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:
Knechtel Municipal Drain 2016 - Branch ‘A’ (RE)
Municipality of Huron East
Knechtel Municipal Drain 2016 - Branch ‘A’(RE) Municipality of Huron East 2016ONAFRAAT21
STATUTE:
Drainage Act
HEARING:
November 1, 2016
DATE OF DECISION:
November 9, 2016
012Knechtel16
NEUTRAL CITATION:
2016ONAFRAAT21
Knechtel Municipal drain 2016 – Branch ‘A’ Municipality of Huron East
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 Paul and Beverley Gilham, of Listowel, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision on the Knechtel Municipal Drain 2016 - Branch ‘A’ in the Municipality of Huron East.
Before: Paula Lombardi, Vice-Chair; Andrew McBride, Member; Richard Smelski, Member
Appearances: Paul Gilham – Appellant Brad Bunke, P. Eng. – GM BluePlan Engineering Limited – Engineer who prepared the Report Matt Ash, Witness for the Respondent
DECISION OF THE TRIBUNAL
The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing in the Municipality of Huron East, Seaforth, Ontario on November 1, 2016. The Engineer’s Report dated May 20, 2016 for the Knechtel Municipal Drain 2016 – Branch ‘A’ (the “Report”) was prepared by Brad Bunke, P.Eng. of GM BluePlan Engineering Limited (the “Engineer”). An appeal was filed by Paul and Beverley Gilham under section 54(1) of the Drainage Act (“Act”).
Brad Knight, Clerk of the Municipality of Huron East, 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 dated October 31, 2016 as proof that all parties had been served with the notice of hearing.
Background
The Knechtel Municipal Drain, consisting of a Main Drain and a Branch A were initially constructed after a report was prepared for the former Township of Grey by James A. Howes, O.L.S. in 1956. The Main Drain is an open drain for its entire length. The downstream 260 metres of Branch A is also open drain while the upstream 290 metres of Branch A consists of 200 mm diameter clay tile that terminates in a catch basin at the property line between lots 34 and 35 in Concession 2. The only recorded work completed on Branch A since its original construction appears to be a repair of the tile outlet in 1976.
Branch A is constructed entirely in the south part of Lot 34, on the property owned by William and Linda Holmes, and provides direct outlet for that property as well as the northwest portion of the property located at Lot 35, owned by Hugh Haverkamp. At its north end, the Haverkamp property fronts onto Jamestown Road. There is a culvert, located under Jamestown Road that conducts water from the north to the south onto the Haverkamp property.
The property owned by Paul and Beverley Gilham (the “Appellants”) is located north of Jamestown Road in the southerly parts of Lots 69 and 70 in Concession 1 (“Gilham property”). Both the Haverkamp and the Gilham properties are bounded on the east by Road 172.
In 1956, land situated to the west of the Gilham property was included within the watershed of Branch A. However, over the past 60 years, this westerly property has been substantially excavated as an aggregate operation resulting in significant changes to the topography at that location. These changes have resulted in the aggregate property no longer sloping towards Branch A.
In addition, sometime before 1990, the previous owner of the Gilham property installed a large closed drain, in a northerly direction against the grade. The purpose of the closed drain was to conduct the subsurface water from the Gilham property into the depressed area created by the aggregate operation.
Issue
Should the assessment applied to the Gilham property be either reduced or eliminated under section 54(1) of the Drainage Act for the improvement and maintenance of Branch A??
Evidence
Brad Bunke - Engineer
Mr. Bunke was appointed as the Engineer pursuant to the provisions of section 78(1) of the Act in November 2015. When Mr. Bunke inspected the watershed he observed that the tile portion of Branch A had deteriorated and there were a number of blow-outs evidenced on the Holmes property.
The Engineer is of the opinion that the 60 year old tile is undersized for current drainage requirements. Due to the size of the existing tile, the Engineer recommends the installation of a new tile drain using a drainage coefficient of 38 mm of runoff in a 24 hour period resulting in a 450 mm tile being required for the area. The Engineer also recommend the installation of a new catch basin at the upstream end of the tile drain. The total estimated cost of the drainage work is $30,500.
The Engineer noted that the downstream part of the drainage area of Branch A was not defined in the 1956 report. Upon defining this area, the Engineer concluded that most of the Gilham property should be incorporated into the Branch A watershed but determined that it was appropriate to exclude the aggregate operation abutting the Gilham property. The watershed boundary that the Engineer established across the Gilham property coincides with the watershed boundary established in 1956.
The majority of the Haverkamp property located within the drainage area is systematically underdrained and is connected to the upstream end of Branch A, with the exception of 2.5 hectares that outlets to the Main Drain.
