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:

Setterington Lane Drain

Municipality of Leamington

Setterington Lane Drain

Municipality of Leamington 2016ONAFRAAT06

STATUTE:

Drainage Act

HEARING:

November 3^rd & 25^th, 2016

DATE OF DECISION:

February 11, 2016

2016-06

NEUTRAL CITATION:

2016ONAFRAAT 06

SETTERINGTON LANE MUNICIPAL DRAIN

Municipality of Leamington

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 2217273 Ontario Inc., o/a Gryphon Automation (Donald Murney) of Leamington, 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 Revision on the Setterington Lane Municipal Drain in the Municipality of Leamington.

Before:

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

Appearances:

Donald Murney - Appellant

Frank Sabelli - Witness for appellant

Dennis R. McCready, P. Eng., Dillon Consulting - Engineer who prepared the Report

Ruth Orton - Counsel for the Municipality

Lu-Ann Barreto - Drainage Superintendent

John Pilmer – Engineering Technologist for the Municipality

James Cook – Counsel for Brunato Farms Limited, Assessed Landowner

Heide Mikkelsen P. Eng., N.J. Peralta Engineering Ltd. - Witness for Brunato Farms Inc.

DECISION OF THE TRIBUNAL

This hearing under the Drainage Act (the “Act”) was held by the Agriculture, Food and Rural Affairs Appeal Tribunal (the “Tribunal”) in the Municipality of Leamington (“Municipality”) on November 3rd and 25th, 2015. The Engineer’s Report for the Setterington Lane Municipal Drain (the “Report”) was prepared by D. R. McCready, P.Eng. (the “Engineer”) of Dillon Consulting and is dated July 31, 2014. The appeals to the Tribunal were filed by 2217273 Ontario Inc., o/a Gryphon Automation, of Leamington, Ontario (Murney).

Appeals under Section 54 of the Act relate to challenges to the amount and apportionment of the costs of drainage works (the “assessments”).

Appeals under section 48(1)(a), (b) and (c) of the Act relate to challenges to the Report regarding the benefits to be derived from the drainage works not being commensurate with the estimated costs, the design of the drainage works, and the compensation or allowances provided by the Engineer.

Jennifer Bavetta, a Legal Assistant with the Municipality, 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 Affidavits of Service, as proof that all parties had been served with the notice of hearing and the notice of the continuation of the hearing.

Brunato Farms Limited (“Brunato”), the owner of two of the five assessed properties for this drainage project, was represented at the hearing by solicitor James Cook.

Counsel for the Municipality advised that it was objecting to the consideration of the Appellant’s Section 48(1)(b) appeal as it claimed the appeal was filed late. The Tribunal noted the objection and advised that it would hear the appeal and address this issue in its decision.

Background

Evidence given to the Tribunal at this hearing provides the following background.

1Setterington Lane appears to be a private, narrow lane or driveway that runs north-south along the line between Lots 1 and 2 in Concession 3 of the geographic Township of Mersea, extending southerly from Provincial Highway #3 to Mersea Road 3. The Township of Mersea in now part of the Municipality of Leamington.

2Mr. Frank Sabelli, owner of Sabelli Boiler Works Inc. (“Sabelli”), purchased part of the southeast quarter of Lot 1, within the subject drainage area, sometime in 1995. While the subsequent ownerships of the Sabelli property were provided to the Tribunal, it is unknown when the other affected landowners purchased their properties.

3In 2003, a significant portion of the subject drainage area was a flooded, depleted gravel pit, the north half of which was owned by Cristofari Farms Inc. (“Cristofari”), the southwest portion of which was owned by Sabelli and the southeast portion of which was owned by Brunato, all lands being within Lot 1, Concession 3. At that time, Cristofari and G. and A. Cristofari personally, also owned most of the northwest part of Lot 1 and already had a commercial greenhouse operation covering about 4 acres of this land, in its southwest quarter. Brunato had a commercial greenhouse operation in the extreme south part of its property that was approximately 2.5 acres in area. The Tribunal was not advised as to exactly where these two impervious greenhouse areas drained. Brunato also had a very large commercial greenhouse operation in Lot 2, on the east side of Setterington Lane, approximately 11 to 12 acres in area, which drained northerly into a stormwater management (SWM) pond adjacent to Highway 3. That greenhouse area is not included in the subject drainage area.

4A 2004 aerial photo supplied as evidence to the Tribunal indicates that all three property owners were actively filling the flooded former gravel pit at that time and that Cristofari had already constructed an addition to the east end of its greenhouse, being approximately 2 acres in additional area.

5A 2006 aerial photo supplied as evidence to the Tribunal indicates that Sabelli and Brunato had completely filled their properties such that no flooded area remained and Brunato had constructed a large addition on the north end of its existing greenhouse, approximately six acres in additional area, virtually covering the entire property. According to the Engineer’s drawings, this greenhouse was built to within 2.7 metres or 9 feet of Brunato’s west property line with Sabelli. Engineer Mikkelsen testified that he designed a SWM system for this greenhouse addition, and some of the existing greenhouse area, in September 2005 and that it included a 750 mm diameter outlet pipe that ran northerly along Setterington Lane to the existing pond, which was enlarged to accommodate the additional runoff volume. This system included catchbasins along the east, west and north sides of the building. At this time, Cristofari was continuing to fill the southeast part of its property.

6Sometime before October 25, 2007 but after the Brunato greenhouse was constructed in December 2005, Brunato installed a 250mm (10 inch) diameter agricultural grade plastic drainage pipe along the west and north sides of its building and then northerly along Setterington Lane to the Highway 3 roadside ditch. This drain was apparently installed to collect stormwater from the west side of the Brunato property and conduct it to an outlet other than Brunato’s SWM pond. The engineer’s Report that is under appeal proposes to assume most of this drain as a ‘Municipal Drain’, under the Act.

