Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: appeals.tribunal.omafra@ontario.ca

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

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: Fourth Concession Drain East and Cutoff Drains Town of Lakeshore

Fourth Concession Drain East and Cutoff Drains (RE) 2015ONAFRAAT03

STATUTE: Drainage Act

HEARING: January 19, 2015

DATE OF DECISION: February 18, 2015

2015-03

NEUTRAL CITATION: 2015ONAFRAAT03

FOURTH CONCESSION DRAIN EAST AND

CUTOFF DRAINS

TOWN OF LAKESHORE

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 Gordon and Mary Lachine, St. Joachim, Ontario under Sections 48(1) and 54(1) of the Drainage Act from the Report of the Engineer and the decision of the Court of the Revision; by Charles and Theresa Martinu, and Rob and Jacqueline Pawlowski, St. Joachim, Ontario under Section 48(1) of the Drainage Act from the Report of the Engineer; and by Andrew and Sandra Pedden, St. Joachim, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of Revision on the Reconsidered Drainage Report for the Fourth Concession Drain East and Cutoff Drains (South, North & Outlet) in the Town of Lakeshore.

Before: Jeffrey Hewitt, Vice-Chair; Andrew McBride, Member; Jane Sadler Richards, Member

Appearances:

Gordon Lachine - Appellant

Charles Martinu - Appellant

Rob Pawlowski - Appellant

Sandra Pedden - Appellant

Dennis McCready, P. Eng. - Dillon Consulting Limited, the engineering firm that prepared the Report

Jill Fiorito - Drainage Superintendent for the Town of Lakeshore

DECISION OF THE TRIBUNAL

This hearing was held in the Town of Lakeshore (the “Town”), in Belle River, Ontario on January 19, 2015. The Engineer’s Reconsidered Drainage Report dated June 4, 2014 for the Fourth Concession Drain East and Cutoff Drains (South, North & Outlet) (the “Report”) was prepared by Dillon Consulting Limited and signed by Tom H. Marentette, P. Eng. (the “Engineer”).

Mary Masse, Clerk of the Town, performed the duties of the Clerk of the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”).

Preliminary Matters

Prior to the hearing, the Tribunal issued an Order making all landowners assessed in the Reconsidered Drainage Report parties to this hearing. The Town filed an Affidavit of Service with the Tribunal as proof that all parties had been served with the Notice of Hearing dated October 3, 2014.

Background

The Fourth Concession Drain East is a 1.34 kilometre long open municipal drain that has existed along the west side of Essex County Road 31 since before 1969. This drain appears to be on the road allowance. The drainage area is approximately 60 hectares or 148 acres in size and includes parts of Lots 12 and 13 in Concessions 4 and 5, and part of Lot 14 in Concession 4, all in the geographic Township of Rochester, in the Town of Lakeshore. The drain flows northerly and outlets to the Baseline Municipal Drain, which is located just south of Essex County Road 42 (formerly King’s Highway 2) in the hamlet of St. Joachim.

The last engineer’s report for repair and improvement of the entire drain was prepared by Mr. C. G. R. Armstrong (“Armstrong”) in December 1969 at which time 14 severed lots existed on the west side of the road. Under that report, the drain was deepened and widened for its entire length and five new access culverts were installed. That report identified the existence of a number of other access culverts on the drain.

Apparently, an engineer’s report was prepared under Section 76 of the Drainage Act (the “Act”) in 1984 creating a new assessment schedule for maintenance and repair; however, a copy of this report was not provided to the Tribunal.

In April of 1993, on instruction from the Council of the Township of Rochester under Section 76 of the Act, the engineering firm of Todgham and Case Associates Incorporated (“Todgham and Case Associates”) prepared a report on this drain, varying the assessments for maintenance and repair. At that time, the drainage area consisted of 5.62 hectares (13.9 acres) of residential land, 57.41 hectares (128 acres) of agricultural land, plus the area of County Road 31, which was not identified. By that time, the number of severed lots on the west side of the road had increased to 25 and 8 more existed on the east side of the road. In addition, there were four access culverts in the drain for the agricultural lands involved in the west part of the drainage area. The Todgham and Case Associates Report, in conjunction with the Armstrong Report of 1969, seemed to provide everything that was necessary to maintain this drain for 15 years, especially specifications and maintenance assessment methods for the numerous access culverts.

In October 2000, the Town instructed the firm of N. J. Peralta Engineering Ltd. (“Peralta Engineering”) to prepare a report in accordance with Section 78 of the Act to enclose portions of the open drain across the front of six residential properties in the downstream section of the drain and to lower the access culvert at one of these properties. This report was prepared under date of September 7, 2001. The work was undertaken and was paid for entirely by the six affected properties. No cost was transferred to any upstream lands. The report stipulated that the maintenance of these enclosures was to be paid for entirely by the affected properties; however, it also stipulated that the maintenance of the access culverts for these properties was to be in accordance with the 1993 Todgham and Case Associates Report.

