Agriculture, Food and Rural Affairs Appeal Tribunal

1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

APPEAL: Rose Beach Line Drain – Outlet Structure (RE) [Interim Decision] Municipality of Chatham-Kent

STATUTE: Drainage Act

HEARING: February 13 and 14, 2017 and September 7, 2017

DATE OF DECISION: January 23, 2018

018RoseBeachLine16

NEUTRAL CITATION: 2018 ONAFRAAT 01

ROSE BEACH LINE MUNICIPAL DRAIN Municipality of Chatham-Kent

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:

1. Peter James and Anje Rose – s.48 and s.54
2. Peter James Rose – s. 48 and s. 54
3. Peter James Rose, Anje Rose and Shea-Lynn Vandergriendt – s. 48 and s. 54
4. Donald Neil Rose and 2152269 Ontario Limited – s. 48 and s. 54
5. Donald Neil Rose, Barbara Jean Rose and 2152269 Ontario Limited – s. 48 and s. 54
6. Donald Neil Rose – s. 48 and s. 54
7. Donald Neil Rose and Barbara Jean Rose – s. 48 and s. 54
8. Mark Grimsteed and Peggy Grimsteed – s. 48
9. Terry Bachus and Pamela Bachus – s. 48 and s. 54
10. Teresa Wood and Edward Wood – s. 48 and s. 54
11. Jennifer E. Eskritt-Verwegen – s. 48 and s. 54

under sections of the Drainage Act with respect to the Rose Beach Line Municipal Drain – Outlet Structure in the Municipality of Chatham-Kent.

Before: Jeffrey J. Hewitt, Vice-Chair; Andrew McBride, Vice-Chair; Tim Mousseau, Member

Appearances: Peter James Rose, Appellant Anje Rose, Appellant Donald Neil Rose, Appellant Mark Grimsteed, Appellant Pamela Bachus, Appellant Veronica and Tom Misener, Party Dot Blackburn, Party Paul Courey, Counsel for the Municipality, Respondent J.R. Spriet, P. Eng., Spriet Associates London Limited, Witness Blaise Chevalier, Drainage Superintendent, Witness Burt Rammelaere, Chairman of Drainage Board, Witness

INTERIM DECISION OF THE TRIBUNAL

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the Municipality of Chatham-Kent on February 13 and 14, 2017 and September 7, 2017. The revised Engineer’s Report (“Report”) for the Rose Beach Line Drain Outlet Structure (the “Drain”) was dated July 12, 2016 and was prepared by Spriet Associates London Limited and was submitted by Mr. J.R. (John) Spriet, P. Eng., (“Engineer”). The original version of the Report was submitted on October 28, 2015. A number of appellants, as noted above, filed appeals under sections 48(1) and 54(1) of the Drainage Act (“Act”) with respect to the Report.

Judy Smith, Director of Municipal Governance/Clerk of the Municipality of Chatham-Kent, 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. Veronica Misener requested to be a party to the appeals filed. An Affidavit of Service, dated January 4, 2017, was filed as proof that all parties had been served with the Notice of Hearing.

Background

The Rose Beach Line Municipal Drain was originally constructed as a result of a petition under Section 4 of the Act, and pursuant to a report prepared by Enio P. Sullo, P. Eng., of Sullo Associates Ltd. (the “Sullo Report”), dated June 25, 1999. The Drain is located in the former Township of Howard, now the Municipality of Chatham Kent. The Sullo Report originally established a drainage area of 71.9 hectares, comprising 66.77 hectares of farmland, 3.52 hectares of residential land and 1.58 hectares of roadway. However, this was later revised in the Sullo Report as a result of updated topographical information, to 66.24 hectares, being 61.11 hectares of farmland, 3.55 hectares of residential land and 1.58 hectares of roadway. The Sullo Report also established a four (4) metre wide permanent easement centred over the Main Drain, from Rose Beach Line to the water line at Lake Erie, along with an open, graded channel from the outlet structure to the water’s edge.

As constructed under the Sullo Report, the Drain presently consists of:

• A Main Drain, being 65 metres of 1350 mm diameter smoothwall galvanized steel pipe outletting by gravity to Lake Erie, an inlet structure on the north side of Rose Beach Line, an outlet structure at the end of the existing outlet pipe, and an undefined open channel across the beach to the water’s edge;
• Branch Drain No. 1, being a system of 466 metres of varying sizes of polyethylene tile and seven catch basins, located on the north side of the road allowance west of the main Drain, and outletting by gravity into the Main Drain; and
• Branch Drain No. 2, being 281 metres of polyethylene tile of varying sizes and five catch basins, located on the north side of the road allowance east of the main Drain, and outletting by gravity to the Main Drain.

As a result of continuing problems at the outlet of the Drain, including ponding water and erosion causing unsafe conditions along the beach adjacent to the outlet, the Municipality, having received requests from three lakefront residential property owners, commissioned a Section 78 report under the Act in 2015, to deal with the aforementioned problems. This resulted in the “Rose Beach Line Outlet Structure“ Report, prepared by J.R. Spriet, P. Eng., of Spriet Associates, dated July 12, 2016.

Further to site meetings, information obtained from the Municipality and adjacent landowners, this Report confirmed severe erosion and the presence of a large scour pool adjacent to the existing outlet following large rainfall events. The Engineer also commissioned a soils report to determine soil conditions at the outlet. It was determined that conditions at the outlet consist of approximately 4.4 metres of compact sand and gravel overlaying at least 2.2 metres of silty clay.

The Report states that three options were considered to address the erosion problem but little information was provided about the two that were not selected. The recommended option included:

• Removal of the existing concrete block structure at the outlet, which has failed, and salvaging these blocks to be used to line the bottom of a proposed new flume;
• Construction of a new flume consisting of two parallel sheet pile walls, approximately 18 metres long and 6.6 meters in depth, extending 1.6 metres above grade and spaced 1.8 metres apart as an extension to the existing 1350 diameter steel pipe drain outlet;
• Installation of a pedestrian safety rail along the top of the flume walls;
• Installation of a sheet pile baffle across the downstream end of the flume to help prevent floating debris from entering the flume; and
• Grading and shaping on-site beach sand against the outside of the flume walls.

The estimated cost of the project in the Report was $99,200; however, as will be discussed below based on the evidence before the Tribunal, that cost estimate no longer appears accurate.

The Report was considered by the Chatham Kent Drainage Board on August 9, 2016 at which time the Engineer advised that since the Report was prepared changes in material and labour costs would likely increase the cost of the project by $8,000. The Report was adopted by the Drainage Board and it was recommended that Council give first and second reading to the by-law governing the Rose Beach Line Outlet Structure. The by-law received first and second reading on August 22, 2016. A Court of Revision was held on September 13, 2016, with eight appeals being presented. The Court made only one change, specifically that one of the lakefront residential properties, owned by Mr. and Mrs. Grimsteed and located 10 lots west of the drain, be completely removed from the Assessment Schedule.

Issues

Based on the submissions of the Appellants, the following are the issues to be decided by the Tribunal:

1. Are the benefits to be derived from the proposed works commensurate with the estimated costs?
2. Should the proposed works be modified?
3. Are the proposed allowances inadequate or excessive?
4. Are any changes in assessment required?

