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:

McCue Drainage Works Repair and Improvement, 1989 Maintenance and Repair, 2015 (RE) Township of Melancthon

McCue Drainage Works Repair and Improvement, 1989 Maintenance and Repair, 2015 (RE) Township of Melancthon 2017ONAFRAAT06

STATUTE:

Drainage Act

HEARING:

May 9, 2017

DATE OF DECISION:

May 17, 2017

019McCue16

NEUTRAL CITATION:

2017ONAFRAAT06

MCCUE DRAINAGE WORKS Repair and improvement, 1989 maintenance and repair, 2015 Township of Melancthon

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

AND IN THE MATTER OF: Appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Evan Bearss of Melancthon, Ontario under section 65(11) of the Drainage Act with respect to the McCue Drainage Works, Repair and Improvement 1989, Maintenance and Repair, 2015 in the Township of Melancthon.

Before: Jeffrey J. Hewitt, Vice-Chair, Edward Dries, Vice-Chair and Fred Stulp, Member

Appearances: Evan Bearss, Appellant T.M. Pridham, P. Eng., Engineer who prepared the report Darren White, Mayor for the Township, Witness

DECISION OF THE TRIBUNAL

Background

Evan Bearss filed an appeal under Section 65(11) of the Drainage Act (“Act”) with respect to the McCue Drainage Works, Repair and Improvement 1989, Maintenance and Repair, 2015 (the “McCue Drain”). The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the Township of Melancthon on May 9, 2017. The initial engineer’s report (“Report”), dated April 28, 1989 for the McCue Drain, was prepared by Uderstadt Burnside Ltd. (“Burnside”) and signed by T.M. Pridham, P.Eng., (“Engineer”).

Denise Holmes, Clerk of the Township of Melancthon 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 Township filed an Affidavit of Service, dated April 20, 2017 as proof that all parties had been served with the notice of hearing.

Overview

The Township of Melancthon received a request for maintenance and repair of the McCue Drain (the “Drain”) and, in a resolution dated January 23, 2014, instructed Mr. Pridham to investigate and report back to Council. Mr. Pridham inspected the Drain and, in correspondence to Council dated June 10, 2014, recommended that the Drain be maintained under Section 74 of the Act. The property owners within the watershed were notified in correspondence dated August 1, 2014 and the works were carried out in November of 2014.

During construction it was noted that the watershed boundary as between the McCue Drain and the adjacent Stinson Drain did not accurately reflect the drainage patterns in the field. In correspondence dated December 23, 2015, the Township of Melancthon directed Mr. Pridham to identify the corrected watershed boundaries and reflect those corrections in amended schedules of assessment pursuant to Section 65(3) and Section 65(4) of the Act. The Amended Maintenance Assessment Schedule for the McCue Drain was filed with the Township in correspondence dated February 17, 2016. A copy of this amended maintenance schedule was sent to only the property owners who were added to the maintenance schedule as directed in Section 65(8) of the Act.

A bylaw imposing the maintenance costs on all of the lands now included in the McCue Drain watershed was finally passed by Council on April 7, 2016. The Notice of Actual Assessment was sent to all owners within the watershed on April 11, 2016. The assessment shown to be levied against Mr. Bearss property in that notice was $806.58. That notice also identified that the Bearss property was not eligible for a grant from OMAFRA for this work.

Mr. Bearss took possession of the property described as the E.Pt. Lot 11, Concession 4 N.E. on August 7, 2015. He filed correspondence to Council dated May 18, 2016 which was considered by Council on June 2, 2016. Generally, it was Mr. Bearss position that he was unaware of any works on the McCue Drain and did not receive notice of any changes to the original bylaw. He raised many issues related to the validity and magnitude of the assessment levied against his property. He appeared before Council on July 7, 2016 to urge the Township to appoint an engineer under Section 65(3) of the Act to re-assess his property on the basis that his land was no longer being used for agricultural purposes but instead was “a single house dwelling and lands now dedicated to the protection and conservation of Natural Heritage Features”. The Township consequently instructed Mr. Pridham, by way of correspondence dated July 12, 2016, to determine whether the use of Mr. Bearss’ land had indeed changed and if appropriate adjustments should be made to his assessment.

