Bak v. Township of Wilmot, 2016 ONAFRAAT 9

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:

St. Agatha Municipal Drain 2015 (RE) Township of Wilmot

St. Agatha Municipal Drain 2015 (RE) Township of Wilmot 2016ONAFRAAT09

STATUTE:

Drainage Act

HEARING:

April 11 and 12, 2016

DATE OF DECISION:

May 11, 2016

020stagatha15

NEUTRAL CITATION:

2016ONAFRAAT09

ST. AGATHA MUNICIPAL drain 2015

Township of Wilmot

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 Pierre Bak and Janet Ott, Jeffery and Toni Grant, Theresa Grant, and Tom and Marcia Schmidt, of St. Agatha, Ontario under sections 48(1) and 54(1) of the Drainage Act from the Engineer’s Report and the decision of the Court of the Revision on the St. Agatha Municipal Drain 2015 in the Township of Wilmot.

Before: John O’Kane, Vice-Chair; Andrew McBride, Member; Sarah Judd, Member

Appearances: Pierre Bak and Janet Ott – Appellants Jeffery and Toni Grant – Appellants Dan Smukavich – Representative for Jeffery and Toni Grant Theresa Grant – Appellant Marcia Schmidt – Appellant John Kuntze, P. Eng. – K. Smart Associates Limited, Engineer who prepared Report Robert Kraehling – Petitioner for Drain, Witness for Municipality Leonard Haid – Petitioner for Drain, Witness for Municipality Norbert Dietrich – Petitioner for Drain, Witness for Municipality Kelly Robinson – Road Maintenance Supervisor, Region of Waterloo, Witness for Municipality Bruce Carter – Assessed landowner Deborah Kroetsch – Assessed landowner

DECISION OF THE TRIBUNAL

This hearing was held in the Township of Wilmot, St. Agatha, Ontario on April 11 and 12, 2016. Pierre Bak & Janet Ott, Jeffery & Toni Grant, Theresa Grant, and Tom & Marcia Schmidt appealed to the Tribunal under sections 48(1) and 54(1) of the Drainage Act regarding the Report of the Engineer and from the decision of the Court of the Revision on the St. Agatha Municipal Drain 2015. The Engineer’s Report dated August 6, 2015 for the St. Agatha Municipal Drain 2015 (“the Report”) was prepared by John Kuntze, P.Eng. of K. Smart Associates Limited (“the Engineer”).

Barbara McLeod, Clerk of the Township of Wilmot, performed the duties of Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing. The Clerk filed an Affidavit of Service as proof that all parties had been served with the notice of the rescheduled hearing dated March 7, 2016.

Background

This proposed drain is located in the northwest part of the Township of Wilmot, in the Region of Waterloo, immediately west of the City of Waterloo. The drainage area is approximately 253 hectares (624 acres) in total area and includes most of the settlement area of St. Agatha as well as approximately 194 hectares (480 acres) of adjacent agricultural land, mainly to the northeast of the village, but with a smaller amount draining from the southeast. Two roads bisect the drainage area; Erb’s Road (Regional Road #9) runs for a length of approximately 2.2 kilometres, through the centre of the watershed, in an east-west direction; and Notre Dame Road (Regional Road #12) extends for a distance of approximately 1.3 kilometres through the west part of the affected area, in a northwest to southeast direction. Accordingly, land uses in the drainage area include; residential, institutional, commercial, light industrial, rural residential, agricultural, woodlots and wetlands/ponds. The seven wetland/pond areas are generally located in the southeast quarter of Lot 6, the south half of Lot 5, and the north half of Lot 4 in the Concession North of Erb’s Road (Conc. NER), east of St. Agatha, and vary in size from the smallest being approximately 50 metres (m) in diameter to the largest being approximately 300m in length and 100m in width. All but one of these ponds/low areas appear to be designated as “wetlands” by the Grand River Conservation Authority.

This Engineer’s Report has proceeded as a result of five (5) petitions submitted to the Township between May 2008 and October 2013. The first petition was submitted on May 20, 2008 by Robert Kraehling for Kraehling Farms Inc. for the southeast part of Lot 6, Conc. NER. The second petition was submitted on May 15, 2013 by the Director of Transportation for the Region of Waterloo and requested outlets for the two Regional Roads within the drainage area. The third petition was submitted on May 31, 2013 by N., L. and R. Dietrich and described the southeast portion of Lot 4, Conc. NER as the area requiring drainage. The fourth petition was submitted on June 3, 2013 by M. and L. Haid and described the southeast part of Lot 5, Conc. NER as the area requiring drainage. The fifth petition was filed on October 31, 2013 by Robert Kraehling for RJS Farms Ltd. and described a small area in the northeast corner of Lot 5, Conc. SER, that is, on the south side of Erb’s Road, as the area requiring drainage. The Engineer found that all of these petitions complied with section 4 of the Drainage Act. As a result of the May 2008 petition, the Engineer prepared a report dated April 5, 2013 but, before it was adopted, the other petitions were submitted. Accordingly, the Township instructed the Engineer to revise his report so as to deal with all five petitions and that Report, dated August 6, 2015, is the subject of this decision.

The current Report has a total estimated cost of $577,450 and proposes the following drain components.

Main Drain – A gabion outlet structure, 805m of 750mm solid plastic pipe, 18m of 750mm smoothwall steel pipe across Erb’s Road, 3 large junction boxes, and 2 large catchbasins. This drain will provide outlet for the southeast quarter of Lot 6, Conc. NER on the north side of Erb’s Road, including the storm sewers on Erb’s Road, and the northwest part of Lot 6 in the Concession South of Erb’s Road (Conc. SER) and will outlet onto the ground surface in the gabion structure on the west side of Lot 6, Conc. SER, beside Notre Dame Road. It is proposed that the upstream end of this drain will extend approximately 90m into Lot 6, Conc. NER and terminate in a junction box beside the 4m deep northerly pothole in that property. At this upstream terminus, the drain will be about 1m lower than an old tile drain outlet and about 2m higher than the bottom of the northerly pothole.

