that time. Many of the improvements took place in conjunction with construction projects undertaken on County Road 8, (formerly Highway 59).
The Engineer’s Report for this project was prepared pursuant to sections 4 and 8 of the Act. The Report was prepared for two purposes: (1) to provide improved drainage for the existing Jacques Drain watershed, located in Part of Lots 20 & 21 Concession 11; and, (2) to provide improved drainage to a portion of the adjacent westerly watershed in Lots 20 & 21, Concessions 10 & 11. Currently, there are no municipal drains in the westerly area with the exception of the Veale Drain that was extended in 1969.
Under the Engineer’s Report, the existing open channel for the Veale Drain will serve as an outlet for a portion of the work being proposed on the Jacques Drain. Also, the areas currently being drained in the adjacent westerly watershed will be added to the Jacques Drain watershed under the Engineer’s Report.
A petition for the drainage work was submitted to the Municipality on October 19, 2011 by the County of Oxford (the “County”). The Municipality appointed the Engineer, and an on-site meeting with owners was held on January 24, 2012. At the on-site meeting, the petition of the County was deemed sufficient for works across and downstream of the County Road. A second petition was submitted by the Municipality on February 16, 2012 for the area upstream of the County Road up to and across 11th Line. An additional meeting was held on April 24, 2012, after which final design and costing was completed.
The Jacques Drain 2012 project is to be completed in two contracts at an estimated cost of $400,500 (the “Project”). Contract 1 consists of: 400m of open ditch work and incorporates 350m of open ditch on Branch B; and, 1,879m of closed drain work (consisting of 1,058m Main Drain, 181m on Branch A, 540m on Branch B and 100m on Branch C), at an estimated cost of $349,950. Contract 2 includes 742m of closed drain work on Branch C at an estimated cost of $50,550. The watershed area being served by the Project is approximately 140.5 hectares (347.05 acres) in size.
The easterly component of the drainage works consists of improvements to the existing Jacques Drain. In conjunction with these improvements, road upgrades by the County on Oxford Road also necessitated modifications to the drainage in the area. At the top end of the easterly component of the drain, drainage is through an existing wooded area. The drainage through the wooded area is in a state of disrepair and will be replaced as part of the Project.
The westerly component of the Project is in the watershed of the Veale Drain. While there have been some drainage improvements in this area since 1968, there is limited information available on the nature and extent of these improvements. The proposed drainage works in this area include a new road crossing, larger tile drains and the construction of a new drain parallel to the existing private drain originally installed by Mr. Kennedy. As part of the Report, all existing private drains are to be incorporated into the Jacques Drain Project, since none of the drainage in this westerly component currently has legal status.
ISSUES
i) Are the benefits derived from the drainage works commensurate with the estimated cost?
ii) Should the Jacques Drain 2012 Project be abandoned, modified or altered based on information set out in the Engineer’s Report?
iii) Should the amounts for compensation and allowances in the Engineer’s Report be deemed either inadequate or excessive and altered?
EVIDENCE
Evidence of Gerald Kennedy - Appellant
Mr. Kennedy testified on behalf of himself and Mrs. Lois Snider, the other appellant in this matter.
Mr. Kennedy took the position that the County and the Municipality should be required to pay 80% of the cost of the Project as they require the work, as opposed to the 50% that they have been assessed in the Report, and relied upon the Tribunal’s decision relating to the Glencairn Drainage works to support the argument that the assessment to the Municipality and County should be increased.
Mr. Kennedy testified that since the landowners had not requested improved drainage and were not receiving any increased benefit to their lands, the Municipality and County should pay 100% of the cost of the Project. Mr. Kennedy indicated that he would be willing to accept a 20% assessment to the landowners despite being unclear as to what benefits are being derived by the landowners.
Mr. Kennedy felt that the Engineer failed to quantify any benefits to the landowners in the form of an increase in land values and/or an increase in crop yields. As the benefits derived by the landowners are not commensurate with the costs they are being assessed, Mr. Kennedy indicated that this should support a reduction of the landowners’ assessment to 20% of the total cost of the drainage works.
