John Schaeken v. Municipality of West Elgin, 2018 ONAFRAAT 17

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

Hind Drain (RE) Municipality of West Elgin

Hind Drain (RE)

Drainage Act

December 4, 2018

DATE OF DECISION:

December 13, 2018

017Hind18

2018 ONAFRAAT 17

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

AND IN THE MATTER OF: An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by John Schaeken of Newbury, Ontario under Sections 48 and 54 of the Drainage Act, with respect to the Hind Drain in the Municipality of West Elgin.

Before:

Jeffrey J. Hewitt, Vice-Chair; Ed Dries, Vice-Chair and Tim Mousseau, Member

Attendances:

John Schaeken, Appellant

Michael Schaeken, Witness for the Appellant

Paul Courey, Counsel for the Municipality, Respondent

John Spriet, P.Eng., Spriet Associates, Engineer who wrote the report

The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the Municipality of West Elgin on December 4, 2018 to hear an appeal by John Schaeken of Newbury, Ontario under Sections 48 and 54 of the Drainage Act (“Act”) regarding the Hind Drain (“Drain”). John M. Spriet, P.Eng., (“Spriet”) of Spriet Associates Engineers & Architects prepared a report dated January 31, 2018, entitled “Hind Drain” (“Engineer’s Report”), said Engineer’s Report being the subject of this appeal.

Genevieve Scharback, CAO/Clerk of the Municipality of West Elgin, performed the duties of Clerk of the Tribunal.

Preliminary Matters

Prior to the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to the hearing. The Municipality filed with the Tribunal an Affidavit of Service dated December 3, 2018, as proof that all landowners were served with the Notice of the Hearing.

No other landowners requested to be party to the appeal filed.

Background:

The Hind Drain (the “Drain”) is located in the Municipality of West Elgin. The Drain was originally constructed in accordance with a report dated January 3, 1968. The Drain consisted of approximately 100 ft. of open ditch and approximately 1,300 ft. of 6 inch, 8 inch and 10 inch diameter tile.

The Municipality received a written request from the Appellant, John Schaeken, to maintain the existing drain. This specific request was later withdrawn by Mr. Schaeken. Subsequently, a request to repair and improve the drain under Section 78 of the Act was filed by Mrs. G. Hind. Spriet Associates were appointed to prepare a report.

The final Engineer’s Report was signed by John M. Spriet, (“Spriet”) and dated January 31, 2018. The Report was considered by the Municipality at a regularly scheduled meeting on July 19, 2018. No appeals against the Report were raised at that meeting and it was consequently given first and second reading and provisionally adopted. The Court of Revision was held on August 16, 2018. Mr. Schaeken attended that meeting and questioned the watershed boundaries as well as, the relative values of assessments shown in this report as compared to the 1968 report. Spriet responded, no further issues were raised, and the assessments were confirmed.

Mr. Schaeken subsequently filed appeals to the Tribunal under Section 48(1)(c) and Section 54 of the Act.

The Issues:

Based on the evidence and submissions presented to the Tribunal, the issues raised by the Appellant are as follows:

With respect to the Section 48(1) appeal in this matter:

The Appellant claimed that the Engineer erred in recommending brush removal as well as, providing damage allowances to the Hind Property on lands that have not been productive.
The Appellant argued that the Report recommends the protection of hardwood trees in the areas to be brushed which may threaten the long term operation of the tile drain.
The Appellant stated that this Report should be consistent with the 1968 report that does not address tree removal nor crop damage due to the removal of the trees.

With respect to the Section 54 appeal in this matter:

The Appellant claims that the total assessment against the Ayers Property should be doubled.

The Evidence:

The Appellant, John Schaeken (“John”) gave his evidence related to his appeal under Section 48. He also called his son, Michael Schaeken (“Michael”), as a witness. Spriet gave evidence on behalf of the Municipality related to the Section 48 appeal.

After cross examination and reply evidence was concluded, Spriet continued to give evidence specific to the Section 54 appeal, as is required by Section 55 of the Act. After cross examination and reply related to that evidence, John and Michael gave evidence specific to the Section 54 appeal.

John Schaeken – Appellant – Evidence re: Section 48 (c) appeal

John stated that he is a contractor, licensed by the Province of Ontario, to install tile drains under the Agricultural Tile Drain Installation Act. He confirmed that he discovered that the connection of a private drain from his property to the catch basin on the south side of McMurchy Line had been plugged. He requested maintenance on the drain to repair the connection but subsequently withdrew that request.

He filed a series of photographs of the north part of his property that purport to confirm the drainage of this portion of the property. He claims that surface and tile drainage from his property flow to the north toward the upper part of the Hind Drain (along the south side of McMurchy Line). He also referenced the extent of the trees along the course of the lower portion of the Hind Drain from McMurchy Line, north to the outlet of the drain. He confirmed the existence of a private 6” diameter clay tile on his property that discharges into the Hind Drain. He stated that this tile is quite deep and does not provide effective surface water outlet to the property.

