Brown/Iona Road Drain

In the matter of the Drainage Act R.S.0. 1990, Chapter D.17, as amended.

And in the matter of:

An appeal to the Agriculture, Food and Rural Affairs Appeal Tribunal by Paul Brown and Nancy Brown, in Fingal, Ontario, under Subsection 48(1) of the Drainage Act from the engineer's report on the Brown/Iona Road Drain in the Municipality of Dutton/Dunwich, Ontario.

Before:

Kirk Walstedt, Chair; Jack Young, Vice Chair; Claire Belluz, Vice Chair

Appearances:

Wybe Cnossen, P.Eng., on behalf of the Municipality of Dutton/Dunwich, respondent
Paul Brown, assessed landowner, appellant
John Wiebe, P.Eng. on behalf of the appellant, Paul and Nancy Brown
Ralph Beharrell, drainage superintendent for the Municipality of Dutton/Dunwich, respondent
Neil Brown, assessed landowner
Robert Brown, assessed landowner
Brent Clutterbuck, drainage superintendent for the Township of Southwold, assessed landowner

Decision of the Tribunal

Background

The report on the Brown/Iona Road Drain in the Municipality of Dutton/Dunwich (the "Municipality") was initiated by a petition signed by Mr. Robert Brown in accordance with Section 4 of the Drainage Act, R.S.O. 1990, c.D.17 (the "Act").

The Municipality appointed Wybe Cnossen Engineering Ltd in accordance with Section 8 of the Act to examine the area requiring drainage and prepare a report.

The report titled "Brown / Iona Road Drain" dated November 27, 2007 (the "Report"), was signed by Wybe Cnossen, P.Eng. (the "Engineer").

Mr. Paul Brown and Ms. Nancy Brown ("P & N Brown") appealed to the Tribunal under subsection 48(1) of the Act, from the Engineer's Report. The reasons for P & N Brown's appeal were that:

1. they will not receive any benefit from the drainage work detailed in the Report,
2. the compensation or allowances provided to them in the Report are inadequate,
3. the assessments to the Municipality are inadequate, and
4. the petition that lead to the preparation of the Report is not valid.

The P & N Brown appeal was heard on Thursday, May 22, 2008, in Dutton, Ontario. Mr. Ken Loveland, Clerk for the Municipality performed the duties of the Clerk of the Tribunal.

Prior to the Hearing, the Tribunal issued an Order making all landowners assessed or compensated in the Report parties to the appeal. Mr. Loveland filed an Affidavit of Service at the start of the Hearing, as evidence that the Notice of the Hearing was served on all parties.

Mr. Paul Brown attended the Hearing on behalf of P & N Brown, both of whom were represented by Mr. John Wiebe, P.Eng., with CJDL Consulting Engineers.

The work outlined in the Report is intended to provide a drainage outlet for the property owned by Robert and Jean Brown (Roll # 007-102), by construction of a new tile drain beginning on their property, and continuing parallel to Iona Road, along the front of Paul P & N Brown's property (Roll # 007-103). The drain will cross Iona Road to outlet in a natural watercourse on Neil Brown's property (Roll # 002-002). The project will consist of, 470 metres of tile drain, 36 metres of pipe road crossing, four (4) catchbasins, and rip-rap erosion protection at the outlet. The estimated cost of the project is $28,468.00. The Engineer produced an assessment schedule that divided the estimated costs of the Drain among four privately owned properties in the watershed, as well as to the Municipality and to the Township of Southwold ("Township"). The Municipality and the Township were the only assessed landowners to receive special benefit assessments.
The construction of the new tile will require access to the properties of P & N Brown and Robert Brown. Further, the cutting of roots of a sugar maple tree adjacent to the boundary of the road allowance and Paul and Nancy Brown's property, will be required.

The Issues

The issues before the Tribunal were:

1. Should P & N Brown's property be compensated for potential damage to:
   1. the loss of the sugar maple tree?
   2. crop loss resulting from construction?
2. Should the net assessments to P & N Brown's property be reduced to zero?
3. Should the drain be moved to reduce its impact on the sugar maple tree?

