Agriculture, Food and Rural Affairs Appeal Tribunal

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales

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

Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

APPEAL: Brock Avenue Drain in the Municipality of Bluewater

Brock Avenue Drain 2014 ONAFRAAT 11

STATUTE: Drainage Act

HEARING: March 26, 2014

DATE OF DECISION: May 20, 2014

2014-11

NEUTRAL CITATION: 2014 ONAFRAAT 11

BROCK AVENUE DRAIN MUNICIPALITY OF BLUEWATER

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. Maxwell of Hensall, Ontario and Ms. Sangster of Hensall, Ontario; under Section 54(1) of the Drainage Act from the decision of the Court of Revision with respect to the Brock Avenue Drain in the Municipality of Bluewater.

Before: Paula Lombardi, Vice-Chair; Sharon Weitzel, Member; Edward Dries, Member

Appearances: Mr. Gary Maxwell, Appellant Ms. Pam Sangster on behalf of Ms. Janeth Sangster, Appellant Mr. McAuley, CAO for the Municipality of Bluewater Mr. Spriet, Engineer who prepared the report

DECISION OF THE TRIBUNAL

This hearing was held in the Municipality of Bluewater (“Municipality”) in Varna, Ontario on March 26, 2014. To ensure that the Appellants had all the information and provided enough time to view the documentation provided to the Tribunal, the hearing was adjourned to April 24, 2014. Mr. Gary Maxwell and Ms. Janeth Sangster appealed to the Agriculture Food and Rural Affairs Appeal Tribunal (“Tribunal”) under Section 54(1) of the Drainage Act (“Act”) from the decision of the Court of Revision on the Brock Avenue Drain. The Engineer’s Report dated June 11, 2013 for Brock Avenue Drain (“Report”), was prepared by Spriet Associates London Limited and signed by J. R. Spriet, P. Eng., (“Engineer”).

Charlene Overholt, Clerk of the Municipality of Bluewater 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 October 23, 2013, as proof that all parties had been served with the Notice of Hearing.

The Township filed a further Affidavit of Service, dated April 24, 2014, as proof that all parties had been served with the Notice of Adjournment and Rescheduling of Hearing.

No other assessed landowners were made a party to the hearing.

Background

The Report, dated June 11, 2013 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 Brock Avenue Drain will provide drainage for parts of Lots 21 and 22, Concession 2 in the Municipality of Bluewater.

The Brock Avenue Drain consists of approximately 685 metres of tile ranging in size from 200 mm to 600 mm and includes sixteen (16) catch basins and connections. The drain commences at a point within Brock Avenue just west of the intersection with Brock Street and flows westerly, wholly within the limits of Brock Avenue before entering the Metzger Meat property at the west end of Brock Avenue. The drain continues north, through the Metzger Meat property, then west and north through the Greenfield Ethanol property to an outlet into the Verlinde Municipal Drain. The total watershed area is approximately 4 hectares in area and was included within the Verlinde Municipal Drain watershed as set out in a 1986 report on the Verlinde Municipal Drain prepared pursuant to the provisions of the Drainage Act. The Report recommends the construction of a new municipal drain for the drainage area.

There is an existing tile drain that serves the westerly end of Brock Avenue which angles northwesterly across the Meztger Meat property and then flows north to the Verlinde Municipal Drain. The Engineer reviewed the municipal records and confirmed that there was no evidence that this existing tile drain was constructed under the provisions of the Act.

The Engineer reviewed a drainage report entitled the Brock Street Drain, prepared by John Roger O.L.S., and dated March 31, 1913 (“1913 Report”). According to the 1913 Report, that drain consisted of a 10” diameter tile commencing at the intersection of Brock Avenue and Brock Street and it flowed in a southerly direction along Brock Street towards Mill Street, which is now identified as Mill Road.

The Engineer reviewed a drainage report entitled the Verlinde Municipal Drain, prepared by W. J. Bartlett and dated April 6, 1989 (“1989 Report”). The 1989 Report encompassed all of the lands currently included in the Brock Avenue Drain Report.

