Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL: McClure Drain – Amended (RE) Township of St. Clair
McClure Drain - Amended (RE) Township of St. Clair 2016ONAFRAAT20
STATUTE: Drainage Act
HEARING: October 31, 2016
DATE OF DECISION: November 8, 2016
011McClure16
NEUTRAL CITATION: 2016 ONAFRAAT 20
amended MCCLURE DRAIN Township of St. Clair
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 Wayne Wilbur of Wallaceburg, Ontario and Dennis Robinson of Sombra, Ontario under 54(1) of the Drainage Act with respect to the McClure Drain, Township of St. Clair.
Before: Jeffrey Hewitt, Vice-Chair; Edward Dries, Member and Lee Holling, Member
Appearances: Dennis Robinson, Appellant Wayne Wilbur, Appellant Paul Courey, Counsel for Wayne Wilbur, Appellant Tim Oliver, Witness for Wayne Wilbur, Appellant Ray Dobbin, R. Dobbin Engineering Inc., Engineer who prepared the report David Neely, Drainage Superintendent, Witness for Respondent
DECISION OF THE TRIBUNAL
Background
The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing in the Township of St. Clair on October 31, 2016. The Engineer’s report dated March 1, 2016 for the McClure Drain was prepared by R. Dobbin Engineering Inc., and submitted by Mr. Ray Dobbin, P. Eng. (“Engineer”). Appeals to the Tribunal were filed by Dennis Robinson and Wayne Wilbur.
Jeff Baranek, Clerk of the Township of St. Clair 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 Municipality filed an Affidavit of Service, dated October 31, 2016, as proof that all parties had been served with the notice of hearing.
As a preliminary matter, Mr. Robinson withdrew his appeal without any objections.
A preliminary motion was filed by the Appellant, Mr. Wilbur, to amend the appeal to also include a Section 48(1) appeal with respect to the allowances received by Mr. Wilbur. Given that the Municipality had no objection to this motion, the Tribunal allowed the amendment to appeal filed by Mr. Wilbur to include Section 48(1).
It should also be noted that, at the commencement of the hearing, Tribunal Member Holling disclosed that the Appellant, Mr. Wilbur, was known to him but that he had no apprehension of bias or conflict of interest or financial dealings with Mr. Wilbur. When canvassed, neither Mr. Wilbur nor his legal counsel objected to Mr. Holling remaining a panel member and the hearing continued with the panel as constituted.
Overview
The McClure Drain is located in the Township of St. Clair. Mr. Wilbur owns property in the N1/2 Lot 29, Con. 9, S1/2 Lot 29, Con. 10, and S1/2 Lot 30, Con. 10 within the watershed of this Drain.
It is not known when the McClure Drain was originally constructed. However, it appears that the last works of repair and improvement carried out on the drain were done so in accordance with a report prepared by H. H. Todgham, dated July 16, 1952. That report recommended the repair and improvement of approximately 6,146 feet of open drain that extended from the outlet into East Otter Creek on the north side of the road allowance between Concessions 9 and 10 (Holt Line), westerly across Lot 30 and then northerly approximately along the line between Lot 29 and 30 to the south side of road allowance between Concessions 10 and 11 (Smith Line). No farm or access culverts or outlet structures were described in that 1952 report.
Mr. Robinson initially filed a request under Section 76 of the Drainage Act for a new Schedule of Assessment on this drain on January 10, 2013. R. Dobbin Engineering was subsequently appointed to prepare the necessary report, which he published on February 20, 2014. After some of the assessed landowners raised a number of issues and concerns about this report, it was considered by Council and referred back to the Engineer on March 26, 2014. Mr. Dobbin filed a revised report dated of August 7, 2014. This revised report was never circulated to the property owners or considered by Council.
On December 12, 2014, Mr. Wilbur filed a request under Section 78 for the repair and improvement of the McClure Drain which generally included deepening and re-sloping the west bank of the drain. Mr. Dobbin was re-appointed to prepare that report. After the requisite site meetings and field works, Mr. Dobbin published a report dated January 7, 2016. A number of changes to the report were requested by assessed owners on this drain at the meeting to consider the report and Council referred the report back to the Engineer to include the changes discussed. The final revised report was published by Mr. Dobbin and dated March 1, 2016 (the “Report”).
