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: West Branch Delisle Drain (RE) Town of Tecumseh
West Branch Delisle Drain (RE) Town of Tecumseh 2016ONAFRAAT24
STATUTE: Drainage Act
HEARING: November 21, 2016
DATE OF DECISION: December 12, 2016
016Delisle16
NEUTRAL CITATION: 2016ONAFRAAT24
WEST BRANCH DELISLE DRAIN Town of Tecumseh
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 Charles McLean and Carol McKeegan of Maidstone, Ontario under section 54(1) of the Drainage Act with respect to the West Branch Delisle Drain in the Town of Tecumseh.
Before: John O’Kane, Vice-Chair; Andrew McBride, Member and Richard Smelski, Member
Appearances: Charles McLean, Appellant Edwin Hooker, Counsel for the Town of Tecumseh Gerard Rood, Rood Engineering Inc., Engineer who prepared the report
DECISION OF THE TRIBUNAL
Background
The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing on the appeals filed by co-owners Charles McLean and Carol McKeegan (“McLean/McKeegan”) in the Town of Tecumseh (the “Town”) on November 21, 2016.
The appeals challenged certain revisions to the assessments made by Gerard Rood, P. Eng., (the “Engineer”), for consideration at the Court of Revision, arising from the Engineer’s report dated April 28, 2016 for the West Branch Delisle Drain (the “Report”). Those revisions to the assessments were instigated by property severances approved by the Town.
Laura Moy, Clerk of the Town 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 Tribunal received the Affidavit of Service, dated November 7, 2016, as Exhibit 1 proving that all parties assessed on the drain had been served with the notice of hearing.
At the hearing, Mr. and Mrs. O’Connor, who are also landowners assessed on the drain, sought the opportunity to give sworn evidence. Their evidence concerned what they described as unfairness against them as they had maintained the portion of the drain that crossed their land without any compensation for many years. They confirmed that they had not appealed the assessments made in the Report or the revised assessments approved at the Court of Revision.
At the hearing, Mr. Corcoran, another landowner assessed on the drain, sought the opportunity to make an unsworn informal statement. His statement concerned what he described as unfairness in the assessments or revised assessments approved by the Court of Revision. He confirmed that he had not appealed the assessments made in the Report or the revised assessments approved by the Court of Revision.
Counsel for the Town raised a preliminary objection about the McLean/McKeegan appeals as they related to the severed property on the basis that the property had been conveyed by McLean/McKeegan to Spidalieri and Broadfoot, since the Report was prepared. The objection was that, since the McLean/McKeegan interest in that severed lot had been conveyed away, McLean/McKeegan no longer had standing to continue with that aspect of the appeal. In support of that argument, Counsel referred the Tribunal to subsection 5(3) of the Conveyancing and Law of Property Act, R.S.O. 1990, c.C.34. That subsection provides that “all the estate, right, title, interest …” passes from seller to buyer and, therefore, the Town argued the right to the appeal passed to Spidalieri/Broadfoot. The Town also produced written confirmation from Spidalieri/Broadfoot that they had no interest in the issues under appeal.
The Tribunal overruled the Town’s preliminary objection since under the Drainage Act, and in particular in subsection 52(1), any assessed landowner has the right to appeal to the Tribunal about the assessments of “any land” being either too high or too low. Therefore, McLean/McKeegan have a statutory right under the Drainage Act to appeal the assessments relating to the lands of any other landowner assessed on the drain, including the Spidalieri/Broadfoot lands.
Overview
In February 2014, the Town commissioned Rood Engineering Inc. to prepare a Report addressing the repair of and improvements to the West Branch Delisle Drain, a long standing open drain. The Town’s authority to commission the Report flowed from section 78 of the Drainage Act.
The Report proposed repair and improvement works along the West Branch Delisle Drain and those works are not in issue in these appeals.
As part of the Report, the Engineer was required to develop an assessment schedule to apportion the costs of the repairs, improvements, incidentals and allowances in accordance with the Drainage Act, which in this case were estimated at $177,000.00.
