"The Engineer for the Ross Drain 2004 John Kuntze, P.
Eng. shall determine why the Elliott Drain Branch B which remains
as part of the Ross Drain does not appear to be working and shall
have remedied any problems that may exist with the Elliot Drain
Branch B prior to issuing a completion certificate for the Ross
Drain 2004 and prior to October 31, 2006.
The Engineer, John Kuntze, P.Eng shall confirm that berms on the
upper portions of the Ross Drain are properly constructed and
stabilized prior to issuing a completion certificate for the Ross
Drain 2004."
In the fall of 2006 and spring of 2007, the Engineer examined
the 1966 Elliott Drain Branch B tile on the Buchanan property
which is across the road and immediately upstream of the Armstrong
property. This examination showed some sections of the tile
to be almost completely filled with standing water and that
the tile had no effective grade. The Engineer determined that
the 1966 Elliott Drain Branch B tile on the Buchanan property
would have to be replaced with a new 350 mm diameter concrete
tile, downstream of the Buchanan driveway, to parallel the existing
400 and 300 mm tile drain.
Additionally, following his examination of the 1966 Elliott
Drain Branch B tile on the Armstrong property in the fall of
2007, the Engineer determined that the grade of the existing
tile on the Armstrong property was ineffective. Accordingly,
he concluded that the existing 400 mm tile on the Armstrong
property would also have to be replaced with a new 450 mm tile.
The additional tile replacement work on the Buchanan and Armstrong
properties was completed in May and November 2007 respectively,
however, the landowners may not have been apprised of the additional
costs associated with this work.
A further problem occurred at the Buchanan driveway where the
existing 600 mm culvert was unable to carry the surface flow.
The Municipality's road department repaired the driveway three
times, in 2006, 2007, and 2008. An on-site meeting was held
on June 17, 2009 with the Engineer, Wayne and Clare Buchanan,
and Wray Ramsay, the Drainage Superintendent, to review the
laneway washout problem. Subsequently, the Engineer determined
that the existing lane culvert to the Buchanan residence should
be replaced with a new culvert. The construction of this new
culvert has not yet taken place.
The Municipality tried unsuccessfully to have the Engineer
prepare an amendment to the 2004 Report incorporating all the
changes. Accordingly, on June 29, 2010, Council for the Municipality
passed a resolution requesting the assistance of the Tribunal
in acquiring a new report. On July 7, 2010 the Tribunal office
received a request under Section 58(4) of the Act "to have
the Engineer produce a new Amended Ross Drain 2004 Report."
The Engineer prepared a document titled "Addendum No.1,
Ross Drain 2004", dated September 8, 2010 (the Addendum).
The Addendum provided details of the additional construction
work that had already been done or was recommended to be done,
but was not included in the 2004 Report. The major part of the
construction work that had already been done since the Tribunal
decision of 2006, comprised the replacement of the 1966 Elliott
Drain Branch B tile on the Buchanan and Armstrong properties.
The work recommended to be done but was not yet completed, consisted
of the replacement of the surface water culvert across the Buchanan
laneway. The Addendum recommended that the 1966 Elliott Drain
Branch B be abandoned of status under the Act. The Addendum
also provided an updated cost estimate for the additional work
and a revised Schedule of Assessments to distribute both the
original and additional costs to the landowners. The additional
work and modifications included in the Addendum resulted in
increased costs of $29,050 making the overall project cost $115,250
plus accumulated interest of approximately $14,000.
The Addendum was not considered by the Council for the Municipality,
but rather was mailed directly to the landowners and was the
subject of a further Tribunal hearing held on September 28,
2010. The Decision of the Tribunal, dated November 15, 2011
ordered the Municipality to adopt the Addendum as part of the
provisional by-law for the Ross Drain 2004 Report, and that
no further appeals under Section 48 of the Act would be permitted.
However, due to the relatively short time provided to the affected
parties to review the revised assessments contained within the
Addendum, the Tribunal ordered the Municipality to convene a
further Court of Revision and that landowners would be permitted
to appeal the decision of the Court of Revision to the Tribunal.
Among other things, the Decision of the Tribunal also ordered
that the 1966 Elliot Branch B on the Armstrong property not
be abandoned.
The further Court of Revision ordered by the Tribunal Decision
of November 15, 2011 was convened by the Municipality on March
8, 2011 and adjourned to May 10, 2011. The appeal under Section
54(1) of the Act, which is the subject of this hearing, arose
from the decision of the Court of Revision.
Issues
Should the assessments against the Appellant's lands be amended?
Evidence
Engineer - John Kuntze, P. Eng.
The Engineer provided a brief history of the Ross Drain 2004
project, including the circumstances that led to this hearing,
most of which is documented in the background information to
this Decision.
Mr. Kuntze testified that in order to fully comply with the
Tribunal Decision of October 31, 2006, there were two housekeeping
amendments made to his Addendum Report that were agreed to by
the Appellant and were included as part of the provisional by-law
for the Ross Drain 2004. He said that the two amendments include
modifications to Schedule C in the Addendum Report to show total
Allowances to the Appellant in the amount of $1,000 and that
the $1,223.13 which was owed to the Appellant by the project
is to be deducted from his assessments instead. Mr. Kuntze commented
that a Tribunal Order should not be required for these amendments
but did not object to such an order being made.
