Agriculture, Food and Rural Affairs

Appeal Tribunal

1Stone 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:

Dufour Drain and Branches A & B (RE)

Town of Amherstburg

Dufour Drain and Branches A & B (RE)

Town of Amherstburg

2016ONAFRAAT19

STATUTE:

Drainage Act

HEARING:

August 31, 2016

DATE OF DECISION:

October 4, 2016

009Dufour16

NEUTRAL CITATION:

2016ONAFRAAT19

DUFOUR DRAIN AND BRANCHES A & B

TOWN OF AMHERSTBURG

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

AND IN THE MATTER OF: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Terry and Jeannine Miller of Amherstburg, Ontario under sections 48(1) and 54(1) of the Drainage Act from the Report of the Engineer and the decision of the Court of the Revision or its omission thereof; and by Mary Arts of Amherstburg, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision or its omission thereof on the Reconsidered Drainage Report for the Dufour Drain and Branches A & B in the Town of Amherstburg.

Before: Kirk Walstedt, Chair; Andrew McBride, Member; Maurice Janisse, Member

Appearances:

Terry and Jeannine Miller – Appellants

Mary Arts – Appellant

Tim Oliver, P. Eng., Dillon Consulting Ltd. – Engineer who prepared the Report

Eric Chamberlain – Manager of Public Works for the Town of Amherstburg

DECISION OF THE TRIBUNAL

This hearing was held in the Town of Amherstburg (the “Town”), on August 31, 2016. The Engineer’s Report that is the subject of these appeals is a reconsidered report prepared, in accordance with section 78 of the Act , by Mr. Tim Oliver of Dillon Consulting Ltd. dated October 26, 2015 (the “Report”) for the Dufour Drain and Branches A & B.

Paula Parker, Clerk of the Town of Amherstburg, performed the duties of the Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an Order making all assessed landowners 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 June 28, 2016.

Background

The Dufour Drain and Branches A & B are located in the former Township of Anderdon which is now part of the Town of Amherstburg. The Main Drain is approximately 1298 metres in length, with the downstream 890 metres located on or immediately east of the municipal road allowance known as the 8^th Concession, 328 metres located immediately north of the Essex County Road No. 10 allowance, and the upstream 80 metres located immediately north of the former Canadian National Railway property, which is now owned by the Essex Region Conservation Foundation (ERCF). The Main Drain is an open drain for most of its length except for 121 metres of 1200 mm diameter culvert located at the intersection of the two roads, as well as four access culverts to properties off of the 8^th Concession Road.

This Main Drain was constructed sometime prior to 1961 but, after an engineer’s report in 1961, the section at the intersection of the roads was moved off of the road allowances and enclosed, and the Drain was extended upstream across the Railway property and the County Road, extending about 57 metres as an open drain along the south side of the road allowance. After an engineer’s report in 1971, the entire length of the Drain was brushed and cleaned out.

After an engineer’s report in 1991, an open drain was constructed along the north side of the then abandoned railway property, extending easterly for approximately 533 metres, to provide an outlet for the storm sewer system of the Gardiner Subdivision, a residential development of at least 23 lots that was constructed in the extreme upstream part of the drainage area. Apparently, the stormwater management plan for the subdivision was the installation of a 750 mm diameter culvert in the downstream end of this new open drain which was intended to restrict the outflow from the subdivision and flood the ditch. This flow restriction resulted in flooding of the ditch and poor drainage for the ERCF land and the rear of the residential lots backing onto the ERCF property. This 533 metres of open drain, which previously was unnamed, has been designated as Branch A in the current Report.

In addition to the aforementioned 23 residential lots in the Gardiner Subdivision, 36 other residential lots have been created along the north and south sides of the County Road, all within the upstream part of the subject drainage area, and all without any type of stormwater management. Some of these lots were created by Canard Developments Inc. approximately ten years ago.

At some unknown time in the past, approximately 343 metres of 600 mm diameter storm sewer and three catch basins were installed easterly from the upstream end of the Main Drain along the south side of the County Road. This section of closed drain, plus the 57 metres of open drain, plus the County Road crossing, plus the ERCF trail crossing, to the point of confluence with Branch A and the Main Drain, have been designated as Branch B in the current Report.

