Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone 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:
John Paul Clarence Clarke and Tanya Susan Clarke VS The Municipality of North Perth [Final Decision]
GALBRAITH DRAIN
STATUTE:
Drainage Act
HEARING:
February 10, 2022
DATE OF DECISION:
March 03, 2022
010Galbraith21
NEUTRAL CITATION:
2022 ONAFRAAT 07
FILE NO.: 010Galbraith21
DATE: 2022/03/03
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 (“the Tribunal”) by John Paul Clarence Clarke and Tanya Susan Clarke under section 54 of the Drainage Act from the decision of the Court of Revision with respect to the Galbraith Drain in the Municipality of North Perth.
AND IN THE MATTER OF an electronic hearing held pursuant to Rule 18 of the Tribunal’s Rules of Procedure.
BETWEEN:
John Paul Clarence Clarke and Tanya Susan Clarke Appellant
– and –
The Municipality of North Perth Respondent
Self-Represented
Self-Represented
Heard: February 10, 2022
Before: Brandi Neil, Vice-Chair; Robert Fuller, Vice-Chair; and John Johnston, Vice-Chair
Appearances: Brandon Widner, Engineer who wrote the report John Paul Clarence Clarke and Tanya Susan Clarke, Appellants Ron McCallum, Witness for the Appellants Kriss Snell, Chief Administrative Office for the Municipality
TRIBUNAL decision
1The Tribunal held this section 54 appeal hearing by Zoom video conferencing on February 10, 2022. The Engineer’s Report for the Galbraith Drain (“the Report”) was prepared by Brandon Widner, P. Eng. (“the Engineer”) of Spriet Associates, Engineers and Architects and is dated May 20, 2021.
2A pre-hearing conference was held on November 16, 2021, which was attended by the Appellants John Clarke and Tanya Clarke as well as another party to this appeal, John Bijman, who had indicated he planned to attend the appeal to read or file a statement. During this pre-hearing conference the Appellants indicated they would concede the Engineer, Brandon Widner’s qualification as an expert in Municipal Drains.
Preliminary Matters
3After receiving the Appeal, the Tribunal issued an order making all landowners assessed or compensated in the Report, parties to the appeal. The Municipality filed an Affidavit of Service as proof that all parties had been served with the Notice of Electronic Hearing. This affidavit became Exhibit 1 at the appeal.
Background
4In the Report, Mr. Widner refers to the outlet of the Noah Martin drain as the Johnson Drain, however, he refers to the outlet as the Johnston Drain on the plan and profile included in the report. In this decision the Tribunal will refer to the outlet as the Johnson Drain.
5The Galbraith Drain was originally constructed pursuant to report prepared by S.W. Archibald, O.L.S., dated January 24, 1939. The drain at that time consisted of an open drain underneath of which a 250mm-300mm diameter tile was laid. It extends from the Johnson Drain in Lot 8, Concession 5 to Road 166 and was approximately 1189 lineal meters in length.
6This Drain was an improvement of an existing drain pursuant to a report submitted by E.W. Shifflett, P. Eng. of Gamsby & Mannerow, dated August 5, 1975, and consisted of the installation of approximately 2558 lineal meters of 250mm to 525mm diameter filed tile with appurtenances, running roughly parallel to the existing open drain as a twinned drain.
Existing Drainage Conditions as set out in the Report
7The Appellants reported that the existing drain functioned adequately in their lands (Lot 8 Concession 5) and that the existing ditch was not in the same location as the existing tile in their lands.
8Land Owner R. Havercamp (Lots 9, 11, 12, Concession 5), made a request that the existing ditch in their lands be abandoned and backfilled and that the drain be improved to better serve his lands east of Road 166.
9Land Owners R. & J. Galbraith indicated that the existing drain still functions in their lands. They also indicated that the ditch in their land was privately backfilled and that during moderate rainfall events there is flooding long Road 166.
