Agriculture, Food and Rural Affairs
Appeal Tribunal
1Stone Road West, 2nd Floor NW
Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales
1 Stone Road West, 2e étage NW
Guelph, Ontario N1G 4Y2
Tel: (519) 826-3433, Fax: (519) 826-4232
Email: AFRAAT@ontario.ca
Guelph (Ontario) N1G 4Y2
Tél.: (519) 826-3433, Téléc.: (519) 826-4232
Courriel: AFRAAT@ontario.ca
AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL
APPEAL:
AMENDED - Steenstra Water Control Project (RE)
Municipality of Central Huron
AMENDED - Steenstra Water Control Project (RE)
STATUTE:
Drainage Act
HEARING:
May 1 and May 28, 2019
DATE OF DECISION:
June 25, 2019
018Steenstra18
NEUTRAL CITATION:
2019 ONAFRAAT 12
AMENDED - STEENSTRA WATER CONTROL PROJECT
Municipality of Central Huron
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 Kees Van Esveld of Clinton, Ontario under Section 48 of the Drainage Act, with respect to the Steenstra Water Control Project in the Municipality of Central Huron.
Before:
John O’Kane Vice-Chair, Ed Dries, Vice-Chair, and Fred Stulp, Member
Appearances:
Cor Van Gaalen, representative for the appellant
Fred Dutot, witness and representative for the appellant
Kees Van Esveld, Appellant
Dick Steenstra, affected landowner
Patrick J. Kraemer, counsel for the Municipality of Central Huron
Geoff King, Drainage Superintendent for the Municipality of Central Huron
Paul MacIntyre, Certified Engineering Technician, L.E.L. who authored the report
DECISION OF THE TRIBUNAL
Overview
Kees Van Esveld appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”) under section 48 of the Drainage Act (“Act”) about the allocation of $15,000.00 in engineering costs assessed against his property under a June 1, 2018 report (“Report”) by Paul MacIntyre, C.E.T. of R.J. Burnside & Associates Limited.
The Report related to an existing municipal drain known as the Steenstra Drain constructed under a 1974 report and municipal by-law and a request by Kees Van Esveld for improvements of the Steenstra Drain under section 78 of the Act.
Brenda MacIssac, Clerk of the Municipality of Central Huron, performed the duties of Clerk of the Tribunal on May 1 and 28, 2019. The Tribunal issued an order making all landowners assessed on the Steenstra Drain parties to the hearing. Mr. Dick Steenstra, a landowner in the watershed of the Steenstra Drain sought and was granted participant status at the hearing.
As explained in these reasons, Kees Van Esveld’s appeal is allowed in part. $9,000.00 of the $15,000.00 in engineering costs assessed under the Report to Mr. Van Esveld will be allocated and assessed as maintenance costs to the Steenstra Drain under the existing by-law. The $6,000.00 balance of the engineering costs will not be treated as a charge against the Steenstra Drain but will be allocated to be paid out of the general funds of the Municipality of Central Huron.
Background
The Steenstra Drain was constructed under a report dated November 15, 1974 by C.P. Corbett, P.Eng, O.L.S. (“Corbett Report”).
The Steenstra Drain comprises a main drain and four connected branch drains numbered one through four, each servicing different portions of a single watershed to drain subsurface water from predominantly agricultural lands in the watershed. The Steenstra Drain is a closed tile drain system on the lands west of Parr Line Road (Road 31) in Concession 10 and 11. The main drain, which also provides outlet to branches 1 and 2 crosses Parr Line in Lot 38. Branch 3 which also provides outlet to branch 4 crosses Parr Line immediately north of and adjacent to the main drain crossing. Both tile drains discharge into the open portion of the Steenstra Drain which carry the flows within the drain to the south in Concession 12.
According to Geoff King, the Drainage Superintendent for the municipality, there has been no maintenance on the closed tile portions of the Steenstra Drain in the 45 years since the Corbett Report, but there has been clean out maintenance on the open ditch portion.
The Appellant asserted there was a “North” Steenstra Drain and a “South” Steenstra Drain because the drain crosses Road 31 in two pipes. That assertion misunderstands the legal nature of the Steenstra Drain as a creation of a municipal by-law based on the Corbett Report. There is only one Steenstra Drain.
During 2016, the municipality received concerns from landowners in the watershed about private drainage works affecting the Steenstra Drain. The Drainage Superintendent testified that he investigated those concerns and learned that several landowners in the watershed had constructed earthen berms to control surface water flows on their property and installed surface water inlet structures known as Hickinbottom structures and closed tiles connecting with the closed tiles of the Steenstra Drain. The Drainage Superintendent confirmed in evidence those private drainage works connected to the Steenstra Drain were not approved works under the Act.
The evidence of Paul MacIntyre was that the design capacity of Steenstra Drain precluded the acceptance of surface water flows and the result of private landowners connecting surface drainage posed issues for the design operation of the Steenstra Drain. The evidence of Geoff King was that “blow-outs” had been reported on the Steenstra Drain attributed to flows that exceeded the design capacity.
