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:
Buurma Drain 2013 (RE) Township of Adelaide Metcalfe
Buurma Drain 2013 (RE) Township of Adelaide Metcalfe 2016ONAFRAAT12
STATUTE:
Drainage Act
HEARING:
May 16, 2016
June 10, 2016
002Buurma16
NEUTRAL CITATION:
2016ONAFRAAT12
BUURMA DRAIN 2013
TOWNSHIP OF ADELAIDE METCALFE
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 Peter Van Lierop, of Alvinston, Ontario, under Section 64 of the Drainage Act from the dissatisfaction with the quality of construction of the drainage works under the Engineer’s Report on the Buurma Drain 2013 in the Township of Adelaide Metcalfe.
Before:
Glenn Walker, Vice-Chair; Edward Dries, Member; Sharon Weitzel, Member
Appearances:
Peter Van Lierop – Appellant
Gerald Van Lierop – Witness for Appellant
Mike DeVos – P.Eng., Spriet Associates London Limited
Jim Reeve – Former Drainage Superintendent for Municipality, witness for Municipality
Roger Buurma – Petitioner for Drain
DECISION OF THE TRIBUNAL
This hearing was held in the Township of Adelaide Metcalfe, (the “Municipality”) in Strathroy, Ontario on May 16, 2016. Mr. Peter Van Lierop appealed to the Tribunal from the quality of the construction of the Buurma Drain 2013 arising from the Engineer’s Report dated September 20, 2013 prepared by Mike DeVos, P. Eng., (Engineer) of Spriet Associates London Limited.
Cathy Case, Deputy 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 Municipality filed an Affidavit of Service with the Tribunal as proof that all parties had been served with the Notice of Hearing.
The Petitioner, Roger Buurma, requested that he be made a party to the hearing and indicated that he would give evidence. The Board added Mr. Buurma as a party to the proceedings.
The Tribunal noted that Mr. Van Lierop’s appeal was originally filed with the Municipality on November 27, 2015 but the date of issue of the Certificate of Completion was September 15, 2014. Section 64 under the Drainage Act permits any landowner dissatisfied with the quality of the construction of a drainage works to file an appeal at any time during construction or up to one year from the date of completion of the drainage works as certified by the Engineer or a Drainage Superintendent.
Section 100 under the Act also allows the Tribunal in any case that it considers proper to extend the timeline for an appeal.
Mr. Van Lierop stated that even though a Certificate of Completion was issued, work on the drain was not finished and was still being undertaken. The Engineer confirmed that work on the drain was still being completed after the issuance of the Certificate of Completion and he had no objection to an extension of time being granted for the filing of the appeal.
After considering the above submissions, the Board granted Mr. Lierop an extension of the time for filing his appeal to February 23, 2016.
Background
After failing to reach an agreement with the appellant to construct an agreement drain pursuant to Section 2 of the Drainage Act, Roger Buurma petitioned the Township of Adelaide Metcalfe for a drain which would affect his property and that of the appellant. Construction of the drain took place between July 24 and August 6, 2014. The appellant’s complaints concerning the quality of construction on his farm are categorized in the issues set out below.
Issues
Did the contractor fail to leave the stumps, logs and brush in piles pursuant to the terms of the Report?
Did the contractor fail to leave the site in a levelled condition?
Did the contractor crush previously existing tile on the appellant’s farm and fail to replace it?
Evidence
Peter Van Lierop
The appellant, Peter Van Lierop, has owned the subject farm for approximately 20 years. It was already tiled when he purchased it and he has no map of where the tiles are located. He provided 33 photographs to the Tribunal which he said were taken around the end of April, 2016. These photographs purported to show that some of the logs, which should have been in separate piles, were piled with the brush and stumps. They also purported to show that some of the stumps and logs were partially buried. They also showed that the work site has not yet been properly levelled.
He says that the tile that was crushed was clay tile but the pieces of broken tile shown in the photographs are black plastic. On cross-examination, Mr. Van Lierop stated that the tile in question had been a clay tile but that a couple of years ago there was a blowout and it had been replaced with black plastic tile.
