Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2^nd Floor NW 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, 2^e étage NW Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: John Walsh vs The Municipality of Southwest Middlesex

Switzer Drain

STATUTE: Drainage Act

HEARING: October 14, 2021

DATE OF DECISION: November 25, 2021

006Switzer21

NEUTRAL CITATION: 2021 ONAFRAAT 17

FILE NO.: 006Switzer21

DATE: 2021/11/25

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 Walsh under section 54 of the Drainage Act with respect to the Switzer Drain 2020 in the Municipality of Southwest Middlesex,

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

BETWEEN:

John Walsh Appellant

– and –

Municipality of Southwest Middlesex Respondent

Self-represented

Represented by Paul Courey

HEARD: October 14, 2021

Before: Brandi Neil, Vice-Chair; Andrew McBride, Vice-Chair; and Steve Moutsatsos, Vice-Chair.

Appearances:

John Walsh, Appellant

Mike P. DeVos, P. Eng., Engineer who wrote the Report

Paul Courey, Counsel for the Respondent

TRIBUNAL DECISION

1. The Agriculture, Food and Rural Affairs Appeal Tribunal (“the Tribunal”) held this hearing by Zoom video conferencing on October 14, 2021. The Engineer’s Report for the Switzer Drain (“the Report”) was prepared by Mr. M. P. DeVos, P. Eng. (“the Engineer”) of Spriet Associates London Limited and is dated September 16, 2020. The Report deals with both the existing Switzer Drain and the existing McLean-Switzer Drain. As part of the Report, the Engineer reclassifies the McLean-Switzer Drain to become the McLean-Switzer Branch of the Switzer Drain; accordingly, both Drains are now referred to collectively as the Switzer Drain.

2. A Pre-hearing conference was held on July 20, 2021, to consider the requests of affected property owners John Walsh, Robert McColl, John Kouwenberg, John Paardekooper, Graham McLean, Murray McLean and Ian MacLean for an extension of time to file appeals under sections 48(1) and 54(1) of the Drainage Act (the “Act”). In a decision dated August 11, 2021, the Tribunal dismissed all requests except for that of John Walsh under s.54(1) of the Act. As a result, Mr. Walsh was the sole Appellant in this matter and the appeal heard on October 14, 2021, dealt only with the issue of the assessments allocated to the Walsh properties.

Preliminary Matters

3. 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 an Affidavit of Service, dated August 27, 2021, as proof that all parties had been served with the notice of hearing. This affidavit became exhibit one at the hearing.

Background

4. Switzer Drain

The Switzer Drain was originally created after an engineer’s report in 1923. After three subsequent reports it now consists of an open channel that extends 1638 metres upstream from an outlet in the May Drain, through Lot 12 Concession R2S, through the former CNR embankment, through Switzer Drive, through the southeast corner of Lot 12 Concession R1S and northerly through Lot 11 Concession R1S, terminating approximately 60 metres from the mid Concession line and 200 metres from the Lot 10-11 property line. The closed portion of the Drain extends from the end of the open Drain in a northerly direction across Lots 11, 10, and 9 in Concession R1S, and into the south part of Lot 9 and the southwest part of 8 Concession R1N, for well over 2300 metres as a Main Drain and four branches. It is the upstream 805 metres of the open portion of this Drain and the downstream 60 metres of the closed portion of this Drain that are the subject of this Report. (The former railway property is now owned by GSC Real Estate 1 GP Corp. and will be referred to as the “GSC property” throughout the balance of this Decision.)

5. McLean-Switzer Drain

The Report does not indicate when this Drain was originally established but does indicate that it was reconstructed after a report in 1975 and extended downstream after a report in 1976. It currently consists of 1543 metres of open drain that extends generally northerly from the same location on the May Drain where the Switzer Drain outlets, through Lot 12 Concession R2S, through the GSC property embankment, through the northwest corner of Lot 11 Concession R2S, through Switzer Drive and then northerly for 717 metres through Lot 11 Concession R1S, almost parallel to the open portion of the Switzer Drain, to the Lot 11-10 property line. From that point it extends through Lots 10 and 9 in Concessions R1S and R2S as a closed Main Drain with six branches.It is the downstream 1260 metres of the open portion of this Drain that are the subject of this Report.

