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:
Switzer Drain and McLean Switzer Drain – AMENDED (RE) Municipality of Southwest Middlesex
Switzer Drain and McLean Switzer Drain – AMENDED (RE) Municipality of Southwest Middlesex 2017ONAFRAAT07
STATUTE:
Drainage Act
HEARING:
March 15 and 16, 2017
DATE OF DECISION:
May 23, 2017
021Switzer16
NEUTRAL CITATION:
2017ONAFRAAT07
SWITZER DRAIN AND MCLEAN SWITZER DRAIN 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: Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by:
Rein Minnema under section 54 of the Drainage Act
Archibald MacLean under sections 48 and 54 of the Drainage Act
Archibald and Janet MacLean under sections 48 and 54 of the Drainage Act
Graham McLean under sections 48 and 54 of the Drainage Act
John Paardekooper under sections 48 and 54 of the Drainage Act
John Walsh under sections 48 and 54 of the Drainage Act
John and Helen Walsh under sections 48 and 54 of the Drainage Act
with respect to the Switzer and McLean Switzer Municipal Drain in the Municipality of Southwest Middlesex.
Before:
Paula Lombardi, Vice-Chair; Edward Dries, Member; Lee Holling Member
Appearances:
Rein Minnema, Appellant
Archibald and Janet McLean, Appellants
Graham McLean, Appellant
John Paardekooper, Appellant
John Walsh, Appellant John and Helen Walsh, Appellants
Ray Dobbin, P. Eng., Engineer who prepared the report for the Municipality of Southwest Middlesex
AMENDED 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 15, 2017. The Engineer’s Report, dated April 14, 2016 for the Switzer Drain and McLean Switzer Drain (“Engineer’s Report”) was prepared by R. Dobbin Engineering Inc. and submitted by Ray Dobbin, P. Eng. (“Engineer”). Appeals were filed by Rein Minnema of Minnema Farms Ltd., under section 54(1) of the Drainage Act (“Act”), and Archibald MacLean and Janet MacLean, Graham McLean, John Paardekooper, John Walsh, John and Helen Walsh under sections 48(1) and 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 24, 2017 as proof that all parties had been served with the notice of hearing.
Background
Switzer Drain
The Switzer Drain consists of both an open channel and closed drainage system that includes Main Drain and Branches ‘A’, ‘B’, ‘C’ and ‘D’. The Engineer undertook an examination of the Switzer Drain and the McLean Switzer Drain situated in Lots 11 and 12, Range 1 South to consider enclosing the open channel portion of the Switzer Drain.
The main tile drain of the Switzer Drain extends into the north part of the South ½ of Lot 11 for approximately 66 metres and extends in a north easterly manner through the north half of Lots 9, 10 and 11 to the south side of Longwoods Road.
The main tile Switzer Drain consists of 350 mm to 200 mm diameter tile. Branch ‘B’ extends from the main drain north to the north side of Longwoods Road in approximately the centre of Lot 9 and consists of 300 mm diameter tile. Branch ‘A’ extends west from Branch ‘B’ along the north side of Longwoods Road for a distance of approximately 152 metres and consists of 200 mm diameter tile. Branch ‘C’ extends east from Branch ‘B’ for a distance of approximately 322 metres to the east side of Mayfair Road and consists of 250 mm diameter tile. Branch ‘D’ extends east for approximately 82 metres from the main drain south of Longwoods Road to the east side of Mayfair Road and consists of 150 mm diameter tile.
The open channel extends in a south westerly direction from the outlet of the tile drain located in the northern part of the South Half of Lot 11 to Switzer Drive and then travels in a southerly direction to an outlet at the property line between the North Half of Lot 12 and the South Half of Lot 12, Range 1, South.
The covered drain was last improved pursuant to an engineer’s report dated November 13, 1978 while the open channel portion was last improved under an engineer’s report dated May 14, 1952.
McLean Switzer Drain
The McLean Switzer Drain is located east of the Switzer Drain. The McLean Switzer Drain consists of both an open channel and closed drainage system. The closed drain outlets to the open channel situated at the easterly boundary of the South Half of Lot 11. The open channel then extends in a south westerly direction to the southerly property boundary between the North Half of Lot 12 and the South Half of Lot 12 where it connects to the Switzer Drain.
The McLean Switzer Drain was last improved pursuant to an engineer’s report dated January 28, 1975. In 1975, the closed drain consisting of the main drain and Branches ‘A’, ‘B’, ‘C’, ‘D’, ‘E’ and ‘F’ were improved and the channel extended downstream. The open channel portion of the drain was further improved in accordance with an engineer’s report dated April 29, 1976. In 1976, the open channel was improved and extended downstream to Lot 12, R2S south of the Canadian National (“CN”) railway track and outlets at the same location as the Switzer Drain.
Engineer’s Report
The Engineer’s Report was prepared under Section 78 of the Act pursuant to a request received from the owner of the South Half of Lot 11, R1S. Section 78 of the Act allows Council of the Municipality to engage in repair and maintenance of drainage works constructed pursuant to a by-law passed under the Act.
The original request received from the landowner was to extend the existing covered portion of the Switzer Drain. At the on-site meeting held on June 26, 2013 it was proposed that the outlet for the covered drain portion of the Switzer Drain in the South Half of Lot 11, Range 1 South be extended to an outlet in the open channel portion of the McLean Switzer Drain. The second option discussed was to extend the covered drain along the current route of the channel portion of the Switzer Drain to an outlet located at Switzer Drive.
A further on-site meeting was held with the landowners in the area on February 17, 2015 to discuss the proposal for the drainage works as set out in the Engineer’s preliminary report. However, prior to this meeting, it was requested that the Engineer investigate enclosing the open portion of the McLean Switzer Drain downstream to Switzer Drive. This request was then incorporated into the preliminary options and became known as opinion three.
All three options were presented to the landowners. The landowner of the South Half of Lot 11 requested more time to review each proposal. Despite this request the Engineer decided to proceed with option 1. Option 1 is the extension of the enclosed portion of the Switzer Drain east to the McLean Switzer Drain in the South Half of Lot 11 and to extend the enclosed portion of the McLean Switzer Drain from the east limit of the South Half of Lot 11 downstream to the junction with the proposed extension of the Switzer Drain. The McLean Switzer Drain downstream from this junction will also be improved to provide sufficient outlet depending on the decision of the landowner of the South Half of Lot 11 as to whether or not to enclose the open portion of the McLean Switzer Drain downstream to Switzer Drive.
The Engineer considered whether or not improvements were required to the channel of the McLean Switzer Drain downstream from Switzer Drive to the railroad culvert. However, it was the Engineer’s opinion that was subsequently confirmed by a survey that the railway culvert was not deep enough to provide sufficient depth between the road and the railway right-of-way. The Engineer recommended that provisions for either lowering or removing the culvert be considered in any future report(s) prepared for the drainage area.
Subsequent to these discussions, the owner of the South Half of Lot 11 requested that the McLean Switzer Drain be enclosed from the outlet of the upstream tile drain at the east boundary of Lot 11 downstream to Switzer Drive. The landowner requested that the open portion of the Switzer Drain on his property be abandoned and filled in. The landowner also requested that tile main headers be installed along both sides of the abandoned open drain to intercept the lateral tile drains that currently discharge into the open channel. The Engineer then developed the final design on that basis.
The Engineer indicated that the tile reach of each drainage works was designed to accommodate a runoff coefficient of 25 mm per 24 hours.
The Engineer’s Report also abandons some reaches of the existing municipal drainage works. The reaches being abandoned include the open channel portion of the Switzer Drain situated in the South Half of Lot 11 and Lot 12, R1S north of Switzer Drive and the open channel portion of the McLean Switzer Drain located in the South Half of Lot 11 north of Switzer Drive.
Generally, the proposed tile drain is assessed at 60% of the estimated cost as benefit assessment and the remainder assessed as outlet assessment based on equivalent hectares.
Similarly, the cost of the proposed channel improvements are assessed at 60% of the estimated cost as benefit assessment and the remainder of the cost assessed as outlet assessment based on equivalent hectares.
