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:

Trussler Road Municipal Drain 2015 (RE) Township of Wilmot

Trussler Road Municipal Drain 2015 (RE) Township of Wilmot 2015ONAFRAAT25

STATUTE:

Drainage Act

HEARING:

October 26, 2015

DATE OF DECISION:

December 17, 2015

2015-25

NEUTRAL CITATION:

2015 ONAFRAAT 25

TRUSSLER rOAD mUNICIPAL drain 2015 Township of Wilmot

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 Ilkyu and Kangmi Choi, Kitchener, Ontario under sections 48(1) and 54(1) of the Drainage Act from the Report of the Engineer and from the decision of the Court of the Revision on the Trussler Road Municipal Drain 2015 in the Township of Wilmot.

Before:

Glenn Walker, Vice-Chair; Andrew McBride, Member; Sharon Weitzel, Member

Appearances:

Ilkyu and Kangmi Choi – Appellants

Olivia Choi – Daughter of the Appellants

Ki Shik Shin – Paralegal for the Appellants

Ian Andres – Counsel for Activa Holdings Inc. and 2140065 Ontario Inc.

Pierre Chauvin – Planning Consultant and Partner with MHBC Planning – Witness

John Kuntze, P. Eng. – Township of Wilmot Drainage Superintendent - Witness

Richard Brookes – Counsel for the Regional Municipality of Waterloo

Ed Switenky – Manager, Transportation Operations, Region of Waterloo - Witness

William J. Dietrich, P. Eng., Dietrich Engineering Limited - Engineer who prepared the Report

DECISION OF THE TRIBUNAL

This hearing was held in the Township of Wilmot, Baden, Ontario on October 26, 2015.

Ilkyu and Kangmi Choi appealed to the Tribunal under sections 48(1) and 54(1) of the Drainage Act from the decision of the Court of the Revision and the Report of the Engineer on the Trussler Road Municipal Drain 2015. The Engineer’s Report dated April 29, 2015 for the Trussler Road Municipal Drain 2015 (“the Report”) was prepared by Dietrich Engineering Limited and signed by William J. Dietrich, P.Eng. (“the Engineer”).

Barbara McLeod, Clerk of the Township of Wilmot, 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 Clerk filed an Affidavit of Service as proof that all parties had been served with the notice of hearing.

Background

The petition for this new municipal drain described lands requiring drainage in the City of Kitchener (“City”) and was submitted to the Township of Wilmot (“Township”) on or about February 3, 2014. This petition was signed by an authorized signing officer of 2140065 Ontario Inc., a company also known as Activa Holdings Inc. (“Activa”), and the Director of Transportation for the Regional Municipality of Waterloo, the owner of the boundary road between the City and the Township, known as Trussler Road or Regional Road # 70 (Road); however; the Regional Road was not described as part of the area requiring drainage. The Activa lands lie upstream of the Road and the water from those lands drains to the southwest through the Road and then through lands in the Township. Apparently, since the City was not familiar with procedures under the Drainage Act, upon agreement, this petition was referred to the Township for action, as it has experience dealing with procedures under the Drainage Act.

The Activa property is an approved plan of subdivision and the Road is scheduled for upgrading from a rural cross-section to an urban cross-section within the next 8 years. The Activa property requires a legal outlet for a stormwater management facility (SWMF) and the Road requires an outlet for the proposed upgrade.

Three properties lie downstream of the Road, between the Road and the Alder Creek, which is the proposed outlet for the proposed municipal drain. One of these properties, the parcel located immediately downstream of the Road, is owned by the Appellants. The next downstream property is owned by the Township as ‘open space’ for an adjacent developed subdivision, and the third property is owned by M. Federau. The Federau property is used for agricultural purposes and has direct outlet to Alder Creek.

The current situation is that the runoff from the Activa property flows to the Road and passes through a culvert under the Road. The runoff from the Road also reaches this point and the combined flow continues southwesterly through a low run or swale through the Appellants’ property into a shallow ditch on the Township property and onto the Federau property; however, this flow does not seem to affect the use of the Federau property for agricultural purposes, as it appears to be worked from the Township property almost to Alder Creek.