6. Existing Drainage Conditions in the South Half Lot 11, Concession R1S

As above-mentioned, the open portions of both the Switzer Drain and the McLean-Switzer Drain pass through the South Half of Lot 11, Concession R1S. In fact, they run almost parallel from the north corner of the lot to the south corner, only about 200 metres apart. At its upstream end, the open portion of the Switzer Drain accepts the underdrainage and surface water from about 102 hectares, or 253 acres, and at its upstream end, the McLean-Switzer Drain accepts the underdrainage and surface water from approximately 99 hectares, or 245 acres. Understandably, having these two open Drains running diagonally across this 40-hectare property makes it quite difficult to efficiently work it for agricultural purposes.

7. The Appellant’s Properties

Mr. Walsh owns six properties that are assessed into these two Drains. Only 1.7 hectares of one property are assessed into the open portion of the Switzer Drain while a portion of all six properties, or 103 hectares (255 acres) are assessed into the McLean-Switzer Drain, and the open drain passes through one of those properties.

8. The Engineer’s Report

The Engineer’s Report was prepared under Section 78 of the Act pursuant to a request for improvement received from Minnema Farms Ltd. (“the requestor”), the owner of the South Half of Lot 11, Concession R1S, the property that has both open drains passing through it. Section 78 of the Act allows the Council of the Municipality to undertake an improvement of any existing drainage works that has been constructed under a by-law passed under the Act.

9. In the Report, the Engineer explains that the requestor sought the following works:

(a) That the Closed Portion of the Switzer Drain be extended for approximately 370 meters south from the rear property line, through high ground, to outlet into the open portion of the McLean-Switzer Drain, and

(b) That the existing open portion of the Switzer Drain be abandoned as a municipal drain from its upstream end downstream to Switzer Drive, as it is the requestor’s desire to backfill this portion of the Drain privately, at some time in the future.

10. In the Report the Engineer provides a detailed examination of the existing drainage conditions and the associated design considerations that he undertook which led him to determine that it is feasible to construct the requested new tile drain extension of the closed portion of the Switzer Drain to outlet into the McLean-Switzer Drain, without deepening the McLean-Switzer open drain in the immediate downstream reach.

11. Also in the Report, it is noted that the new tile has been designed to provide a drainage coefficient of 38 mm in 24 hours and that most of the McLean-Switzer open drain channel can accommodate the runoff from a 1 in 2-year rainfall event or, it will be enlarged to do so, where necessary.

12. Accordingly, with respect to the McLean-Switzer Drain, the following are the recommendations included in the Report:

• That the McLean-Switzer Drain be renamed the McLean-Switzer Branch;
• That the existing ditch bottom be cleaned out as specified;
• That, only where necessary and as specified, the ditch banks be reconstructed and seeded;
• That any excavated material be levelled adjacent to the Drain, except where the channel is being deepened between Switzer Drive and the GSC property (the Walsh property) where the spoil shall be hauled away, and except through the former GSC property embankment where the old culvert is to be removed and a new channel cross-section is to be created and the spoil shall be piled on each side of the working space; and
• That the existing low-grade crossing on the Walsh property shall be lowered and the side slopes regraded.

13. And furthermore, with respect to the Closed Portion of the Switzer Drain, the following are the recommendations included in the Report:

• That a new closed drain, consisting of 675 mm diameter concrete tile, be constructed from the rear fence-line of the Minnema property southeasterly to outlet in the McLean-Switzer Branch open drain;
• That the existing tile between the end of the open portion of the Switzer Drain and the property line be destroyed;
• That two ditch inlet catchbasins, with berms, be installed to admit surface water into the new tile and to reduce surface flows and erosion;
• That a riprapped drop chute be constructed where the new tile crosses the open drain to allow entry of surface flows without erosion; and
• That the existing ditch upstream of the drop chute be backfilled and regraded.