Mr. Pridham responded to this instruction in correspondence dated September 8, 2016 stating that, in his opinion, the request for a reduction in the assessment on the Bearss property be declined on the basis that there was no change in use. The Township responded to Mr. Bearss in correspondence dated September 21, 2016, and confirmed their intent to reject the request of Mr. Bearss.

Mr. Bearss provided correspondence to the Township dated October 24, 2016 and requested that it be forwarded to the Tribunal as an appeal. This appeal was forwarded to the Agriculture, Food and Rural Affairs Appeal Tribunal in correspondence from the Township dated November 18, 2016 and it was assumed to be under Section 65(11). This appeal was filed well after the statutory time frame for appeals under this section. The Chair of the Agriculture, Food and Rural Affairs Appeal Tribunal, after consultation with the Township which consented to an extension, granted additional time to file the appeal.

Does Mr. Bearss have a route of appeal under Section 65 of the Act?

Mr. Bearss has advanced his appeal pursuant to Section 65(11) of the Drainage Act, and asks the Tribunal to consider both his rationale and his supporting evidence for his position that due consideration has not been given by the Township’s engineer to the current use being made of the land (that is, a provincially significant wetland), and that, as a result, the assessment for benefit is too high.

Section 65(11) states,

If the engineer’s assessment is for an amount greater than $500, the owner of the land may appeal to the Tribunal within 40 days after the date the clerk sends a copy of the assessment to the owner.

The “engineer’s assessment” referenced in Section 65(11) arises from Section 65(3), which reads,

If an owner of land that is not assessed for a drainage works subsequently connects the land with the drainage works for the purpose of drainage, or if the nature or extent of the use of a drainage works by land assessed for the drainage works is subsequently altered, the clerk of the local municipality in which the land is situated shall instruct an engineer in writing to inspect the land and assess it for a just proportion of the drainage works, taking into account any compensation paid to the owner of the land in respect of the drainage works.

The application of Section 65(3) occurs under two different scenarios: (1) when lands not assessed subsequently connect with the drainage works, and (2) when the nature or extent of the use of a drainage works is subsequently altered. While the scenario of additional lands under Number 1 commenced this process, thereby bringing to Mr. Bearss’ attention his assessment, it is the “alteration” under Number 2 that results in this appeal.

Under the 1989 Report, the Bearss Lands were assessed at $1,043, comprised of $600 for benefit and $443 for outlet liability. After the Engineer’s review pursuant to the December 2015 request of Municipal council, the assessment remained at $1,043; in other words, there was no change or additional assessment. It is on this latter fact that the Township states that Mr. Bearss has no basis to appeal, given that his assessment did not change by an amount greater than $500 as a result of the Engineer’s re-assessment.

Mr. Bearss response to that position is that the language of Section 65(11) does not require a “change” in assessment, just an assessment greater than $500. Given that his assessment is $1,043, he states that he meets that threshold and can therefore appeal his assessment.

Further, Mr. Bearss stated that he was advised by the Township that he had rights of appeal under Section 65(11). It was his position that the Township had agreed with him that there was a change in the use of this land; he takes issue with the Engineer not agreeing with the Township. However, Mayor Darren White gave evidence that his Township council never agreed with Mr. Bearss’ position that his land’s use had changed; council simply wanted Mr. Bearss to have the opportunity to be heard, which is why this matter has ended up before the Tribunal.