The Appellants claim that (a) there were no alternative routes considered for the proposed drain, and (b) that the allowances for right of way ($11,430) are too low, and (c) that the assessments to their property are too high ($6,000 for Benefit and $463 for outlet).

Issues for Consideration

1. Were any alternative routes considered for this Drain?

2. Is the allowance provided to the Appellants’ lands for right of way, under section 29 of the Act, fair and reasonable?

3. Are the assessments to the Appellants’ lands, in accordance with sections 22 and 23 of the Act, fair and reasonable?

Evidence

Ilkyu and Kangmi Choi – Assessed Landowners

Oliva Choi, daughter of the appellants appeared on behalf of her parents and provided the following evidence.

1. The Appellants have owned the subject property since 2004 and she and her parents have lived on the property since that time, that is, for 11 years.

2. In early 2008, Activa approached her parents regarding the purchase of an easement through the Choi property for sanitary sewer and storm sewer purposes but an agreement could not be reached.

3. In mid-2008, her parents contacted the City with concerns regarding the proposed Activa subdivision.

4. She and her parents feel that possible alternative routes for the proposed drain were not considered in spite of this being one of the recommendations included in the Guideline for Services of the Engineer Acting Under the Drainage Act as published by the Association of Professional Engineers of Ontario in 1998.

5. Upon asking the Engineer for alternative routes none were given.

6. They think an alternative route would be across the front of their property.

7. They do not have any stormwater problems on their property now nor have they at any time in the past 11 years.

8. The proposed drain location, running diagonally through part of their property, would be a problem for future home construction on the property.

9. The five real estate listings contained in their Document Brief, Exhibit 7, are comparable to their property in value.

10. Based on these comparable properties, the allowances to their property for this project should be $150,000.

11. The assessment to their property should be reduced to zero for both construction and maintenance.

12. The total area of their property is about 20 acres or 8 hectares.

Upon cross examination, Ms. Choi advised as follows.

1. She is not a professional engineer, nor a land use planner, nor an accredited appraiser, nor a licenced real estate agent, nor does she have any experience in land development matters or land evaluation matters.

2. That her parents’ property was purchased for $525,000 in 2004 and that it is currently assessed at $595,000 by MPAC and that assessment was not appealed.

3. That her parents’ property was listed for sale at a price of $2,488,000 in July 2015 with ‘development potential’ indicated as one of its attributes.

4. That her parents have not received any offers to purchase for their property.

5. That she is aware that her parents’ property is designated as ‘protected countryside’ and as part of the ‘regional recharge area’ in the Regional Official Plan and that these designations prohibit immediate future development, but this situation may not be in effect in 30 to 100 years such that future development is not restricted forever.

6. That she is aware of the equestrian barn on the neighbouring property to the northwest of her parents’ property.

7. That she is not aware of the Provincial Minimum Distance Separation Policy and its effect on development of residential land close to livestock facilities.

8. That the route proposed for the municipal drain is the natural flow route within this drainage area.

9. That she and her parents understand that, if this drain proceeds to construction, their property will have a legal outlet to Alder Creek.

10. That she and her parents understand that, if this drain is constructed, there will be a pipe under the ground for most of the length of the low run through their property that will allow farming, or recreation, or other such uses to take place over the pipe and through the low run.

11. That in her 11 years of living on the property she has seen surface water flow in the low run only about five times and that, when this occurred, it did not negatively impact the property or their use of it.

12. That in March 2015, a bank appraised her parents’ property at $850,000.

13. That Trussler Road rises in both directions from the location of the culvert in the low run.

14. That an acceptable alternate route for the drain would be along one of the property lines rather than following the natural low run.

15. That there is sufficient, suitable area south of the existing house to build a new house well away from the low run and proposed drain location.

