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 Courriel : appeals.tribunal.omafra@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL: Matheson Drain 2013 Township of East Zorra-Tavistock
Matheson Drain (RE) 2014 ONAFRAAT 2
STATUTE: Drainage Act
HEARING: December 18, 2013
DATE OF DECISION: January 7, 2014
2014-02
NEUTRAL CITATION: 2014 ONAFRAAT 2
MATHESON DRAIN 2013 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 Mr. Edward Czerniawski, Innerkip, Ontario; under Section 48(1) of the Drainage Act from the Engineer’s Report on the Matheson Drain 2013 in the Township of East Zorra-Tavistock.
Before: Paula Lombardi, Vice-Chair; Enio Sullo, Vice-Chair
Appearances: Edward Czerniawski, Appellant Ken Smart, P. Eng., K. Smart Associates Limited, Engineer who prepared the report Don Ross, landowner, party to the appeal Dennis O’Neil, Drainage Superintendent, witness for the Township William A. Chesney, landowner, witness for the Township George Howard Piggot, landowner, witness for the Township
DECISION OF THE TRIBUNAL
The Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) held this hearing in the Council Chambers of The Township of East Zorra-Tavistock (the “Township”) in Hickson, Ontario on December 18, 2013. The Engineer’s Report dated August 15, 2013 for Matheson Drain 2013 (the “Report”), was prepared by K. Smart Associates Limited and signed by Ken Smart, P. Eng., (the “Engineer”). The appeal to the Tribunal was filed by Mr. Edward Czerniawski.
Brenda Junker, Clerk of the Township of East Zorra-Tavistock 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.
Mr. Don Ross, an assessed landowner, requested, and was made a party to the hearing.
Background
The Matheson Drain watershed covers a large portion of the Township, approximately 702.3 hectares (1,735 acres) in area, and is situated in part of Lots 10 to 12, Concession 14, parts of Lots 8 to 14, Concession 15 and parts of Lots 8 to 13, Concession 16. The drainage works making up the Matheson Drain consist of a Main Drain and 7 Branch Drains named Branches L, M, P, R, S, Y and Z.
The Engineer’s Report, was prepared pursuant to a petition for improved drainage within the Matheson Drain watershed submitted to the Township on August 30, 2012 by a number of affected landowners. Although the Matheson Drain is an existing municipal drain constructed under the Act, the Township Council opted to appoint the Engineer under Section 4 of the Drainage Act (“Act”) on October 17, 2012.
The Engineer held an initial on-site meeting on November 15, 2012 where he determined that the petition submitted by the landowners was deficient for the drainage works being requested and that it did not meet the requirements of section 4 of the Act. On November 19, 2012, the Engineer advised the Township of the deficiencies in accordance with the requirements of section 9 of the Act. Subsequently, on December 21, 2012 the landowners submitted a revised petition to the Township which was also signed by the two road authorities in the watershed. The Engineer reviewed the revised petition and advised the Township on January 9, 2013, within the sixty (60) day period allowed by section 9, and concluded that the petition was sufficient.
In preparing the Report, the Engineer conducted several on-site meetings; reviewed the watershed area; engaged in a survey of the existing drainage area; designed the drainage works; prepared the Report that included plan and profile drawings; provided cost estimates, specifications, assessment and future maintenance schedules; and, described the drainage work to be completed for the Matheson Drain watershed.
The estimated cost of the Matheson Drain project is $870,450.
Mr. Edward Czerniawski (the “Appellant” or “Mr. Czerniawski”) filed an appeal under section 48 of the Drainage Act (“Act”) with the Tribunal on November 4, 2013. Mr. Czerniawski’s appeal pertains only to the proposed construction of Branches P and R of the Matheson Drain. The landowners in the area of Branches P and R include: J and D Ross; William Chesney & Sons; and, G and A Piggott. Mr. Czerniawski’s lands comprise the most upstream portion of the Branches P and R watershed and are drained by Branches P and R through immediately downstream lands owned by Mr. Chesney and subsequently downstream through the Ross and Piggot lands to the outlet in the Matheson Main Drain.
Issues
- Under Section 48(1) of the Drainage Act, the Tribunal is to determine whether:
- the benefits to be derived from the drainage works are commensurate with the estimated cost;
- whether the drainage works should be modified;
- whether the compensation or allowances provided by the Engineer are inadequate or excessive.
Evidence
Mr. Ken Smart, P. Eng., the Engineer who prepared the Report
Mr. Smart provided an overview of the history of the Matheson Drain area and advised the Tribunal that the Matheson Drain has existed in the Township since the early 1900s. Mr. Smart stated that the Matheson Drain provides drainage for a watershed area of 1,735 acres and consists of an open channel outlet with four different sub-watersheds: the west, east, central and Breckenridge. The Matheson Drain was last improved in 1970 and 1971 pursuant to reports and a series of appendices prepared by H.M. Gibson P. Eng.
