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 www.omafra.gov.on.ca/english/tribunal

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca www.omafra.gov.on.ca/french/tribunal

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

StageCoach Road East and West Municipal Drains City of Ottawa

StageCoach Road East and West Municipal Drains (RE) 2015ONAFRAAT01

STATUTE:

Drainage Act

HEARING:

May 28, 29, 30, 2014 and August 18, 2014

DATE OF DECISION:

January 8, 2015

2015-01

NEUTRAL CITATION:

2015ONAFRAAT01

STAGECOACH ROAD EAST AND WEST MUNICIPAL DRAINS City of Ottawa

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 Lucie Pyper, Greely, 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 6980848 Canada Corporation and 7657315 Canada Corporation, Greely, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the StageCoach Road East and West Municipal Drains in the City of Ottawa.

Before:

Harold McNeely, Vice-Chair; Andrew McBride, Member; Corry Martens, Member

Appearances:

Daniel Anderson – witness for 7657315 Canada Corporation and 6980848 Canada Corporation, Appellants

Daniel Payer – witness for 7657315 Canada Corporation and 6980848 Canada Corporation (part owner of 6980848 Canada Corporation, Appellant)

Paul Webber – Counsel for 7657315 Canada Corporation and 6980848 Canada Corporation

Lucie Pyper – Appellant

Frank Henderickson – P. Eng., Morrison Hershfield, witness for Lucie Pyper

John van Gaal – Stantec Consulting Ltd. – Engineer who prepared the Report

Claudia Danner – representative and witness for Lucie Pyper

Cathy Crosby – counsel for the City of Ottawa

Mike Argentina – Assessed landowner

Carmen Argentina – Assessed landowner

William O’Brien – Assessed landowner

DECISION OF THE TRIBUNAL

This hearing was held in the City Hall for the City of Ottawa, (the Municipality) in Ottawa, Ontario on May 28, 29, and 30, 2014, and August 18 , 2014. Lucie Pyper appealed to the Tribunal under Sections 48(1) and 54(1) of the Drainage Act (the Act) from the Engineer’s Report on the StageCoach Road East and West Municipal Drains dated February 15, 2013 (the Report), prepared by Stantec Consulting Ltd. and signed by John van Gaal, P. Eng. (the Engineer), and from the decision of the Court of Revision. 7657315 Canada Corporation and 6980848 Canada Corporation appealed to the Tribunal under Section 54(1) of the Act from the decision of the Court of Revision on the StageCoach Road East and West Municipal Drains.

Marc Desjardins from the City of Ottawa 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 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 March 21, 2014.

Background

The StageCoach Road East and West Municipal Drains Report was initiated when 6980848 Canada Corporation and 7657315 Canada Corporation (“the Petitioners” or “the developers”), owners of part of Lot 7 and part of Lot 8, Concession 3, respectively, in the geographic Township of Osgoode and now part of the City of Ottawa, petitioned the municipality for drainage works under Section 4 of the Act. The primary purpose of the drainage works is to provide a legal outlet to convey stormwater from a new residential subdivision in Lot 7 to the Grey’s Creek Municipal Drain. The lands of the Petitioners are approximately 59 hectares in area and it was only these lands that the Engineer defined as the area requiring drainage. The numbered companies are also known as Sunset Lakes Developments, which has developed a number of subdivisions in the Greely area, southeast of Ottawa, over the past 20 years.

Lucie Pyper, owner of the downstream land on the West Drain and land in the mid portion of the East Drain, being the southwest three quarters of Lot 9, objected to the proposed Drain at the Meeting to Consider the Report; however, Council adopted the Report and passed the By-law on July 17, 2013. Mrs. Pyper then proceeded to appeal the assessments to her farm land at the Court of Revision.

Sunset Lakes Developments did not object to the Engineer’s Report at the Meeting to Consider but appealed the assessments to its land at the Court of Revision.

The Court of Revision did not make any changes to the assessments contained in the Engineer’s Report.

Mrs. Pyper then proceeded to appeal to this Tribunal under Sections 48(1) and 54(1) of the Drainage Act.

Sunset Lakes Developments then proceeded to appeal to this Tribunal under Section 54(1) of the Drainage Act.

Due to the unusual nature of this project, the other affected owners were given standing to raise issues not directly related to the Sunset and Pyper appeals.

Issues

1. Are the proposed drainage works required by the affected lands?

2. Are the proposed drainage works necessary only for the improvement of flow from upstream subdivided residential lands and for the drainage of lands that may be subdivided in the future?

3. Are the benefits of the proposed drainage works commensurate with the costs thereof?

4. Will any benefits be derived by the lands owned by L. Pyper?

5. Should the assessments against the lands of the Appellants be revised?

Evidence

John van Gaal, P. Eng. – Stantec Consulting Ltd.

At the commencement of the hearing, Mr. van Gaal gave an overview of this drainage proposal. He testified that his employer, Stantec Consulting Ltd., received instruction from the City of Ottawa on July 11, 2012 to prepare a report for a new drainage works in response to a petition received by the City in accordance with Section 4 of the Drainage Act. He held an on-site meeting on August 9, 2012 and determined that the petition complied with Section 4(1) (b) of the Act. Mr. van Gaal advised that the numbered companies that petitioned for the drainage works are known locally as Sunset Lakes Developments and that is how he would refer to them in his testimony.

Mr. van Gaal advised that the purpose of the drainage project is to provide adequate, legal outlets for the two stormwater management ponds located on the Sunset Lakes properties, namely the smaller, westerly pond located in the southeast quarter of Lot 7, Concession 3, and the larger, easterly pond located in the northeast part of the east half of Lot 8, Concession 3, both in the geographic Township of Osgoode. He indicated that these stormwater management ponds were significantly overdesigned and that there were existing ditches flowing from these ponds to the Grey’s Creek Municipal Drain. He advised that he considered the Grey’s Creek Municipal Drain to be a sufficient outlet in accordance with Section 15 of the Act.

Mr. van Gaal indicated that he named the proposed drain from the westerly pond as the StageCoach Road West Municipal Drain and the proposed drain from the easterly pond as the StageCoach Road East Municipal Drain. All of the properties affected by the drainage works are located in Concession 3 of the geographic Township of Osgoode, which is now part of the City of Ottawa.

Mr. van Gaal stated that a number of special features had to be included in the design of these Drains due to the highly erosive nature of the Manotick Sandy Loam soil that exists throughout the drainage area. He indicated that channel gradients had to be kept to a minimum, 0.2% in the East Drain and 0.3% in the West Drain, to keep the flow velocity equal to or below 1 metre per second and, since these gradients are less than the natural slope of the land, rock protected drop structures and significant other erosion protection measures had to be incorporated into the design. Due to a high natural water table and the sandy soil, the sides of the new channels will have to be graded at slopes of 2.5 horizontal to 1.0 vertical, which is much flatter than normal. The channel bottom will be 1.2 metres in width throughout the length of both Drains.

Mr. van Gaal testified that the Conservation Authority requested that these new channels be designed to carry the flow from a 100 year rainfall event and, due to the overdesigned stormwater management ponds, he was able to achieve this while maintaining a fairly shallow channel depth of 900 mm, on average.

Mr. van Gaal further advised that he received three requests for channel relocations and one request for channel extra depth; however, the request for extra depth was withdrawn once the costs were determined. Accordingly, his design for the West Drain proposes channel relocations in the northeast quarter of Lot 9, being the Argentina property, and in the southwest quarter of Lot 9, being the Pyper property. On the East Drain, he proposes a relocation in the northeast part of Lot 10, being the O’Brien property.