William J. Dietrich, P. Eng., the Engineer who prepared the Report

Mr. Dietrich provided a brief overview of the proposed project during which he indicated that the ‘area requiring drainage’ was determined to consist of the Activa property and Trussler Road, that is, the Appellants’ property was NOT determined to require drainage. The on-site meeting for this new proposed drain was held on July 16, 2014 and was attended by the Appellants. Two information meetings were also held on February 13 and March 13, 2015, the latter meeting being attended by the Appellants. The drainage area is approximately 49 hectares (120 acres) in size and consists of residential land, the Regional Road, agricultural lands in Wilmot Township, some woodlot within the Activa property, 1.05 hectares of Provincial Highway 7/8 and 7.49 hectares of what appears to be farm land owned by the Regional Municipality both upstream of the Activa property. Mr. Dietrich explained that the design of the proposed drain includes the following components:

• On the Federau property (the downstream property); a 50 metre long constructed swale with erosion blanket connecting to Alder Creek, a plunge pool outfall, a 900mm x 1200mm ditch inlet catchbasin, and 277 metres of 750 and 600 mm diameter closed drain;

• On the Township property; a 900mm x 1200mm ditch inlet catchbasin with berm at the downstream property line and incorporation of 275 metres of existing swale;

• On the Choi property; incorporation of 33 metres of existing swale and installation of 249 metres of 525 and 450 mm diameter closed drain; and

• On Trussler Road; a 900mm x 1200mm ditch inlet catchbasin on the downstream side, 24 metres of 400 mm diameter steel pipe through the road, and a 600mm x 600mm flat top catchbasin on the upstream side, to which the outlet pipe from the Activa SWMF will be connected.

Mr. Dietrich further explained that the drainage system has been designed to accommodate the outflow from the Activa SWMF resulting from a five year rainfall event, plus capacity for a drainage coefficient of 38 mm in 24 hours from Trussler Road, the Choi property and the worked portion of the Federau property. The working space for construction will be a width of 20 metres, centered on the proposed drain and a 10 metre width over the drain has been specified for maintenance purposes. Each landowner shall designate the access routes to and from the drain on their property. The proposed tile drain shall be offset 5 metres to the left of the natural low run, looking upstream. Each landowner will be responsible for final grading and revegetating the areas disturbed by the construction work.

Regarding assessments, Mr. Dietrich provided a summary, as follows:

Total Estimated Project Cost $ 224,300

Assessment to Lands Agricultural lands in Wilmot Twp. $ 16,688 7% Municipal lands – Region & Twp. Properties $ 14,272 6% Activa Holdings – subdivision land $ 142,302 64% Total on Lands $ 173,262 77%

Assessment to Roads Trussler Road – Region $ 49,150 22% Highway 7/8 – MTO $ 1,888 1% Total on Roads $ 51,038 23%

Totals $ 224,300 100%

Regarding the benefit assessments to the Choi property, Mr. Dietrich advised that the total cost of the proposed work on this property is $80,000 but that is for a drain designed for a 5 year rainfall event. Accordingly, he calculated the cost of a drain designed to the normal agricultural standard, which would be $30,000, and determined that a benefit assessment of 20%, or $6,000, to the Choi property was fair and reasonable, in his opinion. He indicated that the proposed drain would benefit the 3.16 hectares of the Choi property by providing better control of surface water, by allowing better use of the land in the low run, by providing a legal drainage outlet and by increasing the market value of the Choi’s property. As for the assessment for outlet liability, Mr. Dietrich used a modified Todgham method and an agricultural factor of 1.0 to calculate an outlet assessment of $463 for the Choi property, whereas, the total of the outlet assessments for the drain is $40,900.

Mr. Dietrich referred to Tab 9 of Exhibit 8 being a supplementary information document prepared by his firm with respect to the allowances provided to the Choi property and noted the following points.

