Talbot Line Drain, sec
In the matter of the Drainage Act R.S.0. 1990, Chapter D.17, as
And in the matter of: An appeal to the Agriculture,
Food and Rural Affairs Appeal Tribunal by the County of Elgin, St.
Thomas, Ontario under Section 54(1) of the Drainage Act from the
decision of the Court of Revision on the Talbot Line Drain in the
Municipality of West Elgin.
Kirk Walstedt, Chair; Enio Sullo, Vice-Chair; Bill Schaefer, MemberAppearances:
John M. Spriet, Spriet Associates London Limited - Engineer who prepared
Peter Dutchak, Deputy Director of Engineering Services, County of
Elgin - Appellant
Decision of the Tribunal
This hearing was held in the Municipal Building, Municipality of
West Elgin, (the Municipality) in Rodney, Ontario on April 11, 2012.
The County of Elgin (the County) appealed to the Agriculture, Food
and Rural Affairs Appeal Tribunal (the Tribunal) under Section 54(1)
of the Drainage Act (the Act) from the decision of the Court of
Revision, dated July 21, 2011 from the Engineer's Report on the
Talbot Line Drain dated May 5, 2011 (the Report), prepared by Spriet
Associates London Limited (the Engineer), and signed by John M.
Norma Bryant, Clerk of the Municipality, performed the duties of
the Clerk of the Tribunal.
Prior to 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 had been served with notice of
rescheduling of the hearing dated January 16, 2012.
The County of Elgin undertook a $5 million reconstruction of a
17 km section of Talbot Line (County Road No. 3) in the Municipality
of West Elgin. In conjunction with the road reconstruction project,
the County filed several petitions for drainage, under Section 4
of the Drainage Act, in order to establish, improve or otherwise
legalize the drainage outlets for the road and adjacent lands. The
current Engineer's Report was prepared in response to one of those
The Engineer's Report provides for the drainage of approximately
36 hectares of lands and road in Lots 16 and 17, Concessions 12
and 13 in the Municipality of West Elgin. The work comprises the
construction of approximately 1,200 m of closed drain tile both
on and off the Talbot Line right-of-way for an estimated cost of
$72,700 of which $25,751 was assessed to eight private land parcels
and $46,949 was assessed to Talbot Line.
The Court of Revision for the Municipality ordered changes to the
assessments: namely, that the assessment for outlet to Roll No.
050-142 (P. Parezanovic) be reduced to $1,363 (a reduction of $1,363)
and the assessment for benefit to Roll No. 050-138-10 (T. Da Silva
& G. Norton-Da Silva) be reduced to $1,420 (a reduction of $3,000).
In both cases, the reductions were reapportioned as increased assessments
to the County of Elgin.
Should the assessments against the Appellant be amended?
Engineer - John Spriet, P. Eng.
Mr. Spriet testified that he prepared the Report pursuant to a
Section 4 petition for drainage filed by the County of Elgin, being
the road authority for Talbot Line. He explained that the petition
was one of several filed by the County seeking legal status for
the drainage of the road and adjacent private lands as part of the
road reconstruction of Talbot Line. He described the work proposed
by his Report as being the construction of a closed tile drain with
an outlet to Brock Creek where it crosses Talbot Line in Lot 16.
He said that he designed the tile using a 38 mm drainage coefficient
to handle the flows from the entire 36 hectare watershed, which
includes both the road and private lands. He further testified that
parts of the drain associated with the crossing of Talbot Line were
previously constructed by the County so he did not include this
work in his Report.
Mr. Spriet went on to testify that he routed the new drain tile
along a low run on the Da Silva property that was originally part
of the adjacent farmlands Roll No. 050-138 (D. Small). He explained
that when he started his Report, the Da Silva property was comprised
of approximately 1 acre of land but later increased to approximately
5 acres as a result of a 4 acre land severance and conveyance from
Small to Da Silva. Mr. Spriet said that there may have been an old
"award" drain in the same location but he was unable to
verify its existence. Mr. Spriet added that among other things,
his Report addresses the concerns expressed by the Conservation
Authority with respect to ongoing damage to the surface drainage
caused by livestock on the Da Silva property.
Mr. Spriet testified that he used the Todgham method to calculate
the assessments. He explained his methodology in detail by referring
to a series of 10 calculation sheets that he put into evidence.
In general, he said that he divided the drain into five sections,
assigned a cost to each section and then apportioned each section
cost to special benefit, benefit and outlet assessments. He explained
that in calculating the benefit assessment to the County, he considered
what it would cost the County for a hypothetical drain located along
the road to drain the road only. He said that he gave the County
a special assessment because they were the petitioner for the drainage
and also to make the project more palatable to the other landowners.
With respect to the Da Silva property, he said that he assigned
47% of the costs in that section as a benefit to Da Silva because
of the low run on those lands.
With respect to the $1,363 reduction in outlet assessment by the
Court of Revision to Roll No. 050-142 (P. Parezanovic), Mr. Spriet
testified that during the Court of Revision hearing, Mr. Parezanovic
presented a drawing showing that his lands had been tiled to the
Mumford Drain and not to the Talbot Line Drain. However, he said
that the surface drainage still goes into the Talbot Line Drain.
