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:
Centre Dingman Creek Drain Branch “D”
Municipality of Thames Centre
Centre Dingman Creek Drain Branch “D” (RE) 2014 ONAFRAAT 29
STATUTE:
Drainage Act
HEARING:
October 29, 2014
November 10, 2014
2014-29
NEUTRAL CITATION:
2014 ONAFRAAT 29
Centre Dingman Creek Drain Branch “D”
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: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Gwen Brady, Dorchester, Ontario; Marcel Meyer, Dorchester, Ontario; and Ron Smith, Mossley, Ontario under Section 48(1) and 54(1) of the Drainage Act from the Engineer’s Report and from the decision of the Court of Revision; and by Clifford Locker, Mossley, Ontario under Section 54(1) of the Act from the decision of the Court of Revision on the Centre Dingman Creek Drain Branch “D” in the Municipality of Thames Centre.
Before: Jeffrey Hewitt, Vice-Chair; Edward Dries, P. Eng, Member; Tim Mousseau, Member
Appearances:
Clifford Locker – Appellant
Gwen Brady – Appellant
Jeff Brady – son and representative for Appellant
Marcel Meyer – Appellant
Ron Smith – Appellant
Steve Bloetjes – Witness for Gwen Brady and Marcel Meyer
Mike DeVos, P. Eng. – Spriet Associates, Engineer who prepared the Report
Dennis Shand – Drainage Superintendent for the Municipality of Thames Centre
DECISION OF THE TRIBUNAL
This hearing was held in the Municipality of Thames Centre (the “Municipality”), in Dorchester, Ontario on October 29, 2014. The Engineer’s Report dated February 28, 2014 for the Centre Dingman Creek Drain Branch “D” (the “Report”) was prepared by Spriet Associates (the “Engineer”) and signed by J.R. Spriet on behalf of Mike DeVos, P. Eng.
Margaret Lewis, 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 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 September 3, 2014.
Overview
Spriet Associates Limited prepared the Report dated February 28, 2014. Mr. Mike DeVos, P. Eng., a professional engineer with that firm was designated under Section 8(2) of the Drainage Act with overall responsibilities for the Report. The Report was signed by J. R. Spriet for Mike DeVos., the plans were signed and stamped by Mike DeVos.
The Report on the Centre Dingman Creek Drain, Branch “D” was prepared pursuant to a petition under Section 4 of the Act and a request under Section 78 for the repair and improvement of the existing drain. The petition was identified to be valid under Section 4(1)(c).
The proposed works involves the repair and improvement of the Centre Dingman Creek Drain Branch “D” from its outlet into Centre Dingman Creek Drain Branch “A” in PtN½ Lot 15, Con. 3 in the former Township of North Dorchester upstream to the head of the drain on the north side of Mossley Drive in the Community of Mossley. The current governing by-laws on this reach of the drain are based on reports prepared by Howard Gibson, dated July 17, 1961 and John Spriet, dated October 9, 1990. Repair and improvement on this reach is authorized under Section 78.
The Report recommends the removal and replacement of this reach, which is comprised of tile ranging in size from 150 mm (6”) diameter at the upstream end to 400 mm (16”) diameter at the outlet through the agricultural lands with new 450 mm (18”) diameter tile at the upstream end to 675 mm (27”) diameter tile at the outlet. The old tile would be abandoned and removed unless the owner requests it be left in place as a private header tile. This tile was designed using the Drainage Coefficient method as recommended in the Drainage Guide for Ontario to a standard of 25 mm per 24 hrs.
The Report proposes a shallow swale on the Meyer property (Roll 060-039-20) in the upper part of this reach to contain and convey excess surface runoff from the upstream urban lands to the historic overland flow path on the Meyer property. The swale has a length of 42 m.
The upper portion of this reach constructed under the Spriet report of 1990 was identified to have been altered since its original construction. Storm water retention components of this design were no longer functional. The proposed Report recommends the removal of the closed part of this drain and the installation of a new 525 mm (21”) diameter sewer pipe to the south side of Mossley Drive and a 450 mm (18”) diameter sewer pipe crossing Mossley Drive.