Between June 1989 and March 2013, four additional engineer’s reports were prepared for the four access culverts to various properties off of the 8^th Concession Road. Two of these culverts are 1600 mm in diameter and two are 1400 mm in diameter, one of which is the Miller culvert. The Miller culvert was installed in 1990 after a report prepared by engineer N. J. Peralta. This culvert is referred to as Bridge No. 3 in the current Report.

The drainage area described in the Report is approximately 82 hectares or 203 acres, with approximately 66.7 hectares being agricultural land and 15.3 hectares being residential land, roads and the ERCF trail. The soil in the drainage area is Brookston Clay and the topography of the area is flat, resulting in the gradient of the Drain being minimal at less than 0.1%.

A report under Section 78 of the Act for repair and improvement of this Drain was commissioned by the Town in February 2006 as a result of requests from property owners Harry and Mary Arts and William and Barbara Rybsky who were proposing residential development on two parcels of land, being 9.3 hectares and 16.4 hectares in area respectively, in the southeast part of Lot 7 in Concession 8, north of the ERCF trail. This development was known as the “Woodland Trails Subdivision”. This report was prepared under date of January 8, 2007 but was set aside at the request of the developers due to a downturn in the real estate market at that time.

In November 2011, the owners of the residential lot at the upstream end of the Main Drain, on the south side of County Road 10, submitted a request for drain maintenance to the Town claiming that their property had been flooded eight times in the preceding five years. In April 2012, Council accepted the recommendation of the drainage superintendent that the Drain be maintained and that a new schedule for maintenance purposes be prepared due to the many changes in land use since the last bylaw and engineer’s report.

In the summer of 2012, the owners of the Woodland Trails Subdivision asked the Town to proceed with the work proposed in the January 8, 2007 engineer’s report; however, as a result of the request for maintenance, the need for a complete new maintenance assessment schedule and other concerns regarding flooding expressed at site meetings, a new report on the complete Drain, including the contributing branches was commissioned. During this time period, the ownership of the proposed Woodland Trails Subdivision had changed.

This complete, new engineer’s report was prepared by Mr. Tim R. Oliver, P.Eng. of Dillon Consulting Limited and was dated July 30, 2015. That report was considered at Council meetings in August and September 2015 and was referred back to the engineer for revision. Mr. and Mrs. Miller and Mr. and Mrs. Arts indicated to Council that they had concerns with the July 30 report.

The Reconsidered Engineer’s Report, as prepared by Mr. Oliver under date of October 26, 2015, which is the subject of the appeals by Mr. and Mrs. Miller and Mrs. Arts, contains the following recommendations.

Main Drain

• That the design criteria for this Drain be increased from the current 2-year storm event to the 5-year storm event.
• That the entire length of the Main Drain be brushed out, including removal and disposal of stumps.
• That the bottom only of the entire length of the Main Drain be excavated and the excavated material be levelled on the adjacent private agricultural properties but that the excavated material be trucked away from those sections that are adjacent to residential lawns.
• That access bridges (culverts) 1, 2 and 4 be cleaned.
• That access bridge 3, being the 1400 mm diameter Miller driveway culvert, be removed and replaced with a 1600 mm diameter culvert. Although this bridge is in good condition and at the proper elevation, “it is deficient in hydraulic capacity” due to increasing the design criteria. The length of this culvert and the end treatments were changed from what was originally proposed in the July 30^th report.
• That the Miller asphalt driveway be restored entirely at the Millers’ cost, as a special benefit.
• That bridge no. 5, being the 124 metre long 1200 mm diameter culvert located in Mrs. Arts’ lawn adjacent to the intersection of the two roads, be removed and replaced with 132 metres of 1780 mm x 1360 mm corrugated steel pipe arch (CSPA), entirely at the cost of the two road authorities, under Section 26 of the Act. This 55-year old bridge was found to be in a deteriorated condition and “deficient in hydraulic capacity” due to increasing the design criteria.
• That Mrs. Arts’ two asphalt driveways and one gravel driveway, located over the above-mentioned culvert, be restored entirely at Mrs. Arts’ cost, as a special benefit.
• That stone erosion protection be installed at various locations on the Main Drain.
• That a one metre wide permanent grass buffer strip be created along the east and north sides of the Drain where it abuts agricultural land.
• That sediment control be installed and maintained during and after construction.
• That the special drainage work for the Woodland Trails Subdivision that was included in the July 30^th report be deleted as the property was sold and the new owners requested that this work not be included.
• That the replacement of a County Road cross culvert that was in the July 30^th report be deleted as the County Highways Department undertook this work in August 2015.