Mr. van Gaal stated that the total estimated cost of this project is $202,492.55, of which $80,955.50 is estimated for the West Branch and $121,537.05 is estimated for the East Branch. These costs result from the construction work which includes earth excavation, spoil spreading, clearing, supply and placement of new farm lane culverts, relocation of one farm lane culvert, three channel relocations, minimal ditchbottom cleaning in the Grey’s Creek Drain, five hydraulic drop structures, significant erosion protection at bends, fencing, seeding, and sediment trap excavation and cleanout, plus costs for a contingency allowance, interest, contract administration, allowances and preparation of the Engineer’s Report.

Mr. van Gaal explained that his assessment reasoning was that most of the cost of these drainage works should be assessed to the lands of the numbered companies since the primary purpose of these proposed Drains is to provide two legal, adequately sized outlet channels for the subdivision lands of Sunset Lakes Developments, and extend them to a sufficient outlet, being the Grey’s Creek Municipal Drain. However, he felt that the proposed works would also be of some benefit to the downstream lands; therefore, he assessed some of the cost to those properties.

He further explained that he separated the extra costs of the requested channel relocations and assessed them as a “special benefit” to the affected properties. In the case of the Argentina relocation on the West Drain and the O’Brien relocation on the East Drain, he assessed 100% of the extra costs to those properties. In the case of the Pyper relocation on the West Drain, he assessed 60% of the extra cost to the Pyper property and 40% of the extra cost to the abutting residential lots on Reindeer Way in the Orchard View Subdivision for “reduced nuisance flow”.

Mr. Van Gaal also explained that he separated the lane culvert costs and assessed 100% of those costs as a “special benefit” to the affected properties. On the East Drain, this involved two culverts being assessed to the Argentina properties and one being assessed to the O’Brien property. However, on the West Drain, he assessed only 50% of the cost of one culvert to the Argentina property. The costs assessed for the culverts were only the material and construction costs. No amount was included for contingency or administration.

In the case of fencing on the West Drain on the Pyper property, Mr. van Gaal stated that he assessed 50% of that extra cost to the Pyper property as a “special benefit”.

Excluding these special assessments, Mr. van Gaal advised that he assessed the remaining costs at 20% as outlet and 80% as benefit. The outlet assessment amounts per property were based on the area drained, the length of drain used and a runoff coefficient. For some of the properties, the benefit assessments were based on the potential number of lots that can be developed thereon. Mr. van Gaal indicated that the only reason for proceeding with these Drains is to provide sufficient, legal outlets for the subdivision lands in Lots 7 and 8. Accordingly, it was his opinion that the bulk of the benefit assessments should be directed to those lands. He was also of the view that some of the downstream lands will benefit to a lesser degree and should be assessed a nominal amount.

Frank Henderickson, P. Eng. – Expert Witness for Mrs. Pyper

Mr. Henderickson advised that he is a registered Professional Engineer in Ontario, with a Bachelor’s degree and a Master’s degree, specializing in water resources, with over 30 years of experience, and is employed by the consulting engineering firm of Morrison Hershfield in Ottawa.

Mr. Henderickson was retained in this matter by Mrs. Lucie Pyper and provided a letter of opinion that was entered as Exhibit 5. In his letter and testimony, Mr. Hendrickson offered the following opinions.

1. The proposed construction of the East and West Drains, in addition to the existing Grey’s Creek Municipal Drain, would constitute an unreasonable burden on the Pyper property that is actively farmed, since the drains must be fenced to prevent cattle from entering the watercourses.

2. The proposed West Drain would be located on lands that are dry and do not require artificial drainage.

3. It is illogical that the Drainage Act is now being used by developers to create easy drainage for urban lands while making life for affected farmers more difficult and adding costs to small businesses that cannot afford this.

4. From his review of aerial photographs and maps of the area, he does not see any watercourse across the Pyper property prior to 2011 and there is no visible channel along the north side of the Pyper property.

5. The two stormwater ponds on the Sunset Lakes properties could be connected, that is the west pond could flow to the east pond, so that only the East Drain would be required.

6. The watercourse shown as flowing across the Pyper property in the Shields Creek Subwatershed Study was a misinterpretation.

Upon cross examination, Mr. Hendrickson advised that:

• He did not visit the site;

• He did not review the document binder submitted to the Tribunal by Sunset Lakes Developments;

• He did not obtain a full copy of the Shields Creek Subwatershed Study;

• He did not review any of the hydrologic studies for the subdivision;

• He used the City contour mapping to determine the elevation difference between the two ponds; and

• It is his opinion that the original channel of the west tributary was on the Orchard View Subdivision property.

Lucie Pyper – Appellant

Mrs. Pyper commenced her testimony by quoting from her appeal that a private ditch alongside her farm laneway “was mistakenly identified as a municipal watercourse in the Shields Creek Subwatershed Study of 2004. This mistake was repeated in the Engineer’s Report.”

Mrs. Pyper provided significant information regarding a ditch that was dug south-westerly across the north part of her lot 9 and westerly along her private ditch beside her laneway in the spring of 2011, under the direction of Daniel Payer, an engineer employed by Sunset Lakes Developments. She advised that Mr. Payer told her that this ditch was needed to conduct surface water from the northeast part of Lot 9, the Argentina property, through the Pyper property, to the Grey’s Creek Municipal Drain. However, Mrs. Pyper advised that she and her late husband used to own that property and there was never any water flowing in that direction. She indicated that the only place where water entered her land from the Argentina land was at the extreme east end of her property.

Mrs. Pyper testified that she filled in a short section of this newly excavated ditch, near her north property line, in the fall of 2011.

Mrs. Pyper advised that she did not receive notice of the on-site meeting for this proposed Drain but her neighbours called her in the evening of the day of the meeting asking why she did not attend. After calling her local City Councillor, Mr. van Gaal, the Engineer, and Mr. E. Cryderman from the City, attended at her property the next day. She testified that she showed them and told them that if a new drain had to be dug, it should be located just north of her property, through the rear yards of Lots 10, 11 and 12 on Reindeer Way.

Mrs. Pyper advised that surface water occasionally flows westerly into the extreme east part of her property, from the southeast part of Lot 9, owned by Mr. Argentina. This normally happens only in the spring of the year.

Mrs. Pyper indicated that if a Municipal Drain has to be dug in her west part of Lot 9, it must be dug along the north property line since ditches are a significant problem for her cow-calf operation and she would have to fence the ditches to keep the cattle out of them. She also advised, if these two new Drains are constructed as proposed, there would be three municipal drains on her property which she feels would be a significant financial burden to her farming operation.

Mrs. Pyper suggested that it would be a much better solution for her property if the proposed West Drain could somehow be connected to the proposed East Drain, upstream of her property.

Mrs. Pyper referred to seven photographs taken on her property in April and May 2011, after the ditching work was done by the Sunset Lakes Developments contractor, and these photographs, with an index sheet, were entered as Exhibit 6. Since Mrs. Pyper’s daughter, Claudia Danner, took most of these photos, it was agreed that she would give evidence about them. Mrs. Pyper explained that the waterway shown in these photos did not exist prior to the excavation that was done by the Sunset Lakes Developments contractor in April 2011.

Mrs. Pyper advised that she received three letters from the South Nation Conservation Authority dated December 16, 2011, July 13, 2012 and November 26, 2012, as well as a site visit, about the situation on her property but no action was taken as a result of the letters or the site visit, either by her or the Authority.

