Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

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

Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph, Ontario N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

FILE NO.: 007Dell21

DATE: 2022/07/26

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

AND IN THE MATTER OF the eight (8) appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal (“Tribunal”), under Section 54 of the Drainage Act, with respect to the Dell Drain Outlet in the Municipality of Central Elgin.

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

BETWEEN:

806584 Ontario Ltd. (Jeff Ferguson) Gary & Frances Somerville Keith Helmer Phil McNamee Charitable Foundation Roger Somerville Somerville Farms Sparta Ltd. Walter Hayhoe Enterprises Inc. William Jacklin

Appellants

– and –

The Municipality of Central Elgin

Respondent

Represented by Jacob R.W. Damstra

Represented by Sheila Handler

Heard: May 5^th, 6^th and 26^th, 2022

Before: Christine Greydanus, Vice-Chair; Andrew McBride, Vice-Chair; and David Stevens, Member

Appearances: Jacob Damstra, Counsel for the Appellants Jeff Risdon, Counsel for the Appellants, assisting Jacob Damstra Sheila Handler, Counsel for the Respondent Paula Lombardi, Counsel for the Petitioner Mark D. Hernandez, Engineer who wrote the Report Phil Bedell, Geotechnical Engineer John Miller, Petitioner John Kuntze, Engineer who wrote the Appellant’s Report Terra Duchene, Counsel for the Petitioner, assisting Paula Lombardi

TRIBUNAL DECISION

1The Agriculture, Food and Rural Affairs Appeal Tribunal (“the Tribunal”) held this hearing by Zoom video conferencing on May 5^th, 6^th and 26^th, 2022. The Engineer’s Report (“the Report”) was prepared by Mark D. Hernandez, P. Eng., of Dillion Consulting Limited and is dated November 26, 2020. The Report was prepared pursuant to Section 78 of the Drainage Act (“the Act”). On February 17, 2016, the Council for the Municipality of Central Elgin (the “Council”) appointed Dillion Consulting Limited to prepare the report.

2The section 78 request to improve the outlet on the drain was submitted by John Miller, Roll No. 2-304 (the “Petitioner”). During the hearing, Mr. Miller was referred to as the petitioner and he is the petitioner from the perspective that he requested the Municipality to improve the drain outlet.

Preliminary Matters

3Prior to the hearing, the Tribunal issued an Order making all landowners assessed in the Engineer’s Report parties to this hearing. The Municipality of Central Elgin (“the Municipality”) filed an Affidavit of Service, dated February 9, 2022 with the Tribunal as proof that all parties had been served with the Notice of the Hearing scheduled for May 5^th & 6^th, 2022. On May 26^th, 2022 the Municipality filed a second Affidavit of Service, dated May 12, 2022 with the Tribunal as proof that all parties had been served a Notice of the Hearing Continuation.

Background

4The recent history of the Dell Drain Outlet is as follows; the report by J. R. Spriet, P. Eng. dated June 20, 1997 (“the Spriet Report”) recommended that 70 metres of new 750 mm diameter culvert be installed under Barnums Gully Line and downstream into Barnums Gully, with a new catchbasin on the north side of the road to collect the flow from the open Drain. Two new drop manholes on the south side of the road and erosion protection at the end of the outlet pipe in the gully were also to be installed. Cleaning and brushing of the open drain upstream of the road was included. Also, Branch “A” was to be extended across Roberts Line.

5The outlet of the open drain had consisted of a concrete box inlet, pipe and drop silo on Barnums Gully Line. That outlet pipe for the silo had failed and resulted in the collapse and closure of the road and severe gully erosion on adjacent properties.

6The Dell Drain was originally constructed under the report of G. Duncan Black, P. Eng. dated July 12, 1960.