10Land Owners in the watershed, H. Menke and J. Bijman (Lot 9, Concession 4), and E. Hamilton (Lot 10, Concession 4), indicated their properties are served by an existing private drain and they were not requesting any improvements.
11Land Owners J. & B. Cressman (Lot 11, Concession 4), were also not requesting that the drain be extended through their property.
The Engineer’s Report
12A request for drain improvements was made by R. Havercamp. A field investigation and survey were completed and the Engineer determined that the existing Galbraith Drain is undersized by today’s standard and portions of the drain had been removed since the last report in 1975. A report was prepared pursuant to Section 78 of the Drainage Act for the reconstruction of the Galbraith Municipal Drain serving parts of Lots 7 to 12, Concession 4 and 5 (Elma) in the Municipality of North Perth.
13The following are the recommendations included in the Report:
a) The existing Galbraith Main Drain, and Branches ‘A’ and ‘C’ be twinned in areas with a new 600mm to 750 mm diameter concrete tile and replaced in the remaining area with a 300mm to 600mm diameter concrete tile.
b) That the remaining portions of the overflow swale constructed in 1939 be backfilled and graded to construct a waterway to accommodate excess surface water.
c) That maintenance work be completed by the Municipality on the Johnson Drain to provide a proper outlet for the new drain.
The Issues
14Are the allowances and the assessments to the Appellant’s properties fair and reasonable?
Evidence of the Parties
Evidence of the Engineer Brandon Widner
15Mr. Widner gave the following evidence:
o Mr. Widner explained that the Galbraith Drain is in North Perth in the former Township of Alma, it is an existing municipal drain that services approximately 241 hectares.
o He explained that they were originally unable to do an onsite meeting because of the pandemic so reached out to the landowners individually. During these discussions Mr. Havercamp, who owns a number of properties on the drain, indicated he had recently sub surface drained one of the farms in Lot 9 Concession 5 in Spring 2020.
o Mr. Havercamp said he backfilled the existing channel himself and removed some of the catchbasins and removed some of the other features of the existing drain.
o At an onsite meeting in October of 2020 on the side of road 166, Mr. Widner had a chance to examine the drain first hand and got some further information from the land owners about the recent work on the Havercamp property.
o On the Clarke property the existing open channel or swale is not in the same location as the Shifflet tile. The open channel runs straight north rather than east whereas the tile cuts across on an angle.
o R. and J. Galbraith had also backfilled the open channel that was part of the 1939 drain.
o As the drain from 1975 and the 1939 drain are not up to today’s standards Mr. Havercamp was looking:
To bring the drain up to today’s standards.
To eliminate large surface runs through his property so he could farm his 100 acres all the way through.
o Mr. Widner provided preliminary designs, cost estimates and assessments that were circulated to the owners. After receiving comments he then made some alterations to the proposals and communicated that to each owner.
o Mr. Widner testified as to the recommendations in the Engineer’s report as set out above in paragraph 13 and indicated:
The total scope work being done consisted of approximately 2261 metres of tile.
The cost of the work is estimated at $322, 000.
There are a number of special assessments to the road as there are three road crossings.
16Mr. Widner then reviewed the documents set out below that were put on the screen for all parties to see and were entered as exhibits and gave the following evidence:
o He used the Todgham method of distributing the cost amongst the landowners. The first section of the drain consisted of the work on the Clarke property.
o He went over the details of all the items of work being done on the Clarke property as set out in Exhibit 3. He listed all the items of work: backfilling, outlet, 750 mm tile, top soil stripping, catchbasin, Laneway crossing, a portion for exposing tile, a portion of contingency along with the estimated cost of each item. The total estimated cost for that work is $81,000. He divided $81,000 between outlet and benefit; benefit being better control of surface and sub surface water and more efficient use of the land. He assessed 47.5% of the cost ($38,480) to the Clarke property for benefit.
