Miller Drainage Works 1969 Revised Decision as per Order of Vice-Chair Jack Young dated February 17, 2011

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 Rein Minnema of Glencoe, Ontario under Subsection 48(1) and 54(1) of the Drainage Act from the Engineer's report and from a decision of the Court of Revision on the Miller Drainage Works 1969 in the Municipality of Southwest Middlesex.

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

Appearances:
Rein Minnema - Appellant
Peter Semowoniuk - Assessed landowner
Raymond Dobbin, P.Eng. - Engineer who prepared the Report

Decision of the Tribunal

This hearing was held in the Council Chambers of the Municipality of Southwest Middlesex in Glencoe, Ontario on November 2, 2010. Mr. Rein Minnema appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 48(1) and 54(1) of the Drainage Act (The "Act") from the Engineer's Report (the "Report") dated November 8, 2009, and from a decision of the Court of Revision dated April 13, 2010. The Report was prepared by Raymond Dobbin, P.Eng. (the "Engineer") under Section 78 of the Act.

Preliminary Matters

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.

Background

The Miller Drainage Works 1969 (the Drainage Works) is located on Lots 9 to 13, Range 1 N.L.R. and Range 1 S.L.R. formerly in the Township of Ekfrid, now in the Municipality of Southwest Middlesex, in the vicinity of Longwoods Road and Thames Road. The closed upper portion of the drain extends from 128 m east of the Lot 10/11 line downstream to 125 m east of the Lot 11/12 line and is comprised of 695 m of 300 mm diameter concrete tile and 12 m of 375 mm diameter corrugated steel pipe. The lower portion of the Drainage Works consists of 1,463 m of open channel from the outlet of the tile to its own outlet in Lot 13, Range S.L.R. The open channel also provides an outlet for the closed McTaggart McLean Drain which empties into the open channel in the same general area as the closed upper portion of the Drainage Works.

It should be noted that the Lot 11/12 line coincides with the property line between the Appellant's lands and those of the upstream assessed landowner, Mr. Semowoniuk. The outlet for the closed upper portion of the Drainage Works is located on lands owned by Mr. Semowoniuk in Lot 11. Hence, there is 125 m of open channel on Mr. Semowoniuk's lands before crossing onto the Appellant's lands in Lot 12. The open channel continues on the Appellant's lands for approximately 332 m before crossing onto the Longwoods Road right-of-way.

The work proposed by the Report encompasses the construction of a new 1800 mm diameter corrugated steel pipe access culvert across the open portion of the drain on the Appellant's lands in Lot 12, Range 1 N.L.R. The estimated cost of the work is $11,584 which is assessed to the affected lands and roads. The Report also provides revised schedules of maintenance for the closed and open portions of the Drainage Works.

Issue

The Appellant, Mr. Rein Minnema, is requesting the Tribunal to order that the Report be amended to provide for enclosing the open channel of the drain on his lands in Lot 12, Range 1 N.L.R. downstream to Longwoods Road, as originally proposed in the Engineer's Preliminary Report dated February 10, 2006.

Evidence

Mr. Raymond Dobbin - Engineer who prepared the Report

Mr. Dobbin gave evidence with respect to the chronology of events leading up to this Tribunal hearing. He testified that the project originally started in 2005 when Mr. Minnema requested that the open channel of the drain on his property in Lot 12, Range 1 N.L.R. be closed in with a tile. He said that following his appointment by Council to prepare a preliminary report, he conducted a site meeting on December 7, 2005, during which Mr. Minnema confirmed his request for the enclosure. However, he said that the immediately upstream landowner, Mr. Peter Semowoniuk, was not in favour of filling in the open channel.

Mr. Dobbin testified that he prepared a Preliminary Report dated February 10, 2006 which was considered by Council on March 15, 2006. He said that his preliminary report contained three options for the drain enclosure on Mr. Minnema's lands:

1. A covered drain commencing at the outlet of the existing tile and extending downstream to Longwoods Road;
2. A covered drain commencing at the Lot 11/12 line and extending downstream to Longwoods Road, including erosion protection at the outlet of the existing tile;
3. A covered drain with a swale over the drain to accommodate excess surface water from the outlet of the tile drain to Longwoods Road.

