Terrance Evers v The Town of Plympton Wyoming, 2021 ONAFRAAT 15

Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2^nd^ Floor NW

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West, 2^e^ 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:

Terrance Evers v The Town of Plympton Wyoming

Fleming Drain Extension 2020

STATUTE:

Drainage Act

HEARING:

July 29 and July 30, 2021

DATE OF DECISION:

August 11, 2021

008Fleming20

NEUTRAL CITATION:

2021 ONAFRAAT 15

FILE NO.: 008Fleming20

DATE: 2021/08/11

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 Terrance Evers of Camlachie, Ontario under Section 54 of the Drainage Act, with respect to the Fleming Drain Extension 2020 in the Town of Plympton-Wyoming,

AND IN THE MATTER OF an electronic hearing held pursuant to Rule 18 of the Tribunal’s Rules of Procedure,

BETWEEN:

Terrance Evers Appellant – and – The Town of Plympton-Wyoming Respondent

Self-represented

Self-represented

HEARD: June 29, and July 30, 2021

Before: Christine Greydanus, Vice-Chair; Andrew McBride, Vice-Chair; Peter Koroneos, Member.

Appearances:

Terrence Evers, Appellant

William Bartlett, Engineer who wrote the Report

Elio Comello, affected landowner

DECISION

1This appeal was heard June 29 and July 30, 2021 by Zoom virtual meeting and telephone connection.

Preliminary Matter

2Prior to the hearing, the Tribunal issued an Order making all landowners assessed in the Engineer’s Report parties to this hearing. The Municipality filed Affidavits of Service with the Tribunal as proof that all parties had been served with the Notice of Hearing.

3Prior to the hearing, the Tribunal issued an Order allowing for the Appellant, Terrance Evers, to give his evidence in written format as he was only able to attend the hearing by way of telephone connection.

4Mr. Evers presented a doctor’s letter stating that he was only able to attend the hearing if he did not leave his house. As Mr. Evers was not able to participate in a virtual hearing, he requested that the hearing be delayed indefinitely until he was able to attend a hearing in person. The Tribunal found that it could proceed and provide Mr. Evers with a fair hearing by having him participate via telephone.

5Prior to the hearing continuing on July 30, 2021, the Tribunal was made aware that there was an unauthorized recording made of the June 29, 2021 hearing proceedings. The Tribunal did not grant permission for a recording to be made and, therefore, Orders that all unauthorized recordings be destroyed.

Background

6The Engineer’s Report, dated September 15, 2020, was prepared pursuant to Section 78(1) of the Drainage Act (“the Act”) for the repair and improvement of the Fleming Drain. The current Fleming Drain was constructed in 1971 and consists of an upper tiled portion and a lower open drain, serving a total watershed area of approximately 100 hectares. The open drain terminates at the south side of Egremont Road. The water flow then passes through a road culvert into a natural watercourse on the north side of the road.

7The natural water course flows northerly approximately 70 meters to its junction with Errol Creek, approximately 200 metres upstream of the outlet of the Creek into Lake Huron. The natural watercourse is located in a ravine which varies in size from approximately 3 metres in depth and 13 metres in top width at Egremont Road to 9 metres in depth and 30 metres in top width at Errol Creek.

8Section 15 of the Act requires that every drainage works constructed under the Act shall be continued to a sufficient outlet. Currently, the landowners on the west side of the ravine have complained that erosion in the ravine is excessive and have requested that the erosion be controlled.

9Section 78(1) of the Act provides for the improvement of an existing drainage works, including the extension of the drainage works to a sufficient outlet, upon the report of an engineer. The Council of the Town of Plympton-Wyoming considered the landowners’ request for improvement of the drain at its regular meeting on January 31, 2018 and instructed North West Consulting to prepare the report.

10The Appellant owns a house and a lot on the east side of the ravine, and the runoff from some of this lot will outlet to the Fleming Drain Extension. The Appellant disagrees with his assessment for Special Benefit of $10,095 and argued that he should be assessed $0.00 for Special Benefit and that the neighbouring property, owned jointly by E. & L. Comello and M. & W. Lennox, or the upstream lands, should have his $10,095 distributed to their assessment.

11The Tribunal agrees in part with the Appellant and Orders that, among other things, there be a reduction to the Appellant’s Special Benefit assessment of 50% and that the balance be assessed as Outlet and Injuring Liability, pro rata, to all the lands and roads upstream of Egremont Road.

Issue

12Does the Appellant receive a Special Benefit from the Fleming Drain Extension and, if so, how much should his property be assessed?

Evidence

William Bartlett, P. Eng., North West Consulting for the Respondent, Town of Plympton-Wyoming

13Mr. Bartlett testified on behalf of the Town and presented the Drainage Report.

14Mr. Bartlett stated that, in 2001, Mr. Evers complained to the Town about erosion in the ravine at the end of the Fleming drain. An informal onsite meeting was held. At the time, Mr. Bartlett reported that the instability of the east bank was aggravated by the dumping of debris and surplus building materials onto the bank, and the storage of materials (lumber and concrete blocks) at the top of the bank on the Evers property.