The Meeting to Consider the Report was held on March 23, 2016. No formal appeals against the report were received. The bylaw for the McClure Drain was given first and second reading and provisionally adopted by Council on April 4, 2016. The Court of Revision was held on June 20, 2016. The Drainage Superintendent, Dave Neely, attached a copy of a revised Specification of Work for this drain with the notice of the Court of Revision. This revised Specification suggested modifications to Section 8 and 10 of the original specifications.
Mr. Wilbur filed an appeal to the Court of Revision. Mr. Dobbin responded to the appeal at the Court of Revision noting that some of the issues raised were beyond the power of the Court but acknowledged the issue of assessing Smith Line, which was not addressed in the Report. He filed a revised Schedule of Assessment that addressed this alteration on June 28, 2016.
Mr. Wilbur and Mr. Robinson filed appeals under Section 54 to the Tribunal dated July 19, 2016. As noted above, the Tribunal has today allowed Mr. Wilbur to amend his appeal to include an appeal of his allowances under Section 48.
Issues
Based on the evidence and submissions presented to the Tribunal, the issues to be determined are as follows:
- With respect to the Section 48(1)(c) appeals in this matter:
- whether the compensation or allowances provided to the Wilbur lands is fair.
- With respect to the Section 54 appeals in this matter:
- whether the watershed area should be adjusted thus altering the assessment;
- whether the relative weighting of Benefit to Outlet should be adjusted thus altering the assessment to all properties in the watershed;
- whether the ‘easterly culvert’ is an access culvert or an erosion control feature;
- whether the ‘westerly culvert’ be deemed the primary access to the Wilbur lands in Lot 30 thus altering the methodology for assessing the cost related to improve this culvert; and,
- whether the tile end repairs should be assessed as a ‘Special Benefit’ against Wilbur.
Evidence
Mr. Dobbin, Engineer who prepared the report
Mr. Dobbin confirmed that he was originally instructed to prepare a report under Section 76 which only dealt with the re-assessment of maintenance costs on the McClure Drain in 2014. The report was completed, dated February 20, 2014, circulated, considered by the Municipality, referred back, altered, and refiled with the Municipality although it was not distributed to the property owners. Then, due to a request of Mr. Wilbur, he received instructions to undertake more extensive repair and improvement of the Drain under Section 78.
Mr. Dobbin referenced his notes from the site meeting. The notes state that Mr. Langstaff (Roll No. 60-020) requested improvements sufficient to provide outlet for a new, private 300 mm diameter tile on his property that would direct sub-surface flows to the McClure Drain. Further, deepening of the Drain to provide sufficient outlet for all private tile that currently discharge into the Drain was requested. He stated that Mr. Wilbur asked that the Drain be cleaned out, the west bank of the Drain be recut to a 2.0 horizontal to 1.0 vertical slope (2.0 to 1.0 slope) in Lot 29, Con. 10 and the private culvert just east of the 29/30 Lot line be removed and reinstalled at a lower grade.
He testified that he filed the report under Section 78 dated January 7, 2016. Mr. Robinson and Mr. Wilbur expressed concern with regard to parts of the report and it was subsequently referred back, altered and re-published dated March 1, 2016.
The minutes of the Drainage Committee meeting at which that report was considered indicate that, although they questioned various aspects of the report, Mr. Robinson and Mr. Wilbur were satisfied with the content of the report.
He confirmed that the last report identified the fact that the Drain is actually somewhat east of the line between Lot 29 and 30 between the Langstaff and Robinson property. As a result, even though the Drain was being widened to the west, a narrow sliver of the Robinson property which lies west of the west bank of the Drain but east of the lot line would be eligible for allowances under Section 29 and 30. Further, alterations to the brush removal and re-seeding requirements were altered in the final Report. Finally, he confirmed that a provision for the replacement of tile ends was included in the final Report and this cost was to be assessed as a Special Benefit against the property affected.