The Brock Avenue Drain was initiated by a petition signed by the Municipality, as the road authority and H & G Metzger, owners of commercial and residential properties. When preparing the Report, the Engineer held numerous site meetings, conducted a field investigation, surveyed the drainage area and observed existing drainage conditions.

The Engineer prepared a preliminary design, cost estimates and assessments and held approximately three informal public meetings to seek input from the landowners in the drainage area.

The outlet portion of the drain discharges into the Verlinde Municipal Drain open portion, passes through the Greenfield Ethanol Property, across the Metzger property and ends at the westerly end of Brock Avenue that is privately owned. This portion of drain consists of 600 mm and 525 mm diameter concrete drainage tile and 450 mm diameter polyethylene pipe.

The upper portion of the drain is to be constructed within the Brock Avenue road allowance and consists of 300 mm to 200 mm diameter pipe. Twelve catch basins are to be constructed along Brock Avenue as outlets for surface water runoff.

The Report identifies a catch basin at the end of the 600 mm portion of the outlet drain, to provide an outlet for the loading dock and parking areas on the Metzger property.

All of the existing drainage tiles that are crossed during the installation of the pipe will be connected to the new drain. The residential property owners will be permitted to connect to the Brock Avenue Drain at their sole expense at the time of construction

The costs of the Brock Avenue Drain are set out in Schedule, ‘B’, of the Report. The assessments for each affected property are set out in Schedule ‘C’ of the Report and each assessment is separated into benefit and outlet costs.

The benefit costs are distributed to those properties either situated along or, in close proximity of, the drain. The outlet costs are distributed to all the properties located within the watershed area of the drain The Municipality is responsible for a substantial portion of the cost of the drainage works, being approximately 51.8% of the total project cost. The allowances as shown in Schedule ‘A’ of the Report, are set out in accordance with Sections 29 and 30 of the Act and include the right-of-way and any damages to lands and/or crops situated along the route of the drain.

The Appellant, Mr. Maxwell was assessed a total amount of $1,293 ($300 benefit and $993 outlet). The Appellant, Ms. Janeth Sangster, was assessed $1,655 ($400 benefit and $1,255 outlet), as listed in Schedule ‘C’.

Issues

Should the assessment as set out in the Engineer’s Report dated June 11, 2013 be amended?

Evidence

Mr. J. R. Spriet, P. Eng., Spriet & Associates

The Engineer testified that the Brock Avenue Drain was initiated by a petition in accordance with the Act by the Municipality and the Metzger properties.

One Metzger property described in the petition is located at the westerly end of Brock Avenue in what was formerly the Village of Hensall. This property is a retail property (Metzger Meat Property) that experienced a considerable amount of flooding around the plant, specifically in the parking area and loading dock. A private drain is installed on the lands situated immediately to the north and currently provides drainage for the Metzger Meat Property. The size of this drain is 200 mm (8”) diameter and not large enough to accommodate the runoff from the Metzger Meat Property.

The Engineer also testified that the Municipality plans to upgrade Brock Avenue in the near future. The Report proposes sixteen (16) catch basins to accommodate the drainage area. The drain will begin at the corner of Brock Street and Brock Avenue where Mr. Maxwell currently resides, and will drain westerly along Brock Street through the Metzger Meat Property then northerly to an outlet into the Verlinde Municipal Drain.

The Engineer confirmed that Mr. Metzger of Metzger Meats requested that the new drain be situated so as to avoid damage to the existing parking lot. This would result in a longer length of drain being required. The Engineer also indicated that Mr. Metzger requested that the capacity of the outlet portion of the tile be increased to better accommodate the drainage on his property. The size of the outlet portion of the tile was increased from 525 mm (21”) diameter to 600 mm (24”) diameter.

