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:
Pilkington Drain 2015 (RE)
Municipality of Thames Centre
Pilkington Drain 2015 (RE) Municipality of Thames Centre 2016ONAFRAAT10
STATUTE:
Drainage Act
HEARING:
April 25 and 26, 2016
May 13, 2016
022Pilkington15
NEUTRAL CITATION:
2016ONAFRAAT10
PILKINGTON DRAIN 2015
Municipality of Thames Centre
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 Albert and Yoka Hoogendoorn, of Belmont, Ontario under section 48(1) of the Drainage Act from the Report of the Engineer on the Pilkington Drain 2015 in the Municipality of Thames Centre.
Before: Marthanne Robson, Vice-Chair; Edward Dries, Member; Tim Mousseau, Member
Appearances:
Albert and Yoka Hoogendoorn – Appellants
Analee Ferreira – Counsel for Appellants
Anthony Gubbels, P. Eng. - Land Development Solutions Engineering Inc. (LDS) – Expert Witness for Appellant
Mike DeVos, P. Eng., Spriet Associates – Engineer who prepared the Report
Dennis Shand – Drainage Superintendent for the Municipality
Paul Courey – Counsel for the Municipality
Jennifer Dow – Water Conservation Supervisor, Kettle Creek Conservation Authority
DECISION OF THE TRIBUNAL
This hearing was held in in Dorchester, Ontario in the Municipality of Thames Centre (the Municipality), on April 25 and 26, 2016. The “Spriet Report” prepared and signed by M.P. DeVos, P.Eng. (the Engineer) of Spriet Associates entitled “Pilkington Drain 2015” dated July 31, 2015 and revised by the Court of Revision November 23, 2015 is under appeal.
Margaret Lewis, 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 in the 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 March 3, 2016.
Nature of the Appeal
This is an appeal under Section 48 (1) of the Drainage Act, which allows any assessed landowner affected by drainage works the right to appeal to the Tribunal on the following grounds:
The proposed works do not provide a benefit commensurate with the estimated costs thereof;
The works should be modified on grounds to be stated;
Compensation or allowances provided by the Engineer are inadequate or excessive;
The engineer has reported that the drainage works are not required, are impractical, or cannot be constructed.
The Appellants ask that:
The Tribunal set aside the Spriet Report in its entirety and to substitute the drainage works already undertaken and/or proposed by the Appellants on their private lands for the work proposed in the Spriet Report;
The works on their property, including a recently constructed windmill, be incorporated as components of the Pilkington municipal drainage system; and
Any benefiting adjacent lands be assessed their proportionate share of the Appellants’ expenditures.
The Appellants rely on an engineering report dated February 10, 2016, prepared by Land Development Solutions Inc., and signed by Anthony H. Gubbels, P.Eng. (the LDS Report).
The appeal is dismissed.
Background
The Pilkington Drain is located in the Municipality, just east of London, Ontario, around the intersection of Avon Drive (running east and west) and Whittaker Lane (running north and south). The Hoogendoorn property is located on the northwest corner of that intersection.
The Pilkington Drain was originally constructed as a municipal drain pursuant to a report by W.R. Smith C.Eng., dated August 1932. At that time, the drain consisted of some 1109 metres of 300mm and 200mm tile extending northerly across Lot 7, Concession 6, a portion of which is now the Hoogendoorn property, from an outlet in the McIntyre Drain on the north side of Avon Drive. The McIntyre Drain then extended southerly from this outlet through a culvert under Avon Drive and ultimately into the Kettle Creek Drain.
Subsequent reports prepared between 1970 and 1998, essentially merged the Pilkington and McIntyre Drains, and also provided for the construction of Branches “A” to “G”, such that the Pilkington Drain and its branches in their present state outlet into the Kettle Creek Drain on the south side of Avon Drive. The McIntyre Drain appears to have been replaced or re-named as Branches “A”, “C” and “D” of the Pilkington Drain.
The Appellants, Albert and Yoka Hoogendoorn, filed a petition in 2012 requesting the repair and relocation of Branch “C” of the Pilkington Drain. Branch “C” is substantially located on the Hoogendoorn property, and consists of a closed drain, constructed through a low lying area of black muck and peat. This low lying area had historically been subject to flooding, and the drainage tiles were being damaged by farm equipment due to their shallow depth.
In July 2012, the Council for the Municipality appointed John Spriet Sr., of Spriet Associates to prepare a report to make the necessary improvements to the Pilkington Drain Branch “C” as per the Hoogendoorns’ petition. Medical circumstances delayed preparation of the report and in 2014 Council appointed Mr. Michael DeVos as Engineer for the project. Mr. DeVos completed the Spriet Report in July 2015.
The Council considered the Spriet Report and passed a Provisional By-law in October 2015. The Court of Revision in November 2015, revised the assessments, and the Report was amended accordingly.
