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 Stone Road West

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:

Little Creek Drain Reassessment Report

Town of Lakeshore.

Little Creek Drain (RE) 2014 2014ONAFRAAT22

STATUTE:

Drainage Act

HEARING:

June 12, 2014

DATE OF DECISION:

August 6, 2014

2014-22

NEUTRAL CITATION:

2013 ONAFRAAT 1

LITTLE CREEK DRAIN REASSESSMENT REPORT

TOWN OF LAKESHORE

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 Marie and Marcel Lefaive, Marie and Ronald Lefaive, Roger Roy, Claude Brévard, Desmarais Family Farms Ltd., and Charles Desmarais of Stoney Point, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Little Creek Drain Reassessment Report in the Town of Lakeshore.

Before: Jeffrey Hewitt, Vice-Chair; Andrew McBride, Member; Bill Schaefer, Member

Appearances:

Ronald Lefaive - Appellant

Roger Roy - Appellant

Claude Brévard - Appellant

Desmarais Family Farms Ltd. – Appellant, Represented by Charles Desmarais

Charles Desmarais – Appellant

Tom Marentette, P. Eng. – Dillon Consulting Limited, Engineer who prepared the Report

Jill Fiorito – Drainage Superintendent for the Town of Lakeshore

DECISION OF THE TRIBUNAL

This hearing was held in the Town of Lakeshore (the “Municipality”), in Belle River, Ontario on June 12, 2014. The Engineer’s Report dated November 25, 2013 for the Reassessment of the Little Creek Drain (the “Report”) was prepared by Dillon Consulting Limited and signed by Tom H. Marentette, P. Eng. (the “Engineer”).

Mary Masse, Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an Order making all landowners assessed in the Reassessment 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 April 11, 2014.

The Tribunal was also provided with letters signed by Claude Brévard, and Marie and Marcel Lefaive authorizing Charles Desmarais, Roger Roy and Ron Lefaive to speak on their behalf with respect to their appeal.

Background

Little Creek Municipal Drain services a watershed in the Municipality of the Town of Lakeshore. Little Creek drains approximately 2,700 hectares (or 6,650 acres) of mostly farmland into Lake St. Clair. In 2011, the Town instructed a drainage Engineer to prepare a new updated assessment schedule for Little Creek for the purposes of future maintenance. The Appellants, landowners who farm within the watershed, dispute the results of the Engineer’s new assessment schedule primarily on the basis that his ratio of “benefit” to “outlet” assessment was disproportionate and unfairly burdened their lands with a higher assessment.

Issues

Based on the submissions of the Parties, all self-represented, and the evidence heard at the hearing, the Tribunal has identified the following six issues of concern in this Appeal.

1. Should the benefit assessment of the Appellants be reduced or should benefit assessments apply to the maintenance of this Municipal Drain?

2. Should the assessments of those lands identified by the Engineer as wooded or partially wooded be reduced?

3. Should ownership corrections be made regarding the Charles Desmarais and the N. and M. Desmarais properties?

4. Should the east part of Lot 1 in Concession 1 and the Broken Front Concession be included or excluded from this Report?

5. Should the Municipality proceed with the maintenance work on this Drain, as has been requested, prior to the adoption of the subject Engineer’s Report?

6. Should interior watershed boundaries be shown on this drain plan?

Evidence

Mr. Tom H. Marentette, P. Eng.

Mr. Marentette, an engineer with Dillon Consulting Limited who prepared the updated Assessment Report (the “Report”), advised that the Little Creek Drain is an open drain for its entire length of approximately 12 kilometres and is located in the geographic Townships of Tilbury West and Tilbury North. Its upstream end is located just east of the Village of Comber, near Essex County Road 46, and flows very slightly easterly at its extreme upstream end but generally northerly to find its outlet in Lake St. Clair, at Lot 11, being the Essex Region Conservation Authority property known as Tremblay Beach. The Drain has a total watershed area of 2,688 hectares (6,642 acres) and incorporates mainly agricultural land, but also residential land, commercial land, industrial land, numerous roadways (including Highway #401), railways and utility corridors.

Mr. Marentette testified that previous engineers’ reports on the portion of this Drain in Tilbury North were prepared in 1912, 1952, and 1973 and that the only previous report in Tilbury West was prepared in 1978.

