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:

Baillie Municipal Drain 2014 Municipality of Huron East

Baillie Municipal Drain 2014 (RE) 2014ONAFRAAT33

STATUTE:

Drainage Act

HEARING:

November 20, 2014

DATE OF DECISION:

December 12, 2014

2014-33

NEUTRAL CITATION:

2014ONAFRAAT33

BAILLIE MUNICIPAL DRAIN 2014 Municipality of Huron East

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 Lotti Albrecht of Monkton, Ontario; Klaas de Boer of Brussels, Ontario; Gaetano R. Tognacca of Monkton, Ontario; Conny and Cheryl V. Boyd of Monkton, Ontario; Hugh and Joanne Crawford of Monkton, Ontario; Bruce J. Mann of Monkton, Ontario; Glen and Brenda Crawford of Monkton, Ontario; Dale A. and Patricia Smith, of Monkton, Ontario, Morton Hog Feeders Inc., under section 48(1) of the Drainage Act from the Engineer’s Report pertaining to the Baillie Municipal Drain 2014 in the Municipality of Huron East.

Before:

Glenn Walker, Vice-Chair; Edward Dries, Member; Sharon Weitzel, Member

Appearances:

Felix Albrecht representing Lotti Albrecht, Appellant Jean Prescott representing Gaetano R. Tognacca, Appellant Conny Boyd, Appellant Hugh Crawford, Appellant Dale Smith, Appellant John Tollenaar, representing Cajan Farms Ltd., Assessed Landowner Barry Mills, Public Works Manager, Municipality of Huron East, Assessed Landowner W. J. Dietrich, P. Eng., Engineer who created the report

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) held this hearing in the Municipality of Huron East (the “Municipality”) in Seaforth, Ontario on November 20, 2014. The Engineer’s Report, dated June 23, 2014 for Baillie Municipal Drain 2014 (the “Report”), was prepared by Dietrich Engineering Limited and signed by W. J. Dietrich, P. Eng., (the “Engineer”).

Brad Knight, Clerk of the Municipality of Huron East, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing. The Township filed an Affidavit of Service, dated October 6, 2014 as proof that all parties had been served with the notice of hearing.

Appellants, Klaas de Boer and Bruce J. Mann were not present at the hearing and did not contact the municipality. Appellant, Glen Crawford contacted the municipality indicating he would be late attending the hearing but eventually Mr. Crawford did not attend.

The Tribunal received a letter from Darryl L. Voskamp, acting as agent for Morton Hog Feeders Inc., on November 10, 2014 withdrawing its appeal.

Background

The Baillie Municipal Drain was originally constructed pursuant to a report in 1943 and consisted of a Main Branch, a West Branch and an East Branch. Pursuant to the authority of a subsequent report in 1969, a culvert for the Drain was installed under Moncrieff Road and on the property presently owned by Glen and Brenda Crawford. The Report under appeal only deals with the Main Branch.

Subsequent work was also done on this Drain pursuant to reports dated 1980 and 2002. The Engineer reported that this is a drain which requires constant maintenance.

Cajan Farms Ltd., the owner of Part Lots 33 and 34, Concession 15, in the Municipality of Huron East (Grey Ward) made a request to the Municipality to relocate the Baillie Drain on its property and the Engineer was appointed pursuant to Section 78 (1) of the Drainage Act (the “Act”) to investigate and prepare a report.

An on-site meeting was held on January 17, 2013 with John Tollenaar, representative of Cajan Farms Ltd. who had requested the work. A subsequent information meeting was held for other land owners on June 11, 2014.

The Report recommends that 574 metres of the Baillie Municipal Drain on Lot 34, Concession 15 (owned by Cajan Farms Ltd.) be relocated by construction of 698 metres of open drain on the same property. The relocation will move the drain on the Cajan Farms Ltd. property from approximately the centre of the southerly portion of lot 34 to the easterly edge of the farm and thence along the southerly boundary of the farm to the culvert under Moncrieff Road. 100% of the cost of relocating the drain on the property of Cajan Farms Ltd. is being charged to that owner.

