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:

Springmount Municipal Drain (RE) Township of Georgian Bluffs

Springmount Municipal Drain (RE) Township of Georgian Bluffs 2016ONAFRAAT13

STATUTE:

Drainage Act

HEARING:

May 31, 2016

DATE OF DECISION:

June 13, 2016

007Springmount16

NEUTRAL CITATION:

2016ONAFRAAT13

SPRINGMOUNT Municipal drain Township of Georgian Bluffs

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 Glen Catto, of Owen Sound, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision on the Springmount Municipal Drain in the Township of Georgian Bluffs.

Before: Jeffrey Hewitt, Vice-Chair; Andrew McBride, Member; Ronald O’Connor, Member

Appearances: Glen Catto – Appellant Ian Eriksen, P. Eng. – GM BluePlan Engineering Limited – Engineer who prepared Report Jim Bumstead – Assessed Landowner Dave Anderson – Assessed Landowner

DECISION OF THE TRIBUNAL

This hearing was held in the Township of Georgian Bluffs, Owen Sound, Ontario on May 31, 2016.

Glen Catto appealed to the Tribunal under section 54(1) of the Drainage Act from the decision of the Court of the Revision on the Springmount Municipal Drain. The Engineer’s Report dated November, 2015 for the Springmount Municipal Drain (“the Report”) was prepared by Ian Eriksen, P.Eng. of GM BluePlan Engineering Limited (“the Engineer”).

Holly Morrison, Clerk of the Township of Georgian Bluffs, performed the duties of 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 Clerk filed an Affidavit of Service as proof that all parties had been served with the revised notice of hearing.

Background

The Hamlet of Springmount is located in the area of the intersection of King’s Highways 6 and 21 in the geographic Townships of Derby, Keppel and Sarawak, now in the Township of Georgian Bluffs (the “Township”), west of the City of Owen Sound, all in the County of Grey. The Pottawatomi River flows northeasterly through this area and outlets into Owen Sound in the heart of the City.

As part of its project planning for the reconstruction of Highway 6 from Springmount to Hepworth, the Ontario Ministry of Transportation (“MTO”) determined that it was necessary to replace two concrete box culverts along Highway 6 located on a tributary to the Pottawatomi River, in Springmount. However, the MTO decided that the overall drainage patterns in the area should be reviewed and considered prior to replacing these culverts. Accordingly, in October 2012, the MTO, as a road authority, submitted a petition under the Drainage Act to the Township. As noted by the MTO, the purpose of the petition was to address drainage capacity degradation due to siltation on the tributary and to secure a maintainable outlet for the proposed new culverts and the tributary itself. This tributary has a relatively flat gradient and silt deposition has reduced the flow areas of the culverts and the watercourse creating flooding issues throughout this general area.

The Highway 6 reconstruction was completed in the summers of 2013 and 2014 but the culvert replacements were not undertaken and are included in this Report. These replacements will proceed when this Report is finally adopted.

The area requiring drainage, as described in the MTO petition, extends from the tributary outlet at the Pottawatomi River to the upstream side of the north Highway 6 culvert crossing, which is located approximately 700 metres north of the intersection of Highways 6 and 21.

In March 2013, after the site meeting held as a result of the MTO petition, the County of Grey Director of Transportation Services (the County “road authority”) submitted a petition for drainage of the area around the intersections of County Roads 17 and 17B and County Road 17 and Highway 6, extending to approximately 530 metres northerly thereof. This increased the area requiring drainage to approximately 1,600 metres north of the intersection of Highways 6 and 21. Under sections 8(4) and 10 of the Act, the Township instructed the Engineer to prepare one preliminary report with respect to these two petitions.

The Preliminary Report was prepared and was considered by Council in December 2013. Seven options were presented in that Report and, of those, both the southerly option to deepen and widen the ditch along Highway 6 to convey the 25-year design flow and the northerly option to clean out and widen the existing ditch on the unopened Township road allowance north of County road 17 were selected. Additionally, the Highway culverts would be designed for the runoff from the 25-year storm event.

The watershed of the drain is approximately 675 hectares (ha) in total area and includes agricultural, rural residential and bush properties as well as some lands used for residential, commercial and industrial land purposes within the Hamlet. This includes the Township’s industrial park, which is located on the east side of Highway 6 between Highway 21 and County Road 17.

