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: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL:

Sinclair Drain/Virostek Drain 2014 Township of St. Clair

Sinclair Drain/Virostek Drain 2014 (RE) 2015ONAFRAAT18

STATUTE:

Drainage Act

HEARING:

September 8, 2015

DATE OF DECISION:

September 21, 2015

2015-18

NEUTRAL CITATION:

2015ONAFRAAT18

SINCLAIR DRAIN/VIROSTEK DRAIN 2014

Township of St. Clair

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 Ronald and Pauline Barnes, Allen and Irene Goodall, Terry and Nancy Janson, Greg Luinstra, Don and Nancy McClemens, Dale and Cathy McDonald, David Morton, Ken and Susan Weed and Daniel West, all of Mooretown, Ontario under sections 48(1) and 54(1) of the Drainage Act from the Engineer’s Report and the decision of the Court of the Revision; and Catherine Dobroski of Mooretown, Ontario under section 48(1) of the Drainage Act from the Engineer’s Report pertaining to the Sinclair Drain/Virostek Drain 2014 in the Township of St. Clair.

Before:

Jeffrey J. Hewitt, Vice-Chair; Ed Dries, Member; Tim Mousseau, Member

Appearances:

Ronald Barnes, Appellant

Allen Goodall, Appellant

Terry Janson, Appellant

Don McClemens, Appellant

Dale and Cathy McDonald, Appellants

Ken Weed, Appellant

Daniel West, Appellant

Dave Neely, Drainage Superintendent, Township of St. Clair, Respondent

Mike DeVos, Engineer who created the report

Jordan Gary, Drainage Technician, Township of St. Clair, Witness for the Respondent

Gary Depooter, Witness for the Respondent

DECISION OF THE TRIBUNAL

Background

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing in the community of Mooretown in the Township of St. Clair on September 8, 2015. The Engineer’s report dated December 31, 2014 for the Sinclair Drain/Virostek Drain 2014 (“Report”) was prepared by Spriet Associates Engineers & Architects and submitted by Mike DeVos, P.Eng. (“Engineer”). The appeals to the Tribunal were filed by Ronald and Pauline Barnes, Catherine Dobroski, Allen and Irene Goodall, Terry and Nancy Janson, Greg Luinstra, Don and Nancy McClemens, Dale and Cathy McDonald, David Morton, Ken and Susan Weed, and Daniel West, all of Mooretown, Ontario.

Jeff Baranek, Clerk of the Township of St. Clair, performed the duties of 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 September 8, 2015, as proof that all parties had been served with the notice of hearing.

Overview

The Appellants all reside or own homes located on the north side of Rokeby Line in the Township of St. Clair Ontario. These properties lie immediately to the south of agricultural land owned by Christine Virostek (the “Virostek Lands”). Running along the front of the Rokeby Line properties and parallel to Rokeby Line is the Sinclair Drain. The development of these properties over time has had the effect of interrupting the natural flow of water from the Virostek Lands to the Sinclair Drain and, as a result, during significant rain events or a spring thaw, water tends to pond on the Rokeby Line properties, particularly those located to the east.

In order to address the ponding issues, the Township commissioned a drainage report, the conclusions of which proposed constructing a new drain along the rear of the Rokeby Line properties (that is, between those properties and the Virostek Lands), which would then tie into the Sinclair Drain. The Engineer assessed the costs of the drainage works against, among others, all of the Rokeby Line residential properties including the Appellants.

The Appellants live on the western portion of the Rokeby Line properties (none of the property owners from the eastern portion have appealed) and have appealed (i) the necessity of the works in the first instance, pursuant to Section 48 of the Drainage Act (“Act”), and (ii) the assessments against them pursuant to Section 54 of the Act; Cathy Dobroski’s appeal is only a s. 48 appeal.

The Appellants’ principal grounds for appeal can be broadly summarized as follows:

1. They do not have water problems and should not have to pay to resolve others’ water problems.

2. They have taken care of their own water problems in the past, at their own expense; it is an individual property owner’s own responsibility to deal with his/her own land.

3. They should not have to pay for the drainage of agricultural land.

4. There is no benefit to the Appellants.

Issue

The Tribunal finds that the specific issues it must determine on this appeal are as follows:

1. Are the benefits of the proposed drainage works commensurate with their cost pursuant to s. 48(1)(a) of the Drainage Act?

