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:

Ferragina Drain Town of Bradford West Gwillimbury

Ferragina Drain Town of Bradford West Gwillimbury 2017ONAFRAAT05

STATUTE:

Drainage Act

HEARING:

April 13, 2017

DATE OF DECISION:

May 15, 2017

001Ferragina17

NEUTRAL CITATION:

2017ONAFRAAT05

FERRAGINA DRAIN Town of Bradford West Gwillimbury

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 Dan Sopuch of Marshland Gardens Ltd., in Bradford, Ontario under section 48(1)(b) of the Drainage Act with respect to the Ferragina Drain in the Town of Bradford West Gwillimbury.

Before:

Paula Lombardi Vice-Chair; Andrew McBride, Member; Ron O’Connor, Member

Appearances:

Dan Sopuch, Appellant

Kenn Smart, P. Eng., Engineer who prepared the report

Frank Jonkman, Drainage Superintendent, Witness for the Municipality

Mike Ferragina, Witness for the Municipality

DECISION OF THE TRIBUNAL

Background

On January 20, 2017, Dan Sopuch filed an appeal under section 48(1)(b) of the Drainage Act (“Act”) with respect to the Ferragina Drain (“Drain”) indicating that the proposed drainage works should be modified. The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the Town of Bradford West Gwillimbury (“Municipality”) on April 13, 2017. The engineer’s report, (“Report”) dated October 31, 2016 for the Ferragina Drain was prepared by K. Smart Associates Limited and submitted by Mr. Kenn Smart, P.Eng. (“Engineer”).

Sarah Murray, Clerk of the Town of Bradford West Gwillimbury, 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, dated February 24, 2017 and April 10, 2017 as proof that all parties had been served with the Notice of Hearing.

Overview

The purpose of the proposed new Drain is to provide an outlet for the four (4) hectare property owned by Mr. Ferragina (“Ferragina Property”). The Ferragina Property is located in the Holland Marsh, in the Town of Bradford West Gwillimbury.

In 2015, the Ferragina Property consisted of 28 greenhouses and two buildings. Mr. Ferragina wanted to expand his operation by adding 16 more greenhouses. As part of this expansion, the Conservation Authority required Mr. Ferragina to undertake a stormwater management plan and secure a proper legal outlet for the collected stormwater. The Ferragina Property had two existing outlets but neither were legal outlets and both were located on neighbouring properties.

Mr. Ferragina took steps to legalize the existing outlets but was ultimately unsuccessful. As a result, Mr. Ferragina was forced to submit a petition under section 4 of the Act in order to obtain a legal outlet for the stormwater. The legal outlet proposed consisted of a collection ditch along the exterior boundaries of the property flowing to a pumping station that would pump the stormwater across Canal Road and into the North Holland Marsh Canal.

To proceed with the construction of the sixteen new greenhouses, Mr. Ferragina hired K. Smart and Associates Limited to design the stormwater management system. The stormwater management system, was designed by K. Smart and Associates, and constructed in 2016. The purpose of the Report subject to this appeal is to assume the Ferragina stormwater management system as a municipal drain to be maintained by the Municipality in the future.

The Appellant, Mr. Dan Sopuch and his company Marshland Gardens Ltd., own the property located immediately to the east of the Ferragina Property and are the tenant farmers of the properties situated immediately to the north and south of the Ferragina Property, some of which are owned by the Ferraginas. The Ferragina Property fronts onto Canal Road on its westerly boundary. Mr. Sopuch’s property is not assessed into this Drain. Mr. Sopuch’s appeal relates to concerns about the Drain as set out in the Report.

Issues

The issues of this appeal are as follows:

1. Should the banks of this newly constructed ditch be seeded by the Municipality?

2. Should the ditch be relocated in order to prevent a conflict with pesticide buffer zones?

3. Should the reference to “existing ditch that remains” on drawing #2 be deleted?; and

4. Should the reference to “150mm [6”] plastic [private] to Jane Street” be deleted on drawings 1 and 2?

Evidence

Dan Sopuch, Appellant

Mr. Sopuch indicated that the first issue of the appeal related to the possible erosion of the ditchbanks of the Ferragina Drain due to wind and water. The Appellant expressed concern that wind and water erosion would result in the ditch widening and adversely affecting his property, and the adjacent properties that he rents. To prevent erosion, the Appellant requested that seeding of the ditchbanks be included as a requirement in the Report. The Appellant indicated that seeding was specified (B.11 on page B5) in the Gorzo Drain Report that was also prepared by the Engineer. The Appellant noted that the Gorzo Drain Report was prepared on the same date as the Ferragina Report.