Mr. Dobbin stated that the preliminary cost estimate for option 1 was $38,638 while the estimate for each of options 2 and 3 were approximately $32,000. For purposes of his preliminary design, he said that he used a 25 mm drainage coefficient for options 1 and 2 and 20 mm for option 3. He explained that a 20 mm coefficient is typically applied to drains that are used for agricultural purposes while the 25 mm coefficient is used in situations where surface water is allowed to enter the drain.

Mr. Dobbin testified that his preliminary report was considered by Council for the Municipality on March 15, 2006. He said that concern was raised at the meeting by upstream landowners regarding sufficient outlet for surface water because the 1969 Engineer's Report did not allow for surface water flow into the tile. He said that at the end of the meeting it was agreed that in lieu of enclosing the open channel, an access culvert would be constructed in Lot 12 and erosion protection would be installed at the outlet of the tile drain in Lot 11.

Mr. Dobbin went on to testify that he then prepared a final report dated June 23, 2006 that provided for an access culvert on the Appellant's lands in Lot 12 and erosion protection at the outlet of the tile portion of the drain in Lot 11, all for an estimated cost of $15,680. Additionally, he said that the report provided separate and revised schedules of maintenance for the open channel and the tile portions of the Drainage Works. He stated that the report was considered by Council on August 18, 2006 at which time Mr. Minnema's representative objected to the installation of a culvert and suggested an alternative to realign the open channel along Longwoods Road. Mr. Dobbin testified that there was no action taken by Council on his report and that he was directed to look into the suggestion to realign the channel. Acting on Council's direction, he said that he conducted a further meeting with the landowners on September 6, 2006 but there was no clear solution agreed upon. After he reported the results of the landowner meeting to Council, he stated that Council met on January 27, 2009 and decided to send a notice to the landowners that Council was not proceeding with the request and that no further work was contemplated.

Mr. Dobbin testified that a new request for drain improvements was received from Mr. Minnema on January 27, 2009 asking for an access culvert, a clean out of the open channel and erosion protection at the outlet of the closed tile drain. Accordingly, Mr. Dobbin said that he prepared a second final report dated May 30, 2009 which included an access culvert in Lot 12 and erosion protection at the outlet of tile drain in Lot 11, all for an estimated cost of $15,035. He said that his report also included the schedules of maintenance for the open and closed portions of the drain, as in his previous report. Mr. Dobbin explained that he sized the access culvert to accommodate a 1 in 2 year storm and that he assessed 40% of the cost of the culvert to Lot 12 and the remainder to upstream properties. He stated that the cost of the erosion protection was assessed to upstream properties.

Mr. Dobbin testified that his May, 30, 2009 report was considered by Council on July 8, 2009. He said that at the meeting, the upstream landowners, including Mr. Semowoniuk, requested that the access culvert be upsized to a 1 in 5 year storm design. He said that Mr. Semowoniuk also complained that the erosion protection measures at the outlet of the tile were not necessary and he would prefer that they be removed from the report. Mr. Dobbin said that Council's action was to refer the report back to him to remove the erosion protection and to increase the size of the access culvert.

Mr. Dobbin explained that he complied with Council's instructions by preparing a third final report, this one dated November 8, 2009, which is the subject Report of this hearing. He said that the current Report provides only for the installation of an 1800 mm diameter access culvert on Mr. Minnema's lands in Lot 12 for an estimated cost of $11,584. He confirmed that the culvert is now designed to accommodate a 1 in 5 year storm as instructed by Council. As in previous reports, he said that the current Report also provides the separate schedules of maintenance for the open and closed portions of the drain.