John referenced a plan provided to him by Spriet at the Court of Revision which purported to identify the changes in the limits of the watershed in the 2018 Report on the Schaeken and Ayers Properties relative to the watershed shown in the 1968 report. He claimed that this plan does not accurately identify the location of the private tile shown on his property nor does it accurately reflect the watershed limits in general.

John referred to a previous decision of the Drainage Tribunal on a Spriet report that included a discussion on the application of various runoff factors related to various land uses. He accepted that the runoff factor that may apply to severed residential lots such as the Ayers Property is higher than agricultural land but admitted that he could not find any reference to what runoff factor was applied in this case.

At the onsite meeting, John confirmed that his tile outlet was plugged and that the upper reach of the Hind Drain along the south side of McMurchy Line was in good condition and did not require repair or replacement. He opposed the suggestion by the Engineer to construct a new drain along this reach on the private property adjacent to the south limit of the road. He confirmed that this argument was successful as the report only recommended improvements to the lower reach of the drain north of McMurchy Line.

John referenced the fact that the original report from 1968 made no mention of tree removal nor made any allowances for trees. He expressed the belief that there were no trees along the alignment of the Drain at that time. It was his opinion that the trees have been left to grow by the property owner who should now be responsible for the cost to remove them.

In cross examination, John confirmed his belief that the original Hind Drain was constructed with open joint clay or concrete tile. He could not provide any evidence as to the extent of the obstruction of this Drain from tree roots, if any. When questioned regarding the allowances provided to the Hind Property under Section 29 and Section 30 in the report, he confirmed that he has no objection to the allowances provided in the report.

John confirmed that his Section 48 appeal does not relate specifically to the allowances but rather the compensation or favourable considerations given to Hind in the Report.

The compensation issues he identified were:

Hind was not assessed for Benefit for the removal of the trees that they permitted to grow on the alignment of the drain.
The removal of the trees will provide additional farmable area on the Hind property to the direct benefit of this property.
Hardwood trees continue to be allowed which may threaten the function of drain in the future.
Concrete tile are specified on the Hind property as opposed to the use of solid, jointed, plastic tile to prevent damage from tree roots.

Michael Schaeken – Witness - Evidence re: Section 48 (c) appeal

Michael confirmed that he was aware of the existence of a private tile drain on the Schaeken Property that was referenced by John in his testimony. He did observe the plug in their private tile main outlet into the catch basin on the Hind Drain. He stated that he was not aware that there was a municipal drain in the trees north of the road.

Based on his observations, he expressed the opinion that the surface water drainage from the rear of the Ayers Property flowed south and then southwest to end up in the Hind Drain. As a result, the watershed boundary as shown in the Spriet report was incorrect. However, he stated that he has no topographical elevations that would confirm the limits of the watershed.

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

John Spriet confirmed that Spriet Associates was appointed by the Municipality of West Elgin to prepare a report for the repair and improvement of the Hind Drain under Section 78 of the Act. Spriet stated that allowances under Section 29 and Section 30 were provided in the report to those property owners impacted by the works. It was his opinion that the allowances provided in the report were fair and reasonable.

Spriet also stated that he observed several sink holes along the alignment of the tile in the Hind Property. It was his conclusion that the original tile had failed and it required total reconstruction. He also noted extensive tree growth along the alignment of the existing tile. Consequently, he confirmed that the new tile would be constructed on an alignment that was approximately 15 m parallel to, and south of, the existing alignment in open farmland.

Spriet confirmed that the report recommended the use and installation of concrete tile with wrapped joints. He stated that this product would be more economical than plastic, was a standard in the industry, and based on the depth and alignment recommended, would not be impacted by the hardwood trees left after the brushing operations.

Spriet led his evidence related to the Section 54 appeal by pointing out a minor error in the Assessment for Construction included in the report. In the part of the summary titled Main Drain – Open Portion, he pointed out that the ‘Hectares Affected’ related to Roll No. 08-003 (G. Hind) is incorrectly shown as 2.1 as opposed to the correct value of 2.4. He asked that the order related to this appeal direct that this value and the subsequent related outlet assessments be corrected.

Spriet confirmed that he applied a ‘Todgham Method’ to develop the assessments on this drain. He described the Benefit/Outlet cost splits applied to the cost of various defined sections of the work and confirmed that runoff factors were applied in the development of the outlet assessment. He stated that the runoff factor applied to the Ayers Property was 1.25 as compared to a standard for agricultural lands of 1.0 as a result of impervious areas within the watershed on this property. He stated that this property could only be assessed for outlet liability based on the location of the property in relation to the work on the Drain. He also confirmed that the watershed limits on the Ayers property and the Schaeken Property were confirmed in the field by a topographic survey. He acknowledged that the watershed as defined in this report was slightly different than that shown in the 1968 report but was confident that it is correct.