An issue raised in the letter of appeal, with respect to the validity of the petition, was withdrawn.

The Evidence

Mr. John Wiebe, P.Eng., on behalf of P & N Brown, gave the Tribunal a brief overview of his background as a drainage engineer. Mr. Wiebe presented speaking notes with a map entitled "Watershed Plan" attached. He also made reference to a previous submission to the Tribunal, a package with a covering letter dated May 5, 2008 from CJDL Consulting Engineers, received by the Tribunal.

Mr. Wiebe told the Tribunal that P & N Brown do not have a drainage problem on their property and that their appeal is based on the view that their property:

1. will not benefit from the Drain, and
2. is inadequately compensated for:
   1. the loss of a mature sugar maple tree, partially located on their property; and
   2. expected crop loss as a result of construction on the edge of their property.

Mr. Wiebe stated that the only reason for P & N Brown's property to be included in the Report is for their property to be connected to a municipal drain and to have a legal outlet. He told the Tribunal that the Brown property should not be assessed for benefit and he presented a document containing a proposal of his opinion of how the assessments should be distributed.

The Engineer told the Tribunal that the new tile outlined in the Report is to be installed 10 feet inside P & N Brown's property line, and that if they were to need access to the Drain, they would have the opportunity to connect three (3) to four (4) runs of tile to the Drain. He added that although P & N Brown's property is well-drained, it will receive benefit from having access to a tile with greater capacity than their current system.
In response to questions from Mr. Wiebe, the Engineer told the Tribunal that the special assessments to the two road authorities are based on the actual cost of the road crossing and that properties draining into a new drain are assessed for its use, due to improvements to the service they will receive.

Mr. Wiebe requested that the overall assessment to P & N Brown's property be reduced to thirty percent of its current assessment for outlet, leading to a change in the total assessment to their property, from $1,869 to $220.

In response to questions from the Tribunal, the Engineer stated that: there are no municipal drains adjacent to the Brown/Iona Road Drain; and that the topography of the area was such that the watershed boundary was determined by visual observation.

Mr. Paul Brown told the Tribunal that the sugar maple tree originated on their property and grew outward, into the road allowance. Mr. Brown further told the Tribunal that he feels he should receive compensation in the amount of $1,044 for the loss of sap production from this tree, due to damage it will incur during construction of the project.

The Engineer referred to a letter from Brian Vaughan, an Ontario Land Surveyor, stating that the tree is located two (2) feet on to the road allowance. He also said that some of the tree's branches have been cropped due to their proximity to hydro lines.

In response to a question from the Tribunal, Mr. Brown stated that the sugar maple tree is not being tapped for syrup production at this time.

In response to questions from the Tribunal, the Engineer stated that: it would be feasible to route the tile at a farther distance from the tree than outlined in the Report; and that in the Report, the tile is approximately 12 to 15 feet (3.5 to 4.5 metres) from the tree.

Mr. Brown told the Tribunal that the roots of a sugar maple tree extend laterally at a distance that is roughly equivalent to the height of the tree. He added that to avoid damaging the roots, the tile would need to be approximately 60 feet away.

Mr. Wiebe requested that the compensation to P & N Brown's property for damages leading to expected death of the sugar maple tree be in the amount of $250. Mr. Wiebe also requested that the Drain be moved a distance of 10 metres farther from the tree, than outlined in the Report, as well as for an widened road crossing, from 18 metres to about 23 metres. He estimated that the net increase to construction costs resulting from these proposed modifications would be in the amount of $200.

The Engineer acknowledged that the proposed modifications can be done, and does not take issue with Mr. Wiebe's suggestions.

With respect to the expected crop loss as a result of construction on the edge of P & N Brown's property, the Engineer told the Tribunal that he feels that P & N Brown have been adequately compensated. He added that, at a meeting with Mr. Paul Brown, Mr. Brown expressed concern about the impact of the construction of the Drain on his property.

