Agriculture, Food and Rural Affairs Appeal Tribunal
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
APPEAL: Miller Drain (RE) Municipality of Southwest Middlesex 2017ONAFRAAT03
STATUTE: Drainage Act
HEARING: March 7, 2017
020Miller16
NEUTRAL CITATION: 2017ONAFRAAT03
MILLER DRAIN 2016
Municipality of Southwest Middlesex
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 Rein Minnema of Minnema Farms Ltd. of Glencoe, Ontario under Section 54(1) of the Drainage Act from the decision of the Court of the Revision on the Miller Municipal Drain 2016 in the Municipality of Southwest Middlesex.
Before: Paula Lombardi, Vice-Chair; Edward Dries, Member; Lee Holling Member
Appearances: Rein Minnema, Appellant John Spriet, Engineer who prepared the report for the Municipality of Southwest Middlesex
DECISION OF THE TRIBUNAL
Background
The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held this hearing in the Municipality of Southwest Middlesex on March 7, 2017. The Engineer’s Report, dated August 30, 2016 for the Miller Drain 2016 (the “2017 Report”) was prepared by Spriet Associates London Limited and submitted by J.R. Spriet, P.Eng., (“Engineer”). An appeal was filed by Mr. Rein Minnema of Minnema Farms Ltd. (“Minnema” or “Appellant”), under section 54(1) of the Drainage Act (“Act”).
Janneke Newitt, Clerk of the Municipality of Southwest Middlesex, performed the duties of Clerk of the Tribunal.
Preliminary Matters
Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing. The Municipality filed an Affidavit of Service, dated January 18, 2017 as proof that all parties had been served with the notice of hearing.
Mr. Semowoniuk requested, and was granted, participant status.
Background
The Miller Drainage Works 1969 (“Drainage Works”) is located on Lots 9 through 13, Range 1 N.L.R. and Range 1 S.L.R. formerly in the Township of Ekfrid, now in the Municipality of Southwest Middlesex (“Municipality”). The Drainage Works are situated on lands in the vicinity of County Road No. 2 (“Longwoods Road”) and Thames Road. The closed upper portion of the Drainage Works extends approximately 128 metres east of Lots 10/11 downstream to 125 metres east of Lots 11/12. The Drainage Works consist of 695 metres of 300mm diameter concrete tile and 12 metres of 375 mm diameter corrugated steel pipe.
The lower portion of the Drainage Works includes 1,463 metres of open channel from the outlet of the tile to its own outlet in Lot 13, S.L.R. The open channel provides an outlet for the closed McTaggart McLean Drain that empties into the open channel in the same generalized area as the closed upper portion of the Drainage Works. The Drainage Works completed in 1969 represent the last time that the Miller Drain was reconstructed.
The Appellant owns several properties in the watershed. One of the Appellant’s properties is situated on Lot 12 and abuts Mr. Semowoniuk’s property that is situated on Lot 11 along the easterly property line. The outlet for the closed upper portion of the Drainage Works is located on the property owned by Mr. Semowoniuk. Also, approximately 125 metres of the open channel is located on Mr. Semowoniuk’s property prior to entering the Appellant’s property. The open channel continues on the Appellant’s property for approximately 332 metres prior to it entering onto the Longwoods Road right-of-way.
In 2005 the Appellant submitted a request to the Municipality that the open channel of the Drainage Works on his property in Lot 12, Range 1 N.L.R. be closed in with tile. A preliminary report was filed by Ray Dobbin, P. Eng. that offered three options for enclosing the open drain on the Appellant’s property. A final report for this work was prepared by the engineer on June 23, 2006. This 2006 report did not recommend the enclosure of the open drain on the Appellant’s property but rather provided for an access culvert on the Appellant’s property in Lot 12 in addition to erosion protection at the outlet of the tile portion of the drain in Lot 11. The Appellant objected to the installation of a culvert in the 2006 engineer’s report and requested that the open channel be realigned along Longwoods Road.
The Municipality did not take any action on the 2006 engineer’s report and instead instructed the engineer at that time to consider the realignment of the open ditch. The engineer presented the realignment option to the Municipality at which time Municipal Council decided to send a notice to all landowners on January 27, 2009 that it was not proceeding with the request and that no further work would be undertaken (“January 2009 Notice”).
Upon receipt of the January 2009 Notice, the Appellant filed a new request for drain improvements seeking an access culvert, a clean out of the open channel and erosion protection at the outlet of the closed tile drain. The engineer proceeded to prepare a second report dated May 30, 2009 that included an access culvert in Lot 12 along with erosion protection at the outlet of tile drain in Lot 11.