The entirety of Section 65 deals with situations in which a delineated change in land results or requires a change in assessment; these delineated changes are subsequent subdivision of land [s. 65(1) & (2)], subsequent connection to the drainage works [s. 65(3)], subsequent alteration to the nature or extent of the use of the drainage works [s. 65(3)], and subsequent disconnection from the drainage works. The intention of Section 65 is to provide a mechanism to deal with any re-assessment that may be required as a result of any subsequent change; it is a form of assessment ‘housekeeping’ that eliminates the need for a new report, which could result in a lengthy and costly, but unnecessary, process.

Therefore, given that overall framework, it is reasonable to interpret that Section 65(11) was intended to deal with a change in assessment that meets the minimum threshold of $500. To interpret otherwise, would open the floodgates to all assessed landowners requesting, and possibly appealing, their existing assessments on an individual basis.

The Tribunal finds that, given his assessment has not changed, Mr. Bearss does not meet the minimum threshold for appealing his assessment, and his appeal shall be dismissed.

In the alternative, does Mr. Bearss qualify for re-assessment?

In the alternative, if the Tribunal is incorrect about whether Mr. Bearss meets the threshold, it finds that his circumstances do not necessitate a change in assessment.

Mr. Bearss is a planning ecologist for the Toronto Region Conservation Authority. He is very knowledgeable about environmental and planning legislation, as well as Provincial Policy Statements as they relate to our natural resources. More importantly, he is passionate about the environment and the proper stewardship of our lands.

It was Mr. Bearss’ evidence that the McCue Drain is located parallel to the full length of the easterly boundary of the subject property adjacent to the 4^th Line, with a small section, approximately 15 metres in length, deflecting across the corner of the property, flowing in a south-east direction. There is a small berm along the south side of the Drain that he presumes was created from side-casted dredge materials from the original construction of the Drain. In his opinion, the berm prevents surface water from spilling into the Drain for the length of the property. An area of approximately 30 acres directly adjacent to the Drain has been designated by the Ministry of Natural Resources and Forestry (MNRF) as a provincially significant wetland. The land is very flat and there are seasonally flooded depressions, known as vernal pools, within the wetland swamp which, he states, is vital habitat for amphibians. Mr. Bearss advised that, due to elevated berms surrounding the property, the majority of the remainder of his lands is internally draining under regular storm events.

Mr. Bearss testified that, under the Township of Melancthon’s Official Plan of 2014, the majority of his lands, which totals 62.5 acres, is identified as “Environmental Protection” and “Environmental Conservation”, with a small portion designated as “Rural” where the dwelling is located. Schedule “D” of the Official Plan further identifies these Natural Heritage Features as Provincially and Locally Significant Wetlands and Schedule “E” identifies them as Significant Woodlands.

It was Mr. Bearss’ evidence that, in 2016, the MNRF delineated and evaluated the previously unevaluated wetland directly adjacent to the drain (approximately eight acres) and, as a result, classified these lands as part of the Melancthon Provincially Significant Wetland Complex, which is regulated by the Grand River Conservation Authority. Mr. Bearss advised that all of the provincially significant wetlands on his property, approximately 38 acres, are now registered or are being registered under the Conservation Land Tax Incentive Program for 2017 under the Assessment Act.

It is Mr. Bearss’ position that, given (i) that the Provincial Policy Statement (2014) has defined the area adjacent to the drain as a Natural Heritage Feature, (ii) that the Township of Melancthon’s Official Plan identifies the area as Environmental Protection Areas, (iii) that the land is not being used for agricultural purposes, and (iv) that there are new encumbrances on the land that restricts development that were not in place at the time the original 1989 McCue Drain By-law was created, there is a change in land use that brings him within the requirements of Section 65(3) and there should be a reduction in his benefit assessment as there is simply no benefit.

Mr. Pridham, the engineer who prepared the Report and considered the change in assessment, gave evidence on behalf of the Township. It was his position that the land use of the Bearss’ property has not changed since the 1989 Report was prepared. He stated that the area in question was bushland in 1989 and remains bushland to this day.