1. In calculating the allowances under Section 29 of the Act, he took into consideration the 1998 Drainage Engineers Conference paper entitled Allowances and Compensation under the Drainage Act which is the recommended practice for drainage engineers in Ontario. This paper was introduced as Exhibit 9. It states that “When calculating allowances for land or right-of-way, the Engineer should consider … (b) the market value of similar land in the area.” And goes on to state ”When a tile drain is constructed under the Drainage Act, it is not usual practice to provide a land allowance where the drain is constructed on agricultural lands or road properties because the presence of the drain usually does not restrict the use of the property. If a tile drain is constructed on non-agricultural lands and will restrict the future use of the land for building, etc., it may be appropriate to provide a land allowance to compensate for this.” (emphasis added)

2. It is his opinion that the proposed drain will not restrict the use of the Choi property as the drain will be constructed in the low run which cannot be used for any other purpose, such as building. However, it is the policy of his firm to provide allowances for right of way for tile drains due to the fact that the municipality will have the right and responsibility to access the drain along its route in the future for inspection and maintenance purposes, and the property should be compensated in some way for this partial restriction.

3. Mr. Dietrich provided market value details for five comparable properties in the area, ranging in size from 34 to 12 acres, all but one of which included a house and other attributes such as sheds, barns or swimming pools. The average value of these five comparable properties was $114,500 per hectare but he rounded this figure up to $120,000 per hectare for calculating the allowances for the Choi property.

4. Mr. Dietrich provided 100% of this per hectare value for the land actually taken for the 33 metre length of open drain on the Choi property and 25% of this per hectare value for a ten metre wide right of way along the 249 metre length of closed drain on the property, for a total of $11,430 in allowances under section 29, as indicated on page 5 of his Report.

5. Mr. Dietrich also provided detailed calculations to support the allowance provided under section 30 of the Act for damage to lands and crops over a 20 metre wide corridor for the 249 metre length of the closed drain, or 0.498 hectares, at $4,000 per hectare, for a total of $1,990. No damage allowance was provided for the open drain portion as no actual construction work is proposed there.

Upon questioning about alternative routes for the proposed drain, Mr. Dietrich advised that the topography of the area does not permit the drain to be located anywhere but in the natural low run where it is proposed. It is not practical to locate it anywhere else. If it was to be located on a different alignment through the Choi property, the Choi property would be assessed all of the extra cost resulting therefrom.

Upon questioning, Mr. Dietrich advised that the contractor will strip the topsoil along the construction route and replaced it after the work has been completed; however, the property owners will be responsible for final grading, seedbed preparation and seeding of this working area and are compensated for this cost through the allowances for damage, under section 30 of the Act.

Mr. Dietrich advised that the legal outlet that the Choi property will receive by the installation of this drain will be the open drain at the downstream edge of their property, between Stations 0+602 and 0+635, that is, the existing open drain where no work is actually proposed.

Mr. Dietrich also advised that, while a berm is to be constructed in conjunction with the ditch inlet catchbasin to be installed at station 0+327, in order to collect and direct the surface water flow into that basin, no such berm is proposed for the ditch inlet catchbasin to be installed at station 0+884 on the downstream side of the Road. Only grading is proposed at this location to direct the surface water flows.

Activa Holdings Inc. and 2140065 Ontario Inc.

Mr. Pierre Chauvin, a Planning Consultant and Partner with MHBC Planning Limited

Mr. Andres, Counsel for Activa Holdings Inc. and 2140065 Ontario Inc., called Mr. Pierre Chauvin, a Planning Consultant and Partner with MHBC Planning Limited (MHBC), as a witness. Mr. Chauvin was qualified as an expert in land use planning and provided the following evidence.

1. MHBC was retained by Activa in 2005 to assist in obtaining the planning approvals required for the proposed subdivision.

2. Since 2005, MHBC has been responsible for the design of the subdivision plan as well as coordinating the entire project with all the sub-consultants in order to apply for all necessary approvals. Mr. Chauvin was involved throughout this process.

3. Over the past 18 months, Mr. Chauvin has been monitoring this municipal drain process and is familiar with the Engineer’s Report.

