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:

Newbiggen Drive Municipal Drain Municipality of Southwest Middlesex

Newbiggen Drive Municipal Drain (RE) 2015ONAFRAAT07

STATUTE:

Drainage Act

HEARING:

March 20, 2015

DATE OF DECISION:

April 14, 2015

2015-07

NEUTRAL CITATION:

2015ONAFRAAT07

NEWBIGGEN DRIVE MUNICIPAL DRAIN

Municipality of Southwest Middlesex

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 Rein Minnema, Glencoe, Ontario under section 48(1) of the Drainage Act from the Report of the Engineer on the Newbiggen Drive Municipal Drain in the Municipality of Southwest Middlesex.

Before: Glenn Walker, Vice-Chair; Edward Dries, Member; Brenda Lammens, Member

Appearances:

Rein Minnema – Appellant

Ray Dobbin, P.Eng. – R. Dobbin Engineering Inc., Engineer who prepared the Report

Elizabeth Jeffery – Drainage Clerk for Municipality

DECISION OF THE TRIBUNAL

This hearing was held in the Municipality of Southwest Middlesex (the “Municipality”), in Glencoe, Ontario on March 20, 2015. Rein Minnema appealed to the Tribunal under Section 48(1) of the Drainage Act (the Act) from the Engineer’s Report on the Newbiggen Drive Municipal Drain dated September 18, 2014.

Janneke Newitt, the Clerk of the Municipality, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an Order making all landowners assessed or compensated in the Report parties to this hearing. The Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with the Notice of Hearing dated February 13, 2015.

Background

The Newbiggen Drain was initiated by a petition signed under Section 4 of the Drainage Act by Mr. Rein Minnema. Mr. Minnema was the only signator to the petition. Mr. Minnema sought to have an existing private tile drain that crossed his property in Part Lot 23, Gore of Ekfrid, in the former Township of Ekfrid, now in the Municipality of Southwest Middlesex, County of Middlesex replaced with a new, adequately sized tile drain constructed under the Drainage Act.

Mr. Ray Dobbin, P. Eng., was appointed by the Municipality of Southwest Middlesex to complete this Report. A site meeting was held on May 23, 2012. At the site meeting, the Engineer determined that the area requiring drainage includes portions of Lot 23 and 24, Gore of Ekfrid on the southeast side of Newbiggen Drive. He determined that Mr. Minnema owned lands that represented more than 60% of the area requiring drainage and the petition was therefore valid under Section 4 of the Act.

Mr. Dobbin prepared a preliminary report on this drainage works dated July 6, 2014. That report set out two optional alignments. Proposal No. 1 commenced at the existing private tile drain on the northwest side of Newbiggen Drive and proceeded generally along the alignment of the tile in an easterly direction to an outlet into Newbiggen Creek. Proposal No. 2 commenced at the same point on the northwest side of Newbiggen Drive and proceeded northeasterly along the northwesterly side of Newbiggen Drive to an outlet into Newbiggen Creek. The preliminary report included detailed estimates of cost for both alternatives.

Mr. Minnema attended the meeting where the preliminary report was considered and expressed his preference for Proposal No. 1. Mr. Dobbin was instructed to prepare the final report on that basis. It was subsequently filed and dated September 18, 2014.

Upon receipt of the final report, Mr. Minnema noticed a reference to a berm to be constructed on the southeast side of the catch basin, referenced as DICB # 2, on the southeast side of Newbiggen Drive. He noticed that the estimate of cost for the works in the final report was exactly the same as the preliminary report with the exception that an additional cost of $920 was added as an item for the new berm construction.

The report was brought before Council on two occasions. At the last meeting to consider the final report, held on Nov. 5, 2014, Mr. Minnema advised that he was in agreement with the works recommended for Proposal No. 1 in the preliminary report but opposed the works recommended in the final report, in particular the inclusion of the berm. Council rejected the concerns of Mr. Minnema and adopted the final report as presented.

Mr. Minnema filed letters of appeal to Council and the Tribunal dated November 27, 2014, December 7, 2014 and January 28, 2015. The appeal to the Tribunal was filed under Section 48(1)(b). It was his position that the final report does not contain sufficient detail regarding the construction of the berm. Further, he contends that the berm is unnecessary and should be removed from the Report.

Issue

1. Should the Report of the Engineer be modified to remove the berm behind DICB #2?

Evidence

Rein Minnema

Mr. Minnema confirmed that he was dissatisfied with the capacity and condition of an existing private tile drain that crossed a portion of his property in the west part Lot 23 Gore of Ekfrid, in the former Township of Ekfid. He had no direct knowledge of the size or history of the tile but was aware that it provided outlet to a portion of Newbiggen Drive and other agricultural lands northwest of Newbiggen Drive. He confirmed that he attempted to negotiate a new agreement drain with the upstream owners but ultimately signed a petition under Section 4 of the Act to have a new drain constructed across his property.