14. And furthermore, with respect to the Open Portion of the Switzer Drain, the following are the recommendations included in the Report:

• That a new drop structure, sediment collection area and blind inlet basin be constructed immediately upstream of Switzer Drive;
• That a new grade is provided for the future backfilling of the 338 metres of open drain immediately downstream of the new tile crossing;
• That the remainder of the existing open drain downstream to the drop structure at Switzer Drive be officially abandoned as municipal drain;
• That one cleanout of the portion of the Switzer Drain downstream of Switzer Drive shall be completed using the 1952 Schedule of Assessment; and
• That a new Schedule of Assessment for Future Maintenance shall be provided to account for the flow changes made upstream.

15. And furthermore, with all work that is to be undertaken, environmental considerations and mitigation measures be adhered to.

The Issue

16. Do the allowances and the assessments to the Appellant’s properties appear to be fair and reasonable in light of the issues raised by the Appellant?

Evidence of the Engineer

17. Mr. DeVos testified on behalf of the Municipality and provided the following information regarding the Allowances provided in the Report:

• Under Section 29 of the Act, an allowance was provided for ‘right of way’ to any properties where it is going to be necessary to use land for the construction or improvement of the drain, that is, in this case, for the widening of the existing McLean-Switzer open drain and/or the establishment of permanent buffer strips, at a rate of $40,000 per hectare, or $16,188 per acre;
• Under Section 30 of the Act, an allowance was provided for ‘damage’ to lands and crops caused by the disposal of the material removed from the drain and/or the construction work itself, at a rate of (a) $3,510 per hectare for the installation of a closed drain with a wheel machine, (b) $4,787 per hectare for open drain work where the excavated material is levelled adjacent to the drain, and (c) $2,500 per hectare for open drain work through a bush area where the excavated material is levelled adjacent to the Drain;
• The lands receiving these Section 29 and 30 allowances are listed in Schedule A of the Report and the allowances total $13,200 for the entire project, of which $8,290 is allocated to the two Minnema Farms Ltd. properties and $3,590 is allocated to two of the Walsh properties.

18. Regarding the calculation of assessments for the three portions of this project, Mr. DeVos advised that:

• he used a modified “Todgham Method” to calculate the assessments, which involves dividing the drain into sections along its route and determining the total cost of each section; and
• then extracting the costs of any special benefit work in the section and assessing it to the appropriate adjacent property; and
• then determining what portion of the remaining cost should be charged to the adjacent property or properties as a benefit assessment, with the balance of the cost being assessed as outlet to all the upstream lands and roads on an equivalent area basis.

19. Due to the requests made by some of the property owners involved in this project, Mr. DeVos advised that the following special benefit assessments have been made;

• A $7,430 assessment to the GSC property on the McLean-Switzer Branch for the increased cost of removing the existing culvert, constructing a new channel and overflow through the embankment and placing the excavated material on top of the embankment;
• A $11,620 assessment to the Minnema Farms Ltd. Lot 11 property on the McLean-Switzer Branch for the cost of checking the capacity of the existing channel and upgrading it due to the effects of the additional flow resulting from the upstream diversion, and for revisions to the existing maintenance schedules due to changes to the watersheds, and for the cost of re-establishing the buffer strip and rounding at the top of the ditch bank due to cultivating too close to the existing channel, and for additional excavation and hauling to provide more grade and depth downstream of Switzer Drive, through the Walsh property and past the GSC property, and for a portion of the cost of the erosion control work at the bend at Station 0+475, and for a portion of the cost of excavation and levelling in the downstream reach due to the increased flow;
• A $1,180 assessment to the Walsh Lot 12 property on the McLean-Switzer Branch for a portion of the cost of removing and reinstalling the low-grade crossing located just upstream of the GSC property; and
• A $7,400 assessment to the Minnema Farms Ltd. Lot 11 property on the Switzer Drain for the cost to design and construct a new drop structure downstream of the section of the channel that the owner wishes to backfill in the future, and for the cost to revise the existing maintenance schedule for that Drain.