Mr. Kuntze testified that there was also a further amendment
made to the Addendum Report as part of the provisional by-law
for the Ross Drain 2004. He said that his Addendum Report had
included the replacement of the culvert across Mr. Buchanan's
driveway at the request of Mr. Buchanan. However, Mr. Buchanan
has since asked that the culvert not be replaced.
Mr. Kuntze went on to testify as to the method that he used
to determine the Appellant's total assessment of $7,100. He
said that he did not assess Mr. Armstrong for Outlet because
his lands have direct access to the outlet. Accordingly, the
total assessment is made up entirely of Benefit and is broken
down into three parts. Mr. Kuntze said that he first assessed
Mr. Armstrong $500, being approximately 40% of the cost of a
catch basin that was installed on the road just upstream of
Mr. Armstrong's lands. He explained that although the catch
basin is not on Mr. Armstrong's lands, the Armstrong lands will
benefit since the catch basin intercepts surface water before
it enters Mr. Armstrong's lands. With respect to the balance
of the Benefit assessment of $6,600, Mr. Kuntze testified that
he assessed $3,300 Benefit for each of the two tiles across
Mr. Armstrong's lands that are part of the Ross Drain 2004.
He said that $3,300 represents approximately 33% of the total
cost of each tile.
Appellant - Keith Armstrong
Mr. Armstrong provided a written submission of his testimony
in advance of the hearing which he used as a reference in delivering
his testimony at the hearing.
Mr. Armstrong asked that the amendments to the Engineer's Addendum
Report, namely that his total Allowances of $1,000 and that
the $1,223.13 that is owed to him by the project be made part
of the Tribunal Order.
Mr. Armstrong argued that his assessment should be reduced
from $7,100 to $1,650. He said that his $500 assessment for
the catch basin installed on the opposite side of the road right-of-way,
upstream of his lands, does not benefit his lands. He said that
the Engineer has stated on many occasions that the new tiles
comprising the Ross Drain are not designed to carry surface
water. He questioned the effectiveness of the catch basin in
intercepting surface water since the tiles cannot carry the
surface water anyway. To demonstrate his point, he referenced
a number of photographs of the area in the vicinity of said
catch basin that he said showed that upstream surface water
continues to flow onto his lands, despite the presence of the
catch basin. Accordingly, he said that he should not be assessed
for the catch basin.
Mr. Armstrong continued his argument to have his overall assessment
reduced by saying that his lands do not benefit from the new
tiles of the Ross Drain 2004. He said that the tiles benefit
only the upstream lands. He stated that his lands are served
by the 1966 Old Elliott Drain Branch B and not the Ross Drain
2004. He complained that surface water continues to flow across
his property despite the construction of the new Ross Drain
2004 tiles. He said that in fact, the amount of surface water
flowing across his lands has increased since the construction
of the new tiles. He also said that upstream surface water damages
his lands by depositing gravel and debris. He again supported
his arguments by referencing a number of photographs that showed
surface water flowing on his lands. Therefore, he said that
the assessment to his lands is not justified.
Mr. Armstrong testified that he was particularly annoyed by
the assessment of the $3,300 made to his lands for the second
tile, which he said became necessary as a result of a mistake.
Furthermore, he said that he strongly contested having to pay
a benefit assessment for new tiles he does not use and do not
provide any additional relief from flooding on his lands. He
also complained that the Engineer failed to consider the number
of acres affected when calculating his assessments.
In summary, Mr. Armstrong repeated his argument that his lands
do not benefit from the new tiles because the surface waters
are not being controlled. However, he testified that since he
originally requested the Engineer to give some consideration
to controlling surface water and since there have been engineering
fees expended for design and consultation, he proposed to pay
a total assessment of $1,650.
Responding to questions from the Tribunal, Mr. Armstrong confirmed
that he farms all of his property in the Ross Drain 2004 watershed,
his property is well tiled, and that his tiles are connected
into the Ross Drain 2004.
Findings
As requested by Mr. Armstrong, the Tribunal will include in
its order the amendments to the Addendum Report affecting Mr.
Armstrong as detailed by the Engineer and that have already
been included as part of the provisional by-law for the Ross
Drain 2004.
The Tribunal will also include in its order the deletion of
the culvert replacement across the Mr. Buchanan's driveway as
noted by the Engineer.
The Tribunal has reviewed and considered the method used by
the Engineer in calculating the Appellant's assessment and finds
the method to be both compliant with the Drainage Act and accepted
practice.
The Tribunal has also reviewed and considered the evidence
and arguments put forward by the Appellant. Although the Appellant's
written submission and hearing testimony is extensive, the Tribunal
finds that much of the evidence is repetitive, coming at much
the same arguments from a different direction. The Tribunal
does not accept the Appellant's argument that his lands do not
benefit from the new Ross Drain 2004 tiles because surface water
is not being controlled. The new Ross Drain 2004 tiles are located
on the Appellant's lands and as such do provide a Benefit to
his lands. The Tribunal is also satisfied that the upstream
catch basin does indeed benefit the Appellant's lands by intercepting
surface water up to the capacity of the Ross Drain 2004 tiles.
Order of the Tribunal
The Tribunal orders that:
