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:

McNain Municipal Drain Improvements 2015 (RE) Township of Ashfield-Colborne-Wawanosh

McNain Municipal Drain Improvements 2015

STATUTE:

Drainage Act

HEARING:

December 7 and 8, 2017

DATE OF DECISION:

December 22, 2017

003McNain17

NEUTRAL CITATION:

2017ONAFRAAT23

MCNAIN MUNICIPAL DRAIN IMPROVEMENTS 2015

Township Ashfield-Colborne-Wawanosh

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 O.W. Fong Tong under sections 48(1) and 54(1) of the Drainage Act with respect to the McNain Municipal Drain Improvements 2015, Township of Ashfield-Colborne-Wawanosh.

Before:

Jeffrey Hewitt, Vice-Chair; Ed Dries, Vice-Chair and Sarah Judd, Member

Attendance:

Tony Campbell, Director of Facilities, Treasure of Orchids, on behalf of the Appellant

Anne Benedetti, Counsel for the Appellant

Andrew Betts, GHD Limited, Witness for the Appellant

Charles Johnstone, AEC Property Tax Inc., Witness for the Appellant

Sean Hebel, Green Ventures Landscape Care, Witness for Appellant

Patrick Kraemer, Counsel for the Township of Ashfield-Colborne-Wawanosh, Respondent

Jeremy Taylor, R.J. Burnside & Associates Limited, Witness for the Respondent

David Bannister, R.J. Burnside & Associates Limited, Witness for the Respondent

Steven Jackson, Maitland Valley Conservation Authority

DECISION OF THE TRIBUNAL

Background

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in Township of Ashfield-Colborne-Wawanosh on December 7 and 8, 2017 to hear an appeal by O.W. Fong Tong of Waterloo, Ontario under Section 48 and 54 of the Drainage Act (“Act”) regarding the McNain Municipal Drain Improvements 2015 (the “Drain”) in the Township of Ashfield-Colborne-Wawanosh (“Township”). Jeremy Taylor, P.Eng., (“Engineer”) of R.J. Burnside & Associates Limited created the first report on April 10, 2015. This report was referred back to the Engineer and a second report dated December 12, 2016 (“Report”) concerning the McNain Municipal Drain Improvements 2015 was published. The appeals relate to this Report.

Florence Witherspoon, Deputy Clerk of the Township of Ashfield-Colborne-Wawanosh 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 Affidavits of Service proving that all parties had been served with the Notice of Hearing and Amended Notice of Hearing. No other landowners requested to be party to the appeals filed.

Overview

The McNain Municipal Drain is located in the northwest corner of the geographic Township of Ashfield in Huron County and the southwest corner of the geographic Township of Huron in Bruce County. The Drain commences at a drop structure in Lot 41 in the Township of Ashfield-Colborne-Wawanosh. It extends upstream as an open channel a distance of approximately 3,455 metres (m) to the head of the drain at the line between Lots 64 and 65, Concession 1 North in the geographic Township of Huron. The open drain crosses Highway 21 and County Road 86 (Amberley Road). The total actual area drained by the Drain is in the order of 418 hectares (ha).

The Drain ends at the downstream limit of the drop structure. Downstream of the drop structure, the flows are contained within a very well defined gully, which is approximately 8 m deep at the drop structure. This gully continues to deepen and widen as the flows are ultimately carried to an outlet into Lake Huron approximately 800 m downstream of the drop structure.

The historical records suggest that the Drain was originally constructed as the Award Drain in 1949. This Award Drain was adopted as the McNain Municipal Drain in accordance with a report authored by S. W. Archibald, P. Eng., in 1961. That report recognized the existence of a concrete drop structure at the outlet of the open drain in Pt. Lot 41, Front NTP Concession, in the Township of Ashfield. This structure was incorporated as part of the drain under that report.

A subsequent report authored by H. M. Gibson in 1969 recommended the construction of two tile drain branches, one on each side of and parallel to the open drain, both of which were outlet into the open drain at the drop structure in Lot 41. These tile extend approximately 1500 feet upstream from the drop structure.

The Township received a written request for the repair and improvement of the Drain from an owner of land in Lot 42, Front NTP Concession, Township of Ashfield (“Lot 42”). The landowner requested deepening of the drain, particularly in Lot 42, to provide improved outlet for the installation of sub-surface drainage systems and reduce localized flood events on this property. He requested modification of the two existing downstream access culverts serving Pt. Lot 41, Front NTP Concession (“Lot 41”) which were identified as obstructing the flow in the drain.

At the initial on site meeting the frequent flooding of the lands in Lot 42 were identified. Concerns were raised about the condition of the drain north of County Road 86. Further, the potential to incorporate the gully from the drop structure to Lake Huron was discussed.

Upon examination, the condition of the Drain in Lot 41 was found to be in poor condition. The issues identified were as follows:

• The concrete drop structure was in poor structural condition
• The floor and walls of the structure were cracked in several places.
• The bottom step of the structure had collapsed.
• The upstream edge of the structure was approximately 0.5 m to 1.0 m. higher than the bottom of the open drain.
• There appeared to be water flowing beneath the structure undermining the base.
• The two corrugated steel pipe arch access culverts upstream of the drop structure were found to be hydraulically deficient and too shallow to provide adequate outlet for the upstream lands.
• The two tile drains installed under the 1969 report were identified as being hydraulically deficient and not able to provide adequate outlet for the lands they are intended to serve.
• Surface flooding was identified as a frequent issue on the agricultural lands in Lot 42 upstream of the drop structure.

Three additional site meetings were held to review and discuss the many issues raised and give consideration to various design options.

A report dated April 10, 2015 was completed and submitted to Council. The owners of Lot 41 raised concern regarding the design of the drop structure. They requested that the report be referred back to the Engineer to reconsider the design of the components of the Drain that impacted their property. Council referred the report back to the Engineer.

The Engineer met with the landowner’s representatives on at least four more occasions and had several additional phone discussions all related to the design of the works in Lot 41. The Engineer also had extensive discussions with the Maitland Valley Conservation Authority.

The final report was published on December 16, 2016. Representatives of Lot 41 filed an appeal to the Court of Revision with respect to the assessment levied against this property. The Court of Revision considered the appeal. It was noted that the Engineer levied a Special Benefit assessment under Section 24 of the Act against this property for all additional engineering costs incurred to prepare the alternative design as well as investigations into the alternative options. The value of this Special Benefit assessment was $83,500. The Court of Revision ordered that this amount be reduced to $60,000 and the remaining $23,500 be assessed proportionally in Outlet Liability against all upstream lands and roads in the watershed.

Consequently, the owner of Lot 41 filed appeals to this Tribunal under Section 48(1) in correspondence dated February 23, 2017 and Section 54(1) in correspondence dated March 9, 2017.

The Issues

The written Section 48(1) appeal filed by the Appellant claimed that the benefits of the works were not commensurate with the costs and the drainage works should be modified. The appeal claimed that a technical review of the works was required by the Maitland Valley Conservation Authority (“MVCA”) and they had not, to that point in time, issued a permit for the works. On that basis, they claimed that it was premature to adopt the Report for the works as modifications to the works may be required through the permitting process and it was not possible to determine if the subsequent benefits were commensurate with the cost of the works.

At the hearing, the Appellant also relied on a report prepared and presented by GHD titled ‘The Technical Review Report of the Drainage Engineer’s Report’. The technical issues raised in that report may be summarized as follows:

• The defined drainage area on Lot 41 is incorrect.
• The drop structure requires only maintenance works but, in the alternative, the new works as set out in the Engineer’s report should be modified.
• The damage allowances provided in the report are incorrect.

The written Section 54(1) appeal filed by the Appellant appealed the Decision of the Court of Revision. Although the Court had adjusted the Section 24 Special Benefit assessment levied against this property, the Appellant sought additional relief from that assessment as well as, a specific Section 22 Benefit assessment.

At the hearing, the Appellant relied on a report prepared and presented by GHD titled ‘The Technical Review Report of the Drainage Engineer’s Report’. The assessment issues raised in that report may be summarized as follows:

• The defined drainage area in Lot 41 is incorrect and the assessment must be reduced.
• The specific Section 22 Benefit assessment should be reduced.
• The Section 24 Special Benefit assessment should be further reduced.
• The 25% Benefit/75% Outlet cost split applied in Section M1 is incorrect.
• The maintenance cost apportionments as set out in the report are incorrect.

The Evidence

Mr. Andrew Betts, M. A. Sc., P. Eng. – GHD (Witness for the Appellant)

Involvement

Mr. Betts confirmed that GHD was retained in 2015 by Treasure of Orchids Service Ltd. to prepare a Technical Review Report of the Engineer’s first Report. A draft of that report was completed early in 2016. Unfortunately, the author of the initial draft of that report passed. Mr. Betts confirmed that he authored the current final report dated November 20, 2017. He also confirmed that he is familiar with this property as he has been involved in other works on the property since 2007.

He was qualified as an expert in water resources, specifically hydrology and hydraulics, but admitted that he had no experience with works under the Drainage Act and had not reviewed or prepared any reports under the Act.

Design Issues

Mr. Betts stated that the land area affected by the works on the Appellant’s property, as identified in the Report, was 1.21 ha which represents 0.29% of the entire drainage area of this drainage works. It was his opinion that the affected area in Lot 41 is shown incorrectly in the report. It was his evidence that earthworks had been carried out on site to prevent direct discharge into the McNain Drain and the surface flows are directed to a stormwater management pond northwest of the drain. It was his view that the actual area affected on the Appellant’s property is 0.32 ha and it should be identified as such in the Report.

With regard to the existing drop structure, Mr. Betts was aware that it had been constructed prior to 1961. He was of the view that the drain was dry much of the time although he could not quantify the frequency of flows over the structure. He expressed the view that the structure need not be replaced but acknowledged that the structure required some degree of maintenance as follows:

• grout cracks in rock retaining walls and replace timber retaining walls
• patch concrete steps where required
• replace collapsed bottom concrete step completely ($15k - $20k)
• install cut-off wall to prevent flows from passing beneath structure
• lower the uppermost step by 0.10 – 0.20 m in order to provide additional depth for the upstream channel as opposed to the 0.80 m shown in the Report ($5k – $10k)

It was his view that these works could be carried out as a work of maintenance on the Drain. Mr. Betts did not offer any design details for the maintenance works suggested on the drop structure and admitted that the estimates of cost may rise when the top and bottom steps are removed and additional structural deficiencies may be uncovered. He was confident that these maintenance works could be carried out under the current bylaw.

Mr. Betts’ review of the technical aspects of the proposed new drop structure design identified several concerns such as rock size, settlement of the underlying base of the rock, slope failure of the modified side banks, and adequacy of the underlying geotextile. He concluded that the following modifications to the design be considered:

1. Include a specification for the installation of smaller angular rock to be installed in the void spaces of the 1200 mm nominal diameter rock specified as the primary liner on the floor of the drop structure. Also, specify a more robust geotextile on which the rock is to be placed.

2. As an alternative to the use of quarried rock, install precast concrete blocks to create the drop structure and step features. The blocks would be manufactured with a tongue and groove interlocking feature and the joints could be grouted in the field.

3. Include the installation of an erosion control blanket or a turf reinforcement mat on the slopes of the side banks above the drop structure after completion of the construction activities.

It was his opinion that the implementation of either design enhancement Option #1 or #2 combined with Option #3 would significantly reduce the potential future maintenance cost to the entire Drain. Further, the implementation of Option #1 and #3 would have very little cost ramifications to the project.

Assessment Issues

Mr. Betts expressed the opinion that the assessment of costs against the Appellant was unfair. He focused his arguments on the summarized section costs identified as Section M1 in the Report. This summary identified the assessment of all components of costs related to works within this section of the drain which is entirely the Appellant’s property.

It was his view that Benefit is only received by the upstream landowners as the erosion of the McNain Drain would migrate upstream if the drop structure were not in place. Further, it was unfair that the entire engineering costs incurred in the investigation of design alternatives for the preparation of the second Report should be levied against the Appellant as that Report include many modifications to the Report that were totally unrelated to the revisions to the work on the Appellant’s property.

Although he acknowledged that the Court of Revision had reduced the Section 24 Special Benefit assessment against the Appellant’s property from $83,500 to $60,000, he stated that this amount should be further reduced to a value of $20,875 which represents a 25% share of the original amount to the levied as a Section 24 Special Benefit.

He applied that same approach to the specific Section 22 Benefit assessment against the Appellant’s property suggesting that the assessed amount should only be 25% ($7,172) of the $28,690 total shown in the Report.

Finally, Mr. Betts was of the opinion that the Engineer had erred in dividing the base section cost of the works in section M1 ($274,190) which is net of any Special Benefits that may also apply to this section. The Engineer had assessed 25% of this amount ($68,550) against the Lot 41 as a Benefit and Direct Outlet with 75% of this amount ($205,640) against the upstream lands in Outlet Liability. It was his opinion that no more than 5% of base cost should be levied against Lot 41 and 95% of the cost should be levied against the upstream lands. He also argued that the Benefit assessment against this property must be reduced as the affected area on the property is so small.

Mr. Betts recognized that the section costs related to the works within each defined section of a drainage works are split as between Benefit and Outlet Liability. It was his understanding that typically the cost split in the outlet reach of a drain is heavily weighted to Outlet Liability. He testified that the typical split is in the order of 3% to 5% Benefit and 95% to 97% Outlet Liability. He confirmed that he arrived at this determination based on conversations with engineers experienced in preparing reports under the Drainage Act.

Damage Allowance Issues

Mr. Betts stated that the lands adjacent to the drain were ‘highly maintained’. He referenced reports from Green Ventures Landscape Care, a landscape maintenance firm and Pinnacle Tree, a tree service. It was his opinion, based on these reports, that the proposed work on Lot 41 would result in significant damage to the adjacent lands and significant tree loss. The species of trees to be removed were identified as willow, ash, apple and hawthorn. The cost to restore damage lands was suggested to be approximately $22,526 while allowances for tree loss was approximately $37,805.

When questioned, Mr. Betts was uncertain as to the location of the lands assumed to be damaged relative to the working corridor as defined in the Report. Mr. Betts could not confirm the number of trees actually required to be removed as opposed to ‘root damaged’ or unaffected and also conceded that the majority of the trees were naturally occurring and not ‘ornamental’ as referenced in Section 30 of the Act.

Maintenance Issue

Mr. Betts identified that the percentage of future Maintenance cost assigned to Lot 41 increased significantly from 0.8% in the first report to 3.0% in the final Report. He referenced comparisons with the percentage of Maintenance costs assigned to other small lots in the watershed. Aside for the areas of the small lots referenced, the characteristics or location relative to the drainage works of these other small lots were not identified. Mr. Betts was confident that if his suggested revisions to the design of the drop structure were implemented, it would reduce the extent and frequency of maintenance on the drop structure and hence reduce the maintenance cost that might be incurred by Lot 41. However, he was of the view that the percentage of future Maintenance cost against this property should be in the order of 0.11%

Mr. Charles Johnstone – AEC Property Tax Inc. - Witness for the Appellant

The report filed by Mr. Johnstone outlined in detail the issues considered in evaluating the market value of the Appellant’s land in Lot 41. He was qualified as an expert in real estate evaluation. It was Mr. Johnstone’s opinion that the proposed reconstruction of the drop structure would not ‘benefit’ the property. He described this property as ‘an executive recreational property’. He claimed the works will disrupt the natural aesthetics of the site; will result in tree removal; will reduce the ‘waterfall effect’; may impact water quality downstream; will require some degree of property restoration; will reduce privacy at the site during construction; and will have no impact on ‘crop production’ on the site.

Mr. Johnstone did not know if the current owners of Lot 41 knew that the McNain Drain was an existing drain constructed under the Drainage Act. He was also uncertain about their depth of knowledge related to the responsibilities of the Municipality to maintain, repair or improve this drainage works under the legislation.

He was of the view that the drop structure would not be aesthetically pleasing if reconstructed and therefore was not a ‘benefit’ to the property. Finally, he clearly stated that the ‘Benefit’ he referenced in his report was not the same as the ‘Benefit’ to lands as defined under the Drainage Act and as set out in the Report.

Mr. Tony Campbell - Witness for the Appellant

Mr. Campbell is the property manager for the Appellant and his portfolio includes Lot 41. He was called to give evidence to answer questions that arose in the evidence of Messrs Betts and Johnstone.

Mr. Campbell gave evidence as to the nature of a corrugated steel pipe that outlets from the northwest bank of the drain just downstream from the drop structure as it was suggested that flows from the Appellant’s property may discharge into the Drain from this pipe. He confirmed that the drain that formerly discharged from this pipe has been cut off and this pipe currently serves no purpose and may be removed.

He also pointed out a second corrugated steel pipe that discharges into the Drain through this reach but it too does not materially deliver flow into the Drain.

Mr. Campbell also described the nature of a walking path along the northwest bank of the drain. He expressed that this path may be damaged by the construction activities.

Mr. Sean Hebel – Green Ventures Landscape Care (Witness for the Appellant)

Mr. Hebel was qualified as an expert in horticulture. He confirmed that he has been involved in the general care of this property for approximately three years. Based on his understanding of the works to be carried out on this property, it was his opinion that an area of approximately 28,000 square feet would be damaged within the ‘working area’ and the ‘staging area’. He agreed that the location of the ‘staging area’ as defined in the Report was the most practical for these works. He believed the cost to restore these areas would be in the order of $22,526.00.

Mr. Hebel confirmed that he assisted Mr. Templeman (Pinnacle Tree) in gathering field data for his report related to the potential damage to trees resulting from the construction works. However, he could not confirm if the trees identified in the Templeman report were all within the same affected area that he defined in his report. He did confirm that many trees were within the limits of the existing channel. Further, he confirmed that most, if not all, of the trees identified were native, naturally occurring species. He could not offer any opinion on which trees identified within the Templeman report would be removed or suffer ‘root damage’.

Mr. Steven Jackson – Maitland Valley Conservation Authority (Independent Witness)

Mr. Jackson attended the hearing pursuant to a pre-hearing order of the Tribunal, which, given the permitting process granted to the Maitland Valley Conservation Authority (“MCVA”), wanted the MVCA’s input on any proposed design changes raised at the hearing.

Mr. Jackson confirmed that he was the Flood and Erosion Safety Services Coordinator for the MVCA and that he was directly involved in the permitting process for this project. It was his opinion that the GHD recommendations to add smaller rip rap within the void spaces of the larger stone and install a heavier geotextile underlay were reasonable and would not require additional review or permitting. However, the option to use cement blocks caused him some concern. The design of that option would have to go through the approval process again. Detailed plans would have to be filed and the design more thoroughly vetted.

With regard to the option to simply repair the existing structure, he confirmed that the scope and extent of any repairs would have to be carefully reviewed by the MVCA before a permit to undertake those repairs would be issued.

Mr. Jeremy Taylor, P. Eng. – Engineer who prepared the Report (Witness for the Municipality)

Design

Mr. Taylor confirmed that R. J. Burnside & Associates Limited was appointed to prepare a report for the repair and improvement of the McNain Drain in 2011. His research revealed that the McNain Award Drain was originally constructed in 1949. It was reconstructed as the McNain Municipal Drain under a report by S. W. Archibald in 1961. It was further improved under a report by H. M. Gibson in 1969.

As a result of the original instruction, Mr. Taylor stated that an on-site meeting was held on July 13, 2011. That was followed by additional on-site meetings on July 25, 2012, October 26, 2013, and November 6, 2014. A final report was published on April 10, 2015. That report recommended the reconstruction of the existing drop structure at the outlet of the Drain, the deepening of the Drain throughout its length, and improvement to the road culvert at County Road 86.

At the consideration of the final report, representatives of the owner of Lot 41 raised a number of design issues and requested that the report be referred back to consider alternative designs. Council agreed and the report was referred back for additional consideration.

Mr. Taylor confirmed that after the original report was referred back, he met with the owners of Lot 41 on June 11, 2015, September 18, 2015, January 13, 2016 and June 15, 2016 and as well had frequent telephone discussions with various representatives of the owners over that time frame. He stated that many alternative designs were discussed and investigated such as abandonment of the drop structure and the diversion of the Drain to an alternative outlet. The option to divert the Drain to a new outlet was determined to be legally and financially impractical.

The subsequent revised Report was published dated December 12, 2016. He stated that the revised Report differed from the original report as follows:

• it provided an improved outlet to the downstream lands
• it improved the existing drop structure
• it recommended a narrower channel that minimized disruption on the property
• it included the replacement of the corrugated steel pipe culvert upstream of the drop structure with a concrete box culvert

Mr. Taylor stated that all of the modifications to the design as set out in the original report were intended to improve the works recommended in Lot 41 specifically as requested by the owners of Lot 41. The design changes were focused on minimizing disruption to the property. However, when questioned, he did concede that there were other modifications and corrections in the Report that were not directly associated with the works in Lot 41.

It was Mr. Taylor’s opinion that it was absolutely necessary to reconstruct the drop structure under a new report. He stated that the current bylaw does not include sufficient specifications that would allow the Municipality to undertake repair of this structure as contemplated under Section 74. Further, he disagrees with Mr. Betts recommendation to lower the leading edge of the drop structure and replace the lower step. He contends that the lowering of the leading edge as suggested by Betts is not sufficient to provide the required depth for improvements to the Drain upstream from that point. Further, the overall poor condition of the structure and lack of detailed drawings of how it was built will make the simple restoration of this structure impossible.

Mr. Taylor also confirmed that all necessary permits from MVCA relating to this project have been received.

When questioned about the nature and use of the existing corrugated steel pipe outlet in the west bank of the Drain at the drop structure, Mr. Taylor confirmed that it is normal practice to recognize and repair, as required, any pipe found discharging into a drain. However, in this case, if it can be confirmed that it currently serves no purpose, it can be removed from the works entirely.

With regard to adding an additional turf reinforcing mat to the channel banks above the limits of the lined channel within the drop structure as suggested by Mr. Betts, Mr. Taylor agreed that it could be done at a relatively modest cost but that cost would be added to the Section 24 Special Benefit assessment for the increased cost of construction of the outlet structure.

Assessment

Mr. Taylor clearly outlined that the overall cost of the works increased as a result of the original report being referred back. He attributed that increase in cost to the redesign of the works on Lot 41. Further, he was of the opinion that the owners of Lot 41 should have been more involved in the public consultation process leading up to the publication of the original report and consequently should bear the costs to prepare the second Report. Further, the effort made to accommodate the Appellant’s specific concerns while developing the second Report far exceeded normal practice and this again should bring the burden of cost to the Appellant.

In order to develop the assessment to be levied against Lot 41, Mr. Taylor confirmed that he first calculated all cost relating to construction, contingency, allowances and administrative costs of the works within Lot 41. A specific Section 22 Benefit and two Section 24 Special Benefits related to the works in this reach were calculated and broken out of the total cost and levied against Lot 41. The remainder was split 25% against Lot 41 as a Normal Benefit and Direct Outlet and 75% against all lands upstream of Lot 41 as Outlet Liability.

It was Mr. Taylor’s opinion that the 25% Benefit/75% Outlet split was not typical as over half of the cost of the work exists within the most downstream reach. Normally, he would apply a Benefit/Outlet split that more heavily weighted the cost toward the upstream lands in Outlet Liability. However, in this instance, it was his opinion that it was necessary to reconstruct a very non-typical structure on the Appellant’s property, to a standard driven by their requirements after much more direct consultation than usually undertaken on municipal drains.

Mr. Taylor confirmed that he levied a specific Benefit assessment of $28,690 under Section 22 against Lot 41. This amount included all additional administrative costs that resulted from the original report being referred back. He also levied a Special Benefit assessment of $83,500 against this property for engineering costs relating to the revised design shown in the Report. He pointed that that while the hydrologic and hydraulic modelling changed somewhat from the initial to the final Report, this change in the modelled values had no impact on the final design. Finally, he levied a Special Benefit assessment of $9,990 against this property for the increase in cost of the drop structure. He was of the view that the drop structure was redesigned to meet the Appellant’s expectations and the increased cost of the resulting works should be their responsibility.

He also confirmed that he believes the actual area affected by the drain on the Appellants lands is 1.21 ha. and believes the Direct Outlet assessment of $260 is fair and equitable. He was also questioned on the limits of the drainage area in Lot 42 as shown on the plans and stated that the watershed fits the current natural contours of the land.

Mr. Taylor was questioned as to why he did not levy any injuring liability assessment against the upstream lands under Section 23(2). He confirmed that this assessment would be levied against lands that artificially collect flows and discharge those flow onto lower lands and subsequently damage those lower lands. He stated that, in this case, the artificially collected flows from the upstream lands are taken to a sufficient outlet as defined in the Act. The works recommended in the report specifically protect the lower lands from damage so the application of an assessment to the upstream lands under Section 23(2) does not apply.

Damage Allowances

Mr. Taylor acknowledged that there would be some trees removed from the Drain in order to permit the construction. However, the majority of the trees are native, naturally occurring trees within the limits of the channel that the Municipality has the authority to remove even under the current bylaw. He identified the limits of the working area as set out in the Report that references works from the east side of the drain that is reasonably clear of trees in order to minimize tree loss. The specifications direct that every effort be made to minimize tree loss. He also confirmed that it is not common to provide allowances for the loss of trees of this type that will be impacted on this site.

With regard to the restoration of the working corridor, meadow lands, and staging area, Mr. Taylor confirmed that there are specifications within the report that speak directly to those works and they will be included as part of the cost of the works.

David Bannister, P. Eng. – Engineer who designed the drop structure (Witness for the Municipality)

Mr. Bannister confirmed that he is currently Vice President of R. J. Burnside & Associates Limited and has been with this firm since 1998. He was qualified as an expert in hydrotechnical engineering. He stated that he became involved in this project in January 2016 and his primary role was to update the design of the drop structure. He confirmed that he had a great deal of consultation with GHD who were providing technical advice to the Appellant. He understood that preliminary design suggestions from GHD focused on using large rectangular armourstone placed to have steep sidewalls and a few stepped drops along the bottom of the channel. This option would require complete removal of the existing structure and require deep embedment below the existing channel bottom within the ravine. In the alternative, Mr. Bannister offered a design with the following features:

• leave the existing structure in place and use it as a foundation for large rock
• grout the voids under the existing concrete slab
• fill the ravine with large boulders to slow the flow velocity and support the banks
• the rock to be used was specified to be 1200mm nominal diameter armourstone
• use stone layers beneath the boulders to support the rock
• place rock on geotextile
• install rock check dams in the channel to further reduce the flow velocity
• modify the embankment slopes to minimize channel widening but maintain slope stability
• increase the size of the access culvert just upstream of the drop structure to a 1200 mm x 2400 mm precast concrete structure
• install a small rock-lined swale on the downstream side of Mayfield Road that would intercept water that may overtop the road and direct it safely to the drain

Mr. Bannister offered his opinion, which included his modelling assumptions, hydraulic analysis which was the basis for the rock and check dam design, and his slope stability analysis which dictated the design of the channel slopes. It was his understanding and belief that his contacts at GHD who were reviewing this design were pleased with it. Based on his analysis, the velocity of flows discharging from the structure would be in the order of 4.3 meters per second.

Mr. Bannister pointed out that the drop structure now proposed extends further downstream and includes a stilling basin feature. Further, he identified that the drop structure is now recommended to be constructed on the same gently curving alignment of the existing channel through this reach which he believes to be more stable and aesthetically pleasing as opposed to the straight alignment originally proposed.

Mr. Bannister confirmed that the current structure is designed to a 100-year return period standard and it will offer a higher level of erosion protection to the Appellant’s lands than did the original design. He further confirmed that he would have no issue with the recommendation of Mr. Betts to install smaller rock pieces in the voids around the large rocks that will line the spillway.

The Findings

Section 48 Appeal

Dealing with the specific issues raised in the Section 48(1) appeal on this matter, the Tribunal makes the following findings and comments.

Issue: The defined drainage area on Pt. Lot 41 is incorrect.

The Report identifies a drainage area of 1.21 ha. Although Mr. Taylor did not offer any specific detail as to how this value was determined, he was confident of its accuracy. However, the evidence of Mr. Betts referenced field investigations that identified earth berms and the removal of an on-site drainage systems that has reduced that area to 0.32 ha. These on-site drain modifications were supported by Mr. Campbell’s evidence. The Tribunal accepts the evidence of Betts and Campbell and confirms the drainage area on the Appellants lands to be 0.32 ha.

Issue: The drop structure requires only maintenance works but in the alternative, the new works as set out in the Engineer’s report should be modified.

Mr. Betts did not offer any convincing evidence to support the assumption that the existing structure could be repaired. In fact, his recommendation to lower the leading edge of the structure, replace the lower step, and install a cut-off wall are beyond the scope of the Municipality to repair this structure under Section 74 of the Act as none of these works are accurately defined in the current governing bylaw. The evidence of Mr. Taylor that the reconstruction of this feature must be include in a new report under Section 78 of the Act is accepted.

