Agriculture, Food and Rural Affairs Appeal Tribunal

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

1 Stone Road West 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: Golding-Baigent Drain Branch ‘E’ 2014 Township of Zorra

Golding-Baigent Drain Branch ‘E’ 2014 (RE) 2015ONAFRAAT05

STATUTE: Drainage Act

HEARING: February 12, 2015

DATE OF DECISION: March 16, 2015

2015-05

NEUTRAL CITATION: 2015ONAFRAAT05

GOLDING-BAIGENT DRAIN BRANCH ‘E’ 2014

Township of Zorra

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Edwin Baigent, Owen Baigent and Darin Baigent of Hawkswood Farms under section 54(1) of the Drainage Act from the decision of the Court of Revision pertaining to the Golding-Baigent Drain Branch ‘E’ 2014.

Before: Paula Lombardi, Vice-Chair; Andrew McBride, Member; Richard Smelski, Member

Appearances: Edwin Baigent, Appellant Owen Baigent, Appellant Darin Baigent, Appellant Michael P. DeVos, P. Eng., Engineer who prepared the Report David Hammond, Assessed Landowner Michael Hughes, Drainage Superintendent

DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing in the Township of Zorra (“Municipality”) in Ingersoll, Ontario on February 12, 2015. The Engineer’s Report, dated August 28, 2014 for Golding-Baigent Drain Branch ‘E’ 2014 (“Report”), was prepared by Spriet Associates, and signed by Michael P. DeVos, P. Eng. (“Engineer”). The appeal to the Tribunal was filed by Edwin, Owen and Darin Baigent of Hawkswood Farms (“Appellants”).

Karen Martin, Clerk of the Corporation of the Township of Zorra, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing. The Municipality filed an Affidavit of Service, dated December 8, 2014, as proof that all parties had been served with the notice of hearing.

David Hammond, an assessed landowner, was made a party to the hearing. D. and K. Hammond own the northern parcel of land located at Part of Lot 2, Concession 3 while a numbered company, 2208151 Ontario Inc., that the Tribunal was advised is controlled by the Hammonds, owns the southern parcel of Part Lot 2, Concession 3 (collectively referred to as the “Hammond Properties”).

Background

The Report, dated August 28, 2014, was prepared by Spriet Associates, Engineers & Architects. Mr. DeVos, a professional engineer with that firm, was appointed as the engineer under section 8 of the Drainage Act (“Act”). The Golding-Baigent Drain, Branch “E” 2014 (“Branch E”) will provide drainage to part of the south half of Lot 1, and part of the west half of Lot 2, Concession 3, geographic North Oxford, in the Township of Zorra. The total watershed area consists of approximately 34.3 hectares.

The Golding-Baigent Drain was originally constructed pursuant to a report prepared by J. Weston, P. Eng., dated September 25, 1957. As part of the original construction, an open drain was excavated through the Appellants’ property being the south half of Lot 1, Concession 3. The open drain was subsequently reconstructed in 1980 as part of a drainage report prepared by K. D. Smart. P. Eng.

The Engineer conducted an on-site meeting, undertook field investigations, and completed a survey of the area. The Engineer noted that the Hammonds advised of their desire to systematically tile the southerly quadrant of their lands located in Lot 2, Concession 3, and petitioned for a legal surface and subsurface drainage outlet to the Golding-Baigent Drain. The remaining northerly portion of Lot 2 will be tiled into the existing Dick Telfer Drain. Of the 25.6 hectare area situated in Lot 2, only 11.0 hectares naturally drain toward the open portion of the Golding-Baigent Drain in the south half of Lot 1, Concession 3, which is situated on the Appellants’ lands. The other 12.6 hectares naturally slope in a south easterly direction into the drainage area of the Oliver Municipal Drain.

The proposed work for Branch E is a new closed drain consisting of approximately 366 lineal metres of 300 mm and 400 mm concrete field tile, a 6 metre 450 mm outlet pipe, and related appurtenances, to provide a sub-surface drainage outlet for the area proposed to be tiled into it (the Hammond Properties) and a surface drainage outlet for the natural part of the watershed area. The surface drainage outlet will be provided by a ditch inlet catch basin and a fifteen (15) metre long berm proposed to be located along the property line between the Appellants’ property and the 220851 Ontario Inc. property. This will reduce surface water inflow and erosion to the property of the Appellants.

The Engineer prepared a preliminary design, costs estimates and assessments and held an on-site meeting to seek input form the landowners in the drainage area.

The costs of the proposed work associated with Branch E are set out in Schedule “B” of the Report at $33,300. The Assessments for Construction are set out in Schedule “C” of the Report and as modified by Exhibit 5, being a revised Schedule prepared by the Engineer and provided to the Tribunal. Each assessment is separated into benefit and outlet.