The Engineer testified that the Gilham Property is currently underdrained to the northwest into the adjacent aggregate operation. In calculating the assessments, the Engineer applied a modified Todgham method using equivalent area factors of 1.0 for agricultural lands, 3.3 for gravel roadways and 0.5 for lands drained out of the watershed.
While the Engineer concluded that 18.91 hectares of the Gilham Property is situated in the watershed of Branch A, that area was reduced to 9.45 ha for assessment purposes. The Engineer testified that, in his opinion, the approach used in calculating assessments is both fair and reasonable.
The Engineer indicated that a small portion of the Gilham property is treed; however, he did not consider it a wooded area nor did he consider it to be of significance since the entire property area was reduced by 50% for assessment purposes.
An aerial photograph of the watershed area was provided showing one-metre contour lines. Based on this contour mapping, there is a downward slope of over three (3) metres across the Gilham property toward Branch A.
A culvert is situated under Jamestown Road through which the surface water from the Gilham property passes when flowing in a southerly direction toward Branch A. The Engineer testified that this culvert was in good condition with no obstructions. Photographs of this road crossing were provided to the Tribunal in order to substantiate this flow path.
The Engineer indicated that, based on his review of the Gilham property and the site conditions, he was not aware of any surface water inlets connected to the drainage system located on the Gilham Property.
Mr. Bunke relied upon section 23(1) of the Act and concluded that, in his opinion, the proposed work will indirectly provide the Gilham property with an improved outlet through the swale or low-run across the Haverkamp property to the upstream end of Branch A.
Mr. Bunke drew the Tribunal’s attention to Appendix A, the Schedule of Estimated Assessments, and identified two typographical errors under the heading “Adjusted Area” and requested that the Tribunal, in its order, correct these errors.
Paul Gilham – Appellant
Mr. Gilham testified that he has owned the property since 1990 and was not responsible for the installation of the existing drainage system on it as it was constructed by the previous owner. Mr. Gilham has constructed a house and large shed in the northeast portion of the property along the southerly edge of a treed area. Mr. Gilham advised the Tribunal that this area is heavily forested and lumber companies among others consistently contact him as they are interested in harvesting the trees from the area.
Mr. Gilham advised the Tribunal that he connected the basement drain from his house to the main tile and, at that point, it was a 10 inch diameter pipe. Mr. Gilham also indicated that he installed one small catch basin and one infiltration pit in the area of the buildings and that both are connected to the underdrainage system.
Mr. Gilham testified that his land has “an open bottom” and creates very little surface water runoff. In Mr. Gilham’s opinion, the private tile drain on his property works well and takes all of the water from his property to the northwest where it outlets into the pond in the neighbouring gravel pit and as a result, his land drains well and should not be included as of part Branch A.
Mr. Gilham testified that the proposed improvement to Branch A will not give his property an outlet. Mr. Gilham advised the Tribunal that the property does not need an outlet nor does he want an outlet to Branch A.
Mr. Gilham testified that his assessment should be eliminated under section 54(1) of the Drainage Act on the basis that his property is underdrained out of the watershed area and receives no benefit
Mr. Gilham requested that the Tribunal eliminate the assessments applied to his property for the proposed improvement to and future maintenance of this Drain.
Matt Ash – Witness for the Respondent
Mr. Ash took the series of photographs that were entered as evidence by Mr. Bunke and provided details regarding when and where these were taken.
Findings and Analysis:
The Tribunal accepts the evidence of the Engineer in this matter that the assessments are fair and reasonable.
Due to a fall of over three metres across the Gilham property, surface water from that land is directed to Jamestown Road, where it passes through the culvert onto the Haverkamp property, where it is either collected by the systematic tile drainage system and conducted to the Branch A tile, or runs overland to the upstream end of Branch A and enters the catch basin.
Taking into consideration the three metre fall on the Appellants property, the Tribunal considers the assessment approach taken to be fair and reasonable. The Engineer reduced the assessed area of the Gilham property by 50% due to a portion being drained out of the watershed area. The Appellants did not provide any evidence to contradict the assessment approach taken by the Engineer. The Tribunal notes that this is a case where section 23(1) of the Act applies, that is, an improved outlet has been indirectly provided to the Gilham property.
Orders of the Tribunal
For the reasons stated above, the Tribunal orders as follows:
The appeal by Paul and Beverley Gilham under Section 54 of the Act is denied.
The totals of the columns entitled Adjusted Area in Appendix A shall be corrected to read 78.12 ac. and 31.61 ha.
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, 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 London, Ontario this 9th day of November, 2016