Mr. Smart testified that both Branches P and R, which are the subject of this appeal, serve watersheds that are approximately 35 acres each. Mr. Smart stated that Branches P and R will be improved by constructing a new 8 inch tile parallel to the existing 6 inch tiles that currently make up Branches P and R. Mr. Smart explained that Branches P and R are located entirely within the lands owned by Messrs. Chesney, Piggott and Ross and that upstream limits of both drains are at Mr. Czerniawski’s property line so that none of the drains are located on Mr. Czerniawski’s property.
Mr. Smart stated that at the early on-site meetings it was evident that the landowners were in agreement with the work being proposed for Branches P and R; however, he could not recall whether or not the Appellant had attended those meetings.
The Engineer testified that in his opinion, he was satisfied that the proposed work on Branches P and R was required. The Engineer stated that when he presented his initial findings and outlined the proposed work, he took steps to determine whether or not the landowners wanted to proceed with the various components of the Matheson Drain project.
Mr. Smart further testified that he was aware of Mr. Czerniawski’s concerns about the twinning of Branches P and R and advised the Appellant at the second on-site meeting that he would follow up with the petitioners to determine whether or not they supported the work being proposed for the area. According to Mr. Smart, both Mr. Chesney and Mr. Piggott agreed with the contents of the Report; specifically the work being proposed on Branches P and R. The Report indicates that the Engineer spoke to the petitioners after the meeting held on July 4, 2013 and confirmed that the petitioners wanted Branches P and R to be improved on both the Chesney and Piggott properties.
Upon questioning from the Tribunal, the Engineer confirmed that none of the work on Branches P and R is being proposed on the Appellant’s property. The Engineer clarified that the existing Branches P and R were originally designed to a ½ inch drainage coefficient in accordance with the standards of the 1970s and as such are too small by today’s standards of a 1½ inch drainage coefficient. Mr. Smart explained that he designed the entire Matheson Drain project, including the Main Drain and Branches to a 1½ inch drainage coefficient.
Mr. Smart went on to testify that the Appellant is situated at the top end of the watershed but that, in his opinion, the proposed drainage works would be of benefit to the Appellant and will result in improved drainage of the Appellant’s lands. The Engineer also stated that without any of the proposed improvements, there will be more surface water flowing over the Appellant’s lands towards the downstream landowners, specifically the immediately downstream landowners Messrs. Chesney, Piggott and Ross.
In response to questioning from the Tribunal, the Engineer advised that he continues to support the recommendation in the Report to increase the capacity of Branches P and R to a 1½ inch drainage coefficient by constructing new drain tiles parallel to the existing drainage Branches P and R.
In closing, the Engineer testified that the petition for Branches P and R met the requirements of the Act and confirmed on several occasions that the landowners wanted the work completed. The Engineer supported the benefits to completing the work on Branches P and R, and said that he followed the procedures set out in the Act. He therefore recommended that the Report be upheld as written.
Mr. Edward Czerniawski, Appellant
Mr. Czerniawski objected to the proposed improvements on Branches P and R across Mr. Chesney’s property, which is immediately downstream of his lands. Mr. Czerniawski stated that the improvements are not necessary and they will be of no benefit to him. He said that the Engineer failed to provide proper justification for the improvements. Additionally, Mr. Czerniawski stated that the Engineer had advised that the work was not required; and, that the Engineer was unable to advise what work was required on the drains.
The Appellant requested that Branches P and R not be constructed through the Chesney property and ending at the Appellant’s property and that these branches only be constructed through the Ross and Piggott properties. The Appellant testified that at the meetings dealing with the preliminary matters at no time did the Engineer express concern about the size of the drain. According to the Appellant, the owner of the Chesney property was not represented at the on-site meeting, and that Mr. Chesney had failed to attend any of the meetings.
The Appellant testified that at the September meeting, the Engineer was unable to advise what work was to be completed on the Appellant’s property at the August meeting. When cross-examined by Mr. Smart, the Appellant stood by his testimony on this point.
In response to questions from the Tribunal, the Appellant admitted that he was not a signing petitioner but he was aware that Mr. Chesney did sign the petition to request the drainage works. The Appellant testified that in his opinion, his land is already being adequately drained.
In closing, the Appellant expressed concern that the Engineer was biased towards the landowners who did not sign the petition. The Appellant requested that the construction of Branches P and R not occur on the Chesney property but proceed as designed on the Ross and Piggott properties.