The costs associated with backfilling the existing channel and reconnecting existing subsurface drainage to the proposed tile drains is assessed as a special benefit assessment to the South Half of Lot 11 (Assessment Roll No. 20-059) and the South Half of Lot 12 (Assessment Roll No. 20-066). This assessment includes the installation of any tile header mains or equivalent cost in areas where the channel is to be abandoned. The Engineer indicated that the owner may carry out this portion of work at the owner’s sole cost and expense and if completed by the owner the special benefit assessment shall be removed.
The cost of the road crossing has been assessed as a special benefit to the road authority having jurisdiction over Switzer Drive.
The special benefit assessments to the South Half of Lot 11 (Assessment Role No. 20-059) and Lot 12 (Assessment Roll No. 80-109) as well as Canadian National Railway (Assessment Roll No. 80-109) are to be prorated as part of the costs of the drainage works. The Engineer indicated that if the owner wants to complete this work at his sole cost and expense this portion of the work shall be deleted from the special benefit assessment save and except for an engineering cost of 20% that shall remain.
Allowances were made under section 30 of the Act for damages to lands and crops caused by the proposed drainage works. Allowances for crop loss are based on $1,500.00 per hectare for the first year and $750.00 for the second year.
Issue
What is the fair and reasonable assessment in the circumstances of these appeals? Are the works proposed appropriate and necessary for the area?
Evidence
Ray Dobbins, P. Eng., Engineer who prepared the Report
Mr. Dobbins was appointed as the Engineer pursuant to the Act by the Municipality under section 78 of the Act.
Mr. Dobbins advised the Tribunal that the provincial government deleted the ability to obtain a grant to close an existing open drain. Also, the table titled Estimated Net Assessment of the drainage works, although attached to the report, is not incorporated into the Engineer’s Report and was provided to the assessed landowners for information purposes only.
The Engineer explained that the drainage work eligible for subsidy under the ADIP program is the replacement of the covered Switzer Drain in the South Half of Lot 11 and the ditch inlet catchbasin at the north limit of the South Half of Lot 11. The channel improvements downstream of Switzer Drive are also eligible for the ADIP grant program. The cost of the ditch inlet catchbasin at the easterly limit of the South Half of Lot 11 that is being constructed on the existing covered drain is also eligible for a grant under the ADIP program. Enclosure of the Switzer Drain and the McLean Switzer Drain, and the reconnection of subsurface drains and extending any tile main are not eligible for a subsidy under the ADIP program.
The Engineer indicated that there is more work being proposed than just filling in the ditch and installing the tile. At the initial on-site meeting the Engineer stated that his notes indicated that Mr. Walsh requested that the railway culvert be removed. The Engineer indicated that the field survey on the McLean Switzer Drain confirmed that the invert of the railway culvert was higher than that of the upstream culvert across Switzer Drive. This resulted in ponding in the drain between these two culverts. The Engineer expressed the opinion that this portion of the open drain had to be improved based on this circumstance regardless of any other proposed modifications to the upstream reach of this drain.
The Engineer confirmed that the open channels situated downstream need to be cleaned out and properly maintained. The proposed cleaning will not impact the side slopes and the depth of the open channels will be achieved without widening the drain. The Engineer in response to questions from the Tribunal indicated that the ditch has quite a wide bottom.
The assessments were completed in sections and allocated to the landowners. The Engineer indicated that the drain was originally constructed in 1923 and in 1952 was extended downstream; in 1978 a portion of the tile was replaced. The upper portion of the McLean-Switzer Drain was constructed in 1975 and further extended in 1978 to provide an outlet for the upstream tile. With the exception of the Special Benefit assessments, the Benefit/Outlet cost splits applied were similar to those applied in previous reports.
The Municipality contacted Canadian National (“CN”) Railway to discuss the removal of the culverts but did not get a response. The CN Railway is no longer in use and its tracks removed. The Engineer recommended the removal of the CN Railway culverts on the Switzer and McLean Switzer Drain however they are not to be replaced in the Engineer’s Report.
The Engineer acknowledged that the Drainage Guide for Ontario recommends the use of a drainage coefficient of 37 mm per 24 hours where surface flows have direct access to the tile drainage system. The Engineer further confirmed that the report states that the drainage coefficient applied in this case was 25 mm per 24 hours.