The road improvements associated with the Project have not yet received approval for the Class Environmental Assessment (“Class EA”) submitted to the Province and, in Mr. Kennedy’s opinion, absent the Class EA approval, it is premature to proceed with the drainage works. Mr. Kennedy was concerned that the Engineer had incorrectly identified the area requiring drainage and, as a result, the costs associated with the increased drainage area should not be assessed to the landowners.
Mr. Kennedy questioned the construction proposed by the Engineer and felt that the compensation set out in the Report for loss of crops was too low. He indicated that he is not proposing any amounts for allowances or compensation, only that the amounts be revisited. Mr. Kennedy felt that the allowances provided for the existing drains are also too low and that the existing drains are inappropriately depreciated.
Relying on a series of hand drawn maps that were marked as exhibits, Mr. Kennedy proposed several alternatives to the construction of the Project and questioned the methods and standards used by the Engineer in designing the drainage works. Unfortunately, the maps and information relied upon by Mr. Kennedy were not provided to either the Tribunal or the Engineer prior to the hearing.
The use of alternate routes and differing pipe sizes were suggested by Mr. Kennedy, and the estimated costs for these alternatives were calculated by relying on the unit costs set out in the Report. Mr. Kennedy indicated that since the proposed alternatives resulted in cost savings to the Project, they should be considered as viable alternatives. One of the alternatives proposed by Mr. Kennedy was to reroute the outlet for the westerly watershed north to the Greyson Drain which he said would cost much less. Another alternative was to clear cut a 30m swath through the wooded area to allow for the use of cheaper concrete tile drain as opposed to the plastic tile proposed by the Engineer.
Mr. Kennedy stated that some of the increased costs for the Project were due to the lack of maintenance of the existing drain by the Municipality. Mr. Kennedy also suggested that a substantial portion of the engineering costs for the Project were unfairly divided between the two contracts.
Mr. Kennedy relied on Section 77(2) of the Act to support his position that the Municipality should be assessed for the total cost of the work involved in moving the drainage works out of the road allowance.
Section 77(2) of the Act states:
Where any road authority desires to relocate a drainage works or part thereof that is on or adjacent to a road under its jurisdiction, upon the report of an engineer appointed by the municipality whose duty it is to maintain and repair the drainage works that the drainage works or part thereof can be moved to a specified new location without impairing the capacity or efficiency of such drainage works or adversely affecting any person or property, the council of a local municipality may authorize such relocation within the boundaries of the municipality at the expense of the road authority. R.S.O. 1990, c. D.17, s. 77 (2).
During cross-examination, Mr. Kennedy admitted that he had no official background in drainage engineering. Mr. Kennedy acknowledged that he had not read the 1906 and 1928 reports on the Jacques Drain and was not aware whether any specifications for future maintenance had been prepared or outlined in these reports. Mr. Kennedy submitted that the Engineer should be able to guarantee an increase in land values as part of the Project.
Mr. Kennedy agreed that the Engineer had the ability to increase the size of a proposed drain rather than incorporating an existing drain into the Project and that, at times, the cost for a new drain may be cheaper than using the existing drain. Mr. Kennedy admitted on cross-examination that he had not obtained any estimates from contractors when calculating the costs of the proposed alternatives. He also admitted that he was not aware that his proposed alternative for the 11th Line would require that a new engineering report be prepared for the Greyson Drain. Mr. Kennedy confirmed that there are existing drainage problems along County Road 8.
Robert Carnegie
While acknowledging that Mr. Kennedy was representing the Appellant Ms. Lois Snider, Mr. Carnegie advised the Tribunal that his mother (Lois Snider) would not be in favour of a 30m clear cut through her wooded area as proposed by Mr. Kennedy, and said that some improvements to surface drainage through the wooded would be acceptable.