Mr. Dobbin testified that he conferred with all of the property owners in order to obtain the limits of the drainage area on each property. This was not very straightforward as the tile drainage patterns did not necessarily match the surface slopes. This consultation process was supported by a detailed topographic survey of all of the lands in the watershed as well as the acquisition of aerial photography dating back to 2003.
Mr. Dobbin explained, in detail, his interpretation of all of the in-field and historic data that he gathered that defined the drainage patterns, both surface and sub-surface, on each property within the watershed. He explained the equivalent area factors that he applied to runoff coefficients from tile drainage only, surface drainage only and combined tile and surface drained areas on every property within the drainage area. He testified that he gave particular attention to the drainage area from the lands in Lot 30, Concession 9 (south of Holt Line) as such had been questioned by Mr. Wilbur. He did not agree with the value of affected area shown in the 1952 report but rather relied on the evidence provided by his own field investigations that reduced this affected area to 0.40 hectare (“ha”). Mr. Dobbin provided aerial photography of this area from 2003 and 2006 that appeared to show an open swale or flat ditch extending from the southeasterly corner of the treed area in the northwest corner of the property, easterly towards East Otter Creek. He stated that his field investigation confirmed this drainage pattern.
Mr. Dobbin explained his assessment approach. He confirmed that the first step was to break out the cost of the private culvert modifications, the tile end repairs, and the cost for three defined reaches or sections of the Drain.
He determined that the private access culvert just east of the 29/30 Lot line (the west culvert) consisted of a 9m length of boiler pipe that required lowering in order to meet Conservation Authority and Department of Fisheries and Oceans embedment standards. It also required end treatment as it currently had no end protection and was subject to erosion. He determined that this culvert was a secondary access to the S1/2 Lot 30, Con. 10 and the primary access was at the outlet of the drain at its point of discharge into East Otter Creek (the east culvert). He understood that it was Mr. Wilbur’s expressed request to define the easterly culvert as his primary access and to define the westerly culvert as a private culvert. As such, he recommended that 50% of the cost to lower the culvert would be assessed as a Special Benefit against the S1/2 Lot 30, Con 10 and 50% of this cost assessed as Outlet Liability against the upstream lands draining through this culvert. He also recommended that 100% of the end wall costs be assessed against this same property and that this culvert would remain a private culvert and not be incorporated as part of this drainage works.
In cross-examination, Mr. Dobbin agreed that the easterly culvert appeared to have been installed to protect the outlet of the McClure Drain at the point of discharge into East Otter Creek and was not originally installed under any previous report as an access to the Wilbur property. He also acknowledged that he would have dealt with the westerly culvert differently had it been determined to be the primary access to the Wilbur lands. He confirmed that he would have incorporated the culvert as part of the drain and assessed 50% of both the deepening and end wall construction as a Special Benefit to the Wilbur property and 50% against the upstream lands in Outlet Liability.
Mr. Dobbin determined that the tile outlet pipes should be replaced, only if necessary and as a Special Benefit against the property served by these tile outlets. He expressed doubt that they would require replacement as the owner expressed an interest in doing this work himself or installing a cut-off header that would intercept these tile and take them to a single outlet. As a result, the cost of this work was described as being determined in the field at the time of construction and assessed as a ‘Special Benefit’ against the affected landowner if required.
Mr. Dobbin determined the relative weighted Benefit/Outlet split in the cost of each of the three reaches of drain to be repaired and improved. He determined the weighted splits as follows:
Section 1 (S1/2 Lot 29) – Benefit 65%, Outlet 35% Section 2 (S1/2 Lot 30) – Benefit 60%, Outlet 40% Section 3 (N1/2 Lot 30) – Benefit 60%, Outlet 40%
Mr. Dobbin offered a detailed explanation of the selection of these weighted splits in each section of drain based on the type, extent and cost of the works recommended in each section. He also confirmed that he undertook an overall ‘fairness test’ and made final adjustments in individual assessments to satisfy his desire to develop an assessment schedule that was fair and balanced. He also noted that at the final Court of Revision, although there were questions as to the assessment values, there were no issues expressed regarding the accuracy of the overall drainage area.