The total estimated cost of the project is $1,668,930, which has been assessed as follows:

MTO – south culvert- Section 26

$639,000

MTO – north culvert – Section 26

$612,359

MTO – benefit & outlet – Sections 22 & 23

$173,153

Grey Sauble Conservation Authority – benefit & outlet – Sections 22 & 23

$13,449

County of Grey Roads – benefit & outlet – Sections 22 & 23

$83,601

Unopened Township road & land – benefit & outlet – Sections 22 & 23

$18,009

Open Township Roads – benefit & outlet – Sections 22 & 23

$2,206

Private Lands – benefit & outlet – Sections 22 & 23

$127,153

TOTAL ESTIMATED PROJECT COST

$1,668,930

The Appellant’s property is located in the extreme northwest part of the watershed and fronts on the west side of County Road 17. It is 45.5 ha in size, which is about 6.7% of the total watershed area. The southeast corner of the property is approximately 800 metres from the upstream end of the proposed drain. This property is deemed agricultural and is assessed $3,499 for outlet toward the cost of construction of the Drain and 5.858% for maintenance, if the entire length of the drain was to be maintained. The Appellant states that his land does not hold any surface water and that the drain provides him with no benefit.

Issue

Should the assessment to the Appellant’s land for future maintenance be reduced?

Evidence

Ian Eriksen - Engineer

To assist the Tribunal, Mr. Eriksen first provided a brief historical overview of the Drain and his design details. In doing so, he advised that:

1. In addition to the two MTO culverts, three private drain crossings are included in the proposed work;

2. The County Road 17 culvert is not being replaced under this project, as it is currently adequate in size and structural condition;

3. The area requiring drainage extends from the outlet of the tributary into Pottawatomi River upstream to the bend in County Road 17, approximately 600m north of the intersection with Highway 6, and that flooding occurs around this intersection on a regular basis;

4. There is no flooding or poor drainage in the agricultural and forested lands upstream of the upstream end of the proposed drain;

5. Clay soils are generally found in this area;

6. The necessary approvals for the project have been obtained from the Niagara Escarpment Commission and the Grey Sauble Conservation Authority;

7. Approval from the Department of Fisheries and Oceans was not required; and

8. Due to the low gradient of this proposed drain, it will likely require maintenance or cleaning out more frequently than a typical drain, that is, perhaps every 10 to 20 years at a cost of approximately $20,000 per cleaning.

Regarding his calculation of assessments for construction, Mr. Eriksen advised that his process was “generally undertaken following the Todgham Method” and is described in detail in the Report. As for determining “the volume and rate of flow of water artificially caused to flow”, he applied the following equivalent area coefficients in accordance with Section 23(3) of the Act:

0 to 2% impervious

1.0

2 to 20% impervious

1.5

20 to 40% impervious

2.0

40 to 60% impervious

2.5

60 to 80% impervious

3.5

80 to % impervious

5.0

50% tree cover

-0.25

100% tree cover

-0.50

Mr. Eriksen indicated that, with the exception of the Section 26 assessments to the MTO, he generally assessed 85% of the cost in each section of the drain as benefit to the adjacent lands, and 15% as outlet to the upstream lands.

Mr. Eriksen advised that, in late December 2015, the Township Council decided to pay all of the assessments of the private lands for the construction of this project provided that the maintenance assessment schedule contained in the Report would apply for any future maintenance of the drain.

Regarding his calculation of assessments for maintenance, Mr. Eriksen advised that this was done based on the outlet assessments for construction, excluding the culverts, with special maintenance assessment instructions being described in the Report for the maintenance of these culverts.

With respect to the Appellant’s property, Mr. Eriksen advised that the actual area is 45.47 ha and the equivalent area, taking into account a reduction of 50% for the area of the property that is forested, is 34.10 ha. Therefore, based on the unadjusted areas, the Appellant’s property is about 7% of the total watershed area; based on equivalent areas, it is 4.9% of the total adjusted area. Furthermore, being that the Appellant’s property is deemed as agricultural, he will receive a provincial grant that will reduce his percentage for future maintenance to 3.3%.