The proposed works also involves the reconstruction of the Mossley Branch of the Dingman Creek Drain extending from its outlet into the Centre Dingman Creek Drain Branch “D” on the south side of Mossley Drive to its head at a point in Pt.S½ Lot 13, Con. 2. The proposed works on this reach also include the relocation and upstream extension of the Mossley Branch and the construction of several new branch drains along the north and south sides of Mossley Drive. The current governing by-law on this reach of the drain is based on a report prepared by W. J. Bartlett dated October 19, 1981. The relocation of the existing drain, upstream extension and new branches were all authorized on petition under Section 4.
The Report found it necessary to reconstruct the Mossley Branch Drain on a different alignment as was identified in the governing by-law as it had been relocated some time in the early 1990s. It appears that the modifications to the Mossley Branch Drain were not authorized by the Municipality. It was further found that an upstream extension of the Mossley Branch Drain was necessary to intercept surface water flows from the agricultural lands north (upstream) of the urban lots.
The reconstruction of the Mossley Branch Drain and the new construction of the various branch drains along the north and south sides of Mossley Drive were designed to contain and convey the peak runoff generated from a storm event having a frequency of occurrence of one in two years.
Throughout the entire length of the work, the Report provides allowances under Section 29 and 30 to the privately owned lands on which the drainage works was to be constructed.
The total project cost is estimated to be $549,900. A modified “Todgham Method” was used to calculate the distribution of assessments. A detailed assessment breakdown of each distinct reach of the drain was provided.
Issues
Section 48(1)(a): Are the benefits to be derived from the drainage works commensurate with the estimated cost thereof as outlined in the appeals received from G. Brady, M. Meyer and R. Smith?
Section 48((1)(b): Should the drainage works be modified on grounds as outlined in the appeals received from G. Brady and M. Meyer?
Section 48(1)(c): Is the compensation and allowances provided to the M. Meyer property inadequate?
Section 48(1)(c): Should R. Smith be compensated for the enclosed ditch he installed in 2000?
Section 54(1): Should the assessments to the properties of G. Brady, M. Meyer, R. Smith and C. Locker be lowered?
Evidence
Mike DeVos, P. Eng.
By way of an overview provided to the Tribunal at the commencement of the hearing, Mr. DeVos stated that the works were initiated under Section 4 of the Act in order to address drainage issues within the urban area referred to herein as the Community of Mossley (Mossley). Mossley has developed as a small urban community in the upper reach of an agricultural watershed. Ponding on the residential lots and within the roadside ditches was reported, observed and documented. Developed lots on the north side of Mossley Drive were being flooded by surface runoff entering onto the lots from agricultural lands north of the lots.
Mr. DeVos stated that these lands were originally served by the Mossley Branch Drain which was constructed in 1981. However, at some point after its construction it was relocated and damaged to a point where it was not functioning properly. There is no evidence to suggest that the modifications on this drain were carried out under a by-law under the Act.
Mr. DeVos gave evidence that the outlet for any drainage improvements in Mossley would be by means of improvement to the Dingmans Creek Centre Branch “D” which is a Municipal Drain constructed under a report in 1961. This is a tile drain consisting of concrete tile ranging in size from 150 mm (6”) to 400 mm (16”). The tile is designed to an agricultural standard drainage coefficient of 3/8” of runoff per 24 hours. He confirmed that the upper reach of this drain within the urban area of Mossley was reconstructed under a report in 1990, which included storm water management features. However, these features are no longer evident or functional.
Mr. DeVos stated that he attended several meetings with the residential lot owners in Mossley as well as the agricultural landowners downstream. As a result of these meetings, he concluded that the residential lot owners were requesting a drainage system that would capture surface runoff onto their lands from the agricultural lands to the north, and reduce or eliminate flooding on the lots and in the road ditches in front of the lots. He understood that they wanted the new drains to be installed near lot lines so as to minimize impacts on their lots and they did not want open road ditches. Further, his understanding was to design a drainage system to a current, reasonable, urban standard. Consequently, he designed the drainage system to accommodate the runoff generated from a one in two year storm event.
He stated that some of the agricultural property owners requested that, if improvements to the drainage system in Mossley were recommended, consideration be given to improving the capacity of the tile through the agricultural lands to a current, reasonable standard. Consequently, he designed the tile in the reach through the agricultural lands to a 25 mm (1”) drainage coefficient.