7The Branch “G” Dell Municipal Drain Report, dated October 30, 2015, was prepared pursuant to section 4(1)(c) of the Act. Branch “G” diverted the runoff from approximately 31 hectares of land west of the Dell Drain watershed into the Dell Drain Outlet, connecting at the lower end of the main drain south of Barnum Gully Line. Branch “G” provided a cut-off benefit to the Lyle Property, Roll No. 002-03300 when natural flow of surface water was diverted.

The Issues

8Are the assessments as determined by the Engineer in the Report, pursuant to section 54 of the Act, fair and reasonable in these circumstances?

Evidence of the Parties

Mark D. Hernandez, P. Eng., Dillion Consulting Limited

9Mr. Hernandez was qualified as an expert witness in drainage engineering. Mr. Hernandez is the Engineer who wrote the Report.

10The Engineer testified that he was retained by the Municipality under section 78 of the Act to address a request by John Miller (Roll No. 2-034) to improve the outlet of the Dell Drain, due to erosion on his property.

11The Engineer testified that the Miller property and the Vandenwyngaert property (Roll No. 2-036) are not in the watershed of the Dell Drain. The water from the Dell Drain watershed flows to and along the property line between the Miller and the Vandenwyngaert properties, and outlets south into Lake Erie.

12The work proposed in the Report is an 83-meter extension of the existing outlet that will take place along the lot line between the Miller and the Vandenwyngaert properties. The sole purpose of the work is to address the erosion. Flows from the current outlet are causing erosion to the downstream lands and causing gully bank failure to the adjacent properties. By extending the outlet, the flows will be controlled and will provide sufficient outlet. Pursuant to section 1 of the Act, an outlet is sufficient when it safely discharges water such that it will not cause damage to downstream lands. The Engineer testified that the Dell Drain currently does not have sufficient outlet as it is causing damage to downstream lands.

13The Engineer testified that he has walked the outlet at different seasons and observed the extent of the erosion. In formulating the solution for the outlet erosion, the Engineer stated that he consulted with Phil Bedell, P. Eng., a geotechnical engineer. The Engineer stated that he also reviewed photographs of the outlet erosion, provided by Mr. Miller.

14The Engineer testified that Mr. Bedell advised him that the flow from the outlet of the Dell Drain erodes the toe of the slope, and once the toe of the slope is eroded it causes failure of the entire bank. The Engineer agreed with this assessment and concluded that the outlet needs extending to address the erosion at the toe of the gully bank.

15The proposed work is estimated to cost $378,910. Under section 29, the Engineer provided the Miller and Vandenwyngaert properties with an allowance of $1,005 each to compensate for the working corridor on their properties. He assessed Benefit of $25,000 to the Miller property and $5,000 to the Vandenwyngaert property. To arrive at the Benefit assessments for the adjacent properties he referred to the 1997 Spriet Report, but did not follow it, as in this case there are differences in the context. In the Engineer’s opinion, outlet erosion is having a greater effect on the Miller property with more active erosion on the west side of the gully, and the Miller house is closer to the gully than the Vandenwyngaert house; therefore the Miller property is assessed higher.

16The Engineer stated that the Outlet Liability assessment is the cost of taking the drainage works to a sufficient outlet. In this case, water from the upstream lands is being funnelled by the Dell Drain to the downstream lands and is causing erosion and injury, therefore, the Outlet assessment is for the injury being caused to downstream lands as a result of the flows from the Dell Drain watershed. The Outlet assessments were determined using runoff factors with agricultural lands being assessed at a factor of 1.0, and roads being assessed at a higher factor, and wooded areas at a lower factor. The Outlet assessments were then prorated to the upstream properties within the watershed and no Outlet assessments were directed to the two downstream properties.

17The Engineer predicted that future maintenance will include maintaining the manhole, the pipe extension and the concrete cable mat at the outfall, and should be paid for entirely by the watershed, based only on the Outlet portion of the Assessment Schedule, as the flow from the watershed will be necessitating the work.