When questioned on the weighted Benefit/Outlet splits applied, Mr. Dobbin stated that it was his opinion that they most appropriately reflected the extent and nature of works recommended and the field conditions relative to the drainage patterns on the adjacent properties.
Mr. Dobbin filed a detailed spreadsheet of the calculations for the allowances provided under Section 29 and 30 to the property owners so affected on the Drain. The land allowances provided under Section 29 were calculated on the basis of the calculated area of the land lost to widening of the drain being compensated at a rate of $20,000 per ha. The damage allowances provided under Section 30 for the operation of equipment and spreading of the excavated material was calculated on the assumed use of the entire 10 m wide working corridor on each property multiplied by the length of the channel on each property and the area so calculated being compensated at a rate of $2,250 per ha. The same methodology was applied to the allowance calculations for all properties so affected.
In examination, Mr. Dobbin stated that he typically recommends that open drains be constructed to a 1.5 to 1.0 side slope. However, in this instance, the property owners requested a 2.0 to 1.0 side slope which is recognized as being more stable. He willingly applied this standard and although this resulted in some additional cost to the works, he did not consider it reasonable to assess these additional costs as a ‘Special Benefit’.
Mr. Dobbin was also questioned on an attachment to the report titled Estimated Net Assessment. He agreed that the information shown in this table is not a requirement under the Drainage Act but rather a personal practice based on requests from property owners for their final or bottom-line cost. The table identified the total assessment, potential grants to agricultural lands, the value of allowances provided where applicable and the net cost to each property. He acknowledged that the table could be somewhat misleading to the property owners as grants for the works are not guaranteed and the allowances are not a reduction in overall costs but rather compensation for a negative impact on the various properties.
Mr. Dobbin acknowledged that the limits of the watershed as developed in detail on the topographical plan are not accurately reflected on the watershed plan shown in the Report. He testified that he had prepared a watershed plan for the 2014 report. In preparation for the 2016 Report, he undertook the necessary detailed fieldwork and adjusted the watershed limits. However, the same plan shown in the 2014 report was used in the 2016 Report, which did not depict the watershed adjustments. He confirmed that the actual drainage areas on each property as determined by the detailed topographical survey were used in the calculation of the assessment in the 2016 report. When questioned on the affected area on the Langstaff property in the N1/2 of Lot 29, he confirmed that an equivalent area of 16.19 ha. or 40 acres was assessed.
Mr. Neely, Drainage Superintendent
Mr. Neely confirmed that he has been involved with the works on the McClure Drain for many years, has been on site a number times and has had several discussions with the various property owners. He confirmed that Mr. Wilbur signed the request for repair and improvement of the drain and specifically requested that the west bank of the drain be constructed to a 2.0 to 1.0 slope. Mr. Neely testified that he met with the various owners on the Drain and gathered as much information as was possible related to the private tile and surface drainage systems on each property. This information was then passed on to Mr. Dobbin who undertook additional investigations to confirm the information.
Mr. Neely testified that it was his opinion that the most westerly culvert was not constructed under the 1952 report but rather by Mr. Wilbur or by a previous owner as a private crossing. He also testified that the easterly culvert at the outlet of the drain into East Otter Creek was installed under the 1952 report. However, upon further questioning on this point he was unable to identify any reference to this culvert in the 1952 report.
Mr. Neely stated that he considered the easterly culvert to be part of the McClure Drain and that he replaced this culvert approximately six years ago as a work of maintenance on the Drain and assessed the cost of these works against all of the lands served by this Drain. The culvert consisted of a 12 m length of 1200 mm diameter corrugated steel pipe with sloped ends protected by rock. It was his opinion that this culvert served both as an access to the property north of the Drain as well as an outlet protection works.
Mr. Wilbur, Appellant
Mr. Wilbur described the drainage patterns on the two properties that he owns in the S1/2 of Lot 29 and 30. He was familiar with the drainage patterns on the Robinson property in the N1/2 Lot 30 as well as he had installed a private tile drainage system on that property for its owner. He stated that he had some understanding of the drainage patterns on Langstaff property in the N1/2 Lot 29 as he had done some work on the tile drains on that property for that owner over the years.