Prior to the Appellants’ petition and throughout the course of the preparation of the Spriet Report, Mr. and Mrs. Hoogendoorn undertook significant modifications to their property. They modified existing land contours by removing black muck and peat in low lying areas, and excavated existing knolls, with the clay from these knolls used to fill in the low areas on their property. In addition, they excavated a very deep ditch along the western boundary of their property and a portion of their neighbour’s property to the west. A drainage contractor retained by the Hoogendoorns systematically tiled their property with a concrete chamber pumped out by a windmill as the outlet for this drainage system.
Construction carried out by the Hoogendoorns on their property from June to December 2014 resulted in damage and/or destruction to portions of the existing municipal drain, in particular Branch “C”. The Municipality and municipal staff were involved in ongoing issues with respect to having the municipal drain repaired and/or re-instated to its original condition. It is an offence under section 82 of the Drainage Act to damage a drainage works; the Municipality is entitled to sue for damages.
Mr. and Mrs. Hoogendoorn claim to have expended close to $200,000 for work done on their property, with proposed future expenditures of $60,000, plus engineering fees to complete these works. The Hoogendoorns now seek re-imbursement of their expenditures and the assumption of the work on their property as part of the municipal drain.
Issues for Determination
Should the Spriet Report be set aside or modified under Section 48(1) of the Drainage Act?
Subject to there being sufficient grounds under Section 48, should a new report under the Drainage Act be initiated to recognize the recommendations in the LDS Report, specifically to incorporate the works already undertaken by the Appellants, including additional components not specifically addressed in the LDS Report, into the existing Pilkington Drain?
Evidence
Anthony Gubbels, P. Eng., LDS Engineering Inc. - Witness for the Appellants
Mr. Gubbels is a principal with LDS Engineering Inc. (LDS). He has been a professional engineer since 1987, with experience in storm water design and management, but no specific experience under the Drainage Act. He presented engineering evidence on behalf the Appellants. He was qualified as an expert witness in general civil engineering matters but not as an expert in works under the Drainage Act.
Mr. Gubbels was contacted by the Appellants’ law firm, Patton Cormier Ferreira Lawyers in December, 2015. He carried out various site inspections, surveys, and analysis and produced the LDS Report dated February 10, 2016. He confirmed that in addition to the field work, he relied on information from the Spriet Report as well as information provided to him by Mr. Hoogendoorn. He also stated that he was not familiar with the OMAFRA Design and Construction Guidelines, Second Edition, June 1986, or the definition of ‘sufficient outlet’ as it relates to works under the Drainage Act.
Mr. Gubbels described the main outlet of the Pilkington Drain as a closed drain that empties into an open channel that subsequently discharges into Kettle Creek. The open outlet portion of the Pilkington Drain and the reach of Kettle Creek in the immediate vicinity of this outlet has a very flat bottom gradient (0.10 %). Although he admits that a detailed analysis of Kettle Creek was not carried out, in his view, several kilometers of Kettle Creek would have to be deepened in order to provide an adequate outlet for the Pilkington Drain. He did not believe it was feasible to carry out those improvements on that natural watercourse. He confirmed that the reach of Kettle Creek into which the Pilkington Drain discharges is, in fact, a municipal drain.
Mr. Gubbels acknowledged that the original Branch “C” of the Pilkington Drain had been damaged beyond practical repair and that the Appellants replaced it with an open drain (ditch). He generally attributed the failure of Branch “C” to damage by farming operations and frost impacts. In his view, the private 200 mm diameter tile installed by Mr. Hoogendoorn along the northerly edge of the knoll of high ground that was altered should now be accepted as the new Branch “C” and that the open drain should be filled in. He stated that the Hoogendoorn system was well constructed although, he admitted that he did not observe the construction nor did he excavate the tile to confirm its size, grade, depth or bedding details.
Mr. Gubbels recommended the incorporation of the private ditch constructed by Mr. Hoogendoorn along the westerly boundary of his property in April, 2014. This also included 150 mm and 200 mm diameter tiles that provide outlet for this open drain to the Pilkington Drain main tile and a 200 mm diameter tile that provides outlet for this open drain to the new private pump chamber. Mr. Gubbels believed this open drain was constructed entirely on the Hoogendoorn property although the evidence of Mr. Hoogendoorn was that it was partially constructed on the adjacent property to the west. Mr. Gubbels supported the work done by Mr. Hoogendoorn to disconnect Branch “G” from the main Pilkington Drain and redirect it to the most northerly, upstream, end of this private open ditch.
Mr. Gubbels stated that, based on the extremely flat features of the affected lands, the Spriet Report provides no improved drainage to the lands north of Avon Drive. He expressed doubt that the drainage of the private lands west of the Hoogendoorn property could ever be improved without the installation of more significant systematic tile drainage systems on this property and connected to Branch “B”. He testified that there has been no ponding on these neighbouring westerly lands since the Hoogendoorn system was completed in 2015.