o He explained he did reference the previous reports from 1939 and 1975 where this property was assessed benefit at a slightly higher rate than what is being proposed in the current report.
o Mr. Widner referred next to Exhibit 3 to show how he calculated outlet assessments. For section 1, all of the work on the Appellant property, he assessed outlet over the entire watershed. He used a factor for runoff, location, and land use to calculate equivalent acreage. In the case of the Appellant the land is all cleared and cropland with a runoff factor of 1, a location factor of 0.4 since it is the lower end of the drain. The result is the 22.30 ha. property is assessed as 8.92 ha. of equivalent acreage. Similar calculations were made of all of the other properties. The remaining $40,502 of the estimated cost in section 1 of the drain is divided by the total equivalent acres resulting in an outlet assessment of $1,716 for the Clarke property.
o He testified that there is a tremendous benefit to this property. He explained there is a current swale/ditch on this property that will be eliminated. The Appellants will have a new inch and a half design coefficient drain with two twin tiles through their property one being a 21 inch tile and the other being a new 30 inch tile. That is how he determined the 47.5 per cent benefit rate.
o He explained it is slightly less than what he would normally do because it is a twinned system.
o He explained there are catchbasins proposed at each property line. There is one proposed between the Clarke’s and the Havercamps. There will be a berm built there to get as much surface water into the catchbasin as possible.
o He then referred to Exhibit 6, the Main Drain on the Clarke’s property proposal of 750 mm tile and HDPE pipe under their existing farm laneway proposed at a grade of .38%. He said there is a fairly decent fall on that property and going up to the sideroad, the fall continues.
o The benefit assessed to the Clarke Property is $38,480.00 and the outlet $1,716.00, for a total cost to the Clarkes of $40,196.00 assessed.
o On page 7, Schedule A, the allowances for the Clarke property are listed. There is Section 29, Drainage Act allowances for right of way of $2,420.00 and Section 30, Drainage Act allowances for crop damages of $ 1,970.00 for total allowances of $4,390.00.
o Mr. Widner explained that he based the watershed boundary on the maps from the 1975 and 1939 reports and supplemented that with information he obtained from tile drainage maps provided by the Havercamp’s contractor who had recently installed systematic tiling on their property. He is confident the watershed boundary is accurate.
17Mr. Widner gave the following evidence after the Appellants presented their case:
o The sideroad is a non maintained winter road so it would not be what would be referred to as an overly improved road and not substantially built up. Currently, during a large storm, event water overtops it.
o The sideroad is essentially 3 metres higher than the Clarke’s farm, there are existing basins on the sideroad and all of that was existing from 1975.
o For property 1-107 right beside the Clarkes there is a very recent tiling map from 2020. For properties, 1-109 and 1-110 that was tiled by the previous owners Rowe farm but those maps were provided as well.
o He found those maps very close to the watershed map from 1975.
o He pointed out on page 2 of the drawings; on the profile there is a very clear grade towards the Clarke property from the sideroad. He acknowledged the first farm; the Galbraith is rather flat but when you get into the Havercamp property there is significant grade towards the Clarke property in the neighborhood of over a meter of fall toward their land.
o In cross examination, Mr. Widner was asked about the backfilling of the swale/ditch that the Galbraiths and the Havercamps have already done, and if it negatively effected the waterflow/drainage on these farms. He indicated he has never seen the properties without those swales filled. He did say there were a number of catchbasins previously removed on the Havercamp properties that had stopped water from entering the tile on that property but the proposed catchbasins at the property lines will alleviate that.
o The Appellants asked where they would see this water run across their land and Mr. Widner answered that everything he has shows the water flows in the direction of the Appellants farm. He stated he didn’t know where else it would go as their profile and everything shows the Havercamp property slopes from the East to the West.