Regarding the assessment, Mr. DeVos confirmed that he applied a modified “Todgham” method in developing the assessments. He confirmed that the cost of each distinct reach of the drain, as well as the several branches, was determined and assessed separately only to those lands affected by that particular reach or branch. The cost within each reach or branch was apportioned as a benefit, outlet or special benefit as set out in the Act. He gave the following evidence regarding the assessment:
The benefit assessment against the lands in the most downstream reach (Brady, DeKlein) represents 40% of the total section cost. 60% is assessed as outlet against the upstream lands.
The outlet assessments against the urban lands were increased by a factor of two to represent the potential increase in runoff as compared to agricultural lands.
The outlet assessments against the roads were increased by a factor of 3.75 to represent the potential increase in runoff as compared to agricultural lands.
The outlet assessments within each reach were adjusted by a location factor to give consideration to the length of drain used by each property.
The cost related to constructing the drain to an urban standard that is slightly higher than the agricultural standard was all levied against the urban lands.
The cost of the swale on the Meyer property was entirely assessed against the upstream urban lands as it is a feature required to allow proper function of that system.
All agricultural lands were assessed benefit on the basis of the increase in the capacity of the system from a 3/8” coefficient to a 1” coefficient. This will reduce overland flows and reduce erosion.
The benefit assessment on the Meyer property was reduced by $2,500 to account for loss of the storm water management features that had been included in the 1990 report and which affected his property.
A cost of $77,100 was calculated as the estimate to reconstruct the Mossley Branch Drain that had been destroyed. This entire cost was assessed as a non-prorated special benefit against the Municipality of Thames Centre.
The residential lots along the north side of Mossley Drive were assessed for direct benefit for the portion of the drain or branch fronting their property and to which they discharge, as well as a cut-off benefit for the portion of the drain at the rear of their lots which intercepts flow from the agricultural land to the north.
The benefit assessment against Mossley Drive increased by $11,000 over and above normal benefit assessment for the reach along the road.
The benefit assessments for all branches of the drain along Mossley Drive were heavily weighted toward the road. 65% of the reach cost was assessed against the road and the remaining 35% of the cost was assessed against the adjacent and upstream properties.
Clifford Locker
Mr. Locker stated that he paid the cost for the Mossley Branch Drain when it was originally constructed under a report in 1981. He indicated that he has a problem with water ponding along the road in the southeast side of his property. He understands that the road authority intends to install a catch basin and connection to the proposed new drain to address this problem when the new drain is constructed.
Mr. Locker gave evidence to the fact that he sold the property adjacent to the west limit of his lot to a contractor in the early 1990s. As a condition, Mr. Locker paid the contractor to relocate the Dingman Creek Drain Branch “D”, which crossed the property, to a new alignment southerly along the east limit of this property and then westerly along the north side of Mossley Road to the original Mossley Drive road crossing as set out in the original report. He said that he was told by the contractor that all municipal approvals had been received although he never saw any documents to confirm this. He stated that this re-aligned drain never worked properly.
It is Mr. Locker’s position that he should now not have to pay for the drain a third time and that the Municipality should be responsible for all costs of the reconstruction of the drain.
Gwen Brady and Jeff Brady
Gwen Brady offered evidence related to the open ditch on her property and the assessment against the property for the reconstruction of the Centre Dingman Creek Drain Branch “D”. She stated that she was not in a position to pay the assessment shown in the Report and did not want the cost put against her land in taxes. She said that her property is always assessed the largest portion of all drainage works that affect the property and she must still spend money to fix wash-ins and erosion along the drain.
She expressed the opinion that upstream improvements in Mossley will result in more water being brought to her lands and this will result in more problems.
Mrs. Brady’s son, Jeff, stated that he has lived in this area all of his life and has observed flood events over the years. He expressed concern about the inclusion of additional area from the Anderson property to the drain. He also stated that he has observed ponding of water on the Wilson property. However, he is of the opinion that the open ditches and swales within Mossley are working properly. He confirmed that the Brady farm has no systematic tile system but has good natural drainage. He stated that the existing municipal drain tile and grassed waterway through the property is sufficient for their needs and improvements are not necessary. He stated that the new drainage system would be of no benefit to their property and would be more damaging as the grassed waterway would be widened and lands currently used for agricultural production would be lost. His stated preference is to do nothing with the drain. He does not believe that the Drainage Act should be applied to this drainage problem.
