Gary and Tamara Thompson v. Township of Zorra, 2016 ONAFRAAT 7

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: Henderson Creek Drain 2015 (RE) Township of Zorra

STATUTE: Drainage Act

HEARING: January 22, 2016

DATE OF DECISION: April 7, 2016

15Henderson015

NEUTRAL CITATION: 2016 ONAFRAAT 07

HENDERSON CREEK DRAIN 2015 Township of Zorra

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 Gary and Tamara Thompson of Ingersoll, Ontario under section 54(1) of the Drainage Act from the decision of the Court of Revision pertaining to the Henderson Creek Drain 2015.

Before: Paula Lombardi, Vice-Chair; Andrew McBride, Member; Fred Stulp, Member

Appearances: Gary Thompson - Appellant M.P. DeVos, P. Eng. - Engineer who prepared the Report Kathleen Young, Assessed Landowner

DECISION OF THE TRIBUNAL

Background

This hearing was held by the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) in the Township of Zorra (“Township”) on January 22, 2016. The engineer’s report dated January 16, 2015 for the Henderson Creek Drain 2015 (“Engineer’s Report”) was prepared by Spriet Associates Engineers & Architects (“Engineer”), and signed by M. P. DeVos, P.Eng. The appeal to the Tribunal was filed by Gary and Tamara Thompson of Ingersoll, Ontario.

Ashely Sage, Clerk of the Township of Zorra, 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 Township filed Affidavits of Service, as proof that all parties had been served with the Notice of Hearing and the Notice of Rescheduling of Hearing.

Ms. Young, an assessed landowner, requested to be a party to the appeal filed.

Overview

The Engineer’s Report was prepared under sections 4 and 78 of the Drainage Act (“Act”) for the Henderson Creek Municipal Drain 2015 (“Henderson Drain” or “Drain”). Note that, while the Engineer’s Report has the date of 2015 on the cover, it does refer to 2013 on page 1. The drainage work proposed in the Report is not actually on the existing main portion of the Henderson Creek Drain but rather on three tributaries to it, namely the Stephenson, Cuthbert and VanNes Branches. The work on the Stephenson and Cuthbert Branches was initiated by requests from affected landowners. The work on the VanNes Branch was initiated by a petition signed by a landowner whose lands consist of more than sixty percent (60%) of the area requiring drainage.

The Stephenson and Cuthbert Branches of the Henderson Drain were last reconstructed pursuant to an engineer’s report in or around July 1976. The Main Drain was last reconstructed pursuant to an engineer’s report in or around November 1990.

The total watershed area of the three Branch Drains is described as containing approximately eighty-six (86) hectares. The area requiring drainage for the VanNes Branch is described as part of the east half of Lot 12, Concession 3.

The Engineer’s Report concluded that the watershed identified in the 1976 engineer’s report for the Stephenson Branch was inaccurate and that the tributary area naturally draining to the Stephenson Branch from the petitioner’s land is actually larger than what was initially identified. The existing slope of the Stephenson Branch is flatter at the upstream end and becomes steeper as it goes downstream, with the exception of the downstream 56 metres. This results in the middle portion of the Stephenson Branch having sufficient capacity to accommodate the additional area whereas the upstream and extreme downstream portions of the drain are unable to accept the additional area.

The Engineer concluded that the extreme downstream portion of the Stephenson Branch and all of the Cuthbert Branch are undersized by current standards. The Engineer also observed trees growing along the upper portion of the Cuthbert Branch and along the entire downstream section of the Stephenson Branch. The overflow swale along the Main Drain was observed to be full of silt and the Engineer concluded that the Main Drain no longer has the designed capacity or depth.

The improvements being proposed in the Engineer’s Report include increased capacity for the existing municipal piped drains. The Engineer found that there were no changes in flow occurring from development or other runoff characteristics within the watersheds of the Stephenson and Cuthbert Branches. The only change to these two Branches is the accommodation of more of the existing flows underground.