The Engineer, in response to questions from the Tribunal, indicated that in his opinion, the Drainage Guide for Ontario is conservative when constructing a longer drain such as this project. The Engineer indicated that he confirmed the size of the drain with the MIDDUS program, which is a program that is commonly used by drainage engineers. The Engineer confirmed that he is comfortable with a drainage coefficient of 25 mm as it provides for a long drain and meets the current capacity of the existing tile drains upstream. The capacity of the existing Switzer Drain and Switzer McLean Drain upstream of the proposed works is currently designed only to accommodate subsurface water.
The Engineer indicated that buffer strips are generally incorporated as part of the drainage works and proposes the use of buffer strips on sections of the channel. The Engineer testified that the cost of the buffer strips are to be assessed at 60% to 65% against the adjacent lands and the balance assessed against the upstream lands.
The Tribunal questioned the Engineer about the number of catchbasins and culverts. The Engineer indicated that there are two catch basins and two junction chambers on the Switzer Drain and two catch basins on the Switzer McLean Drain. The catch basins are online basins intended to facilitate observation and maintenance of the tile drains. There are no culverts recommended on the Switzer Drain in the South Half of Lot 11 as the plan is to enclose that portion of the drain through this property. However, the Engineer stated that this property, although it does not have one now, is entitled to a culvert and as one is not being recommended, the assessment against this property should be reduced to recognize the savings in project costs resulting from eliminating the need for the culvert.
The Engineer stated that the enclosure of the open drains and their replacement with tile drains would eliminate the cost of maintaining the open drains over time. This potential cost savings was reflected in the assessments levied against the South Half of Lot 11. The Engineer used the estimated cost of four cleanouts over a period of 80 years to develop the value of this credit to this property.
When questioned as to the frequency of maintenance on the existing open drains, the Engineer was unable to advise the Tribunal as to when the ditch was last maintained and cleaned out. The Engineer acknowledged that in 1976 the drain was improved under an engineer’s report but does not know the extent of the maintenance works carried out on the drain since that time.
The Engineer testified that the water was leaving the upstream properties and drainage was generally good for the property owners. The Engineer did point out that at the point where the tile portion of the McLean Switzer Drain discharges into the open drain at the line between Lot 10 and 11, there is a considerable amount of sediment in the open drain and the outlet pipe appears to be under water. In the Engineer’s opinion the water is still flowing down to the CN Railroad but if the drain was maintained and cleaned out it would work more efficiently in this area.
The Engineer stated that the upstream tile portion of the existing McLean Switzer Drain offers a drainage coefficient capacity of approximately 8.9 mm per 24 hours. The Engineer confirmed that the proposed design of the new tile drain (25 mm) will comfortably contain this flow. When questioned as to the outcome if the upstream lands wish to improve the capacity of the drain to a 35 mm standard, the Engineer confirmed that it could be done but that a new report would be required and the entire drain would have to be modified to accommodate that higher standard of design.
The Engineer testified before the Tribunal that the drainage would be improved for upstream landowners if the upstream reaches of the existing tile drains are improved.
The Engineer agreed that the goal is to try to eliminate erosion and pollution going to Lake Erie and considered the implementation of buffer strips to stop fertilizers and debris from entering into the municipal drainage system. However, upon questioning from the Tribunal the Engineer confirmed that buffer strips are in fact not incorporated into the Engineer’s Report.
When questioned about the size of the drain and the recommendation that the drain tile design should be based on a drainage coefficient of 1”as opposed to 1½” and the Engineer indicated that the discussions relating to size depends on the Engineer. The Engineer indicated that when determining the size there are numerous differing opinions and methods. The Engineer relies on the Drainage Guide for Ontario and then the software program MIDDUS. The Engineer advised the Tribunal that it is his opinion that the Drainage Guide for Ontario is conservative and that the application of an alternative design technique is appropriate in these circumstances.
The Tribunal questioned the Engineer about the change in the design gradient of the Switzer Drain tile from 0.4% to 0.25%. The Engineer indicated that the design capacity of the tile was achieved with a 0.25% gradient which was necessary to fit the natural gradient of the land along this alignment and achieve adequate cover for the tile. A 0.40% gradient recommended for the upstream reach of this length of tile better fit the natural gradient of the land and although this reach would have a theoretically higher capacity, it would not negatively impact the function of the lower reach. The Engineer testified that the change in grade is not considerable and will have no impact on performance.
