Ronald Pearson v. Municipality of Thames Centre, 2014 ONAFRAAT 10

Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Wakem-Weir Drain 2013

Municipality of Thames Centre

Wakem-Weir Drain 2014 ONAFRAAT 10

STATUTE:

Drainage Act

HEARING:

April 16, 2014

DATE OF DECISION:

May 13, 2014

2014-10

NEUTRAL CITATION:

2014 ONAFRAAT 10

WAKEM-WEIR DRAIN 2013

Municipality of Thames Centre

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Ronald Pearson, Thamesville, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Wakem-Weir Drain 2013 in the Municipality of Thames Centre.

Before:

Kirk Walstedt, Chair; Glenn Walker, Vice-Chair; Andrew McBride, Member

Appearances:

Ronald Pearson, Appellant

Kenneth Pearson, Appellant

Mike P. DeVos, P. Eng., Engineer who prepared the report

Karen and Ron Wakem, Assessed Landowners

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) held this hearing in the Municipality of Thames Centre (the “Municipality”) in Dorchester, Ontario on April 16, 2014. The Engineer’s Report, dated August 21, 2013 for Wakem-Weir Drain 2013 (the “Report”), was prepared by Spriet Associates and signed by M. P. DeVos, P. Eng., (the “Engineer”). The appeal to the Tribunal was filed by Mr. Ronald Pearson on behalf of himself, Marjorie Pearson, Kenneth Pearson and B. Pearson.

Margaret Lewis, Clerk of the Municipality of Thames Centre, 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 Township filed an Affidavit of Service, dated February 18, 2014, as proof that all parties had been served with the notice of hearing.

Karen and Ron Wakem, assessed landowners, requested, and were made a party to the hearing.

Background

This matter deals with the reconstruction of the closed portion of the Wakem-Weir Municipal Drain serving Parts of Lots 22 to 25, Concessions 6 and 7, in the geographic Township of West Nissouri, in the Municipality of Thames Centre and Part of Lot 24, Concession 8, in the geographic Township of East Nissouri, in the Township of Zorra. The total watershed area contains approximately 125 hectares. The Engineer’s Report sets out the history of the drain from 1961 until its most recent reconstruction in 2000. Although the Wakem-Weir Drain consists of a Main Drain and two branches, only the Main Drain and Branch ‘A’ are the subject of this report.

Three large high pressure Enbridge pipelines run across the south part of the northwest quarter of Lot 23 and both the Main Drain and Branch ‘A’ tiles cross the pipelines through manholes that function as siphons.

The appellants are the owners of approximately 50 acres located in the southwest quarter of Lot 23, Concession 7 (the “Pearson property”).

The Engineer’s Report was prepared pursuant to a petition under Section 4 of the Drainage Act (the “Act”) signed by Kelly John Pickel. The appellants submitted an appeal to the Court of Revision. The appellants’ appeal was dismissed on December 16, 2013. The appellants then appealed to this Tribunal pursuant to Subsection 54(1) of the Act. The grounds for the appeal as stated in the appellants’ statement are that the Pearson property is systematically drained and therefore they see no benefit from the new proposed drain. The Engineer’s estimated cost for the project is $181,900.00.

Issues

1. Are there benefits to be derived from the drainage works with respect to the Pearson property?

2. Should the assessment for the Pearson property be modified?

Evidence

Mr. Mike DeVos, P. Eng., the Engineer who prepared the Report

Mr. DeVos testified that the project was initiated by a petition dated April 18, 2011 under Section 4 of the Drainage Act submitted by Kelly John Pickel, the owner of Part Lots 23 and 24, Concession 7, in the geographic Township of West Nissouri, in the Municipality of Thames Centre.

Mr. DeVos reviewed the history of the Wakem-Weir Drain from its original construction in 1961 through its various reconstructions in 1977 and 2000. The total watershed area contains approximately 125 hectares. The area requiring drainage for the upstream extension of Branch ‘A’ consists of the northwest part of Lot 24 and the southwest part of Lot 25, Concession 7 (West Nissouri) in the Municipality of Thames Centre.

The open portion of the Wakem-Weir Drain was originally constructed as the open portion of the Wakem-Pearson Drain pursuant to a report prepared by H.M. Gibson, P. Eng. dated August 22, 1961.