West Branch – 88m of 375mm solid plastic pipe, one large catchbasin and berm and a 67m long swale that will provide outlet for that portion of St. Agatha north of Erb’s Road as well as the portion south of Erb’s Road and west of Notre Dame Road. The proposed swale will collect runoff from the road known as Summerfield Lane and direct it to the catchbasin and pipe outlet. The pipe portion of the Branch will eliminate a surface water runway that exists across the east part of Lot 6.

Notre Dame Branch – 595m of existing ditch and swale to be somewhat improved and incorporated as a municipal drain, connecting to and extending north and west from the West Branch, to provide outlet for that part of Notre Dame Road north of Erb’s Road and the affected lands upstream thereof, which are mainly residential.

East Branch – 206m of 600mm solid plastic pipe, 272m of 525mm concrete drain tile, 472m of 250mm solid plastic drainage tubing, 456m of 200mm solid plastic drainage tubing, 2 large catchbasins, 3 - 600mmx600mm catchbasins, 1 junction box, as well as the placement of fill to a depth of approximately 3.4m through the southeast pothole in the southeast quarter of Lot 6, Conc. NER to provide bedding and cover for the 600mm pipe. The fill material will be obtained on-site. This Branch is proposed to extend easterly from the upstream end of the Main Drain for 206m through the southeast part of Lot 6, across the full width of Lot 5, and for a further 409m into Lot 4, where it is proposed to terminate in a ditch inlet catchbasin on the north side of Erb’s Road. This Branch will provide a surface water and underdrainage outlet for part of Lot 6, Lot 5, the south part of Lot 4 and the easterly 700m of Erb’s Road. The large ditch inlet catchbasin and berm proposed to be set on the Lot 5-6 property line will pick up the surface water flow running out of the large pond on Lot 5 and will eliminate a surface water runway that exists across the east part of Lot 6.

Strauss Branch – 62m of 375mm solid plastic pipe, a large junction box and a large ditch inlet catchbasin. This proposed drain will run from station 0+138 on the East Branch, generally in a southeasterly direction up to the north side of Erb’s Road where it will terminate in a large ditch inlet catchbasin and berm, in front of a 600mm culvert that passes through Erb’s Road and carries surface water from the Road and from part of the Strauss Court subdivision, which is located on the south side of the Road. This will eliminate a surface water runway that exists in the southeast corner of Lot 6.

Kraehling Branch – 32m of 300mm smoothwall steel pipe to be bored and jacked through Erb’s Road and a 600mm x 600mm catchbasin to be set on the south side of the Road. This proposed Branch is to connect to the East Branch at station 0+950 and will provide outlet for 0.3h of the RJS Farms Ltd. agricultural land and approximately 250m of roadside ditch on the south side of the Road.

Haid Branch – In the Engineer’s Report, this branch is specified as 361m of 525mm concrete tile to run in a northwesterly direction, from station 0+478 on the East Branch, through the southeast part of Lot 5, just east of the large pond, to terminate in a large ditch inlet catchbasin, at the north end of the Haid property, at the point where surface water flows onto the Haid property from the ponds on the Bak-Ott property. This tile was designed to accept underdrainage flow from all of the agricultural lands in the upstream or north part of the watershed. At the hearing, the Engineer proposed an alternate design for this Branch, entitled the Haid Branch Alternative, which is described later in this decision.

Virtually all of the current drainage area was involved in a 1913 Award Drain that included closed and open portions. For the most part, the Main Drain and the East Branch of the current proposal follow the same route as the 1913 drains, with the exception of the location of the Main Drain crossing of Erb’s Road and the Main Drain location in the northwest part of Lot 6, Conc. SER, which have been changed to avoid development that has occurred since 1913, and the upstream section (456m) of the East Branch which is proposed to be located on private property just north of the Erb’s Road allowance, instead of on the road allowance. An ‘existing watercourse’ is shown on the 1913 plan in the same location as the proposed new West Branch and Notre Dame Branch. As one would expect, these old tile drains are rather shallow and are not functioning properly.

Issues for Consideration

1. Are the benefits to be derived from the proposed drainage works commensurate with the estimated costs? (Section 48(1)(a) of the Drainage Act)

2. Should the proposed drainage works be modified on grounds to be stated? (Section 48(1)(b) of the Drainage Act)

3. Should the assessments as contained in the Engineer’s Report, and as upheld by the Court of Revision, be modified? (Section 54)1) of the Drainage Act)

Evidence

Pierre Bak and Janet Ott – Appellants

Mr. Bak and Ms. Ott own a rather odd shaped piece of property that includes the southwest quarter of Lot 4 and an L shaped piece of the south half of Lot 5, adjacent to Lot 4, all in Conc. NER. The total area of this property is 34.5h (~85 acres). All of the property is assessed into the Main Drain and the East Branch, while the northerly 24.9h (~62 acres) are also assessed into the Haid Branch. The total assessment allotted to the property in the Engineer’s Report is $33,966.

Mr. Bak provided the following evidence.

1. He has lived on this property and farmed it for 45 years.

2. The surface soil is a sandy loam with a gravelly sub-soil. His land has good natural drainage except for some low runs and some lower areas. He grows corn, beans, wheat and hay and has a number of horses.

3. There has always been a 5 acre pond at the rear of his property. It receives water from the surrounding land on three sides. Some of his land does not flow to the pond. The pond fills quickly in the spring and, in the past, dried up in the summer, so he spent $16,000 to have it deepened and now it provides an outlet for his two tile drains and it retains water year-round that allows him to irrigate his sweet corn crop in August. He dug the pond to a fifteen foot depth and it was all sand.

4. He refers to his pond as a ‘reservoir’ as it collects and stores the surface runoff from some of his land and from some neighbouring land. This water infiltrates and helps to recharge the groundwater.

5. He contends that he does not have water flowing westerly toward Mr. Haid’s property and, therefore, his land should not be assessed into the proposed Haid Branch.

6. He has installed tile in the two low runs in the rear part of his property and these tiles outlet to his pond. He has allowed his easterly neighbours to connect to his tile.

7. He has dug a shallow ditch westerly along his property line to act as an outlet from his pond and this ditch conducts his water to the low point where it can flow toward the Grant pond.