Mr. Wilbur was of the opinion that the watershed area shown in the Report was not accurate and that the watershed area shown on the more detailed topographic plan filed by Mr. Dobbin as an exhibit was reasonably accurate. It was his opinion that the drainage area on the Langstaff property should be in the order of 50 ac. as opposed to the 40 ac. shown in the report but admitted that he was not certain of the extent of tile drainage system on this property.
Mr. Wilbur also suggested that the watershed area on the N1/2 Lot 30, Con. 9 should be in the order of 12.1 ha. (30 ac.) as opposed to the 0.40 ha. (1 ac.) shown in the report. He admitted that he has never done any tiling work on the property but has lived close to it and walked the land several times. He claims to have observed the water ‘lay in the bush’ in the northwest corner of the property and believes that the only possible outlet for the surface water is to the north and west toward the McClure Drain. He agreed with Mr. Dobbin’s testimony as to the existence of shallow open swales that appear to carry the water from the bush area to the east toward the East Otter Creek. However, he did not believe that they are deep enough to actually service this corner of the property except in the circumstance of heavy rainfall events.
Mr. Wilbur confirmed that he provided all of the detail regarding the drainage patterns on the properties within the watershed to Mr. Oliver (his expert drainage witness; see below) for his analysis. He also confirmed that he specifically requested the cutting of the west bank of the drain to a 2.0 to 1.0 slope.
Mr. Wilbur clearly stated that he originally installed and has always used the westerly culvert as his primary access to the property in the S1/2 Lot 30, Con 10. It was his evidence that the easterly culvert was originally constructed approximately 30 years ago by the Road Authority as part of the works to replace the Holt Line crossing on East Otter Creek; it was never intended to be an access culvert to his property. With regard to the westerly culvert, Mr. Wilbur acknowledged the need to install end walls on the culvert and expressed doubt that it needed to be lowered.
Mr. Wilbur admitted that he does not understand the assessments and expressed the view that his properties appear to be assessed more than any other property on the drain. He stated that his Benefit assessment appeared to be the highest of all assessed properties on a per acre basis.
Regarding the allowances, Mr. Wilbur stated that he believed that the Langstaff property received a higher damage allowance than his property in the S1/2 Lot 30, Con. 10. He stated that the damage allowances should be developed on the basis of providing compensation for the use of the entire working corridor defined in the Report, whether or not excavated material is actually placed on the working corridor.
Mr. Oliver, Witness for the Appellant
Mr. Oliver is a Professional Engineer employed by Dillon Consulting Ltd. With the consent of the Municipality, Mr. Oliver was qualified as an expert in works under the Drainage Act. Mr. Oliver confirmed that he was retained to review and comment on the assessments for the works as put forth by Mr. Dobbin in the Report. He stated that his review did not focus on any part or portion of the cost of the works but rather just focused on the assessment.
Mr. Oliver recognized that the approach to the assessment as prepared by Mr. Dobbin was an industry-wide, accepted methodology, generally referred to as the ‘Todgham Method’. In this method, detailed costs for specific sections or reaches of a drain are developed and these section costs are then divided as between Benefit and Outlet to the adjacent lands within the section and Outlet Liability assessments against the lands upstream of the section. The section costs may be adjusted by special works carried out within a section that may be assessed directly to a property within the section as a Special Benefit.
In Mr. Oliver’s analysis, he determined the relative weighted Benefit/Outlet split in the cost of each of the three reaches of drain to be repaired and improved to be as follows:
Section 1 (S1/2 Lot 29) – Benefit 25% Outlet 75% Section 2 (S1/2 Lot 30) – Benefit 50% Outlet 50% Section 3 (N1/2 Lot 30) – Benefit 75% Outlet 25%
He stated that, in his opinion, the relative weighted cost splits that he provided more accurately reflect the fairness of a lower value of the drain to the downstream lands versus the higher value of the drain provided to the upstream lands. He believed this approach insured that the value of Benefit assessments against the upstream lands, on a per acre basis, was greater than that applied to the downstream lands. He stated that this is not the case with the Dobbin assessment methodology. When questioned on this aspect of assessment, Mr. Oliver admitted that, in his practice, he does not calculate Benefit assessment on a per acre basis as the development of the Benefit assessment is not related to land area.