The ditch was reconstructed as part of the Wakem-Weir Drain pursuant to a report prepared by J.P. McIntyre, P. Eng. dated July 6, 1977. The open ditch extended from a point in the northwest part of the east half of Lot 21, Concession 6, easterly across Cherry Hill Road, thence northerly in the west part of Lot 22, Concession 7, to its head at the line between Lots 22 and 23. This report also provided for the construction of three closed drains, Main Drain, Branches ‘A’ and ‘B’.

The Main Drain consists of 1,874 metres of 300 mm to 150 mm tile from the line between Lots 22 and 23, Concession 7, north-easterly across Lots 23 and 24 to the east side of Cobble Hills Road (Town line).

Branch ‘A’ consists of 1,066 metres of 300 mm to 200 mm tile from the Main Drain on the line between Lots 22 and 23, west to Cherry Hill Road, then northerly and parallel to the road to approximately the halfway point across Lot 24, then north-easterly into the lot for 250 metres.

The upper 300 metres of the open ditch was back filled, reconstructed into a surface waterway, and a 750 mm tile was installed along the east side pursuant to a report by Spriet Associates dated March 17, 2000. At that time, a 900 mm x 1200 mm ditch inlet catch basin junction box was installed to connect the existing Wakem-Weir Main Drain and Branch ‘A’ 300 mm tiles, along with the tributary Wakem-Pearson Drain 400 mm and 300 mm tiles, into the 750 mm tile.

A site meeting was held and a field investigation and survey were completed. During the site meeting and subsequent field investigation and survey, Mr. DeVos stated that the following were noted:

1. That three large high pressure Enbridge pipelines run across the south part of the northwest quarter of Lot 23 and that both the Main Drain and Branch ‘A’ tiles cross the pipelines through manholes that function as siphons;

2. That a siphon reduces capacity in the tiles across the pipelines;

3. The owner of the northwest quarter of Lot 23 and the west half of Lot 24, Concession 7 reported that the existing drains north of the Enbridge high pressure pipelines are not providing a satisfactory drainage outlet;

4. Depths and locations of the three pipelines were obtained from the Enbridge representative by probing and/or exposing them. The information was obtained at the existing Main Drain and Branch ‘A’ crossing locations and at a point approximately 260 metres east of Cherry Hill Road. It was found that crossing the new tiles at the existing locations would not be feasible without siphons, but that it would be possible to cross underneath the pipelines in higher ground at the centre location; and

5. That the existing 1977 portions of the Wakem-Weir Drain are undersized by today’s standards but in good working condition.

Mr. DeVos then testified that he prepared his report with the following recommendations:

1. That a new 600 mm to 450 mm Main Drain tile be constructed, from the present outlet at the head of the 750 mm tile, northerly to the north side of the Enbridge right of way (approximately 260 metres east of Cherry Hill Road) and then easterly to the existing main tile location.

2. That the existing ditch inlet catch basin junction box at the head of the 750 mm tile be replaced with a new 1200 mm x 1800 mm ditch inlet catch basin junction box.

3. That a new 350 mm to 200 mm tile be constructed adjacent to and to work in conjunction with the existing 1977 Main Drain tile from the new 450 mm tile to the Branch ‘B’ junction at the Pickel and Wakem property line.

4. That a new 450 mm to 400 mm Branch ‘A’ tile be constructed from the Main Drain on the north side of the Enbridge right of way, westerly to the existing Branch ‘A’ tile at Cherry Hill Road.

5. That a new 350 mm to 250 mm tile be constructed adjacent to and to work in conjunction with the existing 1977 Branch ‘A’ tile from the new 400 mm tile to its upper end and that it be extended upstream (northerly) 51 metres into the Weir property to provide a legal surface and subsurface drainage outlet.

6. That the proposed drain across the Enbridge right of way consist of a single 12 metre piece of 600 mm plastic sewer pipe centred under the pipelines.

7. That catch basins be installed at various locations on the proposed drains to allow direct surface water entry into the tiles and thereby reduce surface flow and erosion.

8. That portions of the 1977 Main Drain and Branch ‘A’ south of the north limits of the Enbridge right of way that will be cut off from the upstream portions be known as Branch ‘C’ and Branch ‘D’ respectively and are included as part of this report for future maintenance purposes.

9. That the existing 1977 Branch ‘A’ north of the pipelines and the tile portion of the 1977 Main Drain between the pipelines and Branch ‘B’ be included as part of this report for future maintenance purposes.