18The Engineer disagrees with Mr. Kuntze’s opinion that the proposed work is a continuation of the Spriet Report. The current circumstances are very different. In 1997, the outlet had failed, the road was washed out, and there was Benefit assessed to the road, the downstream lands and portions of the lands upstream of the road. While in this Report, the work is an extension of the outlet, located between two downstream properties, for the purpose of preventing further erosion.

19The Kuntze Report notes that the Branch “G” landowners have not made any contribution to the outlet and asserts that the lands in the Branch “G” watershed need to be assessed Benefit under the Dell Drain Outlet 2020 Report. The Engineer stated that he is not aware that any engineer has been instructed to prepare a report under section 65(3) to allot assessments.

20The Engineer disagrees with Mr. Kuntze’s proposed 50/50 division of Benefit and Outlet. In his opinion, preventing damage to downstream lands is not a Benefit but rather the expectation that you don’t damage other people’s property, as pursuant to the definition of sufficient outlet, you take the water to a point where you discharge it safely so it will not damage downstream lands. As far as a 50/50 apportionment, the Engineer agrees that may be a typical assessment approach when dealing with a standard watershed or drain, but not for this particular project. This project is different as the issues with the Dell Drain Outlet are being caused by the watershed, therefore the Engineer’s assessment reflects this and the Outlet assessment is higher and the Benefit assessment is lower.

21In the Engineer’s opinion, in the case of this project, there is no Benefit to the road. The Engineer stated that it is a common practice to remove and dispose of any debris in a drain when completing the work and absorb that expense into the total project cost.

22The Engineer stated that he does not view the assessments, as proposed in the Kuntze Report, to be a fair and just division of the cost of the proposed work. The Engineer maintains that, as per section 11 of the Act, he has, to the best of his skill, knowledge, judgement and ability, honestly and faithfully, without fear of, favour to or prejudice against any person, performed the duty assigned to him and made a true and fair report.

23Under cross examination, the Engineer stated that he referred to the Spriet Report Assessment for Construction schedule, dated August 11, 1997, as revised by the Court of Revision. The initial Assessment for Construction schedule, dated June 20, 1997, with a total cost of $158,500, assessed Benefit to the adjacent properties, Roll No. 2-034 and No. 2-036, at $23,000 each or 14.5% each. The Engineer confirmed that in comparison to the initial 1997 schedule, the Benefit assessed to the adjacent Miller property in his Report at $25,000 is about 6.6% of the $378,910 total construction cost and the Vandenwyngaert property at $5,000 is about 1.3%. It was noted that appeals of assessments in the Spriet Report were brought to the Court of Revision by the owners of the adjacent properties resulting in their assessments being reduced from $23,000 to $12,000 each. The reduction of those Benefit assessments was transferred to the roads.

24The Engineer agreed that to assess benefit, there must be a particular Benefit to the lands, not just some probable, general benefit to all the lands in the locality. Benefit can relate to lands, roads, buildings, utilities or structures and just what is to be considered as a benefit is set out in the Act, both in section 1 Definitions and in section 22.

25The Engineer agreed that, when subsequent connections are made to a drain, section 65(3) of the Act dictates that “… the clerk of the of the local municipality in which the land is situate shall instruct an engineer in writing to inspect the land and assess it for a just proportion for the drainage works …” and that, Branch “G” of the Dell Drain was a subsequent connection and should be assessed for a proportion of the drainage works. Branch G lands have never been assessed under section 65(3) and could be under this Report.

26The Engineer disagrees with the calculations for assessing the Branch “G” lands in the Kuntze report where they are assessed as a Special Benefit. The Engineer would instead have considered what they are using of the existing works, the extent to which they are using them, then pro rate for the time that they have been using it.

27The Engineer agreed that it is probably not the upstream landowners who deposited the tires that are to be removed from the gully, that they were not in the 1997 report and that he has no knowledge of when the tires were placed there.