Mr. Eriksen advised that he did not actually walk the Appellant’s property but, instead, relied on the one-metre contour mapping that he obtained from the Conservation Authority to determine the watershed boundary and slope details for the property. He checked the accuracy of this mapping at a number of locations within the watershed and found it to be quite good. This mapping revealed that almost all of the Appellant’s property is within the watershed and that it has over 10 metres of fall toward the southeast corner, that is, toward the west ditch of County Road 17. It is his opinion that the water flows from this southeast corner of the Appellant’s property, through the County Road 17 ditches, and directly into the upstream end of the proposed drain. Accordingly, the Appellant’s property is assessed into the entire length of the drain for construction and maintenance.

Glen Catto – Appellant

Mr. Catto provided the following evidence to the Tribunal.

1. He has owned this property for many years.

2. There are no swamplands, ponds, or streams on the property.

3. The property is high and dry.

4. His property is 50% cleared, workable agricultural land and 50% forested.

5. The soil on his property is clay loam.

6. Normally, all the water that melts on or falls on his property soaks into the ground, so no water flows off of his property.

7. The spring thaw is the only time when there are any water runoff problems in the area.

8. The industrial park is a real benefit to the Township and the local population but, when it was built, the existing ditches were not properly maintained which has resulted in the current drainage problems in that area.

9. The drain is of no benefit to his property.

10. He does not agree with the location of the watershed boundary on his property.

11. His land does slope to the southeast, toward the west ditch of County Road 17, and that roadside ditch does flow to the south toward the proposed drain.

12. Upon questioning, he indicated that it would not be fair for his property not to be assessed something, but he suggested his assessment should be reduced by about 50%.

Mr. Catto supplied the Tribunal with two signed written statements of individuals who stated, in essence, that they are familiar with the Appellant’s property and have never seen flooding or the ponding of surface water on it.

Findings and Analysis:

The evidence provided by the Engineer with respect to the Appellant’s property was clear and concise. While he did not actually walk or survey the property to establish the watershed boundary or determine the slope, use of the very detailed one-metre contour mapping is considered to be a reliable method for determining this information. This mapping, which was submitted as exhibit 6, indicates a fall of over 10 meters across the Appellant’s property toward the County Road and then toward the drain, a fact to which Mr. Catto agreed. Section 23(1) of the Drainage Act clearly states that, “Lands … that use a drainage works as an outlet … either directly or indirectly through the medium of any other drainage works … may be assessed for outlet liability.” Accordingly, it is completely in order that the Appellant’s land is assessed for outlet liability and maintenance liability since it slopes to the west ditch of the County Road, which then connects to the proposed drain.

Furthermore, the Appellant agreed that his property is 50% cleared and 50% forested, which are the percentages used by the Engineer to calculate the equivalent area. In addition to the location in the watershed, this equivalent area is a critical factor in determining both outlet and maintenance assessments.

The Tribunal acknowledges Mr. Catto’s strong belief that no water ever flows off of his property. However, that belief is based on his (and those who provided written statements) personal observations that there is no standing or ponding water ever on his property. Without any scientific or physical evidence to prove that 100% of the surface water is fully absorbed into the ground such that there is no run-off into the drain, the Tribunal finds that the scientific, physical and professional opinion evidence of the Engineer is not contradicted. It challenges common sense to state that there is no run-off whatsoever from the Appellant’s lands, in particular the workable area that comprises 50% of the total. The Appellant did not provide any evidence as to why his land is physically different than other lands within the watershed and therefore should not be assessed into the drain. The Act is designed to share the cost burden of constructing and maintaining a drain among all properties in its watershed that benefit. The Appellant’s lands are no exception. In fact, Mr. Catto admits as much and he is to be commended for telling the Tribunal that he should be assessed something for future maintenance.

Based on the evidence of the Engineer, if a maintenance project of $20,000 was undertaken on the drain, the assessment to the Appellant’s property at 3.3% would be $660 every ten to twenty years. The Tribunal finds that the Appellant’s proportional share based on these percentages is a reasonable amount to pay under the cost-sharing approach envisioned under the Act. Accordingly, the Tribunal finds that the Engineer’s assessment of Mr. Catto’s property appears to be fair and reasonable.

Orders of the Tribunal

For the reasons stated above, the Tribunal orders as followings:

1. The appeal by Glen Catto under Section 54 of the Act is denied.

2. The non-administrative costs of the Township incurred with respect to this appeal shall form part of the cost of the drainage works, and such costs shall include the Engineer’s fees and expenses for preparing the Report, as well as the Engineer’s fees and expenses for preparing for and attending the Tribunal hearing.

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

Dated at Tecumseh, Ontario this 13^th^ day of June, 2016