Mrs. Pyper testified that she sent a registered letter, dated March 12, 2012, to Sunset Lakes Developments advising them, their employees and contractors, not to trespass on her property.

Mrs. Pyper described a visit made to her home by the owner of Lot 10 on Reindeer Way on November 12, 2012 regarding flooding on his property; however, when Mrs. Pyper investigated the area she did not see any flooding.

Mrs. Pyper also described a site visit made to her property by a staff member of the Ministry of the Environment; however, no action resulted from that visit.

Upon questioning, Mrs. Pyper indicated that she did not make any notes regarding her various conversations with Mr. Payer of Sunset Lakes Developments. She also confirmed that the section of the ditch that she filled remains filled now and, to her knowledge, this has not caused anyone any problems.

Upon questioning, Mrs. Pyper advised that when Mr. Payer initially spoke to her, she thought he was talking about the ditch at the extreme east end of her property, the ditch that is currently proposed as the East Drain, as, historically, that was the only location where water flowed from the neighbouring Argentina property on to her property.

Also upon questioning, Mrs. Pyper clarified that the ditch dug in the past by Mr. Dan O’Brien was on the west side of the Grey’s Creek Municipal Drain.

Claudia Danner – Representative and Witness for Lucie Pyper

Mrs. Danner referred to a group of seven photos entered into evidence, five which she took on April 22, 2011 and two taken by her brother approximately one month later. These are photos of the ditch that was dug on the Pyper property under the direction of Mr. Payer of Sunset Lakes Developments and show a channel at least one metre in depth and approximately three metres in width with steep, eroding banks. She testified that there was no watercourse of any kind flowing across the property in the north-south direction prior to this excavation and that the ditch that ran along the north side of the laneway to the Grey’s Creek Municipal Drain was only 1.5 feet in depth and was well overgrown with grass such that a tractor could cross it at any location, prior to this excavation. This ditching by Mr. Payer of Sunset Lakes Developments resulted in an eight acre field being cut off with no access from any direction. This ditching also resulted in the boundary fence having to be completely replaced for some distance.

Mrs. Danner also referred to aerial photos of the Pyper property taken before and after the ditching work by Sunset Lakes. She suggested that, in comparing the 2008 spring photo to the 2013 photos, it is quite evident that there was no such watercourse existing in these locations prior to the excavation undertaken in April 2011.

Mrs. Danner also suggested that the Shields Creek Subwatershed Report is in error with respect to the location of a watercourse on the Pyper property.

Mrs. Danner stated that her advice to Mrs. Pyper, in April 2011, was not to give permission to Mr. Payer to excavate any ditches on her property.

Mrs. Danner referred to the Pre-development Condition Plan of the O’Brien Subdivision Stormwater Management Report, as prepared by J. L. Richards & Associates Limited, and suggests that it is in error with respect to the watercourse shown crossing Mrs. Pyper’s property as there has never been a channel in that location.

Upon questioning, Mrs. Danner agreed that she did not have any professional qualifications with respect to stormwater management, subwatershed studies or aerial photo interpretation; however, she has been very familiar with the Pyper property for many years and knows the location of all the existing watercourses.

Upon questioning, Mrs. Danner advised that her solution to eliminate the proposed West Drain is to either connect the two stormwater management ponds or direct the proposed West Drain to the west along the Lot 8 – 9 property line to the Grey’s Creek Municipal Drain, where an excavated channel existed at one time.

Mrs. Danner stated that Mrs. Pyper objects to the special benefit assessment levied against her property for the relocation of the proposed Drain as she did not excavate the channel that currently exists, and there was no channel in the north-south direction previously. She suggests that this special benefit assessment for the relocation of the proposed Drain on the Pyper property should be directed to the subdivision lands owned by Sunset Lakes Developments as the development company is responsible for the location of the current channel.

Carmen Argentina – Assessed Landowner and Witness for Lucie Pyper

Mr. Argentina advised that he has owned the parcel of land north of the Pyper property, in the northeast part of Lot 9, since 1973 when he purchased it from Lucie Pyper’s husband, Gordon Pyper. Mr. Argentina stated that the westerly part of this parcel was a hay field and he rented it to Mr. Pyper, who took hay off of it and then pastured cattle on it, for a number of years. He further stated that at that time, and while Mr. Pyper was renting it, there was no flow of surface water across the property as it was directed to a 4 foot deep ditch that flowed to the west along the Lot 8 – 9 property line to Grey’s Creek. However, over the years, this ditch has become obstructed and surface water occasionally flows southerly through his property in a low run that has grown up with shrubs.

Mr. Argentina stated that when he was approached by Mr. Payer regarding permission to excavate this low run, he understood that it would be “a gentle cleaning” leaving a shallow swale that he would be able to walk and drive through, and that it would not cost him anything. What actually took place was not what he expected as it was excavated much deeper and wider than he understood. At that time, he had no idea where this ditch was going to be directed for outlet.

Upon questioning, Mr. Argentina advised that he was not familiar with the Greely/Shields Creek Stormwater Drainage Study; however, he agreed that a line labelled Tributary 2 on the Site Location plan included in the Stormwater Management Plan and Pond Design Brief for Cedar Lakes Subdivision, Parts 1 & 2, as prepared by J. F. Sabourin and Associates, transects his property.

William O’Brien – Assessed Landowner

Mr. O’Brien advised that he and his wife own the northeast quarter of Lot 10 and a narrow piece of land in the middle of the south half of Lot 10 with a total area of approximately 60 acres or 24 hectares. This land previously belonged to his father so he has been familiar with it for his entire life and currently lives on it and farms it.

He stated that the submission prepared by Sunset Lakes Developments for this hearing suggests that his land should be assessed as potential development land that could be subdivided into 18 lots. He said he consulted with a City planner and a City hydrogeologist and they advised that there is no opportunity for the development of this property in the near future and that the probability of any development of his land would be at least 40 to 50 years away. Accordingly, he suggested his property should be assessed as existing agricultural land.

He and his wife see no benefit from this proposed drainage ditch. They feel the proposed ditch will “butcher” their farm.

Upon questioning, Mr. O’Brien advised that there is a channel across his property now that runs from the north to the southwest and then westerly into his neighbour’s property. It has been cleaned out twice in his memory and is approximately two feet deep at the upstream end and five feet deep at the downstream end. He has three culverts now. He stated the relocation of the channel will benefit his property somewhat as his southwesterly field would no longer be cut off by the ditch and the relocated ditch would have to be fenced only on one side. When asked about a possible relocation of the proposed Drain upstream of his property, Mr. O’Brien advised that excavating the new channel along the Argentina-Pyper property line and along the south side of the Pyper property adjacent to his land would be feasible and beneficial, as it would reduce the amount of clearing and fencing that would be required.

Mike Argentina – Assessed Landowner

Mr. Mike Argentina is the brother of Mr. Carmen Argentina and they jointly own the northeast quarter and the southeast eighth of Lot 9 for a total of 75 acres. Mr. Argentina confirmed that when they purchased the property in 1973, and for many years after that, there was no watercourse through the westerly part of the property, where the West Branch is now proposed, as that area drained to the west in a ditch along the Lot 8 – 9 property line. His opinion is that the West Branch should not be constructed in the proposed location as it will divide their property. He suggested the alternatives of connecting the two stormwater management ponds so that only the East Drain would be required, or reopening the ditch along the Lot 8-9 property line or constructing the West Drain along their property lines rather than right across their land.