Steve Bloetjes
Mr. Bloetjes is a lifelong farmer in this area, who currently rents and farms the Brady property. He stated that there is no sub-surface drainage on this farm and, as a result, it is usually tilled and planted later in the spring than other tiled land that he farms in the area. However, in his opinion, the natural drainage on the farm is currently adequate.
Mr. Bloetjes questioned the need to replace the existing municipal drain tile. He stated that the existing tile should remain serviceable for many more years and, if additional capacity is required, it should be twinned.
Marcel Meyer
Mr. Meyer advised that he has owned and actively farmed his property for decades. He acknowledges that there is a problem with flooding and ponding of water in Mossley but contends that some culverts were installed too high and the road ditches are in poor condition. He stated that the only work that should be done is the re-instatement of the drains in Mossley that were constructed under previous by-laws including the repair of the storm water management components of these drains. He confirmed that he would rather have the storm water management components of the 1990 report repaired rather than accept the $2,500 credited to his benefit assessment for the new works.
Mr. Meyer acknowledged that benefits will accrue to the residential lots and their relative values will increase. However, in his opinion, this benefit to the residential lots will come at a cost to the agricultural lands. He stated that the drain should have been assessed as a block assessment against the residential lands.
Mr. Meyer opposes the construction on his property of the proposed grassed waterway. In the alternative, if it is required, he would prefer it to be constructed along the south limit of the residential lots. He contends that there is no significant surface erosion on his property.
Mr. Meyer confirmed that the current drain through his property is a 150 mm (6”) diameter tile. He confirmed that his farm is systematically tiled and uses this main as its only outlet. He stated that the existing tile is of suitable capacity for his use. He stated that he was not in favor of replacing the tile and, if additional capacity was required, it should be twinned with a 250 mm (10”) diameter tile. He further stated that the 15 m working easement as shown on the construction drawings was inadequate and should be increased to 20 m.
Mr. Meyer stated that the value of the allowance for the right of way under Section 29 was arbitrary and too low. He also stated that he should receive additional allowances under Section 30 for providing an access to the construction site.
Mr. Meyer stated his objection to the change in tile size from a 525 mm (21”) diameter tile to a 450 mm (18”) diameter at the downstream limit of the urban lands. He contended that this will result in overland flow on his property. He also expressed the opinion that the upstream lands in Mossley will drain first before his tile will be serviced by the drain.
Regarding the assessment, Mr. Meyer stated that the benefit assessment against all of the agricultural lands should be reduced and this amount be assessed to and paid by the Road Authority. He also stated that the entire project cost should not be prorated between the various sections based on the estimate of cost shown in the Report as he believes that the cost of the works in the urban area will be much higher than estimated. This would then result in the agricultural lands bearing a higher portion of the cost. He expressed the opinion that the cost is not commensurate with the benefit to be derived on his property.
Steve Bloetjes
Mr. Bloetjes also does custom farm work on the Meyer property and has done so for many years. He stated that although he has seen surface flows and erosion on the property, it is effectively controlled. He believes the 150 mm (6”) diameter tile to be sufficient although he does not know the current standard of drainage it provides relative to provincial standards.
Ron Smith
Mr. Smith confirmed that he has lived on his property since 2000. He stated that he paid the cost to enclose the road ditch across the frontage of his property with a 300 mm (12”) diameter pipe. He does not believe that he should pay any part of the cost of the proposed works and should be compensated for the drainage work he paid for in 2000.
Mr. Smith admitted that the proposed work would provide an outlet for eaves troughs or sump pumps in the community. He has observed ponding in the ditches after heavy rains although the system eventually removes the water. He believes the ditches could be filled in. He stated that there are other ways to solve the drainage problem in the community but offered no alternatives.
Mike DeVos, P. Eng.
Mr. DeVos confirmed that the design of the proposed new system was based on a blend of urban storm sewer design and agricultural drainage design. The storm sewer design standard of a one in two year storm is the minimum recommended. The agricultural drainage design of 25 mm drainage coefficient is somewhat below the 35 mm drainage coefficient recommended in the Ministry of Agriculture Food & Rural Affairs guidelines. He stated that he was satisfied that the application of his design would provide significant drainage improvements while minimizing costs. He confirmed that the agricultural lands were only assessed that portion of the cost related to the increased capacity of the new tile. The estimated cost related to the replacement of the existing tile with the same size was levied as an Outlet assessment against the upstream lands.
