Main Drain and Branch "B" of Municipal Drain No. 1

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

And in the matter of:

Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Robert Gregson, of Straffordville, Ontario under Subsection 48(1) b and 54(1) of the Drainage Act on the Main Drain and Branch 'B' of Drain No. 1 in the Municipality of Bayham.

Before:

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

Appearances:

Robert Gregson - Appellant, and assessed landowner.
John Spriet - Engineer, on behalf of the Municipality

Decision of the Tribunal

This hearing was held in the Municipal Building, Municipality of Bayham, in Straffordville, Ontario on February 9, 2010. Mr. Robert Gregson appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) under Sections 48(1)(b) and 54(1) of the Drainage Act (the Act) from the Engineer's Report titled "Drain No. 1" prepared by Spriet Associates and signed by J.R. Spriet, P.Eng. (the Engineer) dated September 28, 2009.

Mrs. Lynda Millard, Clerk of the Municipality, 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. The Clerk of the Municipality filed an affidavit of service with the Tribunal as proof that all parties have 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 Chair disclosed to the parties that his former law firm had acted for the Township of Bayham on an unrelated legal matter approximately 10 years ago. The parties had no objections to the Chair continuing to preside over the hearing.

The Engineer requested confirmation that Mr. Gregson's appeal was with respect to the Main Drain only and excluded Branch 'B'. Mr Gregson agreed.

Statutory Context

Section 48 (1) of the Drainage Act states:

"Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,
(a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
(b) the drainage works should be modified on grounds to be stated;
(c) the compensation or allowances provided by the engineer are inadequate or excessive;
(d) the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3,
may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46(2), as the case may be."

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 Engineer's Report for Drain No. 1 was prepared under Section 78 of the Act and was adopted by the Municipality of Bayham Council on October 15, 2009. A Court of Revision was held on November 5, 2009. Main Drain No. 1 is a closed tile drain located just south of Straffordville and flows west across Lots 124 to 132, Concessions 6 and 7, Municipality of Bayham. It is made up of a Main Drain and three Branch Drains, 'A', 'B' and 'C'. The watershed comprises approximately 240 hectares of predominantly agricultural land. The original tile was constructed circa 1916 and reconstructed/repaired in the late 1960's. The current Engineer's Report proposes the reconstruction of the Main Drain with 2,805 m of 200 mm to 675 mm diameter concrete drain tile as well as Branch 'B', with 686 m of 300 mm diameter concrete drain tile. The estimated cost of the project is $349,000.

The Appellant Mr. Robert Gregson is assessed for two agricultural land parcels on the Main Drain being, Part Lot 125, Concession 6 (20.4 hectares) and Part Lot 126, Concession 6 (9.2 hectares).

Issues

1. The Appellant, Mr. Robert Gregson, is requesting the Tribunal to:
a) modify the Engineer's Report by deleting the replacement of the downstream section of the Main Drain across his lands in Lots 124 to 126 and allow the existing tile drain to remain as an outlet for the reconstructed upper portion; and,
b) modify the assessments for benefit and outlet to his lands.

Evidence - Section 48(1)(b) Appeal

The Report contains information on the investigation undertaken by the Engineer and details of the recommended drainage works, including construction drawings and specifications. The Engineer elaborated on the Report during his testimony at this hearing; the pertinent details are summarized herein.

According to Mr. Spriet, the historical records indicate that Main Drain of Drain No. 1 was originally constructed as a tile drain under an Engineer's Report in 1916. The next historical record is from 1967 when the drain was examined by another Engineer who found that the tile was exposed at many locations and much of the drain had been converted to an open ditch. That Engineer produced a report recommending the reinstatement of the 1916 tile drain starting with a 24" (600 mm) diameter concrete tile at the lot line between Lots 124 and 125 (Station 0+400 in Mr. Spriet's Report) and proceeding upstream (easterly) with decreasing tile diameters. He also recommended the construction of Branches 'A' and 'B'. Additionally, Mr. Spriet found a letter attached to the 1967 Engineer's Report, dated November 20, 1968 that references an extension of the tile drain downstream of Station 0+400 but there are no drawings or details.

Mr. Spriet testified that during his survey and examination of the site, he discovered that the closed portion of the Main Drain had been extended significantly downstream (west) of the limit identified in the 1968 letter. He referred to the extension as basically a private drain at the end of a municipal drain. The extension was installed across a former irrigation pond which has since silted in.