With regard to the relative Benefit/Outlet cost splits, when questioned, Mr. Oliver stated that the cost splits applied by Mr. Dobbin were not wrong but that he had just taken a different approach to developing these splits. It was Mr. Oliver’s opinion that his approach would be more widely accepted by engineers across the province than Mr. Dobbin’s approach.
Mr. Oliver suggested that all costs related to the re-shaping of the banks to a 2 to 1 slope, including the additional excavation, restoration, allowances, tile repairs and engineering cost should be separated from the general costs of the works in Section 2 and levied separately 50% against the adjacent lands in Section 2 and 50% against the upstream lands in Section 3.
Based on Mr. Oliver’s approach he concluded that the upstream lands in the N1/2 of Lot 29 and 30 plus Smith Line should pay approximately 66% of the total project cost as opposed to the approximate 55% as proposed by Mr. Dobbin.
Mr. Oliver confirmed that he applied a drainage equivalency factor to the drainage area from lands that may be tile drained only, surface water drained only or both in the same fashion as Mr. Dobbin. He offered no criticism of equivalent areas shown to be affected by this drainage works as set out in the Dobbin Report. However, he did prepare a second alternative assessment schedule that incorporated the changes to the watershed as suggested by Mr. Wilbur. He admitted that he did not verify these altered watershed boundaries. In fact, he admitted that he had not visited the site nor taken any field measurements. He developed his testimony based only on the Report, on information provided by Mr. Wilbur, and on Google mapping and street view.
Mr. Oliver expressed the opinion that the engineer is currently obliged under the Act to incorporate any structure found in the drain, particularly when works are done to it, as part of the drainage works. He stated that no works at all would be required on the westerly culvert if the Drain were simply maintained as a ‘standard cleanout’, which he defined to be a deepening of approximately one foot. In his opinion, embedment to meet Conservation Authority and Department of Fisheries and Oceans standards would also not be necessary.
When questioned further on potential works on the westerly culvert, he conceded that he would recommend end treatment on this culvert in any event in order to achieve erosion protection for the structure and to achieve a standard drivable top width of approximately 7.3m. He also admitted that he did not have invert elevations of the culvert in order to verify if a ‘standard cleanout’ would be above or below the invert of the existing culvert.
When questioned on his practice in assessing the repair of tile ends, he confirmed that he has assessed that type of work as a Special Benefit against the affected property.
Findings and Analysis
Easterly Culvert
The Appellant argued that the most easterly culvert in the McClure Drain at its outlet into the East Otter Creek was not the primary access to his farm property and was originally installed by the Road Authority for road improvement purposes and erosion protection at the outlet. Mr. Dobbin’s evidence was that Mr. Wilbur requested that this culvert be identified as his primary access. Although the Drainage Superintendent replaced the original culvert approximately six years ago and charged the cost of this work against the owners on the McClure Drain, there was no evidence provided to confirm that it was ever part of this drainage works. The Tribunal accepts Mr. Wilbur’s evidence on the origin and use of this culvert. The Tribunal agrees that this culvert should be made part of the Drain and defined in this Report and that it should be identified as an erosion control feature on the Drain and not the primary access to the Wilbur lands.
Westerly Culvert
Mr. Wilbur claimed that he originally installed the westerly culvert, which has always been the primary access to his farm property. Mr. Wilbur and Mr. Oliver expressed the opinion that the culvert did not have to be lowered but both accepted the fact that end walls are required on the culvert to prevent erosion and produce a stable driving surface that meets current standards. Mr. Oliver did not support the notion that the culvert had to be lowered to meet current embedment requirements. Neither Mr. Wilbur nor Mr. Oliver provided any evidence to confirm the existing invert elevations of the culvert relative to the now proposed design gradient. Both expressed the view that the culvert cannot remain a private culvert and must be made part of the Drain.
