Winger Road Municipal Drain

In the matter of the Drainage Act, R.S.O. 1990, Chapter D. 17, as amended.

And in the matter of:

Appeals to the Agriculture, Food and Rural Affairs Appeal Tribunal by Jay Maxner, William Young, Terry Eckert, and Eckro Precision, in Stevensville, Ontario, all appealing under Subsection 48(1) of the Drainage Act from the engineer's report, and under Subsection 54(1) of the Drainage Act from a decision of the Court of Revision on the Winger Road Municipal Drain in the Town of Fort Erie, Ontario.

Before:

Kirk Walstedt, Vice Chair; Jane Sadler Richards, Member; Denis Perrault, Member

Appearances:

Robert Cote, assessed landowner
Terry Eckert, assessed landowner, appellant, on behalf of herself and Eckro Precision
John Kuntze, P. Eng., engineer who prepared the report, also representing the Town of Fort Erie, respondent
Pat Hogan, assessed landowner
Jay Maxner, assessed landowner, appellant
Anna Maxner, assessed landowner
Brett Ruck, drainage superintendent for the Town of Fort Erie, respondent
William Young, assessed landowner, appellant

Decision of the Tribunal

The Appeals

The Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal") heard these appeals together on April 3, 2008, in the Council Chambers of the Corporation of the Town of Fort Erie, Fort Erie, Ontario.

Carolyn J. Kett, Clerk of the Town, performed the duties of Clerk of the Tribunal.

The Tribunal had previously issued an Order making all landowners assessed or compensated in the Report parties to this hearing. An Affidavit of Service (Exhibit 1) from Ms. Kett was filed at the start of the hearing proving that all parties had been served with Notice of the Hearing.

Statutory Context

Section 4 of the Drainage Act, R.S.O 1990 states as follows:

Petition

4. (1) A petition for the drainage by means of a drainage works of an area requiring drainage as described in the petition may be filed with the clerk of the local municipality in which the area is situate by,
   1. the majority in number of the owners, as shown by the last revised assessment roll of lands in the area, including the owners of any roads in the area;
   2. the owner or owners, as shown by the last revised assessment roll, of lands in the area representing at least 60 per cent of the hectarage in the area;
   3. where a drainage works is required for a road or part thereof, the engineer, road superintendent or person having jurisdiction over such road or part, despite subsection 61 (5);
   4. where a drainage works is required for the drainage of lands used for agricultural purposes, the Director. R.S.O. 1990, c. D.17, s. 4 (1).

Section 48(1) of the Drainage Act, R.S.O 1990 states as follows:

Appeal to Tribunal

48. (1) Any owner of land or any public utility affected by a drainage works, if dissatisfied with the report of the engineer on the grounds that,
    1. the benefits to be derived from the drainage works are not commensurate with the estimated cost thereof;
    2. the drainage works should be modified on grounds to be stated;
    3. the compensation or allowances provided by the engineer are inadequate or excessive;
    4. the engineer has reported that the drainage works is not required, or is impractical, or cannot be constructed under section 3, may appeal to the Tribunal, and in every case a written notice of appeal shall be served within forty days after the mailing of the notice under section 40 or subsection 46 (2), as the case may be. R.S.O. 1990, c. D.17, s. 48 (1); 2006, c. 19, Sched. A, s. 6 (1).

Section 54(1) of the Drainage Act, R.S.O 1990 states as follows:

Appeal to Tribunal

54. (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal. R.S.O. 1990, c. D.17, s. 54 (1); 2006, c. 19, Sched. A, s. 6 (1).