Mr. Spriet further testified that he has been doing drainage work in the Municipality of Bayham for many years dating back to the 1970's and is familiar with the quicksand conditions. Such conditions have caused frequent sinkholes, washouts as well as tipping and blockages of the Drain No. 1, especially the Main Drain. He said some tiles were found to be three-quarters full of sand, resulting in minimal available flow capacity. He identified a number of locations across Lots 124 to 126 where the tile had been repaired but at least 12 sink holes that had not been repaired. In some sections the tile is too shallow to provide outlet for systematic land drainage or to be crossed with farm equipment. In Lot 128, the drain also passes through two wooded areas, one comprised of pine trees, the other mostly of willow trees whose roots are well known for clogging tile drains. According to Mr. Spriet, the owner of the Lot 128 lands, Mr. Nagy, has been unable to use heavy equipment to remove the willow trees fearing damage to the shallow tile. Mr. Spriet said that costly repairs have been made annually and assessed to the drainage area.

As part of the process leading up to the Report, Mr. Spriet stated that he conducted a site meeting wherein preliminary tile sizes and costs were discussed, based on the 1967 Engineer's Report. Subsequent to his field investigation and survey, a preliminary design, cost estimate and assessments were prepared and discussed at an informal public meeting. The input received at the public meeting was incorporated into the Report.

Mr. Gregson testified that he has farmed in the area for 50 years. He has farmed the land within the watershed of Drain No. 1 since 1980 along with 1,200 other acres. His land is tiled systematically or random. He stated that his land on Lot 125 was planted with corn in April 2009 and the final yield was 205 dry bushels per acres. Lot 126 was in rye which yielded 61 bushels per acre.

Mr. Gregson further testified that the existing tile drain was installed about 40 years ago in 1969. He stated that in his opinion, the lower portion of the tile is working as good, if not better than it was when he started to farm in Lots 125 and 126 in 1980 and that is because some of the worst sink holes have been fixed. He disagreed with the Engineer that there have been costly repairs, stating that his drain maintenance assessment have been only $689.82 over the nine year period from 2001 to 2009. He also disagreed with the Engineer that the tile is plugged. He believes that a new tile drain will end up in the same condition as the existing tile because there is a pine forest and willows planted over the drain and the tile is installed with no filter cloth on it. Mr. Gregson presented some photographs that he took in late December 2009, showing the pine forest and willows. He did agree that the upper portion of the tile drain needs to be replaced but the lower portion across his lands in Lots 125 and 126 is still very good.

Mr. Gregson questioned the need for a 27" (675 mm) drain as proposed in the Engineer's Report. He said the land is very flat and there is very little runoff. He said that he asked a local contractor who has done most drain repairs in the area if the tile needed to be replaced to which he responded "stupid absolutely not".

In his summary testimony, Mr. Gregson asked that the tile not be replaced across his lands on Lots 125 and 126. The new tile drain construction should terminate at the midpoint of Lot 126 (Station 0+987 on Mr. Spriet's Report) which is the east property line between his lands and those of the upstream landowner, Mr. Herman. He said that in his opinion, it is cheaper to keep fixing the existing tile rather than replace it.

In his reply testimony, the Engineer stated that the existing 24" (600 mm) diameter tile drain, including the portion across Mr. Gregson's lands, was designed in 1967 to a very low standard with a theoretical grade of only 0.05%. Mr. Spriet calculated that the theoretical capacity of this tile is 120 l/s. However, its actual capacity is significantly less because of tipped and settled tiles, washouts, sinkholes and sand infiltration into the tiles. The outlet portion of the proposed 27" (675 mm) tile drain in his current Report has a grade of 0.11% and is designed to a 13 mm (½") drainage coefficient, giving it a capacity of 320 l/s. Further upstream, the grade of the tile reduces to 0.08% and 0.07% with corresponding capacities of 280 l/s and 260 l/s respectively.

Mr. Spriet stated that the new proposed drain, with an outlet size of 27" (675 mm) diameter will provide good drainage at a minimum design standard even though most tile drains these days are being designed to a 1" or 1½" standard per the Drainage Guide for Ontario. He said that he had originally proposed a 30" (750 mm) diameter tile but decided to recommend a 27" (675 mm) to keep the costs down.

