Agriculture, Food and Rural Affairs Appeal Tribunal
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
1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL: Krause-Piquette Drain (RE) Municipality of West Nipissing
Krause-Piquette Drain (RE)
STATUTE: Drainage Act
HEARING: October 18, 2017 and January 30, 2018
DATE OF DECISION: February 28, 2018
014Krause-Piquette17
NEUTRAL CITATION: 2018ONAFRAAT03
KRAUSE-PIQUETTE DRAIN Municipality of West Nipissing
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 Daniel Leroux and 1929895 Ontario Inc. under sections 48(1) and 54(1) of the Drainage Act with respect to the Krause-Piquette Drain, in the Municipality of West Nipissing, Sturgeon Falls, Ontario.
Before: Patricia Meehan, Vice-Chair, Andrew McBride, Vice-Chair and Ron O’Connor, Member
Appearances: Daniel Leroux, Appellant Neal Morris, P. Eng., Engineer who prepared the Report Benjamin Krause, Witness for the Respondent Mihaela Bojanska, Landowner Melanie Ducharme, Clerk, Witness for the Respondent
DECISION OF THE TRIBUNAL
Background
The Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) held a hearing in the Municipality of West Nipissing on October 18, 2017 and January 30, 2018 to hear appeals under Sections 48 and 54 of the Drainage Act (“Act”) with respect to the Krause-Piquette Drain (the “Krause-Piquette”). The engineer’s report, (“Report”) dated January 31, 2017 for the Krause-Piquette Drain was prepared by K. Smart Associates Limited and submitted by Mr. Neal Morris P. Eng., (“Engineer”).
Melanie Ducharme, Clerk of the Municipality of West Nipissing 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. Ms. Mihaela Bojanska, a landowner within the drainage area, requested and was made party to the appeal filed.
The Municipality of West Nipissing filed Affidavits of Service, dated October 11, 2017 and January 29, 2018, as proof that all parties had been served with the Notice of Hearing and the Notice of Continuation of Hearing.
Overview
This drainage area is located approximately 23 kilometres west of the Town of Sturgeon Falls in the Canadian Shield and consists of small Ouellette clay loam soil deposits in and around bedrock outcroppings that are generally forested. This soil is described as having poor natural drainage, level topography and generally free of stones. Due to the poor natural drainage, it is rated as Class 3 for agricultural purposes but, when it is drained, it can produce good crops.
While the entire watershed area is very large, at 1371 hectares or 3388 acres, the portion of it that is the subject of this Report is located in the northwest part of Lot 3, the north half of Lot 4 and the northeast part of Lot 5, all in Concession 2 of the Geographic Township of Kirkpatrick, now in the Municipality of West Nipissing. Within these four properties, there are approximately 87 hectares or 216 acres of cleared Ouellette clay loam soil that are used for agricultural purposes and will benefit from obtaining an adequate outlet for underdrainage.
The natural watercourse that passes through Lots 3 and 4 is known as Riberdy Creek and flows generally in a southeasterly direction with many small meanders. After implementation of a 1982 report prepared under section 123 of the Act, a significant portion of the Creek through Lot 4 was excavated, with some minor straightening, and provided an outlet for two branch drains, known as A and B, that drained parts of Lots 4 and 5. This drainage scheme was named the Piquette Drain, presumably after the owner of Lot 5, G. Piquette. The work on the main drain, Riberdy Creek, extended downstream to about 200 metres from the Lot 3 – 4 property line. Unfortunately, that drainage system has had little to no maintenance since that original construction. There are three other section 123 drains in Lot 3 downstream of this subject area and two more upstream in Concession 3.
In the latter half of 2015, two separate petitions under section 4 of the Act were submitted to the Municipality, one by the owners of Lot 3, G. and N. Piquette, and the other by the owner of the east part of Lot 5, B. Krause. Both of these owners are growing cash crops on their cleared land and require improved outlet to allow for proper drainage of their lands. In October 2015, Council appointed K. Smart Associates Limited to prepare one report for these two petitions.
The Appellant, Mr. Daniel Leroux, owns Lot 4 located between the two petitioning properties. Mr. Leroux does not cash crop his property but grows and harvests hay on the approximate 53 hectares (131 acres) of cleared land on his property. Mr. Leroux has appealed the proposed project under sections 48 and 54 on the Act.