20. With respect to the construction of the new Closed Portion of the Switzer Drain, Mr. DeVos advised as follows:

• The total assessed cost is $83,680;
• Of this amount $74,321 has been assessed to the Minnema Farms Ltd. Lot 11 property;
• $130 has been assessed to the 1.7-hectare portion of the Walsh Lot 10 property that drains into it; and
• $9,229 has been assessed to the upstream lands and roads, none of which are owned by Mr. Walsh.

21. Upon questioning by the Appellant and the Tribunal, Mr. DeVos advised that:

• The cleanout cost that Mr. Walsh paid for entirely himself in 1999 was not credited to his Lot 11/12 property. Mr. DeVos looked at that portion of the drain and found there is sediment in the channel and inadequate depth, so work is needed.
• There will be overflowing surface water when the new tile is full and it will flow through the rock chute being constructed at Station 0+311 and into the grassed waterway along the current Switzer Drain route;
• He attempted unsuccessfully to find the tile that exits the 1.7 ha part of the Walsh property in the northwest corner of Lot 10 Concession R1S and runs toward and outlets in the existing Switzer Drain. Since the tile could not be located, he felt it was necessary to provide some ground water seepage entry into the catchbasin by installing a blind surface water inlet tile encased in crushed stone. He further advised that the contractor will dig to look for the tile and, if it is found, it will be connected to the catch basin;
• The Municipality has received another request for a Section 78 enclosure improvement for this Drain;
• With respect to the new closed portion of the Switzer Drain, Minnema Farms Ltd. is paying the entire cost of the enclosure;
• When questioned about the cost of two cleanouts of the open portion that is going to be abandoned, he explained that those are theoretical cleanouts that have been assessed to all the lands and roads currently using that drain as an outlet; in his experience, when enclosing an open drain, using the cost of two future clean outs is not out of the ordinary. Sometimes engineering firms use three;
• He is confident that his assessments are fair and reasonable and within the normal range for his profession; and
• His engineering firm has a peer review system for drainage projects whereby the calculations and assessments are checked by a second qualified person before a Report leaves the office.

Evidence of the Appellant

22. Mr. John Walsh testified as follows:

• He sees this as a property improvement project only for the requestor, Minnema Farms Ltd.;
• There is some benefit from the drain cleanout but no improvement in his outlet;
• His outlet will be worse with the enclosed drain than it currently is with the open drain;
• A bigger ditch will cause more problems for him to farm around;
• He should not be assessed at all for this project or, at the very least he believes his assessment should be reduced by the amount he previously paid in 1999, in the amount of $1300 ($900 for clean out and $400 for levelling) to have the drain cleaned out for which he received permission to do so from the Municipality as they were not able to do it in a timely fashion. A copy of the Municipality’s approval for this was marked as Exhibit 3 along with receipts for the costs as Exhibit 4.
• Upon questioning, he confirmed that, as part of the Municipality’s permission to clean out the drain, he would pay all the cost;
• Assessment on two future clean outs on a drain that is being abandoned is illogical;
• Based on his own calculation, the tile can only handle 1/10 of the volume if the open ditch was cleaned out;
• On cross examination, he acknowledged he is not an engineer and that this was a simple calculation based on the existing open ditch size and the size of the tile that would be replacing the open ditch and that he did not account for overland flow that is set out in the Engineer’s report; and
• During cross examination, he acknowledged that the low-grade crossing that he installed was causing sediment upstream.

Discussion and Findings

23. The Appellant has six properties within the drainage areas of these two drains, totalling 103.1 hectares.

24. There are three assessment schedules that have been prepared for this project, as follows:

• The Open Portion of the Switzer Drain;
• The new Closed Portion of the Switzer Drain; and
• The McLean-Switzer Branch Drain.