In July 2008, one of the downstream residential owners (the Quennevilles) made a request to the Town for the replacement of their access culvert. Rather than use the Todgham and Case Associates Report for this work, the Town proceeded to appoint Dillon Consulting Limited (“Dillon Consulting”) to prepare an engineer’s report under Section 78 of the Act for this maintenance project. Three years later, in July 2011, the owner of a newly created residential lot in the upstream portion of the drain (J. Mailloux) requested that the Town install a new access culvert for that property. Rather than use the Todgham and Case Associates Report for this work, the Town instructed Dillon Consulting to incorporate this request in the report that it had previously commissioned in 2008.

Under date of June 18, 2013, five years after being instructed, and after two site meetings, Dillon Consulting provided a Preliminary Drainage Report for the Fourth Concession Drain East. This Report proposed two options for the repair and improvement of the drain, as follows:

OPTION 1 – including:

• re-grading the entire length of the drain, but significantly for only half of the length;
• deepening the drain as much as 600 mm in some locations; and
• widening as required to accommodate the extra depth;

plus

• the removal and replacement of 29 existing access culverts;
• the installation of the one new access culvert that was requested in 2011; and
• the removal and replacement of the six lawn enclosure sections installed under the 2001 Peralta Engineering Report;

at an estimated total cost of $407,300.

OPTION 2 – including:

• undertaking minor re-grading for the upstream 960 metres of the drain;
• removal and replacement of 11 access culverts and one lawn enclosure;
• installation of the one new access culvert that was requested in 2011;
• removal of one access culvert and completely filling the drain at that location;

plus

• construction of approximately 528 metres of new open and closed drain described as a ‘Cutoff Drain Outlet’;
  • including a 1400 mm diameter crossing through County Road 31, in an easterly direction, outletting to the Ruscom River, to carry the flow from the aforementioned upstream 960 metres of re-graded existing drain;

plus

• removal of the downstream 15 access culverts and six lawn enclosures; and
• the installation of 370 metres of 600 mm diameter pipe as a storm sewer with five catchbasins thereby completely enclosing the open drain;

at an estimated total cost of $394,540.

Dillon Consulting’s Preliminary Drainage Report contained very detailed cost estimates that would double as specifications, complete assessment schedules for both options, and a set of six detailed design drawings – two plans and four profiles. The engineering costs to this point were indicated as $165,450.

A meeting to consider Dillon Consulting’s Preliminary Drainage Report was convened by the Drainage Board of the Town of Lakeshore on August 6, 2013 but no record of attendance is included in the minutes of that meeting. The Board took a poll of those affected landowners in attendance and the minutes indicate that the majority was “interested in establishing a new gradeline, replacing only the culverts requested at this time, and providing mechanisms for future replacement of all other culverts.” Based on this poll, the Board passed the following motion:

THAT the Engineer’s preliminary report prepared by Dillon Consulting Limited dated June 18, 2013 to provide for the repairs and improvements to the Fourth Concession Drain East in the Town of Lakeshore, in the County of Essex be referred back to the Engineer for finalization based on the residents requested proposal.

Under date of April 17, 2014, Dillon Consulting provided a Drainage Report for the Fourth Concession Drain East and Cutoff Drains (South, North & Outlet), which proposed essentially Option 2 from the Preliminary Drainage Report, with the Cutoff Drain Outlet, the removal and replacement of 14 access culverts, including the one requested in July of 2008, the installation of the one new access culvert that was requested in 2011, and the installation of four new lawn enclosures at an estimated total cost of $358,105. There are 39 different landowners and one road authority assessed on this project. This Report was considered at a meeting of the Drainage Board on May 5, 2014 and, after much discussion, was referred back to the Engineer.

Under date of June 4, 2014, Dillon Consulting provided a Reconsidered Drainage Report for the Fourth Concession Drain East and Cutoff Drains (South, North & Outlet), which proposed essentially the same work as the April 17, 2014 Drainage Report but with two access culvert replacements deleted, one access culvert replacement added, two lawn enclosures added, and minor changes to width and surface treatment on four other access culverts. The total estimated cost in the Reconsidered Drainage Report is $380,805 with the total engineering estimated at $169,100. This Report was considered at a meeting of the Drainage Board on June 16, 2014 and, after much discussion, was adopted by the Board.

The Court of Revision was held in front of the Drainage Board on August 5, 2014 with five landowners appealing their assessments, including Mary Lachine, one of the Appellants before the Tribunal. None of the appeals were granted by the Court and the by-law adopting the Report was recommended to Council for third reading.

Subsequent to the Court of Revision, five appeals to the Tribunal were received. One of those appeals was withdrawn on January 12, 2015, leaving the aforementioned four appeals under Sections 48(1) and 54(1) of the Act.