Branch A

• That the unnamed existing open drain extending for 533 metres along the north side of the ERCF property and connecting to the Main Drain be designated as Branch A of the Dufour Municipal Drain.

• That the design criteria for this Branch be increased from the current 2-year storm event to the 5-year storm event.

• That the 750 mm diameter culvert at the downstream end of Branch A be removed and disposed of.

• That the full length of Branch A be brushed, excavated and the spoil levelled, with some spoil being trucked on-site.

• That some hydraulic seeding and some stone erosion protection be undertaken.

• That a one metre wide permanent grass buffer strip be created along the north side of the Branch for a length of 173 metres.

• That six ‘yard catch basins’ be installed on the south side of the ERCF property, with two stubs out of each into the adjacent residential lots, and six 150 mm diameter connections be installed across the ERCF property from these basins to the Branch A channel, to provide positive drainage outlet for the rear portions of the twelve lots abutting the south side of the Trail property. This work was not included in the July 2015 report.

Branch B

• That the existing open and closed drain that extends from the confluence of the Main Drain and Branch A across the ERCF land, the County Road, and along the south side of the County Road, for a total length of 444 metres, be designated a Branch B of the Dufour Municipal Drain.
• That the open portion of this Branch be cleaned out and a buffer strip be created along its south side.
• That the 900 mm diameter pipe that provides outlet from the County Road onto the ERCF property be removed and replaced.
• That the existing 900 mm diameter County Road crossing pipe be replaced and a new maintenance hole structure be installed at its downstream end with a new ditch inlet pipe from the north roadside ditch, all under Section 26 of the Act.

Total Cost Estimate

The estimated cost for all of this work includes the following components: materials and construction; allowances; engineering fees for survey, design, report preparation, expenses, incidentals, and contract administration; engineering fees associated with the revised report; engineering fees for the 2007 report; and an ERCA permit and review fee. These costs, including the Section 26 costs, are broken down as follows:

Main Drain $278,300 + Branch A $40,200 + Branch B $36,600 = Total $355,100.

Seventy percent of the 2007 engineering fees and all of the engineering fees for the revised report were directed to the former Woodland Trails Subdivision properties as a special benefit assessment. The other 30% of the 2007 engineering fees was directed to the Town as a special benefit assessment.

The remainder of the project costs have been assessed to the affected lands and roads as benefit in accordance with section 22 of the Act, or as outlet liability in accordance with section 23 of the Act, or as special benefit in accordance with section 24 of the Act, or as increased costs in accordance with section 26 of the Act.

Issues for Determination

1. With respect to the Section 48(1) appeal in this matter:

i) are the benefits to be derived from the proposed drainage works commensurate with the estimated costs; and,

ii) are the allowances provided by the engineer inadequate or excessive?

2. With respect to the Section 54(1) appeals in this matter, should there be any changes in the assessments to the Terry and Jeannine Miller property or the Mary Arts property?

Evidence – Terry Miller, Appellant

In his evidence and submission, Mr. Miller made the following points.

1. This project was initiated in 2006 by the proponents of the Woodland Trails Subdivision and has been delayed for 10 years due to their procrastination. If it had proceeded in 2007 and the Main Drain had been cleaned out for its full length, the flooding problems being experienced by some of the properties would have been addressed much sooner and the costs would have been much less than they are estimated at today. After 10 years of waiting for this work to be done, the owners of the proposed subdivision have completely withdrawn their request.

2. There are inconsistencies and inequities within the Town regarding the replacement of driveway surfaces during municipal projects. In some cases the driveway surfaces are restored as part of the municipal improvement project at no cost to the private property owner, such as with the recent Texas Road construction project. In other cases such as this, the private property owner is expected to pay the full cost of the driveway restoration. Both he and Mrs. Arts understood that this issue was going to be addressed by the Town administration and Council before this project was approved but this has not occurred. Accordingly, they have been forced to make this issue part of their appeal to this Tribunal.