25. The Appellant’s properties have been assessed into these schedules as follows:

• 1.7 hectares of Lot 10 into the Open Portion of the Switzer Drain for $75 as outlet;
• The same 1.7 hectares of Lot 10 into the new Closed Portion of the Switzer Drain for $130 as outlet;
• 21.4 hectares of Lots 12 and 11, through which the McLean-Switzer Branch Drain flows, for $1,180 as special benefit, $4,930 as benefit and $1,943 as outlet;
• Approximately 81.7 hectares of Lots 9 and 10 for $13,107 as outlet, mostly from the Tile Portion of this Drain that uses the full length of the Open Portion;
• That is, a total of $21,385 into the three assessment schedules for the total 103.1 affected hectares;
• That is a total net assessment of approximately $10,700; and
• It appears that the 1.7 hectares in the northwest corner of Lot 10, Concession R1S have been assessed in all three schedules.

26. The Issues Raised by the Appellant are addressed as follows:

a. This is a Property Improvement Project only for Minnema Farms Ltd.

Minnema Farms Ltd. is assessed significantly for the benefits it is receiving but there are improvements for the Appellant’s property as well, including a better outlet through the GSC property, a ditch cleanout with better slope, lowering of the crossing that will result in less sediment build-up through his property, and a better outlet for the closed portion of the McLean-Switzer Branch. Furthermore, the contractor will attempt to locate Mr. Walsh’s tile from the northwest corner of Lot 10 and connect it to the new enclosure. The panel finds these are improvements for the Appellant’s properties.

b. His Outlet Will Be Worse with The Enclosed Drain

Mr. Walsh testified that his outlet will be worse with the enclosed drain than it is with the open ditch. The Appellant testified he is not an engineer and that this was based on simple calculations comparing the open ditch size to that of the tile for the closed drain that will be replacing the ditch. In cross examination, he admitted he did not factor in overland flow as was set out in the Engineer’s report. The Appellant’s position was not supported by any engineering evidence. There is no evidence before the panel to support his position that his outlet will be worse.

c. Charges for Theoretical Cleanouts on an Abandoned Drain Are Illogical

The Engineer explained that the new closed portion of the Switzer Drain was being fully assessed to Minnema Farms Ltd. but there are the transferred costs of two theoretical cleanouts of the abandoned open drain. The Tribunal accepts that it is fair and reasonable for the assessment to include two theoretical clean outs for the abandoned portion of the open drain, as these would have had to be done if the flow was not being diverted to the new enclosure.

d. There Should Be Zero Assessment or A Credit for the 1999 Ditch Cleanout

i. The Open Portion of the McLean-Switzer Branch is 1,543 metres in length, and 1,260 metres of that length are being repaired and/or improved as part of this project. Approximately 300 metres of this Drain pass through the Appellant’s property downstream of Switzer Drive extending to the GSC property, and all of the Appellant’s assessed property uses this Open Portion of the Branch Drain as an outlet, either directly or indirectly; accordingly, it is not fair or reasonable that the assessments to these properties be zero.

ii. While it has been proven that the Appellant did pay $1,300 for a cleanout of the McLean-Switzer Branch open drain through his property in 1999, that was 22 years ago, and during all or part of that time the outlet of this section of drain has been obstructed by the perched culvert through the GSC property and the Appellant’s own grade-level crossing, such that the present day value of that work would appear to be zero. It was work that the appellant chose to do. He sought and received permission from the Municipality to do the work and was fully aware he would have to bear all the costs.

27. The Engineer prepared his assessments based on a modified Todgham Method. In addition, he made Special Benefit assessments or appropriate high benefit assessments for the requested diversion/enclosure work and associated downstream improvements and the changes resulting therefrom, all of which are accepted practices in this field.

28. The Tribunal finds that the assessments in this Report are fair and reasonable and in compliance with the Drainage Act and do not require any alteration.

Tribunal Orders

29. There shall be no changes to the Appellant’s assessments and the appeal is denied.

30. 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 may include the Engineer’s fees and expenses for attending and participating in the hearing; and

31. There shall be no other Order as to costs and all parties shall be responsible for their own costs.

Released: November 25, 2021