Issues

1. Are the benefits to be derived from the proposed drainage works commensurate with the estimated costs?
2. Should the assessments of Appellants Lachine and Pedden be reduced?

Evidence

Dennis McCready, P. Eng.

Mr. McCready of Dillon Consulting advised the Tribunal that he did not prepare the various Engineer’s Reports for the Fourth Concession Drain East or the assessments under discussion. This work was done by Mr. Tom H. Marentette, P. Eng., who left the employ of Dillon Consulting sometime between June 16 and August 5, 2014. Mr. McCready was subsequently appointed as the Engineer in charge of the project by Dillon Consulting and his first involvement with the process was attending the Court of Revision on August 5, 2014.

Mr. McCready provided a brief overview of the works proposed in the Reconsidered Drainage Report under date of June 4, 2014 and advised that the Report also contained specifications and assessment methods for the future replacement of those access culverts not being replaced as part of this project.

Mr. McCready then proceeded to provide the assessment rationale for the four new distinct sections of drain being created by this Report, making reference to Assessment Schedules C-1 to C-4 and to Schedules D-1 to D-4 for details of the special benefit assessments, as follows:

The Fourth Concession Cutoff Drain North – being a section of the existing drain that will have its grade reversed to flow southerly rather than northerly, located generally in the mid portion of the area, approximately 161 metres in length, including three access culvert replacements, two future access culvert replacement designs, and $7,150 of channel works, at a total estimated cost of $30,150, being assessed as shown in Schedule C-1, generally at a rate of 50% benefit and 50% outlet to all the lands and that part of County Road 31 within the drainage area of this drain, except for extra pipe lengths or special surface treatments which were assessed as a 100% special benefit to the affected property;

The Fourth Concession Cutoff Drain South – being the southerly section of the existing drain that will continue to flow northerly, approximately 800 metres in length, that will have some ditchbottom cleanout undertaken at an estimated cost of $23,950, plus six access culvert replacements and four future access culvert replacement designs, at a total estimated cost of $88,850, being assessed as shown in Schedule C-2, generally at a rate of 50% benefit and 50% outlet to all the lands and that part of County Road 31 within the drainage area of this drain, except for extra pipe lengths or special surface treatments which were assessed as a 100% special benefit to the affected property;

The Fourth Concession Cutoff Drain Outlet – being the proposed new section of closed and open drain, running easterly for approximately 540 metres, at a total estimated cost of $133,205 being assessed as shown in Schedule C-3, including a 1200 mm diameter crossing of County Road 31 at an estimated cost of $24,895 being assessed entirely to the road authority, a one-time cutoff special benefit assessment of $17,025 being made to all the properties located north of the upstream end of this drain due to the reduction in flow past these properties that will result by the new drain cutting off the flow from the south part of the drainage area and diverting it to the east, with the balance of $91,285 being assessed at a rate of 50% benefit and 50% outlet to all the lands and that part of County Road 31 in the drainage areas of the South, North and Outlet Drains; and

The Fourth Concession Drain East – being the northerly section of the existing drain that will continue to flow northerly, approximately 380 metres in length, at a total estimated cost of $128,600 being assessed as shown in Schedule C-4, including three access culvert replacements and eight future access culvert replacement designs at an estimated cost of $51,400 being assessed at a rate of 50% benefit and 50% outlet, six lawn enclosures estimated to cost $19,100 being assessed at 100% special benefit to the affected properties, and $58,100 for other work that was not explained being assessed at a rate of 50% benefit and 50% outlet to all the lands and that part of County Road 31 within the drainage area of this drain.

Mr. McCready indicated no work is proposed on any of the properties owned by the Appellants. He then proceeded to explain the assessments that have been made against the properties of the Appellants using detailed sheets that he circulated. These assessments are summarized in the following table.

APPELLANT	Assessment Schedule C-1 North Drain	Assessment Schedule C-2 South Drain	Assessment Schedule C-3 Outlet Drain	Assessment Schedule C-4 East Drain	TOTAL ASSESSMENT
Lachine	0	0	$1000	$4773	$5773
Martinu	$1225	0	$924	0	$2149
Pawlowski	0	0	$1000	$5011	$6011
Pedden	0	0	$1000	$3533	$4533

Mr. McCready explained the assessments generally, as follows:

• Each of the Appellants have a one-time cutoff assessment in Schedule C-3;
• Each of the Appellants have a special benefit assessment for the engineering costs to design and specify the future replacement of their access culvert;
• Each of the Appellants have a benefit assessment within their section of drain;
• Each of the Appellants have an outlet assessment within their section of drain for work being done on the drain downstream of their property; and
• Each of the Appellants have a ‘culvert outlet’ assessment within their section of drain for culvert replacements being undertaken downstream of their property.