He stated that after Mr. Pyper stopped taking hay off of their property, they have only rented it to neighbours as grazing land and he does not see how these proposed Drains will provide their property with any significant benefits. Accordingly, he feels most of the cost should be assessed to the upstream development lands.

Upon questioning, Mr. Argentina advised that currently their property is not being used for any agricultural purpose.

He also advised that he could not see any problem with extending the proposed East Branch southerly, along his property line with Mrs. Pyper, but in Mrs. Pyper’s property, and then taking it westerly along the Pyper – O’Brien property line.

7657315 Canada Corporation and 6980848 Canada Corporation – Appellants

Daniel Anderson

The first witness for these companies was Mr. Daniel Anderson who is the President of Sunset Lakes Developments. Mr. Anderson is a real estate lawyer who has been in private practice for 42 years.

Mr. Anderson provided the history of the company dating from the late 1980’s when they embarked on a different type of development philosophy to create an optimum or ultimate type of residential community with an owners’ association to assume ownership and management of the community facilities that are constructed as part of the subdivision development. This philosophy has been successful and they have developed five subdivisions with fifteen lakes or ponds that act as stormwater management facilities, nitrate attenuation facilities and recreational areas.

Mr. Anderson then provided the history regarding the development procedure for the southeast quarter of Lot 7, being a 45 acre parcel of land that the developers purchased from a Mr. and Mrs. Ripley as their next proposed subdivision. This property is within the Village of Greely in the Official Plan and was designated for residential development. At that time, Mr. Anderson and his partner invited Mr. Daniel Payer, a Professional Engineer who had worked on their two previous developments, to join them as a shareholder in the development company established for this project.

He advised that this development procedure can include up to seven types of professional studies in addition to the actual layout of the lots, design of the roads and services, and the formal subdivision application to the City, all of which can be quite costly. All of this information is circulated to numerous approval agencies including the Conservation Authority and the Ontario Ministry of the Environment. He mentioned that obtaining approvals for the private subsurface sewage systems and for the drainage systems can be extremely difficult, in some cases. He also stressed that Sunset Lakes is strictly a development company – they do not build houses to sell or lease.

Mr. Anderson advised that the current status of the subdivision development on the southeast quarter of Lot 7 is that 40 residential lots have been approved and registered in Phase 1 and 20 lots have been given draft approval in Phase 2, which includes the northerly 25 acres of Lot 8.

As for drainage outlet for these lands, Mr. Anderson advised that his company was not satisfied with the drainage outlets from Lot 7, although that property was assessed into the Grey’s Creek Municipal Drain. Accordingly, they investigated the east half of Lot 8 and satisfied themselves that it had two legal outlets; therefore, they proceeded to acquire that property in order to secure these drainage outlets, identified as tributaries in the Shields Creek Subwatershed Study prepared for the City. They felt they had prescriptive rights to these watercourses.

Mr. Anderson then proceeded to explain the land use planning situation within the drainage area advising that the southeast quarter of Lot 7 was the last property within the “Village of Greely Residential Designation”. He further explained that, recently, the City imposed a moratorium on any further rural residential developments, leaving all the other lands within the drainage area in the same situation as “indefinitely undevelopable”. Sunset Lakes Developments and some other developers have appealed this matter to the Ontario Municipal Board.

Mr. Anderson explained that they undertook very detailed hydrologic/stormwater management studies for the subdivision which have proven that, with the use of the two oversized ponds, the post-development flows will be less than the pre-development flows and these studies and results have been accepted by the Conservation Authority and the Ministry of the Environment. In spite of these approvals being given, the City insisted on more formal legal access to the outlet watercourses so the developer provided easements through Lot 8 to the points where the watercourses were identified in the Subwatershed Study. However, the City insisted that these legal rights for maintenance access extend to the Grey’s Creek Municipal Drain. Accordingly, the developer agreed to petition for Municipal Drains.

Upon questioning about the excavation undertaken in April 2011, Mr. Anderson advised that there was no physical need to do the work but that, as good rural neighbours, they took a common sense approach to solve the problem of legal outlet and the right to maintain by doing the cleanout for free across the two neighbouring properties. He also advised that City staff wanted the Municipal Drain but, in the opinion of Sunset Lakes Developments, it was not required, and they were relying on the Drainage Act to provide a fair assessment of the costs. He also indicated that the Conservation Authority did not ask for any improvements to the channel downstream of the subdivision.

Mr. Anderson explained that the stormwater management ponds are deeded to the landowners association but the City has an easement over them so that, if the owners association does not maintain them, the City can step in to do so. The City also has an easement over all of the interior and exterior swales that are located on the private properties in the subdivision and can, therefore, undertake maintenance thereon, if required.

Daniel Payer, Professional Engineer

Mr. Payer was the second witness called by these appellants. Mr. Payer is a licenced Professional Engineer in Ontario with about 16 years of experience, all as an urban land development civil engineer, with about nine of those years with consulting firms and the last five years exclusively for Sunset Lakes Developments. Mr. Payer is a one third shareholder in 6980848 Canada Corporation, the company established for the development of the subdivision in the southeast quarter of Lot 7.

As the development engineer for Sunset Lakes, Mr. Payer testified that he relied heavily on the 2002 Greely/Shields Creek Stormwater and Drainage Study and the 2004 Shields Creek Subwatershed Study, both which were prepared by consultants for the City as watershed planning documents, and both which showed watercourses flowing from the east part of Lot 8 to the Grey’s Creek Municipal Drain. A number of plans and a geomorphic stream reach description table from these Studies were provided as exhibits to confirm this information. The conclusion that Mr. Payer drew from this data was that that Lot 8 had two natural watercourse outlets.

Mr. Payer further stated that these watercourses were also shown on the City’s 2012 Greely Community Design Plan – Land Use, as well as a provincial mapping website, and the Natural Heritage System Plan from the City’s Official Plan. Copies of all these plans were provided in evidence. While one of the plans from the Shields Creek Watershed Study indicates a large pond generally in the northeast portion of Lot 9, Mr. Payer stated that it is not really a pond, but likely a low area that may be somewhat wet. Mr. Payer also provided a partial copy of the pre-development condition plan for the northwest quarter of Lot 9 from the O’Brien Subdivision Stormwater Management Report that was prepared by the consulting engineering firm of J. L. Richards & Associates Limited in June 2004 and approved by the City’s Manager of Rural Design & Construction. This Plan also indicates a watercourse labelled as “Centreline of Tributary Grey’s Creek” flowing southerly out of the northeast part of Lot 9 (the Argentina property), into the corner of the northwest part of Lot 9 (the Dan O’Brien Subdivision) and into the southwest portion of Lot 9 (the L. Pyper property).

Mr. Payer then referred the Tribunal to the City’s Planning and Development document entitled Servicing Study Guidelines for Development Applications wherein it states that watershed and subwatershed studies are to be consulted in the preparation of development servicing studies, and a copy was provided in evidence. Mr. Payer also referred to the City’s Infrastructure Master Plan 2013 which indicates that new development can take place adjacent to municipal drains as long as stormwater management measures are incorporated in the development to mitigate impacts on the drain.

Mr. Payer then referred to the 1990 Engineer’s Report for the Grey’s Creek Municipal Drain and specifically the outlet assessments to the southeast part of Lot 7 and the east part of Lot 8, for 18.67 and 36.42 hectares respectively, these lands now being owned by the Sunset Lakes Development companies.