When developing the assessments, the Engineer considered the assessment schedule prepared in the 1970 West Branch Delisle Drain Report of Engineer C.G.R. Armstrong as a starting point, pursuant to section 34 of the Drainage Act. However, the Engineer explained that the assessment apportionment of that historical report required updating to reflect new uses of lands along the drain and to reflect many property severances since 1970.
The Engineer explained that when the Town was considering the Report, two proposed land severances were also under consideration. The two severances related to property roll number 460-00600, a 50.87 acre property owned by the Appellants, Charles McLean and Carol McKeegan. The McLean/McKeegan property is described as agricultural land and is actively farmed.
One of the severances was to create an entirely new 0.96 acre lot from the southern portion of the McLean/McKeegan property fronting along South Talbot Road and immediately adjacent to the Dawson Drain. The Dawson Drain runs along the north side of South Talbot Road and intersects with and drains into the West Branch Delisle Drain. That proposed severance would, once approved by the Town, become the Spidalieri/Broadfoot property referred to earlier in this decision as a Preliminary Matter. The second of the proposed severances was to sever 0.69 acres from the McLean/McKeegan property and add it to the existing property of Michael and Deborah Bissonnette, located at the south-western limit of the McLean/McKeegan property adjacent to South Talbot Road, near where the Dawson Drain intersects with and drains into the West Branch Delisle Drain. The Bissonnette property is bounded on its southern limit by South Talbot Road and the Dawson Drain runs adjacent to the southern limit of the Bissonnette property. The Bissonnette property is also bounded on its western limit by the West Branch Delisle Drain.
As part of its consideration of the Report, the Town directed that the Engineer revise the assessment schedule in the Report to reflect the potential new Spidalieri/Broadfoot lot, the enlarged Bissonnette property, and the reduced size of the McLean/McKeegan property and present that revised schedule at the Court of Revision, in the event that the severances were granted.
By the time of the Court of Revision, the Town had granted the severances and, in accordance with his instructions, the Engineer presented a revised assessment schedule to the Court of Revision. The Engineer’s approach in that revised assessment schedule was to re-calculate the outlet flows associated with the severed lots and then re-apportion the estimated costs of $177,000.00 across the entire West Branch Delisle Drain. In simple terms, the Engineer increased the assessments on the severed lots by $662.00, thereby creating a comparable reduction over the balance of the lands assessed on the drain. The Engineer apportioned that reduction of $662.00 on a pro-rated basis across all of the other the lands assessed on the West Branch Delisle Drain. That reapportionment resulted in a reduction in the McLean/McKeegan assessment of $54.00.
McLean/McKeegan appealed challenging that the Engineer’s revised assessment schedule and the corresponding assessment reduction to their property was not fair and was not reasonable.
Issues
- What is a fair and reasonable assessment in the circumstances of this appeal?
Evidence
Gerard Rood was qualified as a professional engineer to give expert opinion evidence in the discipline of drainage engineering.
The Engineer testified that he approached the assessment exercise relying on the assessment schedule created in the 1970 report of engineer Armstrong as a baseline and then made appropriate adjustments to reflect changes in land use since 1970, including the creation of new residential lots, by way of land severances. The Engineer testified that he accepted that 1970 assessment schedule as being “fair and equitable then” as his starting point.
Assessments under the Drainage Act are essentially comprised of three components; benefit, outlet liability and injuring liability. However, in the context of these appeals, the only relevant components were benefit and outlet.
“Benefit” is defined in the Drainage Act as:
“. . .the advantages to any lands, . . . from the construction, improvement, repair or maintenance of a drainage works such as will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages relating to the betterment of lands, roads, buildings or other structures”
“Outlet liability” is defined in the Drainage Act as:
“. . . the part of the cost of the construction, improvement or maintenance of a drainage works that is required to provide such outlet or improved outlet.”
The Engineer explained that his approach to assessing benefit was that because the severed lots were proximate to the West Branch Delisle Drain, they would benefit from the drain repair and improvement.