Upon questioning from the Municipality, Mr. Sopuch agreed that he brought this matter forward at the meeting to consider the Report at the Holland Marsh Drainage System Joint Municipal Services Board, of which he is the Chair. The Appellant further agreed that, at that meeting, the Drainage Superintendent of the Municipality agreed to seed the ditchbanks. The Appellant requested that the Tribunal incorporate the seeding requirement into the Report and felt that an appeal to the Tribunal was the only way to ensure that the seeding would be completed. The Appellant acknowledged that there is some growth on the ditchbanks now but indicated that it is pig weed and Mr. Smart specified low grow or Dutch clover as appropriate seeding in the Gorzo Drain Report.

The second issue brought forward by the Appellant relates to the note “EXISTING DITCH THAT REMAINS” that is shown on the P. Sopuch property, south of the Ferragina Property, on drawing 2 of the Report. Mr. Sopuch advised that he rents that property from his father and that, as of the date shown on the drawing (October 31, 2016), there was no ditch at that location as it had been filled in earlier that year. The Appellant’s position was that since the ditch no longer exists and has no bearing on the Ferragina Drain, the note and any reference to the ditch on the drawing should be deleted.

In response to questions raised by the Municipality, the Appellant confirmed that he did not raise this issue at the Drainage Board meeting or at the Council Meeting when the Report was considered and public comments were being sought. The Appellant reconfirmed that the ditch was a private drain that was filled in and that it is neither reasonable nor practical to show old information on the plan. During the cross examination, Mr. Smart agreed that the subject ditch no longer exists. It is noted that Mr. Sopuch refused to answer some of the questions that were posed by the Municipality on this issue.

The third issue raised in Mr. Sopuch’s appeal relates to the notes “150mm (6”) PLASTIC (PRIVATE) TO JANE STREET” on the P. Sopuch and the Marshland Gardens Ltd. properties on drawings 1 and 2 of the Report. The Appellant advised that the exact location of the tile drain is unknown and that there is no purpose indicating it on the drawings as it does not directly relate to the design, layout and function of the Drain. The Appellant requested that this note and any reference to the drain on the drawings be deleted.

In response to questions raised on cross-examination, Mr. Sopuch advised that this tile drain does exist but he is not sure of its exact location. The Appellant agreed that he advised the Engineer, in an email dated May 3, 2015, that he did not want this drain used as the outlet for the Ferragina Property and that he felt the best option for the Ferragina Property was a pumped system outletting directly to the North Canal Drain. The Appellant acknowledged that he did not raise this issue at the Drainage Board meeting or at the Council Meeting where the Report was considered and open for public comment. The Appellant refused to answer some of the questions that were posed during cross-examination on this issue.

The fourth issue of Mr. Sopuch’s appeal relates to the location of the Ferragina Drain which is one metre from his property line and the property lines of the adjacent lands that he rents and farms. The Appellant indicated that pesticides, fungicides and herbicides are used on most crops in the Holland Marsh and, in his opinion, most of these products require a set-back or buffer zone between the sprayed area and a watercourse, some as much as 15 metres. The Appellant was concerned that the Engineer failed to take this into consideration when locating the Drain one metre from the neighbouring properties. The Appellant indicated that the required buffer zone setback will adversely impact his farming operation, effectively removing a strip of land 14 metres wide around the perimeter of the Ferragina Property.

Mr. Sopuch referred the Tribunal to data sheets for three types of sprays and all three indicated they should not be applied close to sensitive freshwater habitats; two specified a setback of 15 metres and one required a setback of 4 metres when the method of application is by field sprayer. The Appellant also referred the Tribunal to page 16 of the Report where it is stated that no one shall pollute a municipal drain. The Appellant was concerned that the statement prohibiting pollution of a municipal drain will apply to him if he does not adhere to these buffer zone setbacks. The Appellant recommended that the Drain should be relocated to at least 15 metres inside the Ferragina Property to ensure that the setbacks do not adversely affect his farming operation.

The Appellant indicated that the water in all the other drains in the Holland Marsh flows slowly to the Holland River and then slowly to the pumping station where is pumped up into the South Canal and then flows into the River and eventually to Lake Simcoe. The Appellant suggested that the Ferragina Drain is significantly different because the water from it is pumped directly into the North Canal and does not have that long, slow flow before it reaches the River and, because of this, the Appellant was concerned that any spray entering the Ferragina Drain will reach the River sooner.

In response to questions, the Appellant agreed that there are many miles of open drains (ditches) within the Holland Marsh and indicated that he was not aware of any complaints or concerns being raised by anyone or any agency with respect to the use of pesticide, fungicide or herbicide sprays close to these drains. Mr. Sopuch agreed that it is the responsibility of the party using these sprays to observe the required setbacks from watercourses and that he was not aware that a “federal on-line calculator” could be used to determine if these setbacks can be reduced.

Upon closer review of the data sheets, the Appellant agreed that the setbacks referred to relate to “sensitive freshwater habitats” and “productive fishery waters”. When asked if the Ferragina Drain is a “sensitive freshwater habitat” or a “productive fishery” the Appellant was unsure of its classification but testified that he has observed tadpoles and ducks in other ditches in the Marsh.

The Appellant indicated that he is concerned about fisheries issues in open drains but when questioned if he was concerned about fisheries in the ditch that he filled in, he refused to answer. When asked why he did not raise this concern earlier in the process, the Appellant indicated that he did not think of it prior to the hearing. The Appellant did agree that he could have raised this issue at the Drainage Board meeting when the Report was considered but it was his understanding that all technical matters had to be heard by the Tribunal. When questioned about whether he contacted the Engineer prior to the Report being prepared to suggest the option that the drainage problem on the Ferragina property should be a pumped drainage system connecting directly to the canal, Mr. Sopuch could not recall whether or not this was discussed. With respect to the Ferragina Drain water being pumped directly to the North Canal, unlike the other drains in the Marsh, Mr. Sopuch agreed that it is the responsibility of the person applying the spray to insure that it does not get into the water in the drain.

In response to questions from the Tribunal, Mr. Sopuch stated that, in his opinion, the responsibility to seed the ditchbanks should be with the Municipality. The Appellant suggested that the weeds that are currently present just need to be over-seed with the type of seed used to stabilize the ditchbanks. The Appellant indicated that he was not aware of whether or not fish are present in that portion of the River that flows through the Holland Marsh.

On the issue of spraying, the Appellant advised the Tribunal that the redesign he proposes is to relocate the Drain to a minimum of 15 metres from the Ferragina Property lot line so as to not adversely affect his farming operation. The Appellant confirmed that he did not have any “engineered redesign” to provide to the Tribunal. When asked if he is aware of whether or not the other municipal drains in the Marsh have established buffer zones, the Appellant indicated that he was not aware of any.

The Tribunal questioned the Appellant as to whether or not he had a conflict of interest when acting as Chair of the Joint Services Board and hearing submissions on the Ferragina Drain. The Tribunal specifically asked whether or not the Appellant was familiar with the Municipal Conflict of Interest Act to which the Appellant advised that he was not familiar with that Act. When asked if, as the Board Chair, he felt he had an apprehension of bias regarding this matter, the Appellant advised that he asked municipal staff and was advised that he is exempt from the provisions of the Municipal Conflict of Interest Act.

The Tribunal asked the Appellant whether or not he raised all four of these issues at the Drainage Board meeting that was held to consider the Report. The Appellant advised the Tribunal that the only issue he raised related to the seeding of the ditchbank because he had not thought about the other three issues at that time. The Appellant further advised that he did not raise any of the issues at the Municipal Council meeting when the Report was considered. When asked what the Appellant normally grows on his land, Mr. Sopuch advised that his crop rotation is celery, carrots and onions.

Kenn Smart, the Engineer who prepared the report

With respect to the seeding issue, the Engineer advised that he is not aware of any wind erosion concerns in the Marsh area. The Engineer confirmed that there should not be any erosion due to water flow in the Ferragina Drain as it is a “no flow” design with a flat gradient, since it is stormwater management storage facility, not a normal ditch with slope. The water in the Ferragina Drain is pumped out, it does not flow. The opinion of the Engineer is that the Ferragina Drain ditchbanks should vegetate naturally and that some growth has already occurred.

The Engineer referred to page B2 of his report regarding maintenance of the Drain where it states that “side slopes are to be left in native condition”. The Engineer advised that he has observed many ditches in the Marsh with no vegetation on the ditchbanks and he suspects they are sprayed to prevent weed growth. The Engineer referred to the Saczowski Drain on the east side of the Appellant’s properties that has no vegetation on the ditchbanks. The Engineer testified that he has been doing drain reports in the Marsh for twenty years and has never specified ditchbank seeding until recently with the Gorzo Drain. The Engineer testified that the issue of ditchbank seeding was brought up at the Drainage Board meeting to consider the Report and both the Drainage Superintendent and Mr. Ferragina offered to do the seeding. The Engineer stated that in his opinion, this appeal is frivolous and vexatious.