Overview by the Engineer

Mr. John Spriet, P. Eng., the Engineer who wrote the Report, provided a very brief opening overview of the Drain covering the following points:

• Prior to 1999, the County Road (now known as Rose Beach Line) was flooding and the County petitioned for a drainage outlet.
• The Sullo Report resulted in a 1350 mm or 54 inch diameter pipe being installed under the road and past the existing houses to the beach.
• An outlet headwall was included but it has been upgraded since.
• High velocities at the outlet are a problem.
• The request for improvement was made by the two adjacent owners, Mrs. Blackburn and Mr. and Mrs. Misener.
• He considered various options and is proposing a sheet steel piling outlet structure extending about 17 metres beyond the outlet of the pipe, with a sheet steel piling baffle approximately two metres beyond the end of the structure.

Evidence of the Appellants

Peter James Rose, Appellant

Mr. Rose, his wife Anje and their daughter Shea-Lynn own the majority of the farm land on the upstream or north side of Rose Beach Line within the watershed of this municipal drain, being 37.32 hectares or 92 acres in area, which has been assessed $15,147 for outlet to the drain. Mr. and Mrs. Rose also own the lakeside residential lot at the extreme east side of the drainage area and a narrow strip of land on the south side of the Rose Beach Line and portions of these properties have been assessed $413 for outlet to the Drain.

Mr. Rose has lived along this section of the Lake Erie shoreline all his life, which is over 70 years, and he has observed the rainfall events and the storms that have occurred, as well as the low and high-water periods of the lake during that time. Mr. Rose indicated that he has recorded rainfall amounts on his property for many years and that, during 2013, there were several large rainfall events with the largest being five inches in one day. His evidence is that, since this type of heavy rainfall that causes significant erosion at the outfall of the drain is rare, he does not feel the construction of this large steel flume outlet structure is necessary. Furthermore, he has concerns that, during high water levels, sand, debris and/or ice buildup in the structure could very well restrict and, possibly, totally plug the outlet of the drain. His analysis of the lake level information from the Erieau recording station suggests that the structure would be in the water the majority of the time.

Mr. Rose also expressed concerns that the proposed structure will act similar to a groin and adversely affect the shoreline for several hundred feet on either side of it. Another concern of Mr. Rose is that this structure will be an obstruction to pedestrians who wish to walk along the shoreline, which has been the custom for many, many years, as this beach is one of the nicest along the north shore of Lake Erie. The structure will be difficult for pedestrians to get around or over.

Another concern of Mr. Rose was during the winter when ice banks along the shoreline often can be four to six feet in height. If this is the case, the outlet end of the structure will be completely blocked and any runoff through the Drain will be obstructed. This would completely block the flow of water resulting in the road and adjacent properties being flooded.

Mr. Rose suggested that constructing this flume outlet will lead to many problems. $100,000 was spent on this problem in 1999 and spending another $100,000 for this structure does not make sense to him. Mr. Rose submitted that this proposal is making one force of nature — the runoff from the watershed — fight against another force of nature — the ever-changing water levels and wave actions of the lake which, when added to factors such as winter freeze up, sand build up, and floating debris during storms, this could be quite a battle. One of these forces of nature is going to win and it must be the Drain or flooding will result.

Mr. Rose has observed the existing drain functioning for 16 years with very little problem except occasional erosion at the outlet on the beach. While this may occur several times in one year, based on his observations for the past two years, there is no damage for an extended period. It is his opinion that the more space that can be left between the outlet of the pipe and the open water of the lake the better. This allows the flow from the pipe to seek its own course to the lake and, if there is a blockage with debris or ice along the shoreline, this flow can find its own way around it to an outlet. The more distance between the pipe and the open water, the less debris that can wash into the pipe and cause an obstruction on the north side of the road.

He cautioned that this drain must work at 100% capacity 100% of the time. If it fails, the result will be flooding of the road and the adjacent properties. It is Mr. Rose’s opinion that occasional beach erosion is a better option than having the proposed drain outlet structure become obstructed and cause flooding. Mr. Rose claimed that allowing drains to flow naturally across the beach for outlet is the norm in Chatham-Kent and he provided photos of the Ross and Wilcox Drains that are close to this site. The reason that this Drain is different from these others is that a pipe had to be installed in 2000 as there was not sufficient room for a proper open drain due to the Municipality allowing large homes to be built too close to the ditch outlet. Mr. Rose suggested that, instead of allowing the construction of the proposed outlet structure, the Tribunal could direct the Municipality to repair any serious erosion that occurs at the existing pipe outlet in the future and charge the costs to the entire watershed. If the existing right-of-way was cleared, as was stipulated in the Sullo Report, this could be done using a local contractor with a small rubber-tracked Bobcat type of loader using that access. The adjacent owners knew the drain was there when they purchased their properties and should have taken that into consideration at that time and should not have obstructed the right-of-way for maintenance access.

Mr. Rose drew the attention of the Tribunal to Mr. Sullo’s comments in his Report regarding sufficient outlet being at the end of the existing pipe at the high-water mark of the Lake.

Mr. Rose provided photographic evidence of the beach in front of his residence indicating how much the beach can change due to wind and wave action. Mr. Rose’s observation is that, when the lake level is high, the washout at the end of the pipe is short in length and will be repaired in a short period of time due to the wave action. However, when the lake level is low, any washout at the end of the pipe will be greater in length, wider and may take months to repair itself. He suggests that would be the situation when the Municipality would bring in the small loader to undertake a repair.

It was also Mr. Rose’s observation that the erosion that occurs at the end of the pipe after a heavy runoff does not do any permanent damage to anything, including buildings, lawns, trees or shrubs. Granted, a large hole is washed out in the beach and some of the sand dune is washed away, but these are eventually restored by the waves and the wind during a strong storm, especially in the winter.

While Mr. Rose’s preferred solution to this situation is to repair the drain outfall, as and when required, based on the Sullo Report, he did retain the services of Gerard Rood, P. Eng., of Rood Engineering Inc. of Leamington to provide another opinion. Mr. Rose requested that the Tribunal consider Mr. Rood’s letter during its deliberations. There will be more comment about the Rood opinion later.

As for the assessments in the Spriet Report, Mr. Rose felt that this proposal will not improve his outlet in any way and that his assessments should not be so high. It is his opinion that the two adjacent properties, Blackburn and Misener, should pay considerably more than 27.6% of the cost. Since those properties will be gaining all the value from the proposed works, he suggests they should pay at least 80% of the cost.

Mr. Rose questioned Mr. Spriet’s experience in the design of this type of drainage outlet and suggested a coastal engineer should have been involved in the process. Additionally, Mr. Rose suggested that the municipal Drainage Committee did not have the experience to make decisions concerning this drain that outlets on the Lake Erie beach.

Finally, Mr. Rose requested an order as to costs, given that, in his opinion, the process followed by the Municipality has had so many mistakes.

Neil Rose, Appellant

Mr. Rose is a lifelong resident of this area and lives within the watershed of the drain, on the north side of Rose Beach Line. He has 15.8 hectares or 39 acres of agricultural land within the drainage area and that land has been assessed $8,449 for outlet. He also owns two narrow strips of land on the south side of the road, lot 17 which is only five feet wide and Lot 11 which is 26 feet wide. These two small properties are also partially assessed into the drain for outlet in the amount of $27 each.

