Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West, 2nd 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, 2e 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:
Kathryn I. Halliday vs Norfolk County [Final Decision]
PAAUW DRAIN
STATUTE:
Drainage Act
HEARING:
February 18, 2022
DATE OF DECISION:
February 22, 2022
011Paauw21
NEUTRAL CITATION:
2022 ONAFRAAT 06
FILE NO.: 011Paauw21
DATE: 2022/02/22
IN THE MATTER OF THE DRAINAGE ACT, R.S.O. 1990, CHAPTER D.17, AS AMENDED
AND IN THE MATTER OF an appeal submitted by Kathryn I. Halliday of Hagersville, Ontario under Section 54 of the Drainage Act, with respect to the Paauw Drain in Norfolk County
AND IN THE MATTER OF an electronic hearing held pursuant to Rule 18 of the Tribunal’s Rules of Procedure
BETWEEN:
Kathryn I. Halliday Appellant
– and –
Norfolk County Respondent
Self-represented
Represented by Joel Miller, P. Eng
Heard February 18, 2022
Before: Brandi Neil, Vice-Chair, John Johnston, Vice Chair, Steve Moutsatsos, Vice Chair
In attendance:
Kathryn Halliday, Appellant Joel Miller, P. Eng., Engineer who wrote the Report Bill Mayes, County Drainage Superintendent Krista VanPaemel, acting as Clerk of the Tribunal
TRIBUNAL decision
1The Agriculture, Food and Rural Affairs Appeal Tribunal (“the Tribunal”) held this appeal hearing by way of Zoom video conferencing on February 18, 2022. The Appellant, Kathryn Halliday, brought a Section 54 Appeal of the Assessments in the Engineer’s Report for the Paauw Drain (hereinafter “the Engineer’s Report”) prepared by Joel Miller, P. Eng. dated January 22, 2021.
2The Paauw Drain has an extensive history. The Engineer’s Report was prepared pursuant to petitions by landowners under Section 4 of the Drainage Act, that were submitted in February of 2004.
3The parties advised the Tribunal in advance of the hearing date they had reached a resolution and were seeking a consent order from the Tribunal.
4The hearing began with the filing of the affidavit of service of the Notice of Hearing as an exhibit.
5Joel Miller, P. Eng., provided sworn testimony that consisted of a brief overview of the Drain and the consent order being sought. In the course of his testimony, the following documents were filed as Exhibit 2 and 3 respectively: the Engineer’s Report and the Paauw Drain Proposed Consent Order with the following attachments: i) Paauw Drain Watershed Plan with aerial photo, corrected and dated February 11, 2022; ii) Revised Assessment Schedules A, B & Appendix A Calculation of Assessments marked Revised for Tribunal and dated February 11, 2022; and iii) Schedule of Estimated Net Assessments dated February 11, 2022.
6During his testimony and upon questions from the panel, Mr. Miller explained that the assessment changes to Ms. Halliday’s property (Roll No. 007-158) affected the assessments to a Norfolk County road as well as D. Petheram’s property (Roll No. 007-132-40). The total change to D. Petheram’s assessments is approximately an additional $2200. He indicated that the change to the Petheram property was a result of two things. The first was directly related to the change to Ms. Halliday’s assessment and the second was a product of the correction of an error that was discovered during this appeal process.
7In his evidence, Mr. Miller explained that he personally met with the Petherams on February 14, 2022 and reviewed the amended assessment for their property. He said they understood and accepted the amended assessment. The Tribunal also finds that the Petherams were made parties to this appeal as assessed land owners and were served with the Notice of Hearing.
8Kathryn Halliday did not testify but made submissions indicating she is consenting to the Proposed Consent Order filed as Exhibit 3.