During 2016, Kees Van Esveld and Geoff King met and discussed Mr. Van Esveld’s plans to use berms and Hickinbottom structures to control and direct surface water flows from his farm into the Steenstra Drain. Geoff King recommended that Mr. Van Esveld submit a request for an improvement to the Steenstra Drain under s. 78 of the Act.
Geoff King made that same recommendation to several of the private landowners who had made surface water drainage connections to the Steenstra Drain. However, Mr. Van Esveld was the only landowner who submitted the s. 78 improvement request to the Municipality.
Mr. Van Esveld hired a contractor to excavate the berms and sub-surface connections to control and divert the surface flows on his farm. But the area that his private improvements drained did not form part of the watershed of the Steenstra Drain but drained into the Don Wise Drain, which is a watershed adjacent to the Steenstra Drain. On learning that his private improvement had nothing to do with the Steenstra Drain, Mr. Van Esveld notified the Municipality he wished to withdraw his s. 78 request for improvements to the Steenstra Drain.
At that point, the Municipality had incurred costs associated with the engineering work of Paul MacIntyre which included several meetings with the landowners in the watershed, topographical survey of the proposed drain route, preparation of a watershed plan drawing, preparing a summary report and recommendations to Municipal Council and attending Municipal Council meetings all for the improvement of the Steenstra Drain. At that point, those costs were $9,000.00. With no other landowner prepared to submit a s. 78 request, the Municipality confronted who would be responsible for that $9,000.00.
That issue, and the Municipality’s decision that followed, is the genesis of this appeal.
The evidence revealed that once Mr. Van Esveld withdrew his request for improvement of the Steenstra Drain, Municipal Council, advised by Paul MacIntyre, debated responsibility for that $9,000.00 in costs.
At the request of the Municipal Council, Paul MacIntyre advised that the Municipality could instruct him to prepare a report under s. 40 of the Act that the improvements were “not required” as a mechanism to deal with the $9,000.00 cost issue.
Acting on those instructions, Paul MacIntyre prepared the Report. The Report preparation resulted in additional costs of $6,000.00.
The concluding paragraphs of the Report state:
“In accordance with Section 40 of the Drainage Act, the following shall apply as to the incurred fees and other charges and “by whom they shall be paid”.”
“The entire costs associated with the works to date shall be borne by Cornelis Van Esveld & A. Van Dijk-Van Esveld, owners of Pt. Lot 36, Concession 10 (Roll No. 10-015).”
Discussion and Findings
Geoff King testified that even before Mr. Van Esveld contacted him about building berms and surface flow inlets on his farm, there had been several landowners in the watershed that had connected surface drainage systems into the Steenstra Drain and there had been reports of blow-outs on the drain.
The Report records the information of the County Roads Supervisor that the county road crossings of the Steenstra Drain were in poor condition.
Paul MacIntyre confirmed in his testimony that in his view, the Steenstra Drain should be improved.
Based on that evidence, the panel make these findings of fact:
the existing surface drainage connections were not authorized under the Act;
the existing surface drainage connections and their attendant flows impair the design function of the Steenstra Drain; and
the Steenstra Drain should be improved to ensure the drain can accommodate the surface drainage connections made.
The engineering work completed between the time Mr. Van Esveld submitted his s. 78 request form and his later withdrawal decision was engineering work for the improvement of the Steenstra Drain. Paul MacIntyre agreed in evidence that that engineering work could be utilized in future improvements to the Steenstra Drain.
The panel finds as a fact that the engineering work completed until Mr. Van Esveld’s withdrawal decision is work that:
benefits all landowners in the watershed of the Steenstra Drain; and,
can be utilized as part of future improvements to the Steenstra Drain.
Section 78 of the Act does not require the requisition of a landowner in the watershed to engage the authority of a municipal council. That section provides that if drainage works have been constructed under a by-law passed under the Act, and the municipal council responsible for maintaining and repairing the works “considers it appropriate” to undertake improvements for the “better use, maintenance or repair” of the “works or of land or roads”, the municipality may make those improvements under the report of an engineer.
The Act does not prescribe a requisition form under section 78. No regulation made under the Act prescribes a requisition form under section 78. That stands in contrast to a drainage petition under section 4 of the Act for new drainage works. There is a regulated form for a section 4 petition (Form 1). That regulated form carries the following admonition about costs.
As owners of lands within the above described area requiring drainage, we hereby petition council under subsection 4(1) of the Drainage Act for a drainage works. In accordance with sections 10(4), 43 and 59(1) of the Drainage Act, if names are withdrawn from the petition to the point that it is no longer a valid petition, we acknowledge responsibility for costs.
Besides that admonition, a Form 1 petition has the following warning below the signatures of the petitioners.