With regard to the assessment appeal brought by Mr. Locker, Mr. DeVos confirmed that no upstream owner was assessed any portion of the cost to reconstruct the original Mossley Drain Branch that had been modified or relocated. This cost was levied entirely against the Municipality of Thames Centre. Mr. DeVos also confirmed that the benefit assessments against those lands that were originally assessed for the Mossley Drain Branch were lowered to give consideration to this issue. As a result, the benefit assessment against the Locker property is $70. The vast majority of the Locker assessment is in outlet liability with respect to sharing of the cost to reconstruct the downstream reach of the drain.
With regard to the works on the Brady property, he confirmed that no grassed waterway was specified and the existing condition would not change in that regard. He did not specify that the exiting tile be maintained as part of the scheme as it is approximately 60 years old, may become a maintenance issue, and necessitated costs related to cross connection to any new main. Further, it is so small that it does not materially reduce the size nor cost of the new tile required to twin it. He believed it to be more practical and economical to install a single new tile of adequate capacity.
Mr. DeVos testified that he had discussed possible design alternatives with Mr. Brady that involved increasing surface water flows over the Brady property. He understood these alternatives to be rejected by Mr. Brady. He also confirmed that the owners of the neighbouring DeKlein properties, which comprise the largest single land ownership portion of the subject drain, requested the tile be designed to current provincial standards.
Mr. DeVos testified that the open drain into which the new drain is to outlet constitutes a sufficient outlet as defined in the Drainage Act. He is firmly of the belief that the new tile drain is a benefit to the Brady lands as it will contain and convey a much higher volume of water across the property and reduce surface flows and erosion.
With regard to the works on the Meyer property, Mr. DeVos testified that the storm water management features implemented in 1990 were designed to suit the 150 mm (6”) diameter tile that provided outlet for them. The new design no longer requires these features. However, he believes it fair to provide Mr. Meyer a credit against the benefit assessment levied to his property for the elimination of these features and the realization that they were not maintained as Mr. Meyer had previously requested.
Mr. DeVos acknowledged that the capacity of the urban storm sewer is slightly higher than that of the agricultural tile drain at their interface on the Meyer property. As a result, the catch basin at the junction of these two drains and the shallow swale on the Meyer property that will convey excess flows away from this catch basin is a critical part of the design of the system. While he admits that surface flows will emanate from this catch basin when the flows exceed the design capacity of the drains, it will occur much less frequently and with less severity than in the current state. Further, he argued that the swale is very short (42 m) and very shallow (approx. 200 mm); it is not intended as a grassed waterway and can be tilled and planted, and there is no particular advantage to adjusting its alignment.
Mr. DeVos stated that the existing 150 mm (6”) diameter tile was not a sufficient outlet for the drainage improvements proposed in Mossley. It was necessary to reconstruct the entire drain to achieve a sufficient outlet in order to comply with the Act. He expressed the opinion that the existing tile was too small and of such an age that it was neither practical nor economical to incorporate it into the new drainage works.
Mr. DeVos outlined the methodology applied to calculate the allowances provided to the properties under Section 29 of the Act. Commencing with an estimated land value of $13,500 per acre, he determined that the existence of the tile drain would have a marginal impact on the use of these lands and recommended that they be compensated at 15% of their estimated value or $2,025 per acre ($5,000 per ha.). This value was then applied to the area calculated by the product of the length times the width of the working corridor through each property. He also confirmed that this land allowance was not previously provided in the 1961 report and it is proper to include it under this Report. Had they been previously compensated, they would not now be eligible again.
With regard to the working corridor, Mr. DeVos expressed confidence that the 15 m corridor specified is sufficient for this size and depth of tile installation. He outlined the methodology for determining the damage allowances provided under Section 30 ($3,613/ha). He also confirmed that no allowances are offered for the use of an access corridor to the working site. He offered that this was common practice as most landowners have driveways within the farms that contractors can use at no inconvenience or loss to the property owners.