Referring to his assessment rationale, Mr. Marentette explained that he analyzed the assessment schedules from the 1952, 1973 and 1978 reports to determine the percentage of the total assessment that was charged as “benefit” for each, discarded the 1952 figure as being too low, then determined the length of Drain within each of the former Townships and multiplied the percentage length by the percentage benefit to create a “blended” benefit assessment of 22%, which he considered applicable to the lands within 300 metres of the Drain for the entire length of the Drain. He then assumed a cost of $50,000 in order to quantify his assessments, assessing 22% or $11,000 as “benefit” to the lands, roads and utilities within 300 metres of the Drain in accordance with Sections 1 and 22 of the Act, and assessing $39,000 as “outlet” to all the lands, roads and utilities within the drainage area in accordance with Sections 1 and 23(1) of the Act. He indicated that the benefits to the lands within 300 metres of the Drain were that they could be underdrained directly to the Municipal Drain, that they would experience reduced flooding, that the underdrainage systems would function better and that they have frontage on the Drain, all of which result in a greater land use for these properties.

The Engineer made reference to a 1981 Brewer-Terry Drain decision of the Tribunal as a comparator.

Mr. Marentette further explained that, after the Report had been provisionally adopted at the Meeting to Consider, he prepared a revised assessment schedule due to an oversight regarding woodlots on various properties and it was his intention to have that revised schedule adopted by the Court of Revision but, unfortunately, that did not occur. Accordingly, he now requests the Tribunal order that this revised schedule apply.

Upon questioning, the Engineer indicated that his outlet assessments were calculated using the Todgham Assessment Method. He confirmed that the subject assessment schedule would be used only for maintenance purposes and not for any new works undertaken along the length of the Drain. He also indicated that he checked sub-watershed boundaries to confirm the exterior watershed boundary but he did not show these interior boundaries on the Plan.

Charles Desmarais, Roger Roy and Ron Lefaive

These three landowners represented the six Appellants. Mr. Desmarais was the main spokesman. The Appellants filed a comprehensive document of 23 pages of evidence and submissions with respect to their appeal.

Mr. Desmarais identified their properties in the downstream section of the Drain, that is, north of Lakeshore Road 303. He made the following points as they related to the definition of “benefit” in the Act:

• Underdrainage intensity has increased significantly since 1973 such that the volume and rate of flow of water from the combined upstream lands has far exceeded the previous rates;

• As shown on page 6 of their submission, the assessments proposed by the Engineer for the Appellants’ properties range between 2.32 and 6.20 times greater than their immediate neighbours;

• Using a land appraisal report dated August 12, 1996, the land adjacent to the Drain is valued at only 16% of the land distant from the Drain; therefore, land near the Drain has a lower market value, not higher;

• The land adjacent to the Drain is not easier to maintain. In fact, it is more difficult to maintain due to the high berms and shrub/weed/tree growth;

• Two of the Appellants also farm lands in neighbouring areas outside this watershed and do not see any increased production from the subject lands versus other lands;

• If the berms and banks along the Drain create an “improved appearance”, it is only because some owners undertake monthly maintenance;

• The lands of the Appellants do not have better functioning tile systems and cannot be ‘directly’ tiled to the Drain by gravity as all drainage systems adjacent to the Drain have to be pumped over the berms due to the high water level of the lake;

• There is no improved flow of surface water as all water from the upstream lands must pass through these downstream properties before the surface water from these lands can enter the Drain; and

• While the Appellants’ homes, barns and outbuildings are protected by the Drain and the berms, the east-west slope of the land is so little that the protection extends much farther than 300 metres and well into properties beyond theirs.

Mr. Desmarais referred to the paper entitled “Drainage Assessments Revisited”, which is an updated review of the Todgham Method of assessment calculation, authored some years ago by Engineers H. H. Todgham and E. P. Dries. In this regard, Mr. Desmarais claimed that the Appellants’ properties should not be assessed benefits in this Report for the reasons listed on page 8 of that paper, as follows.

• “for confining to a channel water from upstream lands which might otherwise spread over low parts of the property(s) in question”: This work of excavation and berming has already been done and paid for as a benefit by the subject lands under previous reports.