Mr. Spriet testified that he saw Mr. Parezanovic's drawing for the
first time at the Court of Revision hearing. Based on the new information
presented by Mr. Parezanovic, and responding to questions from the
panel, Mr. Spriet said that he now agrees and supports the $1,363
reduction in outlet assessment made by the Court of Revision. However,
he remarked that if he had been given an opportunity to do a reassessment,
he would have reassigned costs to all the remaining affected parties,
not just the County as ordered by the Court of Revision.
Appellant - Peter Dutchak, County of Elgin
Mr. Dutchak testified that the County's $5 million dollar project
for a 17 km long reconstruction of Talbot Line began with public
meetings in 2007 with construction following in 2008 and 2009. He
said that as part of the project, the County undertook a complete
review of the existing drainage systems with the objective of legalizing
the outlets while maintaining the historical watersheds. Mr. Dutchak
commented that the County could have designed the new drains to
serve the road only but that would have been short sighted. He noted
that although the road was high and dry and did not flood, the County
was nevertheless interested in cleaning up the area and making sure
the outlets were all legal. Accordingly, they filed several petitions
for drainage under Section 4 of the Drainage Act, including the
one associated with the current Report.
Mr. Dutchak testified that the County supports the Engineer's assessments
which formed part of the Report prior to the Court of Revision's
decision. He said that the County understands that roads typically
end up paying the lion's share of costs as special assessments,
particularly in cases where they are the petitioner as is the case
here. He stated that the County accepts and agrees with the Todgham
method used by Mr. Spriet in calculating the assessments. He remarked
that while the County does not like the heavy assessments imposed
by the Engineer, they accept the assessments as such because they
are technically concise and consistent with industry practice applied
by other experienced drainage engineers.
Mr. Dutchak testified that County Council directed staff to file
an appeal to the decision by the Municipality's Court of Revision
to avoid the establishment of a negative precedence. He said that
the County objects to the unjust and arbitrary actions of the Court
of Revision in this case which imposed extra assessments to the
County. He said that the Court of Revision's actions were unfounded,
unjust and lacked any clear rationale.
With respect to the benefit assessment to Roll No. 050-138-10 (T.
Da Silva & G. Norton-Da Silva), Mr. Dutchak suggested that the
Da Silva's may not have realized the costs associated with the drain
when they bought the 4 acres of land from Roll No. 050-138 (D. Small).
However, he said that does not justify the actions of the Court
of Revision that resulted in an assessment reduction to Da Silva
and a corresponding assessment increase to the County.
In summary, Mr. Dutchak asked the Tribunal to reject the assessment
reductions to Da Silva and Parezanovic. He added that should the
Tribunal decide to confirm the assessment reductions granted by
the Court of Revision, then the costs should be spread amongst all
other affected parties, not just the County.
The Tribunal finds the Engineer's method of calculating the assessments
to be technically sound, compliant with the Act and in keeping with
The Engineer acknowledged that the new evidence provided for the
first time by Mr. Parezanovic at the Court of Revision hearing justifies
the $1,363 reduction in his outlet assessment granted by the Court.
However, the Engineer testified that he would have reassigned the
assessment to all the affected parties instead of just the County
as ordered by the Court of Revision. Accordingly, the Tribunal will
order that Court's decision to reduce Mr. Parezanovic's assessment
by $1,363 be confirmed but will order that the costs be reapportioned
to all remaining affected parties.
There was no evidence presented at the hearing to rationalize or justify
the decision of the Court of Revision to reduce the benefit assessment
to the Da Silva property by $3,000 and impose the amount onto the
County of Elgin. Under the circumstances, the Tribunal is unable to
deduce any reasonable explanation for the Court's action and is therefore
surprised by the Court's decision. The Tribunal agrees with the Appellant's
arguments that the Court of Revision actions were unfounded and without
clear rationale. Therefore, the Tribunal will order that the decision
by the Court of Revision in this regard be rescinded and that the
benefit assessments to Da Silva and the County be reinstated to those
contained in the Report.
Order of the Tribunal
The Tribunal orders as follows:
- The decision of the Court of Revision to reduce the outlet
assessment to Roll No. 050-142 (P. Parezanovic) by $1,363 is confirmed.
The decision of the Court of Revision to increase the Talbot Line
(County of Elgin) outlet assessment by $1,363 is rescinded; instead,
the outlet assessments shall be increased (decreased) as follows:
050-078-10 (S. & A, Simon) ........................$280
050-078-20 (D. & B. McKillop) ......................$52
050-076 (D. & B. McKillop)............................$30
050-138 (D. Small) .....................................$107
050-138-10 (Da Silva & G. Norton-Da Silva).... $40
050-138-50 (C. Rybiak)................................$288
050-141 (C. & R. Innes) ...............................$80
050-242 (P. Parezanovic) ............................($1,363)
Talbot Line (County of Elgin) .........................$486
- The decision by the Court of Revision to reduce the assessment
for benefit to Roll No. 050-138-10 (Da Silva & G. Norton-Da
Silva) by $3,000 and increase the benefit assessment to Talbot
Line (County of Elgin) is rescinded. The assessment for benefit
to Da Siva and the County of Elgin shall be reinstated to those
contained in the Report.
- The non-administrative costs of the Municipality in respect
of this appeal shall form part of the cost of the drainage works,
and it is ordered that there be no other order as to costs and
all parties shall be responsible for their own costs.
Dated at Maidstone, Ontario this 17th day of April, 2012.
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