15Mr. Bartlett stated that, at that time, there was no local support for the stabilization of the bank of the ravine as requested by Mr. Evers, and no formal request under the Act was filed. Accordingly, the Town Council did not authorize further investigation.

16The current request for Drain improvement under the Act was filed with the municipality by Mr. and Mrs. Comello and Mr. and Mrs. Lennox in December 2017. They requested that the Fleming Drain be improved by extending it to a sufficient outlet or by altering the drainage works to address erosion and bank slumping in the ravine.

17Upon completing his survey and examination of the natural water course and the ravine, Mr. Bartlett determined that erosion, at the toe of the banks of the natural water course, was the main contributor to the instability of the slopes. To solve the problem of toe erosion, he recommended a design with a pipe drain and a surface overflow channel. The design includes a ditch inlet catch basin being installed immediately downstream of the box culvert under Egremont Road and a 750mm diameter piped drain to the outlet at Errol Creek.

18Mr. Bartlett said that the design also includes the provision of a surface overflow channel lined with an erosion control blanket and a stilling basin at the junction of the ravine and Errol Creek. As the design is based on limiting the disturbance to the existing banks of the drain and the natural vegetation, it includes importing material to partially fill the ravine. This material will provide a working platform for the construction of the 750mm drain pipe and will reduce the depth of the ravine by 1.5 to 2 metres.

19Mr. Bartlet estimated the cost of the proposal at $103,950 which includes construction, allowances, engineering, financing and HST. The assessment of the estimated cost includes assessments for Special Benefit, Benefit Liability, and Outlet & Injuring Liability. The Evers property was assessed $10,095 Special Benefit and Outlet & Injuring Liability of $30.

20Mr. Bartlett stated that the majority of the cost of the works necessary to stop the erosion and stabilize the banks is a benefit liability and the cost of oversizing the drain to accommodate the water artificially caused to flow from the upper lands is outlet and injuring liability. As a result, in the Schedule of Assessment, $20,025 has been assessed as Outlet and Injury Liability and $83,925 has been assessed as Special Benefit and Benefit Liability.

21For the Fleming Drain Extension 2020 project, there are 3 properties that abut the existing ravine and are assessed for benefit and/or Special Benefit. First, the Comello/Lennox property, which is currently vacant farmland with potential for residential development, is assessed for 2.90 hectares. It includes the entire western bank of the ravine, the natural watercourse in the ravine and a portion of the eastern bank. Second, the Egremont Road allowance contains the road culvert and gabion and rip rap erosion protection, and it is assessed for 0.60 hectares. Finally, the Evers property is residential with an existing residence located approximately 5 metres from the top of the east bank of the ravine, and it is assessed for 0.20 hectares.

22Mr. Bartlett stated that the purpose of the proposed drainage works is to improve the stability of the banks of the ravine. This will be accomplished by first enclosing the water course and thereby eliminating the erosion at the toe of the banks and, second, by reducing the depth of the ravine by partially filling it.

23Mr. Bartlett stated that although the proposed works will physically be on the Comello/Lennox property, it must be recognized that elimination of the erosion of the toe of the east bank will improve the long-term stability of the entire east bank including the Evers property.

24Mr. Bartlett stated that the elimination of the toe erosion, although an essential first step toward permanent stabilization of the east bank, would not in itself result in an immediate increase in the value of the Evers property. For that reason, he did not assess the Evers property for benefit due to the control of the toe erosion.

25Mr. Bartlett stated that the partial filling of the ravine will reduce the overall depth of the ravine and will enhance the stability of the banks. The reduction in the depth of the ravine will result in an improvement in the appearance of the properties adjacent to the ravine and in the ease with which the banks can be maintained. Since the partial filling of the ravine is a feature that has no effect on the functioning of the drainage works, he assessed the cost of providing, placing and grading the fill as a special benefit to the Evers property and to the Comello/Lennox property. He stated that he did not include the Egremont road allowance in the assessment for special benefit for two reasons; first, the Town has already provided erosion control and stabilized the outlet at the box culvert and; second, the Town would be supplying the fill material from another municipal project in the area and there was a cost associated with that.

26Mr. Bartlett testified that although the length of bank affected on the Comello/Lennox property is approximately twice that of the bank affected on the Evers property, he considered that the Comello/Lennox property is currently vacant farmland and the Evers property is an existing residential lot with a higher urgency to address the bank stability. As a compromise, he determined that this special benefit should be shared equally between the Evers and the Comello/Lennox properties and, therefore, the special benefit assessment against each of the properties was established at $ 10,095.

27During questioning by the Tribunal, Mr. Bartlett identified all the roads that are referred to in the his report. In doing so, it was determined that Hyslop Line should have been assessed for outlet liability but was omitted. Accordingly, there is an error in the report that will have to be corrected.

Terrance Evers, Appellant

28Mr. Evers testified that he has owned his property at 3436 Egremont Road for more than 50 years and that all of the erosion and the drain are on the neighbouring Comello/Lennox property at 3424 Egremont Road.