• “cutoff”: The natural flow of surface water in this watershed is predominately south to north which is the direction of flow of the Little Creek Drain; therefore, this Drain does not provide any cutoff. However, some of the tributary drains that flow east and west in this watershed do provide cutoff; for example, the Pinsonneault Municipal Drain;

• “removing and disposing of brush and dead trees and generally cleaning up the ditch both to increase its efficiency and improve its appearance”: This is maintenance work that the Town must do to maintain good flow for all of the lands in the watershed and not just the properties that front on the Drain.

• “re-grading the drain banks and repairing any erosion or wash-ins that may have occurred along the bank”: This, again, is maintenance work that the Town must do to maintain good flow for all of the lands in the watershed not just the properties that front on the Drain.

• “draining off the water of a swamp or slough and making the land pleasanter to live on or making it possible to farm”: This work has already been done and paid for as a benefit by the subject lands under previous reports and the 6’ to 8’ high berms do protect the low lands from high lake levels when they occur.

• “installing a pump to lower water levels in the drain …”: There are no pumps installed at the mouth of the Little Creek Drain. The water level in the Drain is the same as in Lake St. Clair.

Mr. Roy introduced topographic surveys completed on May 22, 2014 by a local drainage contractor, Beaulieu Contracting (Tilbury) Ltd. Mr. Roy described the survey, which was undertaken on his property and that of his neighbour LeCunff Farms Ltd. in Lot 12, Concession 1, relating it to the April 10, 2014 photos on page 16 of their submission and the exact location on the drainage report maps for the Drain filed as Exhibit 8. Mr. Roy testified that these elevations were taken along a private open drain that flows from the east to the west, terminating at an electric pumping station and that, at a point 1800 feet easterly of the toe of the berm beside the Drain on his property, the land is only 10 inches higher. This, he suggested, indicates that if the Drain and its 6’ to 8’ high berms benefit his property, then the Drain also benefits all the lands east of the Drain as far as the drainage area boundary. Mr. Roy also made the point that his land does not have direct access to the Drain as he has to pump his drainage water in order to get it into the Drain. Further, Mr. Roy reiterated the point made by Mr. Desmarais that the land in this drainage area slopes from south to north and is virtually flat in the east-west direction.

Mr. Lefaive then provided evidence with respect to elevations taken by Beaulieu Contracting (Tilbury) Ltd. on May 22, 2014 which were undertaken to the west of the Drain on his property in Lot 11 and that of his neighbour, Mr. Ponic, in Lot 10. Mr. Lefaive also introduced a photograph of the Drain taken May 22, 2014, at the location where the survey commenced. Mr. Lefaive testified that, at a point 670 metres (2200 feet) westerly of the toe of the berm beside the Drain on his property, the land is only 3 inches higher. This, he suggests, indicates that if the Drain and its 6’ to 8’ high berms benefit his property, then the Drain also benefits a much greater expanse of land to the west of the Drain than just the 300 metres determined by the Engineer, and perhaps all the lands west of the Drain to the drainage area boundary.

Mr. Roy testified that, in his analysis of the 1973 and 1978 engineers’ reports on the Drain, the area that was assessed for benefit extended to the limits of the drainage area boundary. He suggested that if Mr. Marentette was “blending” the benefit assessment percentages from these previous reports, he should also “blend” the approach to assigning benefit assessments within the drainage area.

Mr. Desmarais continued to present information from the Appellants’ submission document specifically relating to how the volume and rate of flow of water has increased over the last 50 years, especially from the upstream part of the watershed. This, he suggests, should increase the proportion of assessment levied to the entire drainage area and especially those lands in the southern part of the area that are at a higher elevation. He was of the opinion that if these outlet assessments were properly increased, it would result in lower benefit assessments to the lands of the Appellants.

Mr. Desmarais again referred to the assessment comparison table on page 6 of their submission in relation to the “fairness test” from the Todgham Method. He suggested this table illustrates the unfairness of applying benefit assessments to the lands of the Appellants as their total assessments range between 2.32 and 6.20 times higher than their immediate neighbours.

Mr. Desmarais made the point that all lands within the portion of the drainage area where work was undertaken were assessed benefit in the 1973 report.