Evidence of Ken Smart - Engineer who Prepared the Report
Mr. Smart testified that he was not in a position to comment on the information presented by Mr. Kennedy at the hearing as he had not been provided with an opportunity to review the information prior to the hearing.
Mr. Smart stated that, in his professional opinion, the existing Jacques Drain no longer has adequate capacity, having been originally constructed in 1906 to a 0.25” drainage coefficient. The existing drain is in a general state of disrepair with clay tiles being obstructed with tree roots and debris in several areas. Mr. Smart indicated that in these circumstances, a typical split in the assessment is 50% to landowners and 50% to the road authority but pointed out that, for this Project, the assessment to the landowners is closer to 33%.
Mr. Smart stated that he had conducted a cost benefit analysis on the whole watershed by analysing the Project in relation to the cost of landowners installing their own systematic tile drainage scheme, and testified that he relied upon traditional accepted engineering methods to calculate the benefit to the lands located in the watershed. Mr. Smart took the position that current standards were met and that the data used for estimating increased crop yields that would result from the drainage improvements was approximately 20 years old; had he used data based on today’s crop yields, his estimate of the increased yields resulting from the drainage improvements would be even higher. Mr. Smart indicated that he had satisfied himself that there were benefits to the road for the drainage based on costs to repair the deficiencies.
Mr. Smart testified that the section 29 allowances are based on current assessment roll data provided by the Municipality, and using averages of non-residential assessment values. This method is consistent with the method used in other areas of the Municipality. The section 30 amounts are based on a review of the Ontario Ministry of Agriculture, Food and Rural Affairs average crop prices.
In response to Mr. Kennedy’s allegations of improper maintenance of the existing drain by the Municipality, the Engineer confirmed that Mr. Kennedy had no evidence that either the current or previous Drainage Superintendents had not been performing their duties as required under the Act. Mr. Smart confirmed that some improvements to the drain have occurred over the years but there were no specifications in the 1906 and 1928 Jacques Drain reports setting out the appropriate maintenance.
Mr. Smart stated that, in his opinion, section 77(2) of the Act only applies to works constructed pursuant to the Act, and does not apply in the circumstances.
Mr. Smart acknowledged that while there may be negligible savings to creating a wider right-of-way through the wooded area, it was his recollection that the owners of the wooded area were not in favour of clearing a large area through the woodlot
To address Mr. Kennedy’s concern that the engineering costs were inappropriately allocated between the two separate contracts for the Project, Mr. Smart confirmed that the work on the second contract may not be proceeding immediately, but the engineering costs have been incurred up front.
Mr. Smart testified that he used accepted best engineering practices in preparing the Report and designing the proposed drainage works. In response to Mr Kennedy’s statement that the drain on the 11th Line should be re-routed to the north into the Greyson Drain, Mr. Smart referred to a drawing illustrating the elevation information obtained by his surveyor and the Ontario Base Mapping for the area. Based on this information, the estimated cost for constructing the drain to the north would be approximately $113,000, not including the costs associated with revising the Report. The estimated cost for the route proposed in the Report is $79,000 and, therefore, Mr. Kennedy’s suggestion results in much higher costs.
On further questioning about potential surface water problems in the drainage area, particularly through the wooded area, Mr. Smart indicated that if there are concerns with surface water drainage in this area, modifications can be made to the drain to accommodate additional surface water in the drain. However, any modifications would increase the costs of the project.
Evidence of Robert Walton – Director of Public Works for the County of Oxford
Mr. Walton stated that the County reviewed the Report and supports the proposed design. The Report addresses the need for legal outlets and repairs to the existing drains. Mr. Walton suggested that the design of Branch B and Branch C is acceptable engineering and that no evidence was presented to the contrary by the Appellants.