7A 2008 aerial photo supplied as evidence to the Tribunal indicates that Cristofari had completed the filling of the south half of its flooded area and that Sabelli had created a ditch across most of the north end of his property and a small pond in his northwest corner.

8On December 29^th, 2009, a Petition for Drainage was received by the Municipal Clerk and Dillon Consulting was appointed to act on that Petition.

9Between October 2010 and December 2011, Brunato took legal action against Sabelli due to Sabelli continuing to fill his property and allegedly causing flooding, erosion and pollution of the Brunato property. This legal action resulted in six Court Orders against Sabelli personally, but not against his property.

10In March 2011, Dillon’s engineer, A. C. Sullo, submitted a preliminary report to the Municipality for this drain with an estimated total cost of $122,000.

11In January 2012, Sabelli sold his property to Kapital Produce Ltd.

12Between 2008 and 2013, Cristofari completed the filling of its property, leaving an unfilled area adjacent to Highway 3 presumably as its SWM pond; however, this pond apparently does not have a legal outlet. Also in this time period, Cristofari constructed another greenhouse addition of approximately 6.6 acres on its filled land. During the same time period, a new, larger pond was created in the extreme northwest corner of the Sabelli property and the previous pond was filled.

13In August 2014, Kapital Produce Ltd. sold its property to 2217273 Ontario Inc., operating as Gryphon Automation and owned by Donald Murney (“Murney”), who is the appellant in this matter.

Under all three ownerships, that is, Sabelli, Kapital and Murney, only the building at the south end of the property and the area immediately surrounding it were used for commercial purposes, while the large filled area at the rear, being approximately 7 acres, has been used as a composting/topsoil storage area and is now vacant.

14The final Engineer’s Report for this proposed drain is dated July 31, 2014 and was completed by Mr. McCready for Dillon Consulting, 4.5 years after Dillon was appointed. Mr. McCready was the third Dillon engineer to work on this project and was involved for only two months before the Report was published. The total estimated cost of the project is now $225,000 and the engineering costs are $77,700 or 34.6% of the total cost.

15According to the plans contained in the Report, the final fill elevations of the three properties are approximately as follows: Cristofari 214.1 m, Murney 213.2 m, Brunato 211.3 m. Since the Brunato property is much lower than the other two properties, it is not surprizing that it has a drainage/flooding problem which it tried to solve with the 250 mm (10 inch) diameter plastic agricultural drain tile installed in about 2007.

16Apparently, three meetings of Council were held to consider this Report and two by-laws adopting the Report were passed, the first one being rescinded by the second. Also, two Courts of Revision were held, one on April 13, 2015 and the second on June 15, 2015.

Issues

The issues from the appeals by 2217273 Ontario Inc. (Murney) are as follows:

a) Are the benefits to be derived from this proposed drainage works commensurate with the estimated costs;

b) Should the proposed drain be modified;

c) Are the allowances provided by the engineer inadequate or excessive; and

d) Should the assessments to the property with roll number 650-05100 be changed?

The objection raised by the Municipality with respect to the Appellant’s Section 48(1) (b) appeal:

e) Was Murney’s 48(1) (b) appeal dated June 16, 2015 filed late?

Evidence

Mr. D. R. McCready, P. Eng., the Engineer who prepared the Report, Brief Overview

Mr. McCready advised that his Report proposes to assume most of the existing 250 mm diameter Brunato private drain as a municipal drain and it will provide an outlet for the west part of Brunato’s property and all of the north part of Murney’s property.

He proposes to extend it downstream with a 375 mm storm sewer pipe through Highway 3 to Sturgeon Creek, and an upstream extension of 300 mm diameter pipe, plus a caged inlet, plus approximately 238 metres of open drain including a SWM forebay and sediment pond. The upstream SWM facility has been designed to retain the runoff from a 5 year rainfall event. The work on the Highway property is estimated to cost $63,450 while the work on the private properties is estimated to cost $161,300, for a total estimated cost of $224,750. The existing tile has been flushed and videoed and appears to be in good condition. However, within the future maintenance section of the Report he has provided that a new 300 mm diameter storm sewer pipe should be installed, at a steeper gradient, to replace the 250 mm tile when maintenance is done in the future.

Mr. McCready provided significant detail regarding his assessment reasoning, which followed the Todgham method, including the special benefit assessments made under section 24 of the Act. Specifically, with respect to the appellant’s property, the assessments he applied are as follows:

• For section 3 of the drain, from Station 0+577 to 0+636, benefit of $15,900 to Murney and $7,850 to Brunato, and outlet of $4,150 to Murney and $0 to Brunato; and

• For section 4 of the drain, from Station 0+636 to 0+828, benefit of $30,250 to Murney and $14,875 to Brunato, outlet of $5,025 to Murney and $0 to Brunato, and a special benefit of $16,950 to Murney for re-excavating the ditch that previously existed along Murney’s east property line but was filled in sometime before July 16, 2014.

In addition to the special assessments to the Ministry of Transportation for the Highway 3 road crossing, two other special assessments were made of $750 each, one to the Cristofari Farms Inc. property (roll number 05400) and one to the G. and A. Cristofari property (roll number 05600) for a 4 metre long, 150 mm diameter pipe connection to maintenance hole 3 which is to serve as the legal outlet for those two properties.