Neal Morris, P. Eng., Engineer who prepared the Report
Mr. Morris advised that the proposed Report will provide improved drainage for the petitioning properties by incorporating and improving the existing open drains in Lots 3, 4 and 5, and extending a branch drain upstream through Lot 3.
Specifically, the Engineer provided the following overview of the proposed works:
Main Drain – The Riberdy Creek, including the portion that was part of the 1982 section 123 report, will be assumed as the Main Drain. It will be an open drain for its entire length with its downstream end extending 423 metres into Lot 3 and its upstream end extending 1,161 metres into the northwest corner of Lot 4. No work is proposed in Lot 3. The section in Lot 4 shall have a bottom-only cleanout with the excavated material being placed on the south side of the drain. A new 1600 mm diameter culvert will be installed at Station 0+196, in the southeast part of Lot 4, as a lane crossing for the Appellant. This culvert has been designed to pass the 5 year design flow and is the largest that can be installed due to the depth of the Drain at this location. A sediment trap will be installed at the Lot 3 – 4 line and riprap will be placed at numerous locations where tributary swales and the three new branches join. The greatest amount of sediment to be excavated appears to be in the middle section of Lot 4 where, at one point, a depth of 600 mm is indicated. A beaver dam is also located in this section and will have to be removed. Any disturbed sideslopes will be seeded. This work will provide adequate outlet for the surface drainage system in Lot 4 as well as the three new branches being proposed as part of this Report.
Piquette Branch – The existing open channel in the northeast part of Lot 4 and the northwest part of Lot 3 is proposed to be assumed, deepened and widened as the Piquette Branch, the downstream end of which will be at station 0+457 on the Main Drain. The downstream 419 metres will be in Lot 4, the Appellant’s property, with excavation ranging from zero to 600 mm in depth, with a 1.5 metre bottom width and 2:1 sideslopes. The working space will be on the east and south sides and the excavated material will be levelled there, as well. A new 900 mm culvert will be installed at approximately station 0+226 in the existing lane for the Appellant.
At station 0+419, the Lot 3-4 property line, three tile drain outlets enter the existing ditch but they are all below the existing ditch bottom and require adequate outlet, which is proposed to be provided through Lot 4. At that location, the proposed Branch Drain will bend 90 degrees to the north and run along the west edge of Lot 3 to the Concession Road, known as Piquette Road, where, at station 0+570, an existing 600 mm culvert under the road will convey water into the Branch Drain from the north. Ditch bottom only trimming is proposed in this section with any spoil being levelled on the east side, that is, on the Piquette property.
At station 0+570, the proposed Branch Drain will bend 90 degrees again, this time to the east, and extend along the south side of the road allowance for 310 metres to station 0+880 where it will end. Excavated material will be placed on the south side of the drain, that is, on the Piquette property and two lane culverts will be lowered.
Ditch bank seeding and riprap placement will take place at numerous locations along the length of this Branch.
This Branch will provide the cleared land in the north portion of the northwest quarter of Lot 3, and part of Piquette Road, with an adequate outlet and will control the flow and reduce flooding in the northeast part of Lot 4.
Krause Branch A – This proposed Branch is the existing open channel that was Branch B in the 1982 report and is located generally in the mid part of the northwest half of Lot 4, the Appellant’s property, and the mid part of the northeast half of Lot 5, the Krause property. This channel is the outlet for the 810 metre long tile drain constructed as Branch A after the 1982 report and flows from west to east, from Lot 5 into Lot 4, joining the Main Drain at station 0+904, in the middle of the northwest part of Lot 4.
The length of the existing channel on Lot 4 is 237 metres and it will be cleaned out to a 1.5 metre bottom width and 2H:1V sideslopes, with the working space and spoil levelling on the south side, more than half of which is adjacent to a bedrock outcropping. The Engineer noted that his Report indicates the north side and he requested that the Tribunal correct this error in its Decision. In this section on Lot 4, the depth of material to be excavated varies from 150 mm to 600 mm. In addition, an existing lane culvert will be lowered, riprap will be placed at surface water inlets, ditch banks will be seeded and medium brushing will be done.
The length of existing channel on Lot 5 is 221 metres and, similarly, it will be cleaned out to a 1.5 metre bottom width and 2H:1V sideslopes, with the working space and spoil levelling on the south side, some of which is adjacent to a bedrock outcropping. Here also, the Engineer noted that his Report indicates the north side and he requested that the Tribunal correct this error in its Decision. In this section on Lot 5, the depth of material to be excavated varies from 300 mm to 1000 mm. In addition, an existing lane culvert will be replaced, riprap will be placed at surface water inlets and at the existing tile drain outlet, and ditch banks will be seeded.
