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, Stone Road West
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: Haws Drain 2012 Township of West Lincoln
Haws Drain 2012 (RE) 2013 ONAFRAAT 9
STATUTE: Drainage Act
HEARING: June 19, 2013
DATE OF DECISION: July 3, 2013
2013-09
NEUTRAL CITATION: 2013 ONAFRAAT 9
HAWS DRAIN 2012 Township of West Lincoln
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 Trifu and Fatima Margan, Grimsby, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Haws Drain 2012 in the Township of West Lincoln.
Before: Paula Lombardi, Vice-Chair; Jack Young, Vice-Chair; Tim Mousseau, Member
Appearances: Trifu and Fatima Margan, Appellants Harold Kelly, Drainage Superintendent, Township of West Lincoln John R. Spriet, P.Eng., Spriet Associates London Limited, Engineer who prepared the report John Kuiper, Assessed Landowner John Kuiper Jr., Assessed Landowner
DECISION OF THE TRIBUNAL
This hearing was held in the Township of West Lincoln (the “Municipality”) in Smithville, Ontario on June 19, 2013. Ms. Fatima and Mr. Trifu Margan appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) under section 54(1) of the Drainage Act (the “Act”) from the decision of the Court of Revision on the Haws Drain 2012. The engineer’s report dated October 31, 2012 (the “Report”), was prepared by Spriet Associates London Limited and signed by John R. Spriet, P. Eng., (the “Engineer”).
Carolyn Langley, Clerk of the Township of West Lincoln, performed the duties of the Clerk of the Tribunal.
Preliminary Matters
Prior to the start of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Engineer’s Report parties to this hearing.
The Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with the notice of hearing dated May 30, 2013.
Mr. John Kuiper and Mr. John Kuiper Jr., both landowners in the watershed of the Haws Drain 2012 requested to be parties to the hearing.
Background
The Report dated October 31, 2012 was prepared by Spriet Associates London Limited. Mr. John Spriet, a professional engineer with that firm was designated under section 8(2) of the Act for overall responsibility for the Report. The Haws Drain 2012 involves two municipalities; the Town of Grimsby and the Township of West Lincoln. The Haws Drain 2012 proposes the reconstruction and extension of the original Haws Drain serving parts of Lots 9 to 13, Concessions 5 and 6 in the Town of Grimsby and parts of lots 10 to 13, Concession 7 in the Township of West Lincoln. The total watershed area contains approximately 105 hectares in the Township of West Lincoln and 154 hectares in the Town of Grimsby.
The Haws Branch of the Johnson Municipal Drain was constructed in accordance with a report prepared by J. Bryon Wiebe, dated August 27, 1993. It consisted of 2,400 metres of open drain starting at the Johnson Drain in Lot 9, Concession 5 (Grimsby) and continues upstream to the south side of Regional Road 73 (Mud Street) in the Township of West Lincoln. When the Johnson Drain and Haws Branch were constructed in 1993, the report and by-law indicated that any future maintenance costs would be charged to all lands and roads listed in the schedule set out in the 1993 report. When the Haws branch was constructed, the Margan property was assessed for 10.7 hectares as part of the Johnson Drain and almost 6 hectares as part of the Haws Branch. A large portion of the proposed drainage work for the Haws Drain 2012 focuses on approximately 2,100 metres of the existing drain.
The Engineer’s Report for the Haws Drain 2012 was prepared pursuant to sections 4 and 78 of the Act.
Branch ‘C’ of the Haws Drain 2012 was initiated by a petition signed by the Regional Municipality of Niagara in 2009 for improved drainage along Regional Road 73 (Mud Street). The south side of Mud Street (West Lincoln) experienced serious flooding problems because the road surface culverts under Mud Street do not have sufficient capacity to move the water flow across the roadway and east along the north ditch of Mud Street to an outlet at the head of the 1993 Haws Drain. At a later date, Mr. J. Kuiper signed a petition because of the severe flooding of his property that is situated on the south side of Mud Street.
There was concern that the solution to the Mud Street flooding problem would result in additional flooding downstream in the farmland area located along the Haws open ditch. Because of this concern, D & S Haws requested that the drain on their property be deepened and relocated to follow the property lines.