4. In the Regional Official Plan (ROP), which was approved by the Ontario Municipal Board on July 14, 2015, the Choi property is designated within the ‘Rural Area’ which indicates that land uses can only be for agriculture, agricultural related activities and secondary agricultural uses. The creation of new residential lots is discouraged and would only be permitted in limited circumstances, such as residential infilling, which would not apply to the Choi lands.

5. In the ROP, the Choi lands are designated ‘Protected Countryside’ and are outside of the ‘Countryside Line’ which is considered to be the permanent boundary between the urban areas and the countryside areas.

6. Furthermore, in the ROP, the Choi lands are designated as being within the ‘Regional Recharge Area’, that is part of the Waterloo Moraine which plays a crucial role in recharging the Region’s municipal groundwater drinking water supply system.

7. In addition, in the Township of Wilmot Official Plan, the Choi lands are located outside of the Mannheim Rural Settlement Area and are designated ‘Prime Agricultural’.

8. Accordingly, for these planning related reasons, Mr. Chauvin’s expert opinion is that the Choi lands do not have any development potential.

9. While the ROP allows certain types of agricultural related uses for the Choi property, even some of these may be restricted due to its proximity to the Mannheim Settlement Area and the Kitchener Urban area and the application of the Provincial Minimum Distance Separation Policy as it applies to new livestock facilities.

10. The conditions of draft approval for the Activa Subdivision require that a legal outlet for post-development stormwater flows be secured prior to registration or servicing of Stage 2 of the development.

11. From a land use planning perspective, the Trussler Road Municipal Drain is an appropriate and practical means of securing a permanent stormwater outlet for the Activa lands and Trussler Road.

John Kuntze, Township Drainage Superintendent

Mr. Andres, Counsel for Activa Holdings Inc. and 2140065 Ontario Inc., called Mr. John Kuntze, P. Eng. as a witness. Mr. Kuntze is the Township Drainage Superintendent and is also a Senior Project Engineer-Drainage and President of K. Smart Associates Limited, a consulting engineering firm located in Kitchener. Mr. Kuntze described his general duties as Drainage Superintendent which, in this case, initially included assisting with the preparation of the drainage petition and providing advice to the Clerk regarding a report to Council. After the appointment of the engineer, he had no involvement until the report was completed and filed with the Township. At that point the Township referred the report to him for review with respect to any maintenance issues. He is satisfied with the maintenance provisions and maintenance assessment schedules in the Report.

Mr. Kuntze indicated that having a ‘legal outlet’ for a stormwater management facility is an excellent idea as these types of facilities tend to extend base flows and create a nuisance, low flow downstream and containing such a flow in a closed drain is much preferred to an open drain. It is his opinion that the municipal drain proposed in this Report is appropriate and practical and that there are no viable alternative routes. He stated that through this proposed drain, the Choi property will obtain a legal drainage outlet, it will have the base or nuisance flow through the property contained, and it will have any surface water erosion controlled. It is his opinion that the proposed drain is a good solution for the petitioning properties and the downstream properties.

When asked about the allowances for right of way, Mr. Kuntze indicated that he felt they were quite reasonable at 25% of the land value as, in fact, in his practice he does not give any such allowance for closed drains. When asked about costs of relocating a drain from its natural route, Mr. Kuntze advised that, in his experience, the requestor would pay all associated extra costs of a relocation, including the costs of any tile size increases that might be required or requested. Finally, Mr. Kuntze advised that once a municipal drain is established it is not a fixed permanent solution, as the Drainage Act does provide a mechanism for improving or altering drains in the future.