Phil Bedell, P. Eng., Geotechnical Engineer

28Mr. Bedell was certified as an expert witness in geotechnical engineering. He graduated in 1966 with a Bachelors degree in Civil Engineering and attained a Masters in Soil Mechanics and Foundation Engineering in 1967, which now would be known as geotechnical engineering.

29Mr. Bedell stated that he was retained by the Municipality to assist Mr. Hernandez in designing the remedial work for the outlet of the Dell Drain; a site that has many very significant geotechnical issues. Mr. Bedell identified the main issue as the outlet being immediately adjacent to the Lake Erie shore buff. The bluff is 42 metres high, is very steep, has an interim inclination of about ½ horizontal to 1 vertical and is notoriously unstable. Due to lakeshore erosion, the buff regresses northward at the calculated rate of 1.7 metres per year. This is an issue all along this stretch of shoreline. It is a problem that in reality cannot be solved and the erosion cannot be stopped. This regression has an impact on designing any features immediately adjacent to the shoreline and on any drains outletting into the Lake.

30Mr. Bedell visited the site.

31Mr. Bedell testified that he not only observed the Lake Erie slopes but also the gully or ravine side slopes which are, for the most part, unstable at the moment because of ongoing erosion at the invert of the ravine.

32Mr. Bedell provided a mark-up of a satellite image depicting the Dell Drain Outlet with markings indicating the 2018 and the projected 2048 toe of the lake bluff, and top of bluff slope. The slope of the bank varies from 1.5 horizontal to 2 vertical (1.5H: 2V), to 2H: 1V. At 2H:1V the slope is stable. As the lake shore erosion occurs the bank moves from 1.5H: 2V, to 2H: 1V as you progress vertically up the slope from the lake.

33The projection is that by 2048 the top of bank will be touching the buildings on the west side of the gully and almost at the buildings on the east side of the gully. With this analysis Mr. Bedell determined the outlet pipe should end at the 30-year mark as, in his opinion, there is no point doing work beyond there.

34Mr. Bedell testified that the slopes of the gully downstream from the current outlet of the drain are unstable. Once the proposed drainage work is completed the slopes will gradually stabilize at approximately 2H:1V and remain so in perpetuity. The gully top of bank will regress after completion of the work until the bluff settles into the 2H:1V slope.

35In Mr. Bedell’s opinion, the only significant erosion that is occurring is in the gully invert. Contributing to that erosion is the drain flow, which dominates and probably causes 99% of the erosion, with ground water seepage and rainfall providing the balance.

36Mr. Bedell disagrees with the opinion expressed in the Kuntze report that the upper slope failures of the ravine are not connected to the flow in the bottom of the ravine and his attributing it to groundwater seepage. In Mr. Bedell’s opinion, the slope failures are being trigger by erosion in the bottom of the ravine, locally over steepening the very bottom of the slope and, as the bottom of the slope fails, it then does not support the upper portions of the slope, resulting in a regressive slope failure that moves up the ravine slope with time. The landform is very hummocky. Ground water can cause slopes to fail. There is no indication that ground water is causing the slope failure here.

37Mr. Bedell reviewed photographs of the outlet of the Dell Drain that show the significant erosion that has taken place immediately downstream since the last outlet extension installation. Upstream from the outlet the slopes have stabilized and are covered in vegetation. Downstream, the creek flow bends taking a southwest course, causing more erosion of the west slopes as it bends. Upon extenting the outlet, the bare clay slopes upstream of the proposed outlet will naturally regress somewhat until they stabilize. Vegetation will gradually return to the slopes. It is Mr. Bedell’s opinion that the primary cause of the ravine slope failure is the erosion of the invert of the gully due to the flow from the drain.

John Miller, Assessed Landowner, Roll No. 2-034

38Mr. Miller’s property is located at 45609 Barnums Gully Line, Sparta, Ontario. He purchased the property in December 2013. Pre COVID, the Miller property was valued by the city at between $600,000 and $650,000.