Municipal drains in agricultural areas are designed as low flow pipes with a large portion of the surface water flows continuing across the land. The Engineer noted that the increase in peak flows from the improvements (which are short in length) on these branches is minimal.

The Engineer held a series of meetings with the affected landowners to review the preliminary findings. At the meetings, Ms. Young advised that her property is appropriately drained by the existing Stephenson Branch and that any proposed drainage works should be kept to a minimum.

Presently, the Cuthbert Branch runs southerly through the Thompson property and connects to the Stephenson Branch approximately 76 metres from the Henderson Creek Main Drain. Initially, the Engineer was asked to investigate relocating the Cuthbert Branch so that it would flow straight westerly, just south of the existing pond on the Thompson property, to connect to the Main Drain upstream of the Stephenson Branch. However, after reviewing the details and costs of that relocation, it was the Engineer’s understanding that the property owners in the area agreed to abandon the Cuthbert Branch. After the Engineer’s Report was submitted in September 2013, one of the affected landowners, Ms. Young, indicated that she never did agree to the abandonment proposal and requested that the Cuthbert Branch remain part of the municipal drainage system. It was after this request that the Township referred the Report back to the Engineer to incorporate the earlier requested revision that the improved Cuthbert Branch be located in a westerly direction on the Thompson property, south of the existing pond, to the Main Drain.

Accordingly, the January 2015 Engineer’s Report recommends that:

• the existing overflow swale on the Main Drain of the Henderson Creek Drain be cleaned as a maintenance project;

• the lower 204 metres of the Stephenson Branch be replaced with a new 300 mm to 450 mm sewer pipe including related appurtenances;

• the existing portion of the Stephenson Branch adjacent to this new section of pipe be officially abandoned as a municipal drain;

• the lower 70 metres of the Cuthbert Branch be relocated in a westerly direction into the Henderson Creek Main Drain with 350 mm to 450 mm tile/sewer pipe;

• a new catchbasin be installed on the Cuthbert Branch at the southwesterly edge of the pond;

• the newly constructed closed drain identified as the VanNes Branch, consisting of 200 mm tile, be incorporated to provide a sub-surface drain outlet for the southeast part of Lot 12;

• a new catchbasin and berm be installed at the upstream end of the VanNes Branch; and

• the remaining portions of the Stephenson Branch upstream of the Thompson property be included, with a new assessment schedule, for future maintenance purposes.

Issues

The issue from the appeal by Gary and Tamara Thompson is as follows:

1. Should the assessments for the Stephenson Branch, as contained in the Engineer’s Report, and the assessments for the Cuthbert Branch, as amended by the Court of Revision, be modified?

Evidence

M.P. DeVos, P. Eng., Engineer who prepared the Report

Mr. DeVos advised that the 1990 reconstruction of the main Henderson Drain resulted in the installation of a 900 mm diameter pipe in the bottom of the open drain, with backfilling and regrading of the open drain, such that it would act as a swale to carry excess flows at times of high runoff.

The Engineer noted that both the Cuthbert and Stephenson Branches pass through the Thompson property. The Cuthbert Branch crosses the easterly portion of the Thompson property and serves the watershed to the north, consisting of large portions of the Young and VanNes properties, as well as three other properties. The Stephenson Branch runs along the south side of the Thompson property, very close to the property line, and provides outlet to the southeast part of the watershed consisting mainly of the VanNes and Young properties plus parts of two roads and thirteen smaller lots. The Engineer concluded that a significant portion of the VanNes property in the east half of Lot 12 was not included as part of the 1976 drain watershed. A field investigation of the surface drainage found that the VanNes property was newly tiled and connected to the Stephenson Branch approximately 134 metres into the Young property.