Mr. Rose requested that the Tribunal accept his appeal and cancel the project for the reasons stated below. However, he submitted that if the Tribunal finds that the project should proceed, his assessments should be lowered and/or eliminated. In addition, in conjunction with Peter Rose, he retained the services of Mr. Rood to provide other opinions and he requested that the Tribunal consider Mr. Rood’s letter during its deliberations.

Mr. Rose stated that all affected property owners were not notified of the site meetings held for this project. He said that the Municipality stated that it could not have forty opinions voiced at meetings so it decided to narrow the input and invite only a few of the stakeholders to meetings. This contravened the Ontario Ministry of Agriculture, Food and Rural Affairs procedures which state that “all affected property owners have an opportunity to be involved in the public consultation process”. In Mr. Rose’s opinion, the Drainage Board did not appear to give due consideration to the concerns voiced at its meeting and the Council was not open to discussion of the concerns of the landowners.

According to Mr. Rose, the Report states that this project is being undertaken in accordance with Section 78 of the Drainage Act, which requires that projects be undertaken “for the better use, maintenance, or repair of the drainage works or of lands or roads.” However, the Report indicates that there will be no change in the capacity of the Drain as a result of the proposed work and there have not been any sections of the drain or the road that require maintenance or repair. Mr. Rose stated that what has been identified as a problem is that the water exiting the Drain pushes the sand away from the end of the pipe, which creates a temporary water pool that is later filled in naturally by the wave action of the lake. It is Mr. Rose’s position that erosion of sand below the high water mark is not actually “real damage”; there have not been any reports of damage to homes, garages, yards trees or shrubs and there have been no reports of permanent damage of any kind. He stated that this entire proposal and the high cost associated with it are the result of temporary sand movement on the beach of the Great Lake and he did not understand why the Municipality hired an engineer to prepare a new report when maintenance of the existing drain is all that is required. The erosion that has occurred at the outlet can be easily repaired by moving sand around on the beach to fill the holes.

Mr. Rose stated that the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof. This project, at an estimated cost of over $100,000, is being proposed to address temporary erosion that could be addressed by the landowners or the Municipality backfilling with sand or waiting for the natural action of the lake waves to smooth the beach. Mr. Rose suggests that this benefit does not justify the high cost. There have been only two serious rain storms in sixteen years so, in his opinion, this proposed work is an overreaction.

Regarding the proposed structure, Mr. Rose suggested that it will not provide the watershed with any improved drainage or increased flow capacity. It is his opinion that the drain constructed after the Sullo 1999 Report is adequate and provides a sufficient outlet at the high-water mark of the lake. He has not made any changes to his property since 1999 so his land is not contributing any increased flow to the drain. The proposed structure, as described by Mr. Spriet and as shown on the drawings, will extend into the lake which will violate the 80/20 rule of the Federal Department of Fisheries and Oceans. This extension into the water also raises concerns with respect to potential blockages by ice and debris and will be an obstruction to those swimming close to the beach or walking along it. If built, this structure will spoil this beautiful expanse of natural open beach. At a site meeting, Mr. Spriet advised the owners that he did not have any experience with lakeshore outlets which gave Mr. Rose great concern as to the viability of this design. For all of these reasons, Mr. Rose stated that the proposed work should be cancelled.

Originally, the Engineer proposed to use Mr. Rose’s Lot 17 as an access to the beach to undertake the proposed work but it appears that Mr. Spriet has now realized that Lot 17 is only five feet wide. Lot 18, immediately east of Lot 17, was removed from the Assessment Schedule all together at the Court of Revision as it slopes away from the road and the runoff from it flows directly to the lake. Mr. Rose stated that the situation on Lot 17 is identical as it is below the crown of the road and the entire lot slopes to the lake. Accordingly, he requested that the assessment to Lot 17 be eliminated.

Based on correspondence received from the Municipality’s lawyer on February 6, 2017, Mr. Rose understood that the Engineer is now proposing to use his Lot 11 as the construction access route to the beach. If this is the case, Mr. Rose objected to this proposal as this property is only twenty-six feet in width and is a natural, undeveloped strip of land with many mature trees growing on it. If it was to be used as an access, there would be considerable damage to this natural area and sixteen other properties would have to be crossed to access the proposed work site. Furthermore, due to its lower elevation and its slope to the lake, this lot should not be included in the drainage area and should not have any assessment directed to it. Mr. Rose provided a photograph of Lot 11 to support his argument. Accordingly, Mr. Rose requested that this property be entirely removed from the drainage area, and that there be no assessment applied to it, and that it not be used as the construction access route. Mr. Rose suggested that the right-of-way established in the 1999 Sullo Report should be used for access to the beach for any work required on the drain.

Mr. Rose advised that he received correspondence from the Municipality on February 6, 2017, just seven days before this hearing containing a revision to the Report proposing changes to the access for construction, changes to the allowances, changes to all the assessments for construction and changes to all the assessments for maintenance. Mr. Rose stated that it was unfair for the Municipality to unexpectedly provide a revised Report to the landowners at such a late date.

In conclusion, Mr. Rose requested that the Tribunal completely cancel the proposed project and assess all the costs to date to the Municipality. Further, he requested that he be compensated for his costs associated with this appeal in the amount of $647.33.

Mark Grimsteed, Appellant

Mr. Grimsteed presented an appeal on behalf of himself and his wife Peggy. They own the lakefront residential property shown on the Engineer’s plan as Number 18, located 10 lots west of the Drain. Their property is immediately east of Lot 17 that the Engineer proposed to use as access to the beach. They wish to have the right-of-way access removed from Lot 17 in the Report.

Mr. Grimsteed advised that their property extends to the water’s edge and he provided a legal survey that he believes shows this to be the case. Accordingly, if the new access to the beach is going to be located to the west of their property, it would mean that construction equipment would be crossing their private beach property to travel to the drain site to undertake the proposed construction. If this is to be the case, Mr. Grimsteed contends that their property is entitled to an allowance for right-of-way in accordance with Section 29 of the Act and, since none has been provided in the Report, he is appealing this matter.

Mr. Grimsteed pointed out the somewhat serious but temporary erosion that occurred in 2013 and caused the two adjacent property owners to initiate this drain improvement was due to a record one-day rainfall event of 44.5 mm, which surpassed the previous record of 25.7 mm. Furthermore, the resulting erosion did not cause any permanent damage as illustrated by the photo he provided, dated May 25, 2016. Mr. Grimsteed submitted that the temporary erosion caused by these infrequent high rainfall events does not warrant the high cost of this proposed project. He suggested that the solution to this problem is for the adjacent landowners to hire a skid steer and push the sand back into the eroded hole and allow the wave action to restore the shoreline. He does his own beach maintenance in this manner, gaining access via a neighbour’s private driveway.

Mr. Grimsteed stated that, in his opinion, the proposed project should not be allowed to proceed for the following reasons:

• The costs outweigh the benefits.
• Based on the lake level information he has obtained, the proposed structure will violate the Department of Fisheries and Ocean’s 80/20 rule.
• The proposed structure will act as a groin causing erosion of the beach on the down-drift side.
• This man-made erosion problem will be in direct violation of the Municipality’s 2011 Community Sustainability Plan as it will deteriorate the existing healthy, vibrant shoreline.
• The proposed structure will have a significant negative impact on the beauty of this shoreline, which is one of the nicest stretches of beach along Lake Erie.
• The proposed structure will present a hazard to those playing on and walking along this beach, and increase liability on landowners and/or the Municipality.