The Report also recommended that other work be done including some clean out and the installation of a new culvert under Moncrieff Road and a new culvert on the property of Glen and Brenda Crawford. A Court of Revision was held on August 5, 2014. None of the present Appellants appealed their assessment.

Issues

1. Are the benefits to be derived from the drainage works not commensurate with the estimated cost thereof?

2. Should the drainage works be modified on the grounds stated by the Appellants?

Evidence

Felix Albrecht for Lotti Albrecht

In general, Mr. Albrecht felt that the improvements imposed by the Report would make the drainage better for his mother’s property. Her property is located on the north end of the watershed and relies upon the whole length of the drain.

Jean Prescott for Gaetano Tognacca

Ms. Prescott testified that she has been living on the Tognacca property for many years. It, too, is located at the north end of the watershed for the drain. She stated that the drain is working fine for Mr. Tognacca’s property as long as it is maintained and he does not feel that the proposed work will benefit him but only cause him more expense down the road because the drain downstream is being deepened.

The witness also stated that, in her opinion, if snow from the road clearing were to clog the proposed drain lying perpendicular to Moncrieff Road, water would tend to back up. She felt that it would not be a wise thing to have the drain run along the road.

Conny Boyd

Mr. Boyd testified that his farm, which is immediately upstream from the Cajan Farms Ltd. property is sufficiently served by the drain as it is presently constructed. He stated that, in his opinion, the proposed work is absolutely unnecessary and he is concerned about future additional maintenance costs as a result of the relocation of the drain on the Cajan Farms Ltd. property.

Mr. Boyd also expressed his opinion that the 90 degree bend in the proposed relocated drain would slow down the flow of the drain and result in additional maintenance.

He was also upset that, although he is an assessed land owner with respect to this drain, he was not contacted about the proposed work until the report came out.

Hugh Crawford

Mr. Hugh Crawford testified that his property, which lies immediately to the west of the Cajan Farms Ltd. lands, was not initially served by the Baillie drain but that some of his subsurface drainage now flows into the Baillie drain.

He too complained about the late notice of the project and short notice of the council meeting where it was discussed. He felt that all property owners affected by the drain should have been present at the initial on-site meeting.

Dale Smith

The farm of Mr. and Mrs. Smith is located across the town line in the Municipality of North Perth, County of Perth. He confirmed in his evidence that he understood he was being assessed for the work being done outside of the Cajan Farms Ltd. lands but felt that the cost seemed very high. He also indicated that he did not want things to change since the present drainage is working properly as long as it is maintained. He expressed the opinion that the 90 degree angle being created on the Cajan Farms Ltd. property would slow down the flow of water in the drain.

John Tollenaar

Mr. Tollenaar is a principal of Cajan Farms Ltd. who has owned the subject property since 2008. He stated that most of the water from that farm outlets to the Baillie drain. He confirmed that he had requested the location change to make the farm more workable. He is also prepared to have the drain set back further from Moncrieff Road on his lands to address any concerns of a road side ditch.

Barry Mills

Mr. Mills testified representing Public Works for the Municipality of Huron East. His evidence supported the Report with respect to that portion affecting the road allowance.

W.J. Dietrich, P. Eng.

In his evidence, the Engineer reviewed the work to be done and the breakdown of costs and assessments. He also provided a detail of the relocation of the drain on the Cajan Farms Ltd. property.

With respect to the two new culverts, he felt both of them needed to be replaced to meet current standards as well as, due to the fact that they are nearing the end of their useful life. The new culvert under Moncrieff Road will be 30 cm lower than the level of the present culvert.

Because of the flatness of the lands in this area, this drain will always require a lot of maintenance.

Findings

Benefits Not Commensurate with Cost

The Tribunal concludes that there is no basis under the Act for an appeal under this heading.

