Phelpston Marsh Drain Improvements

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 Colin Elliot, in Phelpston, Ontario, under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision on the Phelpston Marsh Drain Improvements in the Township of Springwater, Ontario.

Before:
Marthanne Robson, Vice Chair; Cor Kapteyn, Vice Chair; Doug Flook, Member

Decision of the Tribunal

Overview

The Phelpston Marsh Drain (the "Drain") covers some 3550 hectares in the Township of Springwater (the "Township") north of Barrie, Ontario. Mr. Colin Elliot, the appellant in this hearing, owns or represents approximately 900-1000 acres of land, some of it actively farmed and some uncleared. The area, as the name indicates, is generally low-lying and used to be a lake bottom. One of the challenges of the design of the Drain is an area of sensitive soils on the east side. Mr. Elliot is concerned with flooding on his land which he says has never been as bad since the municipality installed a dam and pump station in 1987.

The Drain was originally constructed around 1897. Improvements and/or extensions were subsequently made pursuant to reports prepared in 1921, 1961, and 1967. The participants in this hearing have had long-standing involvement with the Drain. Mr. Elliot is at least a second-generation landowner in the area. Mr. McNalty's involvement began in the late 1970s. Mr. McNalty prepared the last engineer's report on this drain, dated April 15, 1983.

The last report included the installation of a pump lift which was intended to allow runoff from the spring melt and heavy rainfall to flow through the pump as well as over an earth berm spillway ("berm"). After the construction of this pump, it was found that under certain conditions, water recycled over the berm, around the pump lift chamber. In response to this recycling of water, the Township increased the height of the berm. The increase in height succeeded in preventing water recycling from taking place, although it also prevented the original runoff from flowing over the berm.

Procedural Matters

A Petition for Drainage was submitted to the Township on July 20, 2004, to deal with both the level and duration of flooding that took place during spring melt and under heavy rainfall events. To address this petition, the Township appointed the Mr. McNalty, a professional engineer, to prepare a report and provide recommendations in response to the petition.

A final report was delivered dated June 2007 (the "Report").

Mr. Elliot went before the Court of Revision on November 22, 2007, to address concerns around the value of the drain improvements recommended in the Report and the overall costs. The Court of Revision concluded that the appeal was not within its jurisdiction. Mr. Elliot then appealed to this Tribunal. The appeal was heard on April 22, 2008, in Elmvale, Ontario. Carol O. Trainor, Clerk of the Township, performed the duties of the Clerk of the Tribunal.

The Notice of Hearing indicated that the matter was an appeal under Section 54 of the Drainage Act, an appeal from the decision of the Court of Revision. Upon reading of Mr. Elliot's letter to the Tribunal in support of his appeal, dated April 8, 2008, it appeared to the panel that Mr. Elliot was also dissatisfied with the overall costs and benefits of the proposed works. Section 48 (1) of the Drainage Act provides for an appeal to the Tribunal where a landowner is dissatisfied with the engineer's report "on the grounds that (a) the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof".

Upon consent of the parties present, the Notice of Hearing was amended to include cost/benefit matters under Section 48 (1) of the Act. Mr. McNalty noted that the timeline to appeal under section 48 (1) had passed, but that the Township would like to make the best possible effort to deal with all matters under dispute.

Issues

Whether the costs of the works proposed in the Report are excessive and whether the work proposed by Mr. Elliot should proceed instead.

The issue of assessments was not pursued at the hearing.

Engineer's Proposal

A number of alternatives were considered and outlined in the Report before proceeding to a final recommendation. The alternatives considered included: open excavation of the outlet section; the use of "trenchless" technology for the installation of pipes; and the use of an open trench.

In the Report, Mr. McNalty recommended the removal of the upper portion of the berm and alterations to the existing sheet pile wall across the channel on the upstream side of the berm. The alterations to the wall include the construction of gates, which are intended to be raised and lowered manually, from a proposed catwalk directly above them. Minor improvements were also proposed to other areas of the Drain.