This Branch will provide the cleared land in the middle portion of the east half of Lot 5 with an adequate outlet and will control the flow and reduce flooding in Lot 4.
Krause Branch B – This proposed Branch is an existing open channel in the extreme northwest part of Lot 4, the Appellant’s property, plus an existing, shallow open channel or swale running northwesterly across the full width of the northeast part of Lot 5, the Krause property, extending to Piquette Road.
The length of the existing channel on Lot 4 is 118 metres and it will be cleaned out to a 1.0 metre bottom width and 2H:1V sideslopes, with the working space and spoil levelling on the north side. The depth of material to be excavated varies from 450 mm to 1200 mm. In addition, an existing lane culvert will be replaced, riprap will be placed at surface water inlets and ditch banks will be seeded.
The length of the existing deeper channel on Lot 5 is 132 metres and, similarly, it will be cleaned out to a 1.0 metre bottom width, 2H:1V sideslopes, with the depth of excavation ranging from 700 mm to 1200 mm, with the working space and spoil levelling on the north side. From that point upstream, a 350 mm diameter concrete tile, with a 375 mm outlet pipe, will be installed, terminating in a ditch inlet catchbasin in the south roadside ditch, where a road cross-culvert conducts water from the north. Also in this upstream section, the existing channel will be filled and graded as a grassed waterway, with a 1.0 metre bottom, 8H:1V sideslopes, slope seeding and removal of an existing lane culvert.
This Branch will provide the cleared land in the northern part of the east half of Lot 5 with and adequate outlet and will control the flow and reduce flooding in Lot 4.
Total Estimated Cost – Mr. Morris referred the Tribunal and the parties to his Report wherein the estimated cost of the project is provided in detail.
In summary, the estimated costs are:
Construction $121,000
Engineering to prepare Report and attend 2 meetings $ 33,000
(Tribunal Hearings excluded)
Construction Supervision $ 23,000
Administration Permits, printing, interest, HST $ 9,935
Allowances $ 13,700
TOTAL ESTIMATED COST $ 200,635
This total cost has been allocated to the various parts of the project as follows:
Main Drain $ 61,165
Krause Branch A $ 32,730
Krause Branch B $ 49,565
Piquette Branch $ 57,175
TOTAL PROJECT $200,635
Allowances – Mr. Morris directed the attention of the Tribunal and the parties to the section in his Report where his calculations of the allowances provided were explained in detail. He advised that the Section 29 allowances for land used for the drains were based on an average of the recent assessed land values from the municipal records at $1,300/hectare ($526/acre) for cleared agricultural land and $650/hectare ($263/acre) for bush and lowland. He further advised that the allowances provided for construction damage to lands and crops and for six metre-wide access routes under section 30 were calculated based on a 3-year average of the latest available crop statistics and were determined to be $1,480/hectare ($599/acre) for grains and hay, and $740/hectare ($299/acre) for bush and lowland. The damage allowance is compensation for both the immediate crop damage in the year of construction plus reduced productivity of the land for several years thereafter. All of these allowance calculations were detailed in a table in the Report.
Assessments – Mr. Morris directed the attention of the Tribunal and the parties to the section in his Report where his calculations of assessments were explained in some detail. He advised that he had used a modified Todgham Method allowing for various land uses and breaking the different parts of the project into intervals and dividing the costs per interval into benefit and outlet. These assessments are further detailed in Appendix A and Schedule A of the Report and the assessments for future maintenance are described in Schedule B.
Mr. Morris also directed the Tribunal and the parties to the Special Benefit notation in the Report which mentions that if a landowner elects to have the spoil that is to be leveled on his property hauled to a different location, that property will be assessed any extra cost resulting therefrom and that extra cost will not be eligible for grant.
Daniel Leroux, Appellant
In his personal name, Mr. Leroux owns the northeast quarter of Lot 4, most of which is cleared agricultural land used for growing hay, and all 32.7 hectares of that property are assessed into this Drain. Also in his personal name, Mr. Leroux owns the south half of Lot 4, all but 1.8 hectares of which are bush, and 34.5 hectares of that property are assessed into the Drain. A numbered company, 1929895 Ontario Inc. of which Mr. Leroux is a shareholder, owns the northwest quarter of Lot 4, approximately two thirds of which is cleared agricultural land used for growing hay, and all 32.2 hectares of that property are assessed into this Drain.