o He stated that the division between outlet and benefit of the section of the drain on the Appellant’s property was fair and appropriate in his professional opinion. He pointed out that the Appellants would receive benefit from much more workability of the farm, from reclaiming the land that is currently open ditch and would also have much less surface water running over their property
Evidence of Ron McCallum
Expert Qualification
18The Tribunal heard evidence regarding Mr. McCallum’s qualification first to determine if he would be qualified to give expert evidence. He gave the following evidence regarding his qualifications:
o He had not completed the Form 53 Acknowledgment of Expert’s Duty but on consent of the Municipality this was completed orally as part of his evidence.
o He set out his experience starting in the drainage business in 1971 for a company in Walton and then he purchased that company in 1977 and he then went to a drainage plow.
o He averages about 4000-5000 acres a year systematic tile drainage with one drainage plow.
o He has been installing drain tile for 51 years.
o He has no experience in assessing municipal drain costs.
o He installed municipal drains from 1971 until about ten years ago, approximately three to four a year, but was only involved with the installation not the design. His only design experience is for on farm drainage.
o He confirmed he has been licenced as a tile drainage contractor by the Ontario Ministry of Agriculture Food and Rural Affairs since 1973.
19The documents setting out Mr. Callum’s experience, as a licenced farm drainage contractor for over 50 years, his plan for the Clarke’s property, and a letter with his opinion on a systematic tile drainage project for the Clarke’s property are filed respectively as Exhibit 8.a), b) and c). Based on the experience outlined by Mr. McCallum the Tribunal qualified him as an expert in farm drainage in general but not in the area of design or assessment of municipal drains.
Evidence of Mr. McCallum
20Mr. McCallum gave the following evidence:
o He looked the farm over and decided the Appellants would not connect into the new drain. He said there will be a lot of work on the Appellant’s property to clean up after the work contemplated in the report.
o He discussed his sketched plan of drainage for the Clarkes. This plan emptied directly into the Johnson Drain without making use of the Galbraith Drain.
o He clarified he was only going to connect into the Johnson Drain
21Upon cross examination Mr. McCallum responded that:
o The map he provided was proposed not existing.
o The new drain will be of benefit for the Appellant and nice to stop runoff.
o He was hoping that that the surface runoff will go in the new municipal drain and clarified that it is just laterals that he planned to install.
o McCallum further explained his proposed new header would follow the open ditch and then head north east and the laterals would be going the same way as the proposed new municipal drain. He would not connect to it as the concrete tile are too thick so he would install new laterals beside it.
o In his opinion this would be the most appropriate systematic drainage proposal for this property.
o Mr. McCallum indicated he had made no GPS or topographic survey of the Clarke property; that he had just drove around and did a bit of surveying from the proposed drain north but did not do anything on the south side.
Evidence of Paul Clarke
22Mr. Clarke gave the following testimony:
o He testified that he has lived on the property his entire 47 years with the exception of a three-year period and he knows how the property drains. He explained that he and his wife are not opposed to this drain as the rest of the farms need it.
o The drainage proposed is based on the maps from the 1970’s that were based on the maps from the 1930’s. He feels the maps are out of date and that the watershed boundary has changed over time.
o He stated that the water that is the problem doesn’t get to their property without the open ditch that used to be there. He said the water is trapped at the sideroad, that is where the problem is and that is why Mr. Havercamp has asked for improved drainage
o His only benefit comes from the closing of the open ditch.
o He noted that a berm is being installed on his land so the upstream surface water will go into the catchbasin that is being installed on the property line. He should not have to pay to conduct surface water from upstream land across his property.
o He referred to Exhibit 5 and explained that near line 78 at the sideroad the surface water gets within six feet of the Johnson drain and it doesn’t need to flow down to his property
o During cross examination he explained there is a knoll between the farms and the surface water is trapped at the Galbraith farm and flows towards the sideroad and is of no benefit to him.
o When asked how the watershed area has changed, he said roads have been built up but he cannot say how that has changed the watershed and that he does not really understand it.