Section 78 of the Drainage Act, R.S.O 1990 states as follows:

Improving, upon examination and report of engineer

78. (1) Where, for the better use, maintenance or repair of any drainage works constructed under a by-law passed under this Act or any predecessor of this Act, or of lands or roads, it is considered expedient to change the course of the drainage works, or to make a new outlet for the whole or any part of the drainage works, or to construct a tile drain under the bed of the whole or any part of the drainage works as ancillary thereto, or to construct, reconstruct or extend embankments, walls, dykes, dams, reservoirs, bridges, pumping stations and other protective works as ancillary to the drainage works, or to otherwise improve, extend to an outlet or alter the drainage works or to cover the whole or any part of it, or to consolidate two or more drainage works, the council of any municipality whose duty it is to maintain and repair the drainage works or any part thereof may, without the petition required in section 4 but on the report of an engineer appointed by it, undertake and complete the drainage works as set forth in such report. R.S.O. 1990, c. D.17, s. 78 (1).
    

Background

The Winger Road Municipal Drain (the "Drain") in the Town of Fort Erie (the "Town") is a newly proposed drain. In June 2004, the Town received a petition for drainage under Section 4 of the Drainage Act (the "Act"), from William and Sharon Young. In September 2004, the Town appointed John Kuntze, a professional engineer with K. Smart Associates Limited (the "Engineer"), under Section 78 of the Act, to address the above noted petition.

The Engineer delivered a report dated March 1, 2006 (the "Report") (Exhibit 2), with recommendations for an improved outlet for the agricultural property owned by the petitioners, which included assessments for the distribution of the cost of the improvements and future maintenance.

On October 4, 2006, the Tribunal heard an appeal by Mr. William Young under Section 45(2) of the Drainage Act, with respect to the council for the Town not adopting the above noted Report. In its decision dated October 18, 2006, the Tribunal ordered the Town to "proceed forthwith with the adoption of the report on the Winger Road Drain, dated March 1, 2006, prepared by K. Smart Associates Limited pursuant to By Law 166-04".

Mr. Jay Maxner and Ms. Anna Maxner subsequently appealed the Tribunal's decision dated October 18, 2006, to the Drainage Referee. In their decision dated October 31, 2007, the Drainage Referee, Mr. Robert G. Waters, confirmed the decision of the Tribunal.

The assessments were appealed to the Court of Revision. A modified Schedule B - Schedule of Actual Cost Bylaw, Winger Road Drain, Town of For Erie was ordered by the Court of Revision (Exhibit 2A).

Appeals were submitted by Terry Eckert, Eckro Precision, Jay Maxner and William Young under Subsection 48(1) of the Drainage Act, from the engineer's report, on matters related to the proposed works; and under Subsection 54(1) of the Drainage Act, from a decision of the Court of Revision, on matters related to assessments.

Engineer's Overview of the Report

The Report provided a recommendation of proposed works, which is summarized as follows:

• the installation of 12 metres of arch corrugated steel pipe across Winger Road;
• the cleaning of 353 metres of ditch on the west side of Winger Road; and
• the excavation of a new ditch to the west of Winger Road.

The cost of the proposed drainage works is estimated to be $53,000. The total watershed area affected by the proposed works is 54.8 ha.

The Engineer directed the Tribunal's attention to drawing number 3 in the Report, which illustrates the drainage problem currently experienced by Mr. Young. The Engineer indicated the Report deals with the ditch that is currently preventing the drainage of Mr. Young's property.

The Engineer told the Tribunal that no buildings currently occupy the agricultural property owned by Mr. Young and he added the natural path for water to drain from this property is to the north, which takes place by surface drainage. The Engineer informed the Tribunal that two surveys were done: one along the existing watercourse and one south along the west side of Winger Road and then east along Mr. Young's property line to where the water exits his field north He stated the Report contains one profile from each of these surveys.

The Engineer stated the majority of downstream landowners preferred that no work be done on the existing watercourse although, if it were done, it should take place on the north side of Mr. Young's property. He added there are two potential drainage routes, which bear roughly the same costs. However, the alternate route would require more excavation.

With regard to assessments, the Engineer directed the Tribunal's attention to pages 9 and 10 of the Report for details on how assessments were made. He stated that, following the Court of Revision, the assessments in the Report were reduced by fifty percent and that he has no issue with this decision. The Engineer recommended the decision of the Court of Revision be upheld by the Tribunal.