When pressed by the Tribunal, Mr. Bearss finally admitted that what was bushland thirty years ago indeed remains bushland to this day. While the environmental and planning labels that we today apply to the lands may be different from those used at the time of the 1989 Report, the simple fact of the matter is that the land use of the property has not changed.

However, that in itself is an improper characterization of what is required under Section 65(3). A careful reading of that section shows that the subsequent alteration to be considered is not a change in the nature or use of the land but a subsequent alteration in the nature or use of a drainage works. In other words, are the lands today using the drain to an extent that is more or less than previously used? It is this interpretation that makes sense in the context of any change in assessment; if your land is subsequently using the drain more, a higher benefit assessment should be applied. However, a change in the nature or use of the land does not necessarily mean there will be a change in the use those lands make of a drain.

Therefore, even if Mr. Bearss had a right of appeal under Section 65(11), which the Tribunal has found not to be the case, there has been no change in the nature or use of the drainage works by his lands. Accordingly, his appeal is dismissed under this alternative approach.

Mr. Bearss’ request to abandon the Drain under Section 84

In his presentation to the Tribunal, Mr. Bearss requested that the Tribunal order the closure of that part of the drain that is no longer required to restore the natural function of the Provincially Significant Wetland. In his opinion, the lands adjacent to the drain are negatively influenced by the artificial drainage and this part of the Drain is no longer required for the current and continued use of the land.

This request is problematic and cannot be granted by the Tribunal. First, Mr. Bearss did not appeal on this basis and to raise the issue now would blindside the Township. Second, Section 84 has no inherent right of appeal. And third, Section 84 provides a mechanism by which a drain can be abandoned; no one, including Mr. Bearss, has followed the necessary steps for an abandonment to occur.

Mr. Bearss was unable to provide the Tribunal with any legal authority, statutory or otherwise, that would allow the Tribunal to make such an order in light of these issues.

Mr. Bearss’ request for damages under Section 30

Mr. Bearss suggests that the maintenance of the Drain has altered the hydrologic regime and hydroperiod of the wetland, which will impact the flora and fauna communities of the wetland. It was his evidence that this impact, or damage, could take years to manifest itself. He asks the Tribunal to award damages under Section 30 on the basis that damage to trees on his land may arise from the change in the hydrologic regime caused from the maintenance works.

It is clear from the wording of Section 30 that it was not intended for the purposes that Mr. Bearss is now proposing. Section 30 states,

The engineer shall determine the amount to be paid to persons entitled thereto for damage, if any, to ornamental trees, lawns, fences, lands and crops occasioned by the disposal of material removed from a drainage works and shall include such sums in the estimates of the cost of the construction, improvement, repair or maintenance of the drainage works.

The nature of the damage that Mr. Bearss claims might occur in the future simply is not among the items contemplated by this section, nor does the damage result from the “disposal of material removed from a drainage works”.

And, as with Section 84, Mr. Bearss was unable to provide the Tribunal with any legal authority, statutory or otherwise, that would allow the Tribunal to make such a damages order.

Mr. Bearrs’ request for municipal stewardship of the Provincially Significant Wetland

Mr. Bearss would like to see the natural environment take a higher priority in the Township’s planning and would like there to be greater municipal stewardship of these environmentally significant lands.

While the Tribunal agrees that we, as a society, need to do our best to protect our natural environment, it is not this Tribunal’s role, nor does it have any authority, under the Drainage Act to make orders to that effect. Such a role is the purview of our elected officials, our legislature and individual efforts by persons such as Mr. Bearss.

Costs of the Hearing

The Tribunal finds nothing frivolous, vexatious or malicious about Mr. Bearss’ appeal. Accordingly, each party shall bear his/its own costs.

Order of the Tribunal

The Tribunal thereby orders

1. The appeal of Mr. Bearss is dismissed.

2. The costs incurred by the Township in responding to this appeal shall not be assessed to the Drain but paid out of the general funds of the Township.

Dated at Tecumseh, Ontario this 17^th day of May, 2017.