Mr. McCready advised that he has been told there is a separate, private, underground drainage system to collect and carry the stormwater from the 6.5 acres of Brunato’s greenhouses to a SWM pond in the northwest corner of Lot 2 and that it is not connected to the underground drainage pipe that is the subject of this Report; however, he has seen nothing that proves this. He also mentioned that there are a number of catchbasins on the west side of the greenhouse that he thinks are connected to the greenhouse drainage system that flows easterly under the floor. He commented that if these catchbasins were not connected in that manner there would be water coming out of them under heavy rainfall conditions.

At the May 4, 2015 Council meeting to consider the Report, he recommended that the land allowance to Murney, which was based on $15,000 per acre, not be changed but that the affected area of the Murney property should be reduced from 9.23 acres to approximately 7.5 acres. The recommended changes were accepted by Council and an amended assessment schedule was prepared for the Court of Revision. However, the amended schedule actually indicates 8.73 acres.

Donald Murney – Appellant

The initial information provided by Mr. Murney from his opening statement was as follows:

1. Information that was negotiated between the owner of his property and Brunato was provided to the Municipality but was not passed onto the engineer;

2. He has a report from the MOE saying that the water along the property line is originating from the Brunato greenhouse (but this report was not entered as evidence);

3. His property does not have a water problem and does not need this drain;

4. More specifically, it does not need the large ditch that is proposed to run along his east property line;

5. His land is vacant and approximately 7.5 acres of it will be part of the drainage area, while the entire drainage area is 47 acres, so his property is only about 15% of the total area, yet it has been assessed $85,000 or about 52% of the cost of the work proposed to be done on private lands, which is much too high;

6. At 30% of the total, the maintenance assessment against his property is too great;

7. The land allowance is much too low as he paid more for the property than what is being allowed and he has an offer to purchase which is much higher;

8. The special assessment to his property for removing fill from the ditch that did exist

along his east property line is unfair as this ditch was filled at the insistence of Brunato and, leaving that material on his property for him to dispose of, is also unfair;

9. His property should not be assessed any more than 50% of this special benefit charge; and

10. It is unfair that his property has been assessed more than 66% of the cost of constructing the new ditch – it should not be paying any more than 50%.

In addition, Mr. Murney provided the following evidence.

11. He was a tenant on this property from 2012 until August 2014.

12. He purchased the property in August 2014 for $350,000.

13. Since 2012, he has closely observed the rear portion of the property with respect to water issues and has never seen any water run from his property on to the Brunato property nor has he ever seen the pond on his property overflow.

14. Presently, there are no water drainage issues between his property and Brunato’s.

15. He does not care if his property is wet or floods; he does not need a drainage outlet for it; he does not want the proposed drain on his property. He contends that, with a berm in place along the top of the slope on the east side of his property, no water from his land will flow easterly over it into the proposed ditch.

In January 2015, he approached Mr. Crozier to ask if Crozier had prepared a grading plan of his property and was given a plan with an original date of August 18, 2011, but with three revisions “as per Court Instructions” noted thereon, the latest being December 2, 2011. Further, Crozier advised him that this revised plan had been provided to the Municipality. This plan was made exhibit #11.

16. Regarding the allowance given to his property for land taken, this was provided at an amount of $15,000 per acre. He advised that he paid $350,000, or $35,000 per acre, for the property in 2014 and, in April 2012, Brunato offered to purchase the property from Kapital for $430,000, or $43,000 per acre, as evidenced by an Agreement of Purchase and Sale provided to the Tribunal and made exhibit #12. Accordingly, he attests, the allowance of $15,000 per acre is far from market value.

Lu-Ann Barreto – Drainage Superintendent

Ms. Barreto is the Drainage Superintendent for the Municipality and has held that position since 2005. She has been employed by the Municipality since 1996. She provided the following evidence.

1. All new commercial developments in the Municipality have to provide a stormwater management plan (SWMP) and have it approved by the Development Review Committee before construction can proceed.

2. A brief description of the SWMP’s for Brunato and Cristofari.

3. The Murney property does not have a SWMP.

4. Complaints regarding pollution were received by the Municipality from Brunato in 2006 or 2007.

5. In September 2007, she received notification from the MOE that Brunato had installed a 10 inch diameter ‘safety drain’ along the west and north sides of its greenhouse, and extended it to Highway 3, and plugged off the catchbasin connections along the west side of the greenhouse.

6. A municipal drain petition was received by the Municipality on December 29, 2009. Council accepted that petition on February 4, 2010 and appointed Dillon as engineer to undertake a preliminary report.

7. On-site meetings were held by Dillon’s engineer, A. Sullo, on April 19 and May 17, 2010. At the second meeting Mr. Sullo declared the petition valid.

8. A Preliminary Engineer’s Report, dated March 7, 2011, was received by the Municipality and a Council Meeting to consider it was held on May 2, 2011. Council received the report and instructed Dillon to proceed to prepare a final report, based on Alternative 1, which was estimated to cost $121,850.

9. On August 18, 2011, the Municipality received a SWMP, of the same date, for the Sabelli property that was prepared by Bruce D. Crozier, P.Eng.

10. Due to landowner disagreements, court actions and potential ownership changes, the project was put on hold until July 2013 when a “scoping meeting” (site meeting) was convened with a different engineer representing Dillon, Mr. T. Marentette, who took over the project sometime in 2011.

11. Sometime on or after July 31, 2014, the Municipality received the final Engineer’s Report which was signed and sealed by Dennis R. McCready, P.Eng.

12. This Report was considered by Council at a meeting on September 15, 2014 at which time she made a Power Point presentation of 16 photos. These photos were provided to the Tribunal as part of the Municipality’s document binder. Five of these were aerial photos from 2003 to 2013, which illustrated the progression of filling and greenhouse construction within the drainage area. The remaining 11 photos were of the site, mostly in the area of the Brunato–Sabelli property line. These site photos showed a large ditch on the Sabelli property between July 2008 and July 2011, but no such ditch in July 2014.