In response to questions from the appellants, the Engineer told the Tribunal:

• The "watershed area" of 54.8 ha is not the same as the "area requiring drainage". He added the area requiring drainage is the cultivated land. He further added that the entire property is in the watershed, although that part of the property drains elsewhere.
• The front parts of the residential properties assessed are not considered part of the watershed. In reference to watershed boundaries, the Engineer directed the Tribunal's attention to Exhibit 3, a large scale version of drawing number 1 in the Report.
• The terms "watercourse", "swale", and "ditch" all refer to the same thing.

In response to questions from the Tribunal, the Engineer stated:

• The difference between a watershed and an intermediate watershed is that an intermediate watershed is a sub-drainage area within a watershed.

The Issues

The issues before the Tribunal were:

1. Is the location of the drain appropriate?
2. If no, where should the drain be located?
3. In either case with regard to the location of the drain, what additional considerations are required for costs?
4. Do the assessments, as upheld by the Court of Revision, require adjustment?
5. If yes, how should they be adjusted?

The Evidence

Jay Maxner
Mr. Maxner submitted pictures in support of his case (Exhibit 5). He told the Tribunal they have never had a problem with water on their property. He added that if they have had water on their property, it has not bothered them. He added that when it rains, water runs through Mr. Young's field, and the next day, the water is gone.

Mr. Maxner told the Tribunal Mr. Young's property is the only property with a drainage problem, because he chose to cultivate all of his land. He added that in spring and fall, water accumulates on the field as it does elsewhere.

In response to questions from the Engineer, Mr. Maxner told the Tribunal:

• he was in attendance at the on-site meeting that took place, and stated that the problem could not be resolved at that time.

In response to questions from the Tribunal, Mr. Maxner stated:

• His house is located at the northern part of his property, near Netherby Road.
• The property across Netherby Road from his property is owned by a Mr. Baiano.
• All of the water in the "back" portion of his property drains south to a ditch at the back of his property, and then toward Winger Road.
• He wants the construction of a proposed ditch to take place on Mr. Young's property.

Mr. Maxner submitted a letter from Joseph Puopolo, P. Eng. with Gartner Lee Limited, dated June 29, 2007, which provided a critique of the Report. The letter from Mr. Puopolo was received by the Tribunal as Exhibit 6.

In response to Mr. Maxner's submission, the Engineer submitted a memorandum from himself, dated July 12, 2007. The memorandum from Mr. Kuntze was received by the Tribunal as Exhibit 7.

Young Case

William Young
Mr. Young told the Tribunal that he is a 3rd generation farmer, and has not previously had a problem that couldn't be solved without appearing before the Appeal Tribunal. Mr. Young told the Tribunal the natural watercourse for the drainage of his property needs to be maintained, and added that the Maxner property prevents natural drainage from taking place.

Mr. Young stated he completely agrees with the Report, because he feels the problem is not on his property. He added that the drainage problem hasn't always existed, and only began developing once the residential properties to the north of his land were developed. He requested the Tribunal to direct the Town to proceed with the drainage works, and further requested that, in order to alleviate costs he has incurred along the way, his assessment be reduced to zero.

In response to questions from assessed landowners, Mr. Young told the Tribunal:

• He primarily grows soybeans on his property.
• The loss of land, due to water or the change of location of the proposed ditch, could result in the loss of income.
• His land has not been entirely cultivated, but is entirely cultivatable. He added that if the water were properly drained from his land, it could be entirely cultivated.
• He does farm all of his land, if it is not flooded.
• The ditch he maintains between his property and Ms. Eckert's property is as straight as he can drive.