Mr. DeVos testified that he then applied a modified “Todgham Method” to calculate the assessments shown on Schedule “C” to the report. This entailed breaking down the cost of the drain into appropriate sections with Special Assessments and Special Benefits being extracted from each section. First of all, he calculated the assessments on the basis of what he called the “natural route” which would have been his assessment on a notional basis to each of the assessed land owners if the drains did not have to cross the Enbridge right of way. Mr. DeVos further testified that he then did a second assessment breakdown which he called the “revised route” based on the presence of the Enbridge right of way and the additional cost to traverse the same. His evidence disclosed that this is what he called the modified “Todgham Method”.

As a result of applying the modified “Todgham Method”, the Pearson property was assessed with respect to the Main Drain for $11,610.00 for benefit and $408.00 for outlet and for the Branch ‘A’ Drain, $7,270.00 for benefit. The total assessed to the Pearson property is $19,288.00.

Mr. DeVos then testified that his report was provisionally adopted by the municipal council and subsequently upheld by the Court of Revision.

Mr. Kenneth Pearson and Mr. Ronald Pearson, Appellants

Mr. Kenneth Pearson then testified on behalf of himself and the other owners of the Pearson property. He stated that the property is a 50 acre parcel which is no longer farmed by the family and is rented out. His mother lives in a house on that farm. He further testified that there are four municipal drains crossing the farm, only three of which, in his opinion, benefit the farm, and that the property is adequately drained by those three existing drains and a random tile drainage system.

Mr. Pearson further stated that the new drainage work was of no benefit to the owners of the Pearson property and that they had not been bothered in the past by any surface water runoff.

At one point in his testimony, Mr. Pearson began to read a statement. Upon questioning, he revealed that he had consulted an engineer, Ken Smart, who had provided them with a statement to make to the Tribunal. Rather than have Mr. Pearson read the statement into the record, the statement prepared by Mr. Smart was accepted by the Tribunal as Exhibit #5, but subject to a decision as to what weight would be given to it. A review of Exhibit #5 shows that it does not contain the name of any engineer, nor has it been signed. Not only are the statements in the document hearsay, they are statements by someone who would usually have to be qualified as an expert witness to give opinion evidence and also be subject to cross examination. The Tribunal finds that this document should be given no weight for these reasons.

Mr. Ron Wakem, Assessed Landowner

Mr. Ronald Wakem, one of the assessed landowners, testified that he feels that his assessment is high but that he is not disputing it and that he and his wife, Karen, are not in favour of any changes to the current assessment schedule that will increase costs to their properties.

Findings

1. Are there any benefits to be derived from the drainage works with respect to the Pearson property?

The Engineer’s Plan indicates that the Pearson property is currently traversed by four municipal drains which are closed or tile drains. There was evidence that these drains are functioning well. The Pearson property currently has a very good drainage outlet at its downstream or south property line, that is, a large ditch inlet catch basin with a 750 mm (30 inch) diameter outlet tile plus a grass waterway to conduct surface water at times of high flow. The Pearson property is currently adequately under drained by a random drainage system. Mr. Kenneth Pearson testified that the Pearson property is presently not adversely affected by excessive surface water flows across it from upstream lands.

The Engineer’s Report does not propose any improvements to the existing Wakem-Weir Main Drain or Branch ‘A’ on the Pearson property; however, a new 600 mm by 600 mm (2 foot by 2 foot) ditch inlet offset catch basin is proposed to be installed on the Cherry Hill road allowance, beside the Pearson property and upstream of the pipelines, to replace an existing catch basin at that location.

The proposed work on the Pearson property is the installation of a new 600 mm (24 inch) diameter tile drain across the full width of the property for a length of approximately 329 metres, plus the installation of a new 600 mm by 600 mm (2 foot by 2 foot) ditch inlet catch basin on the upstream or north property line offset from the new tile drain.

The proposed 600 mm diameter tile is unusually deep across the Pearson property. Whereas the normal depth to invert for a tile of this size would be the range of 1.7 to 1.9 metres (approximately 6 feet), this tile will range from 2.4 to 2.9 metres in depth to invert (approximately 9 feet). Since the municipality only allows individual field tile to be connected to municipal drains at predetermined locations such as catch basins or junction boxes, at property lines or fence lines, the appellants will not be allowed to connect to this new proposed drain.

The Engineer’s Report indicates that only 3.8 hectares (9 acres) of the Pearson property is affected by the Main Drain and that it is assessed $11,610.00 for Benefit, in accordance with Section 22 of the Act and $408.00 for Outlet, in accordance with Section 23 of the Act.