13. At the September 15, 2014 Council meeting, both Mr. DelGreco, representing Brunato, and Mr. Murney, now the new owner of the Sabelli/Kapital property, requested that Council delay consideration of the Report for 90 days to allow the owners to privately resolve the drainage situation. Council granted this request.

14. The delay extended until March 2, 2015 when Council met again to consider the Report, at which time By-Law 455-15 adopting the Report was given first and second reading and April 13, 2015 was set as the date for the Court of Revision.

15. On April 13, 2015, the Court of Revision was adjourned, apparently due to a notice not being sent to Murney for the March 2^nd meeting.

16. On May 4, 2015, Council held another meeting to consider the Report at which time Murney and DelGreco attended and Murney objected to the allowances provided to, and the assessments made against, his property.

17On May 11, 2014, Council gave first and second reading to a new By-law 479-15 that adopted the Report and repealed By-law 455-15.

18On June 15, 2015, the Court of Revision was held at which time revised assessment Schedules C and E were considered. These revised schedules were provided by McCready as he reduced the assessed area of Murney’s property. Murney appealed the assessments made against his property but his appeal was denied and the new, revised schedules were confirmed.

19Throughout this long, involved process, neither Sabelli nor Kapital nor Murney ever provided the requested information about the adequacy of the pond on property 05100 to act as a proper SWM pond.

20The existing 250 mm tile drain that is proposed to be assumed as a municipal drain was installed by Brunato sometime prior to September 2007 and is labelled as a “safety line” on a sketch that was provided to her by the MOE. She does not know exactly when or why it was installed.

21The Municipality did not and still does not have any by-laws controlling the filling of properties.

22Sturgeon Creek is a natural watercourse at the location where this proposed municipal drain is to outlet as it does not become a municipal drain until approximately 1.5 km downstream thereof.

John Pilmer – Engineering Technologist

Mr. Pilmer was called as a witness by the Municipality. One of Mr. Pilmer’s responsibilities with the Municipality is to review and make recommendations for the approval of stormwater management reports and plans for development sites.

In that regard, he is quite familiar with the SWMP for the Brunato property and provided details regarding the system from the design report and drawings prepared by N. J. Peralta Engineering Ltd. He advised that the original report and plans were dated September 12, 2005 and that they were revised with a report and revised plans on October 31, 2005 by adding two additional lines of downspouts within the greenhouse.

The Municipality requires that these SWMP be designed to accommodate post development runoff from the 1 in 100 year rainfall event and to reduce the outflow from the detention ponds to the 1 in 2 year pre-development runoff rate. Any additions or alterations to these systems are supposed to be approved before being undertaken. The Municipality does not require the submission of “as constructed” drawings.

A Certificate of Completion for this SWM system was issued to the Municipality by Peralta under date of December 9, 2005. The Municipality does not do any inspection during construction and relies entirely on the design engineer’s inspection and certification. Mr. Pilmer also mentioned that this system included shallow surface swales around the perimeter of the building to collect any exterior flows and direct them into catchbasins located along the east, west and north sides of the structure. He is also aware of a ‘cut-off or safety drain’ being installed on the property in about October 2007 to collect and carry stormwater to a different outlet, so as to not contaminate the SWM pond.

Frank Sabelli – Witness for Appellant

Mr. Sabelli was called as a witness by Mr. Murney and provided the following evidence.

1. He is the former owner of the 123 Mersea Road property with roll number 650-05100.

2. He started filling this property in 2003 as did his neighbours Cristofari and Brunato.

3. While this filling was going on, and after the Brunato property was filled, there was always a ditch, or a long narrow pond, on the east side of his property beside the Brunato property.

4. In 2005, Brunato stopped filling his property, at a low elevation, and erected a large greenhouse which was only about 7.5 feet from their mutual property line, which he felt was too close.

5. Relatively, the Cristofari property was filled to about 1.5m higher than his property and his property is filled to about 1.5m higher than Brunato’s.

6. Murney provided videos that Sabelli had taken in 2009, 2010 and 2011 which Sabelli indicated showed washouts or blowouts along the west side of the Brunato greenhouse and water coming up out of Brunato’s catchbasins along the west side of the building during and immediately after heavy rainfall events. Sabelli advised that this water then flowed into his ditch which was immediately alongside the property line to the point where his ditch would overflow.

7. In 2011, he retained engineer Bruce D. Crozier to prepare a grading plan for his property and Mr. Crozier worked with Peralta Engineering, on behalf of Brunato, in this regard. He delivered this plan to Mr. Pilmer at the Municipality on August 18, 2011.

8. That plan required that the ditch be filled and a berm be constructed along the top of the slope.

9. Murney introduced exhibit #8 which Sabelli identified as the joint report prepared by Crozier and Peralta, dated December 5, 2011, which sets out the work to be done on his property to control drainage, runoff and erosion, including filling the existing ditch and constructing a berm. This report was the result of an order by Justice Gates from a civil action by Brunato Farms Ltd. against Frank Sabelli, Anna Sabelli and Sabelli Boiler Works Inc.

10. Sabelli advised that some of the work required by this Report was done in mid-2014, specifically filling the ditch, building a berm and grading swales, as illustrated in photos 13 and 14, of tab 17, exhibit #3, while the property was owned by Kapital. Now Mr. McCready wants this ditch excavated again.

11. During his ownership of the property, he never saw the pond in the northwest corner of the lot overflow.

Mr. D. R. McCready, P. Eng., the Engineer who prepared the Report, further evidence

Being called to give evidence again, McCready provided the following additional testimony.