2. Should the drainage works be modified pursuant to s. 48(1)(b) of the Drainage Act?

3. Is the compensation or allowance provided by the engineer inadequate or excessive pursuant to s. 48(1)(c) of the Drainage Act?

4. Are the assessments as determined by the engineer proper in the circumstances pursuant to s. 54 of the Drainage Act?

Evidence

Mr. Mike DeVos, P. Eng., the Engineer who prepared the Report

Mr. DeVos provided the Tribunal with an overview of the report including a more detailed explanation as to the development of the assessments levied against each property within the watershed. He testified that the Report was initiated by a petition under Section 4 of the Act as well as a request for repair and improvement of an existing drain under Section 78 of the Act. The petition was deemed to be valid by the Engineer at the outset of the project and this issue was not further questioned.

With regard to the assessments, the Engineer confirmed that he applied a modified Todgham Method in the development of the individual assessments. He reviewed in detail how he first split the project cost as between the outlet reach (C.S.X. Railway to St. Clair Parkway) and the Virostek Drain branch. Next, all Special Benefit charges were developed, broken out and levied against the appropriate public utility or road authority. The remaining cost of each section was then split as between Benefit and Outlet and levied against all of the lands affected by each section. The Outlet assessments were levied against each property on an “equivalent area” basis, and a variable runoff factor for each property was applied based on its use.

The Benefit assessments levied against the residential lots were generally based on the frontage length of the property relative to the drain although the Benefit assessment against some lots was adjusted to suit the unique shape or location of the lot. The Engineer confirmed that all of the residential lots on the north side of Rokeby Line were assessed on the same basis and no consideration was given to any grading alterations or private drainage improvements that may have been undertaken by the property owners previously. He pointed out that some of the works on the private properties have only made the flooding problem worse as natural swales that previously carried excess runoff to the Sinclair Drain have been filled in. He confirmed that the Benefit was best described as ‘cut off’ as the drain prevented surface water flows from the agricultural lands from entering onto the residential properties. Further, the drain also will reduce the extent and frequency of ponding on the agricultural lands north of the lots, which is a general benefit to all owners.

On further questioning, he confirmed that the agricultural landowner had every right to clear the land of bush, bring it into agricultural production and improve the surface and sub-surface drainage on the lands. He also confirmed that this owner has the right to petition for drainage improvements.

The Engineer testified that the ‘cut off’ Benefit also applied to Rokeby Line.

The Benefit assessment levied against the agricultural land was also based on the length of the drain impacting the property. He confirmed that the assessment was a ‘direct’ Benefit as it provided direct service to the lands. Mr. DeVos was of the opinion that the relative distribution of the total Benefit as between the agricultural lands, residential properties and the road was fair and equitable.

Prior to this report, the Sinclair Drain had historically provided the necessary drainage for the area that is the subject of the Engineer’s Report. The Engineer determined that the Sinclair Drain along the north side of Rokeby Line from the St. Clair Parkway to the easterly end of the drain would require significant improvement in order to alleviate existing flooding issues. He testified that the improvement of the Sinclair Drain on its existing alignment would include complete reconstruction of the covered and open drainage systems as well as the reconstruction of the access culverts that currently serve the residential lots fronting Rokeby Line. He testified that these works may impinge on the frontage of the residential lots. He also determined that a number of new branch drains would need to be constructed through the residential lots in order to capture and convey the runoff from the agricultural lands north of the lots to an outlet into the reconstructed Sinclair Drain.

The Engineer determined that the drainage issues could be dealt with more comprehensively by the construction of a new branch of the drain along the north limit of the residential lots, generally located within the agricultural lands. This covered drain, referred to as the Virostek Drain, would be constructed with catch basins in the many low swales that flow south from the agricultural lands and would include the installation of earth berms to direct the flows to the catch basins to prevent flows onto the residential lots. He testified that this drain would essentially perform the following functions:

• It would capture the runoff from the agricultural lands to the north.

• It would have sufficient depth and capacity to accommodate new private sub-surface tile drains on the agricultural lands.

• It would cut off the surface runoff that currently flows through or ponds north of the exiting residential lots.

• By default, it would increase the effectiveness of the Sinclair Drain across the frontage of the residential lots as it would divert a large portion of the flow that currently would be carried by this reach to a point of outlet downstream of this reach.

