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: Hartman-Lindsay Municipal Drain (RE) Municipality of West Perth

Hartman-Lindsay Municipal Drain (RE)

STATUTE: Drainage Act

HEARING: December 20, 2017

DATE OF DECISION: December 29, 2017

013Hartman-Lindsay17

NEUTRAL CITATION: 2017 ONAFRAAT 22

HARTMAN-LINDSAY MUNICIPAL DRAIN

Municipality of West Perth

IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by John Wouters of St. Mary’s, Ontario under section 48(1) of the Drainage Act with respect to the Hartman-Lindsay Municipal Drain in the Municipality of West Perth.

Before: Paula Lombardi, Vice-Chair; Ed Dries, Vice-Chair and Tim Mousseau, Member

Attendance: John Wouters, Appellant John Kerr, P.Eng., G.M. BluePlan Engineering, for the Respondent Matt Ash, G.M. BluePlan Engineering, Witness for the Respondent

DECISION OF THE TRIBUNAL

Background

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the Municipality of West Perth on December 20, 2017 to hear an appeal by John Wouters of St. Mary’s Ontario under Section 48 of the Drainage Act (“Act”) regarding the Hartman-Lindsay Municipal Drain (“Drain”) in the Municipality of West Perth (“Municipality”). John Kerr, P.Eng., (“Engineer”) of G.M. BluePlan Engineering prepared an engineer’s report dated June 5, 2017 concerning Hartman-Lindsay Municipal Drain (“Report”).

Carla Preston, Clerk of the Municipality of West Perth, performed the duties of Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed and/or compensated in the Report parties to the hearing. The Municipality filed an Affidavit of Service proving that all parties had been served with the Notice of Hearing.

No other landowners requested to be party to the appeal filed.

Overview

The area of the new proposed Drain is generally located in Pt. Lots 21 & 22, Concessions 17 & 18 Fullarton, in the Municipality of West Perth. The area requiring drainage is not served by an existing municipal drainage system. This Report was initiated under a petition of landowners filed with the Municipality under Section 4 of the Act.

GM BluePlan Engineering (“BluePlan”) was appointed to investigate a proposed new drainage works for the area. BluePlan held an on-site meeting on June 9, 2016. The petition was determined to be valid under Section 4(1)(b) of the Act. BluePlan proceeded with the necessary consultations with the property owners and approval agencies, conducted field investigations, performed an analysis, designed the proposed municipal drain, estimated costs, and prepared the Report for the proposed drainage works.

The Report was signed by John Kerr, P. Eng. and dated June 5, 2017. The Report was considered at a regularly scheduled council meeting of the Municipality of West Perth on June 26, 2017. Council gave first and second reading and provisionally adopted a bylaw for the proposed drainage works at that meeting. The Court of Revision was held on July 24, 2017. No appeals, either written or verbal were received at that meeting.

Mr. John Wouters (“Appellant”) of Wouterland Farms Inc., an assessed owner on the Drain, filed an appeal on August 8, 2017 against the assessment levied against his property under Section 54 of the Act to the Tribunal from the Court of Revision. The Chair of the Tribunal confirmed in correspondence dated August 15, 2017 to the Deputy Clerk of the Municipality that this appeal could not be accepted as the owner had not filed an appeal of the assessment to the Court of Revision.

The Appellant subsequently filed an appeal under Section 48(1) of the Act dated August 16, 2017. The appeal generally sought the complete removal of ‘Branch A’ of the proposed Drain from the report. Branch A is a proposed tile main located on the Appellants lands.

The Issue

The only issue on appeal is whether Branch A of the Hartman-Lindsay Municipal Drain be removed from the Report.

The Evidence

Mr. John Wouters - Appellant

Mr. Wouters identified the proposed ‘Branch A’ as shown in the Report as being a 125 mm length of 250 mm diameter concrete tile extending easterly from the east end of a proposed 250 mm diameter HDPE pipe under Road 149. The tile is proposed on the north side of the property line between Lots 21 and 22 and be situated on the Wouters. Mr. Wouters stated that this Branch A tile would be of no practical use to his property and therefore, should not be constructed as part of the works on this Drain. Mr. Wouters confirmed that he has no issue with works relating to the construction of the main drain.

Mr. Wouters testified that he had the farm property in Pt. Lot 21, Concession 18 Fullarton systematically tiled at 30 foot intervals in 2003. Mr. Wouters provided the Tribunal with a tile drainage plan that was supplied by the tiling contractor to illustrate the extent of the private tile system installed on his property. Mr. Wouters testified that the private tile system in the most southwesterly corner of the property outlets to a 150 mm (6”) diameter private tile main installed as part of the tiling work just north of and parallel to his most southerly property line. This tile main flows west, crosses Road 149, and continues westerly an unspecified distance until it is discharged into an open channel that exists along the line between Lots 21 and 22, Concession 17 Fullarton. This open channel carries the flow from the tile main outlet westerly to the Thames River. Mr. Wouter confirmed that the area drained on his property to this private tile main is approximately 20 acres.