The Engineer’s Report further indicates that none of the Pearson property is affected by the works proposed as Branch ‘A’ and that it is assessed $7,270.00 for Benefit, in accordance with Section 22 of the Act, apparently for “Benefit by Cut-off” as per the testimony of Mr. DeVos at the hearing.

“Benefit” is defined in Section 1 of the Act as meaning “the advantages to any lands, roads, buildings or other structures from the construction, improvement, repair or maintenance of a drainage works such as will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages relating to the betterment of lands, roads, buildings or other structures”.

As for the term “Benefit by Cut-off” or “Cut-off Benefit”, it is not defined in the Act but a definition was presented by Mr. Todgham in his Drainage Assessment Method (“DAM”) as follows, “cutting off the natural flow of surface water from adjoining lands and stopping it from coming onto the lands in question is usually known as Cut-off Benefit”. It is important to note here that Mr. Todgham refers only to surface water.

In his Report, the Engineer provided his definition as follows: “Benefit by Cut-off is assessed to lands and roads which obtain relief from surface and/or subsurface drainage onto or through their lands by the diversion of said surface and/or subsurface drainage into another watershed.” It is important to note that the Engineer includes subsurface drainage, as well as surface drainage, and that he indicates this drainage is to be diverted into another watershed.

On the issue of whether or not there are benefits to be derived from the drainage works with respect to the Pearson property, the Tribunal finds that there is some Benefit to the Pearson property on the basis that it is proposed to install one replacement and two new ditch inlet catch basins upstream of the subject lands on the Main Drain which should reduce the downstream flow of surface water, to some degree. Similarly, two replacement ditch inlet catch basins are proposed to be installed, one on Branch ‘A’ upstream of the appellants’ property and one on Branch ‘D’ adjacent to the appellants’ property, that should reduce the downstream flow of surface water along Cherry Hill Road and onto the appellants’ lands, to some degree.

It can also be argued that there is some Benefit to the Pearson property due to the proposed new drain on the basis that, if the natural routes were followed, there would be two new drains on the subject lands, twinning the existing Main and Branch ‘A’, and those would make a total of six municipal drain tiles across the property, rather than five, as proposed.

2. Should the assessment for the Pearson property be modified?

Although there is some Benefit to the Pearson property, the Tribunal finds that the present assessment is excessive. It would have been more appropriate for the Engineer to have undertaken new calculations for assessments along the “revised route” rather than modifying assessments calculated for improvements along the “natural route”. Due to the proposed Drain being significantly deeper than normal, and not being located in one of the natural low runs, it will not improve crop production or better control subsurface drainage across the Pearson property. Furthermore, it has not been demonstrated how the Pearson property will be increased in value, or be more easily maintained, or have an improved appearance by adding a fifth municipal drain across the subject property. The surface and subsurface water from Branch ‘A’ drainage area upstream of the pipeline will not be “stopped” from flowing southerly, nor will it be “diverted into another watershed”, it will simply be relocated to a point approximately 260 metres easterly and still flow through the lands of the appellants within the same watershed; accordingly, there is no “Cut-off Benefit” to the lands of the appellants.

Accordingly, the appellants’ assessment should be reduced.

The primary purpose of the proposed Drain across the appellants’ land is to conduct increased flows of subsurface water and some additional surface water to the outlet in the Wakem-Weir Municipal Drain 2000. On this basis, the application of Benefit Assessments of 50% for the Main Drain and 55% and 52.5% for Branch ‘A’ are considered to be excessive.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The appellants’ outlet assessment on the Main Drain shall be reduced from $408.00 to zero.

2. The appellants’ benefit assessment on the Main Drain shall be reduced from $11,610.00 to $8,127.00.

3. The appellants’ assessment reductions of $3,891.00 on the Main Drain shall be assessed “pro rata” to all the upstream lands and roads based on the current Outlet Assessments including Enbridge at a value of $27,300.00. This special assessment to Enbridge shall be in accordance with Section 24 of the Act.

4. The appellants’ benefit assessment on Branch ‘A’ shall be reduced from $7,270.00 to $1,500.00.

5. The appellants’ assessment reductions of $5,770.00 on Branch ‘A’ shall be assessed “pro rata” to all the lands and roads listed in the Schedule of Assessment, based on the current outlet assessments, including Enbridge at a value of $6,940.00. This special assessment to Enbridge shall be in accordance with Section 24 of the Act.

6. 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.