The Engineer testified that he carried out a comparative cost analysis of either reconstructing the Sinclair Drain or constructing the Virostek Drain branch, and found the cost related to complete reconstruction of the Sinclair Drain to be about double the cost to construct the Virostek Drain. He also testified that the Sinclair Drain reconstruction option would result in the individual assessments against the residential lots to be many times higher than that of the Virostek Drain option.

The Engineer also testified that he considered the option of constructing an open ditch along the alignment of the proposed Virostek Drain as opposed to the covered drain that was ultimately recommended. He confirmed that the depth of an open drain would be, in the worst instance, approximately 2.5 m deep. Disposal of the material excavated from the drain would be an issue. This alternative would require the taking of more land and produce a drain that will require more maintenance and which may be less aesthetically attractive across the rear of the residential lots.

The Engineer gave evidence as to the value of the allowances provided to those properties impacted by the work. The lands on which the new drain is built or through whose lands access corridors are proposed were identified. The Engineer also provided a revised allowance calculation that reduced the dimensions of the working corridors, thus reducing the area affected by the work while also increasing the allowance rates per hectare. The revised allowance calculation produced no real change in the total value of allowance provided to any property.

Under cross-examination, the Engineer confirmed that the design drainage co-efficient for the Virostek covered drain was a 25 mm standard. He acknowledged that he could have adopted a higher design standard and still be within acceptable provincial standards. He reasoned that increasing the design standard would increase the cost significantly and he was satisfied that the selected standard would provide the required degree of service. He cautioned that while this is an acceptable agricultural drainage design standard, rainfall events may from time to time produce runoff events that exceed this standard. He expressed the opinion that the construction of the Virostek Drain in conjunction with private tile drainage improvements on the agricultural lands will significantly reduce the frequency and extent of water ponding in the fields north of the residential lots as well as surface flows through the lots.

Dave Neely – Drainage Superintendent, Township of St. Clair

Mr. Neely confirmed that he has served as Drainage Superintendent for the Township of St. Clair since 2008. He stated that he had received multiple complaints regarding drainage issues from some owners of the residential lots that were served by the Sinclair Drain over the years. He also confirmed that previously no owner was willing to initiate any process under the Act to improve this reach of the drain. Based on his observations, he was satisfied that the Sinclair Drain does not provide adequate drainage to the road or residential lots that front the drain. He also observed that several residential lot owners have raised the elevation of their lots thus resulting in the obstruction of natural surface water flows to the south and the ponding of water on the agricultural land north of the lots.

As a result of a flood event in the spring of 2013, Mr. Neely testified that he organized an informal public meeting to discuss the drainage problems with the landowners in the area. He confirmed that Mr. Virostek attended that meeting and subsequently signed a petition for drainage improvements under Section 4 of the Act. This was the initial step in the process.

Mr. Neely filed email correspondence from Mr. Michael Virostek and Kerry and Jennifer Joyce in support of the project.

Jordan Gray – Drainage Technician, Township of St. Clair

Mr. Gray testified that he was relatively new to his current employment with the Township when a flood event occurred in the spring of 2013. He was directed to observe the conditions within the Sinclair Drain watershed. He filed as evidence a site plan and series of pictures that he took after a particularly heavy rainfall event in April of 2013. His evidence was that the pictures confirm the extent of flooding that occurred at that time on the agricultural lands as well as the residential lots on the Sinclair Drain.

Upon questioning, he was unaware as to the order of magnitude of the rainfall event that caused the localized flooding.

Gary Depooter – former Drainage Superintendent

Mr. Depooter testified that he was the Drainage Superintendent for the Township of St. Clair from 2001 to 2008. He confirmed that he had received complaints from property owners served by the Sinclair Drain during his years of service. It was his recollection that the complaints were the result of excessive surface water flows onto the residential lots on the north side of Rokeby Line generated from spring runoff events or excessive rainfall events.

He was unaware of any maintenance works carried out on the Sinclair Drain during his time with the Township.

Ronald Barnes – Assessed Landowner

Mr. Barnes testified that his lot is unlike any other in this reach of Rokeby Line as it fronts onto Rokeby Line but does not back onto the agricultural land to the north. He has resided at this location for approximately 20 years and has had no direct drainage issues. He has no sump pump and his lands drains naturally to the Sinclair Drain. He expressed the opinion that the proposed works will have no benefit to his property and it is on that basis he should not be assessed.