In response to questions from the Tribunal, Mr. Young stated:

• He is asking for a relief of costs, and for his assessment to be reduced to zero, because he does not feel the problem is on his property.
• He would be satisfied with the reduction of his assessment to zero.
• He hired a bulldozer to improve the ditching on his property, and to remove some bushes.
• He does not intend to tile drain his property.
• He does not want to pay toward a ditch that is not on his property, to resolve a problem that did not originate on his property.
• The surface soil type of his property is clay loam.
• His planting of this land has always been delayed, due to water around the ditch on his property.
• None of his other fields are tile drained.
• Other crops in rotation on this field are: corn, wheat, and beans.
• He uses a no till method.

In response to questions from the Engineer, Mr. Young told the Tribunal:

• He has not made any improvements from the north side of Winger Road, to the ditch.
• Of his properties, he farms this property last because he prefers to farm it as one block of land.
• He maintains a natural ditch that exists between his property and Ms. Eckert's property.

Eckro Precision/Eckert Case

Terry Eckert
Ms. Eckert told the Tribunal she is appealing the works proposed in the Report and the decision of the Court of Revision, because she feels her land is not part of the area requiring drainage. She added she disagrees with having to pay toward the drainage works because Mr. Young's property is the one that requires drainage, no water drains from her land into the ditch, and she will receive no increased value from improved drainage works.

Ms. Eckert referenced Section 22 of the Act, "Assessment for Benefit", when stating she would like her assessment to be reduced to zero.

With regard to her appeal under Section 48(1) of the Act, Ms. Eckert told the Tribunal her land shouldn't be used for the construction of a ditch because her land will not receive any benefit. She added the existing watercourse drains water as it is and, according to the Report, the existing watercourse will be relocated.

Ms. Eckert submitted photographs, received by the Tribunal as Exhibit 8. She told the Tribunal she doesn't know whether the drainage problems in the area have been caused by bushes or shrubbery.

Ms. Eckert told the Tribunal she feels that if the ditch were to be on Mr. Young's property, he would more closely be able to maintain it. She added she doesn't see the point of backfilling 5 m onto her land, and stated she can't help but wonder whether it will cause problems for her in the future. She further added she would like the trees at the back of her property to be preserved, one in particular, which is roughly 50 ft high.

Ms. Eckert summarized by stating she would like her assessment to be reduced to zero, and if the drain is constructed, she feels it should take place on Mr. Young's property.

In response to questions from the Tribunal, Ms. Eckert stated:

• There is a ditch on either side of the fence of Mr. Young's property, and with the construction of a new ditch at the south ends of the properties fronting along Netherby Road, there will be two ditches.
• The proposed drain will not follow the natural flow of water.
• The Report mentions the backfilling of her property, for 5 m.
• There are no tile drains within the agricultural land that she currently rents out.
• In her opinion, there will be no water flowing from the back of her property, into the new proposed drain, and she does not anticipate making any use of the proposed drain.
• She does not have a picture of the mature tree that she is requesting be preserved and she is not familiar with any marketable value this tree may have. She added this tree has more of a sentimental value for her, as it is part of where they live.
• She has not counted the number of other trees she would like preserved as well. She added, however, that there are others.

The Town of Fort Erie's Case

John Kuntze, the Engineer
Mr. Kuntze requested to submit one more photograph, which was received by the Tribunal as Exhibit 10. He submitted written speaking notes, which were accepted as Exhibit 11.

Mr. Kuntze told the Tribunal that, with respect to the appeals of the assessments to Ms. Eckert and Eckro Precision, he recognizes the Eckert property will not make use of the drain he'll be constructing. He added that, as indicated in the report, benefit assessments are levied in two parts. The first is by cut-off, and the second is for reduced flow. He added that the new ditch, once constructed, will drain water from a significant hectarage of the drainage area, which will lead to an 83% reduction in flow. This will make the lands easier to work with and cultivate.

Mr. Kuntze stated he filed the aerial photograph to illustrate the current uses of lands in the area. In reference to this photograph, he directed the Tribunal's attention to the thin lines that point in a north to northeasterly direction, and stated this is the direction in which the agricultural land drains. He told the Tribunal the lands in this area are relatively flat and the surface water must be directed somewhere.