Upon cross-examination by the Appellant, the Engineer stated that he did not specify ditchbank seeding as he did not consider it necessary in this situation and he did not want to burden the owner with the responsibility of maintaining it.

Regarding the notation on his drawing #2 “EXISTING DITCH THAT REMAINS”, the Engineer advised that this ditch existed on the property line between the Appellant and Mr. Ferragina at the time of his survey and he observed that it accepted water from the Ferragina Property. Initially, the Appellant filled in only 20 metres of the ditch but later the Engineer discovered that the entire ditch was filled in. The Engineer again suggested that the Appellant’s appeal on this issue is frivolous and vexatious.

In response to questions from the Appellant, the Engineer indicated that he did not know if the ditch still existed on the date of his drawing, October 31, 2016. When asked whether or not he was aware if the ditch exists today, the Engineer advised that it does not, it has been completely filled in. The Engineer also indicated that this note has no purpose for the functioning of the Ferragina Drain but does have historical relevance.

Regarding the notation on his drawings #1 and #2, “150mm (6”) PLASTIC (PRIVATE) TO JANE STREET”, the Engineer took the position that this is historically important and will assist in justifying the provincial grant for the pumped outlet, as no other outlet existed. Again, the Engineer took the position that the Appellant’s appeal is frivolous and vexatious.

In response to questions from the Appellant, the Engineer advised that he does not know the exact location of the subject tile and confirmed that it does not have any direct effect on the function and operation of the Ferragina Drain as it is proposed in the Report. The Engineer testified that the note on the drawing is for historical and grant justification purposes.

With respect to the location of the Ferragina Drain and its effect on the spraying of crops on adjacent properties, the Engineer indicated that this issue has never been raised on any drain report that he has prepared in his forty years of practice and, it is his opinion, that a drainage engineer has no obligation to consider this issue. The Engineer advised that during the past twenty years he has prepared reports on eighteen open drains within the Holland Marsh, most of which are located on property lines and/or road allowances, and a buffer zone for spraying purposes has never been raised by anyone or any agency, nor has it been raised in any other location where he has practiced.

The Engineer stated that he completed some research on the spraying issue since the appeal was filed and sought expert advice on the matter. The Engineer found that spray drift across property lines is not permitted anywhere, whether there is a drain in existence or not. Furthermore, the buffers that the Appellant referred to apply only when spraying adjacent to “sensitive freshwater habitats” or a “productive fishery”. Also, Mr. Al Shaw, an experienced senior ecologist who has worked in the Marsh for many years, confirmed that the Ferragina Drain is not considered to be fish habitat (Exhibit #5). The Engineer confirmed with Mr. Shaw that since the drain is not fish habitat it cannot be a “sensitive freshwater habitat” or a “productive fishery”. The Engineer submitted to the Tribunal that this buffer area for spraying is a non-issue. The Engineer confirmed that the Conservation Authority issued a permit for the Drain as it is constructed.

The Engineer also indicated that, while he was working on a solution to the Ferragina drainage outlet problem, he was very close to finalizing a proposal that would have avoided a perimeter drain and would have found outlet through the Gorzo property located to the north of the Ferragina Property. However, Ms. Gorzo withdrew her name at the last minute. During this time, the Appellant sent the Engineer an email, dated May 3, 2015, advising that he did not want his tile drain used as the outlet for the Ferragina Property as he felt the best option was a pumped system directly to the North Canal Drain (Exhibit #6).

The Engineer further indicated that the Appellant was at the second on-site meeting, when the final design was discussed, and at the Drainage Board and Council meetings where the final report was considered and adopted, and did not raise this issue at any of those times. The Engineer suggests that this appeal was an afterthought and is frivolous and vexatious.

In response to questions from the Appellant, the Engineer confirmed that his firm was originally retained by Mr. Ferragina to prepare a site plan and a stormwater management plan for the proposed greenhouse expansion, as was required by the Conservation Authority.