Gordon and Mary Lachine

Mr. Lachine presented evidence to the Tribunal on behalf of his wife and himself. They own one of the residential lots in the north section of the drain, property number 13 on the Plan.

Mr. Lachine attended four meetings that were held regarding this proposal and he said he still does not understand why such an extensive and expensive project is being proposed for the Fourth Concession Drain East when all the Quennevilles requested in the first instance was to have their access culvert replaced. Mr. Lachine said he did not hear any complaints about water flow, or flooding, or damage, or health risks at any of the meetings he attended, so he does not understand why such a comprehensive Report has been prepared. In his opinion, the Drainage Board should have had confirmation from all the property owners before authorizing this Report and, since there are no complaints and no confirmation from the owners, there is no need for the proposed diversion and all the cost associated with it. Furthermore, the diversion is proposed through a future residential area, which will result in more problems there.

Mr. and Mrs. Lachine were one of the residential owners who had the ditch in front of their property enclosed in 2001 under the Peralta Engineering Report and they paid 100% of their cost ($10,427). As a result, Mr. Lachine said they do not feel it is fair to be assessed for lawn enclosures on other properties on the drain. Under the Dillon Consulting Report, no work is proposed on the section of the drain in front of their property yet the Lachine’s are being assessed $4,773, which means they will have paid over $15,000 toward this drain since 2001. As property owners within a municipal drain area, Mr. Lachine said that he and his wife realize they are expected to pay some costs for work on the drain. They are not opposed to their neighbours having the ditch enclosed across the front of their properties, as long as those owners pay all the costs of that work.

Mr. Lachine asked why a new culvert was installed in the drain through the Mailloux laneway shortly after the last meeting when the Drainage Board said there would be no work done on the drain until this matter is resolved. He also asked who is going to pay for that culvert.

Charles and Theresa Martinu

Mr. Martinu presented evidence to the Tribunal on behalf of his wife and himself. They own a residential lot in the middle portion of the drain, that is, in the section labelled Fourth Concession Cutoff Drain North, the section that is proposed to have the grade reversed to flow southerly. They have owned this property since before August 1992 but, before moving to this location, they owned a property in the downstream section of the drain.

It is Mr. Martinu’s understanding that only two new lane culverts were requested on this drain so he said he has no idea how the proposal has risen to the size and cost ($380,000+) that it has. Mr. Martinu contended that, while there are some minor issues, there are no real problems along this drain. He does have water standing in the ditch and culvert in front of his property most of the time, but this is not a problem for him. From his observations, this drain never has had a proper gradient but that has not been a problem for anyone. His lane culvert is in very good condition and will last for many years. He has noticed that the outlet pipe has a problem as water flows underneath it. He and many other owners on the drain do their best to clean and maintain the ditch and are satisfied with the way the water flows now. Nothing is really broken on this drain so, in his opinion, “don’t try to fix what isn’t broken”.

Mr. Martinu is concerned that this proposal for a new outlet drain will bring too much water to one point and it will back up and cause flooding as water does not like to make sharp turns. He suggested that the water from the south will continue to flow straight ahead, which means it could back up in front of his property. He has never had water in his basement and is concerned that he may if this proposal proceeds.

Since there are no serious problems with the drain, Mr. Martinu felt this extensive proposal is too much work and too much cost. His assessment is $2,149 and there is nothing being done across the front of his property. If the Town had approached the owners on this drain for approval before starting this major engineering project, they never would have received approval to proceed. He wants this project stopped and a much smaller project undertaken to fix the outlet pipe and replace the culverts for those two owners who requested them. If some other owners want their culverts replaced because they are too small or too high, that could be done too. He felt there does not need to be any alteration to the present direction of flow in the drain.

When questioned, Mr. Martinu advised that his observation was that the majority of water that reaches this drain flows from the agricultural lands located in the west part of the drainage area and the County road allowance. Additionally, he had observed a problem with culvert alignment between pipes numbered 14, 15 and 16. Further, he had not closely inspected the outlet pipe so he was not sure of its general condition but has observed water flowing under it. In his opinion, the outlet pipe does seem to be large enough but may need some repair.

Rob and Jacqueline Pawlowski

Mr. Pawlowski presented evidence to the Tribunal on behalf of his wife and himself. They own one of the residential lots in the north section of the drain, property number 14 on the Plan, which was previously owned by Mr. and Mrs. Field. They bought the property in 2014 and, two days after moving in, were presented with this Report. Mr. Pawlowski said that, unfortunately, he was not able to attend the last two meetings about this drainage proposal.

The Pawlowskis main objection is that the cost of this project is much too high. They understood that this all started with one or two people wanting to replace their culverts but they do not understand how it got to be such a large project. They have no objection to any of the landowners getting new culverts or lawn enclosures but those people should pay for them on the same basis as others have in the past using the existing Reports. It is his position that, if there is poor gradient on the ditch, whoever is responsible for that should be held accountable, not the current owners.