The recommendations from Mr. Betts to modify the design of the works does have merit. His first recommendation to supply and install a smaller gradation of rock within the 1200 mm nominal diameter armourstone to better fill the void spaces was accepted by Mr. Bannister as a reasonable addition, and accordingly will be accepted.

His second recommendation to use precast concrete blocks with a tongue and groove interlock system was not supported by Mr. Bannister nor was it endorsed by Mr. Jackson. For those reasons, this alternative should be given no further consideration.

Finally, Mr. Betts’ third recommendation for the provision of a more robust geotextile underlay was not questioned and will be accepted.

Therefore, the Tribunal accepts recommendation #1 and #3.

Issue: The damage allowances provided in the report are incorrect.

Mr. Betts relied on reports from other sources to justify an increase in the damage allowances to the Appellant for lands impacted by construction activities and tree loss. Mr. Hebel set out in detail his costing for restoring areas potentially damaged by the construction activities. Mr. Taylor confirmed that the Report includes specifications and costing for the restoration of the defined areas potentially disturbed by the works. It is inappropriate to have the damaged area fully restored as a cost of the work and also receive a damage allowance which is also a cost of the work.

Mr. Hebel also stated that he was involved in flagging the trees to be potentially impacted by the works. He confirmed that most are within the channel and are naturally occurring species as opposed to planted, ornamental trees. The author (Templeman) of the report addressing allowances for tree loss was not present and gave no evidence. That report placed allowance values on the loss of willow, ash, hawthorn and apple trees potentially impacted by the works. Mr. Taylor testified that the trees to be removed are within the channel or are within the working corridor, are naturally occurring, are not ornamental trees, and are not eligible for allowances as part of his standard practice. No other property along the length of the Drain is provided any allowance for the loss of similarly occurring trees.

The Tribunal accepts the evidence of Mr. Taylor and does not support the provision of a damage allowance to the Appellant for the restoration of lands impacted by the works or the loss of trees.

Section 54 Appeal

Dealing with the specific issues raised in the Section 54(1) appeal on this matter, the Tribunal makes the following findings and comments.

Issue: The defined drainage area in Pt. Lot 41 is incorrect and the assessment must be reduced.

The Tribunal has accepted the evidence from Mr. Betts that the affected area on the Appellants property is 0.32 ha. as opposed to the 1.21 ha. as shown in the Report. Given that finding, no arguments have been made or evidence brought to suggest that this adjustment will impact the Direct Outlet assessment to which this would apply. In fact, the Municipal Drain Summary Assessment Worksheet as prepare by Mr. Betts does not show any adjustment of the associated assessment of $260. The Tribunal does not recommend any changes to the value of the Direct Outlet Assessment.

Issue: The Specific Section 22 Benefit assessment should be reduced.

Mr. Taylor outlined the rationale applied to develop this assessment against the Appellant. It is clear that the referral process was singularly driven by the Appellant and cost considerations against the Appellant would be reasonable in this instance. Mr. Betts’ request to apply 25% if the cost against the Appellant and 75% of the cost against the upstream lands is neither fair nor equitable as the upstream lands did not drive the need for a new report. The Tribunal recommends that the specific Section 22 Benefit of $28,690 remain unchanged.

Issue: The Section 24 Special Benefit assessment should be further reduced.

It was Mr. Taylor’s evidence that he tracked all costs associated with the additional engineering investigations and design related to the Appellant’s requirements. He levied that cost as a Special Benefit assessment under Section 24 of the Act. This Special Benefit assessment of $83,500 levied against the Appellant was reduced to $60,000 by the Court of Revision. No arguments against this adjustment were raised.

It was Mr. Bett’s evidence that the value of Special Benefit to be levied against the Appellant should have been calculated as 25% of the original $83,500. It was his evidence that the distribution of this Special Benefit assessment should be the same as the Benefit/Outlet cost split applied by the engineer for the regular cost on the Drain. This argument is not accepted. The Special Benefit costs levied under Section 24 are related to specific benefits provided to specific properties and are not at all related to the Benefit/Outlet cost split that may be applied to the normal works on the Drain.

However, it was clear from the testimony of Mr. Bannister that the revised design included in the second Report offered a higher level of protection to the Appellant’s lands, a higher level of service for the upstream lands, and a structure that should require less maintenance than the works originally specified. The upstream lands will be positively impacted by the improved design of the drop structure. As such, it is not fair or equitable to levy 100% of the additional engineering costs associated with developing this design against the Appellant. The Court of Revision recognized this inequity but did not assess it correctly. The Tribunal accepts that the remaining Special Benefit assessment of $60,000 against the Appellant should be further modified. The Tribunal directs that the maximum value of the Section 24 Special Benefit for engineering associated with the referral of the report to be levied against the Appellant to be $30,000.