Mr. Desmarais also pointed out that the property consisting of northeast part of Lot 12, Concession 1 and the southeast part of Lot 12, BF Concession, being a 50 acre parcel, was assessed benefit in the 1952 report and benefit and outlet in the 1973 report but has been omitted entirely in the current Report. Mr. Roy, who owns the neighbouring property to the west, also commented on this situation and testified that the subject property is protected from flooding by the berms along the Drain but does not use the Drain as an outlet as the underdrainage waters from this property are pumped to the north, directly to the Lake.

Mr. Desmarais reiterated Mr. Roy’s earlier point that, in their analysis of the 1978 Engineer’s Report on the Drain, the area that was assessed for benefit extended to the limits of the drainage area boundary, contrary to what is proposed in the current Report.

Mr. Desmarais summarized the Appellants case with the following arguments.

1. Considering the definitions of “benefit” in the Act and in the Todgham Method paper, the Appellants believe that the benefits to their properties are very small.
2. Using the “Fairness Test’ the Appellants argue that the benefit assessments to their properties are not fair and are not equitable.
3. Mr. Marentette’s method of determining benefit assessments using a 200 or 300 metre distance from the Drain and a frontage charge is far too subjective and does not take into consideration “benefit” as defined in the Act or as described in the Todgham Method.
4. Because the subject lands are relatively flat and flooding would occur in a much wider corridor than 200 or 300 metres each side of the Drain if the berms were breached, and because previous reports assessed the entire drainage area for benefit, the Appellants argue that benefit should be assessed to a much larger tract of land than is currently proposed.

Given the above, Mr. Desmarais, on behalf of the Appellants, requested the following relief from the Tribunal:

1. The benefit portion of the assessment should be reduced to 8% as it applies to the lands of the Appellants.

2. The area of land assessed for benefit should be increased to accurately reflect the protection provided by the berms.

3. Outlet assessment values should be increased equitably to the entire watershed to compensate for decreases in benefit assessment.

4. The equivalent area of the Charles Desmarais property, being roll number 700-050-00, the north part of Lot 11, Concession 2, should be reduced for assessing both benefit and outlet due to part of the subject property being wooded, which was overlooked in the Report.

In answer to a question from the Tribunal, Mr. Desmarais advised that the wooded area that seems to have been overlooked is approximately 7 acres in total, half of which is on his property and half of which is on the VonFlotow property to the east. This wooded area is not shown in green on Exhibit 8.

Jill Fiorito, Drainage Superintendent

Ms. Fiorito testified that the previous Drainage Superintendent called a meeting of landowners on this Drain on April 14, 2011 to advise that maintenance work on the Drain had been requested, but it was felt that the old assessment schedules were not applicable. At that meeting, it was agreed that a new report should be obtained in accordance with Section 76 of the Act. Thirty-six people attended the meeting.

Ms. Fiorito filed a Response Report from the Lakeshore Fire Department dated March 13, 2013, regarding an illegal fire which Mr. Roy was using as a means to ‘clear’ the Drain embankment. After discussions between Ms. Fiorito and Mr. Roy, Mr. Roy submitted a request letter dated March 26, 2013 for regular Drain bank maintenance, at a suggested frequency of least 3 times per year.

Upon questioning, Ms. Fiorito explained the drain maintenance process in the Town of Lakeshore and advised that the Town’s policy is to bill the cost of maintenance out to the landowners every year rather than using the provisions of Section 75(3) of the Act.

Ms. Fiorito was of the opinion that the majority of assessed owners want a new assessment schedule for maintenance purposes and are satisfied with the proposed Report.

Mr. Tom H. Marentette, P. Eng.

In response to a comment from the Appellants about input into his final Report, Mr. Marentette advised that, in this case, he did not feel that a second site meeting was appropriate as it was up to him to make his decisions regarding a new assessment schedule. It was not a matter for a ‘community decision’. He indicated that the landowners had their opportunity for input at the Meeting to Consider the Report and at the Court of Revision.

Mr. Marentette advised that he did not undertake any field survey work for this project as he determined that it would be too tedious and too costly.

Upon questioning, Mr. Marentette confirmed that he had used the Todgham Method to calculate the outlet assessments, but he could not explain the discrepancies in those assessments as shown on the comparison chart provided by the Appellants, specifically, approximately 60 cents per acre between the Lefaive property and the neighbouring property, and approximately 90 cents per acre between the C. Desmarais property and the two neighbouring properties.