Regarding the growth of brush on or adjacent to a drainage works, it was Spriet’s opinion that it was not the responsibility of the property owner to cut or control the brush but rather the responsibility of the Municipality as a work of maintenance on the drain under Section 76 of the Act. When questioned regarding the application of Section 80 or Section 82 against property owners who would allow brush to obstruct municipal drains on their property, he expressed the view that the property owners would not be responsible under these particular sections in this case. He referenced Section 81 in support of that position.

John Schaeken – Appellant – Evidence re: Section 54 appeal

John expressed concern about the methodology of developing the limits of the watershed using only a GPS topographical survey. He expressed the view that additional tile drainage could be directed through a watershed boundary. In this case, he said that to rely solely on a GPS topographic survey to define the watershed was simply wrong. He further claimed that the plan provided by the Engineer at the Court of Revision that depicts the changes in the watershed as shown in the 1968 and 2018 reports were also incorrect.

Based on the evidence of the Engineer, he understood that a runoff coefficient of 1.25 was used by the Engineer in the development of the outlet assessment against the Ayers Property. He expressed the opinion that this value was much too low. It was his opinion that this value should be at least 2.0, although no supporting evidence was provided to support that value. He also expressed the opinion that the Benefit assessment levied against the Hind Property was much too low although no alternative values or supporting evidence was provided.

Michael Schaeken – Witness - Evidence re: Section 54 appeal

Michael drew comparisons as between the defined area affected as shown in the 1968 report and the current Report. He questioned the accuracy of that shown in the 2018 Report.

Tribunal’s Findings

Section 48(c) Appeal:

Although an appeal was filed under Section 48(c), no evidence was brought to dispute the values of the allowances as shown in the report. In fact, in examination, John agreed with the values of all of the allowances. Consequently, the Tribunal was satisfied that the allowances as shown in the report are correct and this part of the appeal is denied.

John also gave evidence on a number of other issues not specifically related to Section 48(c) but related to the design of the drainage works. Although he disagreed with the limits of the watershed shown on the plan and confirmed in the field by Spriet, he offered no measured field data to dispute that of Spriet. The Tribunal accepts the evidence of Spriet.

John claimed that Hind should have been penalized for allowing the trees to grow in close proximity to the tile; that the removal of these trees will enhance the value of their lands; that leaving the hardwood trees will threaten the function of the drain; and that closed joint plastic tile should recommended. In his evidence, the Engineer confirmed that property owners are not specifically held liable for tree growth along drains; the removal of the trees is a necessary function to permit the construction; the hardwood trees to be left will not significantly impact the operation of the drain; and that concrete tile are an acceptable, economic, choice in this application. The Tribunal accepts the evidence of Spriet.

Section 54 Appeal:

The Schaeken appeal relates only to the relative assessments shown against the Ayers and Schaeken properties. Spriet confirmed that a field investigation was carried out and a GPS topographic survey confirmed the watershed and that this new watershed differed somewhat from that shown in the 1968 report. The relative assessments were developed based on that data. The Appellant brought no field survey data or topographic mapping to dispute the Spriet data. The limits of the watershed could not accurately be determined from the photos offered as evidence. The Tribunal accepts the watershed limits as developed by Spriet and shown in the Report.

Spriet offered convincing evidence regarding the runoff co-efficient applied to the development of the equivalent area and hence the assessment against the Ayers Property. Roof areas, driveways and open grassed areas were properly weighted with respect to potential runoff. Although the Appellant requested that the runoff co-efficient of this property be doubled, no calculations that would support that change were provided. The Tribunal accepts the evidence of Spriet in this matter.

Order of the Tribunal

Therefore, the Tribunal Orders as follows:

That the Engineer modify ‘Schedule C – Assessment for Construction’ from the report to correct the value of the ‘Hectares Affected’ as shown against Roll No. 08-003 (G. Hind) from 2.1 to 2.4, and modify all assessments accordingly. The Municipality shall include these revised assessments in a revised bylaw. The revised bylaw shall not be brought before Council or the Court of Revision.
That the appeal of John Schaeken under Section 48 of the Act be dismissed.
That the appeal of John Schaeken under Section 54 of the Act be dismissed.
The non-administrative costs of the Municipality incurred with respect to this appeal shall form part of the cost of the drainage works and such costs shall include the Engineer’s fees and expenses for the preparation and attendance at the Tribunal hearing as well as the modification to the Assessment Schedule as ordered.
There shall be no other Order as to costs. All parties shall be responsible for their own costs.

Dated at Tecumseh, Ontario this 13th day of December, 2018.