There are similar cost responsibility admonitions on the other regulated forms relating to
petitioners’ rights and responsibilities in relation to withdrawing from a Form 1 petition for new drainage works.
The cost responsibilities related to a section 4 petition drain flow from section 43 of the Act. However, there are no similar cost responsibilities in the Act under section 78.
In the panel’s view section 78 is silent about who bears the costs of engineering and improvement work because it relates to an existing drain constructed under an existing by-law that contains an existing apportionment schedule related to construction, maintenance and repairs assessments among the properties in the watershed. In any section 78 drain improvement project, the engineering costs and the construction costs will be apportioned under the existing by-law.
In these circumstances the municipality’s appointed engineering firm concluded that improvements are required to the Steenstra Drain. The municipality’s Drainage Superintendent concluded that improvements on the drain were warranted. However, the evidence reveals that the municipality concluded that the absence of any landowner’s signature on a requisition form controlled the municipality’s decision to move ahead with needed improvements on the Steenstra Drain.
In these circumstances, the municipality conflated the costs issue. At the point where Van Esveld withdrew his request, the municipality could have instructed the Engineer to complete a report that would include the improvements that its own engineering professionals concluded were required. The municipality also had the option at that same point to stop all works on the drain and apportion the $9,000.00 among all properties in the watershed, according to the existing by-law under section 74 of the Act.
The instructions to Paul MacIntyre to prepare a section 40 report were unnecessary and based on a misunderstanding of section 40 of the Act.
Section 40 of the Act is not engaged. The municipality’s direction to Paul MacIntyre to prepare a section 40 report was informed by Paul MacIntyre’s advice to do just that. In these circumstances, that advice was incorrect for two reasons.
The first reason is a misapprehension or misunderstanding of section 40 within the scheme of the Act. Section 40 provides:
40 Where the engineer finds that a drainage works is not required or is impractical, or cannot be constructed under this Act, the engineer shall forthwith file with the clerk of the initiating municipality a report to that effect, stating the reasons therefor, the amount of the engineer’s fees and other charges and by whom they shall be paid, and the clerk shall forthwith send a notice of the filing of such report to all persons who signed the petition and the matter shall not be further proceeded with unless the decision of the engineer is reversed on appeal.
The panel’s conclusions about that wording is that it explicitly refers to a prospective “drainage works” and explicitly refers to a petition for drainage. There is no reference in section 40 to an “existing drainage works”, which are the words used in section 78. Determining the amount and who shall pay the “engineering fees and other charges” under section 40 is only logical when considered with section 43 of the Act and the regulated forms for petition drains that carry an express advisory to petitioners for drainage of their responsibility for costs if they withdraw their names from a petition. There is no interpretive connection between section 40 and section 78. The panel concludes that it was not open to the municipality to direct that a section 40 report be prepared.
The second reason that the advice was incorrect is that Paul MacIntyre had concluded that improvements were required on the Steenstra Drain. There had been unauthorized surface water flow connections and the drain was not designed to accommodate surface water flows. There had been reports of blow-outs on the drain, indicating that the flows in the drain exceeded its design capacity. The county road crossings were in bad repair. Taken collectively, those factors informed Paul MacIntyre’s engineering conclusions that improvements were required. Faced with those engineering conclusions, it defies understanding how Paul MacIntyre and the municipality could believe that a section 40 report could conclude the improvements were “not required”.
The municipality erred in not simply apportioning the initial $9,000.00 among the watershed properties under the existing by-law. The municipality then compounded its error by instructing Paul MacIntyre to prepare a section 40 report which resulted in an additional $6,000.00 in engineering charges.
That second error is the reason the panel concludes those additional charges are solely the responsibility of the general funds of the municipality. The properties in the watershed derive no benefit from that additional work associated with the section 40 report and the panel concludes it would be unfair to apportion that $6,000.00 against the Steenstra Drain.
The original engineering work that amounted to the $9,000.00 in charges continues to be of value to all properties in the watershed, and it is reasonable and fair that the $9,000.00 be assessed against the Steenstra Drain under the existing by-law. Each of the watershed properties will pay their assessed share of that $9,000.00.
On these facts, the panel concludes it would be unreasonable and unfair to saddle one landowner in the watershed with all the attendant engineering costs, simply because that landowner asked for an improvement project “for the better use, maintenance or repair of the drainage works or of lands or roads”.
Order of the Tribunal
Because of the above findings, the Tribunal orders:
The appeal of Kees Van Esveld is allowed, in part.
$9,000.00 of the engineering charges are to be assessed against the Steenstra Drain and apportioned among the properties in the watershed under the assessment schedules of the existing by-law.
$6,000.00 of the engineering charges shall not be assessed against the Steenstra Drain but are ordered to be paid out of the municipality’s general funds.
All parties to this appeal shall be responsible for their own costs of the appeal and there shall be no further order as to costs.
AENDED - Dated at Collingwood, Ontario this 22nd day of July, 2019.