When asked about the twinning of the Switzer Drain and whether during installation it was possible to backfill the area without crossing the buried tiles, the Engineer indicated that in his opinion it could be done at the time the initial work is being completed. The ditch would be filled in after the tile was in place and enough space between the two new tile drains would be left to allow for the construction. According to the Engineer, there is approximately 10 ft. on either side of the ditch bank.
In response to a question about the warranty on the tile drain construction, the Engineer stated that the work would be tendered and includes a holdback for a period of one year. Over the year there would be a holdback of 3%.
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 drain as set out in the Engineer’s Report should be dealt with as they had been dealt with historically. The Appellant indicated that in his opinion, the assessment should be the same as the historical assessment applied to his property which was in the range of 60% to 65%.
The Engineer indicated that the Minnema property is assessed at a 65% benefit and was changed to the original assessment at the Court of Revision.
Mr. Minnema confirmed with the Tribunal that he will accept the surface water flows across his property.
Mr. Walsh - on behalf of the remaining Appellants
Mr. Walsh presented on behalf of the remaining Appellants; Archibald and Janet MacLean; Graham McLean; Ian MacLean; John Paardekooper; John and Helen Walsh; and Rob McColl (“Appellants”). The Appellants appealed both the assessment and the Engineer’s Report to the Tribunal. The Tribunal does appreciate the Appellants organizing their argument and working cooperatively in the presentation of their case.
The Appellants indicated that the Engineer’s Report evolved significantly since the first on-site meeting and that the focus appeared to be on redirecting a portion of the Switzer Drain into the McLean Switzer Drain. The Appellants expressed significant concerns about enclosing both drains resulting in three new buried tile drains and the deepening of both ditches downstream. The proposed drainage works started at a cost of approximately $60,000 to $70,000 and is now projected to be more than $300,000.
The Appellants advised that in 2012 the government implemented soil conservation, erosion control and nutrient management best practices. The Appellants expressed concern that the increased flow of water coupled with the lack of a vegetated base or buffer areas to slow down the water was not factored into the Engineer’s Report. The Appellants indicated that a significant portion of the problem is that Mr. Minnema does not take care of the municipal drain situated on his property and does not incorporate any vegetated buffer to reduce the erosion of soil into the open drain and stabilize the banks of the drain.
Mr. Graham McClean indicated that he is situated approximately two kilometres from the Thames River. Mr. Graham McClean has beef cattle and has dry / solid manure on his property. It was Mr. Graham McClean’s opinion that the farmers need to look after their properties in order to mitigate any possible negative environmental impacts on Lake Erie.
The Appellants all agreed that property management starts on the farm and expressed concern that the destruction of habitat as a result of the construction associated with the municipal drain reduces the carbon sink that is natural provided in the area.
All of the Appellants expressed a concern with the assessment and indicated that none of them feel that their properties are receiving any benefit from the drainage works. The Appellants are of the opinion that if tile drains are constructed, they will need to settle for a period of time prior to any traffic or machinery being put on them. There was also a concern expressed with the backfilling of the open portion of the Switzer Drain between the two new tile drains and whether or not this could be achieved without the risk of damage. The Appellants did not think that the tile drains were being constructed deep enough to avoid any damage in the future from the weight of machinery and farming activities.
The Appellants questioned whether or not the drains could simply be cleaned out and at what cost. The Appellants questioned the runoff coefficient being proposed and expressed a concern that it was not sufficient for the area particularly should future improvements be carried out on the upstream reaches of either or both drains.
The Appellants were also of the opinion that the Engineering costs were not properly allocated amongst the landowners. The Appellants testified that at the on-site meeting they requested that the drainage works not proceed. It is only in the alternative if the drainage works proceeded that the Appellants requested the amendments to the Engineer’s Report.
The Appellants also expressed concerned with the process in developing the Engineer’s Report. It is the Appellants position that the choice of the Engineer should not have been given to the original petitioner. The Appellants also requested that the Tribunal recognize that there are more than seven parties impacted by the proposed drainage works in the Engineer’s Report.