Mr. Gubbels referenced a series of photos taken by Mr. Hoogendoorn at four specific locations on the drain over a three day period in March 2016 that, in his view, illustrate the impediment to flow in the Pilkington Drain caused by high water levels in Kettle Creek. In his view, the runoff event illustrated in the photos was the result of a 35 mm/24 hr. rainfall event that occurred the day before the first date the pictures were taken. The rainfall data was provided to him by Mr. Hoogendoorn. Mr. Gubbels acknowledged that this amount of rainfall exceeds the design standard of 31 mm/24 hr. recommended in the Spriet Report. He was unable to confirm the return period for this rainfall event. He concluded that this evidence shows that the modifications to the Pilkington Drain carried out by Mr. Hoogendoorn have no negative impact on the operation of the drain and its poor performance is directly related to the outlet condition in Kettle Creek. In his opinion, the Pilkington Drain does not function at all when experiencing a submerged outlet due to high water levels in Kettle Creek.
Mr. Gubbels stated that additional components are required to fully develop the LDS drainage system. These works would include modifications to the road crossing of Whittaker Lane on the alignment of Branch “C”; the construction of Branch “E”; the modification to the road crossing of Whittaker Lane on the alignment of Branch “E”; and add additional surface storage on the lands east of Whittaker Lane on the alignment of Branch “C”.
With regard to the works recommended in the Spriet Report, Mr. Gubbels stated that the grassed overflow ditch proposed along Branch “B” on the north side of Avon Drive would not provide any improved outlet or drainage benefit to the lands served by this branch and would be a danger to the travelling public on Avon Drive. In his view, there would be no merit to reconnect Branch “G” to the main drain and a better outlet would be had if it were to outlet into the existing private ditch.
Mr. Gubbels offered calculations related to the required capacity of Branch “C” using a drainage area of 3.3 ha. as the area affected by this branch. He compared the 200 mm diameter tile installed by Mr. Hoogendoorn and the 250 mm diameter tile proposed by Spriet and concluded that both have sufficient capacity to service this area. He also stated that the Hoogendoorn tile is better suited to service this area as it is much deeper than the tile proposed in the Spriet Report and would have outlet by a pump. He acknowledged that he overlooked the lands in Malahide Township which are also within the watershed of Branch “C” and that the actual watershed area is 6.83 ha. as shown in the Spriet Report. Mr. Gubbels admitted he made a mistake in calculating the area, but that the difference was irrelevant. He did not know how much land the Hoogendoorns have draining into Branch “C”.
According to Mr. Gubbels, the windmill pump system will draw down the water table in the southerly portion of the Hoogendoorn property thus increasing the available groundwater storage. The windmill pump would not operate when the downstream outlet of the Pilkington Drain is submerged. It will only function, and provide service to the lands, when it has a positive outlet. It will serve to lower the water table on the Hoogendoorn lands as well as provide outlet to the private ditch on the west side of the Hoogendoorn property. Mr. Gubbels did not provide any detailed calculations that verified that the windmill pump could effectively provide outlet to the LDS system. A monitoring program for the pump would have to be developed and implemented as part of a new drainage report.
In Mr. Gubbels’ view, the new 525 mm diameter and 750 mm diameter road culverts recommended for installation across Avon Drive in the Spriet Report are a waste of resources. They would provide no service to the watershed as their outlet capability is restrained by the hydraulic capacity of the open outlet of the Pilkington Drain and Kettle Creek. His conclusion is that “it is not possible or practical to improve the system hydraulics downstream.” He stated that there is not one component of the works identified in the Spriet Report that is worthy of implementation.
Mr. Gubbels included a summary of expenditures in the LDS Report for the works done by the Hoogendoorns to date, and also identified additional components of work required to complete the LDS system. The total project cost of this alternative would be in the order of $285,000. He claimed that benefiting landowners within the drainage area should be assessed a proportionate share of this cost. He admitted that he does not have any experience in drainage assessment and is not qualified to assess costs. He also confirmed that his estimate of cost did not include various allowances to be paid to property owners affected by the works. He acknowledged that the estimate of cost for the Spriet report is $211,000 but pointed out that it does not include the cost to reconstruct Branch “E” which is included in the Hoogendoorn system.
In summary, in Mr. Gubbels’ view, the LDS system was installed with a high degree of integrity and was technically superior to the Spriet system. He stated that the drainage capacity of the LDS system exceeded that required by the drainage area served by this work; this system was superior to the Spriet system as it was installed to a deeper depth; the increased size of the outlet pipe recommended by Spriet would not offer any drainage improvements; and that the Spriet system is not required.
Albert Hoogendoorn, Appellant
Mr. Hoogendoorn testified that he has owned the property for five years although he has previous knowledge of the property for many decades. The private open ditch he had constructed along the west limit of his property in April, 2014 was primarily on his lands but it also extends on the neighboring property to the west. He confirmed that at the time of construction, all material excavated from the open drain was not deposited on the east bank of the drain but rather hauled to other locations on the property for disposal.