39Mr. Miller testified that, when the 2015 Branch “G” report was presented to Council, he expressed his concerns about the increase in water flow, the rate of erosion that had already taken place and the threat that adding more water would increase erosion to his property. He was advised that his erosion concerns would be addressed in a separate report which is this Report.

40Mr. Miller believes that the erosion is caused by the water coming from the end of the culvert at the Dell Drain outlet. In the spring there is a lot of water. The tires were there when he purchased the property and it is his speculation that they were put there to alleviate the erosion at the outlet.

41Mr. Miller presented picture evidence of the extent of the erosion on the westside of the gully, on his property, where significant erosion has occurred along the length of the creek downstream from the drain outlet.

42On cross examination, Mr. Miller testified that at the time he purchased his property there had been vegetation and trees on the west bank. That is now all eroded away.

John Kuntze, Engineer who wrote the Appellant’s Report

43Mr. Kuntze was certified as an expert witness in the field of drainage engineering. Mr. Kuntze has been a licenced drainage engineer since 1979. In preparing his report, Mr. Kuntze reviewed the drainage reports on the Dell Drain from 1960 to 2020, including the Branch “G” Tribunal decision, and he made an onsite examination of the Dell Drain outlet and watershed area on March 21, 2022.

44Mr. Kuntze disagrees that systematically tiled agricultural land causes greater flows of water and in his opinion tiling reduces peak flows downstream. It is Mr. Kuntze’s opinion that there is not a lot of change in the watershed since well before 1960. On the day of his site visit, Mr. Kuntze did not observe extensive surface water flow coming out of the upper part of the watershed.

45Mr. Kuntze’s observation of the condition of the land at the current outlet is that it is very stable and that there is not significant erosion. Mr. Kuntze stated that what is at the end of the outlet pipe is the natural creation of a plunge pool and that this is relatively stable and not an area of significant erosion.

46In Mr. Kuntze’s opinion, the erosion on the west side of the ravine is not connected with the creek in the bottom of the gully. He does support the installation of the extension of the pipe in the bottom of the gully. In Mr. Kuntze’s opinion, the flow through the creek will cause erosion and the gully slopes will continue to recede overtime until they achieve the 2H:1V slope. Mr. Kuntze agrees with Mr. Bedell’s assessment that the proposed work provides benefit equally to the downstream lands.

47Mr. Kuntze stated that in his opinion the groundwater discharge and surface runoff from the two parcels of land are the primary cause of the current gully slope failures.

48In Mr. Kuntze’s opinion, the improvement the Engineer proposes is appropriate and the only issue is assessment. Mr. Kuntze advocates using the Spriet Report as guidance in determining the assessment division. The Spriet Report assessed the costs at 60% Benefit and 40% Outlet Liability. The roads were assessed 28% as Benefit, the downstream properties on either side of the gully were assessed 14.5% each as Benefit and 3% to other properties in the watershed. Mr. Kuntze noted that the 1997 assessments were changed by the Court of Revision. The assessments to the adjacent landowners were reduced and the roads assigned additional assessment to make up the difference. In the Spriet Report, any future maintenance downstream from and including Barnums Gully Line is assessed at 52.6%. In Mr. Kuntze opinion, the assessments in the current Report of 8% Benefit and 92% Outlet are neither fair nor reasonable and are contrary to the Act.

49Mr. Kuntze agreed that the construction of this extension to the drain will have a significantly positive impact to the downstream lands, but 8% Benefit does not reflect this significant benefit and is unequitable. In his opinion, the Benefit/Outlet ratio from the 1997 Spriet Report should be maintained and the Branch “G” lands should be assessed, in accordance with section 65(3) of the Act, under this report with a Special Benefit assessment.

50Mr. Kuntze stated that Branch “G”, constructed around 2015, diverted its water from its natural gully outlet to the Dell Drain outlet. The Branch “G” report did not compensate the Dell Drain lands, contrary to section 65 of the Act. Mr. Kuntze testified that in his opinion the Engineer being appointed under section 78 can remedy this issue.