Mr. Payer continued by referring to the Preliminary Servicing Study that he prepared in April 2010 to accompany the application for draft approval of a plan of subdivision in part of Lot 7. He also referred to the Stormwater Management Plan and Pond Design Brief, dated July 2010 and updated in January 2012, as prepared by J. F. Sabourin and Associates Ltd. for the proposed subdivision of part of Lot 7. Mr. Payer specifically referenced the Site Location Plan from the Sabourin Brief, which he prepared and provided to Sabourin, and testified that this Plan correctly shows the location of the tributary watercourses through the subject lands, according to the Shields Creek Subwatershed Study. Mr. Payer quoted part of the Summary and Conclusions of the Sabourin Brief as follows, “The downstream Tributary 1 and Tributary 2 channels have sufficient capacity to convey the pond outflows.” and “In conclusion, the proposed design satisfies all selected design guidelines and requirements.” Mr. Payer also referenced a May 4, 2014 letter from Sabourin which stated that “…the average annual runoff volumes from the site will be, by means of retention and infiltration, controlled to existing conditions …”.

Mr. Payer then referenced a permit from the South Nation Conservation Authority for cleanout of a watercourse that was issued September 18, 2012, approximately 18 months after the work was undertaken on the Payer and Argentina properties. This permit stipulated that the proponent was to obtain landowner permissions.

Mr. Payer further referenced a September 2011 email from a City official indicating that the City wants an outlet(s) from the subdivision that it can access for maintenance purposes.

Mr. Payer then referenced the August 14, 2012 Clearance Letter, addressed to the City, for the Stormwater Management Plan and Pond Design Brief for the part Lot 7 subdivision from the South Nation Conservation Authority, and the Environmental Compliance Approval dated March 14, 2013 from the Ministry of the Environment.

Mr. Payer then testified as to his dealings with Mrs. Pyper in April 2011 as summarized in his three memos to file dated April 8, 18 and 26. He stated that he obtained verbal permission from Mrs. Pyper to undertake ditch excavation on her property. Similarly, about the same time, he obtained verbal permission from Mr. C. Argentina to undertake ditch excavation on his property. He advised that his contractor undertook the excavation work on the Pyper and Argentina properties on April 14 and 15, 2011.

Mr. Payer explained that the development company cleaned out the channels on its own property in March 2010 and March 2011 and felt that they should continue this excavation downstream at no cost to the affected owners, to be “good neighbours”. He agreed that both of the stormwater management ponds constructed for the development of part of Lot 7 required an outlet. The easements across Lot 8 along these two outlets have been registered in the name of the City.

Mr. Payer then proceeded to review his report entitled Comments/Revisions to the Engineer’s Report for the Municipal Drains, in which he suggested changes to the cost estimates, the assessments and the allowances for both the East and West proposed drains. Mr. Payer stated that, in his opinion, there is no other feasible route for the West Drain to follow other than the one he excavated or the one proposed by the Drainage Engineer. He also advised that, based on his knowledge and his review of the Shields Creek Subwatershed Study, there is a large wet area on Mr. Argentina’s portion of Lot 9 that will benefit from the drainage to be provided by the proposed East Drain.

Upon cross examination, Mr. Payer confirmed that he is a consultant who works exclusively for Sunset Lakes Developments and that he is a one third shareholder in 6980848 Canada Corporation, the company that is developing the southeast part of Lot 7. When asked if he contacted the authors of the 2002 Greely/Shields Creek Stormwater and Drainage Study and the 2004 Shields Creek Subwatershed Study to determine if they had actually walked and observed the tributaries 1 and 2 identified therein, he indicated that he had not. He assumed that the authors of those reports had someone on site. When asked if this work could have been done strictly from map and aerial photo interpretation, he was unsure. When asked if he understood that when a property is assessed for outlet in a municipal drainage project it does not necessarily mean that property has a direct outlet, he disagreed. His opinion is that if a property is assessed for “outlet” to a municipal drain then that property has a right of drainage to that municipal drain.

Upon questioning, Mr. Payer stated that he did not apply to the Conservation Authority for a permit for the channelization work that he undertook on the Pyper and Argentina properties as he considered it a ‘simple cleanout’ and not ‘an alteration of a waterway’. In his opinion, he did not need a permit. It was not until the Conservation Authority contacted him after he had done the work that he applied for a permit.

Upon questioning, Mr. Payer testified that he walked the Argentina and Pyper lands in March 2011 and observed a watercourse in the location shown on the Shields Creek Subwatershed Study plans; however, upon further questioning he could not readily and conclusively identify the westerly watercourse on the 2008 aerial photos produced by Mrs. Pyper. When asked about the statement in the Shields Creek Subwatershed Study that “measurements from digital mapping of channel length, sinuosity, meander belt width and channel gradient” were recorded as part of the Study, Mr. Payer could not confirm if staff members of the consulting firm were actually on site or whether all this work was done from digital mapping.

Mr. Payer advised that he offered to attend at the Pyper property late in the spring of 2011 to level spoil piles, install a culvert and fix fences but access to do so was denied by Mrs. Pyper.

Mr. Payer stated that all undeveloped lands within the two drainage areas are zoned the same and, therefore, should be assessed on the same basis, that is, as future residential lands, at one lot per two acres.

Upon questioning, Mr. Payer stated that he was aware that the development company had approached Mr. Argentina and Mrs. Pyper with offers to purchase all or part of their properties that are involved in this drainage project. Mr. Payer also testified that his development company did not need to hire an independent drainage engineer to present alternative assessments for this project as he was more than capable of preparing them himself, as a landowner.

Mr. Payer advise that he has no experience preparing reports under the Drainage Act.

Mr. Payer stated that, since the channel on the Pyper property was blocked, it is his observation that the flow of water out of the Argentina property has been heading westerly into the rear of Lot 10 off Reindeer Way.

Upon questioning, Mr. Payer indicated that the future development of the east half of Lot 8 is the subject of an appeal to the Ontario Municipal Board and that, if successful, development may occur in five to ten years. If and when it does occur, it would be without any increase in peak flows to the downstream channels. Since peak flows are not going to be increased downstream of the development currently proceeding in Lot 7 or downstream of the east part of Lot 8, if and when it is developed, Mr. Payer agreed that the channels in question could have remained as they were prior to April 2011 or as they are now. He confirmed that the current and future developments do not require the proposed Municipal Drains. In response to questioning, Mr. Payer indicated that his development company would not be concerned if the proposed Municipal Drain projects did not proceed.

Mr. Payer stated that his company is still willing to undertake restoration work on the channel that was excavated through the Argentina and Pyper properties and would be willing to do this under the supervision of the City Drainage Superintendent, if that was required.

John van Gaal, P. Eng. – Stantec Consulting Ltd.

In response to the evidence of the appellants and the other affected landowners, Mr. van Gaal stated he was somewhat sceptical about the original location of the low run or swale in the West Branch drainage area through Lot 9 and, especially, the Pyper property. He stated that the east and west channels need to be made Municipal Drains in order to achieve the outlet requirements requested by the City, and that he considers the Grey’s Creek Municipal Drain a sufficient outlet. He advised that, while Mrs. Pyper appealed under sections 48(1) and 54(1), she has not appealed the allowances provided in the Report. Sunset Lakes Developments appealed only under section 54(1), which deals only with assessments. Therefore, he suggests that Sunset Lakes Developments cannot now appeal the allowances provided in the Report. Mr. van Gaal felt his assessment method was fair and reasonable.

Mr. van Gaal stated that the O’Brien property and the west part of the Pyper property would not require a municipal drain in order to be developed for rural residential use as they now have direct access to the Grey’s Creek Municipal Drain, whereas, the other affected properties would require a drainage outlet if they were to be developed.