Mr. Hoogendoorn observed drainage issues on his property in the summer of 2011. He discussed the matter with John Spriet who advised him to sign a request for drainage improvements and file it with the Municipality. He filed the request with the Municipality in July, 2012 and was promised that he would be contacted within three months. He heard nothing within that timeframe and concluded that the Municipality was not going to proceed with the repair or improvement of this drain and subsequently commenced drainage works on this property himself in 2013. He confirmed that he received a notice from the Municipality in November, 2012 of the appointment of John Spriet relative to this drainage works. He also received correspondence from the Municipality in August, 2013 related to the windmill pump well location as well as a notice of an onsite meeting for the Pilkington Drain in October, 2013. He confirmed that at no time did he ask the Municipality to stop Spriet from preparing a report on the proposed drainage works.
During the installation of a private systematic tile system and windmill pump on this property in June, 2011, Mr. Hoogendoorn found that Branch “C” of the drain was in poor condition and required repair. He acknowledged digging an open ditch to replace Branch “C” in 2014. This work resulted in a hearing before the Drainage Referee and a subsequent order to stop work on the open drain in November, 2014. He acknowledged that the Municipality came onsite in December, 2014 and January, 2015 to modify the original works done on the open channel to ensure it offered adequate service to upstream lands until a report was prepared.
Mr. Hoogendoorn confirmed that the 200 mm diameter tile drain that he had installed enters the pump station chamber at a depth of approximately 8.5 feet (2.59 m). He testified that a windmill pump was necessary to provide a positive outlet to his private tile system.
The pump sits on a platform approximately 1.6 ft (.5 m) above the invert of the tile and forcemain outlet 4.0 ft (1.2 m) above the pump. Demaray Farm Drainage Inc. installed the sub-surface drainage system on his property but did not provide him with a detailed plan showing the tile sizes, grades, depths, bedding details etc.
Mike DeVos, P. Eng., Spriet Associates, - Engineer who prepared the Report
Mr. DeVos was qualified as an expert in drainage engineering. He prepares 30-40 drainage reports each year and has worked in drainage full time for the past 25 years. Over the last several years, he has prepared two to three drainage reports per year for the Municipality.
Mr. DeVos became involved with the project after John Spriet, who was initially instructed on this drainage works, was unable to continue due to health considerations. He confirmed that Spriet Associates were moving forward with the design of Branch “C” of the drain as discussed at the initial site meeting held in October, 2013 but also was aware that the Hoogendoorns were undertaking work on their property that could affect that design. He organized a second site meeting in August, 2014 to address this issue as well as issues raised regarding other branches of the Pilkington Drain that were impacted by site works carried out by the Hoogendoorns. These private works subsequently necessitated changes in the design of various branches of the drain and delayed the completion of the final report.
Mr. DeVos found that Branch “C” of the drain had been significantly damaged and required total replacement. He recommended that Branch “C” be reconstructed on an alignment that suited the revised contours of the property as they had been altered by the Hoogendoorns. This included construction of the new Branch “C” tile drain in clay based soil so as to avoid the muck soils along the original alignment of this drain. He also confirmed that, with the exception of the Hoogendoorns, no other property owner within the drainage scheme supported the option of installing a pump as part of this project.
The Engineer confirmed that the new drain was designed to a drainage standard of 31 mm/24 hr. He acknowledged that this is slightly less than the standard of 38 mm/24 hr. as recommended in the Drainage Guide for Ontario, Publication 29 (2007). However, in his opinion, based on the circumstances found at the site, including costs, land use, topography, and restricted outlet considerations, this was an appropriate design standard. This standard could be achieved by twinning the existing 525 mm diameter tile outlet on the main drain with a 750 mm diameter tile.
Mr. DeVos stated that the high water levels in Kettle Creek would restrict the flow capacity of the outlet tile of the Pilkington Drain periodically. However, this was not a frequent occurrence and when normal flow conditions existed on Kettle Creek, the outlet system designed for the Pilkington Drain would effectively convey the design flow. He admitted that he had not done any detailed hydraulic analysis of Kettle Creek. Further, he acknowledged that he could not confirm how often or to what extent high water conditions on Kettle Creek will impact the Pilkington Drain outlet.
The Engineer’s opinion was that the existing 525 mm diameter tile drain outlet does not have the capacity to effectively contain the flows generated by the various branches of the Pilkington Drain consisting of the 400 mm diameter Main drain (1968), the 300 mm diameter Branch “C” (1968), the 375 mm diameter Branch “B” (1998), and the discharge from the windmill pump installed by the Hoogendoorns.