At an on-site meeting, Mr. Thompson indicated that his goal is to construct a house on his property. Thompson advised that both the Cuthbert and the Stephenson Drains are old and have numerous issues including some problematic blow outs. Mr. Thompson requested that the new Stephenson Branch be reconstructed with solid pipe through his property due to the large number of trees along the route of the drain. Mr. Thompson advised the Engineer that the existing Cuthbert Branch interferes with the location of his proposed house.

Mr. Thompson considered moving the house to the easterly property line so that the Cuthbert Branch could continue to be directed to the Stephenson Branch. However, it was concluded that the change in the location of the house would not be adequate and, as a result, Mr. Thompson requested that a new Cuthbert Branch be constructed in a straight line westerly to a separate outlet to provide more area for the construction of the house.

Also, prior to the completion of the Report, Ms. Young declined the Engineer’s suggestion that the entire Stephenson Branch be reconstructed to current municipal drain standards.

The Engineer reviewed Mr. Thompson’s proposal with the landowners in the area and prepared an estimate of costs. However, after reviewing the revised proposal, Mr. Thompson felt that the costs were too high and requested that the Cuthbert Branch be abandoned and removed from the Engineer’s Report. Accordingly, the September 20, 2013 Engineer’s Report included the abandonment of the Cuthbert Branch.

At the meeting to consider the Report, Ms. Young indicated that she had concerns about abandoning the Cuthbert Branch and requested that the Engineer revise the Report to include the Cuthbert Branch as initially proposed, that is to run straight westerly, in the north part of the Thompson property just south of the pond, directly to the Main Drain outlet, and this is what the current Report proposes.

The Engineer further advised the Tribunal that both the Cuthbert and Stephenson Branches are more than 40 years old and require replacement and upgrading. The Cuthbert Branch tile drain extends approximately 70 metres upstream into the Young property and ends at that point. Surface water flow from the large area upstream is conducted in a swale and enters the tile at that location.

The Engineer considered numerous alternatives for constructing these drains across the Thompson property including connecting the two Branches and extending a twin pipe system to the outlet or constructing one larger tile all the way downstream to the North Town Line Road. However, these alternatives were never put on paper as the costs would have been too high and costs were a significant concern for all of the landowners.

The Engineer advised that, after submitting his Report in January 2015, he was informed that the extreme upstream parcel of land in the Cuthbert Branch watershed had been under drained out of the watershed. Accordingly, he prepared a revised assessment schedule for the Cuthbert Branch dated April 21, 2015 that was adopted at the Court of Revision.

Upon questioning, Mr. DeVos advised that the pipe connecting the new ditch inlet catch basin at the pond to the Cuthbert Branch will be 250 or 300mm diameter sewer pipe and that a wye connection will be placed at the outlet of the Cuthbert Branch to the Main Drain. These two items were omitted on the drawing. Furthermore, he advised that the “new tile drain details” for the Cuthbert Branch were omitted from the drawing. Additionally, Mr. DeVos confirmed that the Stephenson Branch will consist of two 200mm tiles between stations 0+325 and 0+456, one being the 40 year old original tile and the other being the proposed new concrete drain tile.

The Engineer stated that a modified Todgham method was applied for the assessment of the costs between outlet and benefit. The Stephenson Branch was divided into two segments; the section of the drain on the Thompson property being Section 1, and the section of the drain on the lands located upstream of the Thompson property being Section 2. Initially, a benefit rate of 62% was charged to this downstream section, Section 1, but then a special benefit assessment was made to the VanNes property out of that 62% which lowered the actual benefit assessment rate to 39%. Therefore, 39% of the cost of Section 1, or $8,670, was assessed to the three downstream properties as benefit and $5,750 of that was assessed to the Thompson property. The Thompson property was also assessed $51 for outlet but was not assessed at all in Section 2. The Engineer indicated that the benefit rate that he applied to the Thompson property here was somewhat higher than that which he normally applies to agricultural land because the Thompson property is residential land.