The Engineer explained that, because the new lots were smaller than their “parent” agricultural property, they had an impact on the outlet assessment as those smaller properties, with greater impermeable surfaces, would contribute higher water run-off into the drain.
The Engineer also testified that both of the new severed properties drained into the Dawson Drain along South Talbot Road rather than into the West Branch Delisle Drain but, due to their “proximity” to the West Branch Delisle Drain, those properties enjoyed a benefit.
The Engineer also explained that he developed assessments that treated similar properties similarly. For example, he compared the assessments of the two newly severed lots with each other and with other nearby lots of similar size and use. As a further example, he compared the assessments of the McLean/McKeegan lands with the Halford farm property that lies to the west and adjacent to the McLean/McKeegan property. In fact, the West Branch Delisle Drain forms the boundary between the Halford property and the McLean/McKeegan property.
The Engineer also explained that the benefit assessments that he developed were not based on frontage along the West Branch Delisle Drain, but rather based on an “envelope” on either side of the drain.
The Engineer’s evidence was that when he developed the assessments in the revised schedule presented at the Court of Revision, he acted consistently, in accordance with accepted practice and that he believed he was fair and balanced to all properties on the drain.
The Engineer was unable to explain precisely how near or far the concept of “proximity” extended around the drain nor was he able to explain precisely how large or how small his notional “envelope” was around the drain.
The Appellant, Charles McLean, explained in his appeals that, while his property enjoyed an overall reduction in assessment of $54.00, when the assessment per acre of land was compared under the assessment schedule in the Report to the revised assessment schedule at the Court of Revision, his property assessment actually increased by $6.65 per acre.
Charles McLean explained that with the severances, his overall property holding was reduced by 3.3% and yet his overall assessment, in the revised assessment schedule that reflected those severances, was reduced by just 0.5%.
Charles McLean explained that, when his property after the severances (49.20 acres) was compared with the Halford property across the West Branch Delisle Drain, the Halford property was larger (50.0 acres) and enjoyed more frontage along the West Branch Delisle Drain, yet the McLean/McKeegan outlet liability assessment was only $3.00 less than the Halford outlet assessment. Charles McLean asked how those comparative assessments could reflect fairness.
Charles McLean also asked that, since the new severed lot of Spidalieri/Broadfoot does not even drain directly into the West Branch Delisle Drain, how does that parcel benefit? His position was that newly severed lot should not have any assessment for benefit on the West Branch Delisle Drain.
Findings and Analysis
The Tribunal can deal summarily with the issues raised by Mr. and Mrs. O’Connor and Mr. Corcoran. None of those parties appealed their assessments and therefore, they have no appeal before the Tribunal. In these circumstances, and in the absence of proper appeals, as such, the Tribunal is not required and, therefore, did not make any findings regarding their points about unfairness.
The Drainage Act directs the statutory duties of the Engineer.
Under section 11 of the Drainage Act, the Engineer’s duties in respect of the Report are set out as follows:
“The engineer shall, to the best of the engineer’s skill, knowledge, judgment and ability, honestly and faithfully, and without fear of, favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon.”
Specifically in the context of assessments, the Drainage Act directs the Engineer as follows:
“21. The engineer in the report shall assess for benefit, outlet liability and injuring liability, and shall insert in an assessment schedule, in separate columns, the sums assessed for each opposite each parcel of land and road liable therefore.”
“22. Lands, roads, buildings, utilities or other structures that are increased in value or are more easily maintained as a result of the construction, improvement, maintenance or repair of a drainage works may be assessed for benefit.”
“23.(1) Lands and roads that use a drainage works as an outlet, or for which, when the drainage works is constructed or improved, an improved outlet is provided either directly or indirectly through the medium of any other drainage works or of a swale, ravine, creek or watercourse, may be assessed for outlet liability.”
“23(3) The assessment for outlet liability and injuring liability provided for in subsections (1) and (2) shall be based upon the volume and rate of flow of the water artificially caused to flow upon the injured land or road or into the drainage works from the lands and roads liable for such assessments.”