The Dobbins testimony was that the culvert had to be lowered and fitted with end walls to meet current design standards of embedment, erosion protection and drivable top width. He confirmed that he would have incorporated this culvert as part of the Drain had he determined it to be the primary access to the property.
The Tribunal prefers the evidence provided by Mr. Dobbin as to the need to lower the culvert and install end walls on it but also concurred with the Appellant’s position that the culvert must be made part of this Report.
Special Benefit Assessment on Westerly Culvert
The Appellant questioned the assessment of 100% of the cost of the end treatment against the property served by the culvert. Mr. Dobbin confirmed that if the culvert was deemed to be the primary access to this property and was included as part of the report, he would have assessed both the culvert modifications and the end treatment costs 50% as a Special Benefit to the property served by the culvert and 50% to the upstream lands.
The Tribunal agrees with that approach.
Watershed Area
Mr. Wilbur argued that that watershed area is incorrect as additional lands should be included in the N1/2 Lot 29, Con. 10 and the N1/2 Lot 30, Con. 9. This opinion was based on his local knowledge. Mr. Wilbur and Mr. Oliver disagree with the limits of the watershed as shown on the plan in the Report.
Mr. Dobbin provided strong evidence in the form of detailed topographical survey data on all of the properties in the watershed. He also confirmed that direct evidence of subsurface drainage systems was obtained from interviews with the property owners. It is his opinion that the watershed is accurately defined but also admits that the depiction of the watershed on the plan in the Report is not accurate. He confirmed that the detailed watershed area as determined in the field was used as the basis for his assessment. The Tribunal accepts the evidence of Mr. Dobbin with regard to the watershed definition based on measured field data but also accepts that a more accurate definition of the watershed on the plans is necessary in the Report in order to better understand the Report.
Assessment Technique
The testimony of both Mr. Oliver and Mr. Dobbin confirm that they have applied an assessment technique common to the industry that is generally referenced as ‘the Todgham Method’. This method involves separating the costs of specific works that would be assessed as a Special Benefit, dividing the drainage works into various sections, developing the cost of the works within those reaches, and dividing the costs as between Benefit assessment and Outlet assessment within the reach and to the upstream lands. A crucial component of this approach is the development of the Benefit/Outlet cost split within each section, which directly determines the order of magnitude of cost that will be levied against adjacent lands and the upstream lands on a section by section basis. Mr. Dobbin provided a detailed analysis of his approach and the Benefit/Outlet cost splits that he applied. Mr. Oliver did the same although the Benefit/Outlet cost splits that he supported differed from those of Mr. Dobbin. Generally, the splits suggested by Mr. Oliver resulted in a large portion of the project cost being shifted to the upstream properties in the N1/2 Lot 29 and 30, Con. 10.
Mr. Oliver also offered an alternative assessment analysis that incorporated the additions to the watershed area as suggested by Mr. Wilbur. Mr. Oliver admitted that he did not confirm the validity of these changes in the watershed area. As the additions to the watershed area were never proven, the Tribunal gives no consideration to this alterative assessment.
Mr. Dobbin developed his cost splits based on his historical research of the Drain, personal field investigations, surveys and discussions with the property owners and Drainage Superintendent. Mr. Oliver reviewed the past report but was never on site, never confirmed any elevations, nor did he have discussions with landowners other than the Appellant. When questioned, Mr. Oliver conceded that Mr. Dobbin’s splits were not wrong but rather a difference of opinion. And while Mr. Oliver stated that his approach would be the preferred approach used by engineers across the province, there was no independent evidence supporting that position. Such a statement is self-serving; it would be ironic if Mr. Oliver stated that the approach he used wasn’t the preferred one.
The Tribunal accepts, as stated by both engineers, that the general overall approach to drainage assessments is the application of the Todgham Method. However, with respect to its application to this Drain, the Tribunal prefers the methodology employed by Mr. Dobbin. It is the professional responsibility of the engineer to consider all aspects of the drainage works before developing the most appropriate cost distribution that is fair and equitable based on all of the information available. The Tribunal is satisfied that Mr. Dobbin considered and applied that requirement.