Gerald Van Lierop
Gerald Van Lierop is the appellant’s brother. He stated that it was his understanding from the drainage report that the brush, logs and stumps were to be left in separate piles, that the work site was to be levelled, and dirt not mixed in with the brush, logs and stumps. He claimed that this was not generally done and the work site was left in such a disturbed condition that they could not re-level the area with their own equipment.
Jim Reeve
Mr. Reeve was the Drainage Superintendent at the time of the construction. It was his understanding that the appellant wanted the cut trees laid out in a row. The works were then carried out in that manner. Later Mr. Van Lierop said that he wanted the trees in piles. The contractor then went back and moved the logs into piles.
When the appellant complained about crushed tile, Mr. Reeve advised him that if the contractor went in to dig and find out whether or not any tile were crushed, Mr. Van Lierop would have to pay for the cost if they found no problem. Mr. Van Lierop was not agreeable to this. Despite this, the Municipality did dig and found a broken tile. However, it was not possible to determine when the damage had been done as they uncovered evidence of a previous repair of the clay tile with plastic tile at this location. They did replace about 20 meters of tile because the tile had been disturbed and it could not simply be backfilled. The Municipality also connected one of the appellant’s tiles to the new drain.
Mr. Reeve testified that the Municipality did everything within reason to locate any crushed tile and made its best efforts to re-pile the brush, logs and stumps. The Municipality also offered to come back and level the lands but the appellant would not allow access onto his farm.
Mike DeVos - Engineer
Mr. De Vos is the Engineer with Spriet Associates in charge of this project. He explained that some clearing had to be done before the new drain could be constructed. There had to be 15 meters cleared on either side of the new drain so that tree roots would not get into the drain. The logs were left for the use of the owner as firewood and the remaining stumps and brush were left to rot or dry out and then be burned by the property owner, which is the common practice unless the landowner wishes to pay extra to have them removed. Mr. DeVos stated that the Municipality is prepared to sort out some of the logs from the other piles for the appellant.
The appellant had claimed that one of his tiles had not been connected to the new drain. Mr. De Vos explained that one of the tiles near the outlet of the drain was not connected because it was not working properly and it was at some distance from the new drain. He told Mr. Van Lierop that he would not be connecting it and the contractor proceeded on that basis. When the appellant claimed that it was to be connected, in an attempt to try and satisfy the appellant, the contractor connected this tile to the drain. The OFA representative, Karl Soetemans, who was asked to come on site by Spriet, confirmed that this connection had been made.
Mr. De Vos also confirmed that the Municipality replaced a 20 meter length of tile to replace the tile that was disturbed when they went looking for the allegedly crushed tile.
Roger Buurma
Roger Buurma, the petitioner, testified that he tried to negotiate an agreement drain with Mr. Van Lierop but was not successful. Consequently he petitioned for a municipal drain.
Findings and Analysis
With respect to issue number one, the Tribunal finds that the debris from the clearing of the worksite was left in two separate piles according to the terms of the Report, one pile for logs and one pile for brush and stumps. However, the Tribunal is satisfied from the evidence disclosed that there are logs, defined in the Report as having a diameter of 6 inches or larger, mixed in with the brush and stumps. In addition, some of the stumps and other debris are partially buried.
With respect to the issue number two, by its own evidence, the Municipality has admitted that there is still some grading to do on this site when they are given access.
With respect to issue number three, the Tribunal finds that no tile was crushed during the construction project, or if it may possibly have been crushed during construction, it has been repaired or replaced. The Municipality has made a concerted effort to satisfy the appellant in this regard and to connect any operating drainage tiles to the new drain.
ORDER OF THE TRIBUNAL
The Tribunal orders as follows:
The appeal by Peter Van Lierop is granted in part.
The Municipality shall cause the contractor to attend at the work site for the purpose of completing the grading, unearthing any buried logs or stumps and moving any logs from the brush/stump piles to the log piles. The appellant shall provide the access for this work in accordance with Section 63 of the Drainage Act and the provisions of the Engineer’s Report.
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 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 10^th^ day of June, 2016.