Mr. Minnema testified that he was provided with a copy of a preliminary report prepared by Mr. Dobbin that included two alternative alignments for a new tile drain to serve his property as well as the road and upstream agricultural lands. He confirmed his preference for ‘Proposal No. 1’ as set out in the preliminary report.

Upon receipt of the final report, Mr. Minnema noted a reference to the construction of a ‘berm’ as well as the associated cost increase for this ‘berm’. He stated that he could not find adequate detail regarding this berm in the Report and that he never received an adequate explanation of why this item of work was now required or included in this project. He admitted that he was confused by the Report and had difficulty understanding the content.

Mr. Minnema stated that he did not believe that a berm of any kind was required. He acknowledged that surface flows pass through the existing culvert at Newbiggen Drive and when these flows exceed the capacity of the exiting tile, they continue overland across his property. He expressed no issue with this continuing circumstance. He also expressed concern that a berm on the southeast side of Newbiggen Drive may increase the potential for flooding of the road at this crossing.

Mr. Minnema asked that the reference to the berm be removed from this Report and hence from the recommended works.

Ray Dobbin, P. Eng.

Mr. Dobbin confirmed that the final report recommended the construction of a new covered drain from the northwesterly side of Newbiggen Drive, southeasterly across the road and the properties in Lots 23 and 24, Gore of Ekfid, to an outlet into Newbiggen Creek. He stated that the work described in the final report was the same as that recommended as Proposal No. 1 in the preliminary report with the inclusion of a berm on the southwest side of DICB #2 on the southwest side of Newbiggen Drive. The new tile drain was designed to accommodate a runoff coefficient of 37mm/24hr.

He stated that the works were initiated by a petition signed by Mr. Minnema under Section 4 of the Act. Mr. Dobbin testified that he found the area requiring drainage, as described in Section 4 of the Act, to include parts of Lot 23 and 24, Gore of Ekfrid. He stated that he determined the petition was valid as Mr. Minnema owned more than 60% of the land within the area requiring drainage.

With regard to the original petition, Mr. Dobbin confirmed that the drainage area as show on the plan attached to the Report does not include any of the Minnema property in spite of the fact that the ‘Affected Hect.’ as shown in the Schedule of Assessment shows 2.83 ha. on this property. He also confirmed that the Minnema property is not assessed any outlet assessment which would imply that he has no connection to the drain. However, he maintains that the area requiring drainage which is generally described in the Report as lands in parts of Lot 23 and Lot 24, Gore of Ekfrid, includes a significant portion of the Minnema property adjacent to the alignment of the drain. Mr. Dobbin contended that the ‘area requiring drainage’ was not the same as the ‘Affected Hect.’ as shown in the Report. He confirmed that he did not actually identify the ‘area requiring drainage’ on the lands in Lot 23 or Lot 24, Gore of Ekfrid on the plans or in the Report other than the general reference. He could not provide any supporting surveys, sketches, or notes that accurately identify the ‘area requiring drainage’.

When Mr. Dobbin was questioned as to the authority under the Drainage Act to extend the work northwesterly across Newbiggen Drive upstream of the ‘area requiring drainage’, he admitted that he had none. He pointed out that the Road Authority was in full approval of this work across their road allowance.

It was pointed out to Mr. Dobbin that the length of the 450 mm dia. road crossing recommended in this Report was shown to be 14 m in the estimate of cost, 21 m in the specifications under ‘Road Crossing’, and 18 m on the profile. He confirmed that the intended length was 14 m. He acknowledged that the specifications and the profile must be corrected to accurately identify the works to be done.

It was pointed out to Mr. Dobbin that the length of the 400 mm dia. tile drain recommended in this Report is shown to be 285 m in the estimate of cost and 288 m on the profile. Neither is accurate if the length of the road crossing pipe is corrected to 14 m. He confirmed that the corrected length will be 292 m and the estimate of cost the profile must be corrected to accurately identify the works to be done.

It was pointed out to Mr. Dobbin that the preliminary report specified the installation of a 375 mm dia. pipe across Newbiggen Drive. Mr. Dobbin confirmed that he increased the size of the pipe to 450 mm dia. in the final report although no request to do so was received nor was there any discussion on this matter at the meeting to discuss the preliminary report. He also confirmed that he estimated the cost of the 450 mm dia. pipe in the final report to be exactly the same as the 375 mm dia. pipe in the final report. He claimed that the actual difference in the estimated price between these two pipe products was small enough that it did not affect the estimate of cost nor the special benefit assessment against the road.

Mr. Dobbin stated that the Road Authority is shown to be assessed a special benefit under Section 26 of the Act for the works that cross Newbiggen Road. Mr. Dobbin acknowledges that the details regarding what items of cost and their value for this special benefit charge are not shown in the Report. He claimed that his standard of practice is to develop that value for the Municipality after the works have been completed.