3. Prior to having an access bridge installed for his property, he was required to have an engineering design and report prepared, which the Township of Anderdon arranged for him. This report was undertaken by N. J. Peralta Engineering Ltd., under date of June 5, 1989, and copies were provided to the Township and the Millers at that time. This report was provided to the Tribunal as exhibit 3. He installed his access culvert in 1990.

4. The residential development that has occurred in the upstream part of the watershed has taken place over 10 years after his bridge was approved and installed.

5. His bridge was hydraulically adequate in 1990 and apparently is not now and, if that is so, it is due to the residential development that has taken place in the upstream part of the watershed. The Town did not insure that proper flow restrictions (stormwater management facilities) were installed as part of these upstream residential developments. Accordingly, the total cost of replacing his bridge, and restoring his asphalt driveway, should be charged to those upstream residential properties and/or the Town and not to his property. Mr. Miller supported this argument with some quotes that Mr. Oliver made at the November 16^th, 2015 Council meeting to consider the Report.

6. The total cost of restoring his asphalt driveway and those of Mrs. Arts, including the associated engineering fees, should be paid by the Town as it was for the 40 or 50 driveways that were fully restored as part of the recent Texas Road improvement project. There should not be a two-tiered practice within the municipality for this type of work. Furthermore, they were not given the choice as to whether or not they wanted the asphalt replaced so the engineering fees should not apply if they decide not to do so.

7. His bridge is only 26 years old and, according to Mr. Oliver, is in good condition. Based on the Arts culvert lasting for 55 years, his bridge should last for another 29 years.

8. His property has not experienced any flooding problems since it was created in 1990 so he does not believe the engineer’s claim that a new, larger bridge is required to provide his property with increased flood protection.

9. He contends that his land contributes less than 0.5% of the hydraulic load to the Drain yet his property has been assessed a much greater percentage of the cost. The assessment to his property should be based on what his land contributes to the Drain and not on the basis determined by the engineer.

10. He feels his property is receiving no benefit whatsoever from this project and suggests that the entire cost of his bridge replacement should be transferred to the properties in Branches A and B.

Upon questioning, Mr. Miller indicated that he understood that 75% of the bridge replacement cost for his property was being assessed to the upstream properties. Regarding the Texas Road improvement project, he advised that it was his understanding that a 42 inch diameter culvert was installed in an existing six foot deep ditch, the ditch was filled and all the driveways were fully restored, all at no cost to the adjacent property owners. Mr. Miller did not contact any other municipalities regarding driveway restoration policies as he expected this would be done by the municipal staff.

Evidence – Mary Arts, Appellant

In her evidence and submission, Mrs. Arts made the following points.

1. Mrs. Arts is appealing the special benefit assessment of $5,000 to her property for the restoration of her two asphalt driveways and the $1,250 of engineering cost associated therewith.

2. Mrs. Arts wishes to be treated the same as those property owners along Texas Road who had their driveways restored with concrete, asphalt or stone pavers at no direct cost to them. She pays the same tax rate as those properties and feels she should be treated in the same manner.

3. Since her driveways have to be excavated to replace an aging culvert that belongs to the Town and the County, she feels the Town and the County should pay for the restoration of the driveways, as part of the culvert replacement.

4. Within the last six weeks, the County repaved Road 10 along the south side of her property and replaced the asphalt at the end of her driveway, with no cost to her, and now this new asphalt will be torn up to install the new culvert. She suggests this is a waste of tax dollars and shows poor communication between the two levels of government. Her tax dollars helped to pay for the recent paving and the way this project is assessed, she will have to pay for it again. This does not seem fair or right.

5. In 1991, when the Gardiner Subdivision was approved, her late husband warned the Township that it would cause drainage and flooding problems downstream, as a proper stormwater management facility was not included in the design. He has been proven to be right, as they have had their farmland flooded many times, and lost many valuable crops over the years.

6. Many times since it was last maintained in or about 1971, she and her husband have requested a clean out of the Drain but it has not been done. She does recall that the Township did a quick, partial job in 1991 to try and appease her husband after he complained about the subdivision.

Evidence – Tim Oliver, P. Eng., the Engineer who prepared the Report

Mr. Oliver presented his assessment rationale for the replacement of the access bridge to the Miller property, being bridge no. 3 in his Report, and provided the following details.

1. He did not become aware of the 1989 Peralta report until after he had prepared his July 30, 2015 report, as the Town did not seem to have a copy of the Township by-law adopting this report.