The total cost of the drainage works proposed in the Report is $186,000.

According to Mr. McNalty, municipal drains are typically built to allow for base flow run-off, to account for base flow limits. There was continual pressure from agricultural lands to have the pumps turned on as early in the season as possible. Typically, municipal drains do not account for flood conditions. There were nine land owners assessed in the previous report on this drain, and with the consolidation of land ownership, Mr. Elliot represents the majority of lands within the flat, depressed area.

Although the system works in low flow conditions, there has always been the desire to begin working the land sooner, and in order to accommodate this, the Township eventually decided to allow the pumps to be activated sooner than in the by-law. The proposed works would reduce the flooding to Mr. Elliot's property by 5 inches. The rate of discharge for lower lands is not possible to say. If the proposed works do not proceed, the flooding conditions and water retention currently experienced will continue.

There was no change in the distribution of assessments from the previous report. Mr. Elliot did not challenge that distribution in his appeal. Mr. McNalty noted that Mr. Elliot's lands are the lowest lands upstream of the pumping station, and that the lands further away do not need the pumping station for drainage.

Alternative Proposal

Mr. Elliot proposed that the landowners hire a metal worker, Mr. Ward, who could construct a similar gate to the one recommended in the Report for $20,000, instead of the $180,000 of work outlined in the Report. He testified that the works proposed in the 1983 report did not function properly, and land owners were assessed an additional $46,000 to correct the problems. Mr. Elliot also noted that he is assessed half of the total cost of the works in the Report.

According to Mr. Elliot, previous to the dam being constructed, flooding lasted only five days, whereas now, flooding continues for two to three months at a time. He noted that the current pump works well and, although a by-law currently prevents activation of the pump until a certain depth is reached, landowners have an understanding with the Township to allow for some exceptions.

Mr. Elliot acknowledged that there was no engineering work done by Mr. Ward, nor on-site meetings. There was not a report or analysis of safety features to be included in the proposed works. Mr. Elliot could provide no guarantee or assurance that the proposed work would in fact correct the problems.

Mr. McNalty testified that when it comes to water control structures, there are an infinite number of structures available. He acknowledged that the proposal by Mr. Ward was certainly a preliminary proposal. He testified that he had requested a copy of the proposal in the fall of 2006 and spring of 2007, but only received it as part of the documents in this appeal.

He testified that, from an engineering perspective, he prefers vertical lift gates as opposed to flap gates (proposed by Mr. Ward). He also noted that if the structure installed is too large, there may be warping, leaking or other problems.

Reasons

Mr. Elliot did not provide any evidence that his alternate proposal would in fact correct the problems. He did not call Mr. Ward to testify. He acknowledged that no engineering work was done, and that no safety features were incorporated into the design.

Section 8 of the Drainage Act requires that a municipality must appoint an engineer when it decides to proceed with drainage works requested in a petition. The Act set out duties of the engineer, and a process for dealing with the preparation and submission of the report.

A municipality may proceed with certain repairs without the report of an engineer (in section 77) if the cost does not exceed $4,500. There is no provision for land owners to proceed with improvements or repairs to a municipal drain on their own.

The powers of the Tribunal on appeal are quite broad -- to do what it considers proper to carry out the purposes of the Act (s.51). The purpose of the Act, though not articulated in a particular section, is to set out the rights of land owners and other interested parties with respect to municipal drains, and to establish procedures and legal requirements of municipalities to design, construct and maintain drains.

The Tribunal recognizes that there is a cost associated with running of these drain systems for the collective benefit of all. It is also understandable that Mr. Elliot and other landowners would prefer a $20,000 solution rather than an $180,000 solution. However the lower-cost solution does not meet the requirements of the legislation.

Order of the Tribunal

The appeal is dismissed.

Dated at Borden this 3rd day of July, 2008.