On questioning, Mr. Barnes agreed that drainage improvements should be carried out but the works should only be sufficient to provide Mr. Virostek an outlet and he alone should be assessed for that work. Given the choice between construction of a new drain north of the lots or reconstructing the Sinclair Drain along the north side of Rokeby Line, he expressed a preference for the new drain as recommended as it was the most economical. However, he was of the view that reconstruction of the Sinclair Drain may be required sometime in the future thus increasing the possibility that he will be assessed again.

Cathy Dobroski – Assessed Landowner

Ms. Dobroski was not in attendance at the hearing but filed an appeal under Section 48 arguing that the works should not be undertaken. In her written submission, Ms. Dobroski cited her concerns regarding land disruption, damage to her property as a result of construction, and previous drainage improvements to neighbouring properties.

Allen Goodall – Assessed Landowner

Mr. Goodall testified that he has lived on the property for approximately 29 years. Over that time, he has improved his property by raising portions of it and constructing both tile drains and surface swales to better direct the runoff through his property to the Sinclair Drain. He confirmed that he has a sump pump which outlets into the Sinclair Drain and has had no issue with drainage immediately around his house. He testified that he could “count on one hand” the number to times an event has occurred that caused surface flooding along the swale to the east of his house. He attributed those occurrences to large rainfall events usually in the spring of the year.

He also acknowledged that flooding on the agricultural lands and residential lots is “getting worse” in terms of larger areas of ponding for longer periods of time particularly on the lands east of his lot. He attributed the increased flooding to the development of the lots to the east, which has cut off surface flows from the north.

Terry Janson – Assessed Landowner

Mr. Janson confirmed that he has lived on this property for approximately 17 years. He only recalled one previous flood event although the rear of his lot is impacted by surface runoff from the neighbouring lot, which is higher, and the bush land to the north. He confirmed that his foundation drainage system is connected to the Sinclair Drain at the front of this property. He does not believe that he will benefit from the construction of the new drain.

Don McClemens – Assessed Landowner

Mr. McClemens has lived in this area for 59 years. He testified that he has observed rainfall events that have caused the Sinclair Drain to run full for a few days almost every spring. However, he does not believe that this negatively affects his property. He acknowledges that the development of the lots to the east has resulted in the filling of natural swales that carried the runoff from the agricultural lands north of the lots to the Sinclair Drain. He has observed greater ponding of the water north of the lots as a result.

He expressed his opinion that if anything should be done about the flooding, the Sinclair Drain should be reconstructed to accommodate all of the flows. He fears that the construction of the Virostek Drain will inevitably be followed in the future by the need to reconstruct the Sinclair Drain.

Dale & Cathy McDonald – Assessed Landowners

Mr. McDonald testified as to living in this area for 32 years. He acknowledged the drainage problem that exists on the agricultural lands and the lots to the east but places blame on the Township for permitting the development. He stated that several houses that were allowed to be built cut off the natural drainage of the lands to the Sinclair Drain. He confirmed that he has installed private tile drainage systems and open swales on his property to address his drainage issues, although excess surface water still accumulates in the bush at the rear of his property.

He confirmed that maintenance works that were carried out on the Sinclair Drain within the past two years has not improved the drainage on the rear of the lots or the agricultural lands. He believes that the problem would be largely addressed if Mr. Virostek would tile his land.

Ken Weed – Assessed Landowner

Mr. Weed confirmed that the house on his property was built in 1967. He claims that the property is high and dry and not affected by any surface flooding. He acknowledges the installation of a private tile drain along the west side of the house that effectively services his lot. He expressed the opinion that the problem has developed as a result of the clearing of the bush land in order to develop the agricultural lands. He recalls no ponding or flooding in that area when it was bush but acknowledges that ponding currently occurs on these lands more frequently and to a greater extent.

Daniel West -- Assessed Landowner

Mr. West testified that he has lived on this property for 39 years. He acknowledges that he has undertaken modifications to the house to better address the surface water problems. The house and lot have been raised, a basement has been added, and foundation drainage system installed.