Mr. DeVos pointed out that the previous report for the repair and improvement of the Pilkington Drain prepared in 1998 suggested that the existing 525 mm diameter outlet tile could be twinned with a second 525 mm diameter tile to achieve an outlet capacity less than the current recommended standard. However, it was not recommended at that time due to the cost/benefit associated with this work and also in recognition of the restricted outlet into Kettle Creek. Currently, the single 525 mm diameter outlet tile significantly restricts the rate of removal of runoff from the lands on the north side of Avon Drive.
Mr. DeVos presented detailed calculations that compared the flow capacity of the current single 525 mm diameter tile main outlet vs. that of the twin 525 mm and 750 mm diameter tile main outlet proposed in his Report. His calculations indicated that, even under restricted outlet conditions caused by high water levels in Kettle Creek which will result in a submerged tile outlet and a minimal head difference between the north side Avon Road and the water surface elevation at the tile outlet, the twin tile outlets would convey a flow at least 2.7 times higher than that of the single tile outlet. This would only occur periodically under severe runoff conditions. Under normal conditions, high water levels in Kettle Creek would not submerge the tile outlet, the head difference would be greater and subsequently, the flows through the pipe would be greater.
In Mr. DeVos’ opinion, while the Hoogendoorn system as supported by LDS Engineering may improve the drainage on the Hoogendoorn lands proper, it does not provide effective service to other lands within the watershed. The windmill pump cannot be relied upon as an outlet for a municipal drain as it may not function when necessary.
Mr. DeVos testified that the proposed grassed overflow ditch, referenced as Branch “B” in his Report, will provide a superior outlet for the private open ditch that was constructed along the westerly limit of the Hoogendoorn property as opposed to the three relatively small diameter tile drains recommended in the LDS Report. He confirmed that the grassed overflow ditch would be constructed wholly on private lands north of the road allowance. He stated that this grassed overflow ditch would not be a safety hazard to the travelling public on the road or impact the operation or maintenance of the road.
In Mr. DeVos’ opinion, the Hoogendoorns had no legal right to modify Branch “G” of the drain and re-direct the flows from this branch into the private open ditch that they constructed along the west side of their property. This action increased the potential for flood events to occur on the neighbouring lands to the west of the private open ditch as the west bank of the ditch is lower than the east bank. He would not be in favour of incorporating this open ditch as part of the works on this drain as it was dug too deep with an inconsistent grade and irregular cross section.
Mr. DeVos confirmed that Kettle Creek is a municipal drain and it can be maintained by the Municipality under by-law in order to maximize its potential flow capacity. In his opinion, it is a sufficient outlet as defined under the Drainage Act even though it may occasionally impact the outlet capability of the Pilkington Drain.
Mr. DeVos stated that the works recommended in his Report meet all current design parameters as recommend by OMAFRA. In his opinion, Branch “C” as recommended in the LDS system does not meet design standards as the area affected calculated by LDS is incorrect (3.3 ha vs. 6.65 ha). He expressed confidence that the works recommended in his Report would be eligible for the grant provided by OMAFRA for works under the Drainage Act. However, he could not offer an opinion as to whether the wind pump would be eligible for a grant should it be incorporated into any report under the Act.
The Spriet Report does not include the modification or incorporation on any component of the works done by the Hoogendoorns on their property. It does take into account some lower construction costs due to reconfiguring the land and soil. The private open ditch and private subsurface tile drainage system and windmill pump will serve the Hoogendoorn lands to the standard to which they were designed or are capable. He confirmed that, should the Spriet Report be adopted as written, Mr. Hoogendoorn can use the drain as an outlet for all of the private drainage systems that he has constructed on his lands.
In the event that the Tribunal makes an order to accept the Spriet Report, in whole or in part, Mr. DeVos requested that the Tribunal include in that order a modification to the assessment of maintenance costs. He asked that the reference to the distribution of maintenance costs for Branch “C” and Branch “D” as described in the Spriet Report be modified to exclude the Special Benefit assessments which were intended to be one-time costs that did not impact future maintenance charges.
Dennis Shand, Drainage Superintendent – Municipality of Thames Centre
Mr. Shand summarized his experience as a Drainage Superintendent in this area since 1978. He first became familiar with the Pilkington Drain by undertaking maintenance work on Branch “C” of this drain in 2002 or 2003. He provided a detailed written summary of his many site visits and discussions he has had with property owners, contractors, consultants, municipal Council and others related to the Pilkington Drain from the fall of 2010 to the spring of 2016.
The original Branch “C” tile was damaged in five locations by agricultural activities in 2010. These damaged areas were repaired by a contractor retained by Mr. Hoogendoorn to install the private subsurface drainage system on his property in 2011. Mr. Shand confirmed that he found more broken tile on Branch “C” in May, 2012 and these were also repaired by Mr. Hoogendoorn. It was at this time that Mr. Hoogendoorn filed a formal request for the repair and improvement of Branch ”C”.