It was pointed out to Mr. Dobbin that the estimate of cost included an item for ‘Silt Fence Downstream of Proposed Work’ but there was no accompanying specification to describe the location, materials, time frames, etc. regarding its application. He confirmed that there are no specifications in the Report for this item but that he relies on the information provided in an Ontario Provincial Standard Specification (OPSS) which he attaches to the tender documents.

It was pointed out to Mr. Dobbin that the specifications within the Report establish the top elevation of DICB #1 to be 99.57 m. However, the top elevation for this same catch basin shown on the profile is 99.95 m. He confirmed that the correct elevation is 99.57 m. and that the profile should be corrected to reflect that value.

Mr. Dobbin gave evidence to the fact that he did not include a berm on the downstream side of DICB #2 in the preliminary report. He also confirmed that it was not an issue of discussion at the meeting to consider the preliminary report. He stated that he added the berm in the final report as it is his standard of practice to install a berm on the downstream side of all catch basins with the view to direct surface flows into the catch basins. He determined that the height of the berm should be equal to “the high side of the catch basin” as stated in the Report. He confirmed that the berm should be covered with graded stone as an erosion control measure. It was pointed out to Mr. Dobbin that, according to the profile attached to the Report, the normal ground elevation on the downstream side of the catch basin was already equal to or greater than the high side of the catch basin. Mr. Dobbins’ response was that the catch basin was not to be built at the location shown on the profile but in a location where the ground elevation on the downstream side of the catch basin was lower. However, Mr. Dobbin was unable to provide any specific ground elevations or detail of this location. Mr. Dobbin admitted that runoff events would occur from time to time that will exceed the capacity of the tile drain and result in surface flows over and/or around the berm.

The specification for the tile installation directed that ‘Any joint more than 6 mm shall be wrapped with drain wrap’. Mr. Dobbin acknowledged that this direction was somewhat ambiguous and it was intended that all tile joints be wrapped. He also acknowledged that the Report does not contain a specific material specification for the concrete tile materials.

Mr. Dobbin acknowledged that the Report does not contain any reference to a defined working corridor for the operation of construction equipment during construction. He stated that the intended width of the working corridor was in the order of 10 m and this was the basis on which the allowances were calculated although no detail exists within the Report.

It was pointed out to Mr. Dobbin that the Report did not include any specifications for seeding although a cost for such was included in the estimate of cost. Mr. Dobbin acknowledged that no detailed specification for seeding was included in the Report. He stated that it was his practice to include an Ontario Provincial Standard Specification (OPSD) for seeding in the tender documents for the work.

Findings

Authority to Proceed

At the outset of the hearing, the Tribunal sought to clarify that the Report was a valid report under the Drainage Act.

The Report states that “The Owner of the land that has signed the petition has greater than 60 percent of the area requiring drainage and therefore the petition is valid under Section 4(2) of the Drainage Act”. The reference to Section 4(2) is not correct as the appropriate reference is Section 4(1)(b).

The Tribunal is concerned about the validity of the petition based on compliance with Section 4(1)(b). No convincing evidence was brought by Mr. Dobbin to support his position. However, this point was not challenged by the appellant, the Municipality or any other property owner. It is common practice for the Engineer to clearly illustrate and define the ‘area requiring drainage’ as it relates to the validity of the petition when or if this area is different and distinguishable from the ‘area affected’ by the proposed drain on the same property. This was not done in this Report.

Further, greater attention should be given to extending works upstream beyond the limits of the ‘area requiring drainage’ as defined in the Report. In this case, the upstream extension across Newbiggen Drive was undertaken with the full knowledge and approval of the Road Authority. However, the Road Authority should have exercised the various methods available to it under the Drainage Act in order to be added to the original petition to insure its validity.

In the future, the Engineer should be more diligent in addressing issues in reports related to the validity of a petition in order to avoid challenges to the Referee under Section 47(1) of the Act.

Should the Berm be Removed from the Report

The Tribunal takes no issue with the agreed upon fact that the content of the preliminary report was broadened by the addition of the feature referred to as ‘the berm’ in the final report. It is curious that this feature was not considered when the preliminary design was developed, nor was it mentioned at the meeting to consider the preliminary report. None the less, changes and additions to the content of preliminary reports when developed into their final form are common.

Mr. Minnema’s assertion that the berm as referenced in the final report is not necessary and that the Report does not contain an adequate specification for the construction of this berm is accepted by the Tribunal.