51Since Branch “G” makes up about 13% of the watershed and has had free outlet since 2015, Mr. Kuntze proposes a fixed Special Benefit assessment to the Branch “G” lands. Accordingly, he suggests allotting Branch “G” 15% or $57,000 of the cost of the proposed works. Mr. Kuntze divided this Special Benefit with $50,000 to Barnums Gully Line, $3,500 to the Lyle property Roll No. 2-033, and $3500 to the remainder of the lands within the Branch “G” watershed. This Special Benefit would have no bearing on the future maintenance schedule.

52In Mr. Kuntze’s opinion, a drain on a property line is of equal value to the properties on either side and, therefore, the Miller and the Vandenwyngaert properties should be assessed equally for Benefit. The purpose of this drain is to stabilize the gully banks and the banks on both the east and the west sides of the gully need to be stabilized.

53In Mr. Kuntze’s proposal, $100,000 of Benefit assessment would be divided equally between the Miller and Vandenwyngaert properties and $127,500 would be assessed to Barnums Gully Line as Benefit.

54Mr. Kuntze testified that it is his observation that the pile of tires, located in the gully approximately 100 meters from the road, would have been dumped there by someone who had access to the property, not from someone dumping them from the road. In Mr. Kuntze’s opinion, the tires provide no functionality to the drain, and all the cost of the removal and disposal of the tires should be assessed to the neighbouring Miller and Vandenwyngaert properties as a Special Benefit.

55In Mr. Kuntze’s assessment schedule, the Outlet Liability is $90,410 and has a ratio of 76% Benefit and 24% Outlet of the total cost of the proposed works. Outlet assessment would be prorated according to Schedule C in the Report. Future maintenance in the Report assesses downstream lands at 0%, Barnums Gully Line at 2% with the balance to the upstream lands and roads. Future maintenance in the Spriet Report assesses more than 50% to the roads and the lands downstream. In Mr. Kuntze’s opinion, the Future Maintenance schedule should provide for an equitable division of the costs based on the original Benefit to a property. In Kuntze’s report, the Special Benefit would be deleted and the cost of maintenance would be prorated in accordance with Benefit and Outlet schedule under his proposed Schedule C.

56With respect to Injuring Liability, Mr. Kuntze stated that he has never used Injuring Liability in all his time as an engineer and does not understand how it is to be used. He sees the Act as a remedial piece of legislation and Injuring Liability infers a punitive approach. He disagrees with the Engineer’s use of Injuring Liability to support his 92% Outlet Liability assessment.

57In Mr. Kuntze’s opinion, section 32 of the Act, under the heading “Allowance for damage due to insufficient outlet” is not an option and therefore it was not something that he considered in his report. He did agree that compensation is the only exception to the requirement that drainage works be continued to a sufficient outlet.

58In Mr. Kuntze’s opinion there was no additional flow in the drain and that only naturally occurring water flow was in the gully. Mr. Kuntze acknowledged that he did not do detailed calculations of Benefit assessment and that he started at 50% Benefit/50% Outlet and then determined that it should be a 60% Benefit/40% Outlet split based on the fact that the Benefit is the eliminating of erosion caused by the drain, and the 60 % assessment is sustained by the 1997 Spriet Report. The Benefit assessment is apportioned 23% to each of the Miller and the Vandenwyngaert properties and 56% to Barnums Gully Line. Mr. Kuntze acknowledged that there is not any erosion prevention, damage repair or betterment proposed in the Report to the Central Elgin or County roads.

Analysis and Findings

59The Tribunal finds that there is significant erosion in the gully beyond the current outlet of the Dell Drain. The Tribunal finds that the gully is a naturally occurring land form and erosion of it is a natural occurrence.

60The Tribunal finds that the erosion that is taking place in the gully is caused by the water flowing from the upstream lands, such that, those lands and roads should significantly contribute to the cost of the erosion control measures.