Branch ‘A’ of the Haws Drain 2012 was initiated by a petition signed by V. Shearing and C. Southward to provide a solution to the flooding of the woods and farmland along the rear of their properties due to a lack of depth and flow capacity in the existing private drainage swale.
The Haws Drain 2012 project consists of the Main Drain, and Branches ‘A’, ‘B’, and ‘C’. In total there is 2,708 metres of open ditch clean out, construction and/or reconstruction including quarry stone rip-rap bank protection, bank seeding and sediment basins; approximately 290 metres of 450 mm ( 18”) to 525 mm (21”) H.D.P.E. sewer pipe including all related appurtenances.
Branch ‘A’, the main reason for this appeal, is an open channel, constructed along the unopened Concession 5 - 6 road allowance. The open channel commences at the northwest corner of the Margan property and runs for 400 metres along the road allowance to outlet into the Main Drain. The drain provides an outlet for the Margan property (2.8 ha.) as well as the Shearing property (3.1 ha.) and Southward property (16.1 ha.).
The costs of the Haws Drain 2012 are set out separately for each of Branches ‘A’, ‘B’ and ‘C’. The assessments for each branch of the drain are separated into benefit and outlet costs. The benefit costs are distributed to those properties located along or close to the route of the drain. The outlet costs are distributed to all the properties located within the watershed area of the particular section of the drain on an adjusted basis. The Region of Niagara is responsible for a substantial portion of the cost of the drainage works, being approximately $154,850 (along Mud Street on Branch ‘C’).
The Margan lands are assessed $58 for the Main Drain. The total assessment on Branch ‘A’ is $17,300 and the Margan land is assessed at $911 ($600 Benefit, $311 Outlet) representing 5.3% of the total Branch ‘A’ assessment.
Issue
(i) Should the assessment as set out in the Engineer’s Report dated October 31, 2012 be amended?
Evidence
John R. Spriet, P. Eng., Spriet Associates London Limited
Mr. Spriet testified that the Haws Drain 2012 involves two municipalities – the Town of Grimsby and the Township of West Lincoln. The majority of the costs associated with the project are associated with the construction of Branch ‘C’. Branch ‘A’ was initiated by a petition signed by the landowners in the area to have a drain constructed on the road allowance creating an improved channel that will connect to the Main Drain. The total cost associated with Branch ‘A’ is $17,300.
Mr. Spriet indicated that several public meetings were held to discuss options and solutions to the flooding issues and it was concluded that the Haws drain that was constructed in 1993, no longer provides adequate drainage for the area. In 1993, the Margan property was assessed for 10.7 hectares as part of the Johnson Drain and almost 6 hectares as part of the Haws branch. During a site investigation, Mr. Spriet concluded that he did not agree with the size of the area of the Margan property that was originally assessed as part of the Haws drain in 1993 and as a result reduced the area to 2.8 hectares as the area to be assessed as part of the Haws Drain 2012.
The Margan property was assessed a total of $911 for Branch ‘A’; $600 as a benefit and $311 for an outlet. The portion of the Margan property where the drain is being located at the northwest corner of their property is forested bush lands that drain towards Branch ‘A’ of the Haws Drain 2012 while the remainder of the Margan property drains to the Johnson Drain. Mr. Spriet advised that the Margan property received a reduction of approximately fifty percent (50%) in the assessment because the lands being drained are forested and are assessed for an outlet at lower rates than cleared lands. The Margans, as the current owners of the property, can decide whether or not they will take advantage of the direct benefit of the outlet into Drain ‘C’. The Margan property was also assessed $58 for an outlet assessment on the Main Drain as they are situated within the watershed area. The outlet costs are distributed to all properties within the watershed area of the particular section of the drain on an adjusted basis.
Mr. Spriet noted that the Margan property is not entitled to a one-third grant since the property is not used for agricultural purposes and as a result not eligible for the Farm Property Class Rate. The benefit assessment is for the drainage outlet that is situated at the Margan property line that can be used at some time in the future. Mr. Spriet confirmed that he walked the Margan property, although he admitted he did not contact the Margans to advise that he was on their property. During this site visit the Engineer observed the north west corner covered with bush which is the area that is situated within Branch ‘A’ of the Haws Drain 2012.