Regional Municipality of Waterloo

Mr. Brookes, Counsel for the Regional Municipality of Waterloo, called Mr. Ed Switenky, Manager of Transportation Operations for the Region as a witness. Mr. Switenky advised that the normal procedure followed by the Region for a major road upgrade is to undertake an Environmental Assessment about four years before commencing design, wherein such things as traffic volumes and patterns as well as drainage would be considered as part of a public consultation. That information would then be taken into consideration during the design stage, which in this case, is proposed to be commenced in 2020. Reconstruction of Trussler Road is currently scheduled to commence in 2024. The Region’s Design and Construction department does its own road engineering design and hires a contractor to undertake the actual construction. Normally, for an upgrade such as that proposed here from two-lane rural to four-lane urban, the new drainage system would include curbs, gutters, catchbasins and storm sewers, with the elimination of roadside ditches, and would use existing drainage facilities as outlets for the road drainage water. He does not do any design work so is not familiar with the design criteria that is used. He did confirm that he expects the proposed catchbasin at station 0+884 on the downstream side of the road would be the proposed outlet for the new road drainage system in this area.

Findings:

Regarding Alternative Routes

Nothing was mentioned in the Report about alternative routes for the rain. However, upon questioning, the Engineer advised that the land rises in both directions from the culvert under Trussler Road, that is, to the northwest and the northeast. Furthermore, the Engineer advised that there is a significant low run through the Choi property. Accordingly, the Engineer suggested that there is no feasible alternative route for the drain. This evidence was confirmed by Mr. Chauvin the Planner, and Mr. Kuntze the Drainage Superintendent, who both attested to having significant knowledge of the topography of the drainage area. Ms. Choi agreed that the proposed location is the natural flow route and any alternate route would be against the natural grade of the land.

The Tribunal accepts the evidence of the Engineer, the Planner and the Drainage Superintendent with respect to the fact that there are no feasible alternative routes for this proposed drain.

Regarding the Allowance to the Appellants for Right of Way, under Section 29 of the Act

The Engineer explained that his allowance for right of way calculation was based on a land value of $120,000 per hectare (ha) or $46,135 per acre (ac) and a 10 metre width for the full length of the drain through the property of the Appellants. This allowance was provided at 100% of the land value for the 33 metre long open portion of the drain on the Appellants’ property which resulted in an amount of $3,960. This allowance was provided at 25% of the land value for the 249 metre length of closed drain on the Appellants’ property which resulted in an amount of $7,470, for a total section 29 allowance of $11,430.

Based on the comparable property evaluations provided by both the Engineer and the Appellants, the land value of $120,000 per hectare and the section 29 allowance of $11,430 appear to be quite fair and reasonable to the Tribunal.

The argument by the Appellants that their property has a much greater value than the $120,000 per hectare due to its potential for residential development is not accepted by the Tribunal based on the evidence from the Planner that the property is: (a) designated ‘Protected Countryside/Rural Area’ in the Regional Official Plan (ROP); (b) outside of the ‘Countryside Line’ in the ROP, which is the long term boundary between urban areas and the countryside; (c) designated as part of the ‘Regional Recharge Area’ in the ROP, which prohibits urban expansion; (d) outside of the ‘Manheim Rural Settlement Area’ in the Township Official Plan; (e) designated as ‘Prime Agricultural Land’ in the Township Official Plan; and (f) partially restricted from development by the Provincial Minimum Distance Separation Policy due to the barn on the northerly neighbouring property. Accordingly, this evidence indicates that the Appellants’ property does not have any development potential.

The 1998 Drainage Engineers Conference paper entitled Allowances and Compensation under the Drainage Act (Exhibit 9) states that “When a tile drain is constructed under the Drainage Act, it is not usual practice to provide a land allowance where the drain is constructed on agricultural lands or road properties because the presence of the drain usually does not restrict the use of the property.” Mr. Kuntze, the Township Drainage Superintendent and also a drainage engineer with 38 years of experience, advised that, in his practice, he does not provide any land allowance where a municipal drain is to be constructed on agricultural lands.

Based on the information from the 1998 Drainage Engineers Conference paper and the evidence of Mr. Kuntze, the application of 25% of the land value for the 249 metre length of closed drain on the Appellants’ property appears to be quite fair and reasonable to the Tribunal.