Mr. West confirmed that water ponds on the agricultural land immediately north of his lot. He confirmed that he has constructed an earth berm across the north limit of his lot to prevent these surface flows from entering onto his lot. He also expressed the view that each lot should have been analyzed based on the impact of the drain on that specific lot and the assessment developed accordingly.

Greg Luinstra – Assessed Landowner

Greg Luinstra was not in attendance at the hearing but filed an appeal under Section 48 arguing that the works should not be undertaken and further filed an appeal under Section 54 against the assessment levied against their property.

David Morton – Assessed Landowner

David Morton was not in attendance at the hearing but filed an appeal under Section 48 arguing that the works should not be undertaken and further filed an appeal under Section 54 against the assessment levied against their property.

Findings:

Appeals related to Section 48(1)(a) – Benefits Not Commensurate with Cost

Six of the ten appeals received referenced this ground of appeal. It should be noted that an appeal under Section 48 (1)(a) of the Drainage Act is not an appeal related to the cost/benefit analysis of any specific property but rather considers the balance between the cost of the entire project versus the value brought by the project to all properties within the watershed as well as the broader community. To that end, the Tribunal notes that several of the Appellants clearly recognized the need for drainage improvements for the agricultural lands as well as the residential lots. Most acknowledged that something had to be done to address the drainage problems.

It is also noted by the Tribunal that the owners of the agricultural lands, which were levied the largest portion of the assessed cost of all private properties, did not appeal, thereby impliedly confirming acceptance of both the works and the assessments.

The more pertinent issue of appeal seemed to rest on the specific nature of what was to be done and who should pay for it. None of the Appellants offered any evidence, expert or otherwise, that would convince the Tribunal that the proposed work is not reasonable work carried out at a reasonable cost.

The Engineer identified and quantified benefits to the agricultural lands, residential lots, roads and public utilities impacted by these works. The design standard used to develop the scope of the works is very reasonable. In fact, the Engineer could have recommended a higher design standard for the Virostek Drain and still be within normally accepted Provincial standards. Therefore, the Tribunal finds that the Engineer properly applied his experience to the development of a design standard that would produce an acceptable level of service at a reasonable cost at this location. The Engineer’s report did not include any unusual or extravagant materials or construction methods. Accordingly, this ground of appeal fails.

Appeals related to Section 48(1)(b) – The drainage works should be modified

Five of the ten appeals received referenced this ground of appeal. Two of the five spoke to the issue at the hearing. Mr. Goodall questioned the Engineer on the consideration to construct an open drain along the alignment of the covered drain as recommended in the Report. However, he offered no further evidence, expert or otherwise, of a technical or cost impact nature that would support a modification of this type.

Mr. McClemens suggested that the Sinclair Drain be reconstructed on its existing alignment and improved as necessary rather than construct the Virostek Drain. He offered no further evidence, expert or otherwise, related to the design standard, impacts on the roads or lands, or the costs associated with this option. The Tribunal assumes that Mr. McClemens has relied on the background information provided by the Engineer in his analysis of this option.

The Engineer has offered clear evidence on both of these issues. The open ditch option was rejected due to excessive depth, surplus material disposal, land loss compensation, long term maintenance and aesthetic considerations. It was clear that this option was clearly considered, costed and rejected.

It was also clear that the option to modify and improve the Sinclair Drain along the north side of Rokeby Line was carefully considered. Based on the evidence of the Engineer as to the much higher cost of this option and the significantly higher assessments to all lands and roads within the watershed, the Tribunal concludes that this option is neither a technically practical nor cost effective option.

The Tribunal accepts the evidence of the Engineer that the proposed drainage system is properly designed to best and most cost-effectively suit the conditions at this site and, lacking any evidence to the contrary, should not be modified.

Appeals related to Section 48(1)(c) – The compensation or allowance are inadequate or excessive

Although six of the nine appeals received referenced this ground of appeal, only one of the six who appealed (McDonald) actually received an allowance. With the exception of Mr. McDonald, there is no basis for the other five to appeal under this section.

Mr. McDonald offered no evidence related to his complaint regarding his allowances. His written appeal referenced only his dissatisfaction with potential tree removal on his property, and he provided no argument as to what amount of allowance he felt he should receive.