Mr. Leroux appealed his assessments to the Court of Revision and was successful in having them lowered somewhat on Krause Branch A, Krause Branch B and the Piquette Branch. The assessments against his properties now are summarized below.
Property Main Krause Branch A Krause Branch B Piquette Branch Total Assessments Net Assessments
S ½ Lot 4 352 141 0 0 493 493
NE ¼ Lot 4 10,451 0 0 17,474 27,925 5,008
NW ¼ Lot 4 8,032 3,636 2,354 0 14,022 774
Totals 18,835 3,777 2,354 17,474 42,440 6,275
Mr. Leroux presented the following concerns regarding this project:
Piquette Branch – It is his opinion that this Branch should not be taken through his property as the natural flow from the northwest corner of Lot 3 is to the northwest, through Piquette Road and across Lot 4 in Concession 3. Additionally, unless the route is changed as he suggests, the assessment to his property is excessive as his property does not need this drain – it is proposed to be constructed solely as an outlet for Lot 3.
Upon questioning, Mr. Leroux advised that he did not have any topographical survey information to support his opinion regarding the alternate alignment of this proposed Branch.
Krause Branch B – It is his opinion that this Branch should not be taken through his property but rather it should be built along the south side of Piquette Road, in an easterly direction, to connect to Riberdy Creek where it crosses the Road, at the north end of his property.
Upon questioning, Mr. Leroux advised that he did not have any topographical survey information to support his opinion regarding the alternate alignment of this proposed Branch.
Krause Branch A – Mr. Leroux did not have any concerns regarding this proposed drain.
Main Drain – It is his opinion that the Main Drain through his property does not need to be deepened. Excavation of this channel will disturb the aquatic life in the creek. His cleared land is drained by many surface drainage swales that outlet to the creek and spreading the spoil from the excavation along the side of the Drain will result in these being blocked which will be very detrimental to his properties. One of the rock outcroppings on his property, which is 3 acres in area, was assessed as agricultural land at a factor of 1.0, whereas all the others were assessed as bush, at a factor of 0.5. The Appellant requests that this 3 acre outcropping also be assessed as bush.
Red Oak Saplings – In 2004 he purchased 100 very small red oak saplings and planted them alongside the proposed Piquette Branch and along the Main Drain. These small trees may be killed or damaged by the proposed work. He would prefer that they not be killed or damaged but, if they are, he wishes to be compensated for them.
Upon questioning, Mr. Leroux advised that these trees were planted on the north and west sides of the proposed Piquette Branch and on the west side of his private drain in the southeast part of his property. Also, he advised that he does not know from which side of the proposed Branch the work will be done or upon which side the spoil will be levelled.
Damage Allowance for Fence – Mr. Leroux advised that he has a fence along the north and west sides of the proposed Piquette Branch and, although the Court of Revision did take this into consideration in its decision, he feels he still has not been adequately compensated for having to rebuild it after the work has been completed. To support this claim, he provided a cost estimate of $9,500 from a fencing company from Sudbury that was made exhibit #9.
Again, upon questioning, Mr. Leroux advised that he does not know from which side of the proposed Branch the work will be done or upon which the spoil will be levelled.
Land Allowances – Mr. Leroux expressed dissatisfaction with the allowances that his properties have been provided under section 29. In support of this, he provided the July 9, 2015 Amended Statement of Adjustments of his purchase of the northwest part of Lot 4 from his parents, which indicated that he paid $100,000 for the property. In addition, he provided the assessment notice for the northeast quarter of Lot 4 which indicated that the 2016 total assessed value of that property was $264,000. He also provided the assessment notice for the northwest quarter of Lot 4 which indicated that the 2016 total assessed value of that property was $75,000. Based on these exhibits, Mr. Leroux submitted that a greater value per hectare than that used by the Engineer ought to be considered for these allowances, although no specific value was proposed.
New Lane Culvert on Main Drain in NE Part of Lot 4 – Mr. Leroux expressed his concern that the new laneway culvert proposed to be installed on the Main Drain in the downstream part of his property may not be large enough.