Mr. Wouters acknowledged that, in the past, surface runoff has flowed from his property and ponded on the neighbouring property to the south; being the Hartman property. However, it was Mr. Wouters’ opinion that there has been no significant flow or ponding on the Hartman property since his private tile system was installed. Mr. Wouters confirmed that there are no means of surface water entry into his main drain. Mr. Wouters provided the Tribunal with a series of photographs to suggest that surface ponding on his property as a result of a 3 inch rainfall occurring on May 5, 2017 was totally removed within 24 hours of the rain event.

In order to prevent surface runoff from his property flowing onto the Hartman lands, Mr. Wouters proposed to construct an earth berm parallel to the property line between his property and the Hartman property. Mr. Wouters indicated that he would also add surface inlets to his 150 mm diameter tile main. Mr. Wouters suggested that this work would be done in lieu of constructing Branch A. Mr. Wouters proposed that the berm would be situated entirely on his property, be constructed at his sole cost, and not be considered part of the Drain. Mr. Wouters provided the Tribunal a cost estimate for the construction of the berm from a local contractor of $4,500 plus HST.

Mr. Wouters expressed the opinion that his existing tile main would have adequate capacity to effectively remove surface flows that will pond upstream of the berm and as a result Branch A is not required.

John Kerr, P. Eng. – Engineer who prepared the Report

Mr. Kerr confirmed that BluePlan was appointed to prepare an engineer’s report for the construction of the Drain on April 27, 2016. The on-site meeting was held on June 9, 2016. At the on-site meeting, the petition for the new drainage works was confirmed to be valid. BluePlan noted that surface ponding was occurring on the lands of Mr. Hartman as the Hartman lands were at the low end of the watershed and have no practical outlet for their drainage systems. BluePlan also noted that a potential outlet for drainage works to serve the lands within the area requiring drainage was an open channel, described as a gully, that would flow westerly, along the property lines between Lots 21 and 22, Concession 17 Fullarton, from a point approximately 270 m west of Road 149 to the Thames River.

Mr. Kerr testified that Mr. Matt Ash of BluePlan carefully investigated the watershed boundaries as well as the topography and flow patterns within the watershed of the proposed drainage area. The lands within the drainage area were confirmed to be largely tiled. Subsurface drainage plans were provided by several of the affected property owners including Mr. Wouters.

Mr. Kerr determined that a closed main tile drain would be the preferred alternative to serve the area requiring drainage. Mr. Kerr confirmed the suitability of the open gully as a sufficient outlet for the main tile drain. Mr. Kerr proposed a 375 mm diameter tile be constructed from an outlet into the gully, easterly to Road 149, then a 350 mm diameter tile southerly along the west side of Road 149 to the lowest point in the watershed, then easterly, across Road 149 to a catch basin at the head of this main drain. Mr. Kerr also recommended the construction of a 250 mm diameter tile, referenced as ‘Branch A’, along the line between Lots 21 and 22, Concession 18 Fullarton (Wouters/Hartman property line). This branch drain would extend from the main drain on the west side of Road 149, easterly across the road and continue approximately 125 m to a catch basin.

As the Drain would be designed to accommodate surface and subsurface flows, Mr. Kerr stated that he selected a design co-efficient of 38 mm (1 ½ inch) per 24 hr.

Mr. Kerr acknowledged that the Wouters private tile drainage plan identified the existence of a 150 mm (6”) diameter private tile main that serves as an outlet for the Wouters’ lands and extends westerly to the same point of outlet as the Drain. However, Mr. Kerr also concluded that this private main has a design co-efficient of 12.7 mm (½ inch) per 24 hr which he believes to be inadequate to minimize surface ponding on the Wouters and Hartman properties. The Wouters private tile main also has no means of direct surface water entry into the tile. Finally, Mr. Kerr testified that the Wouters private tile main crosses Road 149 and private property west of Road 149 and as it is a private system, it has no security and he has no guarantee of access to maintain this tile.

On questioning from the Tribunal, Mr. Kerr confirmed that only one catch basin at the most upstream end of Branch A was recommended. Mr. Kerr conceded that it is possible for excess surface flows from the Wouters property to enter the road ditch on the east side of Road 149 and flow south onto the Hartman lands. Mr. Kerr suggested that a Hickenbottom inlet could be installed on Branch A on the alignment of the east road ditch to address this surface water entry issue.

It was Mr. Kerr’s opinion that the design co-efficient selected was appropriate and the recommendation for the construction of Branch A was necessary to provide efficient and effective drainage to the area requiring drainage.