1. He was involved with this project for the last two months before the Report was prepared, that is, June and July 2014.

2. Regarding the Crozier plans, he was only aware of the original August 2011 plan. He had not seen the revised plan of December 2011 until today.

3. If the ten inch tile is to provide outlet for the entire 8.73 acres of the Murney property, a large SWM pond with a volume of 360 cubic metres is required to control the 5-year rainfall event.

4. The land allowance to Murney was based on current MPAC assessed values which he ‘upgraded’ from $13,000 to $15,000. In his view, the existing sloped land is not useable, but it was included in the area for which the allowance was provided. Accordingly, he feels the allowance is fair.

5. He did not consider the Murney purchase from Kapital as a reasonable comparable value for the vacant land.

6. The final Crozier/Peralta Plan would have influenced his design if there had been some indication of the capacity of the on-site pond.

7. If the berm was constructed along the top of slope as designed in the Crozier/Peralta plan, the south end of the Murney property would have to flood to a depth of 0.5 metres before the berm would be overtopped and that would not likely occur as the water would flow onto the road before that happened. At the north end of the property, flooding to a depth of at least 0.7m would have to occur before the berm would be overtopped.

8. If the berm was constructed along the top of slope as designed in the Crozier/Peralta plan, there would be no water that would enter the proposed municipal drain tile from the Murney property, unless the berm was severed with a ditch or a pipe.

9. It is his understanding that the Brunato greenhouse drainage system has been modified.

10. He saw his responsibilities in this matter to be; (a) to prevent excessive flows from reaching the upstream end of the Brunato tile, (b) to provide an adequate outlet for the Murney property, which meant that, (c) he had to create a SWM facility for the Murney property to control the 5-year rainfall event.

11. He established the gradient or slope of the 250mm tile installed by Brunato from only two elevation shots, one at the downstream end (Sta. 0+224) and one at the upstream end (Sta. 0+557).

12. If the municipal drain is constructed as proposed in his Report, the water from the Murney property would not be able to enter the open drain or the tile unless the berm was breached with a tile or a ditch and spillway. A tile could be run from the Murney pond easterly and into the ditch. However, surface water from the narrow strip of the Brunato property would flow into the new ditch, unless Brunato’s catchbasins are altered. If water continues to boil up out of Brunato’s catchbasins, that water would also enter the ditch.

13. The proposed municipal drain does not provide the Cristofari property with an outlet at its property line.

Heide Mikkelsen, P.Eng. – N. J. Peralta Engineering Ltd.

Mr. Mikkelsen is a professional engineer with expertise in stormwater management and is employed with N. J. Peralta Engineering Ltd., a company that specializes in drainage engineering. He designed the SWM system for the Brunato greenhouse in the fall of 2005 and, on behalf of Brunato, worked with Mr. Crozier on the SWM plan for the Sabelli/Murney property in December 2011. He explained the Brunato greenhouse SWM system in some detail advising that the catchbasins around the exterior perimeter of the building are designed to act as vents for the system and as surface water inlets at times of excessive rainfall. His initial design report and drawings were dated September 12, 2005 but were revised on October 31, 2005 with the addition of 2 more rows of downspouts, however, the sizing of the pipes conveying flows from the building to the pond did not increase. The Peralta firm undertook inspection of the installation of the system and provided a Certificate of Completion on December 9, 2005.

Mikkelsen advised that he was made aware of two changes to the drainage of the site that were undertaken by Brunato sometime before October 25, 2007, as follows: (1) the four drains under the greenhouse were capped, near the west wall, apparently to avoid surface water from flowing into the SWM system through the four westerly catchbasins, and (2) a 10 inch diameter corrugated plastic agricultural drainage pipe was installed from Highway 3 to the north side of the building, then along the north side of the building and then along the west side of the building, connecting to the 4 catchbasins on the west side. Part of this pipe is proposed to be assumed as a municipal drain. He has no first-hand knowledge about either of these changes and prepared drawings from information supplied by Brunato. The drawing he prepared of the caps near the catchbasins was just done recently for this hearing. These drawings were filed as exhibits #10 and #10a. He advised that leakage around the caps on the four drains under the greenhouse could account for the blowouts along the west wall of the greenhouse. He also advised that there have been a number of significant rainfall events in this area over the past 5 years that would have had this SWM system at or over capacity.

If the rainfall is greater than the system can accommodate, water would boil up through the catchbasins and overflow onto the ground surface.

Mikkelsen confirmed that, on behalf of Brunato, he prepared the December 5^th, 2011 report (exhibit #8) and the December 2, 2011 plan (exhibit #11) jointly with Mr. Crozier. It was his understanding that the recommended works would be a temporary solution to the problem between Sabelli and Brunato but he did confirm that it could be a permanent solution; however, it does not provide the entire Sabelli/Murney property with a drainage outlet. The recommended works included a ‘toe ditch’ along the property line which he and Crozier suggested would be graded so as to outlet to the Brunato tile drain that is proposed to be incorporated as a municipal drain under the McCready Report. The balance of the Sabelli/Murney property was to be graded so as to drain to the on-site pond. If the berm was constructed as specified and the balance of the property was graded as specified, the only water reaching Brunato’s 10 inch tile would be what runs off the slope on the east side of the berm. After this or some other permanent solution is achieved, he suggests that the westerly catchbasin outlets under the greenhouse could be unplugged. If this was done, and the 10 inch drain was plugged in this location, he suggests that no water from the greenhouse should drain into the toe drain and then into the proposed municipal tile drain, except under severe rainfall conditions when the greenhouse drainage system was over-capacity.

Mr. Cooke introduced site photos taken on November 10, 2015. Mikkelsen advised that he was onsite at that time and observed that the berm and toe drain shown in these photos do not appear to conform to what was specified on the December 2, 2011 plan.