When asked if he was aware that the proposed 1600 mm diameter culvert was the largest that can be installed due to the depth of the Drain at this location, Mr. Leroux indicated he was not. The possibility of installing two large diameter culverts in this laneway was suggested by the Engineer; however, when asked if he was willing to pay 50% of the cost to install a second culvert, Mr. Leroux indicated that he was not.
When asked if he was aware of the Special Benefit notation in the Report which mentions that if a landowner elects to have the spoil that is to be leveled on his property hauled to a different location, that property will be assessed any extra cost resulting therefrom and those extra costs will not be eligible for grant, Mr. Leroux indicated that he was not. When asked if he was aware that spoil levelling, as specified in this Report, was what has recently taken place on other open drains in the immediate area and that the landowners on those drains were able to successfully crop those lands, Mr. Leroux indicated that he was not.
Neal Morris, P. Eng., Engineer who prepared the Report
In reply to Mr. Leroux’s concerns that were not addressed by cross-examination, Mr. Morris provided the following evidence:
Piquette Branch – Mr. Morris advised that he had investigated Mr. Leroux’s claim that this Branch should run to the northwest and found that such a realignment is not possible as the land actually rises at least one metre in that direction and that the flow in the road culvert is from north to south.
Krause Branch B – Mr. Morris advised that he had investigated Mr. Leroux’s claim that this Branch should run along the south side of Piquette Road to Riberdy Creek and found that such a realignment is not possible as the Road actually rises in that direction, beside the rock outcropping across from the Krause buildings. Furthermore, the proposed alignment follows an existing low run for its entire length which has a fall of 1.6 metres over a length of 565 metres and is the natural flow route.
Main Drain – In reply to Mr. Leroux’s suggestion that the Main Drain is proposed to be deepened, Mr. Morris again drew attention to the fact that most of the Main Drain was excavated after the 1982 report and, as a result, none of it needs to be deepened now. Referring to the Main Drain profile, Mr. Morris pointed out that only three or four sediment and vegetation deposits and one beaver dam are being removed down to the previous grade line.
With respect to Mr. Leroux’s concerns about the aquatic life in the Drain, Mr. Morris advised that he discussed this matter with the relevant environmental agencies and, as a result, the excavation work will be done in two phases, half the total length at one time and the other half six months later, which is expected to adequately protect the aquatic life and the habitat.
In regard to the spreading of the spoil alongside the various open drains and Mr. Leroux’s concern that his many surface drainage swales that outlet to the Main Drain and Branches will be filled in and prevent drainage of his properties, Mr. Morris referred all parties to his specification F.1.3 D) that states “No excavated material shall be placed in tributary drains, depressions, or low areas which direct or channel water into the ditch so that no water will be trapped behind the spoil bank. Swales may be required through the levelled or piled spoil at approximately 60 m intervals to avoid trapping water behind the spoil bank.” Mr. Morris assured Mr. Leroux that this specification will be enforced on his property such that his surface drainage system will not be adversely affected.
In response to Mr. Leroux’s contention that the 3-acre rock outcropping on his property was assessed as agricultural land at a factor of 1.0, whereas all the others were assessed as bush, at a factor of 0.5, Mr. Morris explained that this is correct and was done because that particular outcropping is barren, that is, it does not have any tree cover, as do all the others, and, accordingly, its flow contribution to the drain is higher than the other outcroppings that are forested and it should be assessed at a greater rate.
Red Oak Saplings and Fence – Mr. Morris reiterated Mr. Leroux’s evidence that the fence and some of the oak trees exist on the north and west sides of the proposed Piquette Branch. Mr. Morris directed attention to page 8 and drawing 9 of his Report which specify that the work is to be done from south and east sides and the spoil is to be levelled on those sides, as well. Accordingly, the trees and the fence will not be disturbed by the proposed work on this Branch. Regarding the remainder of the oak trees, Mr. Morris advised that he understood Mr. Leroux’s evidence to be that they are on the west side of Mr. Leroux’s south private ditch and, since no work is proposed there under the Report, they will not be harmed.
Land Allowances – Mr. Morris directed attention to the top of page 13 of his Report wherein he states “The allowance for right-of-way is based on fair market value for the land taken or to be used. A review of the assessed value for the properties was obtained from the recent municipal assessment roll.” Accordingly, it is his opinion that the land values he used are fair and reasonable for all of the properties affected.