With respect to the Cuthbert Branch, Mr. DeVos explained that there was only one section for assessment purposes since all of the proposed work is on the Thompson property and the total cost is $22,880. Special assessments were made to the Thompson property of $3,210 for the extra cost of the sewer pipe and $2,480 for part of the Report revision cost as the Engineer determined that it was primarily the Thompsons’ responsibility that the 2013 Report had to be revised. Mr. DeVos estimated the total revision cost at about $4,000. Mr. DeVos also made a $2,000 special outlet assessment to the upstream lands for the cost savings that resulted due to following the new route westerly through the Thompson property. This left $15,100 of the total cost to be assessed in the normal manner and he applied a rate of 40% as benefit to the Thompson property and 60% as outlet to the upstream lands. This resulted in the total assessments to the Thompson property being $11,770 for benefit and $46 for outlet.

The VanNes Branch was assessed separately and did not affect the Thompson property.

Gary Thompson, Appellant

Mr. Thompson indicated that he is frustrated with this drainage process which began over four years ago with a petition submitted in December 2011. In January 2012, Mr. Thompson had the final architectural drawings prepared for his proposed house.

On March 8, 2012 a site meeting was held regarding the drainage petition that was submitted by Mr. VanNes and Mr. Thompson thought that the drain was going to move forward fairly quickly. While Mr. Thompson indicated that he requested the relocation of the Cuthbert Branch to provide a greater buildable area on his lot, this relocation has come at a heavy price to the Thompsons.

Mr. Thompson indicated that the Stephenson Drain through his property is in a deteriorated condition and that this has been exacerbated by additional flows from the tiling of the VanNes property. Furthermore, the existing catch basin and berm located at the south-east corner of his property can no longer handle the increased amount of surface water. The surface water now overflows the existing small berm and enters their property.

Mr. Thompson agrees with Mr. DeVos that the current drains are no longer able to be repaired and need to be replaced to current standards which should result in improved water flow.

Mr. Thompson questioned why the Stephenson Branch to the east is not going to be improved particularly with the large growth of trees in the area.

Mr. Thompson pointed out that the Report recommends that basement drains and downspouts not be connected to the new drain; therefore, there will be no benefit to their property in that regard.

Mr. Thompson referred to the section 22 benefit assessments for the Stephenson Branch and that the drain only controls water from the agricultural lands situated upstream of his property. Therefore, Mr. Thompson took the view that a larger percentage of the cost for the Stephenson Branch should be assessed to the upstream agricultural lands, particularly since those landowners, Young and VanNes, initiated the application under the Act.

The Cuthbert Branch currently runs from the north to the south through the east part of the Thompson property. Mr. Thompson completed an elevation survey to determine the flood lines and the buildable area was identified as the north east corner of the property. Mr. Thompson’s investigation and observation of this drain indicated that it was not functioning properly, as only a trickle of water ever flowed through it, and the majority of the flow from upstream bypasses the tile drain and flows into his pond which then overflows flooding his property. During his submissions, Mr. Thompson admitted that he had requested that the Cuthbert Drain be relocated.

At the initial onsite meeting, Mr. Thompson suggested that the costs of relocating the Cuthbert Drain be distributed amongst all landowners. Mr. Thompson indicated that he made several suggestions relating to the relocation of the Cuthbert Drain. Mr. Thompson could not understand how the costs of upgrading a non-functioning drain to current standards initially resulted in an $8,000 assessment to his property.

Mr. Thompson then pursued the abandonment of the Cuthbert Branch which, in his opinion, was the most economical proposal for all the parties. According to Mr. Thompson he discussed the abandonment of the Cuthbert Branch with Ms. Young’s husband, Mr. Lesser, as well as the Drainage Superintendent and Mr. DeVos.