61The Tribunal finds that the Dell Drain currently does not have sufficient outlet in accordance with section 1 of the Act.

62The Tribunal finds that it is the sole responsibility of the Miller and the Vandenwyngaert properties for the actual cost of the removal and disposal of the tires located on their property line.

63The Tribunal finds that Branch “G” of the Dell Drain is connected to and outlets through the Dell Drain Outlet, and that the Branch “G” lands were not assessed for Outlet, pursuant to section 65(3) of the Act, and that lands that are subsequently connected are to be assessed “… for a just proportion of the drainage works …” that is used. The Tribunal finds that Branch “G” is connected to the first manhole downstream of the road and that, in the Spriet Report, the lands upstream of that point were each assessed Outlet of approximately $245 per hectare for the downstream work.

64The actual watershed area of Branch “G” is 32.3 hectares but, the Lyle property had an area of 9.9 hectares that was cut off and the equivalent area of Barnums Gully Line is approximately 3.2 hectares, for a total equivalent area of approximately 44 hectares that should have been assessed at least $245 per hectare or a total of $10,780 in 2016. Since Branch “G” has had free use of the Outlet for the past 6 years, the Tribunal finds it fair and reasonable to assess the lands in the Branch “G” watershed a Special Benefit of $20,000 for the connection to the Dell Drain Outlet, in accordance with section 65(3) of the Act.

65The Tribunal finds that there is a significant benefit to both the Miller and the Vandenwyngaert properties from the proposed works and that both properties will benefit equally from the proposed drainage works.

66The Tribunal finds that there is no work being done on the Barnums Gully Line road allowance and that the works therefore provide no benefit to the road.

67The Tribunal notes that the total cost of the proposed work is estimated at $378,910. Included in this cost is $4,000 for the removal of the tires and $20,000 that the Tribunal will assess as Special Benefit to Branch “G”. The Tribunal finds that the balance of the estimated cost of $354,910 is to be assessed as 26% Benefit, that is, $92,300 to be divided equally between the Miller and Vandenwyngaert properties (that being $46,150 each), and 74% as Outlet Liability, that is, $262,610 to the upstream lands and roads.

68The Tribunal finds that it would be fair and reasonable to apportion the future maintenance of the proposed drainage works on the same ratio as for the proposed construction of the drainage works, that is as 26% Benefit and 74% Outlet.

ORDER OF THE TRIBUNAL

69Therefore, the Tribunal orders as follows:

1. The Schedule of Assessment in the Report shall be amended to indicate that the Miller property (Roll No. 2-034) and the Vandenwyngaert property (Roll No. 2-036) shall each be assessed $46,150 as Benefit;

2. The Schedule of Assessment in the Report shall be amended to indicate that the Miller property (Roll No. 2-034) and the Vandenwyngaert property (Roll No. 2-036) shall be assessed a Special Benefit for the actual total cost for the removal and disposal of the tires in the gully, at 50% each (This total amount is currently estimated at $4,000.);

3. The Schedule of Assessment in the Report shall be amended to indicate that the upstream lands and roads shall be assessed Outlet Liability in the amount of $262,610 to be divided pro-rata according to Schedule C in the Report;

4. The Schedule of Assessment in the Report shall be amended to indicate that the Branch “G” lands shall be assessed a Special Benefit of $20,000 levied pro-rata according to APPENDIX A, the Maintenance Assessment Schedule, in the Branch ‘G’ Dell Municipal Drain Report, as amended by the Tribunal and dated June 20, 2016;

5. Future maintenance shall be levied pro-rata based on the lands and roads assessed for Benefit and Outlet Liability according to the 26% Benefit/74% Outlet ratio;

6. The non-administrative costs of the Municipality incurred with respect to these appeals shall form part of the cost of the drainage works, and such costs may include the Engineer’s fees and expenses for preparing the Report, as well as the Engineer’s fees and expenses for preparing, attending and participating in the hearing; and

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