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: Gilbert Drain 2014 Municipality of Dutton Dunwich Gilbert Drain 2014 (RE) 2014ONAFRAAT31

STATUTE: Drainage Act

HEARING: November 18, 2014

DATE OF DECISION: December 3, 2014

2014-31

NEUTRAL CITATION: 2014ONAFRAAT31

Gilbert Drain 2014

Municipality of Dutton Dunwich

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

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Steven and Jo Ann Hale, Dutton, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Gilbert Drain 2014 in the Municipality of Dutton Dunwich.

Before: Glenn Walker, Vice-Chair; Edward Dries, Member; Tim Mousseau, Member

Appearances:

Steven Hale – Appellant

John M. Spriet, P. Eng. – Spriet Associates, Engineer who prepared the Report

Brent Clutterbuck – Drainage Superintendent for the Municipality of Dutton Dunwich

Gwen Laskey – representing the Estate of Arthur Knowles, affected landowner

Helmut Prey – representing H. Prey Farms Ltd., affected landowner

DECISION OF THE TRIBUNAL

This hearing was held in the Municipality of Dutton Dunwich (the “Municipality”), in Dutton, Ontario on November 18, 2014. The Engineer’s Report dated January 22, 2014 and re-submitted May 23, 2014 for the Gilbert Drain 2014 (the “Report”) was prepared by Spriet Associates (the “Engineer”) and signed by John. M. Spriet, P. Eng.

Laurie Spence Bannerman, 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 October 1, 2014.

Overview

This matter deals with the portion of the existing Gilbert Drain commencing at the half concession line of Concession 6 in the geographic Township of Dunwich in the Municipality of Dutton Dunwich upstream through the properties of Unicorn Farms, H. Prey Farms Ltd. and Steven and Jo Ann Hale and also on the Hale and E. Verbrugge properties along the south limit of Marsh Line to a point of crossing Marsh Line approximately 24 m west of the west limit of the Hale property . The Drain was originally constructed in approximately 1900 and was last reconstructed pursuant to a report dated May 16, 1990.

The Appellants are the owners of approximately 50 acres being Part of Lot 5 in Concession 5, South of A in the said geographic Township (the “Hale Property”).

After conducting a site meeting, field investigation and survey, the Engineer recommended that this portion of the Gilbert Drain be cleaned out, deepened and that a water control structure be installed on the north side of Marsh Line adjacent to the property of the late Arthur Knowles (the “Knowles Property”) to retain water on the upstream lands. The existing culvert under Thomson Line was to be replaced at a significantly lower grade to allow for the deepening of the ditch upstream.

The Appellants’ appeal of their assessment to the Court of Revision was dismissed on August 13, 2014. The Appellants now appeal to the Tribunal from that decision. As the grounds for its appeal to the Tribunal, the Appellants state that they believe they have been charged too high a cost for the drainage work and owners upstream have been charged too little.

Issues

1. Should the benefit assessment of the appellants be reduced?

Evidence

Steven Hale

Mr. Hale testified that he and his wife have owned the Hale Property for approximately 25 years and have, during that period of time, experienced significant flooding of their land due to the overflow of the present drain and, at one time, flooding occurring across the road from the Knowles Property. On cross-examination, however, he admitted that he has had no flooding coming across Marsh Line since the surface of the road was raised approximately nine inches. He described the Knowles Property as being wetlands. He attributes the flooding of his property primarily to water coming from the Knowles Property and feels that it is not fair that he has to pay for water coming from the Knowles Property to be accommodated by the reconstructed drain.

Mr. Hale stated that he noticed flooding right away after the last work was done on the drain in 1990 and concluded that the attempt to stop the flooding on his lands did not work.

Mr. Hale produced photographs showing the flooding of his property which has resulted in some damage to his home and loss of enjoyment because of sewage backup into the basement shower.

Mr. Hale referred to the Wikipedia article entitled “Surface Run off” and a Fact Sheet entitled “Understanding Drainage Assessments” published by the Ministry of Agriculture, Food and Rural Affairs. In particular, he questioned why the Knowles Property had not been assessed for injuring liability which he understood had replaced the common law liability which he felt the Knowles Property were subject to. Mr. Hale also felt that since the Knowles Property was significantly larger than his, its proportion of the assessment should be significantly larger.