Upon questioning, Mr. Pawlowski advised that he has both a driveway culvert and a lawn enclosure across the front of his property. He also confirmed Mr. Martinu’s statement that, on the upstream or south side of his property, there is a short section of open drain between his lawn enclosure pipe and the driveway culvert of his neighbours, Mr. and Mrs. Rivest. He further advised that his lawn enclosure pipe is at a higher elevation than the Rivest culvert such that trash collects at that point and he has to clean it out once or twice per week. He does not know if this problem is going to be rectified as part of the proposed project. In the year that he has lived there, he is not aware of any maintenance work done by the Town.

Andrew and Sandra Pedden

Mrs. Pedden presented evidence to the Tribunal on behalf of her husband and herself. They own one of the residential lots in the north section of the drain, property number 3 on the Plan. They have lived at this location since 2000.

Mrs. Pedden stated that they object to the very high cost of this project and the amount that has been assessed to their property. They have a good driveway culvert and lawn enclosure pipe and absolutely no drainage or flooding problems. There is no work proposed on the drain in front of their property. They are not opposed to other owners having new works done but those owners should bear the costs in the same manner as in the past. She adopted and reinforced what the previous Appellants stated.

Mrs. Pedden advised that the only maintenance work she has seen in 15 years was some ditchbank repairs in the upstream section of the drain.

Jill Fiorito, Drainage Superintendent

Ms. Fiorito explained that the drain maintenance policy of the Town is ‘reactive’ rather than ‘proactive’, that is, the Town undertakes maintenance work on drains only when requested to do so.

Ms. Fiorito advised that spot maintenance work was done on the Fourth Concession Drain East in 2010, 2012, 2013, and 2014. She also said that extensive work of culvert flushing and ditchbottom excavation was done in 2005; however, Ms. Fiorito later contradicted that testimony by indicating the work she was referring to may not have been done on this drain.

Regarding the new driveway culvert for Mr. Mailloux’s severed property, Ms. Fiorito said it had to be installed to allow access to the property as the new owner was ready for a building permit and was entitled to access the property to build his new house. The culvert that was installed is considered temporary and was paid for entirely by the new owner. The new owner is aware that, regardless of the outcome of these appeals, they will need an engineer’s report to include their temporary culvert in the existing drainage works.

Ms. Fiorito further advised or confirmed with the Tribunal that:

• She has been the Drainage Superintendent for the Town of Lakeshore since late October 2012 and, prior to that, she was assistant Drainage Superintendent, and, prior to that, she was a clerk in the Drainage Department;
• The original two requests for culvert replacement were made in July 2008 (Quenneville) and July 2011 (Mailloux), and a third was recently submitted in May 2014 (Dunn/Branch);
• The Town did not, and when asked by the Tribunal could not, produce any written instructions from the Town or the Drainage Board to Dillon Consulting authorizing the Preliminary Drainage Report;
• The Drainage Board does not keep a record of the landowners who attend the Board meetings;
• Although she attended the Drainage Board Meeting of August 6, 2013, at which time the Preliminary Drainage Report was considered, she does not know how many of the affected landowners attended;
• At its meeting on August 6, 2013, the Drainage Board did have the landowners present vote on the matter but she does not recall that ever happening before in the six years that the Board has existed;
• She thinks the Board asked for only one vote per property at that meeting but there was no firm verification as to who exactly was voting and no record of the actual votes for or against;
• At its meeting on August 6, 2013, the Drainage Board instructed the Engineer to prepare a report based on the residents’ requested proposal i.e. establish a new gradeline, replace only the culverts that were requested at that time, and provide mechanisms for the future replacement of all other culverts;
• At its meeting on August 6, 2013, the Drainage Board did not instruct the Engineer to proceed to prepare a report based on Options 1 or 2 in the Preliminary Drainage Report;
• She does not know why it took six years for this Report to be prepared;
• The Drainage Board was concerned about the time taken to prepare this Report; and
• “Mechanisms for future replacement of all other culverts” means that the Report would include specifications and cost assessment direction for all culverts not being replaced as part of the Report so that those culverts could be replaced in the future, as a maintenance project by the Drainage Superintendent, without having to retain an engineer.

Dennis McCready, P. Eng.

Mr. McCready provided the following additional information about this drain and the Reconsidered Drainage Report.