Findings and Analysis

After analyzing the 17 exhibits and the evidence provided by the parties over two days of hearing, the Tribunal has concluded that this is an appropriate case to refer the Report back to the Municipality for revision with specific directions. The validity of the petition that prompted this project is questionable, but that is a matter to be decided by the Drainage Referee; however, costs for this project are already quite high and to refer this matter to the Referee would involve even more costs for all parties.

With respect to project costs already being high, the Tribunal notes that the total engineering costs are estimated at $77,700 which is 34.6% of the total cost, considerably higher than the provincial average of 24% for projects of this magnitude. While the Tribunal realizes that referring the Report back for revision will increase these engineering costs, the construction cost savings due to revising the report, as specified below, will be significant and will more than offset the additional engineering costs that will be incurred.

The topography in this ‘drainage area’ is most unusual as none of the involved properties are natural; they have all been filled to create large flat lots, most of which are, or soon could be, covered with impermeable greenhouses. Accordingly, there is no natural drainage, there is no low run, no swale, no intermittent watercourse – basically, there is no slope. To further complicate matters, one of the properties was filled to a minimum elevation, another property was filled to an elevation about 3 metres higher, and the third property was the last to be filled to about 2 metres higher than the first. With no natural slope to the land, all the drainage is relying on man-made facilities and grading, and with some buildings constructed to within about 2 metres of property lines, it is no wonder there are some drainage problems between neighbours. To further complicate matters, this situation has a 12 year history which includes court actions with two of the neighbours hiring their own engineers, three different drainage engineers working on the Report for the Municipality, and over 4.5 years for the Report to be prepared. In order to resolve these unusual circumstances, the parties involved are seeking remedies under the Drainage Act from this Tribunal.

There was much evidence about what has occurred in this drainage area in the past but little to no evidence about the current situation. Murney indicated that he feels there are no water drainage issues between his property and Brunato’s at the present time. Unfortunately, the Brunato representative who attended the two days of hearing did not provide any evidence. Mikkelsen did comment that he was on site recently and observed that the berm and toe drain did not appear to conform to what was specified on the December 2, 2011 plan.

A Section 48(1) (b) appeal is to indicate that the drain should be modified “on grounds to be stated”. Both in his June 16, 2015 written appeal and on a number of occasions during the hearing, Murney stated that the drain should be modified by cancelling it altogether on his property as it is not required. This leads to design questions being at issue here.

Accordingly, the Tribunal has reached the following conclusions.

1. The Tribunal has concerns regarding the validity of the petition. Specifically, the owner of the appellant’s property (05100) did not sign the petition in 2009, therefore, that owner did not request a drainage outlet or a SWM facility and neither have either of the two subsequent owners since that time. Additionally, the area requiring drainage appears to not have been properly described in this petition; in fact, there is no description at all, just names and addresses. The second page of the petition contains the signatures of John Brunato, Enes Brunato, Maria Bernardes and Giovanni Cristofari for Lot 1, and two illegible signatures and the signature of Mary Brunato for Lot 2. These signatures were applied to the petition on December 30^th, 2009, the day after the Clerk indicated that it was received. Lot 2 is not within the area requiring drainage as determined by the engineer. Furthermore, there is no indication of signing authority for the corporate petitioners, the properties indicated by J., E. and M. Brunato are not in the area requiring drainage as shown on Plan 1 in the Report, there is no signature for the Cristofari Farms Inc. property, and the other joint owner of the G. and A. Cristofari property did not sign the petition. Nonetheless, the appointed engineer decided it was a valid petition and proceeded with the project. These issues are within the authority of the Referee.

2. There could be some issue regarding the engineer extending the drain upstream of the last petitioning owner, but this is also a matter for the Referee, and beyond the jurisdiction of this Tribunal; however, costs for this project are already quite high and to refer this matter to the Referee would involve even more cost for all parties.

3. The owner of the appellant’s property (05100) did not sign the petition in 2009, therefore, that owner did not request a drainage outlet or a SWM facility and neither have either of the two subsequent owners yet this Report proposes to supply this property with both an outlet and a SWM facility.

4. Based on the video evidence of ‘blowouts’, or ‘washouts’, along the edge of the Brunato greenhouse, and water flowing out of catchbasins, there is definitely some question as to the adequacy of the stormwater drainage system of this building, which leads to the question of how much of the Brunato greenhouse property should be included in the drainage area of the proposed drain.

5. The 90 day deferral of considering the Report by Council that extended from Sept 15, 2014 to March 2, 2015, or 165 days, is of concern to the Tribunal.

6. There were two Courts of Revision held for this drain, with notices for the second Court being sent on May 19, 2015 and the Court itself being held on June 15, 2015. According to section 48 of the Act, appeals must be served within 40 days of the sending of the notice of the Court of Revision, which would have been up to and including June 28. Murney’s notice of appeal under 48(1) (a) and (c) was dated May 14 and his notice of appeal under section 48(1) (b) was served on June 16. Using the date of sending the notice of the sitting of the second Court of Revision, all appeals under section 48 were filed on time. It is appropriate to use the date of the second notice in this case as the By-law considered at the first Court of Revision was repealed on May 11, 2015. In addition, the section 54 appeal was filed within the 21 days of the pronouncement of the decision of the Court of Revision. Should using the date of sending the notice of the sitting of the second Court of Revision and the June 15 pronouncement of the decision of the Court of Revision as the operative dates for calculating the timelines for appealing be found to be an error, despite the repeal of By-law 455-15 on May 11, this would be an appropriate case for the Tribunal to extend the time for appealing under section 100 of the Act because two by-laws being passed created uncertainty as to when to appeal. Also, the Municipality’s objection was not made in a timely fashion as it could have raised the issue prior to the commencement of the hearing.