29Mr. Evers noted that the cost estimate in the Report included an item “Import Clay fill re-sloping/partial filling of ravine (approximately 775 cu m) $11,600.” Mr. Evers argues that the purpose of this fill is for the function of the drain and should not be assessed as a Special Benefit.

30Mr. Evers stated that fill has been brought in from the Carmichael drain project and that the resulting cost savings should be attributed to the lands assessed for Special Benefit on the drain.

31Mr. Evers asserted that the portion of the drain on the east side of the ravine is 70 metres in length and that 35 metres fronts on his property, while the reminder of the east side of the ravine, as well as all of the frontage on the other side of the ravine, is on the Comello/Lennox property.

32Mr. Evers argued that it would be reasonable that the factor of cost sharing for the Special Benefit assessed on his property and that of the Comello-Lennox property should be 25% to him and 75% to Comello/Lennox.

33Mr. Evers argued that the erosion that has taken place in the ravine on the Comello/Lennox property is at least 50 to 60 times greater than what has taken place on his property; therefore, the Special Benefit is far greater to the Comello/Lennox property than to his.

34Mr. Evers also asserted that his property does not currently, and will not when the work is completed, drain into the drain extension.

35Mr. Evers argued that the Comello/Lennox property would benefit financially from the drain extension due to a proposed real estate development on their property. Mr. Evers noted that his property is a residential property with a single dwelling.

36Mr. Evers noted that the engineer’s report states that the drain was designed and assessed based on the current land use and that there are several properties that are currently under consideration for subdivision and residential development.

Elio Comello, 3424 Egremont Road

37Elio Comello, an assessed property owner on the drain, testified that Mr. Evers had dumped a large quantity of building materials on the bank of the ravine and that they sat there for 17 years. Mr. Comello stated that the materials were not removed until they were ordered to be removed by way of a property standards by-law. It is Mr. Comello’s submission that these building materials contributed to the degradation of the ravine bank.

38Mr. Comello stated that the reason they, the Comellos and Lennoxs, requested remedial work for the Drain outlet was due to their concern about higher water flows in the channel and the degradation of the ravine banks.

39During questioning, Mr. Comello testified that there is a plan for future residential development on his property.

Findings and Analysis

40No issues were raised with the distribution of the Outlet and Injuring Liability assessments against any property in the watershed, with the exception of the missing outlet assessment to Hyslop Road as observed by the Tribunal. The only matter to be resolved is the issue revolving around the fair assessment of Special Benefit to the Evers property.

41Section 1 of the Act states “special benefit” is defined as “any additional work or feature included in the construction, repair or improvement of a drainage works that has no effect on the function of the drainage works”.

42Section 22 of the Act states “Lands, roads, buildings, utilities or other structures that are increased in value or are more easily maintained as a result of the construction, improvement, maintenance or repair of a drainage works may be assessed for benefit.”

43Section 23 of the Act states “(1) Lands and roads that use a drainage works as an outlet, or for which, when the drainage works is constructed or improved, an improved outlet is provided either directly or indirectly through the medium of any other drainage works or of a swale, ravine, creek or watercourse, may be assessed for outlet liability. (2) If, from any land or road, water is artificially caused by any means to flow upon and injure any other land or road, the land or road from which the water is caused to flow may be assessed for injuring liability with respect to a drainage works to relieve the injury so caused to such other land or road.”

44Section 24 of the Act states “the engineer may assess for special benefit any lands for which special benefits have been provided by the drainage works.”

45The Tribunal finds that the Evers property will receive special benefit from the proposed remedial work on the ravine bank as described in the drainage report. The drainage works will stabilize the banks located predominately on the Comello/Lennox property and reduce bank slumping and erosion into the ravine, thereby protecting the Evers property and maintaining its value.

46The Tribunal finds that the Outlet and Injuring Liability assessments to the lands and roads upstream of Egremont Road are unusually low. The Tribunal finds that a portion of the cost associated with the placement of fill in the ravine is required to provide outlet or to improve outlet for the water from the upstream lands and roads and should be assessed as Outlet and Injury Liability to the roads and lands upstream of Egremont Road.

47The Tribunal finds that the amount of Special Benefit assessed to the Evers property is disproportionate and should be lower as compared to the Comello/Lennox property.

48The Tribunal finds that the Hyslop Road has not been assessed and that it should be assessed an amount for outlet and injuring liability.

DECISION

The Tribunal orders:

1That all unauthorized recordings of the proceedings be destroyed immediately.

2That the decision of the Court of Revision be set aside.

3That the Appellant Terrance Evers’ property assessment for Special Benefit be reduced to $5,047.50 and that the reduced amount of $5,047.50 be assessed as Outlet and Injuring Liability, pro rata, to all the lands and roads upstream of Egremont Road.

4That the Hyslop Road be assessed for Outlet and Injuring Liability as per its size and that the assessments of all the other lands and roads on the drain that are assessed for Outlet and Injuring Liability be adjusted accordingly.