The Engineer indicated that initially he proposed using the existing outlets for the Ferragina Property. However, when the drains were were blocked and the Gorzo branch cancelled, the Engineer indicated that he had no alternative but to design a system that would provide an outlet for all existing and proposed development on the Ferragina Property. This meant that a perimeter ditch had to be used and, as this system was also providing an outlet for a small portion of the Gorzo property as well as a portion of Canal Road and needed to cross Canal Road with a pumped outlet, the Engineer recommended that it be established under the Act. The Engineer confirmed his opinion that the Drain, as designed and constructed, is the best system for the stormwater management of the entire Ferragina Property and the Engineer has no concerns with respect to buffer strips for spraying.

Upon questioning by the Tribunal, the Engineer confirmed that the specification used for ditchbank seeding in the Gorzo Drain report, specifically B.11, calls for a seed mix of “low grow” or “Dutch clover” that he used on the canal portion of the Holland Marsh drainage project. The Engineer specified this particular seed because it does not require any mowing due to its low growing nature. The Engineer confirmed that he will be recommending this type of seeding along ditchbanks on future drains within the Marsh.

The Engineer also indicated that his firm normally does specify seeding of the banks of stormwater management facilities. The Engineer again stressed that he feels the notes on the drawings about the ditch that was filled in and the tile that is no longer available to the Ferragina Property for outlet are important historical references and will assist in providing information to the Ministry of Agriculture, Food and Rural Affairs to support the issuance of a grant for this project. In his closing statement, the Engineer suggested that all of these appeals are frivolous and vexatious and requested that costs be awarded against the Appellant.

Frank Jonkman, Drainage Superintendent, witness for the Town

The Engineer called Mr. Jonkman as a witness. Mr. Jonkman advised that he has been the Drainage Superintendent in the Holland Marsh for 10 years and is the Drainage Superintendent for both the Town of Bradford West Gwillimbury and the Township of King. Within these two municipalities he is responsible for approximately 55 municipal drains which he attempts to maintain at least every three years. Mr. Jonkman testified that he would follow the same maintenance routine for this Drain. Mr. Jonkman testified that there are numerous kilometres of unseeded ditch banks in the Holland Marsh and that farmers normally spray these ditchbanks to control vegetation. Mr. Jonkman indicated that on this Drain he does not anticipate there will be any ditchbank erosion from water flow or wind action. Mr. Jonkman did indicate that there is the possibility of the ditch filling in due to wind. Mr. Jonkman confirmed that he would like to see the banks of the Ferragina Drain seeded and that it was his understanding that this issue had been resolved at the Drainage Board meeting. Mr. Jonkman testified that both the Municipality and Mr. Ferragina agreed to seed the banks at the Drainage Board meeting.

On the issue of spraying crops in the Marsh, Mr. Jonkman advised that he is not aware of any spraying issues at all and certainly not any issues between landowners. Mr. Jonkman indicated that any landowner can dig a ditch in the Marsh on his own property and that the set back from the property line is stipulated as 0.6 m in the Town’s zoning bylaw. Mr. Jonkman testified that he is not aware of any existing drains under his jurisdiction that require a buffer zone for spraying and he has observed landowners spraying right up to and over the ditchbanks in the Marsh. Mr. Jonkman stated that, from his observations, the Ferragina Drain is not fish habitat and that it would be classified as an ‘F drain’ by the Department of Fisheries and Oceans. This means that maintenance work can be done on the Drain when there is no flow or low-flow. When asked about the notes on the Engineer’s drawing that have been appealed, Mr. Jonkman indicated that these have no relevance to his activities as Drainage Superintendent for the Municipality.

In response to questions by the Appellant, Mr. Jonkman outlined the steps followed when seeking approval to maintain an open drain which include notifying the Conservation Authority, the Ministry of Natural Resources and Forestry and the Department of Fisheries and Oceans. When asked about classifying this Drain, Mr. Jonkman advised that, due to recent changes in the Fisheries Act, it is now a self-assessment process to classify drains used by municipalities and he confirmed that this Drain will be classified as an ‘F drain’. When questioned about endangered species, Mr. Jonkman advised that there are no endangered species in the Marsh that he is aware of.

Mike Ferragina, Assessed Landowner, Witness for the Town

The Municipality called Mr. Ferragina as a witness. Mr. Ferragina is the operations manager for L. & D. Ferragina Ltd.

Mr. Ferragina advised that the seeding matter was brought up at the Drainage Board meeting in December 2016 by the Appellant. At the Drainage Board meeting, the Drainage Superintendent, the Engineer, and L. & D. Ferragina all agreed that the seeding would be completed. Mr. Ferragina indicated that, at that time, the Appellant seemed satisfied with this arrangement for the seeding

Mr. Ferragina confirmed that the location and the setback of the Drain from the property line were approved in advance by the Municipality and by the Lake Simcoe Region Conservation Authority. Mr. Ferragina testified that, when it comes to spraying, the onus is on the applicator to ensure that proper buffer zones and setbacks are observed so as not to adversely affect neighbouring properties and crops.