The benefit assessments are distributed to those properties either situated along or, in close proximity to, the drain. The outlet assessments are distributed to all of the properties located within the watershed area of the drain. Since a portion of Township Road 62 is within the drainage area, the Municipality is responsible for a portion of the costs, being approximately four percent (4%) of the total costs. The Appellants were initially assessed forty-three and half percent (43.5%) of the overall project cost. In accordance with sections 29 and 30 of the Act, allowances are shown in Schedule “A” of the Report and include right-of-way and damages to lands and/or crops situated along the drainage route.

The Appellants were initially assessed a total amount of $14,510 ($9,350 for benefit and $5,160 for outlet) as listed on Schedule “C” of the Report. Upon receiving confirmation of the tiling of the south part of Appellants’ property, the Engineer revised the assessments for the Tribunal.

Issue

Should the assessment as set out in the Engineer’s Report dated August 28, 2014 be amended?

Evidence

Michael DeVos, P. Eng., the Engineer who prepared the Report

The Engineer testified that the Report was initiated by a petition in accordance with the Act by the Hammonds whose properties represent more than sixty percent (60%) of the area requiring drainage. Mr. Hammond requested that an additional portion of his property draining towards the Oliver Drain be incorporated into and drained towards, Branch E.

According to the Engineer, a preliminary meeting was held and the Appellants advised that their property was systematically tiled but failed to provide any mapping showing the area of the tiling. The Engineer testified that during the preparation of the Report, and at the Court of Revision, the Appellants failed to provide a map of the tiling situated on their property and, as a result, the Engineer was unable to revise the assessments. It was only after the Court of Revision that the Appellants provided the Engineer with a photograph of a portion of the tiled area situated on their property. The photograph, submitted as Exhibit 4, did not show all of the Appellants’ property as being tiled. However, upon becoming aware of the south part of their property having been tiled, the Engineer revised the assessment for the Appellants’ land but did not think it was appropriate to reduce the benefit.

In response to questions from the Tribunal, the Engineer testified that the Appellants’ property is currently drained by a tile drainage system. The existing private tile drains will be replaced by the new drain through the area of the Appellants’ property that has surface water and the new drain will provide an outlet area for the northerly portion of the property that is not currently tiled. In the Engineer’s opinion, the Appellants will also benefit from having an outlet that will collect surface water from the upstream lands. The Engineer stated that the areas between the tiling on the Appellants’ property will be better served. The area to the east of the Appellants’ property, on the 2208151 Ontario Inc. property, is currently not drained and, with the construction of Branch E, all the tile drainage water from a new tile drainage system will be directed southerly to reduce the water going through the northerly area of the Appellants’ property. The Engineer testified that with the construction of Branch E, the seepage of surface and subsurface water from the 2208151 Ontario Inc. property into the southerly portion of the Appellants’ property will be avoided.

The Engineer testified that a modified “Todgham Method” was used to calculate the assessments shown on Schedule “C” of the Report. The modified method involves breaking down the cost of the drain into appropriate sections with special assessments and special benefits being calculated for each section. The remaining costs are then separated into benefit and outlet costs. Benefit cost is distributed to properties receiving a benefit as defined by the Act. These properties are usually located along or close to the route of the proposed drain. The outlet costs are distributed to all of the properties located within the watershed area of the section, on an adjusted basis. The areas are adjusted for location along that section and relative run-off rates. Because of higher run-off coefficients, roads are assessed for outlet at a greater rate than cleared farm land.

The actual cost of the work, with the exception of the Special Assessments, is assessed on a pro-rata basis against the lands and roads liable for assessment for benefit and outlet as shown in Schedule “C” – Assessment for Construction.

As a result of the evidence that the south field of the Appellants’ property had a tile drainage system in place, Mr. DeVos revised the assessment for the Baigent property to $8,350 for benefit and $4,083 for outlet. That revised assessment reflected an overall adjustment of $2,077. The Engineer testified the modified Todgham Method continued to apply and the benefit to the Appellants’ land is the ability to obtain better outlet of surface and/or sub-surface water. The Engineer also indicated that the middle portion of the Appellants’ property would have some of the existing tiles connected to the new Branch E which is why an average runoff factor of 0.72 was used.

Upon learning that the north field of the Appellants’ property was also systematically tile drained, the Engineer proposed a second revised assessment, lowering the total assessment against the Appellants’ property to $9,160 or 35.1% of the costs as shown in Exhibit 8.

Darin Baigent, on behalf of the Appellants

Mr. Baigent confirmed that the Appellants are the owners and operators of Hawkswood Farms. Mr. Baigent testified that when surface water flows from the southerly portion of the Hammond property into the lower area of their property it does not result in wet spots and drains into the main Golding-Baigent Drain. While Mr. Baigent confirmed that there were some erosion problems occurring close to the creek, he testified that these problems were only right at the creek and do not result in any drainage problems for the rest of the property. According to Mr. Baigent, the water flows in a westerly direction across their entire farm into the existing Golding-Baigent Main Drain.