Mr. Dobbin stated that a meeting to consider the current Report was held on February 3, 2010 but was deferred to March 3, 2010 at which time Council adopted the Report. He said that a Court of Revision was then held on April 7, 2010 following which assessment appeals were received from Messrs. Minnema and Semowoniuk. He said that an appeal was also received from Mr. McLean, another upstream landowner, appealing not only his assessment but also the work, on the grounds that the access culvert was not necessary. Mr. Dobbin said that the action of the Court of Revision was to confirm all assessments contained in the Report.

Mr. Dobbin testified that at the junction of the two tile drains with the open channel, there has been considerable erosion over the years caused by surface waters entering the channel. He explained that the 1969 Engineer's Report provided for the construction of the tile and improvements to the open channel but did not specify any erosion protection at the outlet of the tile nor did the report address the outlet of surface water to the open channel. Mr. Dobbin recalled information he had received from Mr. Semowoniuk describing problems associated with upstream surface water flowing through Mr. Semowoniuk's lands, including contaminated surface water from an upstream livestock operation. He said that Mr. Semowoniuk had constructed a grassed waterway over the tile to protect against erosion.

Mr. Dobbin calculated that based on his analysis, the 300 mm diameter tile that was installed under the 1969 report was designed to a 9 mm drainage coefficient, which was typically used during that time. He stated that farming practices have changed considerably since 1969 with many more lands being converted from pasture to cash crops, thereby increasing runoff. He explained that today, agricultural tiles are typically designed to a 20 mm drainage coefficient and as much as a 25 mm drainage coefficient where surface water is of concern.

Mr. Dobbin referred to several photographs showing the extent of the erosion at the outlet of the closed tile. He said that an attempt had been made in the past to control the erosion with the installation of a catch basin and pipe to intercept the surface flow but this had failed. When Mr. Dobbin was asked by the Panel on the need for erosion protection at the outlet of the closed tile, he responded that in his opinion, the erosion protection is necessary and that the reason he did not include it in his Report is that Council instructed him to remove it.
Also responding to questions from the Panel, Mr. Dobbin testified that he upsized the access culvert from a 1 in 2 year design to a 1 in 5 year design in order to comply with Council's instructions. However, he asserted that a 1 in 2 year storm is the normal design standard for a culvert of this type.

Again responding to questions from the panel, Mr. Dobbin agreed that Mr. Minnema had never changed his desire to have the drain enclosed since the preparation of the preliminary report in 2006. However, the upstream landowners, particularly Mr. Semowoniuk had always opposed the enclosure.

Mr. Dobbin was asked specifically by the Panel whether he still stood by his recommendation for a closed tile drain as described in his preliminary report. He responded affirmatively saying that he has undertaken numerous successful drain enclosure projects in the past and in his opinion, the downstream extension of the drain enclosure in this case could be successfully undertaken as well. He did warn however that there are currently no provincial subsidies for such a tile enclosure. He also said that the enclosure would also have to satisfy the requirements of the Fisheries Act. He said that Fisheries and Oceans Canada had been notified of the original tile enclosure project but the approval was no longer necessary because Council changed direction from a drain enclosure to an access culvert.

Mr. Rein Minnema - Appellant

Mr. Minnema testified that he wants the drain on his property filled in. He confirmed that he made his original request to have the drain enclosed back in 2005. As part of his documents submitted to the Tribunal, he provided a copy of the preliminary engineer's report prepared by Dobbin, dated February 10, 2006. He said that the report described alternatives for enclosing the open drain which he supported. However, over the years since the preliminary report, everything seems to have gone in a different direction, ultimately ending up with an Engineer's report that he does not support. He said that the access culvert proposed by the current Report would not be of much use to him and he would still like to see the drain closed in. He said that Council did not accept the Engineer's preliminary report and chose instead to move forward with the installation of an access culvert. Although he expressed his opposition to the changing project throughout the various meetings, he said that nothing came of it. He said at one time he accepted the idea of a culvert instead of enclosing the drain but he was never happy about it.