In argument, the Town relied upon excerpts from a well-regarded paper about drainage assessments authored by E.P. Dries and H.H. Todgham. That authority is well known and widely accepted throughout the drainage community. The Town focused that portion of its argument on the question posed in that assessment article: “Is it fair to all concerned? Can I compare the assessments on any two properties and say that, relatively speaking, they are being fairly charged for the value they will derive?”
While designing drainage works is an exercise that frequently calls on the expertise of professional engineers, the development of assessments is a judgment that blends some science with fairness and common sense. As a result, it is not unusual to find that reasonable people can and frequently do differ about the fairness of assessments under the Drainage Act.
The very question posed in the assessment paper relied on by the Town was posed to the Engineer in the context of the McLean/McKeegan property and the Halford property. The Engineer testified that those two properties were the most comparable to each other on the West Branch Delisle Drain.
However, when the benefit assessment per acre of the McLean/McKeegan property and the Halford property are compared in the assessment schedule in the Report and the revised assessment schedule at the Court of Revision, the following table illustrates the comparison results.
McLean/McKeegan Property Original Benefit Assessment ($7,562.00 on 50.87 ac) on per acre basis
Halford Property Original Benefit Assessment ($7,562.00 on 50.00 ac) on per acre basis
$148.65 per acre
$151.24 per acre
McLean/McKeegan Property Revised Benefit Assessment ($7,522.00 on 49.20 ac) on per acre basis
Halford Property Revised Benefit Assessment ($7,522.00 on 50.00 ac) on per acre basis
$152.89 per acre
$150.44 per acre
The Engineer conducted the above calculations during the hearing after suggesting that he would expect to see comparable results for the McLean/McKeegan property and the Halford property, given their comparability.
However, the Engineer was unable to offer an explanation as to why the Halford benefit assessment would decrease per acre, while the McLean/McKeegan benefit assessment would increase per acre.
On initial analysis, these results do not reflect “fairness” to the McLean/McKeegan property in the revised assessments.
In addition, it appears the suggestion that the newly severed lot should be assessed for benefit is confusing and seemingly unfair in that the Spidalieri/Broadfoot property is located approximately 40 meters from the West Branch Delisle Drain, at its closest point. In addition, as confirmed by both Charles McLean and the Engineer, the drainage from that property flows into the Dawson Drain. The Engineer’s development of that benefit assessment was based on his rationale that included the “proximity” of the property to the West Branch Delisle Drain and the drain “envelope”. However, the Engineer was unable to provide satisfactory evidence to explain, with any reasonable precision, what those concepts meant in the context of developing the assessments.
One of the hallmarks of fairness is openness and transparency. However, parts of the Engineer’s revised assessment approach could not be explained and parts of the Engineer’s revised assessment outcome produced anomalous results, such as the benefit assessment per acre demonstrated in the table above.
As a result, the Tribunal finds that the revised assessment of the McLean/McKeegan property was not fair and therefore will be adjusted.
Accordingly, the Schedule of Assessment contained in the Report (that is, the original assessment schedule dated 2016-04-28) is hereby confirmed, subject to the following changes.
McLean/McKeegan Farm Roll No. 460-00600
Benefit $7,350.00 Outlet Liability $3,899.00 Total assessment $11,249.00
Bissonnette Property Roll No. 460-00690
Benefit $364.00 Outlet Liability $107.00 Total assessment $471.00
Spidalieri/Broadfoot Property Roll No. 460-006??
Benefit $0.00 Outlet Liability $93.00 Total assessment $93.00
As seen in its directions contained in the table above, the Tribunal is re-balancing the assessments among the three properties that were the subject of the recent land severances. The Tribunal finds this to be the fairest approach in these circumstances.
Order of the Tribunal
The Tribunal therefore orders that:
The appeals of Charles McLean and Carol McKeegan under Section 54(1) are granted.
In accordance with section 56 of the Act, the Clerk shall revise the original Schedule of Assessment, dated 2016-04-28, as indicated above in the Findings and Analysis.
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 and the revised Schedule of Assessment, 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 Brampton, Ontario this 12th day of December, 2016.