8. He does not see the need for the East Branch proposed to be constructed across the front (south end) of his property as the area requiring drainage on the Dietrich property is quite small and there is an old catchbasin in the road ditch that can be used as an outlet for that low area. A residential property owner to the east has already connected to this old basin.

9. The roadside ditch across the front of his property needs to be cleaned out as it has never been done in 45 years. If it was cleaned out it would relieve any drainage issues at the south end of his property and would also be a simple fix for the Dietrich drainage problem.

10. If a new drain is needed in this area, it should be constructed on the other side (the south side) of Erb’s Road, which is also owned by one of the petitioners, as he does not want it on his side of the road and he does not want to be responsible for the maintenance of it.

11. He is concerned that, if this drain proceeds, he will have to excavate his pond deeper as the drain will lower the water table faster after the spring runoff.

12. If the Haid Branch is altered and the roadside ditch is cleaned out, the assessment to his property should be lowered.

13. Mr. Bak provided a September 21, 2015 letter from the Grand River Conservation Authority (CA) to the Township wherein the CA recommends that the Township not proceed with the proposed drainage work as it will adversely affect wetlands identified in the St. Agatha Wetland Complex.

14. Both he and Ms. Ott feel that the benefits to be derived from the proposed drainage works are not commensurate with the estimated costs.

Upon questioning, Mr. Bak provided the following additional information.

15. He acknowledged that his tile drains and pond outlet to his ditch which eventually outlets onto the Haid property and then into the Grant pond.

16. He agreed that some of the roadside ditch across the front (south end) of his property was cleaned out by the Region but was stopped prematurely and that this water discharges to the west onto the Haid property. Ms. Ott stated that this ditch cleanout did not continue far enough to the west to provide sufficient outlet in the lowest area.

17. He acknowledged that the roadside ditch passes directly under or through at least two older hydro transmission towers in this area and through three new large steel hydro poles that replaced a damaged tower toward the west side of his property. The old pipe that is the outlet for the roadside catchbasin in front of the Dietrich property also passes under or through one of these towers.

18. He stated that the depressed areas on his property do not overflow to the west onto the Haid property, but they are low and do not dry out at the same time as his higher land, so he waits until they dry up before he works them to plant his crop.

19. Mr. Bak confirmed that he wants his assessment for this project to be zero.

Theresa Grant – Appellant

Mrs. Grant owns the southwest quarter of Lot 5, Conc. NER, which is immediately east of the Kraehling Farms property, and it is 17.4h or 43 acres in size. Mrs. Grant’s property contains about 95% of the large pond previously referred to. The East Branch Drain is proposed to cross the full width of the southeast part of her property, for a length of 141m, as 525mm concrete tile. The Haid Branch is proposed to be installed immediately east of her property, for its full length of 361m, approximately 110m of which will be right beside that portion of the upstream end of the pond that is on the Haid property. Her property is assessed for 16.1h into the Main Drain, the East Branch, and the Haid Branch for a total of $23,031.

Mrs. Grant was assisted in her testimony by Mrs. Schmidt who asked her a number of questions and the following information was provided.

1. Mrs. Grant has lived in this immediate area all her life, that is, for 75 years and, therefore, she is very familiar with the affected lands and their history.

2. She has lived on her property for 45 years.

3. She has seen water 15 feet deep in the Kraehling Ponds. Her observation is that these ponds always have some water in them.

4. The large pond on her property has never really dried up. Waterfowl frequent her pond every year.

5. She suggested the 1946 aerial photo shows water in her pond and the two ponds on the Kraehling property.

6. She asked where the species at risk information was from the Ministry of Natural Resources and Forestry (MNRF).

7. She suggested that the CA letter report has been misused and dismissed by the Engineer.

8. She does not want or need the proposed drain to cross her property.

9. She does not want to pay anything toward the proposed drain.

10. She does not want the proposed drains to affect her large pond.

11. She has tried to block off the outflow from her pond but has been unsuccessful; therefore, she admits that the water from her pond does flow to the southwest, across the J. Grant property and then into the ponds on the Kraehling property. In her memory, this has always been the case.

12. Her written appeal suggests that the estimated costs of the proposed drainage works exceed the benefits to be derived.

Upon questioning, Mrs. Grant provided the following additional information.

13. Mrs. Grant reconfirmed that, to her memory, her pond and the ponds on the Kraehling property have had water in them every year. She agreed that there was a ditch dug through her pond at some time in the past.

14. With the assistance of Mr. Kuntze, Mrs. Grant was shown the September 29^th, 2015 email response from the MNRF indicating that “there are no known species at risk associated with the proposed work area.”

15. Mrs. Grant indicated that she is very pleased to have this large pond on her property and she wants it to remain as it is. It is her understanding that it is a natural depression in the land that has never been excavated and is mainly spring fed.

16. To her knowledge, the CA has never informed her of any special restrictions on her land due to the existence of the pond.

17. Her cleared land has always been used for agricultural purposes and does not have any tile drainage.

18. Currently, she rents her land to Mr. Bak who confirmed that the soil type on the Grant property is similar to the soil type on his property.

19. She has not had any notification from the Province of Ontario that her pond area is provincially significant nor has she obtained or received any wildlife studies about her property; however, on one occasion, some university students spent a week doing a study on her property but she did not receive a copy of the report.

Jeffery and Toni Grant – Appellants

Jeffery and Toni Grant own the extreme southwest corner of Lot 5, Conc. NER, which is 2.4h or about 6 acres in size. This corner parcel is severed from the property owned by Jeffery’s mother, Theresa Grant. Jeffery and Toni have owned it since 2006 and, prior to that, his parents owned it since 1983. Their property is assessed into the Main Drain and the East Branch for a total of $10,604. They rent their agricultural land to Mr. Bak. The East Branch Drain is proposed to be installed across the full width of their property, a length of 131m of 525mm concrete tile, with a large ditch inlet catchbasin and berm at the downstream or west property line with Mr. Kraehling.

Mrs. Toni Grant provided evidence, as follows.

1. Surface water does flow out of Mrs. Grant’s pond through their property and into Mr. Kraehling’s property in a channel that has existed for many years. She suggests this channel can be seen on all the aerial photographs entered into evidence, from 1946 to 2012. This water is from other lands, not their land.