All of the appeals were brought under Section 48(1) of the Act which provides that any owner of land or any public utility affected by a drainage works, if dissatisfied with the Report on certain grounds set out in that Section may appeal. All of the Notices of Appeal listed the same two grounds, that is:

(a) The benefits to be derived from the drainage works are not commensurate with the estimated cost thereof; and

(b) The drainage works should be modified on grounds to be stated.

The evidence of the Engineer was that none of the Appellants were assessed any benefit assessment save and except Glen and Brenda Crawford. This is confirmed by a review of the Schedule of Assessment for Construction found at page eight of the Report. Neither Glen nor Brenda Crawford attended the hearing or gave evidence to support their appeal under this heading. The other Appellants were only assessed outlet liability in amounts ranging from $938.00 to $42.00.

Since none of the Appellants who attended the hearing were assessed any benefit under the Report, there is no basis for them to appeal the Report under Section 48(1)(a).

Drainage Works to be Modified

The second ground for appeal is on the basis that the proposed drainage works should be modified on grounds to be stated. The Tribunal finds the evidence does not support an appeal on these grounds. The Tribunal accepts that the drainage relocation and other work proposed in this Report is reasonable. None of the Appellants suggested modifications to the proposed work in their evidence although most of the Appellants expressed that the proposed work was not necessary, while others were concerned about the drain being too deep; the 90 degree bend being proposed in the relocated drain,; the safety of the proposed ditch running parallel to Moncrieff Road and the lack of communication between the Engineer and the Appellants during the process leading up to the Report.

Work is Not Necessary

The evidence of the Engineer is that this reach of the drain is governed by by-law passed pursuant to a Report published in 1969. The grade line of the drain is very flat (0.037%) and it is controlled by the high invert elevations of the farm culverts on the Cajan Farms Ltd. and the G. & B. Crawford properties as well as the road culvert under Moncrieff Road.

The road and farm culverts have been in place for approximately 45 years and are at the end of their useful life. All are recommended for removal and/or replacement. The need to reconstruct the road culvert was supported by the testimony of Barry Mills, Public Works Manager for the Municipality of Huron East.

The complete removal of the farm culvert on the Cajan Farms Ltd. property and the enlargement and deepening of the farm culvert on the G. & B. Crawford property and the road culvert permit the drain to be designed to a slightly deeper depth and a much more satisfactory grade of 0.08%. The additional depth provides much needed freeboard for existing tiles that discharge into the drain, improves the hydraulic characteristics of the channel so as to more efficiently provide outlet for the upstream lands and replaces farm and road culverts with new materials designed and installed to current standards. The Tribunal is satisfied that the new design represents a significant improvement to this reach of the drain.

The evidence of Mr. Tollenaar was that the relocation of the portion of the drain on his company’s property is a distinct benefit to his farming operations on this property and he is prepared to pay the entire cost of the works on his lands. The relocation of portions of a municipal drain in order to improve the efficiency and safety of the farming operations of the lands on which it is located is not an unusual request. The Tribunal accepts that the drain relocation proposal in this Report is reasonable.

90 Degree Bend and Deepening of Drain

The opinion expressed by several Appellants was that the drain function would be impacted by incorporating additional bends into the alignment of the drain. Further, they maintained that the drain was too deep and frequent maintenance would be required on the newly constructed reach of open channel. Conny Boyd confirmed that the local soil type is heavy clay. The Engineer stated that the existing drain had been constructed to a 1.5 horizontal to a 1.0 vertical slope which continues to appear sound and stable. He confirmed that the new drain would be constructed to this same standard which is also the same standard applied to other open drain improvements in this area. Although he confirmed that future maintenance works will be required on this drain, he expressed the view that it would be no more frequent than other open drains in this area, particularly in light of the re-vegetation of the banks as recommended in the Report.