With respect to the suggestion by Mr. Kennedy that the drain through the wooded area should be redesigned, Mr. Walton testified that this matter was discussed with the landowners during the design stage of the drain, and efforts were undertaken to preserve the woodlot area as much as possible. Mr. Walton concurred with Mr. Smart’s recommendation to improve the drainage in the wooded area through the use of additional surface drainage in the proposed 5m corridor, rather than the 30m right of way proposed by Mr. Kennedy. Robert Carnegie confirmed that his mother, Lois Snider, would not be in favour of an increased clear cut through the wooded area.
Mr. Walton advised the Tribunal that multiple approvals are required for the proposed road improvements, including a Class EA. The Class EA has been submitted for approval but was not approved at the time of this hearing. Mr. Walton reiterated that the County is aware of the drainage issues in this area and supports the Project particularly due to the fact that legal outlets will be established for the area.
Evidence of Dennis O’Neil – Director of Public Works for East Zorra Township
Mr. O’Neil testified that there are existing drainage issues at the County Road 8 road crossing due to water pooling over the road and inadequate drainage upstream from the County Road 8 along the 11th Line, and that the second petition for drainage improvements to the area was initiated because of these drainage problems and the Municipality’s goal to establish legal outlets.
FINDINGS
In reviewing the evidence presented by the Appellant, the Tribunal is unable to find any evidence to support modifications to the Report or changes to the compensation and allowances under section 48 of the Act.
While Mr. Kennedy presented several recommendations for alternative designs and modifications to the proposed drainage works, he failed to provide an expert or any engineering information in support of these alternatives. Rather, Mr. Kennedy’s suggestions, all of which purported to reduce the overall cost of the drainage works, appear to have been presented for the sole purpose of reducing the amounts assessed to the landowners only.
On several occasions during his testimony, Mr. Kennedy mentioned that an 80/20 split in the cost of the Project was warranted. Mr. Kennedy referred to the Glencairn decision (“Glencairn”), where the assessment of 80/20 for the Municipality was upheld, and stated that this decision should be considered as a fair split for the Project. On cross examination, Mr. Kennedy admitted that he was not aware of all of the details of the Glencairn project, and did not provide any evidence to support his suggestion as to how the costs of the Project should be allocated. In the Glencairn decision, the Tribunal upheld the engineer’s report and denied the appeals. However, it is important to note that the Tribunal is not bound by precedent.
In this case, there was no appeal before the Tribunal under section 54 of the Act and, as a result, the Tribunal lacks any jurisdiction to hear appeals dealing with the assessments set out in the Report.
The Tribunal accepts the evidence of the Engineer that a cost benefit analysis was undertaken prior to designing the work described in the Engineer’s Report, and this analysis concluded that there was a benefit for the proposed drainage work to both the roads and the landowners.
The Tribunal finds that the Report was prepared in accordance with accepted engineering practices and to proper engineering standards. No modifications to the Report with respect to design will be ordered by the Tribunal.
Further, with respect to compensation and allowances under sections 29 and 30 of the Act, the Tribunal finds that the Engineer applied accepted engineering practices in calculating the compensation and allowances and no changes will be ordered.
With respect to Mr. Kennedy’s suggestion that the drainage works proposed on Branch C should be at the total expense of the Municipality as per section 77(2) of the Act, Mr. Kennedy failed to provide any evidence indicating that a contravention of section 77(2) of the Act had occurred. Mr. Kennedy admitted on cross examination that he was unaware of the specific locations of the original drainage works and catchbasins and, in any event, none of these original works were being moved off the road allowance as part of the Project. The original works are simply being incorporated into the new Jacques Drain watershed to become legal outlets.
Mr. Kennedy also alleged in his presentation that the Municipality was negligent under section 93 of the Act in not maintaining the existing Jacques Drain and, therefore, should be paying a greater share of the improvement costs. Again, no evidence was presented in support of this allegation.
The Tribunal finds that based on the evidence presented, no contravention of either sections 77(2) or 93 of the Act have occurred.
ORDER OF THE TRIBUNAL
The Tribunal Orders that:
The appeals by Gerald Kennedy and Lois Snider under Section 48(1) of the Drainage Act are denied.
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 8th day of May, 2013.