In response to questions from the Tribunal, the Appellants confirmed that the soil type in the area is Brookston clay at varying depths. The Appellants testified that much of their properties are randomly tiled and not systematically tiled due to the age of the farms. The Appellants confirmed that generally, water runoff is absorbed and while it may pond in some areas there are no obvious surface swales along the alignment of the tile.
The Appellants also indicated that the assessments for Benefit as shown in the Report are incorrect. In their opinion, 90% should be assessed to Mr. Minnema and 10% to the Appellants.
Mr. Walsh and Mr. McColl are the only two properties being impacted by the deepening of ditches. The Appellants requested that the Engineer consider an option where fill is brought in to raise ground levels so that the ditches don’t have to be lowered. This was not considered in the Engineer’s Report.
The Appellants also indicated that it was their understanding that while CN continues to own the property; a private purchaser is currently looking at the area to install a solar project. This information was confirmed by the municipality. The proposed works would eliminate access culverts over the Switzer and McLean Switzer Drains making portions of this property inaccessible.
The Appellants advised the Tribunal that a drainage issue does not exist in the area; this project relates to a property improvement and repairs due to poor management of the Minnema Farms property. The Appellants testified that Minnema Farms was advised on November 27, 2012 that he would have to repair the ditch due to mismanagement on his property. The Appellants expressed concern that instead of the Engineer addressing the erosion problems associated with Mr. Minnema cultivating his property too close to the municipal drain; the Engineer pursued Mr. Minnema’s request for a closed drain.
The Appellants presented a series of photographs of the McLean Switzer drain south of Switzer Drive providing evidence of the existing large buffer strips along the municipal drain that are maintained to prevent erosion. The photograph of the McLean Switzer Drain north of Switzer Drain on the Minnema property evidences the lack of erosion control due to the lack of any buffer strips in the area.
The Appellants testified before the Tribunal that in their opinion, there is no drainage issue in the area and the proposed drainage works in the Engineer’s Report results in considerable impact to their properties. In their opinion, the drains in the area merely require proper maintenance.
According to the Appellants, the Engineer’s Report as proposed will impact approximately 3.5 km of municipal ditch; 2 km of ditch will be enclosed and 1.5 km of ditch will be deepened. There is a concern by the Appellants that the works will cause a high risk of significant erosion in the area. In addition, the reduced absorption of nutrient and increased phosphate runoff risk from the removal of vegetation in the area presents a significant risk to the Thames River and Lake Erie.
While the proposed drainage works may have increased the property values for the petitioner, Mr. Minnema, it is the Appellants position that it has decreased their property values. The Appellants see no benefit to the upstream and downstream properties despite being assessed for an improved outlet. The photographs presented by the Appellants from Switzer Drive looking north up to the McLean Switzer Drain taken in February 2017 shows the municipal drain functioning well in the area.
The Appellants, in response to questions from the Tribunal, expressed significant concerns with the proposed design for the municipal drain and find the Engineer’s Report confusing. In their opinion, proposing the enclosure of the ditches will unnecessarily limit drainage capacity as it relates to upstream improvements to both drainage schemes in the future.
The Appellants identified a significant problem with the CN railway culverts and recommended that they be replaced in order to avoid the creation of a landlocked area along the railway. The Appellants also expressed a concern with the liability associated with the existing railway right-of-way due to the 3.3 metre drop from the current ground elevation to the ditch bottom at the railway culverts. The Appellants testified that there are a series of ATV trails located along the abandoned CN Railway right-of-way and if the culverts are removed and not replaced it could potentially result in significant accidents in the area. The Appellants provided photographic evidence to show that the CN Railway culvert is functioning and while the photograph showed some standing water, but in their opinion, the flow through the culvert is good.
Findings and Analysis
Upon hearing the evidence of the Engineer, it is the opinion of the Tribunal that the design guidelines as set out in the Drainage Guide for Ontario are appropriate and must be used in the design of these drainage works. While the Engineer completed detailed calculations, the Tribunal concludes that the proposed drainage works barley meets the 25 mm standard.
The Tribunal is concerned that the reduced design capacity, which is admitted to by the Engineer, will not be capable of providing as efficient drainage as what the properties upstream currently provide through the existing open drain. The Tribunal finds that the Engineer’s Report will significantly reduce the functionality of the municipal drain in the future.