In response to a question from the Tribunal, Mr. Spriet confirmed that the end of Branch ‘A’ is at the northwest corner the Margan’s property line. Mr. Spriet testified that the $600 benefit assessment is reasonable in the circumstances and that the Margan property will have an improved surface outlet that is considered a benefit.
Mr. and Ms. Margan, Appellants (“Margans”)
Ms. Margan testified that they do not agree with the Engineer’s assessment as they do not believe there is any benefit or improved drainage to their property. The Margans confirmed that the northwest corner of their property is seven (7) acres of bush which is never used. Ms. Margan indicated that the petition for the drainage works was from a neighbour who owns and farms 100 acres of land in the area and felt that this was unfair.
The Margans testified that they should not be assessed the $911 since they have no benefit from the bush area of the property and they have never observed any surface water in the area draining into the drain. Also, when it rains the Margans stated that they do not observe any water in the bush area. The Margans requested that the $911 assessment be dismissed on the basis that they do not receive a benefit.
Harold Kelly, Drainage Superintendent
Mr. Kelly testified that the Municipality has been dealing with these drainage issues for more than six (6) years. Mr. Kelly indicated that the Engineer’s Report will resolve the draining issues between both municipalities and in his opinion, the Engineer has done a fair and reasonable job in allocating the assessments amongst the property owners in the watershed area.
Findings
The Tribunal finds the Engineer’s methods of calculating the assessments in the Report, including those to the appellants’ lands, to be technically sound, compliant with the Act and in keeping with accepted engineering practices.
The Engineer assured the Tribunal that the upper end of Branch ‘A’ would extend along the unopened portion of the road allowance to the Margan property line. There was some concern expressed by the Tribunal about the Engineer’s drawings showing Branch ‘A’ as the drawings provided did not show Branch ‘A’ extending to the corner of the Margan property. The Tribunal concludes that the drawings need to be revised prior to issuing any construction contracts to ensure that Branch ‘A’ extends to the Margan property line.
There was no evidence presented at the hearing to rationalize or justify a reduction of the benefit assessment to the Margan property. The Tribunal, although sympathetic to the concerns expressed by the Margans, was not persuaded that the benefit was incorrectly calculated or did not reflect the provisions of the Act.
The Engineer confirmed that the distribution of benefit assessment for Branch ‘A’ was on a discretionary basis based on the fact that the Margan property will have access to an outlet for the water draining off of their property. There was no municipal drain previously situated on the Margan property and the Haws Drain 2012 will result in a new outlet being constructed. The Margans may want to take advantage of the new outlet for the future improvement of the property, or the benefit may be realized by future owners.
The benefit assessment provided by the Engineer for the Margan property under section 22 was calculated on a fair basis and the Margan property will receive a benefit from access to a legal drain which creates an enhancement to the value of the Margan property.
The Engineer’s field assessment resulted in a fifty percent (50%) reduction of the amount of the Margan property situated in the Haws Drain 2012 from the original Haws drainage area.
It is the duty of the Engineer to determine whether or not a parcel of land will benefit from the drainage works being proposed. When appealing a benefit assessment, the landowner must provide evidence that the land does not benefit from the drain. It should be noted that the Assessment Schedules set out in the Engineer’s Report are only estimates, based on the costs shown in the Report, and the final value will not be known until the construction work is finished. Upon completion of the construction work the assessment will be prorated according to the Schedules set out in the Engineer’s Report to recover the actual cost of the drainage works.
The Tribunal notes for the benefit of Mr. and Ms. Margan that in accordance with the provisions of the Act any maintenance of the drainage works will occur at the expense of all upstream lands and roads assessed in Schedule ‘D’ – Assessment for Maintenance.
Also, despite both Mr. John Kuiper and Mr. John Kuiper Jr., requesting party status to the hearing they did not participate in the hearing nor did they ask any questions of the witnesses.
ORDER OF THE TRIBUNAL
The Tribunal orders as follows:
That the assessments as set out in the Engineer’s Report dated October 31, 2012 be confirmed;
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 3rd day of July, 2013.