2. Their property is only 2.4h in area yet it is assessed $10,604, or $4419 per hectare, which is as much as 4.3 times higher than some neighbouring properties. Their assessment is much too high.

3. The drain is of no benefit to them. She questions the cost-benefit of the entire project as the land to be gained, especially on the Kraehling property, is minimal.

4. They are also concerned about the proposed outlet of the Main Drain as it will outlet water onto good agricultural land in another location downstream and could create a problem on the downstream land that will result in more cost to them in the future.

Tom and Marcia Schmidt – Appellants

Mr. and Mrs. Schmidt own part of the northeast quarter of Lot 6, Conc. SER, being 26.3h (65 acres) in total area, with 5.6h (~14 acres) assessed into the Drain. Their land is assessed into the Main Drain, the East Branch, and the Strauss Branch for a total of $1,687. Their land is immediately east and south of the Strauss Court subdivision on the south side of Erb’s Road.

Mrs. Schmidt presented evidence as follows.

1. Their land is comparatively higher in elevation with sandy loam soil such that rainfall is quickly absorbed.

2. They are concerned that their well will go dry due to this proposed work.

3. They are disappointed that the Council has not followed the recommendation of the CA to not proceed with this project, nor has Council considered the contents and recommendations of the Upper Alder Creek Subwatershed Study.

4. Some of the lands within the drainage area are environmentally significant and some are designated ‘environmentally constrained’ in the Township Official Plan.

5. Why has the detailed assessment of hydrologic and ecological impacts on the wetlands, as recommended by the CA, not been undertaken?

6. She contests the statement that Mr. Kraehling has always been able to work the potholes on his property as, from her observations, they are always flooded.

7. The lands affected here are designated as a Regional Groundwater Protection Area. Doesn’t this mean that they should not be drained but allowed to recharge the groundwater aquifer?

8. Their land has been unduly assessed as it does not drain to Strauss Court and, what does drain to the west, does not cause any detriment to their neighbour.

9. The costs of this project are much greater than any benefits to be derived so the project should be abandoned.

Upon questioning, Mrs. Schmidt provided the following additional information.

10. She did not know exactly what the ‘environmentally constrained’ designation means in the Township Official Plan.

11. She and her husband built a house on their property and have lived there for 27 years.

12. They do not farm their land but rent it to a neighbour.

13. She has never seen the northwesterly pothole in the Kraehling property dry.

14. She has never seen the northwesterly pothole in the Kraehling property worked up.

15. He has not spoken to the MNRF about whether or not any species at risk exist in the affected area.

16. She suggested that an agency, such as the Region, should buy the section of Mr. Kraehling’s property where the potholes exist to conserve the ponds for groundwater recharge.

17. She did not know why the CA and the MNRF are not in attendance at this hearing.

18. She is concerned about the adequacy of the proposed outlet of the Main Drain.

Bruce Carter – Assessed Landowner

Mr. and Mrs. Carter own the residential property known municipally as 49 Strauss Court which is located in the southwesterly part of this subdivision. Their property is assessed into the Main Drain, the East Branch and the Strauss Branch, for a total of $991.

Mr. Carter provided the following information.

1. The surface drainage from their entire property is to the west, as supported by his lot grading and drainage plan.

2. A test pit excavated on his property indicated that the soil is 99% sand to a depth of at least 13.8 feet.

3. Based on these two points, he suggested that his property does not require any improved surface drainage and the subsurface drainage is so good that the municipality did not require him to install a footing drain when he built his house, and his basement has always been dry.

4. The culvert under Erb’s Road at Strauss Court was installed for road drainage and the water flow from it is minimal.

5. He suggested the main purpose of this proposal is to drain wetlands for agricultural use.

6. He suggested his property should be assessed at a lower amount based on this information.

Deborah Kroetsch – Assessed Landowner

Ms. Kroetsch owns a rural residential lot severed off the frontage of the east half of Lot 5, Conc. SER, being 1.2h (~3 acres) in total area, with only 0.4h (~1 acre) assessed into the Main Drain, the East Branch and the Kraehling Branch for a total of $480.

She has observed conditions in this drainage area for 42 years and has noticed that most of the wet areas have been getting larger. She understands that the area is underlain by an exceptionally deep aquifer that is a tremendous asset to the Region. She is not opposed to this drainage project and suggests that all parties should try to get along and resolve their differences amicably.

John Kuntze, P. Eng.

Mr. Kuntze highlighted parts of his Report and provided additional information, as follows.

1. The objectives of this project, as described in the Report, are: (1) to provide an improved drainage outlet for the southeast part of Lot 6, Conc. NER, being the Kraehling Farms property; (2) to provide an improved drainage outlet for Notre Dame Drive at the existing culvert located approximately 300m north of the intersection with Erb’s Road; (3) to provide an improved drainage outlet for the southwest part of the east half of Lot 4, Conc. NER, being the Dietrich property; (4) to provide an improved drainage outlet for the northwest part of the east half of Lot 5, Conc. 6 NER, being the Haid property; and (5) to provide an improved drainage outlet for the northeast corner of Lot 5, Conc. SER, being the RJS Farms Ltd. property.

2. In addition, the Report addresses: (1) the need for a surface water outlet for the street and residential area known as Summerfield Lane; (2) the need for a surface water outlet for part of Erb’s Road and the residential area known as Strauss Court; and (3) the need for an improved surface water and storm sewer outlet for Erb’s Road at a number of other locations east of Notre Dame Drive.

3. The Drainage Act requires him to continue the drain to a “sufficient outlet” being “a point at which water can be discharged safely so that it will do no damage to lands and roads.” The suggestion that the low holes in the Kraehling property be used as outlet for the East and West Branches is not acceptable as, in his opinion, this would not be a “sufficient outlet” since this water would cause damage to the Kraehling property. Accordingly, the Main Drain must be extended downstream as proposed.

4. In his capacity as Township Drainage Superintendent, he has investigated the 1913 Ditner Award Drain and determined that it is not functioning for most of its length. Furthermore, this investigation revealed that the Award Drain provided only an ‘overflow outlet’ for the southeast part of Lot 6, that is, there was no over land flow route provided for surface water.