Mr. DeVos expressed the opinion that increasing the size of the tile main into which the private tile drains on the Meyer property discharge will significantly increase the efficiency of these drainage systems. Further, he stated that the property will also receive a benefit from the frequency and severity of surface flows over the property.
With regard to the works on the Southeast Branch which will affect Mr. Smith, Mr. DeVos pointed out that the road drain enclosure across the Smith property had no impact on the operation of the existing drain nor could it be practically incorporated into the new works proposed. He confirmed that the new drain would provide points of direct outlet for surface water from the lands and the road into a new drain of significantly greater capacity than the existing drain. The road ditches would be filled and graded to the catch basins. He stated that the Road Authority was assessed the majority of the cost of this branch in benefit (65%). The majority of cost levied against the Smith property related to the outlet costs generated from increasing the size and capacity of the outlet drain through the agricultural lands.
Dennis Shand
Mr. Shand offered his testimony as the Drainage Superintendent for the Municipality of Thames Centre. He provided a series of pictures which were taken after a severe rainfall event in October 2011 that illustrate a significant amount of localized flooding and surface water flows. He confirmed that drainage in this community has been a problem for many years and he has fielded many complaints and has observed many flood events.
Mr. Shand acknowledged that he was requested on several occasions to carry out works of maintenance on the existing drains within Mossley. However, he discovered that the existing drains had been relocated or modified in years past without benefit of a report. Consequently, he was of the opinion that it was impractical, if not impossible, to repair the drains to the specifications set out in the governing by-law. He confirmed that he recommended to council that drainage improvements be carried out in Mossley under the Drainage Act process. He stated that new petitions under Section 4 were sought in order to provide the authority to undertake the work and develop a comprehensive drainage system that would address the needs of the private landowners and the road in the community.
Findings
Appeal by Clifford Locker
Mr. Locker has filed an appeal under Section 54(1) seeking to have his assessment reduced. Mr. Locker’s assertion that he paid all the cost of the original Mossley Branch Drain was proven not to be accurate based a review of the 1981 report governing that work. He also claimed to have paid the cost of relocating the drain in the early 1990s, the construction of which may have contributed to the poor operation of the drain since that time. The Tribunal does not agree with the assertion that the Locker assessment should be reduced on the basis of these arguments.
Mr. DeVos gave clear testimony as to the methodology for developing the assessment against the Locker property and provided a detailed calculation of the assessment. The Tribunal accepts the evidence of the Engineer confirming that the Locker property is not assessed any of the estimated costs related to the reconstruction of the original Mossley Branch Drain. The Tribunal also accepts that a benefit will inure to his property by virtue of the construction of a new drain, to current standards, immediately adjacent to the west limit of his property. The benefit assessment is very low relative to that of neighboring properties. The outlet assessment reflects a proportional share of the cost to increase the tile size downstream to the outlet. No evidence was provided to suggest either the benefit or outlet assessment was incorrect.
The Tribunal finds the assessment rationale logical, equitable, fair and compliant with the Act. The Tribunal therefore denies the appeal of Clifford Locker under Section 54(1).
Appeal of Gwen Brady
Gwen Brady filed an appeal under Section 48(1) and Section 54(1). With regard to the assessment, the Tribunal has reviewed the Report and the evidence of the Engineer, including his assessment rationale and detailed calculations as it relates to her property. The Tribunal accepts the Engineer’s evidence that the new drain offers a significant increase in the capacity of the drain to more effectively contain and convey surface and subsurface flows from the upstream lands through her property to an outlet. By definition, this alone constitutes a benefit under the Act.
The Tribunal finds the assessment rationale logical, equitable, fair and compliant with the Act. The Bradys brought no evidence to suggest that the Engineer erred in his method, logic or detailed calculation of the assessment. The Tribunal therefore denies the appeal of Gwen Brady under Section 54(1).
The Brady appeal under Section 48(1) relates to the argument that the benefit to be derived from the work is not commensurate with the cost and that the drain should be modified. The Tribunal accepts the evidence of the Engineer and the Drainage Superintendent as to the ability of the open drain into which the Centre Dingman Creek Branch “D” outlets to provide a sufficient legal outlet. The Tribunal rejects the Bradys’ evidence that the flows from the proposed work will cause flooding, damage and erosion to their property.