Mr. Grimsteed also stated that the Municipality did not follow the Ontario Ministry of Agriculture, Food and Rural Affairs procedures as all affected property owners did not have an opportunity to be involved in the public consultation process as they were either not invited to the informal public meetings or their comments and concerns fell on deaf ears. Furthermore, he stated there have been a number of other issues with poor communication regarding the project.

Mr. Grimsteed requested the Tribunal to order that this project not proceed and that all costs to date be the responsibility of the Municipality.

Edward and Teresa Wood, Appellants

Given the unavailability of Mr. and Mrs. Wood, owners of the lakefront property numbered Lot 19 on the Plan, located nine properties west of the Drain, Mr. Grimsteed made submissions on their behalf. Mr. and Mrs. Wood stated that the proposed project should be re-evaluated or abandoned as they feel it will fail over time due to blockage by debris, ice or sand. Furthermore, they are of the opinion that the proposed structure is not a benefit to the entire watershed but only a benefit to the two adjacent properties.

Mr. and Mrs. Wood advised that they regraded their property and installed their own drainage system in 2014 and 2015 such that now none of the runoff from their property is directed to the road. In fact, they have a sand berm across the front of their property that prevents their water from running to the road. Since all the runoff from their property is contained on their own land and is directed to the lake, they requested that their property be completely removed from the Assessment Schedule for this project.

Jennifer Eskritt Verwegen, Appellant

Mr. Grimsteed made submissions on behalf of Ms. Eskritt Verwegen, owner of the lakefront property numbered Lot 31 on the Plan, located four properties east of the Drain. Ms. Eskritt Verwegen stated that the proposed structure is basically a groin as it will extend perpendicularly into the lake for 17 metres beyond the historical high-water mark causing negative impacts on the shoreline and the near-shore biota, including her property. She contended that this beach is the habitat for the endangered Fowler’s Toad, although no evidence of such was present to the Tribunal. She is concerned that there was no environmental study completed regarding the impacts of the proposed structure and that the Engineer had no previous shoreline drainage experience. Accordingly, it is her position that the proposal is not knowledge-based, environmentally conscious or cost justified, and the costs far exceed any benefits. Alternative options and related costs were not provided. For these reasons, this project should not continue.

Ms. Eskritt Verwegen advised that there is a natural sand dune along the north side of her property that prevents any significant flow of water to the road and the branch drain. Accordingly, she suggested that the watershed of the Rose Beach Line Drain should be adjusted to reduce the affected area of her property from 0.1955 hectares to 0.0053 hectares and her assessment should be lowered from the current $224. Ms. Eskritt Verwegen’s opinion is that this project is not in the public interest so, if it goes forward, the percentage allocation to the requesting property owners should be increased.

Pamela Bachus, Appellant

Mrs. Bachus and her husband own a lakefront lot seven properties east of the Drain site and are assessed $162 for the proposed improvement project. Mrs. Bachus is a lifelong resident of Chatham-Kent and her family has owned this property since 1967, so she has enjoyed Rose Beach for fifty years. They requested that this proposed project be abolished, or, at the very least, modified for the following reasons:

• The proposed structure will not comply with the Department of Fisheries and Oceans 80/20 rule.
• Engineer Spriet admits that he has no shoreline experience. The Municipality was irresponsible in hiring an Engineer without this experience.
• The rainfall event of concern occurred in 2013 when the lake level was low and when historic, record breaking rainfall was recorded.
• There has been no mention of flooded property or flooded basements. Only beach erosion was the concern in 2013. This situation was temporary and was “corrected” during the winter of 2013/2014 and by the spring storms of 2014.
• While they understand the Miseners’ distress with the blowout that occurred in the spring of 2013, they should have been fully aware that they purchased a property next to a municipal drain and that, occasionally, high runoff can cause temporary erosion problems. These problems could have, and can in the future, be dealt with by mechanical beach grooming, or, if one is patient, by the natural processes of the lake and the wind.
• The proposed structure is essentially a groin and will have negative impacts on their shoreline and all neighbouring properties by causing increased erosion during storms. Many adjacent properties may suffer to benefit the two adjacent properties.
• The 2013 record rainfall event, that caused no permanent damage, does not warrant the construction of a $100,000 leviathan barricade plus ongoing maintenance costs.
• An environmental assessment of the proposed project was not undertaken.
• The adjacent Bisnett Drain has a somewhat similar outlet as that proposed here and sand is completely built up inside that structure. Plugging by sand will result in flooding upstream.
• The relentless gale force winds and resulting storm surges on this lake are very significant and the shoreline impact that this structure will cause will also be very significant.
• The communication from the Municipality regarding this process has been inconsistent. Some owners were told that there was no need to attend certain meetings.
• The proposed structure is inappropriate and unnecessary and will be an unsightly barricade on one of the most gorgeous beaches on Canada’s south coast.
• The Chatham-Kent shoreline is being treated with casual disregard by the Conservation Authority and the Municipality. The goals, purpose and objectives of the Rondeau-Erie Coast Conservation Plan and the Official Plan are not being considered in this project.
• There does not seem to be any concern shown in this process for the critical habitat of the Fowler’s Toad, a species at risk, which is known to live in this area.

Veronica Misener, Party to the Appeals

Since November of 2012, Mrs. Misener and her husband have owned the lakefront property upon which the existing Drain is located and upon which the proposed new outlet structure is to be constructed. The assessment to their property in this Report is $13,500 for benefit and $251 for outlet, for a total of $13,751.

Heavy rainfalls in February and May 2013 resulted in high flows through the existing drain pipe that caused significant erosion of their beach property and that of their neighbour to the west, Mrs. Blackburn. They expected the Municipality to attend at their property to repair this damage but, when that didn’t happen, they and Mrs. Blackburn hired a contractor who, at a cost of $800, undertook the necessary repairs in July of that year. Unfortunately, five days later, another very large storm occurred which resulted in even more severe damage to their properties. The County Road and part of their front yard were flooded. A quarter of their backyard was eroded away as was a large portion of the Blackburn property. Plants, bushes and small trees were washed out into the lake. Some of the large concrete blocks at the outlet were also washed out. The eroded hole was two metres deep and became full of stagnant, algae covered water for two years. Initially, when they requested that something should be done about this situation, all the neighbours were in agreement but, in the summer of 2015, the high-water level in the lake and the resulting waves filled in the hole and the neighbours lost interest in finding a permanent solution. On July 25, 2015, they and the Blackburns wrote to the Municipality requesting a repair of this drain outlet. The Municipality responded stating that there was some question as to whether the requested work was actually covered by the current by-law and Engineer’s Report and whether the current maintenance schedule was fair and equitable. Accordingly, the Municipality determined that maintenance could not be completed and that only a signed request for improvement of the drain, under Section 78 of the Act, would allow any work to be done. As a result, the Miseners and the Blackburns signed a request for improvement, resulting in the current Engineer’s Report.

When questioned, Mrs. Misener stated that all they really want is for the current drain outlet to be repaired and maintained in the future; they somewhat understand what is proposed in this Report; the Municipality did nothing for them while this problem existed and they should not have had to put up with it for two years. Although they support the proposed structure, they would be satisfied if the outlet structure and channel that existed before the washout was repaired and would be maintained by the Municipality in the future.