The Engineer confirmed a catch basin located in the parking lot on the Metzger Meats Property connected to the existing 200 mm (8”) diameter tile and felt that this provided insufficient drainage capacity. The Engineer testified that the Metzger Meat Property was assessed the extra expense associated with the longer length of the drain as well as, its increase in size.

In response to a question from the Tribunal, the Engineer confirmed that Ms. Sangster was not included in the 1913 Report. However, Mr. Maxwell’s property was included and assessed in the 1913 Report. The Engineer did state that all of the Sangster property and a portion of the Maxwell property were identified and assessed in the 1989 Report.

In the Engineer’s opinion, the preliminary meetings were well attended by the residents whose lands were included in the Brock Avenue Drain. The Engineer testified that, as part of completing the Report, he walked Ms. Sangster’s backyard and observed it to be well treed and confirmed that an old drain existed at the back of the Sangster Property.

To prepare for this hearing, the Engineer took elevations using a GPS along the back of the Sangster property and the other properties included in the drainage area on the north side of Brock Avenue (Exhibit 5, Item 1). The GPS readings confirmed that the rear yards of the properties located on the north side of Brock Avenue slope and as a result drain towards the west.

In reviewing the assessments the Engineer directed the Tribunal to the Assessment Breakdown dated June 17, 2013 (Exhibit 5, Item 5). The Engineer testified that the cost of the outlet portion of the drain is $33,200, and that two individuals were assessed benefit costs - Metzger Meats ($9,500) and Greenfield Ethanol ($6,500). No other properties in the drainage area were assessed a benefit cost for the outlet portion of the drainage works. The remaining costs of $17,200 for the outlet costs was assessed to all the properties, including the Municipal road, located in the drainage area. Of the remaining costs the Metzger Meat Property and residential property were assessed approximately 39% of the $17,200, the Municipal road assessed approximately 25% of these costs and the remaining properties assessed the remaining 36% of the $17,200.

In response to a question from the Tribunal the Engineer provided more detail about the assessment breakdowns and indicated that the lots were assessed based on their area within the watershed and runoff factor which is related to the properties hydrologic characteristics and is expressed in relation to agricultural land.

The rest of the costs associated with the construction of the upper portion of the drain along Brock Avenue ($65,200) were assessed against only those properties within the watershed that are affected by the drain. The largest component of this portion of the assessment for the drain is $47,900 and levied as a benefit assessment against the Municipal road.

In response to a question from the Tribunal, the Engineer confirmed that the current report did not include the construction of swales along both sides of Brock Avenue in order to direct the surface runoff to the catch basins and that this component of the construction would be solely the responsibility of the Municipality as a part of the Brock Avenue reconstruction project.

Ms. Pam Sangster, Appellant

Ms. Sangster appeared and gave evidence on behalf of her mother, Ms. J. Sangster, who appealed the decision of the Court of Revision (“Ms. Sangster”). Ms. Sangster is a longtime property owner and resident whose property is located along the north side of Brock Avenue. Ms. Sangster indicated that her mother has a strong commitment to the environment and testified that their property does not drain towards the west as suggested by the GPS. Ms. Sangster testified that the property is shaped like a cup and drains to the north away from Brock Avenue.

The Sangster property was assessed a total of $1,655 and the appellant stated that this cost is excessive and that the property has the smallest residence on the street.

According to Ms. Sangster, the property is treed and consists of a considerable amount of green space. Any water on the property settles in the yard and around the trees, both of which prevent runoff. Ms. Sangster testified that there are approximately eighty (80) mature coniferous and deciduous trees located on the property. She also indicated that in 1992, on the advice of representatives from the Village of Hensall, a licensed contractor was hired to construct a drainage tile on the property. There was no evidence presented relating to the specific details of this drainage tile although Ms. Sangster testified that it does exist on her mother’s property. Ms. Sangster’s expressed her opinion that a rain garden located on the property minimizes water runoff.

Ms. Sangster expressed concern that the construction of the drain will damage the existing trees, including mature fruit trees and specifically the Bartlett pear tree. The Appellant also takes the position that a swale should not be constructed along a residential street.