The Panel specifically asked Mr. Minnema to describe what he wanted the Tribunal to order. He replied that that he did not support the current Report which provides for installation of an access culvert. Instead, he would like to have the open channel drain on his property enclosed with tile with a surface swale over top of the tile to allow for surface water flow during storm events, as described in Mr. Dobbin's original preliminary report. Mr. Minnema confirmed that he understood that there would be no grant for enclosing the drain.

Mr. Peter Semowoniuk - Assessed landowner

Mr. Semowoniuk testified that he is opposed to extending the enclosure downstream because there is a huge amount of surface water that flows off his land at the outlet of the tile. He said he is also opposed to installing erosion protection at the outlet of the tile. He testified that a catch basin and pipe was installed by the Municipality some time ago to try to deal with the erosion but that setup has failed. He said that because surface water flow was not addressed in the 1969 Engineer's Report, he has constructed a large, grassed surface water swale on his property at his own cost to deal with surface water. He remarked that he wants to make sure that water flows off his land quickly and that enclosing the drain downstream would not provide a big enough outlet. He also said that he asked for an upsizing of the access culvert to make sure that the huge amount of surface water will get away quickly.

Mr. Semowoniuk further testified that the Engineer was incorrect in stating in his reports that there was an open channel on his property which was enclosed by the installation of the tile in 1969. He said there was never an open channel on his property.

Review of Documents

Both the Municipality and the Appellant submitted a series of documents to the Tribunal which were entered into evidence. In particular, the Appellant submitted a copy of the Preliminary Engineer's Report prepared by Mr. Raymond Dobbin, P.Eng., dated February 10, 2006 as well as a copy of the 1969 Engineer's Report by C.P. Corbett, P.Eng., dated September 15, 1969 neither of which were provided by the Municipality.

The documents provided by the Municipality relate to events taking place between January 27, 2009 and July 30, 2010. Events dating back to 2005 as described in the testimony of Mr. Dobbin are only referenced in part in a municipal staff report to Council dated February 11, 2010. Of particular significance is a letter from Mr. Dobbin to the Municipality which was attached to the staff report. In that letter dated January 14, 2007 Mr. Dobbin summarized the events which had transpired previously and made the following comments:

"The erosion at the top end of the open channel where the tile drain portion of the Miller Drainage Works outlets along with the McTaggart McLean Drain is a concern. In my opinion, this erosion has not stabilized and will continue to get worse over time despite the statements of the owner of lot 11. The concerns of upstream landowners regarding the large amount of water that floods lot 11 from upstream properties to the east and from the McTaggart McLean Drain drainage area to the south are due to the lack of surface water capacity in those drainage works. The proposals for the enclosure of the open channel or the realignment of the open channel will not address concerns along the tile drains upstream.

The proposals in the preliminary engineer's report including the installation of a tile will improve the outlet from the tile drain downstream with the increased runoff coefficient and will address the current erosion at the head of the open channel.

While the realignment of the open channel would function, I would not recommend this option, as the channel would be realigned through substantially higher ground resulting in excess backfill material for the existing channel. Excess surface water from upstream during large rainfall events will still follow the lowest run through the field that follows the existing open channel. In my opinion, a grassed waterway or a right of way will still have to be established in this area.

In my opinion, the best solution is the installation of a tile drain generally following the existing channel with outlets for surface water and extending from the outlet of the existing tile portion of the Miller Drainage Works and the McTaggart McLean Drain downstream to Longwoods Road"

The documents indicate that, acting on the staff report described above, Council passed a resolution on February 11, 2009 appointing Mr. Dobbin to prepare a second report on the Miller Drainage Works to include the same recommendations as contained in his report dated January 23, 2006, providing for an access culvert and erosion protection at the outlet of the closed tile. Council also instructed the Engineer to assess the outstanding costs on Miller Drainage Works 1969 within the new report.

The record of the July 8, 2009 Council meeting to consider the Mr. Dobbin's second report dated May 30, 2009 confirms the resolution "that the report on the Miller Drain be referred back to the engineer to resize the culvert to a one in five year co-efficient and to delete the erosion provisions at the tile outlet into the open ditch."