Evidence of the Respondent

Burt Rammelaere, Chairman of Drainage Board, Witness

Burt Rammelaere is a local farmer from the former Township of Tilbury East who also has thirty years of experience as a Municipal Councillor, Reeve, Deputy Reeve and involvement in the local Conservation Authority. Mr. Rammelaere also noted he has experience in drainage issues over his career. Mr. Rammelaere stated that he was familiar with the 1999 Sullo Report, and spoke to his involvement in considering that report. He stated that, because Engineer Sullo was unwilling at the time to change his report recommendation for anything other than a pumping scheme, there was an appeal to the Tribunal, which ordered Mr. Sullo to amend his Report to design a gravity system. Mr. Sullo complied with the request of the Tribunal, which resulted in the 1999 Sullo Associates Report for the Drain. Mr. Rammelaere expressed his opinion that the original scheme recommended by Engineer Sullo should likely have been adopted. Mr. Rammelaere noted the Drainage Board had reviewed the proposal from Mr. Spriet and noted that the only logical solution was to accept the recommendations in the Spriet Report. Tearing everything down and starting over was not, in Mr. Rammelaere’s opinion, a viable solution; he felt that there was no other alternative than the one suggested by Mr. Spriet. The Board was satisfied that Engineer Spriet had sufficient qualifications to deal with the problem at the outlet.

On cross examination, Mr. Rammelaere agreed that an Engineer had been hired by the appellants at the time the Sullo Report was appealed to give evidence to the Tribunal. Mr. Rammelaere also stated he had visited the site several times since 1998 and observed the conditions at the outlet. His observation was that the flows from the outlet were too high and that this resulted in erosion problems on the beach adjacent to the outlet. Mr. Rammelaere admitted that he had limited experience in dealing with drains on Lake Erie.

When questioned by the Tribunal, Mr. Rammelaere admitted that, although at the time of the 1999 Sullo Report a pond and pumping scheme would have been the preferred solution, the Tribunal apparently overturned this recommendation and ordered Mr. Sullo to amend his report to specify a gravity outlet system. Mr. Rammelaere further explained the process used by the Municipality when a drainage petition is received. Mr. Rammelaere could not offer an estimate as to the cost of a present day pond for water retention.

Blaise Chevalier, Drainage Superintendent, Witness

Blaise Chevalier has been the Drainage Superintendent in the East Section of the Municipality for almost two years. Prior to this he was Assistant Drainage Superintendent for the Town of Lakeshore. He is familiar with the location and history of the Rose Beach Line Drain. Mr. Chevalier admitted that a small machine could be used at the location of the outlet from time to time to push sand around. It was Mr. Chevalier’s opinion that the by-law in effect for the Rose Beach Line Drain does not allow the Municipality to perform any work past the location of the existing outlet pipe. Mr. Chevalier stated that there had been several occasions where erosion had been caused by water from the outlet. Mr. Chevalier testified he had some experience with coastal drain outlets. Mr. Chevalier explained how different types of data were received and used by the Municipality with respect to property lines and topographical information.

Mr. Chevalier testified that the July 2016 Report by Spriet Associates was circulated to the assessed landowners and it was believed that all these landowners received a copy of the Report.

Mr. Chevalier confirmed that based on his review of historical documents regarding this Drain, appeals to the 1999 Sullo Report did not proceed to the Tribunal. Instead, a negotiated settlement was reached between the appellants and the Municipality, whereby the Report was re-considered and adopted as amended.

Mr. Chevalier testified that, in his opinion, the existing outlet is not a sufficient outlet for this Drain. Mr. Chevalier stated that he was surprised that a better solution, for example a retention pond, had not been implemented in 1999. Mr. Chevalier also described his interaction with the assessed landowners during the course of the review of the Report. Mr. Chevalier believes that approvals from the required approval agencies for this project either have been or will be able to be received. Mr. Chevalier said he feels that this is a satisfactory solution for the erosion problems at the outlet of the Drain. He offered no opinion as to whether it was the most cost effective solution.

In cross examination, Mr. Chevalier spoke to his limited experience with outlet baffles on somewhat similar structures in another Municipality along the lakeshore.

When questioned by the Tribunal, Mr. Chevalier noted that he was not familiar with any maintenance being performed at the outlet of the drain other than the placement of concrete blocks. Mr. Chevalier felt that if the flume was built, it would likely not be plugged with sand, and if it were the flow from the outlet would wash the sand away. If the blockage was as a result of debris in the flume, other means would have to be used.

Mr. Chevalier explained discrepancies in the property line depictions and admitted they may not be completely accurate on the drawings. He stated that there are no structures similar to the one proposed in the Spriet Report to his knowledge. He was unaware if there were any endangered species in the area.

With respect to the open channel described in the 1999 Sullo Report, Mr. Chevalier was unsure as to whether he could perform repairs to the outlet or the channel under the existing by-law. The open channel to his knowledge has not been maintained. He stated that to his knowledge permits would be required from the Conservation Authority and the Department of Fisheries to perform work on the beach, but it was standard practice to inform these agencies if any work were to be performed. Further he felt that the existing maintenance schedule would not allow him to perform any work past the existing outlet.

Tim Dick, witness called by the Tribunal

Tim Dick is the present Director of Drainage, Assets and Waste Management for the Municipality. He has held this position since 2009. Prior to that he was the Director of Drainage from 2003 to 2009. He has held various drainage administrative positions in the Municipality since 1995.

Mr. Dick testified that he was the author of a letter sent to several landowners indicating that work required on the Drain was beyond the scope of the existing by-law.

He stated that his opinion was formed based on complaints received and site meetings held regarding the condition of the outlet of the Drain. Initially, it was felt that the condition could be rectified by the placement of concrete blocks at the outlet. Although this was outside the parameters of the 1999 Sullo Report, it was felt at the time that this was an acceptable solution for the landowners. This resulted in several instances of having to go back and repair or re-place the concrete blocks. Some of the landowners then indicated they were not willing to pay for any further attempts to repair or replace the concrete blocks. Present conditions at the outlet are not as depicted in the photographs provided. Extreme flows from the outlet of the drain actually displaced a concrete block “floor” that was originally placed at the outlet.

Mr. Dick also noted that, in his experience, replacement of and/or attempts to maintain an open channel at the outlet would be futile due to the extreme flows that occur there. Mr. Dick also explained that, in his opinion, Section 77 of the Act was not considered as an option to repair the drain due to concerns of several assessed landowners who were reluctant to receive continued assessments for maintenance. Mr. Dick felt that his best solution was to proceed with a Report under Section 78.

John Spriet, P.Eng., Engineer who prepared the Report

Mr. Spriet acknowledged he was the author of the Report under appeal in this matter. He stated this was a Section 78 report under the Drainage Act, initiated by two of the assessed landowners. Prior to preparing his Report, Mr. Spriet indicated that he had reviewed the Sullo Report for the Drain. He also conducted an on-site meeting, as well as several other meetings prior to preparing his Report.

