Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Meuller Drain 2014

Municipality of Bayham

Meuller Drain 2014 (RE) 2014ONAFRAAT32

STATUTE:

Drainage Act

HEARING:

December 1, 2014

DATE OF DECISION:

December 5, 2014

2014-32

NEUTRAL CITATION:

2014ONAFRAAT32

Meuller Drain 2014

Municipality of Bayham

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 Tom and Joanne Teather, of Brownsville, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision on the Meuller Drain 2014 in the Municipality of Bayham.

Before: Paula Lombardi, Vice-Chair; Edward Dries, Member; Bill Schaefer, Member

Appearances:

Tom and Joanne Teather – Appellants

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

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing in the Council Chambers of the Municipality of Bayham (“Municipality”), in Straffordville, Ontario on December 1, 2014. The Engineer’s Report dated March 14, 2014 for the Meuller Drain 2014 (“Report”) was prepared by Spriet Associates and signed by J. M. Spriet, P. Eng.

Lynda Millard, 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 dated November 12, 2014 with the Tribunal as proof that all parties had been served with the Notice of Hearing.

There were no other assessed landowners in attendance at the hearing that requested party status.

Background

The Report (“Meuller Drain 2014”) pertains to the reconstruction of the Meuller Municipal Drain, and provides drainage for Lots 5 through 7, Concessions 9 and 10, in the Municipality of Bayham.

The Report on the Meuller Drain was prepared pursuant to a request by the Road Authority for repair and improvement of the Main Drain and Branch ‘D’ under section 78 of the Drainage Act (“Act”). Petitions were also filed under section 4 of the Act for proposed new construction on Branch ‘B’ and Branch ‘C’. The petitions were filed by residents who were seeking an outlet to reduce surface water ponding on their properties.

Spriet Associates Limited prepared the Report dated March 14, 2014. Mr. Spriet, P.Eng., a professional engineer (“Engineer”) with that firm was designated under section 8(2) of Act with overall responsibilities for the Report.

In preparing the Report, the Engineer conducted several on-site meetings; walked the drainage area; engaged in a survey of the existing drainage area; designed the drainage works; prepared the Report that include a plan profile and profile drawings; provided cost estimates specifications, assessment and future maintenance schedules; and, described the drainage work to be completed in the Meuller Drain area.

The estimated cost of the Meuller Drain project is $301,500.

Tom and Joanne Teather (the “Appellants” or “Teathers”) filed an appeal under section 54(1) of the Act from a decision of the Court of Revision. The Appellants, landowners who live within the Meuller Drain watershed, dispute the value of the Engineer’s assessment for their property on the basis that they were overcharged for the drainage work. The Teathers are seeking a cost reduction of their assessment in a manner that is “fair and consistent with the other landowners”.

Issues

Should the assessment as set out in the Engineer’s Report dated March 14, 2014 be reduced?

Evidence

J. M. Spriet, P. Eng.

Mr. Spriet advised that the Meuller Drain was originally constructed in 1968 pursuant to an engineer’s report prepared by J.B. Dodd. The original Meuller Drain included the Main Drain and a Branch that starts at the Little Jerry Creek Drain and heads northwards through Lot 6, Concession 9, and then crosses under Best Line into Lot 6, Concession 10. The drain continues in a northerly direction under the Trillium Railway and then proceeds in a north westerly direction to the westerly limit of the Culloden Road allowance in Lot 5, Concession 10. A branch drain, Branch ‘D’, runs from the Main Drain on the north side of the railway right-of way to the west limit of the Culloden Road allowance immediately north of Best Line.

Mr. Spriet testified that the existing tile drain was in poor condition because it was installed on water-sand soil conditions and, over the years, the tiles have settled, separated, filled with soil and are becoming ineffective.

In explaining the rationale for the assessments, Mr. Spriet stated that he applied a modified Todgham method for the assessments shown on Schedule “C” – Assessment for Construction. The estimated total cost of the Main Drain was divided into five sections. The special assessments and special benefits were removed from each section. The County, Municipality and Railway were all subject to special assessments for the increased costs associated with the drainage works situated along the Main drain.

The net cost of each section was then divided into benefit and outlet liability charges. In calculating the outlet liability, the relative runoff rates were applied in accordance with the land use and size of each property. The equivalent runoff factors applied to agricultural land, the Appellants’ property and Culloden Road were 1.0, 1.25 and 3.75 respectively. The Appellants’ property, which is located in section five, was assessed an outlet liability charge for each of the five sections of the Main Drain as this property drains through all five of the sections.

In order to quantify the “benefit” to the lands and roads along the Main Drain, Mr. Spriet indicated that the lands along the drain would experience reduced frequency and extent of flooding, and the Meuller Drain would function better resulting in a greater land use for these properties. The capacity of the drain was also significantly increased so as to better control the flow of water through the properties.