Special Benefit for Tile Outlets
The Appellant opposed the Special Benefit levied against his property as shown in the report for the replacement of tile outlet ends. Mr. Dobbin’s testimony was that the Report clearly sets out a process by which these works are determined in the field at the time of construction, tracked separately, costed separately and levied as a Special Benefit based on actual works. Mr. Oliver stated that, in his practice, he also has assessed tile outlet repairs as a Special Benefit. The Tribunal accepts the approach as set out in the Dobbin report.
Allowances under Section 30
Mr. Wilbur argued that the allowance provided to the affected properties along the drain should be calculated on a consistent basis. He expressed the opinion that some property owners received a higher rate per acre as a damage allowance. However, the evidence of Mr. Dobbin directly contradicts that position. The detailed calculations provided by Mr. Dobbin illustrate that all lands within the 10 m working corridor on each property were provided the same rate per acre damage allowance. The Tribunal accepts that evidence.
Tribunal Concerns
First, as part of the evidence filed, it appears that changes had been made to the Specifications of Work that were attached to the report resulting from discussions at the meeting to consider the Report. Drainage Superintendent, Dave Neely, circulated the altered Specifications of Work to the assessed landowners on the drain in correspondence dated April 19, 2016. The Tribunal notes that the revised Specifications were circulated after the bylaw for the works had been given first and second reading. There is no provision under the Act to have revised specifications incorporated into a report in this fashion.
Second, Mr. Dobbin was criticized for including as an attachment to his Report a table labeled “Estimated Net Assessment”. This table shows the value of the total assessment against each property, the potential grant to be received by the property, the allowances to be received by the property and the resulting net cost to the owner. It was pointed out that this information may be inaccurate and misleading to the property owners as grants are not guaranteed and an allowance is compensation for a negative impact and should not be considered a cost reduction. Mr. Dobbin confirmed that this information is not a requirement under the Act. The Tribunal agrees that the information provided in this table is not necessary under the Act and should not form part of the Report. The Tribunal discourages the inclusion of any such table within reports under the Act.
Order of the Tribunal
The Tribunal therefore orders that:
The appeal of Dennis Robinson is withdrawn.
The appeal of Wayne Wilbur under Section 48(1) and Section 54(1) be granted in part.
The Engineer shall revise the March 1, 2016 Report as follows:
- The Report shall incorporate the most easterly culvert in the McClure Drain and define it as an erosion control feature and describe the physical features of this culvert in detail to simplify future maintenance.
- The Report shall incorporate the most westerly culvert in the McClure Drain and define it as the primary access to the S1/2 Lot 30, Con. 10.
- The Report shall alter the Special Benefit assessment for the most westerly culvert to include 50% of the cost to lower the culvert and supply and install end walls on the culvert. The remaining 50% of the cost shall be levied as an Outlet Liability against lands upstream of the culvert.
- The plan of the watershed as shown in the Report shall be altered to accurately reflect the watershed as verified in the field.
- The total cost of the revised Report shall be adjusted to reflect the inclusion of additional engineering fees and expenses.
- In developing the revised assessment, the Engineer shall apply exactly the same percentage splits as between Benefit and Outlet on a section-by-section basis as was applied in the Report date March 1, 2016.
- A revised Schedule of Assessment for Maintenance shall be developed to reflect content of the revised Report.
- The Specification of Work as attached to correspondence from David Neely dated April 19, 2016 shall be made part of the revised Report.
- The table titled ‘Estimate of Net Cost’ shall be removed from the Report.
- The revised Report shall be dated the same date as this decision.
Once the revised Report has been completed, the Tribunal directs that the amended Report be circulated to all assessed owners on the McClure Drain. The revised Report shall not be brought before the Drainage Board, Council or the Court of Revision.
The non-administrative costs of the Municipality 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, the revised Report as well as the Engineer’s fees and expenses for preparing for and attending the Tribunal hearing.
There shall be no other Order as to costs and all parties shall be responsible for their own costs.
Dated at Tecumseh, Ontario this 7th day of November, 2016.
Amended at Guelph, Ontario this 8th day of November, 2016.