Findings

1. Should the Benefit Assessments of the Appellants be Lowered and/or Should Benefit Assessments Apply to the Maintenance of a Municipal Drain?

After hearing the submissions of the parties and reviewing the evidence, the Tribunal concludes that the Engineer’s method of assigning benefit assessments relied too greatly on previous reports rather than making his own objective determinations.

The arguments put forth by the Appellants regarding reducing the amount of benefit assessment in relation to the definition of “benefit” in the Act and in the Todgham Method, the assessment of benefit over the entire affected drainage area in two previous reports, and their evidence concerning the very flat topography within the drainage area (in the east-west direction) were very compelling and logical.

In his paper entitled “Drainage Assessment Revisited”, Mr. Todgham does not specifically address assessments for maintenance purposes; however, the paper does contain a number of statements that can be applied to maintenance or repair projects. These are quoted in the following paragraphs, with the Tribunal’s comments following each one.

“To assess for Benefit there must be a particular benefit to the lands assessed, not just some probable, general benefit to all of the lands in the locality.” A repair project does not provide any particular benefit to specific land – it is of value to all the land within the drainage area.

“It therefore becomes a matter of determining the relative value of a project to each property that is to be assessed.” A repair project is of value to all the lands within the drainage area and not of any extra value to the lands adjacent to the drain.

“Is it fair to all concerned?” Are the affected properties “…being fairly charged for the value they will derive?” Again, a repair project is of value to all the lands within the drainage area and not of any extra value to the lands adjacent to the drain.

“You cannot assess a property for Benefit for work done some distance downstream …” The assessment schedule proposed in this Report would result in this occurring if a repair was done in the downstream part of this Drain. All the properties upstream of the repair would be assessed based on both benefit and outlet.

Benefit assessments are to be made “…on the basis of ‘Benefit to be Derived”. Lands adjacent to the Drain will not derive more value from a repair than those lands more distant from the Drain.

A drain repair project simply maintains the existing outlet for all the lands within the drainage area. It does not provide anything new that could be considered as a benefit to any particular property.

According to the definition of “benefit” in Section 1 of the Act, benefit assessments apply to new work or improvement work where it can be easily justified that the construction, in fact, “… 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 …”. However, once that initial benefit has been paid by those lands, they should not have to pay a higher assessment every time it is maintained or repaired; that is, those lands should not have to pay over and over again for those initial benefits. Using the outlet assessment schedule is the fairest way to charge properties for maintenance and repair because, as stated in Section 23(3) of the Act, it is “…based upon the volume and rate of flow of the water artificially caused to flow … into the drainage works from the lands and roads …” as well as the length of the drainage works used by those lands and roads.

For the reasons mentioned above, when both a benefit assessment schedule and an outlet assessment schedule exist within a report prepared under Section 4 or Section 78, it seems most reasonable that only the outlet assessment schedule be used for maintenance purposes, after the new or improved drain has been constructed. In this case, the Engineer has prepared a benefit schedule that totals $11,000 and an outlet schedule that totals $39,000.

The Tribunal does not find the 1981 Brewer-Terry Drain Decision to be comparable as the report under consideration in that hearing was an improvement report, prepared under Section 78 of the Act, wherein the appellant’s lane crossing was being extended. It was not a report prepared under Section 76 of the Act.

Accordingly, the Tribunal agrees with the Appellants that, given the facts of this case, benefit assessments should not be considered when apportioning assessments for maintenance.

2. Assessment Revisions due to Woodlots

In his evidence, the Engineer advised the Tribunal that he had overlooked the fact that some properties contained woodlots, or bush areas, when making the assessments contained in the Report dated November 25, 2013. He advised that this information came to his attention at the Meeting to Consider the Report on January 6, 2014 and, further, that after that meeting and before the Court of Revision, he consulted newer aerial photography, and prepared a Revised Schedule of Assessments which was presented at the Court of Revision on March 3, 2014. Unfortunately, the adoption of this Revised Schedule was overlooked by the Court of Revision. This Revised Schedule was not introduced as an Exhibit during the hearing; however, it is our understanding that the affected properties were shown in a green colour on Exhibit 8. The Engineer requested the Tribunal to order that this Revised Schedule apply.