Mr. Shand attended at the site of the Pilkington Drain several times and had several discussions with Mr. Hoogendoorn during 2013. Earthworks were being carried out by Mr. Hoogendoorn on his property in the immediate vicinity of Branch “C” and the drain was obviously damaged in several areas. He confirmed that Mr. Hoogendoorn excavated a new open channel approximately on the alignment of Branch “C” and “D” in or about October, 2014. He noted at that time that the Pilkington Drain was beyond the point of repair under the governing by-law. He concluded that the damage to Branch “C” and Branch “B” resulted in flooding problems near the intersection of Whittaker Lane and Avon Drive where the respective branch drains cross the road.
In Mr. Shand’s opinion, Mr. Hoogendoorn wilfully damaged the Pilkington Drain. Following a hearing in November, 2014, the Drainage Referee ordered the Municipality to undertake temporary improvements to the new open channel intended to replace the reach of the Branch “C” tile removed by Mr. Hoogendoorn. That work was carried out early in January, 2015 and the function of the drain was re-instated. The Referee ordered the Hoogendoorns not to damage or interfere with the Pilkington Drain.
Mr. Shand reported that during his site visits in July and August, 2015, he observed that Mr. Hoogendoorn was filling in the open drain in contravention of the Referee’s order. In September, 2015 he reported that the open drain was restored to a slightly modified gradient to suit Mr. Hoogendoorn. Mr. Shand’s opinion is that the acceptance of the Spriet Report and the implementation of all of the works specified within the Report will alleviate all flooding problems near the intersection of Avon Drive and Whittaker Lane and on the lands of the Kettle Creek Conservation Authority.
Mr. Shand noted that the Referee’s decision adjourned the question of costs related to the temporary work on the drain made necessary by the damages to it by Mr. Hoogendoorn. Mr. Shand confirmed that the Municipality has maintained a separate record of costs related to the temporary works ordered by the Referee including the cost of contractors, police services, and legal costs. However, no engineering costs have been included.
Mr. Shand confirmed that the Municipality did not receive any formal request from the Hoogendoorns to stop the works related to the report on the Pilkington Drain. Further, the Municipality did not receive any correspondence or contact from the Hoogendoorns complaining about the length of time taken to produce the Spriet Report. (The Tribunal notes that an engineer must file a report within one year, though that time may be extended by resolution of the council. (s.39(1) Drainage Act)) The typical timeframe to process a report under the Drainage Act in the Municipality was, on average, 2 to 3 years. The Spriet Report took about 3 years to produce. Finally, he confirmed that the Municipality did not receive any formal request from the Hoogendoorns to abandon the drainage works.
Mr. Shand gave a detailed description of a series of photographs in support of his testimony. He identified one photo as a beaver dam in Kettle Creek downstream of the junction of the Pilkington Drain. He stated that the Township of Malahide had this beaver dam removed from the drain as a work of maintenance on Kettle Creek.
Findings and Analysis
The Appellants asked that the Spriet Report be set aside. They do not accept any component of the works recommended in that Report as being useful or practical. They asked that all works described as the LDS system, including additional components raised at the hearing, be incorporated into a report under the Act and adopted by the Municipality. The Municipality asked for the adoption of the Spriet Report including specific amendments to the provisions for the distribution of maintenance costs. There were virtually no components of work common to both drainage systems.
Kettle Creek Conservation Authority, who made a statement at the hearing, strongly supported of the adoption of the Spriet Report and expressed concern regarding long term flood impacts to the Conservation Authority lands if the report was not adopted and constructed as recommended.
Qualifications of the engineers, Mr. DeVos and Mr. Gubbels
Mr. DeVos has 25 years’ experience in drainage engineering, produces 25-30 drainage reports per year, 2-3 per year for the Municipality. Mr. Gubbels has been a professional civil engineer since 1987 with some expertise in drainage design and storm water management, but admits he is not qualified to give expert opinion under the Drainage Act. Generally, the Tribunal preferred the evidence of Mr. DeVos because of his more specific experience in drainage matters, as discussed below.
Kettle Creek Outlet:
Both engineers recognized the potential negative impacts of high water events in Kettle Creek on the outlet of the Pilkington Drain. However, neither undertook any meaningful hydraulic analysis of Kettle Creek to support their position. Mr. Gubbels’ view that it was not feasible or practical to improve Kettle Creek downstream of the Pilkington drain was unsubstantiated. Both agreed that Kettle Creek, in this reach, was a municipal drain which can be maintained, repaired or improved by the Municipality under the provisions of the Act. The evidence of Mr. Shand related to the clearing of a beaver dam in Kettle Creek supports that premise. Clearly, a mechanism exists under the Act to ensure that Kettle Creek provides an outlet for the Pilkington Drain. The Tribunal accepts the opinion of Mr. DeVos that Kettle Creek does provide a sufficient outlet for the Pilkington Drain as defined in the Act.