The Engineer’s evidence is that the new tile drain was designed to a standard that is within provincial guidelines for agricultural drainage systems; provides sufficient legal outlet in accordance with Section 15 of the Act for the drainage improvements in Mossley; will reduce the extent and frequency of surface water flows across their property; and, was assessed in a manner that more heavily weighted the costs toward the upstream lands. The Tribunal accepts this evidence and is convinced that drainage improvements in the watershed upstream of the property practically and legally necessitate the improvement of this reach through the Brady property. Doing nothing to improve the drain across the Brady property is not a reasonable option.
The Tribunal accepts the evidence of Mr. Bloetjes as to the normal practice to commence tillage of this property later in the spring because the property is not tile drained. The new drain will provide a benefit to this property over the lifetime of the drain and allow the property to be more effectively drained in the future as an outlet for private systematic drainage systems. This will improve the productivity of this property.
The Tribunal denies the appeal from Gwen Brady under Section 48(1).
Appeal of Marcel Meyer
Marcel Meyer filed an appeal under Section 48(1) and Section 54(1). With regard to the assessment against the Meyer property, the Tribunal has reviewed the Report and the evidence of the Engineer, including his assessment rationale and detailed calculations as it relates to his property. Mr. Meyer requests that the benefit assessment against his property be reduced and assessed against the Road Authority. No evidence was brought as to quantify the value of this reduction. The Tribunal accepts the evidence of the Engineer that the Municipality has been assessed all costs related to the reconstruction costs of the Mossley Branch Drain and that the benefit assessments of all branches in Mossley are heavily weight against the Road.
The Tribunal is satisfied that the drainage improvements proposed in Mossley will provide significant benefit to the Road. However, the Road Authority, as any other owner of land in the drainage area, has the expectation and the right to be properly and fairly assessed and also has the right of appeal if they are not. The general levy through road assessments must not be used to subsidize drainage improvements on private lands. The Tribunal rejects the assertion that the benefit assessment against the agricultural lands should be reduced at the expense of the Road.
The Tribunal finds the assessment rationale logical, equitable, fair and compliant with the Act. The Tribunal denies the appeal of M. Meyer under Section 54(1).
The Meyer appeal under Section 48(1) challenges issues with regard to the works recommended in the Report as well as the structure of the content of the Report.
Mr. Meyer requests reinstatement of the storm water management components of the 1990 report rather than accept the $2,500 benefit assessment credit. The evidence of the Engineer confirms that these components are extraneous to the design. The credit was provided in consideration of the fact that the storm water management components were not and could not effectively be maintained over their life to the potential detriment of the Meyer property. The Tribunal accepts this evidence and does not support reinstatement of these components.
Mr. Meyer opposes the construction of the grassed waterway or, in the alternative, requests consideration of its relocation. The evidence of the Engineer confirms that the waterway is critical to the function of the drainage system, is short, is shallow and is not grassed or taken out of production. The Tribunal accepts that this swale is necessary and should not materially alter the use of this land although it will convey extraneous surface flows from time to time. The Tribunal accepts this evidence and does not support altering the Report to remove or relocate this component.
Mr. Meyer proposed that the exiting 150 mm (6”) tile main should be left in place and, if improved, twined with a 200 mm (10”) tile. No specific evidence was provided to confirm the capacity or design standard of this alternative. The Engineer gave clear evidence to confirm that provisions exist with the Report to allow the existing tile to remain, albeit as a private main. The Engineer’s evidence related to the design standards adopted for the tile across the Meyer property or the upstream lands was not disputed.
Mr. Meyer also objected to the sizing of the 525 mm (21”) diameter tile as being an inadequate outlet for the 450 mm (18”) diameter tile into which it discharges. The evidence of the Engineer confirmed the capacity difference and highlighted the need for the shallow swale as previously described to provide the outlet required. The Tribunal accepts the effort on the part of the Engineer to develop a blended design to accommodate urban and agricultural standards while attempting to minimize construction costs.
There is no engineering evidence in support of altering the design of the works across the Meyer property.
Mr. Meyer suggested that the Report be altered to increase the working corridor defined in the Report from 15 m to 20 m. No evidence was provided to support this notion. The evidence of the Engineer confirms that the 15 m corridor is standard practice for tile installations of this size, and depth, and with the type of construction equipment anticipated. The Tribunal accepts this evidence and does not support the suggestion to increase the working corridor.