In his evidence, Mr. Desmarais advised that a woodlot of approximately 7 acres or 2.8 hectares was overlooked in this revision and was not shown on Exhibit 8. This woodlot is located partially on his property, being the north part of Lot 11, Concession 2, and partially on the H. Vonflotow property, being the north part of Lot 12, Concession 2. No evidence to the contrary was provided by the Engineer.

Since establishing “equivalent areas” is an important part of the Todgham Method of assessment, and since Mr. Marentette testified that he applied a land use factor of 0.5 to woodlot areas when calculating his outlet assessments, the Tribunal agrees that the Revised Schedule should include the approximate additional 7 acre area affecting the north parts of Lots 11 and 12 in Concession 2.

3. Ownership Corrections

Mr. Desmarais provided evidence that there are some errors in ownerships affecting some of his property and that of N. and M. Desmarais. These errors shall be corrected on the Revised Assessment Schedule.

4. Exclusion of the East Part of Lot 12 in Concession 1 and the Broken Front Concession

Based on evidence provided by the Appellants, and the fact that this property was assessed in the 1952 and 1973 Reports, the Tribunal agrees that this property should have been included in the drainage area for this Report. The evidence is that the berm along the east side of the Drain protects this property from flooding at times of high lake levels and at times of high flow in the Drain. However, it is also understood that this property is located at the extreme downstream end of the Drain and that both the surface and subsurface waters that flow from it do not enter the Drain but are pumped directly to Lake St. Clair. Accordingly, if it were to be included in the drainage area, it would be assessed at a very low amount.

Based on the facts that the owner of the subject property was not notified of any of the proceedings regarding this project, and that, if it were included within the drainage area, the assessment to it would be very low, and that its exclusion will have very little effect on the assessments to other properties, the Tribunal concludes that this property should not be added to the drainage area.

5. Outstanding Requests for Maintenance of the Drain

Evidence provided by Ms. Fiorito and Mr. Roy indicates that there have been requests for maintenance of this Drain outstanding since prior to mid-April 2011. While the Tribunal understands that the Town would prefer to have the new Maintenance Assessment Schedule that would result from this Report available to it in order to assess maintenance costs out in a more equitable manner, the maintenance of this Drain is critical to all of the lands in the drainage area and should not be delayed, especially when the berms require maintenance up to three times per year. Given the authority provided under Section 74, 75 and 79 of the Act, the Tribunal directs the Town to proceed with the required maintenance work.

6. Interior Watershed Boundaries to be Sown on the Drain Plan

This issue was raised at this hearing by the Tribunal. The Todgham Method recommends that interior watershed boundaries be shown on the plan of a drain as it is most important to know how the water from the various parcels of land flows to a drain in order to properly implement the assessment process. This information is also quite helpful to the drainage superintendent when determining what lands should contribute to the cost of maintenance work on only a section of a drain, as the entire schedule applies only when work is undertaken on the entire length of a drain.

The Tribunal finds that such should be done in this case.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

1. The appeals by Marie and Marcel Lefaive, Marie and Ronald Lefaive, Roger Roy, Claude Brévard, Desmarais Family Farms, and Charles Desmarais are granted in part.

2. The Engineer shall revise “Schedule C” – Schedule of Assessment for future maintenance taking into account the following considerations:

a) incorporating all forested areas that were previously omitted;

b) correcting names of land ownership regarding the C. Desmarais and the N. and M. Desmarais properties;

c) deleting the columns entitled “Special Benefit”, “Benefit”, and “Outlet” and creating one column only entitled “Maintenance Assessment Schedule” which shall be based only on the revised outlet assessments, which will total $39,000.

3. The Town of Lakeshore shall forthwith undertake all of the maintenance work on the Drain that is currently requested, or as may be requested prior to the third reading of the Bylaw adopting this revised Report, and shall accumulate the costs as per section 75(3) of the Drainage Act, and assess them out in accordance with the new maintenance assessment schedule once it is adopted.

4. The Engineer shall add the interior drainage area boundaries to all of the Plans included in the Report for this Drain.

5. There be no order as to costs and all parties are responsible for their own costs.

Dated at Tecumseh, Ontario this 6^th^ day of August, 2014.