2. He pointed out that the Peralta report was somewhat unclear as to exactly how the cost of maintaining this access bridge was to be distributed.

3. Due to land use changes in the upstream part of the watershed, namely the development of residential land, he recommends that the design standard of the Drain be increased from a 2-year storm event to a 5-year storm event. As a result of this increase, bridge 3, the 1400 mm diameter Miller culvert, is hydraulically deficient and he recommends that it be removed and replaced with a 1600 mm diameter culvert, to provide 30% more capacity. This culvert upgrade “will better address the flooding concerns raised by both the (upstream) residential and agricultural property owners.” The larger culvert will reduce the headwater elevation on the inlet or upstream side of this lane crossing thereby increasing the flood protection to the Miller property and the lower lying Arts farm property immediately upstream.

4. He explained that his estimated cost to replace this bridge is $12,000 plus engineering of $3,000 and he determined that this replacement was a “special benefit” to the Miller property, as defined by sections 1 and 24 of the Act. Accordingly, he chose a proportion of 25% to assess to the Miller property as a special benefit plus $750 for the engineering associated therewith, for a total of $3,750. The remainder of the cost was assessed to all the upstream lands and roads. Normally, he would assess 50% of the replacement cost to the bridge owner but, in this case, he has reduced it to 25% because the existing bridge is in good condition and would provide at least 13 more years of service if left in place.

5. He further explained that he determined the asphalt driveway to be a ‘special feature’ of the bridge; therefore, he considers it as a special benefit and assessed 100% of the replacement cost to the Miller property, that is, $1,500 for the actual work, plus $375 for engineering, for a total of $1,875. As further justification for this approach, he quoted section 2.3 of the Agricultural Drainage Infrastructure Program: Administrative Policies (ADIP) of the Ontario Ministry of Agriculture, Food and Rural Affairs (OMAFRA) which, in subsection (i) (iii) states “Any special feature on a crossing (e.g. decorative headwalls, surface pavement) is not eligible for grant.” If he assessed any of the cost of the asphalt pavement restoration cost to the upstream agricultural lands, it would not be eligible for the OMAFRA grant and would create significant problems for the Town when making the final assessments and applying for the grant. In his opinion, this is good reason not to assess any of this cost to the upstream lands. Additionally, he advised that since the asphalt surface was not part of the original construction of the bridge, it should not be part of this improvement work. Finally, he advised that he has prepared several reports for other municipalities wherein he has applied this same assessment rationale and he provided three such examples.

Mr. Oliver presented his assessment rationale for the replacement of the bridge and lawn enclosure pipe across the two sides of the Arts property, being bridge no. 5 in his Report, and provided the following details.

1. This 126 metre length of 1200 mm diameter pipe was installed on private property, adjacent to the Town’s 8th Concession Road and the County’s Road No. 10, after the 1961 engineer’s report, and was paid for by those two road authorities. Accordingly, it is 55 years old, in a deteriorated condition and requires replacement.

2. Due to land use changes in the upstream part of the watershed and the reported flooding concerns, Mr. Oliver is recommending increasing the design criteria to the 5-year storm event which results in the existing 1200 mm diameter culvert being 50% deficient in capacity. Accordingly, he is recommending that 132 metres of 1780 mm x 1360 mm corrugated steel pipe arch (CSPA) be installed at this location, entirely at the cost of the two road authorities, in accordance with Section 26 of the Act. This larger pipe will reduce the headwater elevation on the inlet or upstream side of this bridge thereby increasing the flood protection to the Arts property and the properties upstream.

3. Mrs. Arts has two paved driveways over this pipe for her residence and one gravel driveway over it for her farmland access. Her property has been assessed a special benefit of $6,250 for all of the restoration cost of the asphalt driveways and $1,000 for all of the restoration cost of the gravel driveway. As further justification for this approach, Mr. Oliver quoted the OMAFRA ADIP policy as above-mentioned in point 5.

4. Again he advised that he has prepared several reports for other municipalities wherein he has applied this same assessment rationale and he provided three such examples.