Issue: The 25% Benefit/75% Outlet cost split applied in Section M1 is incorrect.

It was the opinion of Mr. Betts that the cost split applied in Section M1 (Appellant’s lands) should be in the order of 3% to 5% Benefit and 95% to 97% Outlet. Mr. Betts has no experience in developing assessments under the Act and appeared to rely on unsupported opinions from unidentified third parties. This argument was not accepted.

Mr. Johnstone gave extensive evidence as to the market value of the Appellant’s property and the potential impact to it resulting from the works. It was his stated belief that no aspects of the works carried out on the drain under this report will provide a ‘benefit’ to the Appellant’s property. However, he also conceded that the ‘benefit’ he referenced in his report was not the same as a ‘Benefit’ assessment levied against the property under the Drainage Act. The Tribunal rejects the arguments of Mr. Johnstone. Under the Act, the Engineer has a responsibility to levy the costs of drainage works against properties affected by those works and those assessments are not related to the market value of the property to be assessed.

Mr. Taylor has prepared many reports under the Act and offered detailed comment as to his reasons for adopting the cost split shown in the report. The Tribunal accepts the evidence of Mr. Taylor on this issue.

Issue: The maintenance cost apportionments as set out in the report are incorrect.

Mr. Betts argued that the proportion of future maintenance cost against the Appellant’s lands should be lowered. The value he proposed was related to the values shown for other small lots in the watershed. This is not an acceptable rationale for developing apportionments for future maintenance costs. These apportionments are not related to lot size but rather total value of assessed costs against the property.

Mr. Taylor confirmed that he gave careful consideration of this issue and based on the significant cost of the works on the Appellant’s lands determined that the apportionment of future maintenance cost against this property should be at the value shown in the report. The Tribunal agrees.

Additional Items

The report includes provisions for the modification of a corrugated steel outlet pipe that discharges through the northwest bank of the Drain within the length of the drop structure. During the hearing, Mr. Betts and Mr. Campbell gave evidence to confirm that this pipe no longer serves any purpose and should be removed. Mr. Taylor and Mr. Bannister agree with that determination. The Tribunal accepts the request to remove this item from the works.

On Page 18 of the Report, it is referenced that the owner of Pt. Lot 41 is responsible for the supply and installation of a 1200 mm x 2400 mm precast concrete box culvert to serve this property. On Page 5, Appendix F of the Specification within the Report, this same structure is erroneously referenced as a 900 mm x 1800 mm precast concrete box culvert. The report specifications must be corrected.

Order of the Tribunal

The Tribunal hereby orders:

1. The appeal of the Appellant under Section 48(1) shall be granted in part.

2. The Engineer shall revise the recommendations, plans and specifications in the December 16, 2016 report as follows:

• To include the provisions for the supply and installation of appropriately sized grade stone to fill the voids in the rock lined drop structure. The additional cost of this item to be included in the Section 24 Special Benefit cost related to the increased cost of construction of the structure.
• To include the provision of a heavier geotextile than that currently specified to the satisfaction of the Engineer. The additional cost of this item to be included in the Section 24 Special Benefit cost related to the increased cost of construction of the structure.
• To include the provision of a turf reinforcing mat on the unprotected areas of the modified channel banks on the Appellant’s property as determined by the Engineer. The additional cost of this item to be included in the Section 24 Special Benefit cost related to the increased cost of construction of the structure.
• To include the removal of the existing corrugated steel outlet pipe in the northwest bank of the drain. The additional cost of this item to be included in the Section 24 Special Benefit cost related to the increased cost of construction of the structure.
• To correct the reference in the report to the size of the precast concrete box culvert on the Appellant’s land to 1200 mm x 2400 mm.
• To correct the reference in the Report to the affected area on Roll No. 64-64-144 to be shown as 0.32 ha.

3. The appeal of the Appellant under Section 54(1) shall be granted in part.

4. The Engineer shall revise the Assessments for Construction as shown in the December 16, 2016 report as follows:

• The Section 24 Special Benefit assessment for engineering related to the referred report shall be set at $30,000.
• The remaining portion of this Section 24 Special Benefit assessment ($53,500) shall not be considered a Special Benefit and shall be include as part of the general cost of the works and assessed accordingly.
• The revised total cost of the works shall be distributed using the same Benefit/Outlet cost splits and assessment methodology as originally applied.
• The currently recommended distribution of Maintenance costs as shown in the Report shall not be altered.

5. 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 Engineer’s fees and expenses for preparing the Report, the revised Report, as well as the Engineer’s fees and expenses for preparing for and attending the Tribunal hearing.

6. The revised Report shall be dated the same date as this decision.

7. Once the revised Report has been completed, the Tribunal directs that the revised Report be circulated to all assessed owners on the McNain Municipal Drain 2015. The revised Report shall not be brought before Council or the Court of Revision. The amended bylaw for this work shall reference the revised Report.

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

Dated at Tecumseh, Ontario this 22^ndday of December, 2017.