Mr. Baigent testified that their southerly field was systematically tiled in 2009. The Appellants provided photographic evidence of the existing tile drainage system. Mr. Baigent also stated that the lower area in that field was previously tiled with crushed stone backfill. Mr. Baigent testified they will not receive any advantages from the proposed Branch E drain and are not proposing to connect any of their existing tiles into the drain. Mr. Baigent confirmed that their tile system functions well and there are no “wet” spots of concern.

According to Mr. Baigent, in or around the late 1980’s, they installed a catch basin and berm in the northerly low run on their easterly property line with a dedicated tile outlet to the main drain. The Appellants testified before the Tribunal that this solved the surface drainage problems in the northerly field and that the northerly field has been systematically tile drained.

Mr. Baigent advised the Tribunal that all of their property within this drainage area is tiled directly to the Golding-Baigent Main Drain and this was not taken into account in designing or assessing the costs of the proposed Branch E. The Appellants’ position before the Tribunal was that their lands do not receive any benefit from the proposed drainage works and because of this do not think they should bear any costs associated with the construction of Branch E.

David Hammond, Assessed Landowner

Mr. Hammond testified that the landowners in the area feel that the Oliver Drain, which is a closed Municipal Drain, is currently over capacity. The Oliver Drain is located to the east of the lands owned by 2208151 Ontario Inc. As a result of the issues associated with the capacity of the Oliver Drain, Mr. Hammond requested that some of the drainage of his property be directed to Branch E.

Michael Hughes, Drainage Superintendent

The Drainage Superintendent for the Township requested the Tribunal take into consideration future drainage for the area and that properties in the area can change over time.

Findings

1. Are there any benefits to the Appellants’ property from the proposed drainage works?

The Appellants failed to provide the Engineer with proof that their lands were tile drained prior to the Report being completed. The issue of the tile drainage system appeared to be significant to the Engineer. The existing tile drainage system on the Appellants’ lands is not a significant issue to the Tribunal, as the property of the Appellants has direct outlet to the main drain. The basic question before the Tribunal in this appeal is “What is the benefit of the proposed drain to the Appellants”?

The Tribunal accepts the evidence of the Appellants that their southerly field was systematically tile drained in 2009. The Appellants provided photographic evidence of the tile drainage system. The Appellants also stated that the lower area in that field was previously tiled with crushed stone backfill. The Tribunal is of the opinion that, based on the evidence presented by the Appellants, the Appellants’ southerly field, the field through which the proposed drain passes, is currently adequately tile drained and there are no “wet spots”.

According to the Appellants, in the late 1980’s, they installed a catch basin and berm in the northerly low run on their easterly property line with a dedicated tile outlet to the main drain. The Appellants testified before the Tribunal that this solved the surface drainage problems in the northerly field and that the northerly field has been systematically tile drained.

The Tribunal finds that the primary purpose of the proposed Branch E is to provide an outlet for the 25.6 hectares in the southwest portion of Lot 2, Concession 3 being the Hammond Properties. The only benefit of the proposed Branch E to the Appellants’ property is some “surface water cut-off” provided by the proposed berm and catch basin in the low area on the easterly property line, at Station 0+372, and some minimal “direct outlet”.

2. Should the assessments to the Appellants’ property be modified?

The Tribunal finds the Engineer’s original assessment of 43.5% of the project cost against the Appellants property to be excessive. The Tribunal also finds that the Engineer’s revised assessments of 37.3% and finally 35.1% as proposed at the hearing to be excessive in the circumstances. Accordingly, the Tribunal concludes that the assessment to the Appellants’ property should be lowered and the assessments to the upstream properties increased.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

1. The assessments to the properties involved in this proposed drain shall be revised as indicated in the following table;

CON	LOT	AREA (HA)	ROLL NO.(OWNER)	BENEFIT	OUTLET	TOTAL
3	S1/2 1	8.1	010-030-049 (E. Baigent)	$ 5,817	$ 3,343	$ 9,160
3	NW1/4 2	5.4	010-030-073 (D.&K. Hammond)	0	2,852	2,852
3	SW1/4 2	20.2	010-030-050 (2208151 Ontario Inc.)	3,190	16,555	19,745
TOTAL ASSESSMENT ON LANDS				$ 9,007	$22,750	$31,757
Road 62		0.6	Township of Zorra	$ 0	$ 1,543	$ 1,543
TOTAL ASSESSMENT ON ROADS				$ 0	$ 1,543	$ 1,543
TOTAL ASSESSMENT ON LANDS & ROADS				$ 9,007	$24,293	$33,300

2. The non-administrative costs of the Municipality incurred with respect to this appeal which, for great certainty, shall include: the Engineer’s fees and expenses for preparing the Report and the Engineer’s fees and expenses for preparing for and attending this hearing, shall form part of the cost of the drainage works.

3. There shall be no other order as to costs and all parties are responsible for their own costs.

Dated at London, Ontario this 16th day of March, 2015.