• The soil type in the drainage area is Brookston clay loam, which has poor natural drainage. The topography is generally quite flat.
• The 1969 Armstrong Report indicates a gradient of 0.07% for the downstream three-quarters of the drain and a gradient of 0.22% for the upstream quarter of the drain. At that time, there were 14 residential culverts and five agricultural culverts in the drain.
• He reviewed the 1993 Todgham and Case Associates Report in some detail noting that it incorporated all 28 culverts that existed at that time as part of the drain and establishing an assessment rate of 70% benefit and 30% outlet for the replacement of these culverts. It was a Section 76 report so no work was actually done on the drain at that time.
• He reviewed the 2001 Peralta Engineering Report in some detail noting that it stated the costs to maintain the six lawn enclosures constructed thereunder were to be paid 100% by the adjacent properties and deferred to the Todgham and Case Associates Report for the maintenance of any access culverts.
• He reviewed the Dillon Consulting Preliminary Drainage Report in some detail noting that Option 1 recommended the replacement and upsizing of all 29 access culverts and all six lawn enclosures, plus a new ditchbottom gradeline for the entire length of the drain. He explained that the gradeline proposed in Option 2 generally followed the existing ditchbottom slopes which necessitated the proposal to construct the Cutoff Drain Outlet to the east. Option 2 proposed ‘slip-lining’ some of the new pipes in the East section of the drain.
• He reviewed the Dillon Consulting Reconsidered Drainage Report in considerable detail, making reference to Schedule A, which is a list of the nine landowners who attended the second site meeting on May 4, 2010, and Schedules C-1 through C-4 which are the assessment schedules for the four sections of the drain. He advised that no minutes were taken of any of the site meetings. He described Schedules D-1 through D-4 in detail as those schedules explain the Special Benefit Assessments for the four sections of the drain. He briefly described Schedules E-1 through E-4, which are the schedules proposed to be used for the assessment of maintenance costs on the four sections of the drain in the future. He reviewed some of the drawings in detail, specifically: #2 the Profile, pointing out the existing low point in the ditchbottom, which is where the new Outlet Drain is proposed, and explaining how this new drain will provide good outlet for the North and South parts of the existing drain; #3 the Plan and Profile of the proposed Cutoff Drain Outlet, indicating that it has a very good gradient to the river such that there will be no back up of flows in the existing drain; #6 the Plan that shows the proposed pipe connection between the Pawlowski and Rivest properties, eliminating the alignment and trash collection problems that currently exists at that location; #13 the Design Tables, which include all necessary details for the culverts proposed to be replaced as part of this project and those to be replaced in the future.
• He then summarized the works proposed for the South Drain as the replacement of five culverts, one new culvert installation (the temporary one that has already been installed), some open drain cleanout, and provision of design and assessment details for the replacement of the remaining four culverts.
• He summarized the works proposed for the North Drain as the replacement of two culverts, the removal of one culvert and the filling of the ditch at that location, and provision of design and assessment details for the replacement of the remaining two culverts.
• He then summarized the works proposed for the East Drain as the replacement of seven culverts, the replacement of six lawn enclosures, the replacement of the outlet pipe, and provision of design and assessment details for the replacement of the remaining eight culverts.
• He then summarized the works proposed for the Outlet Drain as the installation of a new 1200 mm diameter steel pipe through County Road 31, the installation of 65 metres of 1200 mm diameter steel pipe downstream or east of the road, and the excavation of 250 metres of open drain downstream of that pipe.
• He then addressed Mr. Lachine’s appeal that the costs are greater than the benefits saying that, while the project is very expensive, it is the cost of the access culverts and the lawn enclosures that are making it so, and they are very beneficial to all of the various properties. There is also benefit to the owners on the East and North portions of the drain as they can replace their large diameter culverts with smaller ones if the Outlet Drain is constructed to divert flow away from their properties. Regarding Mr. Lachine’s question as to why culvert #22 was so much more expensive than culvert #23, he indicated that #22 was going to have to be excavated and removed and replaced while #23 was going to be replaced by ‘slip-lining’ which is less costly. He also explained the assessment difference to these two affected properties by referring to the Special Benefit Assessment details on pages 38 and 39 in Schedule D-4 of the Report.
• With respect to the Martinu and Pawlowski appeals that the costs are greater than the benefits, he again suggested that it is the cost of the access culverts and the lawn enclosures that are making it so, and they are very beneficial to all of the various properties.
• Concerning the Pedden appeal regarding assessments, he explained that he had already addressed this issue in Exhibit 4.

Upon questioning by Mr. Martinu about the possibility of filling in the low sections of the channel, Mr. McCready did not reply. When asked if there would be more water reaching the proposed confluence of the North and South Drains than there is now, Mr. McCready said that there would be. When asked if this greater volume of water would cause a backup at that point, Mr. McCready advised that a backup will not happen as the Outlet Drain is proposed to be eight inches lower than culverts 13, 14 and 15.

Mr. Pawlowski asked if there could be a backup in the Outlet Drain when the river is in flood, to which Mr. McCready replied that it would be no more than what occurs now at the outlet into the Baseline Drain as it connects to the river as well.