Mr. Spriet provided a history of the 1999 Sullo Report, and noted that in the original Sullo Report, the Engineer had recommended a stormwater retaining system and a pumping scheme as the preferred solution to the problem that existed at the time. Due to opposition by the ratepayers and by Council, the original Sullo Report was referred back to the Engineer, who designed the gravity outlet scheme that currently exists.

Mr. Spriet stated that, in his opinion, the current gravity outlet as constructed does not constitute a sufficient outlet under the Drainage Act, on the basis that the outlet is currently causing damage to the adjacent lands. Mr. Spriet also acknowledged that, despite the placement of concrete blocks at the outlet by the Municipality to prevent damage to the adjacent lands, this was not solving the problem.

Mr. Spriet stated that it was his opinion that the construction of a steel sheet piling flume from the end of the existing pipe at the outlet of the drain would channel the water discharged from the Drain closer to the water’s edge and minimize the current erosion problems at the outlet. This rectangular flume was designed with the aid of a soils report prepared by a professional engineer.

Mr. Spriet stated he also considered the options of extending the existing corrugated steel pipe and/or the construction of a concrete box culvert at the outlet. Further consultation with the area landowners and with the Municipality’s drainage staff resulted in his recommendation in the Report for a steel sheet piling flume including a baffle downstream from the flume to prevent debris from blocking the flume. The proposed flume is designed to handle the maximum flows from the existing upstream culvert and the proposed wall thickness of the sheet piling wall is significantly greater than the existing corrugated steel pipe outlet. Mr. Spriet stated that in his professional opinion, the structure proposed would be adequate to resolve the current problems at the outlet.

Mr. Spriet said he did not consider the original recommendation for a retention pond and pumping scheme as described in the 1999 Sullo Report as an option in his Report. He admitted that due to the high volume of water being discharged from the drain, in his opinion this would require a very large pond to contain and control the flow to the outlet, and it was likely that he would not consider this as an option even if there were nothing in place at the time.

Mr. Spriet stated that, subsequent to the Court of Revision and after consultation with some of the landowners, he has proposed changes to the Assessment schedule in his Report. The changes to the Assessment Schedule are based on establishing an additional right of way and providing additional allowances for this purpose. Mr. Spriet stated that using the existing right of way for the construction of the proposed sheet piling flume would result in additional costs due to heavy equipment being required to travel over the existing outlet pipe. Mr. Spriet provided information (Exhibit 5A), which included a drawing indicating his proposed additional right of way, a revised Assessment Schedule, as well as an explanation for his calculations for the revised assessments. Mr. Spriet stated that his proposal for the additional right of way would be a more effective solution for the construction and future maintenance of the outlet of the Drain. He estimated that there would be an additional cost of $9,000, plus restoration costs to use the existing right of way. He admitted that the existing right of way could be used if necessary. He also admitted that should there be issues with existing property owners actually owning to the water’s edge, additional allowances would be required. Mr. Spriet also explained at length how he determined the property lines and property values of the properties assessed to the Drain.

Mr. Spriet stated that he is also recommending changes to the watershed boundary of the Drain and related assessments. This is the result of further reviews of the watershed boundary subsequent to an appeal to the Court of Revision and requests from assessed landowners. Mr. Spriet explained the process used to examine and revise the watershed boundary and the resulting assessment changes. The review resulted in several properties being removed from the Assessment Schedule. Mr. Spriet provided a revised “Schedule C – Assessment for Construction”, as well as a revised “Schedule D - Assessment for Maintenance” in Exhibit 5A, which he considers to be the proper Schedules. Mr. Spriet also provided an Assessment Breakdown sheet in Exhibit 5A, and proceeded to explain his methodology for assessing benefit and outlet for the drain, particularly the Special Benefit assessed to the Road Authority.

Mr. Spriet indicated he has visited the site since the preparation of his Report, subsequent to a large rainfall event, and he is satisfied that the proposed recommendations in his Report will adequately address the erosion problems at the outlet. Mr. Spriet stated that the Report has been circulated to the Department of Fisheries and Oceans and to the local Conservation Authority and no objections to the project have been received. Mr. Spriet further explained the necessity for the soils report he commissioned in order to properly design the sheet piling flume.

In cross examination, Mr. Spriet admitted that he had not designed a similar structure on the Lake Erie shoreline, nor had he consulted with other drainage engineers who may have designed such structures. Mr. Spriet also explained how he obtained and used the high-water level data in designing the structure. Mr. Spriet further reiterated how the proposed flume including the baffle would be sufficient to handle the upstream flows from the Drain and that, in his opinion, high lake water levels would not prevent or restrict flows from the Drain. Mr. Spriet also explained the proposed changes to the watershed boundary and the methodology for recalculating assessments to the remaining landowners.

In cross examination, Mr. Spriet was also questioned at length about the proposed additional right of way and providing allowances for those properties extending to the water’s edge. Mr. Spriet explained how he had obtained information from the Municipal Property Assessment mapping and used this information to determine where allowances should be paid. Mr. Spriet also spoke to several on site meetings held throughout the process.

When questioned by the Tribunal, Mr. Spriet indicated he had not seen written approval for the outlet structure from the Department of Fisheries and Oceans, the Ministry of Natural Resources and Forestry or the local Conservation Authority. Mr. Spriet also said he did not consider repairing the existing drain, based on the 1999 Sullo Report, since the open channel as described in that report was difficult to define and maintain. Mr. Spriet spoke to the current cost estimate being higher than in his Report due to higher steel prices. Mr. Spriet admitted that the recommended option for the project was a steel flume and a baffle with an estimated cost at the time of the preparation of his Report being in excess of $105,000.

When questioned by the Tribunal about the use of stormwater management, he admitted that this option was not considered in preparing his Report, based on the history of the Drain and the previous refusal by the landowners to accept this option. Mr. Spriet stated that, in his opinion, stormwater management was not an option in this case. Further, there was no mandate to consider stormwater management for this Drain.

Mr. Spriet indicated he did not review the design criteria for the size of the existing outlet, but that he did consider the flow capacity based on its existing size. He indicated that the size of the existing outlet was not a matter for concern by either the assessed landowners or the Municipality. Mr. Spriet indicated that the purpose of his Report was to control the velocity of the flow at the outlet. Mr. Spriet stated that even though the existing outlet could be repaired and maintained under its present condition, it would be an ongoing process that would involve continually reshaping the sandy area and re-placing the existing concrete blocks.

When questioned about changes to allowances as described in Exhibit 5A, Mr. Spriet explained that rather than using the existing right of way for access for the project, which would involve extra costs for protecting the closed portion of the outlet, an additional right of way could be specified and these allowances paid to allow a second permanent access. The allowances were calculated based on the 1999 Sullo Report.

Submissions of the Appellants

The following summarizes the various positions of the Appellants:

• Maintenance under the 1999 Sullo Report for the Drain still works properly.
• The existing right of way was never maintained or required to be maintained by the Municipality.
• There have been few events over the past 17 years that required maintenance on the Drain.
• The proposed changes to the outlet may not work properly, resulting in possible plugging of the outlet during high water and ice conditions.
• The Drain can be repaired using a small Bobcat with access through the existing right of way.
• There was concern over how the revised assessments (as set out in Exhibit 5A) were presented to landowners, who were given insufficient time to review and appeal.
• The costs of the project as proposed in the Spriet Report are not commensurate with the benefits.
• All the properties along the proposed new right of way go to the water’s edge and as such should be entitled to allowances for crossing their property in order to access the Drain.
• Only the existing right of way should be used for access to the Drain.
• Construction of this project may result in damage to the Appellants’ properties.
• There is concern over how a simple maintenance request has resulted in a new report and a new project.
• The proposed structure in the Spriet Report violates existing guidelines for public consultation for construction in a beach area.
• The project as proposed in the Spriet Report should be cancelled and all costs should be assessed against the Municipality.