With regard to the second bullet on page 2 of his speaking notes (Exhibit 4), Mr. Kuntze requested a change be noted, where it should state "relocating the ditch improvement to the ditch of the four lots does not relate to a net loss of land". He told the Tribunal he did not have a problem recommending the ditch be moved to the "back" portions of land from the properties along Netherby road since there had been no sign of any recent agricultural activity. Benefit assessments, he mentioned, are levied because there will be a reduced flow. He added the number of $2,000 is a subjective number because there is no formula to account for this.

Mr. Kuntze told the Tribunal that, in his opinion, the benefit assessments are justified. Otherwise, he added, the balance would have to be assessed to the Young property.

Mr. Kuntze stated the reason he took the approach he did in his report i.e., of keeping the ditch on the south ends of the Netherby properties, was because he knew in either case, his recommendations would be appealed to the Tribunal. He added that Mr. Young, as a farmer, would lose a long strip of agricultural land if the ditch was constructed on his side of the property line, in addition to the buffer that would be required.

With regard to the benefit assessments to Mr. and Ms. Maxner, and to Mr. Cote, the Engineer told the Tribunal the Maxner's were assessed $500 for their use of the drain, and Mr. Cote was assessed $1,000 since he will use the drain to a greater extent than the Maxner's.

Mr. Kuntze told the Tribunal that no evidence in the field exists to suggest water crosses College Road, flowing from the south to the north. When he began his investigation, however, he noticed that the north side of College Road could be flowing into Mr. Young's property.

With regard to whether this drain is an outlet or a benefit drain, Mr. Kuntze told the Tribunal he feels it is a benefit drain. For this reason, Mr. Young's property was assessed $10,000 for benefit. He added that in taking the benefit by reduced flow from the cut off, and dividing it equally between the properties to the north and the properties to the south of the proposed ditch, he felt the assessments would be properly balanced.

With regard to the decision of the Court of Revision, Mr. Kuntze suggested the decision be left intact.

In response to questions from the Tribunal, Mr. Kuntze stated:

• The trees that lie to the north along the existing channel are beyond the work area required for the construction of the drainage works.
• There will be a number of smaller, second-growth trees that will need to be removed during construction. The mature trees, however, will be maintained.
• He did not recommend routing the ditch along property lines, despite the fact that he has received criticism for not recommending this.
• The existing ditch is not a municipal drain, but will be designated as such once construction is complete. He added that a report can be prepared with this in mind. The benefit in making a drain a municipal drain is the greater control of what happens to it in the future.
• There are mature trees between the two Eckert properties, and those will remain.
• He has worked on drains that have required the cutting of roots, and has not experienced any problems with those trees.
• The depth of the ditch to be constructed will be between 2 ft and 4 ft.
• If the buffer on the south side of the ditch is included in the Report, the allowances made to that property would need to be increased. He added that doing so, however, would not change assessments.
• Ms. Eckert's properties have water running through them and $1,000 was added to the assessment to each of these properties because they'd need a culvert for access with the proposed works.
• The extra assessments assigned to the Maxner, Eckert, and Cote properties are intended to account for their direct outlet or "the ability to connect directly". He added that his base amount for direct outlet was $500.

Mr. Brett Ruck did not testify.

Statements by Assessed Landowners

Pat Hogan
Mr. Hogan told the Tribunal he has lived on Winger Road for roughly 10 years and until he met Mr. Young, he didn't understand why water was accumulating on his property. He added that, as of the day before the Hearing, a lot of water had accumulated. Mr. Hogan stated he wishes to support the works recommended in the Report.

In response to questions from the appellants, Mr. Hogan told the Tribunal:

• He understands that if water accumulates on Mr. Young's property, it will lead to water building up on his own property.
• He has observed water flowing over Winger Road due to the ditch being too shallow.