Mr. van Gaal requested that the Tribunal give consideration to the following corrections or amendments to his Report in its decision:

1. Delete the phrase “w/extra depth for NE1/4 Lot 9” on the second page of Schedule A, as that request was withdrawn after the costs were known;

2. That the farm lane culvert proposed at station 1+312 on the East Drain be extended by 6 metres, across the property line, to allow Mrs. Pyper to access her 3+ acre field that would otherwise be cut off by the Drain;

3. That the assessments to the now subdivided part of Lot 7 be allocated as he has suggested in Schedules B and C of tab F of Exhibit 2;

4. That the amount shown for ‘Contingency’ in Schedule A, the cost estimate for the West Drain, be corrected to $2,045.37; and

5. That the amount shown for ‘Other Costs’ in Schedule A, the cost estimate for the West Drain, be corrected to $4,295.27.

Mr. van Gaal stated that the development companies were not assessed a greater amount just because they were the petitioners. He explained that he assessed Lot 8 at a greater rate per unit area than the downstream lands as Lot 8 is closer to the “Village” zoning boundary and further away from the outlet. He further testified that the proposed drains are designed to accept the runoff from the downstream lands if and when they are developed for residential purposes, on the basis that post development flows will not exceed pre-development flows.

Upon questioning, Mr. van Gaal advised that he prepares about two reports a year under the Drainage Act but he is not familiar with the Todgham Assessment Method.

When asked about the blockage in the excavated channel on the Pyper property, Mr. van Gaal stated that his observation was that the water flow in that channel was going over or around the blockage, or dam as he referred to it, but some was also flowing westerly into the rear of the residential lots on the south side of Reindeer Way. When asked if there was any way to connect the proposed West Drain to the proposed East Drain upstream of the Pyper or the Argentina properties, Mr. van Gaal indicated that this was not possible due to the significant height of land between the two proposed Drains and because the proposed West Drain was generally lower than the proposed East Drain.

Mr. van Gaal agreed that the proposed East Drain could be realigned between approximately stations 1+317 and 1+527 to avoid cutting off the 3+ acre field on the Pyper property and avoid the necessity of extending the lane culvert at station 1+312 to provide access to that field; however, he advised that such a realignment would add two right angled bends which would increase the cost somewhat.

Upon reviewing the culvert relocation proposed on the West Drain, it became evident that the roll number listed in Schedule H of the Report is in error, that is, 06147000302044 should actually be 061470003020400 and Mr. van Gaal indicated that this can be corrected by an order of this Tribunal.

Mr. van Gaal stated that it was his intention that the Report indicate that livestock access to the proposed Drains is prohibited; therefore, fencing the Drains is recommended in areas where livestock will be pasturing. It was suggested to Mr. van Gaal that his statement about this issue in the Report could have been more definite.

Upon cross examination by Mr. Webber, Mr. van Gaal indicated that he was unsure whether the blockage in the excavated channel on the south part of Lot 9 was resulting in the rear portions of the lots on the south side of Reindeer Way being wetter than they were before the channel was excavated.

Upon further questioning, Mr. van Gaal agreed that the affected lands in Lots 8 and 9 are all zoned as “Rural” and, therefore, could be developed into two acre lots; however, he did not agree that, just because of that, the proposed Drains are of equal value to all three properties. His opinion is that the Drains are of more value to the properties further upstream from the Grey’s Creek Municipal Drain.

Upon questioning by Mrs. Danner, Mr. van Gaal stated that he had not personally heard from any of the owners of the properties along Reindeer Way regarding excessive water in the rear of their lots. He also advised that, when he last saw the situation at the blockage point on the Pyper property, there was no flow around the blockage. He further indicated that it was his opinion that fencing the proposed West Drain in the Pyper property would be of benefit to both Mrs. Pyper and the upstream lands, as it would prevent damage to the Drain from cattle access. In reply to Mrs. Danner suggestion that the downstream end of the proposed Drain would have to be fenced to prevent cattle accessing it from the Grey’s Creek Drain, Mr. van Gaal agreed that it should be done but entirely at Mrs. Pyper’s expense. When asked what portion of channel along the West Drain he proposed to have filled in the Pyper property as part of the project, Mr. van Gaal indicated that it is only the north-south portion. When asked if there was some way to control the erosion and restore the east-west portion, Mr. van Gaal advised that he would inspect it at the time of construction and do what he could, as a contingency item, but it is not possible to partially fill an existing ditch.

Mr. O’Brien asked if the possible realignment of the proposed East Branch would be on Mrs. Pyper’s property or on his property and he was advised it would be on the Pyper property. Mr. O’Brien stated that he does not use the area immediately east of where the ditch now enters his property and suggested that the bend on the new realigned Drain could be constructed on a more gentle curve rather than at a right angle at that location. Mr. O’Brien stated that his farmland is not underdrained and, due to its sandy nature, does not require tiling; therefore, the proposed Drain is of no benefit to him as an outlet but it would safely convey the water from the upstream lands through his property.

7657315 Canada Corporation and 6980848 Canada Corporation – Appellants

Mr. Daniel Payer, P. Eng. – Mr. Payer introduced his survey notes from April 14 and 15, 2011 which were made Exhibit 14. Mr. Payer explained these survey notes indicating that he took three elevations in the existing channel on the Pyper property, one in the Grey’s Creek Municipal Drain, one in Pyper’s private ditch beside the laneway 235 metres east of the Municipal Drain, and one 110 metres northeast of the laneway on the Pyper – Argentina property line that was 200 mm in depth. He testified that there was water flowing at all of these locations. He advised that he undertook the excavation on the Pyper property on April 14, 2011. On April 15 he took four elevations on the Argentina property, one at the Pyper - Argentina property line in the channel that had been excavated the day before, two on the bends in the channel on the property and one at the property line between Lots 8 and 9 which had been excavated previously. It is his opinion that these survey notes indicate some type of channel at all locations.

Upon questioning by the Tribunal, Mr. Payer identified Exhibit 13 as an enlargement of a portion of the Grey’s Creek Municipal Drain Plan showing the lands within the drainage areas of the Stagecoach Road East and West Drains.

Upon questioning by Mr. O’Brien, Mr. Payer indicated that Lot 10 is not included in the expansion of the ‘Village’ zoning area being sought by the developers.

Final Arguments

The City of Ottawa - Cathy Crosby

The position of the City is that there is a lack of firm status regarding the two watercourses being used as outlets by the developers, either as natural watercourses or as private ditches with prescriptive rights. The westerly tributary is not visible on any aerial photographs prior to April 2011. The City is of the opinion that this lack of firm status was the motivation for the developer undertaking the excavation on Lot 9 in April 2011. Mr. Payer, as a one third shareholder in the company developing the subdivision in part of Lot 7, had a vested interest in the matter and knew the importance of obtaining an outlet and, therefore, was instrumental in undertaking the excavations. The City’s position is that these two Municipal Drains must be constructed, as proposed, in order to secure a sufficient outlet for the subdivision, and any increases in assessment and/or any additional costs should be directed to the properties owned by the developers.

7657315 Canada Corporation and 6980848 Canada Corporation - Paul Webber

Mr. Webber stated that the Petitioners are seeking equality under the law. They feel they have been assessed too much for these proposed Drains. It is their view that:

• This is a rural drainage project that will create benefit to all lands both now and in the future by increasing property values.