Upon questioning, Mr. Oliver provided the following comments.

a) The 50% benefit 50% outlet method is just one way of assessing bridge costs but it is used by a number of drainage engineers and is the method that he normally uses unless the bridge cost is very high, $50,000 or more. There are other methods that can be used.

b) The ADIP policy does not determine who should pay for driveway surface restoration, it stipulates that the provincial grant will not be paid for this work and he thinks that is because it benefits only one property.

c) The Miller bridge has to be replaced due to Mr. Oliver increasing the design criteria and he has done this because of the land use change from agricultural to residential in the upstream part of the drainage area.

d) Driveway surface restoration could be assessed in another way and a Court of Revision can make any changes that it feels are fair.

e) He does not use the Todgham method of assessment for bridges.

f) He does not consider access and farm bridges/culverts to be essential parts of a drain; therefore, his normal practice is to assess them as ‘special benefit’ items.

g) To the best of his knowledge, the Drain has not been cleaned out since 1971.

h) He did not consider any other alternative for the Miller bridge other than removal and replacement.

i) The sub-watershed boundaries for the Branch drains are not completely shown on the plan.

j) There is a woodlot within the drainage area but it was not delineated on the plan.

k) He did not consider creating a stormwater management facility in the upstream part of the drainage area to control the flow downstream to the 2 year design.

l) Regarding future maintenance and repair of the bridges, costs for numbers 1, 3 and 4 are to be assessed 50% to the affected property and 50% to the upstream lands, while costs for bridge 2 are to be assessed 100% to the affected property as it is a secondary access, and the costs for bridge 5, the long pipe on the Arts property, are to be assessed 60% to the Town and 40% to the County, except for the driveways which are 100% the responsibility of the Arts property.

Findings

The Miller Appeals

Mr. and Mrs. Miller did not put forward any compelling evidence with respect to any items appealable under section 48(1) of the Act. Accordingly, this appeal will have to be dismissed.

Regarding the Millers’ section 54(1) appeal, the Tribunal finds that the Miller access lane culvert is being replaced because the engineer has increased the design criteria for the Main Drain. The engineer stated that this increase is “due to land use changes within the upstream part of the Drain watershed comprising a higher concentration of residential lands”. The evidence is that the existing culvert is in good condition and at the proper elevation. It was installed in 1990, 26 years ago, and would have many years of service remaining if not for the need to address the increased flows caused by the creation of many residential lots upstream and the lack of adequate storm water management for those lots. For these reasons, the Tribunal finds that charging any of the culvert replacement cost, including the asphalt surface restoration, to the Miller property is not appropriate.

The Millers did not appeal the benefit assessment of $40 for cleaning the ditch across the front of their property, nor did they appeal the outlet assessment of $106 for part of the cost of cleaning the Drain downstream of the property, nor did they appeal the special benefit assessment of $163 for trucking away the excavated material from the front of their property.

The Arts Appeal

Mrs. Arts’ section 54(1) appeal relates solely to the $6,250 that her property has been assessed as a special benefit for the restoration of the surfaces of her two driveways due to the culvert replacement along the entire south and west sides of her property.

The evidence provided indicates that the two land uses in this watershed are agricultural and rural residential. With such a large number of rural residential properties in the area, it is reasonable to expect that most of the driveways into these properties would have some kind of surfacing other than gravel. Based on Mrs. Arts’ evidence that the County Highways Department recently repaved her south driveway entrance as part of the road paving project, it seems that the County also finds it reasonable for driveways in the area to be paved. Furthermore, on the basis that section 18 of the Act requires the engineer to include bridges and culverts as part of the construction of a drainage works and that, for the purposes of maintenance and repair they are deemed to be part of the drainage works, the driveways constructed over these bridges and culverts should also be considered part of the drainage works and not features that have no effect on the functioning of the drainage works. In addition, the engineer advised that the 1961 report included two driveways as part of the construction at that time.

For all of these reason, the Tribunal agrees with Mrs. Arts that the restoration of her asphalt driveways should be included as part of the costs being paid by the Town and the County for the installation of this new bridge no. 5.

Other Findings

This Tribunal panel finds that the municipality, be it the Town or its predecessor, the Township of Anderdon, allowed significant residential land to be developed in the upstream part of this drainage area without proper stormwater management being required. Fifty-nine lots have been created in this upstream area since the last full Drain report in 1971. It seems that the attempt to control stormwater from the Gardiner Subdivision that was included in the 1991 engineer’s report was unsuccessful and resulted in flooding of Branch A, the ERCF lands and the adjacent residential lots. If proper stormwater management had been required by the municipality as these upstream residential lots were developed, there would not have been any need to increase the size of the Miller and Arts culverts at this time.