The Engineer’s Report also results in a significant reduction in the hydraulic capacity of both drains at the Switzer Drive crossings. While the Road Authority has not complained about the proposed drainage works, it is the Tribunal’s opinion that the proposed drainage works practically diminishes the drainage ability in the area.
While the CN Railway culverts are generally dealt with as a public utility, the facts of this area have not been taken into consideration. The CN Railway is abandoned and the tracks removed and may be subject to a private sale. Taking this into consideration, it is not appropriate that the CN Railway be treated as a standard public utility.
The Appellants have stated and provided photographic evidence that the municipal drain in the area is working effectively and just needs to be cleaned out and maintained.
The overriding reason to prepare the Engineer’s Report, as confirmed by the Engineer, was the petition by Mr. Minnema to close the drain, not improve, but instead to close the drain. The Tribunal questions why if none of the other landowners in the area were complaining about the depth or capacity of the drain, the Engineer proposed such extensive work on the two drainage schemes. It is the Tribunal’s opinion that the drainage works proposed in the Engineer’s Report should be more accurately acknowledged as works for the primary purposes of enclosing the portion of the drain requested by Mr. Minnema. With that acknowledgement, Mr. Minnema should have been assessed the vast majority of the costs.
It is clear from the evidence that the Appellants are not interested in whether or not the downstream property owner has a closed drain on his property that is of no practical benefit to the upstream property owners and also restricts the capacity of future improvements to the Municipal drainage systems that serve their properties. The Tribunal notes the importance of Section 11 of the Act that sets out the duties of the Engineer and states:
The engineer shall, to the best of the engineer’s skill, knowledge, judgment and ability, honestly and faithfully, and without fear of favour to or prejudice against any person, perform the duty assigned to the engineer in connection with any drainage works and make a true report thereon.
In accordance with the Engineer’s duties under the Act, the Engineer should have concluded, in the circumstances, that it was neither practical nor reasonable to proceed with the Engineer’s Report and that the options presented are not necessary for the area as the existing McLean Switzer Drain and McLean Drain are providing an acceptable level of service to the area affected by these drainage works.
The Tribunal finds that the Engineer’s Report is impractical and technically flawed and as a result fails to comply with the Act and meet the regulatory requirements. The Engineer failed to take into consideration the importance of section 11 of the Act and the obligations thereunder to acknowledge that no additional drainage work was required in the area.
The Engineer failed to meet his duties under section 11 of the Act at the time when the options were initially considered and the first Engineer’s Report presented. The Engineer should have known at that time that the proposed drainage works were impractical. The Tribunal notes that Mr. Minnema however did act within his rights under the Act when requesting the closed drain which resulted in the municipality being required to hire the Engineer.
While the Drainage Guide for Ontario is sixty years old, it is continually updated and reliance on the drainage guide represents current best practices. The fact that the Engineer failed to rely on the drainage guide in this particular application presents a fundamental and incurable flaw with the Engineer’s Report. The Tribunal finds that the Engineer’s Report is invalid and the by-law adopting the report must be repealed by the municipality.
Order of the Tribunal
The Tribunal thereby orders:
1. The report titled Switzer Drain and McLean Switzer Drain, dated April 14, 2016, provisionally adopted by the Municipality of Southwest Middlesex as By-Law No. 2016/076 be set aside.
2. 50% of all costs related to this project up to and including the publication of the first published report dated February 26, 2016 and the attendance of the Engineer at the meeting to consider this report on March 10, 2016 shall be levied against the current governing by-law on the Switzer Drain.
3. 50% of all cost related to this project up to and including the publication of the first published report dated February 26, 2016 and the attendance of the Engineer at the meeting to consider this report on March 10, 2016 shall be levied against the current governing by-law on the McLean Switzer Drain.
4. All cost of works related to this project billed after March 10, 2016 shall be paid out of the general funds of the Municipality.
5. There shall be no other Order as to costs and all parties shall be responsible for their own costs.
Dated at London, Ontario this 1st day of May, 2017.
Amended at London, Ontario this 23rd day of May, 2017