9Upon hearing the evidence and submissions, the Tribunal makes the following orders on consent of the parties regarding corrections to the Engineer’s Report and revised assessments for the Appellant, Kathryn Halliday:
a) The Pauuw Drain report incorrectly assessed only 7.5 hectares of land for Roll No. 007-132-40 (D. Petheram property) into Intervals 1, 2, 3 and 4 of the Main Drain. In fact, the entire 20.4 hectares of said property are in the Paauw Drain watershed. Also, the report incorrectly assessed 12.9 hectares of Roll No. 007-132-40 into the Petheram Farms Branch, instead of the correct amount of 10.2 hectares. Joel Miller, P. Eng., has corrected these errors on the assessment schedules, marked “Revised for Tribunal” and dated February 11, 2022 (“Revised Schedules”) filed as part of Exhibit 3.
b) The Pauuw Drain report incorrectly assessed 19.9 hectares of Roll No. 007-158 (K. Halliday property) into the Drain. Prior to the Court of Revision, Joel Miller, P. Eng., visited the site with the landowner and confirmed 4.1 hectares in the northern portion of said property drains east and north out of the Paauw Drain watershed. The 4.1 hectare correction was presented to the Court of Revision. The Court of Revision made assessment reductions to Interval 1 of the County Line Branch but no assessment reductions were made for other portions (intervals) of the drain used by the Halliday property. For more accurate assessment of construction and future maintenance costs, the Revised Schedules apply 15.8 hectares of the Halliday property to each interval of the Drain used by the Halliday property, with a split to recognize surface water flows to Interval 1 of the County Line Branch and Interval 6 of the Main Drain is the connection point for subsurface tile drainage from the Halliday property. This subsurface/surface split methodology is consistent with the original report.
c) The Pauuw Drain report includes construction of Interval 6 of the Main Drain from Station 2+104 to 2+124 as proposed work. Since the Road 74 crossing was installed in conjunction with a repaving project for the boundary road, it would be more accurate to designate this segment of the Drain using a Section 31 allowance. Accordingly, on Appendix A in the Revised Schedules filed as Exhibit 3, the cost for Main Drain Interval 6 has been shown as a Section 31 allowance to incorporate the completed work. Further, since Road 74 is a boundary road between The Corporation of Haldimand County and The Corporation of Norfolk County and the completed work was funded by a separate funding mechanism, independent of the Paauw Drain, Joel Miller, P. Eng., has revised the Road 74 Special Assessments for Interval 6 of the Main Drain on the Revised Schedules.
d) The Tribunal orders the following further changes to the Engineer’s Report and the Court of Revision decision, which are reflected in the Revised Schedules attached to Exhibit 3:
i) Main Drain Interval 5: Reduce the benefit assessment to the Halliday property from $1,500 to $500 and increase the benefit assessment to Norfolk County’s Concession 10 road by $1,000.
ii) Main Drain Interval 6: Reduce the benefit assessment to the Halliday property from $1,500 to $500 and increase the benefit assessment to Norfolk County’s Concession 10 road by $1,000.
ii) The Court of Revision decision regarding the Halliday property is set aside for the following reasons:
The reduction was only applied to Interval 1 of the County Line Branch, when in fact a reduction due to less contributing area from the Halliday property should have also been applied to Intervals 1 to 6 of the Main Drain.
The effect of Corrections “A” and “B” listed above, is to reduce the Halliday property’s assessment by $2,431, which is a comparable amount to the $2,382 reduction given in the Court of Revision decision.
Thus, the Corrections “A” and “B” are proposed in lieu of the Court of Revision reduction.
10The parties requested the Tribunal notes the following:
a) When the Drain is completed, the Halliday property will have an outlet for private, subsurface tile drainage at the Station 2+124 catch basin on the east side of Road 74, without encroaching on the road allowance. Direct access to the catch basin is provided under the Paauw Drain report. Accordingly, no future connection fee is required but the landowner is to notify the Drainage Superintendent prior to making future connections at the Station 2+124 catch basin.
11The Tribunal further orders that:
a) 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
b) There shall be no other Order as to costs and all parties shall be responsible for their own costs.
Released: February 22, 2022