Greisbach Drain Sec 54(1)

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 Wilhelm Greisbach, in Monkton, Ontario, under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision on the Greisbach Municipal Drain in the Municipality of Huron East.

Before:

Kirk Walstedt, Chair; Tim Mousseau, Member; Enio Sullo, Member

Appearances:

Whilhelm Greisbach- Appellant, and assessed landowner.
David H. Grahlman- P.Eng., Gamsby and Mannerow Engineers., the engineer who prepared the report and representing the Town.
Hugh Crawford- Assessed landowner and witness for Town.
Donald Harrison- Assessed landowner.

Decision of the Tribunal

This appeal was heard in Seaforth, Ontario on September 30, 2009. Mr. Wilhelm Greisbach (Mr. Greisbach) appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54 (1) of the Drainage Act (the Act) from a decision of the Court of Revision in the Municipality of Huron East and from the Report titled "Greisbach Municipal Drain Municipality of Huron East" (the Report) prepared by Gamsby and Mannerow Engineers and signed by David H. Grahlman, P. Eng. (the Engineer) dated April 3, 2009.

Mr. John R. McLachlan, Chief-Administrator for the Corporation of the Municipality of Huron East, in the County of Huron, performed the duties of the Clerk of the Tribunal.

Prior to the beginning of the hearing, the Tribunal issued an order making all landowners assessed or compensated in the Report parties to this Hearing. An Affidavit of Service was filed by the Clerk with the Tribunal as proof that all parties had been served with notice of this Hearing.

Preliminary Matters

The Chair of the Hearing informed the parties of the audio recording of the proceedings for the Tribunal panel's reference only and that the recording will be destroyed upon release of the decision. The parties stated no objection to the audio recording of this proceeding.

The engineer submitted a new assessment detail report as new evidence at the Hearing. The appellant after having looked over the report had no objections to it being entered as new evidence. Report entered as exhibit 2.

Statutory Context

Section 54 (1) of the Drainage Act states:

"Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal."

Background

The Tribunal heard from David Grahlman, the engineer who prepared the drainage report. Mr. Grahlman stated that the purpose of the drain would be to provide a better outlet, by means of a greater capacity for lands north of Moncreiff Road, owned by Hugh and Joanne Crawford, and Cajan Farms. It would also provide greater depth for Mr. Greisbach's land so that normal farming practice would not break the tile. The Municipality did not seek any improvement for drainage of the road. In the explanation of his assessment, the engineer stated that one of the benefits of the drainage works to Mr. Greisbach's property would be a reduction in flooding. It would also provide greater capacity to Cajan Farms and to the Crawford property where surface waters have caused damage. The new tile drain has been designed to a 1" drainage coefficient.

Mr. Greisbach, an assessed landowner, appealed to the Tribunal as he was dissatisfied with the amount he was assessed for the drainage works. He disagreed with the assessment that he should pay around seventy-five percent of the total cost of the drain compared to around twenty-five percent for the upstream land owners. Mr. Greisbach wanted the Tribunal to order that his portion of the assessment be reduced to fifty percent.

The Issue

The issues before the Tribunal were:

1. Is the amount that Mr. Greisbach has been assessed fair?
2. If not, then what should be the assessment for Mr. Greisbach and the other landowners?

The Evidence

The engineer stated in the new assessment detail report (exhibit 2) that the benefit to Mr. Greisbach's property would be a reduction in flooding as it presently damages the Greisbach land. He confirmed that the tile has been designed to a 1"drainage coefficient to accommodate the direct entry of surface water from Moncreiff Road and lands north of Moncreiff Road. He stated that in developing the Schedule of Assessments, he considered the amount that Mr. Greisbach would have to spend to replace the tile drain on his property to drain his lands only. Using a 1" drainage coefficient for the design, such a drain would cost Mr. Greisbach $18,655.

Mr. Greisbach stated that the upstream landowners needed the drain more than him and that his property did not have any problems with surface water, nor flooding, with the exception of his catch basin in the south-west part of his property. He stated that he had never mentioned to the engineer otherwise. The engineer agreed that Mr. Greisbach had never mentioned to him that he had experienced flooding on his property. He further stated that the surface water coming from the upstream properties was being blocked by the road and going into a catch basin. No surface water from Mr. Greisbach's property would be going into the drain and that it would be entering the drain from north of the road.

The engineer called Mr. Crawford as a witness for the municipality because of his experience with flooding. Mr. Crawford stated that he had experienced flooding on his property with damage to his basement. He stated that the source of the surface water was his property and Cajan Farms, and that the water would naturally take its normal course had the concession road not been built up as high as it was.

The Findings

Notwithstanding that Mr. Greisbach has offered to pay 50% of the assessment, the Tribunal's decision on this matter is based on the evidence that was presented and what the Tribunal deems to be appropriate under the provisions of the Drainage Act.

The evidence from the Engineer confirmed that the tile drain was designed to a 1" Drainage Coefficient to accommodate the direct entry of surface water into the tile. If no surface water was to enter the drain, the tile could be designed to a ½" drainage coefficient. The Engineer agreed with Mr. Greisbach's claim that he does not have surface water entering the drain and that the source of the surface water is the lands north of Moncreiff Road (owned by Crawford and Cajan Farms) as well as Moncreiff Road.

Since no surface water will enter the drain on Mr. Greisbach's property (except at the downstream catch basin), the replacement of the tile drain on his lands to drain his lands only, could be designed to a ½" drainage coefficient (as recommended by The Drainage Guide for Ontario Publication 29) and would not need to extend right up to Moncreiff Road. Extrapolating from the Engineer's unit prices, the Tribunal estimates the cost to construct said tile to ½" drainage coefficient and extending to within 50 metres of Moncreiff Road, would be approximately $12,240 whereas the cost to construct the same tile to a 1" drainage coefficient is $18,655. Notwithstanding that Mr. Greisbach does not require his tile to be extended right up to Moncreiff Road and be designed to a 1" drainage coefficient, he will benefit from the extended and larger tile because of reduced surface water flow across his property. Accordingly, the Tribunal deems it reasonable that Mr. Greisbach's assessment for the overall cost of the project equate to $12,240 plus $1,210 to cover his share of the increased cost to achieve a 1" drainage coefficient. The total amount adds up to $13,450.

Clearly, the primary reason as to why the new tile drain is required is to convey surface water from Moncreiff Road and lands north of said road to a sufficient outlet across Mr. Greisbach's property. Accordingly the Tribunal finds that the Engineer's proposed 75%/25% Benefit/Outlet Assessment should be adjusted to a 60%/40% Benefit/Outlet split to more reasonably reflect the required outlet.

With respect to individual benefit assessments, the Tribunal finds that the Engineer has understated the Benefit of the new tile drain to the lands upstream of Moncreiff Road and to Moncreiff Road itself which was raised by the Municipality with no provision for drainage across the road.

On Outlet Assessments, the Tribunal accepts the principles used by the Engineer in deriving the individual Outlet Assessments except that the amounts are adjusted to reflect the overall 60%/40% Benefit/Outlet split.

Order of the Tribunal

The Tribunal orders that the Schedule of Assessment for the Greisbach Municipal Drain be amended as provided below:

* As modified by the Court of Revision

Dated at Maidestone, Ontario this 8th day of October, 2009.