5. An Engineer’s report was prepared for part of this drainage area in 1972 but that report was not adopted.

6. His investigations and observations of the low areas in the southeast part of Lot 6 have revealed that the water levels there can drop as much as 4.5m in three months, apparently entirely due to a high rate of infiltration into the sandy gravelly subsoil.

7. The sandy subsoil results in reduced runoff rates from most of the watershed. Accordingly, the design criteria he used for the west part of the drainage area is 25mm or 1 inch in 24 hours and, for the east part of the drainage area, 12.5mm or 0.5 inches in 24 hours.

8. An old, shallow catchbasin and a steel pipe outlet exist in the north ditchline of Erb’s Road, across part of the frontage of the Dietrich and Bak properties in Lot 4, in the extreme east part of the watershed, but are too shallow to provide outlet for the southeast part of Lot 4. Furthermore, the pipe runs through the legs of a hydro transmission tower which makes maintenance or repair virtually impossible.

9. The proposed drains have been designed to have no interference with the Grant pond on Lot 5.

10. He uses a modified Todgham Method for calculating his assessments and these are shown in detail in Appendix A of the Report. The assessment calculations for the properties of the appellants are explained further in the information contained in Tab 9E of exhibit 2.

11. Mr. Kuntze provided and reviewed a further section of information for exhibit 2, namely tab 10 with eight sub-tabs, including tab 10A with 50 photographs of the site, 10B with a ‘Haid Branch Alternative’, 10C being an email from the MNRF advising of no known species at risk in the proposed work area, four sub tabs of response to the four appellants, and a sub tab reproducing Mr. Carter’s information.

12. Mr. Kuntze explained the ‘Haid Branch Alternative’, the objective of which is to maintain surface water flow from the upstream part of the watershed into the large pond on the west part of Lot 5 (the Grant pond), while still providing a drainage outlet for the area requiring drainage on the Haid property. This Haid Branch Alternative proposes to improve the existing ditch that is located on the Bak property, just north of the Haid property, and extend that ditch westerly and southerly, around the Haid property, to outlet into the Grant pond. This ditch extension would be located on the Bak and Grant properties but would be excavated from the Haid property. This ditch would cut-off the surface water flow that now enters the Haid property and will maintain the surface water flow into the pond. Mr. Kuntze admitted that, in hindsight, he should have made the Bak ditch part of the municipal drain in his original proposal. In order to provide outlet for the low area in the northwest part of the Haid property, 290m of 200mm plastic drainage tubing will be installed from station 0+478 on the East Branch along the same route as previously proposed, and will terminate in a catchbasin. All of the material excavated from the proposed ditch will be placed along the edge of the pond on the Haid property. The cost of the Haid Branch Alternative will be about $3,800 less than the original proposal and will also result in $5,090 less cost on the East Branch due to a resulting tile size reduction there. However, this Haid Branch Alternative will not provide a tile underdrainage outlet for all of the agricultural lands in the upstream or north part of the watershed.

13. In reference to the GRCA letter of September 21, 2015, Mr. Kuntze had the following comments and opinions.

• Throughout the process followed for this project, the CA comments were consistent in opposition to the drainage works proceeding, and this is documented in the Report.

• The CA recommended to Council that the Report not be adopted as the proposed drainage works do not meet the CA’s policies for development within a wetland or floodplain; however, no mapping was provided to delineate the wetland or floodplain area.

• The CA did not provide any alternate design that would meet its policies.

• The CA’s position is based on “policies” not on statute law and Mr. Kuntze is working under statute law (being the Drainage Act); therefore, the statute law over-rides the policies.

• Exhibit 11, the map from the Township Official Plan, intrigued him, so he checked the drainage area on the CA’s mapping site and found that the Kraehling, Grant and Bak ponds appear to be designated as wetlands and that portions of the Kraehling, T. Grant, J. and T. Grant, Haid and Bak properties appear to be designated as ‘estimated floodplain’.

• He does not think that these designations will have any effect on this drainage proposal as he understands the CA has a policy that municipal drains do not require permits under the CA Regulation. He assumes that no permits will be required from the CA.

14. At its meeting on September 21, 2015, Council had three options; (1) to adopt the Report, (2) to not adopt the Report, or (3) to refer the Report back to the Engineer for revision. In spite of the CA’s letter of objection, Council adopted the Report, but it was a close vote of 3 to 2.

15. Upon questioning, he advised that his firm had some geotechnical investigation done by drilling bore holes and digging test pits. All the boreholes revealed dry sand conditions. One of these test pits was in the bottom of the northwest pothole on the Kraehling property, at a time when it was dry, and the water table was encountered at a depth of five feet and the hole caved in. He has concluded that these are two natural depressions, not ‘wetlands’.

16. Upon questioning, he advised that he did not check the ‘Environmental Areas Map’ within the Township Official Plan and he is not aware that this map indicates that all of the subject ponds are provincially significant wetlands; however, this does not concern him as the MNRF has not advised him of this, and he has constructed a municipal drain through a provincially significant wetland within the GRCA in the past.

Robert Kraehling – Petitioner for the Drain and Witness for Municipality

Mr. Kraehling’s company, Kraehling Farms Inc. is the owner of the southeast quarter of Lot 6, Conc. NER which has a total area of 19.3h (~48 acres), with 16.2h (40 acres) assessed into the drainage area. Mr. Kraehling submitted the first petition for drainage concerning this project in May 2008. This is the property with the two low areas, or potholes, that collect all the surface water runoff from the lands north of Erb’s Road. This property is assessed into the Main Drain, the West Branch, the East Branch, the Notre Dame Branch, and the Strauss Branch, for a total of $60,487.

Another company with which Mr. Kraehling is involved, RJS Farms Ltd., is the owner of part of the east part of Lot 5, Conc. SER which is 34.5h (~159 acres) in total area, with only 2.1h (~5 acres) assessed into this drain. This company submitted the fifth petition in conjunction with this project in October 2013. This is Mr. Kraehling’s ‘home farm’ and is located in the extreme east part of the drainage area, south of Erb’s Road. Accordingly, it is assessed into the Main Drain, the East Branch and the Kraehling Branch for a total of $4,371.