Mr. Don Ross, Landowner, Party to the Appeal
Mr. Ross’ property is located at Lot 10, Concession 16 and is situated along Branch P. Mr. Ross testified that the reasons he signed the petition was because: he has two properties in the Matheson Drain watershed; has had drainage issues relating to blow outs; and, that the 1970 drain was designed to drain low spots and wet spots only. Mr. Ross stated that everyone in the area has constructed systematic drainage for their property which has resulted in the flow of water being considerably higher than what the drains were designed to accommodate.
Mr. Ross recalled several problems arising from the poor drainage of his property including: a tractor falling into a blow out from poor drainage resulting in a broken front axle; and, the erosion of the existing topsoil. When questioned by the Tribunal Mr. Ross was unable to determine the exact time that these events took place. Mr. Ross also testified that to the east of the bush the area was so wet this last fall that he was unable to plant wheat in a timely manner.
Mr. Ross further testified that, in his opinion, the poor drainage of the area is impacting his farming operations and because of this he supported the works proposed by the Engineer’s Report, including the twinning of Branches P & R.
Mr. Dennis O’Neil, Drainage Superintendent, Witness for the Township
Mr. O’Neil testified that he was present at the meeting when the Report was being considered by Council in September 2013. Mr. O’Neil was asked by Mr. Smart specifically about whether or not he recalled the Engineer making a statement at a meeting that he did not know what work was going to be done and further that the work on Branches P and R was not required. While Mr. O’Neil did not recall the specific comments made by the Engineer he had no recollection of any statements being made that the work was not required.
Upon cross-examination by the Appellant, Mr. O’Neil confirmed that he had no recollection of who was present at the September 2013 meeting nor did he recall any comments by the Engineer that the work was not required.
Mr. William A. Chesney, Landowner, Witness for the Township
Mr. Chesney testified that he spoke to the Engineer twice on the telephone to confirm that he supported the proposed work on Branches P and R. Mr. Chesney felt that since the drains were approximately forty years old they should be improved.
During cross-examination by the Appellant, Mr. Chesney admitted that although he signed the petition but never attended any meetings relating to the Matheson Drain. Mr. Chesney testified that the Engineer contacted him by telephone to ask whether or not he was in favour of the drainage work being proposed.
When questioned by the Tribunal, Mr. Chesney acknowledged that he does not have any problems with water coming down from the Appellant’s land onto his property.
Mr. George Howard Piggott, Landowner, Witness for the Township
Mr. Piggott signed the petition and testified that he supports the drainage works being proposed to rectify any problems from the flooding during times of heavy rainfall.
Findings
The Engineer’s evidence is that he designed the entire Matheson Drainage project, including the Main Drain and all the Branches to a 1 ½ inch drainage coefficient that reflects today’s standards. The existing drainage system was built circa 1970 and because of this was designed to a ½ inch drainage coefficient.
The Tribunal considered Mr. Czerniawski’s request to eliminate the proposed improvements to Branches P and R across Mr. Chesney’s property. The granting of Mr. Czerniawski request would maintain the status quo pertaining to Branches P and R, specifically the 1970 design of a ½ inch drainage coefficient. Under that scenario, the Czerniawski, Chesney, Piggot and Ross lands (which are served in whole or in part by Branches P and R) would have a level of protection significantly lower than the rest of the Matheson Drain watershed which is designed to a 1 ½ inch drainage coefficient. Among all the four properties served by Branches P and R, Mr. Czerniawski’s lands would be least impacted by the elimination of improvements to Branches P and R, since his lands are the furthest upstream. The elimination of the improvements would continue to allow the excess flow from the Czerniawski lands (beyond the capacity of the tiles) to flow downhill to the detriment of the downstream landowners, specifically Messrs. Chesney, Piggot and Ross.
The Tribunal finds no basis for imposing a lower level of protection on the lands drained by Branches P and R that would result from the elimination of the improvements to these Branches proposed by the Report.
The Tribunal finds that there is no evidence of bias on behalf of the Engineer. The Engineer followed the process established by the Act, held numerous onsite meetings and when a concern was raised that Branches P and R may not be necessary on the petitioners’ properties, he followed up to confirm that the petitioners supported the improvements being proposed.
With respect to the appeal under Section 48 of the Act, the Tribunal finds that the Appellant failed to provide any expert evidence or other engineering information sufficient to refute the Engineer’s opinion that the benefits derived from the drainage works being proposed are commensurate with the estimated costs of the drainage works. The Tribunal concludes that the drainage works proposed by the Engineer should proceed as set out in the Report. The Appellant did not provide any evidence that the compensation or allowances set out by the Engineer are either inadequate or excessive.
The Tribunal accepts the evidence of the Engineer that the twinning of Branches P and R results in an improvement to the existing drainage works.
ORDER OF THE TRIBUNAL
The Tribunal orders as follows:
The appeal under Section 48 of the Act is denied.
The non-administrative costs of the Township 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 7th day of January, 2014