Thorpe-Ellis Municipal Drain

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 Harry Barclay, Brinston, Ontario under Section 54(1) of the Drainage Act from a decision of the Court of Revision on the Thorpe-Ellis Municipal Drain in the Township of South Dundas.

Before: Marthanne Robson, Vice-Chair; Jack Young, Vice-Chair; Denis Perrault, Member

Appearances:
Harry Barclay- Appellant and landowner
John Stidwill- Engineer responsible for the Report
David Douglas- Landowner
Don Lewis- Drainage Superintendent for the Municipality
Brenda Brunt- Clerk of the Municipality

Decision of the Tribunal

This hearing was held in the Municipal Building, Township of South Dundas (the Municipality), in Williamsburg, ON, on August 10, 2010. Harry Barclay appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under section 54(1) of the Drainage Act (the Act) from the Engineer's Report titled "Thorpe-Ellis Municipal Drain" (the Report), dated January 6, 2010, prepared by SAI Engineering. John Stidwell, (the Engineer), a professional engineer with that firm, was designated, under section 8(2) of the Act for overall responsibility for the Report.

Brenda Brunt, 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 had been served with the notice of this hearing.

Background

The Report was initiated by a petition under section 4 of the Act. The Engineer prepared a Preliminary Report which was considered by the Municipality in September 2009. The Thorpe-Ellis Drain was first constructed in 1891 under the Act at that time. Additional improvements have been done on the project under reports in 1965 and 1982.

The Report provides for maintenance and deepening of 6,035 metres open drain to serve a watershed of approximately 1600 hectares (ha.).

The estimated cost of the works under the Report is $530,405 which has been assessed to the affected landowners within the watershed. The Report contains an updated Assessment Schedule and provides for construction of the project and future maintenance of the drain.

Issue

Should the outlet assessment for Harry Barclay (Roll No. 006-008-58800) be modified?

Evidence

Mr. Barclay testified that he owned 245 acres (100 ha.) which drains into the Thorpe-Ellis Drain and the Ferguson Drain. He testified that the portion of land draining into the Thorpe-Ellis project was wooded and that there had been beaver activity there. He felt that his assessment was too high, stating that the majority of his property with the exception of approximately 25 acres (10 ha.) drained into the Ferguson Drain. Mr. Barclay testified that there was a beaver dam at the northwest corner of his property that had been removed by the drainage superintendent in the fall of 2009. Mr. Barclay gave evidence that water from this beaver dam area flowed south-east and that he noticed flooding on his property due to the beaver dam.

Mr. Lewis, the Drainage Superintendent, presented evidence that the water flowed south-east from the area where the beaver dam was cleared in the fall of 2009, but after crossing the easterly Barclay property line, it flowed north-easterly to outlet into Branch A of the Thorpe-Ellis Drain in the concession to the north. Mr. Lewis testified that he had met with Mr. Barclay in his office and calculated the drainage area of the portion of the Barclay land that flowed to the Thorpe-Ellis project. He stated that he used assessment maps, GIS maps and GIS software to calculate the drainage area for Mr. Barclay in his office. He determined that the calculated area was 3.4 acres (1.4 ha.) less than the 93.6 acres (37.9 ha.) shown in the Report for the Barclay property. He confirmed that the whole parcel of the Barclay property was shown as 245 acres (100 ha.)on the municipal assessment roll. He stated that the Ferguson Drain report, also prepared by Mr.Stidwell, showed 154 acres (62.4 ha.) of Mr. Barclay's property flowed south to that drain leaving a balance of 91 acres (36.8 ha.) to flow to the Thorpe-Ellis Drain.