Branch “C”:
Mr. Gubbels testified that Branch “C” was damaged by agricultural activities, frost action, and poor soil conditions and it could not be repaired thus justifying its removal. The evidence of Mr. Shand was that the municipality was actively involved with the maintenance of this tile from 2010 to present and that Mr. Hoogendoorn was directly responsible for the removal of portions of Branch “C”. Mr. Shand confirmed that the Municipality viewed this as willful damage to the drain and sought damages under Section 82 of the Act.
Mr. Gubbels supported the installation of a 200 mm diameter plastic tile by Mr. Hoogendoorn as a replacement for Branch “C”. He offered no direct evidence or field confirmation as to the size, depth, gradient or backfill details of this tile. He claimed that it met the design standards suggested by the Spriet Report based on an assumed drainage area of 3.3 ha. which was in contradiction to the defined drainage area of this branch as shown in the Spriet Report of 6.83 ha. Mr. Gubbels admitted he made a mistake in calculating the area, but that the difference was irrelevant. The evidence of Mr. DeVos was that a 250 mm diameter concrete tile with specific bedding details would be required to provide sufficient capacity to contain the design flow. He also testified that the alignment of the tile must be adjusted to avoid the muck soils and ensure the new tile is installed in clay based soils for long term service and stability.
In the absence of field verification of the construction parameters of the existing 200 mm diameter plastic tile, and in consideration of the discrepancy in the area served by this tile, the Tribunal cannot accept the incorporation of the tile reference as Branch “C” in the LDS system. The Tribunal accepts the Spriet design.
Windmill Pump:
Mr. Gubbels supported the incorporation of the windmill pump into the LDS system. The only evidence he offered was the pump characteristic curves which related wind speed to pump head to discharge capacity. No evidence was provided related to the frequency of occurrence or duration of winds in this area which is essential to understanding the potential discharge capacity of the pump. Mr. Gubbels suggested that a monitoring program could be established to determine the effectiveness of the pump. However, no contingency was offered in the event that the monitoring program showed the pump to be inadequate. As well, no other data on this pump was provided.
The evidence of Mr. DeVos was that the pump could not be relied upon as a positive outlet based on its variable operation and outlet characteristics. He also stated that no other owner in the watershed requested or supported the use of pump as an outlet within this drainage works.
Based on the lack of performance data for this pump, operating at this site under existing conditions, the Tribunal cannot accept the incorporation of this pump as part of this drainage works under a by-law. Incurring costs to the watershed in implementing a monitoring program that may ultimately prove the system inadequate is not acceptable.
Westerly Ditch:
Mr. Gubbels recommended the incorporation of the private open ditch constructed along the westerly limit of the Hoogendoorn property along with a 150 mm, and two 200 mm diameter plastic tile that would connect this drain to the main reach of the Pilkington Drain and the pump well. No profile of cross-section data was presented. No design details of the tile outlets were provided. While Mr. DeVos did not question the right of Mr. Hoogendoorn to construct this open drain on his property, his evidence was that the drain should not be incorporated as part of the works as it is too deep, has an inconsistent cross-section and would require modification as well as the provision of an adequate outlet. The Tribunal accepts the evidence of Mr. DeVos.
Branch “B”:
The evidence of Mr. Gubbels was that Branch “B” as set out in the Spriet Report is not required. As an alternative to Branch “B”, he recommended that the lands west of the Hoogendoorn property install systematic tile drainage systems to alleviate their flooding issues. His evidence was that the construction of Branch “B” will pose a hazard to the travelling public. No traffic data or supporting accident reports were presented that support this position.
The evidence of Mr. DeVos was that Branch “B” will provide a better outlet for the private open drain constructed along the west side of the Hoogendoorn property as well as the adjacent lands to the west. He stated that he could not force the adjacent landowner to install a systematic tile drainage system on their property, and believed it inappropriate to include that type of work in any report under the Act. His evidence was that the open drain will be constructed wholly on private property and not infringe on the road lands. He confirmed that this is a standard practice in Ontario. The Tribunal accepts the evidence of Mr. DeVos and the Branch “B” works recommended in the Spriet Report.
Branch “G”:
Mr. Gubbels supported the redirection of Branch “G” from the main drain into the private open ditch constructed by Mr. Hoogendoorn along the westerly limit of the property. The evidence of Mr. DeVos is that the Hoogendoorns had no authority under the Act to modify Branch “G”. Further, the redirection of this outlet could cause flood impacts on the adjacent lands west of the private open ditch which were never impacted by the flows from Branch “G” in the past. The Tribunal accepts the evidence of Mr. DeVos.
Main Tile Outlet Capacity:
Both engineers agreed that the water level in Kettle Creek will influence the hydraulic characteristics of the main outlet tile. Also, both agreed that the flow capacity of the main outlet tile will be driven by the difference in head elevation as between the water level on the north side of Avon Drive and water level in Kettle Creek. Mr. Gubbels’ evidence was that the existing 525 mm diameter tile provides adequate outlet for the LDS system and that the works proposed in the Spriet Report is unnecessary. No evidence was offered to prove this to be the case under normal flow conditions in Kettle Creek.