Submissions of Veronica Misener (Petitioner)

Mrs. Veronica Misener submits that merely repairing the existing conditions in the area is only a bandaid solution. She feels that the area around the Drain is not safe for her eight grandchildren. Given that she would like to see a permanent solution to the erosion problem, she is in favour of the project. Mrs. Misener submits that this should not be a money issue and the safety of everyone using the beach should be a priority.

Submissions of the Municipality

The Municipality submits that the opinion of the Chairman of the Chatham Kent Drainage Board that the landowners “have sold their outlet” best summarizes the situation as it exists at the Drain. The proposed project attempts to fix the problem of insufficient outlet based on existing conditions, being the loss of outlet opportunities into Lake Erie due to home construction. In other words, the project is attempting to make the best out of a bad situation.

The Municipality submits that the Engineer appointed by the Municipality followed all the requirements of the Drainage Act in preparing and submitting his Report.

Counsel for the Municipality stated that there was no contrary engineering evidence submitted by the Appellants that would lead to a finding that the Spriet Report was wrong in its conclusions. He specifically addressed the letter written by Engineer Gerard Rood and relied upon by the Appellants; given that Mr. Rood did not testify and was not subject to cross examination, this letter is not reliable evidence and should not be considered.

The Municipality requests that all appeals be dismissed and that the project proceed as proposed. Counsel suggests that the revised outlet assessments (as stated in Exhibit 5A) against the landowners at the outlet of the Drain, as well as the assessment to the Road Authority, are fair and that the assessments as described for the Road Authority and the owners adjacent to the outlet also reduce the cost burden on the remaining landowners. Counsel also requests that the Tribunal consider costs in the matter.

Findings

The Tribunal finds, based on the evidence presented, that there is a problem with the existing outlet of the Rose Beach Line Municipal Drain. Excessive flows from the existing outlet, under heavy rainfall conditions, are causing damage to adjacent properties in the form of deep pools and general unsafe conditions on the beach at the location of the outlet. Attempts by the Municipality to correct this situation by installing concrete blocks at the outlet and replacing the blocks on several occasions have not solved the problem. Obviously flows from the drain are being directed to an insufficient outlet. The landowners on either side of the outlet petitioned the Municipality to have this situation corrected. A report prepared by Spriet Associates, dated July 12, 2016 and authored by John Spriet, P. Eng., ultimately recommended that a steel sheet piling flume be constructed at the outlet to direct the flow from the outlet closer to the water’s edge of Lake Erie. Further, a baffle would be constructed at the end of the flume to prevent or minimize blockage of the outlet. It is this Report that is the subject of the appeals.

The Appellants in this matter testified throughout the hearing that in their collective opinions either the cost of the project was too high, the cost was not commensurate with the benefit derived, there was no problem with the drain and that it was functioning properly, or the Engineer did not have the proper qualifications to design the proposed flume and baffle. All Appellants suggested that the project should be cancelled and that the Drain could continue to be maintained under the existing 1999 Sullo Report. However, the Appellants failed to support their claims through sworn testimony by either a qualified drainage engineer or a reputable drainage contractor. While they all were articulate in expressing their concerns to the Tribunal, their evidence was limited to their observations and opinions. They did not provide the proper engineering evidence sufficient to challenge the Municipality’s Report or to offer engineering-based options upon which the Tribunal could base an alternative finding. Two of the Appellants, Peter Rose and Neil Rose, did obtain a letter of opinion from a drainage engineer, Mr. Rood, in which an option was discussed and, while this letter became part of the evidentiary record when it was entered as an exhibit as part of Peter Rose’s evidence with the consent of the Municipality’s counsel, no one called Mr. Rood as a witness. Without doing so, Mr. Rood could not be cross-examined by the Municipality and his evidence and credibility could not be tested by the Tribunal. As a result, the Tribunal could not place much weight on Mr. Rood’s letter.

While the Appellants failure to call Mr. Rood, or for that matter any expert or other factual evidence, was not absolutely fatal to their case, by not doing so the Tribunal is left only with the engineering evidence from the Municipality.

However, in weighing the evidence, the Tribunal is careful not to allow the Municipality to take advantage of the Appellants simply because they are self-represented and did not call any engineering evidence. Knowing that there is likely to be no opposing engineering evidence, a municipality should not think it has a “free pass” to have an engineering report automatically endorsed by the Tribunal. The Drainage Act still requires a properly completed, engineering-based report and the Tribunal will not rubber-stamp any report simply because it goes unchallenged.

Similarly, the fact that the Appellants did not have legal representation does not mean the Municipality does not have to fully prove its case. While the Municipality claimed to have agency approvals, there was no documentary or other evidence to support that bald statement. It is for that reason that the Tribunal is issuing an interim order requiring production of written approvals from governing agencies before a final order will issue.

The primary procedural concern of the Tribunal is the issue of fairness: it must ensure that all parties are treated fairly with respect to the process and treated fairly with respect to the evidence. While the former is more easily achieved, to the self-represented, the latter is not. For example, the Tribunal can walk a self-represented party through the process of examination-in-chief, cross-examination and re-examination. It can explain the types of questions to ask; however, it cannot explain what questions to ask. Nor can it explain what witnesses the self-represented party should call or what evidence he or she needs to prove his or her case. Doing so would be fundamentally unfair to the opposing party. Unfortunately, in most cases, it is not until the self-represented party reads the decision that he or she realizes that he or she failed to meet the necessary burden of proof.

The Agriculture, Food and Rural Affairs Tribunal is a specialized Drainage Act decision-maker. It specifically places a retired drainage engineer on the panel so his or her expertise is utilized when the Tribunal evaluates the evidence. Further, in its objective to reach the best decision, the Tribunal often asks questions of witnesses more so than would a judge in a court room. The Tribunal often walks a fine line between comprehension and advocacy. However, it is important that self-represented parties realize that the Tribunal is not the engineer on the project. The Tribunal will only impose a result of its own creation in the rarest and most exceptional of circumstances. It can make an order based only on the evidence before it.

Therefore, subject to the Municipality complying with the interim order as set out below, lacking any evidence on which to rely to support the claims of the Appellants, the Tribunal will dismiss the Section 48 appeals. Given the Municipality’s engineering evidence, the Tribunal does not see this as one of those rare and exceptional cases necessitating a solution of its own creation.

In reviewing the Spriet Report, the Tribunal notes that all the options proposed in the Report were very similar in that they involved extending the existing outlet either with a corrugated steel pipe, a concrete box structure or the proposed sheet piling flume, all of which are quite costly. Engineer Spriet admitted in evidence that these were the only options he considered. In deciding this issue, the Tribunal relies on the evidence of the Director of Drainage, Asset and Waste Management for the Municipality. The Director has observed the historical excessive flows from the outlet and notes that the large concrete blocks that were placed at the outlet to resolve the problem have been undermined and moved by the force of the water flowing from the Drain. This contradicts the Appellants’ contention that merely sending out a small bobcat every time there is a problem is a viable solution. This would also seem to preclude the use of a similar revetment of concrete block or armour stone which, although possibly less costly, might ultimately result in continual failure of that structure and continued maintenance costs which, as indicated by the Director, are the reasons for commissioning the Report in the first place.