Mr. Hale confirmed that he understood that the work being done on the Gilbert Drain is necessary but feels that his assessment is higher than it should be.

On questioning by the Tribunal, Mr. Hale indicated he has farmed his land continuously either himself or by share cropping since he purchased the property. He admitted that there have been instances when he could not harvest his crop due to flooding. He further indicated his property had some tile drainage but was not systematically tiled.

J. M. Spriet, P. Eng.

Mr. Spriet testified that the deepening of the Drain by approximately one metre as proposed in the Report will prevent ­flooding of these lands in the future. He stated that the Gilbert Drain has been in place since 1900 and, as such, any common law liability of owners for run-off is no longer applicable.

As part of his evidence, he reviewed the assessment breakdown and described how he had used a modified Todgham method to ascertain the assessments. Mr. Spriet also introduced Exhibit #4 which is a map showing the elevations on the Hale Property and Exhibit #5 being an abstract from the MTO Drainage Management Manual showing run-off coefficients for various types of topography. From that document, he extrapolated a run-off coefficient of 1.0 for the agricultural lands and a coefficient of 0.33 for the wetlands.

Mr. Spriet stated that the new drainage work will be of tremendous benefit to the Hale Property although Mr. and Mrs. Hale may still have to do more tiling. In conclusion, he believes that his assessment in the Report is fair.

The Tribunal then received comments from Gwen Laskey, on behalf of the Arthur Knowles estate. She stated that the Knowles Property was purchased as a swamp and the family has worked to maintain it in its natural state. They do not wish to lose any water from the swamp.

The Tribunal then heard from Helmut Prey, another assessed land owner, who agreed that the drainage work had to be done.

Findings

Argument that Assessment Should be Proportional to the Relative Size of Properties

The Tribunal rejects the Appellants’ argument that their property and the Knowles Property should be assessed in proportion to their size.

The Appellants argue that the Knowles Property is continually saturated and that the run-off from that property is much larger than his own and that the assessment should reflect that. Mr. Hale brought no evidence to the Tribunal as to the run-off characteristics of either property.

The Engineer stated that only that portion of the Knowles Property within the defined water shed area of the drain was considered for assessment. This is shown in the Report as 126 ha. (311 ac.). Further, he stated that the outlet assessment against the Hale and Knowles properties is based on Section 23 of the Drainage Act and upon the principals set out in the “Todgham” method of assessment.

Regarding run-off rates from the various properties, the MTO Drainage Management Manual was referred to. This reference illustrates that the run-off from wetlands is, in fact, much lower than that of agricultural lands. The run-off coefficient of 1.0 has been applied to agricultural lands and a coefficient of 0.33 has been applied to wetlands. Although this reduced outlet coefficient applied to wetlands was slightly higher than suggested in the guidelines referenced above, the Engineer believed it to be appropriate in this instance.

As required under Section 23 of the Act, outlet assessments are based on the “volume and rate of water artificially caused to flow”. The methodology of applying various run-off factors to various land uses and soil conditions is an accepted standard of practice. While outlet assessments are certainly related to the area of the parcel affected, assessments are also modified by relative run-off characteristics. There was no evidence brought before the Tribunal to suggest that the area affected by the Drain or the run-off coefficient applied to the Knowles Property was incorrect. The Tribunal therefore finds that the methodology used and the judgment applied by the Engineer in the development of the outlet assessments is sound and reasonable.

Injuring Liability Argument

The Tribunal rejects the argument that the Knowles property has no right of drainage and that the property is liable for an injuring liability assessment.

Mr. Hale relied on information taken from the OMAFRA Fact Sheet, Understanding Drainage Assessment, to support his argument that the Knowles Property should be responsible for flood damages resulting from surface flows from the Knowles Property onto the Hale Property. He quoted the following: “…a land owner is also liable for any damage he or she may cause from water which he or she collects in drains and discharges on other land without a sufficient outlet, he or she may be assessed for relief from such ‘injuring liability’ if the new drain serves as an outlet for his or her drains and prevents this injury from occurring.”