Findings

The Tribunal is disturbed by the actions of the Municipality in performing its duties under the Act, beginning with Council's consideration of the Engineer's preliminary report at their meeting of March 15, 2006. The Engineer's preliminary report provided three options for the enclosure of the drain in response to the original request by Mr. Minnema to have the drain enclosed. However, after hearing complaints from upstream landowners, Council chose to ignore the Engineer's recommendations contained in his preliminary report and restated in his letter attached to the municipal staff report. Instead, they opted to proceed in a completely different direction by instructing the Engineer to prepare a report based on installing an access culvert and erosion protection. It was this Council action that appears to have initiated a nearly 5 year litany of events which led to the preparation and consideration of three versions of final reports, with the recommendations in each successive report becoming progressively further removed from Mr. Minnema's original request for an enclosure and the recommendations of the Engineer in his preliminary report. During the process, Council provided specific instructions to the Engineer to modify his recommendations and design parameters, including changing the report from a drain enclosure to a culvert, deleting erosion protection and the upsizing of the access culvert from a 1 in 2 year to a 1 in 5 year design standard.

The Tribunal finds that Council for the Municipality exceeded their jurisdiction under the Act by exerting undue influence on the Engineer which prejudiced the Engineer's independent judgment.

The Tribunal is also disturbed by the Engineer's passivity in complying with Council instructions to make significant changes to his recommendations and design parameters. In his letter to the Municipality of January 14, 2007, which was attached to the staff report to Council dated February 11, 2010, the Engineer clearly stated that the best solution to address problems, including surface water and erosion, was the installation of a tile drain generally following the existing channel with outlets for surface water. During the hearing, the Engineer testified that he is still of the opinion that the erosion issues at the outlet of the existing tiles need to be addressed, yet this work is not included in the current Report. He also testified that the design standard for an agricultural access culvert is normally a 1 in 2 year storm, yet the culvert in the Report has been upsized to a 1 in 5 year storm. Furthermore, he testified that he still stands by his recommendation to enclose the drain as described in his preliminary report, yet the current Report has no such recommendation. He said that he made the changes to the reports in order to comply with the Council instructions.

The Tribunal finds that the Engineer allowed himself to be unduly influenced by Council and failed to exercise independent judgment in preparing his final reports, including the current Report.

In view of the above, the Tribunal finds that the Engineer's Report under consideration does not represent a "true report" as referenced under Section 11 of the Act.

The Tribunal accepts Mr. Dobbins original recommendations contained in his preliminary report dated February 10, 2006 and his letter to the Municipality dated January 14, 2007 wherein he stated that the best solution is the installation of a tile drain generally following the existing channel with outlets for surface water and extending from the outlet of the existing tile portion of the Miller Drainage Works and the McTaggart McLean Drain downstream to Longwoods Road.

While it is understandable that Mr. Semowoniuk would like to drain the surface water to runoff his lands as quickly as possible, this should not be undertaken at the detriment of downstream landowners.

The Order of the Tribunal

The Tribunal orders the following:

1. The Report is set aside.
2. Pursuant to Section 78(2) of the Act, the Municipality shall, within fifteen days of the date of this Order, notify the Conservation Authority that has jurisdiction over the lands that are affected by the drainage project.
3. Thirty days after the notice to the Conservation Authority has been sent, Council for the Municipality shall appoint a new Engineer, to prepare a final report for the enclosure of the Miller Drainage Works 1969, comprised of a tile and surface swale over the tile to accommodate excess surface water, extending from the outlet of the existing tile drains to Longwoods Road as described in Mr. Dobbin's Preliminary Report dated February 10, 2006. The process following the appointment of the new engineer shall be in accordance with the Act.
4. All costs that have accrued to the Miller Drainage Works 1969 starting from and including the meeting to consider the Preliminary Report on March 15, 2006 up to and including the date of this hearing on November 2, 2010 shall not be assessed to the Drainage Works.
5. There will be no order of costs and all parties are responsible for their own costs

Dated at Maidstone, Ontario this 8th day of November, 2010