New Lane Culvert on Main Drain in NE Part of Lot 4 – Mr. Morris stated that he felt his cross-examination of Mr. Leroux addressed this issue.
Correcting Side of Drain for Working Space and Spoil Levelling on Krause Branch A – During his presentation, Mr. Morris realized that he specified the working space and spoil levelling for the Krause Branch A incorrectly in his Report and asked the Tribunal to correct this in its decision. He advised that the working space and spoil levelling for the Krause Branch A should be on the south side of the Drain and requested that this error be corrected on page 7 and drawing 8 of his Report.
Benjamin Krause, Witness for the Respondent
Mr. Morris called Mr. Benjamin Krause as a witness for the Municipality. Mr. Krause advised that he makes his living as a farmer and an electrician, but farming is a very significant part of his life. With the exception of a small holding, he and his wife own the part of Lot 5, Concession 2 that is involved in this drainage project. They are the westerly neighbours of Mr. Leroux. Between the land they own and rent, they farm 1200 acres, 500 acres of which is tile drained. They grow canola, oats, soy beans and hay. The tile drained land produces much better crops.
Mr. Krause stated that all of their land in the watershed of Branch A is drained but the north part of their farm, in the Branch B watershed, is not. Fifteen acres there require tile drainage. 2017 was a wet year and they had 20 acres of canola flooded and 10 acres that was just too wet to plant. He also rents the Piquette land in Lot 3 and it also was too wet for good production. Crop production was definitely reduced in 2017 due to wetness. He has lost thousands of dollars of crop production over the last four years.
He and Mrs. Krause purchased their property in January 2014 and, in August of 2014, he approached Mr. Leroux with a Mutual Agreement Drain proposal whereby Mr. and Mrs. Krause would be entirely responsible to build and pay for the two drains that are now proposed as Branches A and B. The municipal clerk, Mrs. Ducharme, assisted Mr. Krause in preparing the actual agreement in accordance with section 2 of the Act. Mr. Leroux did not agree to sign the Mutual Agreement Drain proposal, which left the Mr. and Mrs. Krause with no alternative but to petition for a municipal drain under section 4 of the Act, which they did in the summer of 2015. Mr. Krause believes that Mr. Leroux has been opposed to this drainage project since the process started and has raised new issues every time he has been given a chance. Mr. and Mrs. Krause would like this situation resolved as soon as possible so that they can obtain the drainage that they need.
Melanie Ducharme, Witness for the Respondent
Mrs. Ducharme confirmed that she is the Clerk of the Municipality and that she assisted Mr. Krause in preparing the Mutual Agreement Drain form in August 2014.
Mihaela Bojanska, Assessed Landowner
Ms. Bojanska is the owner of the property known as 889 Piquette Road which is in the upstream area assessed for this proposed project. She received a letter from the Municipality advising that she has to pay about $230 toward this project. She does not think that it is fair that she has to pay anything for this project. She has had to take time off work to attend meetings about the project and has found the whole process quite stressful. She thinks this process creates bad neighbours. She wants her objections to this process on the record and the Tribunal did note those concerns and objections.
Findings
With respect to the issues of appeal raised by Mr. Leroux, the findings of the Tribunal are as follows:
Piquette Branch Realignment – As the Appellant did not provide any contrary engineering evidence to support his claim that this Branch should be realigned, his section 48 appeal in this regard shall be dismissed.
Piquette Branch Assessments – Upon analysis, it appears that the assessments to the Appellant’s property for the downstream section of this proposed Branch are excessive, as the Drain is proposed mainly as an adequate outlet for Piquettes’ Lot 3 and the Municipal road, since the Leroux property already has adequate outlet to the Main Drain. Accordingly, the Tribunal will grant the Appellant’s section 54 appeal in this regard and will order that the assessments against the Appellant’s affected property be lowered.
Krause Branch B Realignment - As the Appellant did not provide any contrary engineering evidence to support his claim that this Branch should be realigned, his section 48 appeal in this regard shall be dismissed.
Main Drain Excavation and Environmental Concerns – Based on the evidence of the Engineer and after reviewing the profile, the Tribunal is satisfied that the bottom-only cleanout specified in the Report should be undertaken on the Main Drain. Based on the Engineer’s evidence that he has been in contact with both the federal Department of Fisheries and Oceans and the provincial Ministry of Natural Resources and Forestry, and that the bottom-only cleanout work will be undertaken in two phases, six months apart, the Tribunal is satisfied that any environmental issues with the Main Drain will be adequately addressed. Accordingly, the section 48 appeal in this regard shall be dismissed.