Mr. Hale’s interpretation of this clause is flawed. The Gilbert Drain was constructed as a municipal drain under the Drainage Act in 1900 and has been repaired and improved under a number of by-laws passed under the Act since that time. The Knowles Property has a direct connection to the drainage works and has been previously assessed for works on the drain. All drainage rights of lands within this watershed are now governed by statute law (the Drainage Act) and not by common law. The Knowles Property, as well as all other properties within the watershed, has a statutory right to use the drain.

All previous works on the drain were deemed to have been taken to a sufficient outlet thus exempting the consideration for an “injuring liability” assessment. An assessment for injuring liability can only be considered where a sufficient outlet for a drainage works cannot be achieved and the property on which the flows are discharged is damaged. Most typically, injuring liability is assessed in conjunction with Section 32 – Allowances for Damage due to Insufficient Outlet. It should be noted that the OMAFRA Fact Sheet provides in the next paragraph after that quoted by Mr. Hale: “Injuring liability is frequently difficult to distinguish from outlet liability, consequently many Engineers’ reports do not contain such an item.”

Argument that the Appellants’ Benefit Assessment is Too Large

The Tribunal finds that the Hale Property has been properly assessed with respect to benefit assessment.

Mr. Hale admitted to the need for improvements to the drain and claimed that the last works done on the drain in 1990 did not provide him with effective drainage. He accepts that he should be liable for some benefit but not the amount shown in the Report. Mr. Hale offered no alternative value or support for any reduction in his benefit assessment.

In his evidence, Mr. Spriet confirmed that the works proposed in this report are a substantial improvement over that recommended in 1990. The grade line of the drain is being deepened significantly and this deepening is made possible by the reconstruction and lowering of the road culvert at Thomson Line. By means of the profile attached to the Report, he illustrated the lands upstream of Thomson Line, including the Hale Property, lie within a “bowl” which has no natural drainage outlet and rely entirely on the Gilbert Drain for outlet. In his opinion, these improvements to the drain will result in a meaningful direct benefit to all of the properties along the drain including Unicorn Farms, H. Prey Farms Ltd. and the Hale Property. All abutting properties were assessed with a consistent, yet relatively high benefit assessment.

The detailed assessment breakdown sheets filed as evidence confirmed that the Engineer applied a consistent approach in the development of the proportional cost distribution as between benefit and outlet liability. The Tribunal accepts that the proposed work will provide a significant benefit to the abutting lands and that the benefit assessments against Unicorn Farms, H. Prey Farms Ltd. and the Hale Property are well reasoned, fair and equitable.

The Engineer also confirmed that no benefit assessment was levied against the lands of Arthur Knowles as no benefit would accrue to these wetlands as a result of the works on the drain. In fact, the new water control structure included in this project, although funded by the Municipality through a grant from the Ministry of Natural Resources, will further restrict and control the discharge of run-off from the Knowles property. This gated flow control feature is to be managed by the Municipality as part of their maintenance duties on this drain scheme. The Tribunal accepts that improvement to the drain will not have any appreciable impact on the operation of the wetlands and, as such, the Knowles Property should not be assessed a benefit assessment.

It should be noted that it is the Engineer’s duty to give consideration to the extent and impacts of the works on the adjacent properties as it relates to the value of the benefit accrued to these properties. It is not proper to simply refer to past reports on the same drain and apply the relative values shown in the past reports. The improvements to the Gilbert Drain recommended in this report differ greatly from all previous reports on this drain. The impacts of these works on the adjacent lands also differ greatly. The Engineer properly provided the appropriate reasoning to recognize the current circumstances and develop a fair and equitable assessment, taking into account both the present conditions and the expected results of the proposed improvements.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The appeal by Steven and Jo Ann Hale under Section 54(1) of the Act is denied.

2. The non-administrative costs of the Municipality in respect of this appeal shall form part of the cost of the drainage works, and it is ordered that there be no other order as to costs and all parties are responsible for their own costs.

Dated at Ridgetown, Ontario this 3rd day of December, 2014.