Mr. Thompson advised that he and his wife were unable to attend the Township Council meeting in 2013 where the first Report was considered when Ms. Young attended and opposed the abandonment of the Cuthbert Branch. The Engineer advised Mr. Thompson that because Ms. Young opposed the abandonment of the Cuthbert Branch the Report was referred back to him for revision. Mr. Thompson advised the Tribunal that the costs of the drainage work had risen dramatically for his property despite nothing in the plans changing since his meeting with the Township Drainage Superintendent and the Engineer in the fall of 2014.

Mr. Thompson expressed frustration with the process and that, despite the costs of the drainage works being increased to his property, he was unable to see any benefits. Mr. Thompson was disappointed that, despite providing numerous options, the Engineer pursued the relocation of the Cuthbert Branch.

Mr. Thompson indicated his concern that the other landowners tiled more land which resulted in increased drainage in the area. It was Mr. Thompson’s understanding that the drainage work was scheduled to be constructed approximately three years ago.

Mr. Thompson felt that the process was unfair and unjust and he could not understand why the process took so long and why most of the additional engineering fees were added to his assessment.

Kathleen Young, Assessed Landowner

Ms. Young also expressed frustration about the duration of the project in that it has taken over four years. Ms. Young testified that there have been many issues associated with drainage in the area. Some of these issues include Mr. VanNes tiling across her property to connect to the municipal drain. Ms. Young was also concerned about the miscommunication, or lack of communication, by the Engineer and the Township staff with the landowners impacted by the drainage works.

Ms. Young stated that, contrary to the statements made by Mr. Thompson, she was never in agreement with the abandonment of the Cuthbert Branch. Ms. Young felt that abandoning the Cuthbert Branch would not be in her or the other landowners’ best interests.

It was Ms. Young’s understanding that, after the first Engineer’s Report was referred back by the Council, the Thompsons requested that the Cuthbert Branch relocation be included in the Engineer’s Report so they could construct a house on their property. At the request of the Thompsons, they had a meeting where they outlined their position on the abandonment of the drain and advised that they did not support the abandonment.

Ms. Young indicated that they consistently have had problems with Mr. VanNes and that he crossed her property and connected to the municipal drain without any permission from her or the Township.

Ms. Young indicated that there was considerable confusion over which drain was to be studied by the Engineer. Initially just the Stephenson Branch was the subject of the petition but, at the Council meeting in January 2012, the request was altered to include both the Stephenson and Cuthbert Branches. In the summer of 2012, Ms. Young recalled receiving a call from the Engineer advising that only the Stephenson Branch was going forward as an insufficient number of landowners in the north section had signed the petition. Then, approximately a year later, the abandonment of the Cuthbert Branch was proposed in the Engineer’s Report.

Ms. Young indicated that she was not aware of the Court of Revision hearings held on May 19 and August 11 and was advised of the appeal to the assessment after receiving a letter from the Township office in late August 2015.

Findings and Analysis

The Tribunal finds that, when applying the Todgham method of calculating the assessments, the benefit assessment percentages applied by the Engineer for the downstream portions of the Cuthbert and Stephenson Branches were excessive in the circumstances. The Tribunal finds that the benefit assessment should be calculated at less than forty percent (40%) for the Thompson property on the basis that forty percent is considered too high for the extreme downstream sections of the drains and that the residential land is not distinct from the agricultural lands in the area. The Tribunal has reduced the benefit assessments to the Thompson property on the attached revised schedules and reallocated the assessments to all of the other properties accordingly.

The Tribunal finds that the September 2013 Engineer’s Report had to be revised as the majority of the landowners directly affected by the Cuthbert Branch did not agree to its abandonment. The Engineer testified that he relied on information provided by Mr. Thompson that the other landowners agreed to the abandonment and, based on this information, the Engineer assessed a significant portion of the revision costs for the 2015 Engineer’s Report directly to the Thompson property. The Tribunal finds that it is not reasonable to charge Mr. Thompson for the revisions to the Engineer’s Report as the duty of ensuring that the majority of the landowners support the abandonment falls on the Engineer.

Section 84 of the Act places the responsibility for abandonment procedures on the Township and the Engineer not on an individual landowner.