Spoil Spreading along Main Drain – Considering specification F.1.3 D in the Report and the Engineer’s assurance that it will be enforced everywhere on the Leroux property, the Tribunal is satisfied that the Appellant’s surface drainage system should not be adversely affected by the proposed spoil spreading. Accordingly, the section 48 appeal in this regard shall be dismissed.
Assessment of 3-Acre Rock Outcropping – Considering the Engineer’s evidence that this particular outcropping differs from the others in that it is barren of trees and should therefore be assessed at an equivalency factor of 1.0 rather than 0.5, the Tribunal is satisfied that this assessment is fair and reasonable. Accordingly, the section 54 appeal in this regard shall be dismissed.
Red Oak Saplings and Fence – Based on the Engineer’s evidence that neither the trees nor the fence will be damaged by the proposed work, the section 48 appeal in this regard shall be dismissed.
Land Allowances – Based on the Engineer’s evidence as to how he determined the fair market value used for the allowances provided for land taken or used for the Drains, and the fact that the Appellant did not extrapolate his evidence in this regard, the Tribunal is satisfied that the allowances provided are fair and reasonable. Accordingly, the section 48 appeal in this regard shall be dismissed.
New Lane Culvert on Main Drain in NE Part of Lot 4 – Based on the Engineer’s evidence that the specified culvert is the largest single culvert that can physically be installed at this location on the Drain, and the Appellant’s response in cross-examination that he is not prepared to pay his share of installing a second culvert, the section 48 appeal in this regard shall be dismissed.
However, the Tribunal recommends that the Engineer and the Municipality apply extreme due diligence in negotiating with and supervising the project contractor in this regard should the Appellant, or any other affected landowner, wish to have spoil hauled rather than levelled since, based on the Tribunal’s review of the project, it would seem that the cost of loading and hauling spoil a short distance versus the cost of stripping topsoil, spreading spoil and re-spreading topsoil should not be significantly different.
Correcting Side of Drain for Working Space and Spoil Levelling on Krause Branch A – Based on the Engineer’s request, the Tribunal will order that the working space and spoil levelling for the Krause Branch A Drain shall be on the south side of the Drain and that this specification be corrected on page 7 and drawing 8 of the Report.
Costs of Postponement of October 18, 2017 Hearing – Engineering costs were incurred for the Hearing on October 18, 2017 that was postponed due to the Municipality inadvertently failing to distribute documents and it is the opinion of the Tribunal that those costs should not have to be paid by the assessed lands but rather entirely by the Municipality.
Order of the Tribunal
Considering the above-mentioned findings, the Tribunal thereby makes the following order:
That all of the appeals of Mr. D. Leroux and 1929895 Ontario Inc. under section 48 of the Act are hereby dismissed;
That the Schedule A assessments to property 001-04700, owned by the Appellant, for the Piquette Branch shall be adjusted as follows - Benefit to be reduced from $12,905 to $10,905 - Outlet to be reduced from $4,569 to $2,365 - and that this total reduction of $4,204 shall be assessed on a pro rata basis to the upstream lands and roads;
That the Schedule B Assessments for Future Maintenance to property 001-04700, owned by the Appellant, for the Piquette Branch shall be reduced from $4,499 to $3,250 and from 69.21% to 50.0%, and that the resulting reductions shall be assessed on a pro rata basis to the upstream lands and roads;
That the additional appeals of Mr. D. Leroux and 1929895 Ontario Inc. under section 54 of the Act are hereby dismissed;
That the Engineer’s Report shall be amended to indicate that the working space and spoil levelling for Krause Branch A Drain shall be on the south side of the Drain and the applicable specifications shall be amended on page 7, drawing 8 and anywhere else in the Report that is necessary, and the Engineer shall not charge any fees or expenses for making these amendments;
The Engineer’s fees and expenses associated with the postponed hearing of October 18, 2017 shall be paid entirely by the Municipality, out of general funds, and shall not be charged to the project;
That 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 preparing the Report, as well as the Engineer’s fees and expenses for preparing for and attending only the Tribunal hearing on January 30, 2018; and
There shall be no other Order as to costs and all parties shall be responsible for their own costs.
Dated at Sudbury, Ontario this 28th day of February, 2018.