Due to the known quicksand conditions, Mr. Spriet said he has included special provisions in his report for the installation of the tile such as the use of stone bedding and geotextile fabric. He has also specified an oversized high density polyethylene (HDP) pipe across the former railway to maintain proper flow, and has rerouted the tile around the old crossing which was had been retrofitted through the railway culvert.

Mr. Spriet testified that he is not prepared to recommend that only the upstream portion of the tile be replaced while leaving the existing 24" (600 mm) tile across Mr. Gregson's land to serve as an outlet. He stated that the existing tile across Mr. Gregson's lands is not deep enough, does not have enough slope, is plagued with frequent washouts and sinkholes and is clogged with sediment. The existing, former railway crossing is also restricting flow. The capacity of the existing 24" (600 mm) tile is significantly less than its theoretical capacity of 120 l/s, whereas the expected flow from the reconstructed upstream tile will be at least 260 l/s. Accordingly, the tile will not provide a sufficient outlet for a new upstream tile. Furthermore, Mr. Spriet said that the outlet portion of the tile, downstream of Mr. Gregson's land needs to be repaired, extended and incorporated as part of the Municipal Drain. He added that the landowners upstream are paying big dollars to replace the tile and he is not prepared to agree to leave the outlet into the old 24" (600 mm) tile.

In response to Mr. Spriet, Mr. Gregson agreed that the outlet of the existing tile at the pond in Lot 124 needs to be fixed. He did not have any questions for the Engineer but reaffirmed his opinion that the tile drain across his lands should not be replaced.

Evidence - Section 54(1) Appeal

Mr. Gregson stated that he has been assessed too much for benefit and outlet. He said that such a high assessment would not be necessary if the 24" (600 mm) tile was not being replaced across his property. Furthermore, he said that he did not understand how his assessment was calculated by the Engineer.

The Engineer provided an explanation as to how he determined the assessments. He testified that he used the "Todgham Method" which entailed breaking down the costs of the drain into sections along its route. Special Assessments and Special Benefits were extracted from each section. In support of his calculations, Mr. Spriet provided a detailed breakdown of the costs and explained in particular, how the Mr. Gregson's assessments were calculated. Mr. Gregson was satisfied with the Engineer's explanation.

When questioned by the Tribunal, Mr. Gregson conceded that the Engineer had assessed his land fairly given the replacement of the tile drain across his property. However, he still disagreed that the tile on his property needs to be replaced. He said that if the tile is not replaced, then his assessments should be much less.

Findings

We are satisfied with the Engineer's evidence and reasons for the recommended solutions in his Report, which comprises the reconstruction of the entire Main Drain to a sufficient outlet across and downstream of the Appellant's lands. The Engineer's evidence is that the existing 24" (600 mm) tile drain across Mr. Gregson's lands is in a poor state of repair, characterized by frequent washouts and sinkholes, settled and tipped tiles as well as being filled with sediment up to ¾ of their diameter. The existing tile is also too shallow and too small to outlet the increased flows that will result from the reconstructed upstream tile.

Mr. Gregson agreed with the Engineer that the tile upstream of his lands needs to be replaced, particularly because it is in a poor state of repair, is too shallow and there is a pine forest and willows planted over top of it. He acknowledged the engineer's evidence that quicksand conditions are prevalent throughout the length of the drain which continues to cause frequent washouts, sinkholes and accumulation of sand in the tiles. However, despite disagreeing with the Engineer that the existing tile drain across his lands is also too shallow and too small, he failed to produce any technical evidence to contradict the Engineer. Instead he elected to bring forward a nine year record of his assessment for repairs, suggesting that it will be much cheaper to continue repairing the tile instead of replacing it. Oddly the Engineer found at least 12 sinkholes during his survey and examination of the tile which had not been repaired in addition to the tiles being clogged with sediment up to ¾ of their diameter.

On the question of assessments, Mr. Gregson's request for a reduced assessment is premised on reducing the overall cost of the project by not replacing the downstream portion of the tile drain across his property. He conceded that his assessments were fair if the entire tile drain is to be replaced in accordance with the Engineer's report. Based on the project as proposed by the Engineer, we are satisfied with the Engineer's methodology used in calculating the assessments, including that of Mr. Gregson.

Order of the Tribunal

The appeals of Mr. Robert Gregson under Section 48(1)(b) and 54(1) of the Act are denied.

Dated at Maidstone, Ontario this 16th day of February, 2010.