Mrs. Pedden asked why putting a smaller pipe inside a larger pipe would not cause a backup of water there. In reply, Mr. McCready stated that because all of the flow from upstream of culvert #14 was being cutoff and directed easterly, there would be less flow of water in the East Drain than in the past, so that would not be a problem.

Upon further questioning, Mr. McCready advised that:

• It is normal practice that a preliminary drainage report is formally requested in writing by the Town but no such instruction was given in this case;
• Dillon Consulting considers there to be two types of preliminary reports, a report with minimal information as stipulated by Section 4 of the Act [which the Tribunal notes should have been Section 10] and one that Dillon Consulting decides is required to provide property owners with sufficient information to make further decisions about a drainage project, that would include most details contained in a final report such as formal plans, profiles, specifications and assessments;
• The project expanded from two culvert replacements to a $381,000 complete reconstruction and diversion because the Engineer surveyed and assessed the entire drain and determined that much more repair and improvement work needed to be done;
• It is the Engineer’s duty to recommend all the repairs and improvements that his survey reveals are needed;
• It is normal practice for the Town to obtain written requests for repair and improvements to municipal drains but these are not required by the Act;
• In his years of practice, he has never obtained written requests for additional works when preparing a Section 78 report as, in his opinion, these are not required by the Act;
• He does not know why it took six years to complete this Report, other than there is a lack of drainage engineers in this area, it is normal to have a project backlog of two years, and he was away on medical leave for two years;
• As far as he knows, there was no consideration given to an option to re-establish a uniform ditchbottom gradient in the existing drain channel but it would have had to extend for a length of about 600 metres;
• The volume of flow at station 0+000 would be greater under the current proposal;
• Upon reconsideration, the Outlet Drain is proposed to be only six inches, not eight inches, lower than culverts 13, 14 and 15;
• There was no formal instruction from the Town to proceed with Option 2 in the Preliminary Drainage Report; only the Engineer’s notes from the meeting to consider the Report and the motion of the Drainage Board;
• The industry standard for engineering costs is about 24% of the total project cost and it is higher in this case;
• Most of the flow reaching this drain comes from the agricultural land within the drainage area but also some is contributed by County Road 31 and the residential properties;
• He did not analyze the assessments to the County Road Authority but understands how they were derived;
• All of the crossings on this drain are in fact steel pipe culverts not bridges;
• The reference to the Todgham and Case Associates Report on page 2 of the Reconsidered Drainage Report is in error as the date should be April 26, 1993 rather than August 5, 1992;
• The engineering cost for driveway culvert replacement works ranges from $1,400 to $1,500 with 50% assessed to the subject property and 50% assessed to the upstream lands as outlet, as shown in Schedules D-1 to D-4, and he feels that cost is quite reasonable, possibly even on the low side, as he has seen those costs as high as $4,000 for one culvert done on its own;
• The engineering cost for providing the details for future driveway culvert replacement works is $1,200, which he feels is a reasonable amount, with 50% assessed to the subject property and 50% assessed to the upstream lands as outlet, as shown in Schedules D-1 to D-4, and it is his observation that municipalities have recently seen the benefit of having this information readily available as it allows the Drainage Superintendent to undertake individual crossing replacements without having to hire an engineer;
• While the Todgham and Case Associates Report provides all the information necessary to replace the Quenneville culvert and provide one for the Mailloux property, he does not know why the Town did not use it to do that work, but speculates that the Town may have felt that a 1993 report was out of date;
• The length of steel pipe specified under County Road 31 on the Plan portion of drawing two appears to be in error as it should read 15.5 metres rather than 5 metres;
• The existing drain on the west side of the road is on the road allowance, not on the private properties;
• He does not have any experience with trying to raise the bottom of an open drain but expects it could be done using some type of erosion blanket;
• As standard practice, he questions all landowners about any underdrainage from land outside of the watershed area but he does not know if that was done in this case;
• Standard galvanized corrugated steel pipe (CSP) seems to last for about 35 years in this area whereas the newer aluminized CSP is advertised to last twice as long and the high density polyethylene pipe (HDPE) should last even longer than that;
• The Provincial Design and Construction Guidelines for Municipal Drains have not changed since they were originally published in 1986 so they are the same as they were when the Todgham and Case Associates Report was prepared in 1993;
• If a culvert was replaced in 2001 with standard galvanized CSP, it should last until 2031, so it is a judgment call as to whether it is advisable to charge a property now for something that likely won’t be required for 10 to 20 years;
• He is not concerned about the potential for water backup at the confluence of the North, South and Outlet Drains as the flow velocities will be low due to the minimal gradients, so any backup will be minimal, as well; and
• He is not concerned about the confluence of the North, South and Outlet Drains becoming blocked with ice as it will be in smaller pieces having already passed through the smaller culverts on the North and South Drains so it should pass easily through the larger culvert under the County Road, and the Drainage Act does not hold the municipality liable for drain blockages due to snow and ice.