Mr. Gary Maxwell, Appellant

Mr. Maxwell testified that for numerous years he worked for the Village of Hensall as the Superintendent of Works prior to amalgamation. Mr. Maxwell stated that in his opinion the assessment against his property is excessive. While the Engineer took the position that the east side of Mr. Maxwell’s property is low and water runoff is towards Brock Street, he was also of the opinion that the majority of the westerly and northerly part of the Maxwell lot drained north towards Brock Avenue. Mr. Maxwell testified that the east side of his property drains to the east towards Brock Street. Mr. Maxwell also stated that the eaves on his house are directed to the south and any runoff that goes north to Brock Avenue lies in the boulevard and does not drain anywhere.

Mr. Maxwell questioned the drainage area assigned to his property and noted that the 1989 Verlinde Municipal Drain drainage area is different that the Brock Drain drainage area. Mr. Maxwell expressed concern that the construction of the loading docks on the Metzger property caused the drainage problems in the area.

Mr. Maxwell’s total lot area is approximately 0.08 hectares. The Engineer clarified that the Verlinde Municipal Drain area only included a portion of Mr. Maxwell’s property. Under the Verlinde drainage report, Mr. Maxwell’s property was assessed for 0.02 hectares while the Brock Avenue Report now assesses Mr. Maxwell’s property as 0.05 hectares. It is recognized that the remaining .03 hectares of his property continues to drain to the east and/or south.

In response to a question from the Tribunal concerning the runoff factor applied to this property, the Engineer stated that the buildings and driveway on the Maxwell property cover a higher percentage of the lot when compared to other properties resulting in water running off at a higher rate and therefore resulting in a higher runoff factor.

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.

There was no evidence presented at the hearing to rationalize or justify a reduction of the benefit assessment to either of the Appellants’ property. The Tribunal, although sympathetic to the concerns expressed by both Mr. Maxwell and Ms. Sangster was not persuaded that their assessments were incorrectly calculated or did not meet the provisions of the Act.

The Engineer explained how the assessments were calculated in detail and indicated that all the lots were assessed based on size and runoff factor. The Engineer provided the Tribunal with a breakdown of the assessments (Exhibit 5, Item 5).

The Engineer described the northern portion of the residential properties on the north side of Brock Avenue as being similar to farmland in terms of water runoff and as a result, the runoff factor attributed to the northern portion of all the properties on the north side of Brock Avenue was the same as farmland and includes the Sangster property. The southern portion of the properties situated along the north side of Brock Avenue drains southwards towards Brock Avenue and includes the structures (houses, driveways, garages, and sheds). Because of this the Engineer applied a higher runoff factor than was applied to the northern portion of these properties. The Engineer confirmed that the southerly portions of the properties situated along the north side of Brock Avenue were all assessed in the same manner.

Similarly, all of the residential lots that abut the south side of Brock Avenue, including a portion of the Maxwell property were deemed to have a higher rate of runoff in relation to agricultural land as a result of their more extensive development and all were assessed in the same manner. There was no compelling evidence provided to the Tribunal to suggest that the assessed area on the Maxwell property was unreasonable.

Under the Act, it is the Engineer’s duty to determine whether or not a parcel of land will benefit from the drainage works being proposed. When appealing a benefit assessment, as the Appellants did in this case, the property owner must provide evidence that the property does not get any benefit from the drain. The Appellants failed to provide the Tribunal with evidence showing that their properties would not receive a benefit from the drain.

It is important to note that the Assessment Schedules set out in the Engineer’s Report are only estimates, based on the costs shown in the Report, and that 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 in order to recover the actual cost of the drainage works.

The Tribunal is satisfied that the Engineer was fair and reasonable in calculating the assessments in the Report and to the Appellants.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. That the assessments as set out in the Engineer’s Report dated June 11, 2013 be confirmed;

2. 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 20^th^ day of May, 2014.