Section 84 states:

If three-quarters of the owners of land assessed for benefit in respect of a drainage works, who, according to the last revised assessment roll, own not less than three-quarters of the area assessed for benefit as shown in the by-law or by-laws under which the drainage works exist, send a request asking for the abandonment of the whole or any part of the drainage works, the council of the initiating municipality shall, as soon as reasonably possible, send a notice to all of the owners of the land assessed for the drainage works stating its intention to abandon the drainage works or the part of the drainage works specified in the notice, unless, within 10 days of the date the municipality’s notice was sent, any owner sends a notice to the clerk of the municipality requesting that the report of an engineer be made on the proposed abandonment.

The Tribunal finds that the assessment of the report revision costs to any of the landowners is unfair and orders that the amount of $3,866 be removed from the cost of the project thereby reducing the Cuthbert Branch cost estimate to $19,014 and the total report cost estimate to $67,034. The Engineer and Township shall be responsible for determining how to best deal with the amounts removed from the total report cost.

The Tribunal also notes that Schedule “D” - Assessment for Maintenance of the Stephenson Branch was not included in the Engineer’s Report. The Engineer indicated that it had been inadvertently left out of the revised Engineer’s Report and should be included. The Tribunal will order that this Schedule D be made part of the Report.

The Tribunal notes that the Petition was apparently dated incorrectly by the Clerk as December 22, 2012 rather than December 22, 2011.

The Tribunal notes that the assessment schedule for the Cuthbert Branch was apparently changed at the second sitting of the Court of Revision on August 11, 2015 but that the revised schedule was not provided to the Tribunal or the parties before the hearing.

The Tribunal notes that the design criteria for the Cuthbert Branch was omitted from the Engineer’s Report. Upon questioning, the Engineer advised that this criteria was the same for the Cuthbert Branch as for the Stephenson Branch, that is, 38mm in 24 hours.

The Tribunal notes that a number of items have been omitted from the drawing, namely: the new tile drain details for the Cuthbert Branch, the size of the catchbasin connection pipe on the Cuthbert Branch, the wye connection at the downstream end of the Cuthbert Branch and a north arrow on the plan. All of this information should be added and a revised drawing issued. Also with respect to the drawing, the Tribunal notes that the title indicates 2013. This should be changed to 2015 to avoid confusion.

The Tribunal notes that the Township has already given third reading to the By-Law adopting the Report that is before the Tribunal. This By-Law, number 19-15, will have to be rescinded and a new By-Law passed to reflect the Tribunal’s decision and any amendments to the Report.

Order of the Tribunal

The Tribunal orders that:

1. The Report revision cost of $3,866 shall be removed from the cost estimate of the Cuthbert Branch thereby reducing it to $19,014 and reducing the total project cost to $67,034.
2. The assessments to the properties included in the Stephenson and Cuthbert Branches shall be revised as indicated in the attached Schedules of Assessment.
3. The appeal by the Thompsons under section 54(1) is hereby granted in part, as detailed in the revised Schedules of Assessment.
4. The Schedule “D” – Assessment of Costs for Maintenance of the Stephenson Branch as attached shall be included in and form part of the Engineer’s Report.
5. The portion of the Cuthbert Branch that runs southerly across the Thompson property shall be abandoned as part of the Municipal Drain
6. To avoid confusion in the future, the Engineer shall revise the title of the drawing that accompanies this Report to read “HENDERSON CREEK DRAIN 2015’ rather than 2013, since the proposed work is substantially different in the 2015 Report. The other items that were omitted from the drawing, as above-mentioned, shall be added to the drawing before it is reissued. This shall be done by the Engineer at no additional cost to the project
7. The non-administrative costs of the Township 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 attending and participating in this hearing.
8. There shall be no other Order as to costs and all parties shall be responsible for their own costs.

Dated at London, Ontario this 7th day of April, 2016.