Matt Ash - G.M. BluePlan Engineering - Witness for the Respondent

Mr. Ash confirmed that he attended the on-site meeting and has been directly involved in consultations with the property owners as well as completing the field work and watershed determination. It was Mr. Ash’s observation that the private tile drainage system on the Wouters property was not adequate to protect the downgradient lands of Hartman property from surface water flows. Mr. Ash also confirmed the need to construct Branch A as part of these works.

The Findings

The Tribunal does not accept the argument of Mr. Wouters that Branch A would be of no practical use to him. While it was accepted that the private tile system on the Wouters property offers subsurface drainage to these lands, the 150 mm diameter tile main outlet is not adequately sized to accommodate surface and subsurface flows. The design coefficient use by the Engineer to design Branch A was three times that of the exiting private tile main outlet. The Tribunal accepts the evidence of the Engineer that the design coefficient of 38 mm (1 ½ inch) per 24 hr. is appropriately applied in this instance. This design standard complies with that recommended in The Drainage Guide for Ontario, Publication 29 as published by the Ontario Ministry of Agriculture Food and Rural Affairs.

Further, Mr. Wouters now has the opportunity to connect his 150 mm diameter private tile main to the 250 mm diameter Branch A tile main which will significantly increase the capacity to contain and convey both surface and subsurface flows from his property. Mr. Wouters also has the opportunity to construct shallow furrows or flat ditches on his property to the surface water outlet into Branch A. These are practical advantages to Mr. Wouters’ property.

The Tribunal does not accept the evidence of Mr. Wouters that surface water flows do not result in any impacts on the Hartman property since the construction of his private tile drainage system. The evidence clearly identifies ponding of surface water along the property line between the Wouters and Hartman properties. It was also the opinion of Mr. Kerr that surface flows continue to enter the Hartman property from the Wouters’ property. Mr. Hartman has a right under the Act to request the construction of a drainage works that will provide protection to his property.

The testimony given by Mr. Kerr regarding the security of Mr. Wouters private tile main was accepted and is considered to be of significant importance. Mr. Wouters was correct in identifying the fact that the private tile main crosses a public road and private lands not held by Mr. Wouters. In the event that future maintenance is required on the tile main, Mr. Wouters would have no right of access onto those lands to carry out the maintenance. However, Mr. Wouters use of Branch A, the road crossing and the tile main extending from the road to the outlet will be protected under the Act unless or until altered by another report under the Act.

The proposal by Mr. Wouters to privately construct an earth berm along the property line between his property and the Hartman property to retain surface runoff on his property at his own cost was problematic. As this work was not specifically identified in the report for this Drain, there is no guarantee that it would ever be done and no means by which to force Mr. Wouters to actually construct the berm or future owners to maintain it. Also, this alternative would result in the loss of useable land on Mr. Wouters’ property. The cost of the berm was estimated to be approximately the same cost as the assessment against Mr. Wouters property for the construction of Branch A. In addition, the berm alternative would not increase the capacity of the existing private tile main which currently does not have the design capacity to effectively remove surface flows.

On the assumption that the berm were to be constructed, it was Mr. Kerr’s opinion that the potential still existed for surface flows to pond on Mr. Wouters’ property, enter the road ditch on the east side of Road 149 and flow south to spill onto the Hartman property. The Tribunal finds that a surface water inlet in the form of a Hickenbottom inlet should be installed on Branch A at the center of the east road ditch. The installation of a Hickenbottom as a second point of surface water entry into Branch A is a reasonable consideration with or without this suggested berm.

Order of the Tribunal

The Tribunal hereby orders:

1. That the appeal of John Wouters under section 48(1) of the Act be dismissed.

2. That the Municipality of West Perth provisional by-law 21-2017 be amended by adding an addendum to Appendix D – Special Provisions of the report dated June 5, 2017 to identify the supply and installation of an appropriately sized Hickenbottom inlet on the alignment of Branch A centred within the road ditch on the east side of Road 149 and that the road ditch be graded as required to this outlet.

3. That all costs related to the supply and installation of the Hickenbottom inlet shall be included in the Section 26 – Special Benefit assessment against Road 149.

4. That the Schedule of Assessment for Future Maintenance of the drains as set out in the report dated June 5, 2017 remain unchanged.

5. That Council pass the provisional by-law as amended.

6. That the non-administrative costs of the Municipality incurred with respect to this appeal shall form part of the cost of the drainage works and such costs shall include the Engineer’s fees and expenses for preparing the Report and the works necessary to amend the specifications as well as the Engineer’s fees and expenses for preparation and attendance at the Tribunal hearing.

7. There shall be no other Order as to costs. All parties shall be responsible for their own costs.

Dated at London, Ontario this 29^th day of December, 2017.