Mr. Kraehling was called as a witness by Mr. Kuntze and he advised that he started renting the subject part of Lot 6 in 1969 and purchased it in 2008. In 1969 it was possible to work through the two potholes but the water situation has steadily worsened over the years, to the point where he loses 4 to 5 acres of crop every year, which costs him thousands of dollars. The surface water erosion from the west and east has also increased with time and causes damage to his land every year. He attributed the increased water flow from the west to the residential development that has taken place in the village, west of Notre Dame Road. Presently, there is no underdrainage on this property but, after the proposed drain is constructed, he may have a few runs of tile installed. He thinks the drainage solution proposed for Lot 6 is a good one. He did strip the top soil out of the southeast pothole and started to fill it a few years ago but was stopped by the CA. Due to the dry conditions last fall, he was able to plough right through both potholes and hopes to be able to work through them this spring.

As for his land in Lot 5 south of Erb’s Road, the northeast corner has always been wet as the road culvert was installed too high and, since the East Branch is proposed to come right up to the north side of the road, he thought it was a good opportunity to obtain an outlet for this small area, so he petitioned for it. However, he does realize that only 0.3h or 0.74 acres can be drained directly into the proposed Kraehling Branch.

Leonard Haid – Petitioner for the Drain and Witness for Municipality

Mr. and Mrs. Haid own and live on part of the southeast quarter of Lot 5, Conc. NER which is 13.3h (~33 acres) in total area, all of which is assessed into the drain, namely the Main Drain, the East Branch, and the Haid Branch, for a total of $31,026. Mr. and Mrs. Haid submitted a petition for drainage of this property in June 2013, which was the fourth petition submitted to the Township in connection with this project. The tile portion of the old Award Drain passes through the south part of this property and the upstream extent of the Grant pond extends into the northwest part of the property.

The Haids also own part of the westerly two-thirds of Lot 6, Conc. SER, which has a total area of 43.4h (~107 acres), 11.8h (~29 acres) of which is assessed into only the Main Drain portion of the proposed drain, for $23,086. The downstream 722m of the Main Drain are proposed to pass through this property, from the crossing under Erb’s Road to the outlet beside Notre Dame Road, on the west side of the property. The proposed drain is deep through most of this section, ranging from 2.2m to 7.2m from ground surface to invert; however, boxes will be provide at three locations for future tile connections.

Mr. Haid was called as a witness by Mr. Kuntze and advised that they have owned part of Lot 5 since 2000 and have built a house and barn there. He does not farm this land himself but rents it out, currently to Mr. Dietrich. There are many blowouts along the old tile drain in the south part of the property, some five feet deep and 2 to 3 feet in diameter. The surface water coming from the east plus the water boiling up from the old tile has cut trenches in his fields which are quite dangerous to the operation of farm equipment. He receives all the roadside drainage water from the east into the southeast corner of his property, but the old catchbasin beside Erb’s Road does not work, so it floods his land and his tenant loses significant crop. He provided ten photographs illustrating these problems. At the north end of his property there is a low area where the water from Mr. Bak’s property and the other lands to the north runs across his land to reach the Grant Pond. This also creates a significant wet area where his tenant experiences crop loss. He estimated the total crop loss area on his property at about 8 acres. He is agreeable to the Haid Branch Alternative now proposed by Mr. Kuntze but points out that there is not much cost savings resulting from it. He feels the Engineer’s Report addresses all of his drainage concerns on this property and he plans to tile drain most of his land after this municipal drain is constructed.

Regarding his property in Lot 6, Conc. SER, he purchased it in 2004 and rents it to another local farmer. The only drainage issue there is the low area in the northeast corner where the roadside water from both the east and the west, as well as some of his own water, collects and drowns out about 3 acres of crop. He expects that the new catchbasin proposed at this location will solve this problem. As for the outlet of the drain on the west side of this property, he hopes the outflows will slowly dissipate through the gabion structure and not damage his land. At this time, he does not think a downstream extension of the tile drain is necessary.

When questioned about the need for roadside ditch cleanout along Erb’s Road, he replied that it would only bring the water onto his land faster and possibly flood more of his field since there is no outlet to take it away.

Norbert Dietrich – Petitioner for the Drain and Witness for Municipality

The Dietrich family owns most of the east half of Lot 4, Conc. NER which is 34.9h (~86 acres) in total area, with 32.5h (~80 acres) assessed into the proposed drain for the Main Drain, the East Branch and the Haid Branch for a total of $33,689. This property is the highest land in elevation on the east side of the watershed; therefore, the drainage area boundary runs along its east limit. The Dietrichs submitted the third petition for this project, in May 2013. This property is their ‘home farm’ which has been in the Dietrich family since 1816 and it was his great grandfather, Ignatius B. Dietrich, who requisitioned the 1913 Award Drain. They are dairy farmers and cash croppers, cropping on this farm and rented land, some of which is in this drainage area.

Mr. Dietrich was called as a witness by Mr. Kuntze and advised that their southwest front field, which is beside Erb’s Road, is somewhat low and regularly floods. The old catchbasin in the roadside ditch is not deep enough and the outlet pipe that conducts the water easterly along the roadside dumps this water onto the Bak and Haid properties which is not proper. The proposed East Branch, which will extend right up to this low area and be of adequate depth, will solve his problem and conduct this water flow to an adequate outlet that will not harm the downstream lands. The back or rear part of his property suffers from poor natural drainage and the old, random drainage system in it is not functioning properly due to poor outlets. He hopes to make arrangements with his neighbours to obtain new indirect outlets to this proposed new municipal drain to improve this situation. About 20 acres of this property are compromised by poor drainage.

He and his family previously rented the two properties now owned by the Grant families (the SE part of Lot 5), for about 60 years. Through the years, he has observed the deterioration of the old Award Drain to the point where the low area would no longer drain out and a permanent pond has resulted. He estimated that there are 16 acres of farm land on the Grant properties that are compromised by poor drainage. In addition, he has rented the Haid property for 40 years and has seen it getting wetter and wetter every year. He estimates that there are 16 acres of farm land on that property that are compromised by poor drainage.