Mr. Dobbin’s evidence as to why the berm was added to the final report as well as his evidence as to its purpose, functionality, location and cost were not convincing. His evidence that the Report contains sufficient specifications related to the construction of the berm is also rejected. The catch basin elevation shown in the Report and the ground surface elevation shown on the profile attached to the Report which illustrates the field conditions at the catch basin site does not support the need or requirement for a berm on the downstream side of DICB #2. Mr. Dobbin’s evidence that the catch basin could be installed in a different location where the land is lower and a berm may be required is not accepted as no specific information related to that location could be provided. It is the Engineer’s responsibility to determine the location of various features of the drainage works and provide accurate design information in the Report.

Regarding functionality, Mr. Dobbin confirmed that surface flows would, from time to time, bypass or overflow the catch basin and spill across the downstream lands even with the berm in place. Mr. Minnema’s evidence was that he acknowledged and accepted that reality and was of the view that the addition of the berm would not materially alter that circumstance.

The Tribunal agrees that the reference to the berm, including the estimate of cost for its construction must be removed from the Report.

Corrections to the Report

A number of errors and/or deficiencies were noted in the Report during the hearing as follows:

The length of the culvert to be installed across Newbiggen Drive is not shown correctly in the Report or on the plans. Mr. Dobbin accepts the need to correct the length of pipe to be installed. This correction is to be reflected in the body of the Report, estimate of cost, specifications, plan and profile. This correction is necessary in order that the actual cost of the road crossing can be accurately calculated and levied under Section 26 of the Act.

The length of the tile to be installed is not shown correctly in the Report or on the plans. Mr. Dobbin accepts the need to correct the length of tile to be installed. This correction is to be reflected in the body of the report, estimate of cost, specifications, plan and profile.

The Report must include a detailed list of construction items and costs, including engineering costs, related to the works required across Newbiggen Road. This information must be included in the Report in order that all assessed parties will have a clear understanding of how the assessment to the Road Authority was calculated and levied under Section 26 of the Act. This also provides a template by which the Municipal Clerk can calculate this special benefit charge.

The Report must include more detailed specifications related to the supply and installation of the ‘Silt Fence’ referenced in the estimate of cost in the Report. It is not adequate to rely on generic provincial standards that may be attached to tender documents. The application of materials and installation standards specific to this site must be included in the Report.

The elevation of DICB #1 is not shown correctly on the profile. Mr. Dobbin accepts the need to correct this error.

The reference to the requirement to wrap the joints of the tile in this Report is ambiguous and inadequate. Mr. Dobbin accepts that it was intended that the specification reference the need to wrap all tile joints. It would also be prudent to include specific structural specifications related to the tile recommended for installation at this site. Specific language is required in this instance in order to avoid conflicts with the contractor at the time of tendering or construction.

The Report does not include any description of the working corridor for the contractor’s equipment. This is a requirement under Section 63(1) of the Act. Mr. Dobbin accepts the need to include a detailed description of the working corridor in the Report.

The Report does not include any specification related to seeding as part of the restoration works. It is not adequate to rely on generic provincial standards that may be attached to tender documents. The application of materials and installation standards specific to this site must be included in the Report.

The powers of the Tribunal set out in Section 51(1) of the Act are sufficiently broad to permit the Tribunal to require the Engineer to correct these errors and/or deficiencies. That section provides that “on any appeal” the Tribunal may “make such order and direct such things to be done as are authorized by this Act or as it considers proper to carry out the purposes of this Act.”

ORDER OF THE TRIBUNAL

The Tribunal orders that:

1. The appeal of Rein Minnema under Section 48(1)(b) is granted. All references to the berm, including the cost as shown in the estimate of cost, shall be removed from the Report.

2. The plan, profile and Report content shall be changed to recognize the corrected length of the road culvert.

3. The plan, profile and Report content shall be changed to recognize the corrected length of the tile.

4. A detailed list of construction items and their associated costs, including engineering costs related to the construction of the pipe across the road, shall be included in the Report and this shall be used as the basis for the Special Benefit assessment against the Road Authority under Section 26.

5. A detailed specification for the installation and removal of the ‘Silt Fence’ shall be added to the Report.

6. The elevation of DICB # 1 as shown on the profile shall be corrected to 99.57 m.

7. References to the structural standard of the tile as well as the requirement to wrap all joints shall be added into the Report.

8. A detailed description of the working corridor consistent with the requirements of Section 63(1) of the Act shall be added into the Report.

9. The final estimated cost of the work, net the special benefit charge to the Road Authority, shall be levied pro-rata on the Schedule of Assessment No. 1 which was attached to the preliminary report dated July 6, 2014 which reflects the distribution of costs within the watershed prior to the inclusion of the berm.

10. All costs associated with correcting the Report and filing the revised report with the Municipality shall be at the sole cost of the Engineer.

11. The non-administrative costs of the Municipality in respect of this appeal which, for greater clarity, shall include the Engineer’s fees and expenses for preparing the preliminary and original final 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. There shall be no other order as to costs and all parties are responsible for their own costs.

Dated at Ridgetown, Ontario this 14^th^ day of April, 2015