7. There was evidence that SWM plans and facilities/ponds are required for commercial developments, such as greenhouses; however, there was no evidence that every property in the Municipality is required to have an approved SWMP or a legal drainage outlet, especially not for vacant undeveloped land or agricultural land; therefore, the question arises, “Why is the appellant’s property required to have a SWM facility and a drainage outlet?”

8. The evidence indicates that, in 2011, the previous owner of the Appellant’s property (Sabelli) and neighbour Brunato each retained a drainage engineer to work on a plan to resolve their mutual drainage issues. Sabelli hired Crozier and Brunato hired Mikkelsen of Peralta. In December 2011, these two engineers collaborated to prepare a report (exhibit #8) and a plan (exhibit #11). The two neighbours, Sabelli and Brunato agreed with this plan and took it before Justice Gates. Justice Gates agreed with Sabelli and Brunato that the Crozier-Peralta proposal was a good solution to the problems and ordered that it be done.

It is unfortunate that Sabelli did not proceed to implement all of the work proposed, but the Tribunal still sees the Crozier-Peralta proposal as a reasonable, cost effective solution to this situation. The key elements of this plan were to: (a) fill the existing easterly pond/ditch on the Sabelli property to an elevation ranging from 2.1 to 2.6 metres higher than the Brunato property; (b) slope that fill material such that it did not erode; (c) vegetate that slope; (d) construct a 0.5 metre high berm along the full length of the top of that slope for an approximate distance of 250 metres, that is the full length of Sabelli’s east property line with Brunato; (e) vegetate that berm; and (f) grade the undeveloped part of the Sabelli property to the northwest toward the existing pond in the northwest corner. If and when all of this work was completed, the only water that would flow from the west toward the Brunato property would be the rain that fell on the east side of the berm. Based on the evidence provided, the only key element of the plan that has not been completed is the construction of the berm.

9. The work proposed on the Murney property in the Report seems excessive and unnecessary. It includes a very large ditch and a SWM facility, exactly where the Sabelli ditch was filled in some time ago according to the Court Orders and the Crozier-Peralta plan, as well as a berm along the west edge of the ditch and SWM facility, similar to the Court Orders and the Crozier-Peralta plan, at a total cost of $85,000, including construction, allowances and engineering. The proposal to re-excavate the ditch is completely opposite to the Crozier-Peralta concept that the two owners agreed to in 2011 and adds significant cost to the project. The Tribunal cannot understand why the engineer did not just incorporate the Crozier-Peralta design into his Report as the solution to the problem and specify that the berm be constructed. This would save thousands of dollars and would prevent any significant flow of surface water from the Murney property on to the Brunato property. Granted, the Crozier-Peralta plan does not provide the appellant’s property with a SWMP, but every property in the Municipality is not required to have an approved SWMP or, for that matter, a legal drainage outlet. The Tribunal agrees with Justice Gates that the Crozier-Peralta Plan is a cost effective solution to this situation. Accordingly, the Report will be referred back to the Municipality to include only the construction of the berm on the Murney property. All of the costs associated with building the berm, including any allowances and any other work done there, shall be assessed equally to the Murney and Brunato properties, on the basis that there is advantage to the Brunato lands due to cut-off benefit and injuring liability to the Murney property for better control of surface water. The maintenance costs of this berm shall be assessed in the same manner, 50% to the Brunato property and 50% to the Murney property.

10. The issue of the Murney pond and its ‘holding capacity’ or ‘infiltration capacity’ is not relevant as the revised drainage area boundary shall be along the top of the berm. The two surveys provided as evidence indicate that Murney’s land slopes to the west away from the drain. Murney’s land would have to flood to a depth over 1 m at his pond for water to back up and flow over the berm. If the pond on the Murney’s property is not large enough to contain the runoff from that property, he can make it larger.

11. With the surface water flow from the west being ‘cut-off’ by the berm to be constructed on the Murney property, and with no request from Murney for a drainage outlet in the northeast corner of his property, and with Brunato having its own SWM system for its greenhouse plus its own supplementary surface water drain, being the drain that is proposed to be assumed as a municipal drain under this Report, the Tribunal questions the need for any of the proposed work and the proposed ‘drain assumption’ upstream of station 0+224. Furthermore, the drain that is proposed to be assumed is agricultural-grade drainage tubing installed under a driveway rather than heavy duty storm sewer pipe that is standard for that type of situation. Accordingly, when the Report is referred back for revision, all of the proposed work and old drain assumption upstream of CBMH 4 shall be deleted, that is, the upstream end of the new drain shall be the new CBMH at station 0+224, except for the berm. This will provide the petitioning owners, Brunato and Cristofari, with a very good legal outlet through the Highway.

12. The current Report does not provide Cristofari with a legal outlet at its property line. Such an outlet shall be provided in the revised report.

13. Mr. Murney also appealed his assessment for future maintenance. It is often considered a fair practice to base maintenance assessments only on outlet assessments, rather than on benefit and outlet, as benefit is considered as a ‘one-time payment’ for the initial advantages provided by the original construction of a drain and a property should not have to pay for that initial benefit every time the drain is maintained, while every property is assessed in the same manner for outlet “based on the volume and rate of flow of water” and the length of the drain that is used. Accordingly, with the exception of the berm, maintenance assessments in the revised report shall be based only on the outlet assessments for construction.

14. The access to the working space on the appellant’s property should be through the appellant’s property, rather than through the Cristofari property, and this shall be changed in the revised report.