Regarding the Assessments to the Appellants’ Lands, in accordance with Sections 22 and 23

It is quite obvious that the entire purpose of this proposed drain is to provide a legal outlet for the Activa Subdivision and the Regional Road. The Appellants do not farm their property and do not intend to do so. They have no intention to underdrain their land. They attest that they do not have any drainage problems and the occasional surface flow across their property is not of concern to them. Accordingly, from an agricultural viewpoint, the drain is of no value to them. The Choi land cannot be developed for residential purposes in the foreseeable future, so the drain has no benefit to their property in that regard. Accordingly, the Tribunal does not see that the proposed drain provides the Appellants’ lands with any benefits under Section 22 of the Act. The drain will, however, provide the property with a legal outlet which may be of some value in the future; therefore, the Tribunal finds that the outlet assessment made under Section 23 should remain.

Regarding the Maintenance Assessments to the Appellants’ lands, in accordance with Section 38

The Tribunal finds that the maintenance assessments against the Choi property for the downstream two sections of the drain, that is, 3.2% for the section from Station 0+000 to Station 0+327 on page 12 of the Report, and 3.4% for the section from Station 0+327 to Station 0+635 on page 13, are fair and reasonable. However, for the reasons mentioned above with respect to the Section 22 assessment, the Tribunal finds that the maintenance assessment to the Choi property for the upstream section of the drain, that is, 0.9% for the section from Station 0+635 to 0+908 on page 14 of the Report, should be reduced to zero and that amount should be added to the maintenance assessment of Trussler Road in this section, increasing it to 5.7% from 4.8%.

Regarding the Proposed Ditch Inlet Catchbasin at Station 0+884

As mentioned by Mr. Dietrich and Mr. Switenky, this catchbasin will be where a significant portion of the drainage water from the Trussler Road allowance will be directed. At station 0+327, where a similar catchbasin is being installed, a berm is also to be constructed to direct the surface water into the basin; however, at this location, a berm has not been specified. Since, according to the Trussler Road Crossing Detail on drawing 4, the new catchbasin will not directly line up with the existing surface culvert and, since it will be quite important to direct as much surface flow as possible to this catchbasin to protect the downstream lands, the Tribunal feels that a berm should be constructed at this location, that is at Station 0+884, in a similar manner to that proposed at Station 0+327.

Possible Grants and Net Assessments

It is not considered good practice to include information with respect to possible grants and net assessments in an engineer’s report, as has been done on pages 10 and 11 of this Report. If the engineer or the municipality wish to distribute such information, it should be done as a separate document.

Orders of the Tribunal

For the reasons stated above, the Tribunal makes the following orders.

1. That the appeal by Ilkyu and Kangmi Choi regarding the Allowance for Right of Way, under Section 29 of the Act, is hereby dismissed.

2. That the appeal by Ilkyu and Kangmi Choi regarding the $6,000 Section 22 Assessment to their property, being roll number 4-192-03, is hereby granted and shall be reduced to zero and the Section 22 assessment to Trussler Road shall be increased by $2,000, and the Section 22 assessment to the lands owned by 2140065 Ontario Inc. shall be increased by $4,000, to compensate for this reduction.

3. That the appeal by Ilkyu and Kangmi Choi regarding the Maintenance Assessments made against their property is granted in part in that the maintenance assessment to their property, being roll number 4-192-03, for the upstream section of the drain, that is, 0.9% from Station 0+635 to 0+908, shall be reduced to zero, and that the 0.9% shall be added to the maintenance assessment for Trussler Road in this section, increasing it to 5.7% from 4.8%.

4. That the Report shall be amended to include the construction of a berm at Station 0+884 in conjunction with the ditch inlet catchbasin, in a similar manner to that proposed at Station 0+327, the cost of which shall be assessed to Trussler Road under Section 26 of the Act.

5. That 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 shall include the Engineer’s fees and expenses for preparing the Report, as well as the Engineer’s fees and expenses for preparing for and attending the Tribunal hearing.

6. There shall be no other Order as to costs and all parties shall be responsible for their own costs.

Dated at Ridgetown, Ontario this 17th day of December 2015