The evidence of Mr. DeVos is the existing 525 mm diameter tile must be twinned with a 750 mm diameter tile in order to provide outlet to the design standard of 31 mm/24 hr. as set out in the Spriet Report. He confirmed that even under high water conditions in Kettle Creek, the twinned tile system has the capacity to convey almost three times the flow of the single tile. The provision of an outlet that meets the design criteria is absolutely necessary. The Tribunal accepts the evidence of Mr. DeVos.
Additional Works and Project Costs:
Mr. Gubbels agreed with the summary of expenditures to date to construct the LDS system provided by the Hoogendoorns. This summary included an estimate of the cost of additional works to be done as well as the cost of earthworks related to extensive regrading on the Hoogendoorn property which was not associated with the drainage works. No verification of any of these costs was submitted. It was his opinion that these expenditures should be assessed against the lands within the Pilkington Drain watershed but admitted that this was beyond his experience. He had no alternative suggestion as to how to accomplish this task. This expenditure estimate did not include any damage allowances as contemplated under the Act, and also included an additional 15% Engineering Allowance on past expenditures for which no engineering services were rendered.
The evidence of Mr. DeVos was that all of the works in the Hoogendoorns’ expenditure summary were carried out by them on their own land. All of the works will continue to provide service to these lands but do not need to be incorporated into a report. The Spriet Report will, in fact, provide an improved outlet for all of the drainage works done by the Hoogendoorns on their property. The Tribunal accepts this evidence.
The Spriet Report clearly defines and provides estimated costs for the various components of the works, including allowances, engineering and contingency costs as required by the Drainage Act. The total estimated cost was appropriately divided as between the various branches of the drain and assessed against those lands impacted by those works. The fairness of the distribution of costs has already been vetted at the Court of Revision.
The Tribunal finds that the project expenditures of the LDS system are inaccurate and incomplete. The inclusion of these expenditures, and other costs not yet identified, and their distribution within a report under the Act will be very difficult and possibly subject to further appeals. If there were in fact any merit to this option, a complete new report would have to be prepared. The process would have to start again based on the requirements of the Act. All existing costs would have to be recovered, presumably by the assessed landowners. The Tribunal finds that the evidence does not support this option. The modified works proposed by the Appellants do not provide a benefit commensurate with the estimated costs thereof. The Tribunal accepts the Spriet Report, as amended by the November 23, 2015 Court of Revision, in its entirety, with the amendment set out in the order below.
Counsel for the Municipality reserved the right to make submissions as to costs of this hearing. This is addressed in the order.
Conclusion
The Drainage Act creates a scheme to provide for drainage of agricultural lands in the province. The scheme is consultative and collaborative, as well as restrictive. All landowners potentially impacted by a drainage works or changes to it are consulted. Landowners may request a municipality to investigate drainage issues or repairs, as the Hoogendoorns did at the outset. A landowner may apply to the Referee if they are dissatisfied with the length of time to produce a report. The Hoogendoorns did not avail themselves of that remedy, nor did they alert the Municipality of their concerns about the delay. They merely took matters into their own hands, reconfigured their property. They dug up part of the Pilkington Drain, replacing it with an open channel. This is not permitted under the Drainage Act.
The Appellants now seek to have the work they carried out on their property adopted as a municipal drain and have the cost shared by other adjacent landowners. The evidence does not support such a request. The work carried out by the Hoogendoorns was for their own benefit, not for the drainage works as a whole.
ORDER OF THE TRIBUNAL
The Tribunal orders that:
The appeal by Albert and Yoka Hoogendoorn under Section 48(1) of the Act be dismissed.
The Spriet Report, Schedule “D”, be amended so that the reference to the distribution of maintenance costs for Branch “C” and Branch “D” is modified to specifically exclude the Special Benefit.
The Municipality shall serve on counsel to the Hoogendoorns and file with the Tribunal, written costs submissions not exceeding 5 pages (excluding any case authorities), no later than May 31, 2016.
The Hoogendoorns shall serve on counsel for the Municipality and file with the Tribunal, written costs submissions not exceeding 5 pages (excluding any case authorities), no later than June 14, 2016.
If there are no submissions on costs by the dates set out in paragraphs 3 and 4 above, then the order for costs be as follows:
a) The non-administrative costs of the Municipality incurred with respect of these appeals shall form part of the cost of the drainage works, and such costs include the Engineer’s fees and expenses for preparing the Report, as well as well as the Engineer’s fees and expenses for attending and participating in the hearing.
b) There shall be no other Order as to costs and all parties are responsible for their own costs.
Dated at Ottawa, Ontario this 13th day of May 2016.