• The subdivision in Lot 7 does not require a municipal drain for outlet as the stormwater management plan that has been implemented there exceeds requirements and will actually reduce flows downstream.

• There is no immediate benefit to that part of Lot 7. The only conceivable benefit to those lands is to allow future municipal maintenance of the watercourse downstream.

• Lot 8 and all the other downstream lands will receive benefit from the proposed Drains as they will provide all of the lands with a properly designed legal outlet that can be maintained by the City in the future, and this will increase the value of all of these properties.

• The Petitioners pursued this municipal drain project as it was considered to be good for all of the landowners involved. It cleaned out the channel in Lot 9, at no cost to those owners as a good neighbour, and is prepared to properly complete that work, if permitted.

Relying on evidence provided by Mr. Payer, Mr. Webber stated that it has been proven the westerly channel was an existing natural watercourse but, in spite of this, Mrs. Pyper claims there was no channel across her property.

Mr. Webber further stated that there seems to have been no debate during this hearing with regard to the existence of the easterly channel. In their opinion, improving it as a municipal drain will make it a very good outlet for all of the lands in that watershed.

Mr. Webber proposed the following remedies in this matter.

1. Approve all but the assessment portion of the van Gaal Report and alter the assessments so that they are fair and reasonable. It was felt that Mr. van Gaal got off on a tangent with the premise that the developers should pay most of the cost of this project and that is wrong. He felt the Drains are only of minimal benefit to Lot 7 and are of equal benefit to all of the other affected lands. All of the other affected lands have the same future development potential. He felt that the City should pay more for the roads and parks in Lot 7. He suggested that the assessment schedules prepared by Mr. Payer should be used as they are fair to all of the lands.

2. Cancel this municipal drain process. Do not proceed with any report or project since the developers do not need these proposed Municipal Drains as the two tributaries exist as natural watercourses.

3. Approve all but the assessment portion of the van Gaal Report and use the assessment reasoning from Mr. van Gaal’s draft report incorporating “Development Charges” wherein a significant part of the cost was proposed to be deferred to future owners.

4. Approve all but the assessment portion of the van Gaal Report, alter the assessments so that they are fair and reasonable as per Mr. Payer’s calculations, and allow the Petitioners to undertake the construction work, for the estimated cost in the Report or less, under the supervision of the Drainage Superintendent.

Lucie Pyper - Claudia Danner

Mrs. Danner advised that Mrs. Pyper has lived on part of Lots 9 and 10 since August 1979 and, during that time, has actively participated in all aspects of farming the said property. She said that Lucie Pyper and her husband raised beef cattle and, at one time, had 50 head that grazed over the entire property. Accordingly, interior and boundary fences had to be erected and maintained on a regular basis, a job that Mrs. Pyper assisted with, so she is very familiar with the entire property.

Based on her 35 years of living and working on this land, Mrs. Pyper attests that there never was any north-south watercourse across the north part of Lot 9, near the midpoint of the Lot, and that any plans that show such a watercourse, including the Shields Creek Subwatershed Study, are in error. No one who has given evidence at this hearing, other than Mrs. Pyper and Mr. Payer, was on her property prior to April 2011 when Mr. Payer trespassed on her property and excavated the new channel. Conservation Authority staff did not visit her property until after April 2011.

Mrs. Pyper was satisfied with the drainage situation on her property prior to April 2011 and sees no benefit to her property from the proposed Drains. She does not want three municipal drains on her property. Farming this land is her business and her way of life and she cannot justify the expense of this project in the operation of her farm.

She considers it unprofessional that the developers would have one of their shareholders prepare a suggested revised assessment schedule that, of course, reduces the assessment to their properties. In her opinion, Mr. Payer’s proposed revised schedule is without credibility. She felt they should have hired a third party to do this.

Mrs. Pyper made the following suggestions to the Tribunal to resolve this matter.

1. Cancel the municipal drain process completely and order that her property be restored to its condition prior to April 2011, at the cost of 6980848 Canada Corporation. Mr. C. Argentina has advised her that, based on his recent inspections, any water flowing in the channel through his property toward Mr. Pyper’s property is not causing anyone any harm.

2. Order that the West Drain be directed westerly at the Lot 8 – 9 line to flow along the north side of that lot line, through the rear yards of the large lots fronting on Deermeadow Drive, to the Grey’s Creek Municipal Drain, as it did in the past. The old ditch is still there but is badly overgrown.

3. If a municipal drainage project must proceed, make it only the East Drain and, if it is necessary, somehow connect the west pond to the east pond or the west channel to the east channel on Lot 8.

Carmen Argentina

Mr. Argentina stated that he wants to see the development of Lot 7 proceed but with a drainage solution that is good for all the landowners. He is of the opinion that the Drains are being proposed only to provide outlet for the development lands and are not needed by the downstream owners. He finds it odd that the Drains are not being extended through the developer’s lands in Lot 8, directly to the stormwater management ponds, but are only proposed to be constructed on the lands of the downstream owners. He asks, if there is no need for municipal drains on the developer’s lands then why is there a need for the Drains on the lands of the downstream owners? He is appalled by the unprofessional actions of Mr. Payer who proceeded to excavate channels three to four feet deep on other people’s property, where none existed before, without written permission and without the required permits from the Conservation Authority.

Mr. Argentina offered the following as possible solutions to this matter.

1. Cancel both proposed Municipal Drains completely, leaving the ditches as they are now, and the downstream landowners will clean them out if and when they feel it is necessary.

2. Eliminate the proposed West Drain through Lot 9 and order that it be taken westerly along the Lot 8 – 9 property line to the Grey’s Creek Municipal Drain where it has flowed since before 1973 when they purchased the property.

3. Order that the east stormwater management pond be lowered a sufficient amount and altered as required to allow the west pond to flow to the east pond, and then modify the east tributary as required to handle the outflow from both ponds, thereby eliminating the need for the proposed West Drain, with the developer paying the full cost of all the works, but not as a municipal drain, just as a private drain, with a land access agreement or easement to meet the requirements of the City.

William O’Brien

Mr. O’Brien stated that he is satisfied with the existing drainage situation on his property but, if a project is going to proceed, it must be as a municipal drain rather than a private agreement drain as that is the only way to avoid future problems with access and maintenance.

Findings

As mentioned above, Mrs. Pyper’s appeals were filed under Sections 48(1) and 54(1) of the Act. The appeals by 6980848 Canada Corporation and 7657315 Canada Corporation were filed under Section 54(1), which relates only to assessments. Accordingly, the issues raised by the Corporations with respect to allowances have not been considered.

The Tribunal questions both the validity of this Petition, the process that was followed in obtaining the Petition and the need for these proposed drains.

As for the Petition, it was filed by the developers to comply with a condition of final approval of the subdivision in Lot 7, yet evidence indicates that the subdivision lands have sufficient outlet to large stormwater management ponds, which apparently are overdesigned, such that downstream flows will not be increased. In fact, Mr. van Gaal himself agreed that those flows should be decreased due to the overdesign of the ponds. Based on that evidence, it appears that Lot 7 does not require an outlet. The affected portion of Lot 8 is vacant land, mostly covered with trees, and is not being developed in the foreseeable future. Additionally, the developer’s engineer, Mr. Payer, indicated that his development company would not be concerned if the proposed Municipal Drain projects did not proceed. In spite of these considerations, the Engineer determined that only these properties comprised the ‘area requiring drainage’. Accordingly, the Tribunal questions whether the ‘area requiring drainage’ was properly determined.