Mr. Meyer suggested that the allowances provided under Section 29 are arbitrary, too low and should be applied to the access corridor to the work site. The Engineer provided detailed evidence to support the values shown in the Report. The values are clearly based on an assumed value of agricultural land and assumption of the relative impact that the construction of this drain will have on the property. The methodology in developing the values appears to be reasonable and consistent with industry standards. With regard to the application of allowances under Section 30 for temporary access corridors that cross properties to the work site, the Tribunal concurs with the evidence of the Engineer that minimal impacts are anticipated on the lands for this purpose. Temporary access corridors may or may not be used during construction depending on the circumstances. Compensation could and should be considered on a case-by-case basis. However, in this instance, there is no evidence to support providing additional allowances for this purpose.
Mr. Meyer requests the assessment methodology in this Report be altered so as to levy assessments under Section 25(1). This would result in the assessments against all properties being levied proportionally based on their assessed value. The evidence of Mr. DeVos is that this method of assessment would not equitably distribute costs in that several properties are impacted by specific works and are specifically assessed for those works and the works would bear no relationship with the assessed value of the property. The Tribunal accepts this evidence and rejects the consideration to levy assessments under Section 25(1).
The Tribunal denies the various appeals brought by Marcel Meyer under Section 48(1).
Mr. Meyer contends that the actual cost of the works in the urban area will be much higher than estimated. Consequently, if the costs are simply lumped into one number and are prorated against the various sections, the agricultural lands will pay a disproportional amount of the higher costs related to the upstream works. He has asked that this issue be addressed in the Report. This is not an assessment appeal or an appeal to change the content of the Report as the Report, in fact, already addresses this issue. The Engineer has properly identified each specific component of cost for the Lower Portion, Upper Portion, Southeast Branch and SE2 Branch, Northwest Branch, and Southwest Branch and SW2 Branch. He has also produced specific schedules of assessment for each of these five reaches.
However, for clarity, the Tribunal will require the Municipality to compile the cost of the actual works in each reach separately as shown in the Report, and include a prorated portion of the total costs shown as “Administration” in the Report and then prorate this actual total section cost against the lands in each reach according to the corresponding assessment schedule.
Appeal of Ron Smith
Ron Smith filed an appeal under Section 48(1) and Section 54(1). Mr. Smith’s complaint is that he paid the cost of enclosing the road ditch across the frontage of this property and should be compensated for the work and should not now be assessed. The evidence of the Engineer was that this was a private work on a road ditch that was not at all associated with the Centre Dingman Creek Drain Branch “D” or the Mossley Branch Drain. No part of these works could be salvaged or be incorporated into the current works. The Tribunal accepts this evidence. There is no basis by which the owner should be compensated for this work. The appeal with respect to compensation for this work under Section 48(1) is denied.
The Tribunal does not agree with the assertion that the Smith assessment should be reduced on the basis that no compensation was offered for previous works across the frontage of the property. The Tribunal finds the assessment rationale logical, equitable, fair and compliant with the Act. The assessment against this property is consistent with that applied against neighbouring properties similarly impacted by the works.
The Tribunal therefore denies Ron Smith’s appeal under Section 54(1).
Mr. Smith’s testimony readily acknowledged that ponding in the road ditches and localized flooding in Mossley is a problem. However, he requested that other ways be found to solve the problem other than implementing the proposed works. No evidence was brought to identify any other solutions. The Tribunal denies the appeal of Ron Smith under Section 48(1).
ORDER OF THE TRIBUNAL
The Tribunal orders as follows:
The appeals by Gwen Brady under Sections 48(1) and 54(1) of the Drainage Act are dismissed.
The appeals by Marcel Meyer under Sections 48(1) and 54(1) of the Drainage Act are dismissed.
The appeals by Ron Smith under Sections 48(1) and 54(1) of the Drainage Act are dismissed.
The appeal by Clifford Locker under Sections 54(1) of the Drainage Act is dismissed.
The Municipality shall compile the cost of the actual work in each reach separately as shown in the Report, and include a prorated portion of the total cost shown as “Administration” in the Report and then prorate this actual total section cost against the lands in each reach according to the corresponding assessment schedule.
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.
Dated at Tecumseh, Ontario this 10^th^ day of November, 2014.