The upstream landowners expressed concerns with the report relating to the hydraulic capacity of the access culvert and it was referred back to the engineer to take into consideration these concerns. The engineer prepared a third report dated November 8, 2009 that was considered by the Municipality and adopted on March 3, 2010. Both Mr. Minnema and Mr. Semowoniuk appealed the assessment and another landowner located upstream appealed both the work and the assessment on the grounds that the access culvert was not necessary. It was this engineer’s report that was subject to the Tribunal’s February 17, 2011 decision.
The Tribunal, in its February 17, 2011 decision accepted the recommendations of the engineer as described in the first preliminary report from 2006. This recommendation was the installation of a tile drain generally following the existing channel with outlets for surface water and extending from the outlet of the existing tile portion of the Drainage Works and the McTaggart McLean Drain downstream to Longwoods Road. The Tribunal ordered the Municipality to appoint a new engineer to prepare a final report for the enclosure of the Drainage Works, comprised of a tile and surface swale over the tile to accommodate excess surface water, extending from the outlet of the existing tile drains to Longwoods Road as described in the engineer’s Preliminary Report dated February 10, 2006.
The Report before the Tribunal at this hearing is the Report prepared in fulfillment of the Tribunal’s February 17, 2011 Order. The Report before the Tribunal at this hearing recommends that the: full length of the open ditch be cleaned out; existing culvert be replaced under Longwoods Road; new farm culvert be installed on the Proctor property; open ditch on the Appellant’s property in Lot extending from the east property line to approximately Sta. 1+010 at Longwoods Road be backfilled and graded in such a manner so as not to impede surface water flows; a new tile main drain be constructed on a direct alignment from the point where the open drain crosses the Minnema/Semowoniuk property line to approximately Sta. 1+010 at Longwoods Road; a new tile branch drain be constructed from the existing 1969 tile south to Longwoods Road in the southeast corner of the Semowoniuk property; in addition to other work.
Issue
Should the assessment applied to the Minnema Farms Ltd. properties be either reduced or altered under section 54(1) of the Act for the Millar Drain 2016?
Evidence
John Spriet, P. Eng., Engineer who prepared the Report
Mr. Spriet was appointed as the Engineer pursuant to the Act as required by Tribunal’s February 17, 2011 order.
The Engineer advised the Tribunal that he was appointed by the Municipality to take a ‘fresh look’ at the Drainage Works and the Appellant’s request that the open ditch crossing his property be enclosed. The Engineer also indicated that he had taken into consideration the decision of the Tribunal and the history of the engineer’s reports prepared for the Miller Drain.
The drainage work on the lower closed portion of the Miller Drain was initiated by a request received from the Appellant while the work on Branch ‘A’ was initiated by a petition signed by Mr. Semowoniuk whose land contains over sixty percent (60%) of the area requiring drainage.
An on-site meeting for this project was held in 2011. According to the Engineer, Mr. Minnema advised that it was his preference to eliminate the open ditch and replace it with an underground drain.
The Engineer confirmed that the last work on the drain was carried out in 1969. The current survey of the open drain extended from the outlet of the drain into the Proctor Drain on the Proctor property in Lot 13; continued northerly to cross Longwoods road; extended easterly within the Longwoods Road right-of-way to the west side of the house and farm buildings on the Minnema property in Lot 12; then northerly across the Minnema property to a point approximately 117m east of the line between Lot 11 and 12 on the Semowoniuk’s property. Two tile drains constructed under the 1969 report discharge into the head of the open drain on the Semowoniuk property.
The Engineer testified that he reviewed the survey in an effort to develop a solution to the Drainage Works that would provide for the enclosure of the open drain on the Minnema property as requested by the Appellant. However, Mr. Semowoniuk advised the Engineer at the site meeting that he was satisfied with the open drain on his property.
The Engineer proposed to improve the open ditch commencing at its point of outlet into the Proctor Drain and extending along its existing alignment upstream to point where the drain turns away from the road allowance at Sta. 1+010. The Engineer recommended the installation of a new farm culvert on the Proctor property in Lot 13 and the reconstruction of the road culvert across Longwoods Road. The Engineer testified that the reconstruction of the road culvert across Longwoods Road would be undertaken by the Middlesex County Road Authority at their sole cost and expense.
The Engineer confirmed two concrete culverts that cross Longwoods Road from the south and discharge into the Miller Drain across the frontage of the Appellant’s property in Lot 12. The Engineer stated that the Miller Drain is deep enough to provide effective outlet for these two culverts and to the south side of Longwoods Road as well as the Appellant’s lands that abut the southerly limit of Longwoods Road in Lot 12.
The Engineer’s proposed location of the new tile drain considerably shortens the length of the drain from 363 metres to 256 metres crossing the Appellant’s property to the westerly limit of the Semowoniuk property. The Engineer noted two advantages to this route (a) a shorter distance; (b) it increases the design gradient. The Engineer recommended the installation of a 675 mm diameter concrete tile that would have the design capacity to remove the flows generated from a runoff coefficient of approximately 38 mm per 24 hours. This design coefficient reflects the recommendations as set out the Drainage Guide for Ontario. The Engineer confirmed that he selected that design standard to provide adequate outlet for future improvements to drainage works upstream of this point.