As for the process, it is unfortunate that the City and the Ontario Municipal Board allowed the development lands in Lot 7 to be subdivided and sold prior any drainage issues being resolved. This premature approval puts some responsibility for the current situation on the City. The fact that the subdivision lands are now owned by many parties, rather than only by the developer, would make it difficult for the Tribunal to insure that the proper parties would be assessed the costs of this proposed project, if it were to proceed. The suggestion by Mr. van Gaal that the assessments to the now subdivided part of Lot 7 be allocated as he has proposed in Schedules B and C of tab F of Exhibit 2, and the suggestion by Mr. Webber that the City be assessed more for the parks and roads in the subdivision, is of concern to the Tribunal. The Tribunal finds it reasonable that the costs for any required drainage outlets should be part of the costs of developing a subdivision and should be paid by the subdivision developer. The Tribunal understands that the City was relying on the Drainage Act process to secure legal, maintainable outlets for the two portions of the subdivision in Lot 7, after the fact, but this should have been completed much earlier in the development process.

As for the need for the proposed drains, Lot 7 has an outlet to the ponds, Lot 8 is unused bush land, the owners of all the downstream lands provided evidence that their lands do not require drainage and they do not support the proposed plans, and even the Companies that petitioned for the Drains have made the extraordinary request that this municipal drain process be cancelled. The Tribunal accepts the evidence of the landowners that their lands do not require drainage and thus we find the benefits to be derived from the proposed works to be minimal.

Accordingly, it would appear that the $203,000 cost of these proposed drains, drains that would be only 1690 metres in total length and on average only one metre in depth, is much greater than the benefits to be derived.

Considerable evidence was presented about the existence and condition of the two channels that are the subject of this drainage proposal, both prior to and since April 2011. Some of the prior evidence was on paper, that is, plans from the Shields Creek Subwatershed Study and the Greely/Shields Creek Stormwater and Drainage Study and aerial photographs from 2008. Personal evidence was provided by Mrs. Pyper, Mrs. Danner and Mr. Payer. Mr. Payer supported his evidence with survey notes made on April 14, 2011; however, these notes did not provide any elevations in the alleged north-south channel on the south part of Lot 9. Elevations were provided only in the ditch alongside the laneway and on the upstream side of the property. Mrs. Pyper’s evidence was based on 35 years of living on and working this farm land. Accordingly, after considering the oral evidence and studying the aerial photos and plans, and taking into consideration that one of the plans showed a pond where none existed, the Tribunal finds that there was no existing watercourse. The Tribunal accepts Mrs. Pyper’s evidence on this issue.

The westerly portion of the property owned by appellant Lucie Pyper (parts of Lots 9 and 10) has direct access to the Grey’s Creek Municipal Drain that bisects the property and, therefore, does not require an outlet. Furthermore, based on her evidence and the above-noted finding, this portion of her property was not adversely influenced by water flowing onto her property from any adjacent lands. Accordingly, the Pyper land does not need the proposed West Drain. It was proposed to be constructed there only because it was more convenient to do so rather than following what appears to be the natural route through the rear yards of the three Reindeer Way residential lots. Accordingly, the Tribunal does not see that the Pyper property would receive any benefit from the proposed West Drain nor would that property have any outlet liability for such a Drain.

The Tribunal accepts that Mr. Payer has been a licenced Professional Engineer in Ontario for 16 years and has experience in urban land development and stormwater management; however, he has spent the last five years working exclusively for Sunset Lakes Developments, he is a one third shareholder in the development company known as 6980848 Canada Corporation, and he has no previous experience in preparing assessments under the Drainage Act. However, since he is a one third shareholder in 6980848 Canada Corporation, and since he is the urban land development and stormwater management expert for the two companies that petitioned for the proposed Drains, the Tribunal does attach considerable weight to his statements that the current and future residential developments do not require the proposed Municipal Drains and that his development company would not be concerned if the proposed Municipal Drain projects did not proceed.

On the basis that the downstream landowners now appear to be sufficiently familiar with the Drainage Act such that they will know how to seek remedy, should the drainage situation on their properties warrant action in the future, the Tribunal will grant the requests of all of the landowners to cancel these drainage projects.

Both in his Report and in his evidence at the hearing, Mr. van Gaal made it quite clear that the primary purpose of these two drainage projects was to provide sufficient outlet for the stormwater from the development lands in Lots 7 and 8. Accordingly, he assessed a significant portion of the cost to these development lands. This appears to be in keeping with the views generally understood and accepted by municipalities and developers in several parts of Ontario that, if and when a proposed development requires an outlet for stormwater or sanitary sewage, the development company will pay the entire cost of obtaining that outlet. Using the Drainage Act may be a somewhat unusual way to obtain a stormwater outlet for a subdivision development and could result in downstream owners paying part of the costs of the development. However, the Tribunal tends to agree with Mr. van Gaal that this generally understood and accepted philosophy that development companies will pay the entire cost of obtaining an outlet should apply in such cases.

Due to the unusual circumstances surrounding this project and the process it followed, the parties to this appeal are reminded that the powers of the Tribunal are summarized in Section 51(1) of the Drainage Act in the following terms:

“51. (1) On any appeal or reference to the Tribunal under this Act, the Tribunal shall hear and determine the matter and, where not so provided, may make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act.”

In the typical process under the Drainage Act, if the landowners who petitioned for the project change their minds and want the process stopped, they remove their names from the petition and if, as a result, the petition fails, Section 43 of the Act indicates that “…the original petitioners … are liable to the municipality for the expenses incurred by the municipality in connection with the petition and report”. Accordingly, in these extraordinary circumstances where the petitioners are requesting the project be cancelled at this stage, the Tribunal determines that the intent of Section 43 can apply. Furthermore, the Tribunal concludes that the City bears some responsibility for this situation by approving the subdivision without ensuring that drainage issues were addressed in a manner that did not result in downstream owners potentially paying what are, essentially, development charges. As a result, the Tribunal resolves that all three parties, that is, the two development companies and the City, shall be responsible for the non-administrative costs incurred by the municipality in connection with the Petition and the Report.

DISPOSITION

For the reasons given, the Tribunal finds that the Drains proposed in the Engineer’s Report are either not required or that the cost of the proposed Drains is much greater than the benefits to be derived. While the actions of 7657315 Canada Corporation and 6980848 Canada Corporation in entering upon Lucie Pyper’s property without notice and consent and excavating ditches may have exposed these companies to civil liability, the Tribunal has no jurisdiction to award damages and grant an injunction to rectify these actions. The jurisdiction in this regard lies with the Superior Court of Justice of Ontario.

ORDERS OF THE TRIBUNAL

The Tribunal orders are as follows.

1. The appeal by Lucie Pyper under Sections 48(1) of the Drainage Act is granted in part by setting aside the Engineer’s Report for the StageCoach Road East and West Municipal Drains, as prepared by Mr. John van Gaal, P. Eng. of Stantec Consulting Ltd. and dated February 15, 2013.

2. The appeals by Lucie Pyper, 7657315 Canada Corporation and 6980848 Canada Corporation under Section 54(1) of the Act are moot as a result of Order 1.

3. The non-administrative costs of the municipality incurred with respect to this Report which, for greater certainty include the Engineer’s fees for preparing for and attending the hearing, shall be paid for by 7657315 Canada Corporation, 6980848 Canada Corporation and the City of Ottawa, at the rate of 33.33 percent each.

4. There will be no other order of costs and all parties are responsible for their own costs.

Dated at Ottawa, Ontario this 8th day of January, 2015.