Robert Cote
Mr. Cote told the Tribunal he is an affected landowner and he purchased his property in November 2005. He requested to submit a photograph showing the accumulation of water in Mr. Young's property. This photograph was received by the Tribunal as Exhibit 9.

Mr. Cote stated he is in support of the Report, and acknowledged there is a drainage problem within Mr. Young's property. He added he fully supports the changes in assessments made by the Court of Revision. Mr. Cote noted his preference is that the ditch be constructed between the northern and southern properties within that parcel of land, but he would accept either choice made by the Tribunal.

In response to questions from the appellants, Mr. Cote told the Tribunal:

• the photograph submitted was taken in December 2007 and he does not know of any farmers that cultivate their lands in the month of December.

In response to questions from the Tribunal, Mr. Cote stated:

• the infilling that took place on his property was to create an apron around his house.

Summations

Anna Maxner
Ms. Maxner told the Tribunal she disagrees with the Engineer's statement that their property receives a benefit from the drain. She believes it is an outlet. Ms. Maxner feels the fairest way to properly construct this drain is to construct it on Mr. Young's property, since it will make his land more usable.

Ms. Maxner concluded that if the Report is kept as is, then many aspects of their property will be lost due to its use as a ditch.

John Kuntze
Mr. Kuntze told the Tribunal the largest issue to address is the location of the ditch. He requested that two things be considered with regard to matters under appeal, which are as follows:

1. Mr. Young did not ask for the drain to be moved, he asked for an outlet. If the current location is not acceptable to all, then he still feels the proposed location is appropriate. He added he feels the drain can not be moved and the recommendation put forward is the best option.
2. Regarding assessments, he stated he tried to maintain a balance between Mr. Young's property and the downstream properties but, in the end, assessments must be made.

William Young
Mr. Young told the Tribunal he would like to be reimbursed for his legal fees, for prior proceedings related to this drainage works, which are in an amount greater than $11,500. He further requested that his assessment be reduced to zero.

The Findings

The Tribunal found for a fact that:

• All properties identified in the Report have land within the Winger Road Drain watershed and therefore, under the Drainage Act, share responsibility for providing adequate drainage for all lands within the watershed;
• The Young property requires an outlet for surface water that collects in the middle of land within the Winger Road Drain watershed and then flows north;
• Water from the Young property naturally flows north/northeast, approximately through the middle of and across five properties with land within the Winger Road Drain watershed;
• Improvement of the existing watercourse to allow adequate outlet for water from the Young property would require a deepening of the watercourse and installation of access culverts on each of four properties, which would cut the affected properties in half and potentially restrict use of their lands;
• Two alternate locations for the drain, that would move the water away from its natural flow path through a constructed flow path either along the south side of four properties or along the north side of the Young property, and then north along the west side of Winger Road, are physically possible; and
• The Court of Revision did not change the assessment schedule in the Report but did allow a one-time grant from the Town of Fort Erie of 50% of the Net Assessment against each property in the Winger Road Drain watershed

The Tribunal heard evidence from Mr. Maxner that he does not have a drainage problem and is not bothered by the water that does flow across his land; however, Mr. Young does have a drainage problem. The Tribunal gave high weight to this relevant and direct evidence.

The Tribunal heard Mr. Maxner state he does not want the drainage works to occur on his land and they should occur on Mr. Young's land. He offered as evidence a letter dated June 29, 2007, prepared by J. Puopolo, P. Eng, Gartner Lee Limited, Markham, ON (Exhibit 6), which reviewed the Engineer's Report for the Winger Road Drain. Item d) in this letter indicated the proposed location of the drain had been changed from the north side of the Young property to the south side of the adjacent four properties. According to the letter from Mr. Puopolo, this was done following the objections of Mr. Young and without due consideration for the objections of the four adjacent property owners to the relocation of the drain. The Tribunal gave medium weight to this evidence as it was relevant but unsworn.