The evidence of the Engineer was that this issue was raised during the consideration phase of this Report and that an Addendum to the Report had been developed. That Addendum recommended the reduction of the working corridor across the McDonald property to 6 m while holding the same value of the allowance provided. As no opposition or alternative to this recommendation was voiced, the Tribunal accepts the suitability of the allowances provided in the Report but offers no opinion or endorsement of the Addendum, which must follow standard processes of approval before any implementation.

Appeals related to Section 54 – Appeals against the Assessment

Eight of the nine appeals received objected to their individual assessments. Several of the issues of these appeals were similar from property to property. A summary of the issues follows:

• The property (Barnes) does not abut the drain and therefore should not be assessed a similar benefit assessment as other properties that are adjacent to it.

• The property (Goodall) has more frontage on the drain but should not be assessed more than neighboring properties.

• Some owners claim that they are not affected or negligibly impacted by flood events.

• Most owners claim to have undertaken private drainage improvements on their own properties that provide them sufficient service.

• The agricultural lands should pay a higher portion of the cost as the runoff comes from their property and they initiated the works.

• The agricultural lands should pay for the works as the lands have been cleared of trees and brought under agricultural production.

• The agricultural lands should pay for the works as they received tax considerations for these expenses.

• A cost/benefit analysis should be carried out on a lot-by-lot basis to determine the actual benefits that may accrue to each individual lot.

Although each property owner articulated their desire to have their assessment adjusted, none offered any evidence or convincing arguments as to the order of magnitude of any reduction. No Appellant directly challenged or questioned the assessment rationalization that was presented by the Engineer.

The Engineer in his evidence provided detailed calculations and provided clear evidence as to the rationale he applied to the distribution of the cost of the work. The application of a modified Todgham Method for the distribution of the cost is a well-recognized, appropriate and provincially applied standard method of cost distribution. The Tribunal could find no fault with the manner in which the Special Benefit costs were levied or with the overall Benefit/Outlet cost ratios that were applied.

With regard to the distribution of the Benefit levy, as between the agricultural land, the residential lots and the road, the lot owners generally argued that they would have little or no benefit from the work and therefore should not be assessed. The Tribunal rejects this argument. The evidence from the Engineer as well as many of the Appellants is that flooding in and around the lots does occur and it has become worse over time due not only to the clearing of the agricultural land but largely due to the development of the residential lots which has obstructed the natural flow of surface water to the Sinclair Drain. The Sinclair Drain has been in existence for decades. The agricultural lands have a right of use of this drain. If development has been permitted that obstructs access to this drain, and modifications to the drainage system are required, it follows that the development should bear some of that cost.

The evidence as to the potential impacts of the works on the lots and the road is clear. Cutting off the surface and sub-surface flows north of the lots will largely eliminate surface flows through the lots. The removal of a portion of the flows from the agricultural lands from the Sinclair Drain will improve that drain’s ability to serve both the residential lots that abut this drain as well as the road. These are Benefits that Section 22 of the Act allows to be levied. The fact that some of the lot owners have undertaken private works to improve the drainage systems on their properties does not relieve them of this Benefit.

With regard to the private drainage works on the lots, the evidence suggests that some works have contributed to the current drainage problems while others are intended to provide better outlet for foundation drainage systems. The type, extent, purpose, design standards and materials used by each lot owner to address their particular drainage issue varies widely. The Tribunal accepts the approach by the Engineer to assess all residential lots on a consistent basis. It is impractical to assume that a detailed analysis of each individual lot should be carried out so as to assign a variable benefit assessment to each individual residential lot based on the extent of private works and the level of service that may be provided by those works.

Some of the written submissions and one Appellant at the hearing suggested that the assessment against the agricultural lands should be higher because the agricultural lands may be eligible for favorable tax considerations. It should be clearly understood that the likelihood of favorable tax considerations on any property must never be the basis for larger assessments against that property. There is no provision in the Act for levying an assessment on that basis.

Order of the Tribunal

For the reasons stated herein, the Tribunal orders that:

1. All of the appeals filed in this matter are hereby dismissed.
2. The non-administrative costs of the Township incurred with respect to this appeal shall form part of the cost of the drainage works and such costs include the Engineer’s fees and expenses for preparing the report as well as the Engineer’s fees and expenses for attending and participating in this hearing.
3. There shall be no other Order as to costs and all parties shall be responsible for their own costs.

Dated at Tecumseh, Ontario this 21^st^ day of September