When asked about the ditch that is noted on the drawings as being on the south side of the Ferragina Property, Mr. Ferragina advised that the ditch had been shared between their property and the Appellant’s property for over 30 years but was filled in by Mr. Sopuch in 2015 after Mr. Ferragina advised that they were no longer interested in renting their land to the Appellant.

Mr. Ferragina indicated that he believes they had a prescriptive right to the former ditch that was filled in by the Appellant but decided not to pursue litigation. By losing access to the ditch and the six-inch plastic tile outlet, the Ferragina Property was left without any outlet whatsoever and had to retain an engineer to resolve the situation. When asked about the construction of greenhouses in the Marsh, Mr. Ferragina advised that they obtained all the required permits and completed all of the necessary reports to proceed with the stormwater management system proposed for the Ferragina Property.

Upon questioning by the Tribunal, Mr. Ferragina advised that the ditch they previously used for outlet commenced on the north side of their property, actually on the Gorzo property, and ran southerly through the Ferragina Property to their south property line where it entered the Appellant’s property and used the existing six-inch plastic drain there as outlet. Mr. Ferragina indicated that this ditch was approximately 2 to 3 metres in width and 1 to 1.5 meters in depth. When asked about their land use, Mr. Ferragina advised that they cropped that portion of their land that was not occupied by greenhouses until approximately 2004. From 2004 to 2015 they rented this cropland to Marshland Gardens Limited (the Appellant). However, in 2015 Mr. Ferragina advised the Appellant that they needed the rented area for additional greenhouses and would no longer be renting it. Mr. Ferragina confirmed that their operation is strictly greenhouses. When asked if he was prepared to do the seeding of the ditchbanks, Mr. Ferragina indicated he would do so if requested by the Municipality.

Findings

Considering all of the evidence relating to the ditchbank seeding issue, especially taking into account that the Engineer specifies seeding for other stormwater management ponds and that he recently specified seeding for the banks of the Gorzo Drain in the same area of the Holland Marsh, the Tribunal finds it reasonable to require that the banks of the Ferragina Drain seeded.

On the issue of the notes on the drawings concerning the ditch that existed and the existing plastic drain running to Jane Street, the Tribunal finds it reasonable to include notes on the drawings concerning these two matters for historical and continuity purposes, but will order some alteration to the wording.

On reviewing the drainage plan of the Holland Marsh, the Tribunal notes that most of the open drains in the Holland Marsh are situated along property lines or road allowances, as noted by the Engineer. The evidence provided in Exhibit 5 from senior ecologist Al Shaw confirms for the Tribunal that the Ferragina Drain is not considered fish habitat. Therefore, it is not appropriate to have any special considerations relating to fisheries habitat applied to the Drain. The Tribunal finds that this Drain is not classified as a sensitive freshwater habitat based on the evidence provided. The setbacks for spraying specified in the data sheets provided by the Appellant do not apply to this Drain. The Tribunal finds the location of the Drain to be reasonable and will not be ordering any alterations to the existing design.

Order of the Tribunal

The Tribunal thereby makes the following orders:

1. That the appeal requesting seeding of the ditchbanks is granted, and that the Town of Bradford West Gwillimbury shall proceed to apply low-grow, Dutch clover to the ditchbanks as soon as reasonably possible. Any costs associated with the seeding shall be added to the total cost of the project and assessed in accordance with the schedule in the Report.

2. That the appeal to delete the notes “EXISTING DITCH THAT REMAINS” and “150mm (6”) PLASTIC (PRIVATE) TO JANE STREET” be denied. The Tribunal orders that these notes be reworded, as follows, "Approximate Location of Ditch that was Filled" and "Approximate location of 150mm (6") Private Plastic Drain Extending to Jane Street".

3. That the appeal requesting relocation of the Drain due to crop spraying considerations be denied.

4. That the Municipality shall make cost submissions to the Tribunal within thirty days of the date of this decision and, after receiving those submissions, the Appellant shall have fourteen days to submit a response to the Municipality’s submissions, following which the Municipality shall have a period of seven days to provide reply submissions.

Dated at London, Ontario this 15^th^ day of May, 2017.