Furthermore, in spite of numerous requests having been made in the past, most recently in 2006 and 2011, the Main Drain has not been completely cleaned out for some 45 years, which is much too long a period for an open drain with minimal gradient. This lack of proper maintenance has likely contributed to the flooding experienced on some of the properties on this Drain. The aspects of the Report that address brushing out the entire length of the Main Drain, including the removal of stumps, and bottom only excavation, are maintenance items that are the responsibility of the Town under s. 74. The evidence indicates that the Town has already been given notice of this long-outstanding maintenance issue. Without the required maintenance work, further flooding is likely to occur. The Town is hereby reminded of its obligations under s. 74, and its potential liability under s. 79, and should complete the required maintenance work as described in the Report as soon as possible during this construction season. This includes: the brushing and bottom-only cleanout of the Main Drain, the open portion of Branch B, and the downstream 32 metres of Branch A; the removal of the 750 mm diameter culvert from Branch A; and, the cleaning of all existing access bridges on the Main Drain, in order to provide better outlet for all the affected lands and reduce further flooding until the total project can be completed.

While not directly applicable to the appeals in this particular case, and again considering Section 18 of the Act specifically with respect to bridges and culverts, this panel of the Tribunal prefers an assessment concept that directs a low benefit amount to properties in the downstream sections of the drain, with this benefit amount increasing in the upstream direction, resulting in a high benefit amount to the most upstream property, both for initial cost and for maintenance. This concept considers the fact that the increasing culvert sizes and costs that are required as the drain design moves downstream are entirely due to the increasing flows from the upstream lands (or outlet liability) and are not due to the flow created by the property requiring the bridge or culvert (benefit) and is somewhat similar to the Peralta method of assessing the cost of culverts (as was presented at the 2014 Drainage Engineers Conference). The arbitrary 25 – 75 and 50 - 50 splits that were referred to in this hearing do not conform to this assessment concept.

The Tribunal understands that the ADIP policy does not allow payment of the provincial grant on driveway surface restoration; however, for the reasons stated above, this Panel does not feel that this policy is sufficient justification to assess all of that cost to the property that uses the culvert, in all cases.

With respect to the redistribution of assessments that is required because of the findings above regarding the Miller appeal, it is noted that the property upon which Mrs. Arts’ house and barn are located was severed from her farmland sometime in the past. It is therefore not a new residential property as the buildings and driveways have always existed as part of that farm. Accordingly, this property will not be assessed for bridge 3 and related restoration work in a manner similar to the upstream residential lands.

ORDER OF THE TRIBUNAL

The Tribunal orders that:

1. The appeal by Terry and Jeannine Miller under Section 48(1) of the Act is dismissed.

2. The appeal by Terry and Jeannine Miller under Section 54(1) of the Act is granted. The Miller property, Roll Number 430-05050, shall not be levied a special assessment of $3,750 for the replacement of bridge number 3, rather this amount shall be assessed pro rata to all the upstream non-agricultural lands, excluding roads and the Arts property being Roll Number 430-02750, based on the engineer’s outlet liability assessments for the Main Drain, as indicated in the report. In addition, the Miller property, Roll Number 430-05050, shall not be levied a special assessment of $1,875 for the restoration of the asphalt driveway located over bridge number 3, rather this amount shall be assessed pro rata to all the upstream non-agricultural lands, excluding roads and the Arts property being Roll Number 430-02750, based on the engineer’s outlet liability assessments for the Main Drain, as indicated in the report. The special benefit assessment of $163 to the Miller property for trucking of excavated material, as well as the normal benefit assessment of $40 and the outlet assessment of $106 shall remain as stipulated in the Engineer’s Report.

3. The appeal by Mary Arts under Section 54(1) of the Act is granted. Mrs. Arts’ property, Roll Number 430-02750, shall not be levied a special assessment of $6,250 for the restoration of the asphalt driveways located over bridge number 5, rather this amount shall be assessed 50% to the Town and 50% to the County as part of the installation of the new bridge no. 5.

4. 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 shall include the Engineer’s fees and expenses for preparing the Report, as well as the Engineer’s fees and expenses for attending and participating in the hearing.

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