Mr. Stidwell outlined the method he used to assign the outlet assessments shown in the Report. He stated that the ratio of Benefit/Outlet was 40/60 and that factors were applied to take into account the land use (e.g. bush (0.5), agricultural (1.0), roads (2+) etc.) and the distance of the property from the drainage channel. Using this method, the rate per hectare on the Barclay property calculated to $93.03 per hectare. Using this rate for 93.6 acres (37.9 ha.), the total came to $3,525.76.
He testified that the location of the watershed boundary on the Barclay property was determined using several approaches. He had previously prepared reports on four projects on both sides of the watershed line and he had walked the watershed line while preparing one of these previous reports. He said that he used Ontario Base Map (OBM) mapping as the base plan in the Report. The OBM plans are in digital format and are able to display elevations at points on the ground.

Mr. Stidwill gave evidence of the elevations obtained from the digital OBM maps which indicated that the low point in the area of the beaver dam had an elevation of 82 meters and that the elevation on the watershed boundary on the east Barclay property line was 83 meters. Mr. Stidwill explained that if the depth of water at the time of the beaver dam was approx 1 metre, it would explain why there was flooding to the south. The Tribunal accepts this information from Mr. Stidwill.

Findings

The Tribunal has reviewed the evidence presented and finds as follows.
The Tribunal finds that the Barclay property has a total area of 245 acres (100 ha.). The tribunal also finds the Engineer's method of calculating the outlet assessments and the rate of $93.03 per hectare applied to the Barclay property was undisputed.

The only point in contention is the area of Mr. Barclay's land that outlets into the Thorpe-Ellis Drain. The difference in area determined by the various submissions amounts to a maximum of 3.4 acres (1.4 ha). While the Tribunal accepts that this difference is well within the normal accuracy for determination of drainage areas, the Tribunal also accepts the principle, that for surface drainage projects of this type, the area drained by the Ferguson Drain and the Thorpe-Ellis Drain must not exceed the total area of land owned by Mr. Barclay which is 245 acres (100 ha.). The Tribunal will order that Mr. Barclay's outlet assessments be reduced by $130.00 to account for this discrepancy. This amount will be added to the road assessment of the Municipality in the same manner as the other imbalances resulting from the Court of Revision decision.

The Tribunal notes that the Municipality has given provisional by-law 2010-19 a third reading on June 15, 2010. Section 58(1) of the Act requires that all appeals must be decided before council may pass the provisional by-law.

The Tribunal will order that the by-law be rescinded and that the revised by-law include the amended Schedule A: "Assessment Schedule" to reflect the changes made by the Court of Revision and this Tribunal decision.

As a general principle, projects constructed under the Act are on a user pay basis. A cost estimate is prepared for the project and then an Assessment Schedule is prepared to recover the cost of the project from the landowners affected by the project. The Tribunal notes that the Assessment Schedule in the Report does not provide the totals for each column in the schedule. These totals are essential to verify that the costs and the assessments balance, especially after appeals have been made that may alter the assessments. Sub totals for land assessments and road assessments are also useful in prorating the final cost of the project and to assist the drainage superintendent in the prorating of future maintenance costs. The Assessment Schedule also does not contain page numbers which are essential to ensure that the schedule is complete and that no pages are missing. It would also be helpful to have the column headings repeated at the top of each page.

The Tribunal will order that the Assessment Schedule be revised to show these totals.

Tribunal Order

The Tribunal orders as follows:

1. The assessment to Mr. Barclay (Roll No. 006-008-5900) is reduced by $130.00.
2. The road assessment to the Municipality is increased by $130.00.
3. The Engineer shall amend "Schedule A: Assessment Schedule" to reflect the decisions of the Court of Revision, and item 1 and 2 of the Tribunal's order, above. The amended Assessment Schedule shall include page numbers and totals for lands and roads at the bottom of each column.
4. By-law no. 2010-19, adopted on June 15, 2010 is herby rescinded. The revised by-law shall include the updated schedule of assessments referred to in item 3, above.
5. The non-administrative costs of the Municipality in respect to 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 that all parties are responsible for their own costs.

Dated at Ottawa, Ontario this 19th day of August, 2010.