The Engineer testified that the cost of the works across the Minnema property was $43,960 and reflects the costs of constructing the tile along the chosen route, backfilling of the ditch and an overflow swale along the alignment of the original open ditch. Of this amount, the Minnema property was levied a Benefit assessment of $41,460.
The Engineer noted that in accordance with the Agricultural Drainage Infrastructure Program policies, the cost assessed to the Appellant relating to the drain enclosure and tile installation is not eligible for a grant from the Ministry of Agriculture Food and Rural Affairs.
The Engineer stated that enclosing this portion of the drain provides a relief to upstream landowners and reduces future maintenance costs that would have been required on the open drain. Based on the Engineer’s review of the historical records approximately $2,500 would be saved by enclosing the open drain on the Minnema property. The $2,500 was levied as an Outlet Liability assessment against the lands within the watershed upstream of the Minnema property.
The Engineer testified that the proposed enclosure of the open drain on the Appellant’s land would increase the market value of the property due to the Appellant regaining a portion of the land for crop production and providing better control of subsurface water. The Engineer proposed the filling of the open drain on the Appellant’s property and the construction of a shallow overflow swale that would follow the same alignment as the original open drain on the property. In the Engineer’s opinion this is the preferred route that best suits the natural contours of the property. The report made reference to the proposed abandonment of the original open drain on the Appellant’s property pursuant to Section 19 of the Act.
The Tribunal confirmed that there is nothing to prevent the Appellant from filling in or modifying the proposed overflow swale if this reach of the drain is abandoned and not controlled under the by-law that applies to the Miller Drain. The Engineer confirmed that proposing that the overflow swale recommended on the Appellant’s property be abandoned was an oversight and it should remain incorporated as part of the Miller Drain.
Mr. Minnema – Appellant
Mr. Minnema advised the Tribunal that he was relying on the historical evidence in support of this appeal. Mr. Minnema testified that, in his opinion, the costs associated with proposed improvement to the Miller Drain as set out in the Engineer’s Report should be dealt with as they had been dealt with in the past. The Appellant failed to provide any details as to what would constitute an acceptable assessment.
The Appellant acknowledged that the value of the lands may increase as a result of this work but was of the opinion that the land values would take between 10 to 15 years to improve.
Mr. Minnema did confirm that he was in agreement with the proposed design although he had hoped that the open ditch on the Semowoniuk property would also be closed in as contemplated in the earlier engineer’s preliminary report from 2006.
Mr. Minnema also indicated that he is in support of the construction of an overflow swale along the alignment of the original open ditch but would prefer not to have a grassed waterway because it is very difficult to maintain. Mr. Minnema further stated that the drainage work is required to improve farming operations on this property. The Appellant did testify and acknowledge that with the closed ditch he could immediately start farming in the area and he would apply good farming practices to minimize impacts on the overflow swale.
Mr. Semowoniuk
Mr. Semowoniuk requested participant status at the hearing. Mr. Semowoniuk confirmed that he did not want the open drain on his property in Lot 11 filled in. Mr. Semowoniuk stated that while he has no issue with Mr. Minnema filling the open drain on his property, in his opinion, Mr. Minnema should be responsible for paying for all of the drainage works as he requested that the open ditch be filled in.
Findings and Analysis
The Tribunal accepts the evidence of the Engineer in this matter that the Assessments are fair and reasonable. The Appellant submitted a request to the Municipality that the lower portion of the drain situated on his property be closed. The Miller Drain has been subject to numerous engineers’ reports and a Tribunal hearing in 2011.
The Report prepared by the Engineer takes into account the Appellant’s request that the open drain be filled in and reflects the prior Order of the Tribunal from February 2011.
Order of the Tribunal
The Tribunal thereby orders
The appeal by Minnema Farms under section 54 of the Act is denied.
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, the revised Report, as well as the Engineer’s fees and expenses for preparing for and attending the Tribunal hearing.
The Engineer shall revise the plan, profile and Report dated August 30, 2016 to define and describe the filling of the open drain and the alignment, grade, cross-section and maintenance provisions for the overflow swale to be constructed on the Minnema Farms Ltd. Property (Roll No. 020-083). The revised report shall have the same date as this decision.
Once the revised Report has been complete, the Tribunal directs that the amended Report be circulated to all assessed owners on the Miller Drain 2016. The revised report shall not be brought before Council or the Court of Revision. The amended bylaw shall reference the revised Report.
There shall be no other Order as to costs and all parties shall be responsible for their own costs.
Dated at London, Ontario this 15th day of March, 2017.