As to depth, it is noted that the depth of the proposed relocated drain at its highest point is only slightly higher than the average depth of drain as shown in the profile of the 2002 Report for improvements to the drain just upstream of this site. The standards applied to the design of the cross-section of the drain and the recommendations for stabilization meet current industry standards. The Tribunal is not convinced that exceptional maintenance will be required on this drain in this instance.

The Engineer filed the detailed hydraulic analysis data of the proposed work. The analysis clearly indicated that the improvements proposed will slightly lower the surface water profile under design flow as compared to existing conditions. The methodology for this analysis and the parameters applied are reasonable. No party questioned these findings and the Tribunal accepts this evidence.

Safety of Ditch along Road

Jean Prescott had expressed the view that the new drain along the north side of Moncrieff Road will become filled with snow from road clearing operations in the winter months. Dale Smith expressed the view that the proximity of the drain to the road would be a potential safety hazard.

The Engineer confirmed that the new drain was designed to be constructed wholly on private lands and have a minimum offset of two metres from the northerly limit of the road allowance. He stated that this complies with the policy of the Municipality which directs that no new open drains are to be constructed within municipal road allowances. The Engineer stated that open ditches paralleling road allowances such as this is a common occurrence in the Municipality and no operation issues due to snow or safety issues have been identified. The municipal policy for new drain construction along roadways and the lack of functional difficulties as a result of snow or safety concerns was verbally confirmed by Barry Mills on behalf of the Public Works.

Process to Report was Flawed

Several Appellants challenged the process leading up to this Report being brought to Council. They expressed the view that the Municipality “pushed it through” with little notice. The Engineer confirmed that the project was initiated by a request under Section 78 of the Act from Cajan Farms Ltd. for improvements to the drain on this single property at the sole cost of the owner. The Engineer is obligated under Subsection 9(1) of the Act to send notices for an on-site meeting to “each owner of lands within the area requiring drainage as described in the petition” and “to each public utility”.

The language of this section is more applicable to a petition initiated under Section 4. However, although a petition is not required under Section 78, the owner of the area requiring drainage improvements (Cajan Farms Ltd.) and the various public utilities were invited to a legally constituted on-site meeting held on January 17, 2013.

The Engineer confirmed that the subsequent field investigation and consultations with Glen Crawford and the Public Works resulted in the expansion of the works to include works on the Crawford property and across Moncrieff Road. A second information meeting was held in the Municipal offices on June 11, 2014.

At that point the Engineer knew that all of the lands upstream of Moncrieff Road would be assessed. This second information meeting was not a statutory requirement. However, it would have provided an opportunity to notify the upstream landowners of the proposed works. The final Report was published on June 23, 2014.

The evidence confirmed that the Municipality sent out notice of the meeting to consider the Report along with the Report to all affected landowners within the watershed as prescribed and within the time frames as set out in Section 41 of the Act. Mr. Smith acknowledged this fact but expressed the opinion that the Municipal Council acted too quickly and appeared to force the project on the ratepayers at the Meeting to Consider the Report. He also admitted that no owners filed any appeals to the Court of Revision as they knew, as a group, that they were going to pursue an appeal against the Report to the Tribunal.

The Tribunal appreciates that the upstream landowners may have been taken aback by this seemingly sudden appearance of this Report even though the project had been in progress for at least six months by that point. However, the provisions of Section 41 are in place to ensure that municipalities deal with drainage reports that are filed with the municipality in a judicious and timely fashion. The Tribunal finds that the Municipality met the requirements of the Act relative to the circulation of the Report and Notice of the Meeting to Consider the Report.

ORDER OF THE TRIBUNAL

The Tribunal orders as follows:

1. The appeal by all Appellants, namely: Lotti Albrecht, Klaas de Boer, Gaetano R. Tognacca, Conny and Cheryl V. Boyd, Hugh and Joanne Crawford, Bruce J. Mann, Glen and Brenda Crawford and Dale A. and Patricia Smith under Section 48(1) of the Act is denied.

2. The non-administrative costs of the Municipality in respect to this appeal shall form part of the costs 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 12th day of December, 2014