Kelly Robinson – Road Maintenance Supervisor, Region of Waterloo, Witness for Municipality

Mr. Robinson was called as a witness by Mr. Kuntze and advised that he has been employed as a Road Maintenance Supervisor by the Region for 11 years and was responsible for the two Regional Roads in this area for 10 years, that is, until 2015. He is very familiar with Erb’s Road and Notre Dame Road and understands what is proposed in the Engineer’s Report as it affects those roads. He advised that the Road Authority agrees with the Report. He stressed that the Region does not want any municipal drains constructed along its road allowances due to the present and future problems that this can create with road widening, road reconstruction and conflicts with other utilities. He did not approve any roadside ditch maintenance work during his tenure because these ditches do not have an outlet and because the roadbed did not appear to be suffering from drainage problems.

John Kuntze, P. Eng.

In conclusion, Mr. Kuntze presented the following opinions regarding the appeals.

The Bak-Ott Appeal: Locating the East Branch on private property rather than the road allowance is the only feasible option as there are too many present and future conflicts with it being on the road allowance, and the Region will not allow it to be constructed there. Mr. Kuntze feels the assessments to this property are fair and reasonable as it will obtain a direct outlet to the East Branch, and the East Branch will pass through the full width of the property at the south end and collect the roadside drainage before it reaches the property and, the north portion of the property and the overflow from the pond will have a direct outlet to the Haid Branch. Accordingly, this property will use all of the Main Drain, 93% of the East Branch and all of the Haid Branch; therefore, the assessments to it should be significant. The fact that Mr. Bak indicates that he does not intend to take advantage of these outlets is not relevant as the Engineer must make his assessments regardless of the intentions of the present owner. On the basis that the pond overflows and will use the new drains, Mr. Kuntze assessed the pond area as if it was cleared, worked agricultural land. He suggested this appeal should be dismissed.

The J. and T. Grant Appeal and the Theresa Grant Appeal: Mr. Kuntze advised that, when doing his initial assessments, he treated these two properties as one as they were rented together and worked together. On second thought, he is not sure that was fair because, if the East Branch had followed the natural low run up to the Theresa Grant pond, the length of drain on the J. and T. Grant property would have been significantly less and the reason that shorter route was not followed was at the request of Theresa Grant to avoid her pond. He feels that, to the best of his ability, he has designed the drain to avoid any effects on the pond by taking the proposed route that bypasses the pond to the southeast by about 30 metres. Originally, he assessed $19,000 equally to these two properties as benefit, that is, $9,500 each; however, now he is suggesting that slightly more should be assessed to the Theresa Grant property. He has done this on the revised assessments for the East Branch that result from the Haid Branch Alternative. Otherwise he feels his assessments to these two properties are fair and reasonable. On the basis that the Theresa Grant pond overflows and will use the new drains, Mr. Kuntze assessed the pond area as if it was cleared, worked agricultural land.

Also, while he sympathizes with J. and T. Grant due to their significant assessment, he pointed out that their property is in an agricultural area and, accordingly, they have to accept the results of agricultural drainage practices. The amount of the benefit assessment relates to the actual length of drain on the property, not the size of the property, while the outlet assessment is based on the size of the property. He suggested these two appeals should be dismissed.

With respect to the Haid Branch Alternative, he suggested that the Tribunal order this change to the Report as he has detailed in Tab 10B of exhibit 2.

The Schmidt Appeal: In reply to this appeal, Mr. Kuntze advised that he determined the interior and exterior watershed boundaries on the Schmidt property from on-site inspection and a study of the contour mapping. He is quite confident that they are correct and no evidence was provided to the contrary. Also, the property has been assessed as agricultural land. Accordingly, he feels the assessments to it are fair and reasonable.

Mrs. Schmidt’s suggestion that the potholes in Lot 6 be used as the outlet for the drains from the east and west is not possible as the Act requires the Engineer to take a municipal drain to a sufficient outlet, where it will do no damage to lands or roads, and the low areas in the Kraehling property are not such a location in his opinion, not only due to the potential for flooding the Kraehling agricultural lands but also the potential flooding of the adjacent Summerfield Lane residential lands. Furthermore, purchasing all of the Kraehling property for the outlet is not feasible and severing and purchasing the pothole area is not possible. Accordingly, this low area needs an overflow outlet which is what this Report proposes.

Concerning Mrs. Schmidt’s environmental argument, no one has provided any hard evidence of any real environmental issues and, while the CA suggested that there are ‘alternatives’, none have been offered. While the water that will be removed from this area will not infiltrate here, it will infiltrate further downstream, in the bush area on the west side of Notre Dame Road, as that area does not have an outlet.

He suggests this appeal should be dismissed.

Findings:

1. It is quite clear, from the evidence provided at this hearing, that a drainage outlet solution is required for most of the settlement area of St. Agatha, the farm land east of it, as well as the two Regional Roads. After seven and a half years of study and investigation, the Engineer has proposed a solution involving a Main Drain and six Branch Drains, at a total estimated cost of $577,450, which appears to be acceptable to and addresses the concerns of the five petitioners. This proposal has also been accepted by the Township Council. No other engineered solution or feasible alternative has been provided by the appellants. Accordingly, the Tribunal finds that the benefits of this project are commensurate with the costs and that the project should proceed as designed, subject to the Orders of the Tribunal.

2. This Tribunal is aware of the Conservation Authorities Act and the regulations made thereunder with respect to development, interference with wetlands, and alterations to shorelines and watercourses. That legislation empowers conservation authorities to control development (work) within geographic areas where they have been granted regulatory authority. It is our understanding that any development proposed in a wetland or within a certain distance of a wetland requires the permission of the conservation authority.

Some conservation authorities exercise their regulatory controls via regulation while others utilize policies and regulations. Mr. Kuntze expressed the view that since the CA expressed its authority by policy, the Drainage Act, being legislation, essentially superceded CA policy. It is our view that, where there are competing public interests reflected in different legislation or policies authorized by legislation, the goal for the Engineer is to find a way to make them work together.