The benefit component of section 5 of the drain represents 50% of the net cost of this section and is consistent with sections 3 (48%) and 4 (48%). The benefit cost for section 5 was based on a consistent rate per metre that was applied against all lands that either abuts the drain or is directly impacted by the drain. The benefit levied against the Appellants’ lands was calculated on exactly the same basis as the residential lot to the south and the agricultural land to the east.

Upon questioning from the Tribunal, Mr. Spriet indicated that the Bogart land west of Culloden Road was tiled and most of the surface water in the area runs in a southerly direction. However, a portion of the surface water from this property would be intercepted at the new road culvert to be installed across Culloden Road north of the Main Drain crossing and those flows would no longer cross the Appellants’ lands. Mr. Spriet confirmed that a solid pipe will be constructed on the Appellants’ property to accommodate landscaping and due to a concern about the potential for roots to enter the drain.

In closing, Mr. Spriet confirmed that the benefit assessment on all properties was developed by applying a consistent benefit rate against all of the lands within each section. Mr. Spriet was confident that the drainage area is correct as he is familiar with the drainage reports to the west and walked the entire watershed boundary of the Meuller Drain to verify the watershed.

Tom and Joanne Teather

Mr. Teather stated numerous times during his testimony that he agreed with the proposed drainage works and acknowledged that they were needed in the area to reduce the current problems associated with flooding.

According to the Appellants, when excess surface water builds up on the Bogart property, it flows easterly across Culloden Road to flood their property and also in a southerly direction along the west side of Culloden Road which results in flooding in the Town. The Appellants provided a series of photographs to the Tribunal (Exhibit 4) showing flooding in their side yard. Despite these photographs being from 2011, the Appellants indicated that such flooding is a regular occurrence on their property and, in their opinion, will occur even after the new drainage works are constructed. The Appellants reviewed the existing and proposed drainage works in detail but recognized that only their assessment was subject to the appeal before the Tribunal and not the Report.

The Appellants took issue with the definition of benefit and outlet set out in the Report. The Tribunal notes that these definitions are taken directly from the Act. The Teathers indicated that they are asking for a fair assessment to be applied to all landowners in the area. The Appellants were assessed a benefit of $2,420.00 and were concerned that there was only one other property that was subject to such a high benefit charge. Throughout their evidence, the Appellants directed the Tribunal to the residential houses situated along the north side of Best Line west of Culloden Road and questioned why they were not assessed a benefit or an outlet charge. It was the Appellants view that these residential lots are within the Meuller Drain watershed.

The Appellants expressed some concern that they are paying an outlet charge in every section of the Main Drain and expressed concern that the County was not assessed at all. However, the Appellants acknowledged that the County was assessed a benefit when it was drawn to their attention by the Tribunal.

The Appellants confirmed that, at the preliminary meeting with Mr. Spriet, they had indicated that they did not want to connect to the new drain and expressed concern that it would not help with their flooding problems.

The Tribunal questioned the Appellants interpretation of the Report and specifically the inclusion of the residential lots situated on the north side of Best Line west of Culloden Road. The Tribunal pointed out to the Appellants that these residential properties are situated outside of the drainage area and that they receive no benefit from the drainage works. The Appellants confirmed that it is their view that these houses should be in the watershed area and should be assessed if using the new outlets and conversely should not be assessed if they are not using the new outlets. The Appellants’ main concern with the assessment of their property was that it was not fair and felt the costs should be fair to everyone.

Findings

The Tribunal finds that the Engineer’s methods of calculating the assessments in the Report, including those to the Appellants’ lands, to be reasonable, fair and equitable. The Tribunal calculated the benefit rate applied in section 5 of the drain and found that the rate was equally applied on a per metre basis to each property. The choice by the Appellants to not connect to the drain does not eliminate the potential benefit accruing to the property. The Tribunal notes that future owners of the property or the Appellants at some later date may choose to connect directly to the drain. The evidence presented indicates that the drainage works will better contain and convey the flows from the lands situated upstream from the Appellants and through the Appellants’ lands. This is a “benefit” falling squarely within the definition as set out in the Act.

The Tribunal finds that the assessments are fair and equitable to all the properties situated within the drainage area. There was no evidence presented at the hearing to rationalize or justify a reduction of the benefit assessment to the Appellants’ property. The Tribunal, although sympathetic to the concerns expressed by the Appellants, was not persuaded that their assessments were incorrectly calculated or did not meet the provisions of the Act.

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

The Tribunal accepts the evidence of the Engineer as to the accuracy of the drainage area as it applies to those lots on the north side of Best Line west of Culloden Road. The Engineer indicated that those lots are drained toward, and assessed to, the Corinth Drain and Branches. These residential lots are not properly included in the Mueller Drain watershed and, therefore, should not be assessed for any portion of the costs of the Meuller Drain.

It is important to note that the assessment schedules set out in the Engineer’s Report are only estimates, based on the costs shown in the Report, and that the final value will not be known until the construction work is finished. Upon completion of the construction work, the assessments will be prorated according to the schedules set out in the Engineer’s Report in order to recover the actual cost of the drainage works.

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

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The appeal by Tom and Joanne Teather 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.