15. The Drainage Superintendent advised that the outlet watercourse at this location is not a municipal drain but a natural watercourse know as Sturgeon Creek. This shall be confirmed and, if necessary, corrected in the revised report.

16. Peralta’s SWMP for the Brunato greenhouse states that “storm events in excess of the 1:100 year storm may cause flooding.” Further, Mikkelsen stated that there have been quite a number of significant rainfall events in this area over the past 5 years that would have had this SWM system at or over capacity. The Tribunal finds that the water problems along the west side of the Brunato property are in large part due to capacity issues with the Brunato greenhouse drainage system, as modified by Brunato. Accordingly, the Tribunal recommends that Brunato retain an engineer to analyze the system as it currently exists to determine if alterations should be made to reduce the drainage issues in this location.

17. As no water from the Murney property located west of the berm will flow toward the east after the berm is constructed, the upstream extent of the drainage area (the drainage area boundary) will be along the top of the berm in the revised report.

18. The apparent malfunctioning of the Brunato SWM system raises the question as to how much of that property (roll number 04710) should be included in the drainage area of this project and be assessed. On the basis that some water from the greenhouse system does exit on the west side of the building, and possibly on the north side as well, the drainage area boundary in the revised report shall extend from the northeast corner of that property to the southeast corner of the Murney property, at the south end of the berm, and that triangular area shall be assessed at a rate equivalent to one half of what would be applied to cleared, worked agricultural land.

19. Regarding the appeal concerning the section 29 allowance, the evidence from the appellant was that the market values were $35,000 per acre or $43,000 per acre, whereas the engineer allowed $15,000 per acre. The Tribunal agrees that the $15,000 figure is too low and finds that the $35,000 per acre figure is more appropriate, given the amount paid for the land, and this value shall be used in the revised report.

20. Under the heading of ’Future Maintenance’ at the bottom of page 11 and the top of page 12 in the Report, reference is made to a “new covered drain” and a new “CBMH-5” and “supply, placement and compaction of Granular A … (260 tonnes)” all being installed as maintenance work in the future. These works would all have been “improvements” to the drain that was proposed to be assumed and could not have been installed as maintenance or repair under section 74 of the Act but would have to have been undertaken after a new report was prepared in accordance with section 78 of the Act. Accordingly these references are not legal in the current Report and are not to be included in the revised report.

Order of the Tribunal

For the reasons stated above, the Tribunal issues the following orders.

1. The appeals of 2217273 Ontario Inc., o/a Gryphon Automation, are granted.

2. The Report is referred back to the Municipality to delete the assumption of the existing drain upstream of station 0+224 and to delete any and all work currently proposed upstream of that point.

3. The revised report shall incorporate construction of the 0.5 m high berm, as proposed by Crozier and Peralta and detailed on the Crozier plan of December 2, 2011, along the top of the existing fill slope on the east side of the Appellant’s property, with a 2:1 slope on the east side and a 4:1 slope on the west side, and hydro-seeding to establish a vegetative cover. The existing fill slope shall not be regraded; however, any areas of active erosion shall be stabilized with hydro-seeding, or, if absolutely necessary, erosion mat. Also, the emergency overflow spillway shall not be installed.

4. For assessment purposes in the revised report, the drainage area boundary in the Appellant’s property, roll number 650-05100, shall be along the top of the berm, but a working space will be established off-set west of the west edge of the berm, of sufficient width to allow for construction and for future access by the Drainage Superintendent for maintenance purposes.

5. As mentioned above in item 9, for assessment purposes in the revised report, all of the costs associated with building the berm, including any allowances and any other work done there, shall be assessed 50% to the Murney property and 50% to the Brunato property.

6. For assessment purposes in the revised report, the drainage area boundary in the Brunato property, roll number 650-04710, shall extend from the northeast corner of that property to the southeast corner of the Murney property, at the south end of the berm, and that triangular area shall be assessed at a rate equivalent to one half of what would normally be applied to cleared, worked agricultural land.

7. Labelling of and reference to the outlet watercourse shall be corrected to read STURGEON CREEK in the revised report.

8. In the revised report, access to the working space on the appellant’s property shall be specified to be through the appellant’s property, rather than through the Cristofari property.

9. In the revised report, it shall be stated that assessments for maintenance shall be based only on the outlet assessments in the schedule of assessments for construction, with the exception of assessments for maintenance of the berm which shall be assessed 50% to the Murney property and 50% to the Brunato property.

10. In the revised report, the Cristofari property (roll number 650-05400) shall be provided with a legal outlet at its property line, including a junction box structure.

11. A figure of $35,000 per acre shall be used for any section 29 allowance provided to the Appellant’s property in the revised report.

12. The references to recommended new works in the ’Future Maintenance’ section of the existing Report shall be deleted in the revised report.

13. The revised report shall be provided to the Municipality no later than April 4, 2016.

14. Once the revised report is provided by the Engineer, the Tribunal directs the Municipality to circulate the revised engineer’s report to all assessed landowners, as the assessments for each will have changed. An Affidavit of Service of the revised engineer’s report is to be sent to the attention of the Tribunal Coordinator. There will be no Council meeting to consider the report nor will there be a Court of Revision.

If there are any appeals regarding the revised report by any assessed landowner, this Tribunal panel shall remain seized of this matter and will hold a hearing at a date to be determined. Assessed landowners will have 30 days from the sending out of the revised report to file appeals to the attention of the Clerk of the Municipality. Appeals shall be limited to challenges to the revised assessments and to matters listed in Section 48 of the Act, but Section 48 matters will only be considered as they relate to design and allowance issues not in compliance with this decision.

15. 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 original and the revised report as well as the Engineer’s fees and expenses for attending and participating in the Tribunal hearing(s).

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