However, the Tribunal does have a concern given the new structure’s location on the Lake Erie coastline and the Engineer’s admittance that he has limited experience in coastal shoreline issues. Accordingly, the design of the structure needs to be reviewed by an engineer qualified in shoreline structural design. The Tribunal will order the Municipality to have the design of the proposed flume and baffle reviewed by a qualified costal engineer to ensure that this structure is appropriate for the local conditions.

Further, concerns were raised by the Appellants regarding the Municipality having received the necessary approvals from the various agencies that have jurisdiction over such projects; specific mention was made of the federal Department of Fisheries and Oceans, the provincial Ministry of Natural Resources and Forestry, and the local Lower Thames Valley Conservation Authority. Although the Municipality stated that the project had been vetted and approved by those agencies, it provided no documentary evidence that the project had been submitted to any of those agencies nor that approvals have been received. Accordingly, the Tribunal requires confirmation of those approvals and will also order that all approvals from any required agencies are received in writing prior to commencement of the project.

The Tribunal also notes that the original 1999 Sullo Report recommended a retention pond and pumping scheme as the proper solution for this drainage problem. The assessed landowners at the time rejected the pond and pumping scheme option and that report was sent back and ultimately a gravity scheme system was adopted. The landowners are now faced with the option of repairing the existing conditions at the outlet or starting all over with what could have conceivably been a better option, that being the retention pond and pump system which, by design, would result in significantly reduced flows at the outlet and a minimization of severe erosion. While, in a perfect world, a retention pond and pumping system would be the best solution, to refer the Report back for further consideration of this option now would result in significant additional engineering costs as well as significant land acquisition/allowance costs. As neither the Appellants nor the Municipality mentioned this as an option during this hearing, the Tribunal has no basis to order such a wholesale redesign of the Drain, at this point in time.

During the hearing, Engineer Spriet presented an option for an additional right of way to access the outlet of the Drain. Engineer Spriet felt this would save the cost of additional work required to cross the existing outlet pipe. Mr. Spriet estimated this additional cost at $9000. The additional proposed right way is several properties west of the existing outlet location. Engineer Spriet calculated allowances based on mapping information that, in addition to the proposed lot to be used as a right of way, only two other properties would have to be crossed, and these two properties would be paid an allowance. Several of the landowners disputed this, stating that, in their opinion, all their property lines extend to the water’s edge and that they should be compensated for crossing their property. The Municipality left the consideration of this additional right of way as an option to be decided by the Tribunal.

The Tribunal notes that the Report estimates the cost of the project to be $105,300, which is the cost of Option C. However, the proposed solution is Option D, which is Option C plus the baffle, so the cost will be more than $105,300. Further, it was Mr. Spriet’s evidence that steel and installation costs will be $8,000 more than estimated, and Mr. Dick says engineering fees were currently $15,400 more than stated in the cost estimate schedule. Accordingly, the cost estimate is outdated and needs to be revised to reflect current best-known estimates.

The Tribunal notes that the existing right of way, as established in the 1999 Sullo Report, is a permanent four metre width extending to the water’s edge of Lake Erie. The Tribunal concludes that this existing right of way, with some modifications, is a sufficient permanent access for construction and future maintenance on the Drain, and that an additional right of way is not required. The Tribunal will order that only the existing right of way, as modified, be used for construction and maintenance of the Rose Beach Line Drain and Outlet Structure.

With respect to appeals under Section 54, the Tribunal finds that the Engineer has calculated the benefit and outlet assessments in a proper manner. Changes to the Construction and Maintenance Assessment Schedules will be ordered based on the revisions to the watershed boundary as suggested by Engineer Spriet at the hearing. Although the Tribunal appreciates the anxiety caused to the Appellants when the Municipality provided the revisions (in the form of Exhibit 5A) shortly before the commencement of the hearing, the proposed changes were minor in nature and a form of housekeeping. Further, the Tribunal allowed the Appellants sufficient time between hearing dates, and an opportunity to provide reply evidence, such that the Appellants were not prejudiced by the late notice and could properly address any concerns about these changes. The Tribunal notes that the changes ordered by the Court of Revision have already been made. Any other Section 54 appeals will be dismissed.

Order of the Tribunal

The Tribunal hereby makes the following interim order:

1. The Municipality shall provide all interested parties and the Tribunal with any and all approvals and permits, or in the alternative a letter stating that a permit or approval is not required, from Fisheries and Oceans Canada, the Lower Thames Valley Conservation Authority and the Ontario Ministry of Natural Resources and Forestry stating or otherwise indicating that the proposed outlet structure may proceed as designed in the Spriet Report.

2. The Municipality shall retain an independent, third-party professional engineer qualified in the design and construction of structures located in coastal situations, such as Rose Beach, and obtain from that third-party professional engineer a stamped report confirming that:

   (i) the proposed structure is adequate for its intended purposes;

   (ii) the proposed structure will withstand the year-round natural forces of the lake within the structure’s natural life; and,

   (iii) the proposed structure will not damage or contribute to damage to adjacent properties once constructed as proposed.

   Copies of the said stamped report shall be provided to the Tribunal and all interested parties. In its final order, the Tribunal will advise as to how the cost of this third-party report is to be charged.

3. Construction of the proposed outlet structure shall not commence until the issuance of a final order by this Tribunal.

4. The watershed boundary for the Rose Beach Line Drain is to be amended as per Spriet Associates Drawing No. 2A, dated January 31, 2017 (as contained in Exhibit 5A).

5. Schedule “C” – “Assessment for Construction” and Schedule “D” – “Assessment for Maintenance” as contained in Exhibit 5A for the purpose of revising assessments due to changes in the watershed boundary, is to be substituted for the corresponding schedules in the Spriet Report of July 12, 2016.

6. Should the project proceed to construction as currently proposed in the Spriet Report, all new construction work and future maintenance work shall be confined to a new permanent right of way, wider than that defined in the 1999 Sullo Report, as follows:

   a) A right of way 7.8 meters in width, centred over the centre-line of the existing outlet pipe and the new outlet structure, extending downstream from the edge of the road allowance to the downstream end of the proposed outlet structure, narrowing as necessary to avoid existing buildings and hard landscape features, such as driveways and walkways; and

   b) As may be necessary for construction and maintenance, this right of way shall be cleared of and kept clear of any and all trees, shrubs, structures and/or obstructions that would prevent access to the outlet of the drain; and

   c) Should the enlargement of this right of way require additional allowances for the purposes described, said allowances shall be calculated and paid to the affected landowners, and added to the cost of the project. In addition, should the enlargement of this right of way result in additional construction costs, the additional costs shall be levied against all assessed landowners.

7. The cost estimate in the Report is to be revised to reflect current known costs.

Upon the provision of all reports, permits, approvals and revisions necessitated by the Interim Order as stated above, the Tribunal will issue a separate and final order to conclude this matter.

Dated at Tecumseh, Ontario this 23rd day of January, 2018.