23In concluding his evidence, Mr. Clarke stated, he feels the property will not benefit from this drain with regard to surface and subsurface water, the drain only provides an outlet for the neighbour’s water therefore he should not be assessed for that work.
Disclosure Issue
24It was raised by the Appellant in closing submissions that two of the documents entered as the, Exhibit 2 and 3 had not been provided to the Appellants prior to the hearing.
25The Tribunal spent some time bringing these documents up on the screen so all parties were clear what document the Engineer was referring to while giving his testimony. At no time during his evidence did the Appellants indicate they had not received this document. Exhibit 3 is of particular importance as it breaks down the basis for the Appellant’s assessment.
26The Engineer testified these documents were also presented at the Court of Revision.
27The Appellants were offered an adjournment to review these documents in detail and have the opportunity to give further evidence (either themselves or their expert) as well as further cross examination of the engineer.
28They indicated they did not want an adjournment as it would not change their approach to the appeal. The Tribunal further asked the Appellants if they wished to take a recess to confer in private between the two of them before making a decision. They were clear they did not need a recess and they were comfortable with their decision to not seek an adjournment.
Analysis and Findings
29Mr. McCallum stated in his testimony he had not used a GPS or surveyed the whole Clarke property. He also was not qualified to nor did he try to question the assessments. He simply provided another alternative.
30The Tribunal found Mr. McCallum to give honest testimony to the best of his drainage experience. However, this is a Section 54 Appeal from the Court of Revision regarding the Assessments. It is not a matter before this Tribunal to consider the nature of the proposed Drain and other drain alternatives. His evidence was not helpful to the Tribunal in considering the Clarke’s assessments with regard to a Section 54 Appeal.
31The Tribunal found Mr. Clarke gave honest evidence but it was not very helpful to the Tribunal in reviewing the assessments. In essence he testified that he has lived there almost all of his life and his farm does not see much surface water and he believes the watershed area has changed. His explanation for why there is no surface water from the Galbraith farm is that there is a knoll between his farm and the Galbraith farm where the water gets trapped and that prevents surface water from coming to his farm. He did not provide any photographic or other tangible evidence of his property or of this knoll or details on exact size, height, or location. Nor did he ask Mr. Widner about this specific knoll and its impact on the flow of water.
32He was unable to point to any specific changes to the land or area as to why the watershed boundary has changed other than suggesting the passage of time and that roads have been built up. He indicated he could not explain it and did not understand it.
33Mr. Widner gave clear testimony explaining he relied on the previous watershed maps as well as reports from the Johnson Drain which is an outlet for this drain and updated information was provided from the tile maps from the Havercamp properties
34Mr. Widner gave detailed evidence regarding the grade of the land as set out on the profile of the property. He also explained that the sideroad is not a maintained winter road and has not been overly built up. This suggests it would not have affected the watershed boundary. He maintained that all the information shows the water flows East to West and the watershed map is accurate.
35The evidence from Mr. Clarke that at times the water comes within 5-6 feet of the Johnson Drain is accepted. Mr. McCallum’s evidence that there is another option for drainage is also accepted but the Tribunal finds this evidence does not justify the altering of the assessments in a Section 54 appeal.
36The Engineer prepared his assessments based on the Todgham Method, which is an accepted practice in this field. He explained the meeting and consultation process. He explained the factors they considered and the watershed they observed, the information they used in determining that watershed. He explained in detail how the Clarke’s assessment was calculated.
37After hearing all other evidence the Engineer clearly stated he still believes the assessments are appropriate. He gave clear evidence about the benefit to the Clarke’s in having more workable land with the removal of the open ditch and the reduction of surface water across their lands.
38The 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.
Orders of the Tribunal
39There shall be no changes to the Appellant’s assessments and the appeal is denied;
40The 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,
41There shall be no other Order as to costs and all parties shall be responsible for their own costs.
Released: March 3, 2022