Accordingly, the Tribunal shall include clear direction to the Township and the Engineer that it is incumbent on them to formally contact the Grand River Conservation Authority and determine if it is necessary to obtain any permits under its Regulation or policies to allow these works to be undertaken and, if so, actually obtain such permits, before the by-law authorizing this project is given third reading.

3. The Haid Branch Alternative suggested by the Engineer seems to be a reasonable compromise in that it will lower assessments to the Bak-Ott and Theresa Grant properties while still providing outlet potential for the upstream lands in the open portion of the Branch Drain. Accordingly, the Tribunal will order the substitution of the Haid Branch Alternative rather than the Haid Branch contained in the Report, with the revised assessments presented at the hearing as a basis, but with further revisions as described herein.

The Tribunal has a concern, however, that this ‘last minute’ alternative suggested by the Engineer has resulted in additional surveying, two designs, two cost estimates and two assessment calculations being undertaken for the same Branch Drain. All of this additional work has added engineering cost to the project that, perhaps, should have been avoided if the engineer had made the Bak ditch part of the municipal drain in his original proposal, especially since he admitted, in hindsight, that he should have done so. The Tribunal expects that the Engineer will take this matter into consideration when billing the Township, especially since he had two years to study, consider and recommend the best solution to the drainage problems on this property.

4. The Tribunal understands that Theresa Grant does not want this proposed drain to proceed; however, the evidence indicates that some of her property would benefit from underdrainage and the East Branch will provide her property with an outlet, directly and indirectly. As a result, other than the treatment of her pond as described below, the Tribunal finds the assessments made to her property for the Main Drain and the East Branch to be fair and reasonable.

5. Regarding the Haid Branch Alternative and the Theresa Grant property, since this drain will be solid pipe, it will not cut off any of the subsurface flow to Mrs. Grant’s property nor will it reduce the wetness of her southeasterly field. Accordingly, it is difficult to see how the closed portion will be of any benefit to her land. As for the open portion, it will be carrying the Bak-Ott water from their pond and tiles around the Haid property, to reduce its wetness, and will outlet that water into Grant’s pond, which is where it goes now but through Haids’ property. Again, it is difficult to see that this ditch will be of much benefit to the Grant property other than it may somewhat dry up the land immediately adjacent to the ditch. Accordingly, it would seem that most of the cost of the ditch portion of the Haid Branch Alternative should be assessed to the Haid property as benefit and the Bak-Ott property as outlet. On this basis, the Tribunal finds that the benefit assessment of $5,000 to the Theresa Grant property on the Haid Branch Alternative seems too great.

6. The Tribunal understands that Mr. Bak and Ms. Ott do not want this proposed drain to proceed; however, the evidence indicates that some of their property has been underdrained and that those drains and their pond find outlet onto downstream lands, namely the Haid and Grant properties, and that the Haid Branch will provide the north end of their property with direct outlet and properly manage this downstream flow. The East Branch should resolve the drainage problems at the front or south end of their property and will provide a direct outlet there, as well. Accordingly, this project will provide this property with two good drainage outlets for use now and in the future. As a result, other than the treatment of their pond as described below, the Tribunal finds the assessments made to their property to be fair and reasonable.

7. The Tribunal does not consider it fair and reasonable that the pond areas in the Bak-Ott property and the Theresa Grant property were assessed in the same manner as agricultural land, as water does not run off from ponded areas at the same rate or, in some cases, at all. These pond areas should have a factor of 0.2 applied to them which will reduce the equivalent area of each property and result in the outlet assessment of each being reduced. Accordingly, the outlet assessments made to all of the lands in the parts of the project that involve these two properties , that is, the Main Drain, the East Branch, and the Haid Branch Alternative, should change and we shall leave it to the Engineer to make these changes and issue revised assessment schedules for these three parts of the project.

8. With respect to Mr. Bak’s suggestion that the East Branch should be constructed on the road allowance, the Tribunal finds that this would not be practical or reasonable due to current and possible future conflicts with utilities, road improvements and road maintenance.

9. There was no evidence produced that would justify a change to the assessments made to the Tom and Marcia Schmidt property nor are the opinions of Mrs. Schmidt with respect to altering or terminating the project sufficient to result in any such action by this Tribunal.

Orders of the Tribunal

Based on the findings above, the Tribunal makes the following orders.

1. The appeals of Pierre Bak and Janet Ott and Theresa Grant under Section 54(1) of the Act are granted in part.

2. The appeals of Jeffery and Toni Grant, and Tom and Marcia Schmidt under Sections 48(1) and 54(1) of the Act are dismissed.

3. The appeals of Pierre Bak and Janet Ott, and Theresa Grant under Section 48(1) of the Act are dismissed.

4. Subject to the following Orders, the project shall proceed as proposed.

5. The Township shall formally contact the Grand River Conservation Authority and determine if it is necessary to obtain any permits under its Regulation or policies to allow these works to be undertaken and, if so, actually obtain such permits, before the by-law authorizing this project is given third reading, and advise the appellants accordingly.

6. The Haid Branch Alternative suggested by the Engineer at the hearing shall be substituted for the Haid Branch contained in the Report and the revised assessments presented with that Alternative, as a basis, shall be implemented but with further revisions as per these Orders.

7. The benefit assessment to the Theresa Grant property (8-053-01) on the Haid Branch Alternative shall be reduced by $4,000 to $1,000. The benefit assessment to the Haid property (8-048-00) on the Haid Branch Alternative shall be increased by $3,000. The outlet assessment to the Bak-Ott property (8-047-00) on the Haid Branch Alternative shall be increased by $1,000.

8. The pond areas in the Bak-Ott property and the Theresa Grant property shall have a factor of 0.2 applied to them to reduce the equivalent area of each, and this will result in the outlet assessment of each being reduced, and the outlet assessments to all of the lands in those parts of the project in which these two properties are involved, that is, the Main Drain, the East Branch and the Haid Branch, shall be change accordingly, and the Engineer shall make these changes and issue revised assessment schedules for these three parts of the project.

9. 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 preparing for and attending the Tribunal hearing.

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

Dated at Brampton, Ontario this 11^th day of May, 2016