In response to questions from Mr. Wiebe, the Engineer told the Tribunal that his calculation of the compensation to P & N Brown's property was based on 2 years of crop failure over 50 feet of damaged area at a rate of $4 per metre. He added that it would not be unfair to double the compensation for damages to the Brown's property. The Engineer responded to further questions from Mr. Wiebe, in stating that: he is unaware of the current cost of soybeans; that the damage to P & N Brown's property will likely only be within 20 feet of the boundary; and that he is unsure of whether compensating P & N Brown for 3 years, if they were growing a more specialized crop, would be appropriate.

Mr. Wiebe requested that the compensation to P & N Brown's property for damages leading to expected crop loss be increased to $2,631, for damages over three (3) years at a rate of $877 per year. Further, Mr. Wiebe requested that P & N Brown be compensated for damages to a laneway, in the amount of $300. The total compensation requested for P & N Brown is of $3,181.

Mr. Robert Brown requested that his property be compensated at the same rate as P & N Brown's property, for damages leading to expected crop loss. Mr. Wiebe proposed to the Tribunal that, in order to achieve equitable compensation for expected crop loss, Mr. Robert Brown's compensation increase by $1,887. Mr. Wiebe further proposed that the increase in compensation to Mr. Robert Brown and Mr. Paul Brown, as well as the increased construction costs noted above, be distributed as follows:

1. fifty percent (50%) be prorated toward outlet assessments;
2. twelve and a half percent (12.5%) be directed toward the Township's special assessment; and
3. thirty-seven and a half percent (37.5%) be directed toward the Municipality's special assessment.

The Engineer acknowledged that increasing the compensation to Robert Brown and to P & N Brown, on the basis of three years of crop loss, would not be out of order. He did, however, state that the increase in compensation would need to be assessed to others. With respect to the request for damages to P & N Brown's laneway, during the construction of the Drain, the Engineer told the Tribunal that any damages can be repaired by the contractor at the time of construction, and that he does not feel compensation for the laneway is in order.

The Findings

The Tribunal has reviewed the evidence with respect to the potential damage to the sugar maple tree. While the tree is located on the municipal road allowance, it has been used in the past for maple syrup production; however, it has not been taped recently. The evidence is not compelling that the construction of the project would destroy the tree or that any landowner should receive compensation for a tree that is located on municipal property. The Tribunal notes the acceptance of the parties to relocate the drain further away from the tree and will not grant any compensation for the tree.

The Tribunal has considered the evidence and arguments with respect to the amount of allowances granted to the appellants and finds that the allowances in the Report are fair and equitable.

With respect to the assessments on the appellants, P & N Brown's property (Roll # 007-103), the Tribunal finds that there is a benefit to their property to have an improved and legal outlet for their existing drainage system across the municipal road and also for the additional capacity to connect some of their field tile directly to the new tile. The Tribunal will confirm the appellants' assessments as shown in the Report.

The relocation of the road crossing will increase the length of the crossing and the cost of the crossing. The increased cost shall be added to the special benefit assessment to the two road authorities. The length of tile will be reduced in length with a reduced cost as well. This cost reduction will prorate over the drainage area when the final costs of the drain are determined without having to amend the Schedule of Assessments.

Order of the Tribunal

After consideration of the evidence filed and the submissions made the Tribunal orders:

1. The appeals by P & N Brown (Roll # 007-103) are hereby dismissed, with the exception of the relocation of the drain to protect the sugar maple tree as outlined in Item 2 below.
2. The Engineer shall amend the Report drawings and specifications to relocate the road crossing approximately 14 metres from the base of the sugar maple tree. The revised cover page of the Report and each drawing shall be marked "As amended by the Tribunal Decision dated June 30, 2008".
3. The additional cost of the road crossing shall be added to the special benefit assessments to the two road authorities.
4. The non-administrative costs of the Municipality for these appeals shall form part of the drainage works and it is ordered there be no other order of costs and all parties are responsible for their own costs. Attention is drawn to Section 73 of the Drainage Act.

Dated at Maidstone, Ontario, this 19th day of June, 2008.