Findings

Except for a few minor issues raised by some of the Appellants, there was no evidence before this Tribunal involving complaints concerning the current condition of the drain – no drainage outlet problems, no flooding problems, no significant standing water problems, and no erosion problems. The only issues brought to the attention of the Town were two requests for existing culvert replacements (one made in 2008 that resulted in the appointment of the Engineer, and one made in May 2014 after the Drainage Report was submitted and just before the Reconsidered Drainage Report was completed), and one request for a new culvert for a newly severed residential property that was made in 2011 and eventually acted upon in late 2014. Accordingly, other than culvert issues, there appear to be no significant problems with this drain.

Since apparently there are no flooding or water backup complaints, it would seem that the culvert sizes contained in the Todgham and Case Associates Report are adequate.

The Tribunal questions why the Town retained an engineer to prepare a new report under Section 78 of the Act apparently without fully consulting all the property owners in advance.

The Tribunal agrees with the Appellants that it is not evident how or why a proposal of this magnitude resulted from the instructions that appear to have been given to the Engineer on August 6, 2013. It would seem that the instructions from the Town were not sufficiently clear and, unfortunately, the Town did not provide anything in writing to substantiate these instructions.

The Town Drainage Superintendent made it clear that the Drainage Maintenance Policy of the Town is reactive rather than proactive, that is, they react to requests or complaints rather than proceeding to undertake unrequested maintenance work. Since the Town already had “mechanisms for culvert replacements” available to it for this drain in the Todgham and Case Associates Report (which only applies to culvert maintenance and not to new access culverts or lawn enclosures) that would have allowed a fairly simple ‘reactive’ solution to the request, the Tribunal questions why the Town did not simply replace the Quenneville culvert rather than taking a ‘proactive’ approach and appointing an engineer without consulting with all the landowners? No answer was provided to this question by the Town. In fact, if that approach had been taken, the Quenneville culvert could have been replaced well before the end of 2008.

The evidence provided would indicate that the landowners on this drain had no idea they were going to be faced with a cost of $381,000 when they left the August 6, 2013 meeting. It seems there was a complete lack of communication from the Town to the Engineer and the landowners throughout this long process.

There was no explanation as to why this Report took six years to complete. Mr. McCready indicated that, in this area, a backlog of two to three years was normal but he could not explain a six-year time of preparation. A report preparation time of six years is much too long and leads to higher than normal engineering costs.

The engineering costs for this project are estimated at $169,100 or 44.4% of the total project cost. This is nearly double the provincial average of 23.4% for projects of this size. No satisfactory explanation was provided for these higher than average costs.

The drain profile provided in the Report indicates there are some low areas where water could stand in the ditchbottom; however, this was not identified as a problem in the Report or by Mr. Martinu, who is directly affected. How did this gradient become what it is today and who is responsible for it? Unfortunately, no direct evidence was provided to answer these questions. However, Section 74 of the Act is clear on this matter; the municipality is responsible for the maintenance and repair of a municipal drain. Accordingly, it would seem that the Town is the responsible party. The Tribunal understands that these low areas may be of some concern to the landowners.

Therefore, in accordance with Section 48(1)(a) of the Drainage Act, the Tribunal concludes that the estimated costs of this proposed project are not commensurate with the benefits to be derived and the Report shall be set aside. Having found that, the request for reduced assessments by Appellants Lachine and Pedden is no longer an issue.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

1. The appeals by Gordon and Mary Lachine, Charles and Theresa Martinu, and Rob and Jacqueline Pawlowski, under Section 48(1) of the Act are hereby granted;

2. The Reconsidered Drainage Report for the Fourth Concession Drain East and Cutoff Drains (South, North and Outlet), as prepared by Dillon Consulting Limited, dated June 4, 2014 is hereby set aside;

3. The assessments appeals of Gordon and Mary Lachine, and Andrew and Sandra Pedden under Section 54(1) of the Act are set aside as a result of Order 2;

4. The Town shall proceed to replace the culverts on the Fourth Concession Drain East for which written requests have been received, especially the Quenneville culvert, as soon as possible, using the Todgham and Case Associates Report as the “mechanism for culvert replacements”;

5. The Town shall obtain a brief engineer’s opinion on the adequacy of the temporary new access culvert installed at the former J. Mailloux property, as related to the Todgham and Case Associates Report, and, if necessary, have the culvert removed and replaced, entirely at the cost of the new owner of the former J. Mailloux property, including any engineering fees;

6. The costs of the Town in respect of this appeal which, for greater certainty, shall include the Engineer’s fees and expenses for preparing the three Drainage Reports and the Engineer’s fees and expenses for preparing for and attending this hearing, shall be paid for entirely by the Town out of general funds; otherwise, it is ordered that all parties are responsible for their own costs of these appeals.

Dated at Tecumseh, Ontario this 18th day of February, 2015.