In response, the Tribunal received evidence from Mr. Kuntze in a memorandum dated July 12, 2007, prepared by himself (Exhibit 7) that addressed the points raised by Mr. Puopolo. In particular, item d) in the memorandum referred to the criteria (found on page 5 of the Report) used by Mr. Kuntze to determine the location of the drain.

The Tribunal accepted the response of the Engineer (Exhibit 7) to the comments made by the Engineer from Gartner Lee Limited (Exhibit 6) and gave it high weight. The Tribunal gave high weight to the statement in the Report "the watercourse that requires improvement is located on the four lots and relocating the watercourse to the rear of the four lots does not result in a net loss of land currently under cultivation" (page 5).

The Tribunal heard evidence from Mr. Young indicating that water flowing north from his property was following a natural watercourse that was being impeded as it flowed across the downstream properties. He stated that planting is delayed in the affected field due to a lack of surface drainage and his desire to wait until the entire field dries up so he can farm the field as one block of land. Mr. Young provided evidence that he has tried to improve the surface drainage on his land by hiring a bulldozer to improve the ditching on his property and by maintaining the ditch that exists between his property and Ms. Eckert's property. He stated he did not want the outlet for his water to be constructed on his property because it was "not his problem". The Tribunal gave weight to this statement because under the Drainage Act the provision of adequate outlet for upstream property owners is the responsibility of downstream property owners. The Tribunal gave high weight to the evidence provided by Mr. Young as it was relevant and direct.

The Tribunal was asked to reduce Mr. Young's assessment to zero because he incurred costs surpassing $11,500 related to the appeal process. However, the Tribunal finds that the appeal process was used to its full extent and there was no evidence of vexatious or frivolous intent by any of the parties. The Tribunal therefore denied the request for costs.

The Tribunal heard evidence from Ms. Eckert on behalf of herself and Eckro Precision that no water drains from her lands into the ditch, and she will receive no increased value from improved drainage works. She submitted that her lands do not receive any benefit from the drain and therefore their assessment should be reduced to zero. Ms. Eckert submitted that the drain, if built, should be placed on Mr. Young's property because he is most likely to take proper care of it. However, if construction is to proceed as recommended in the Report, Ms. Eckert requested that trees at the back of her property be preserved including an oak tree that is approximately 50 ft high. The Tribunal gave high weight to the evidence provided by Ms. Eckert as it was relevant, direct and sworn.

The Tribunal heard evidence from Mr. Kuntze, the Engineer who prepared the Report, found it to be credible and well-reasoned, and therefore gave it significant weight. The Engineer's evidence with regard to Assessment indicated the benefit assessment of $2000 for cutoff by reduced flow across the properties north of the Young property was a subjective value chosen by himself. The Tribunal noted this statement during their deliberations of these appeals.

The Tribunal found that no consideration was given in the Report to ensuring the continued good health of mature trees along the drain construction route despite the fact that construction would occur within the 'drip line' and therefore within the root zone of these mature trees. Since the continued existence of some of these trees is important to the owner of two properties affected by construction of the drain (T. Eckert and Eckro Pecision), the Tribunal took note of this deficiency in the Report.

The Tribunal found that evidence suggesting the existing fence along the north side of the Young property plus the 1 m distance between the Young property line and the top of the south bank of the constructed ditch would provide an adequate buffer on the south side of the drain, to be inconsistent with the design specification for the north side of the ditch, which states "New drain includes a 6 m wide buffer strip measured from the north top of bank. Buffer strip to remain uncultivated when adjacent land is under cultivation." In the opinion of the Tribunal, the current existence of a fence does not guarantee its existence in the future. Also, there is no specification requiring any portion of the south side of the ditch, including the 1 m strip between the top of the ditch and the property line to be maintained as a buffer. Therefore, the Tribunal found that the design of the drain should include specifications for protection of the south side of the drain with the costs allocated in a similar fashion to those costs allocated for the north side of the drain. The Engineer provided evidence that if this was done the allowances made to the affected properties would need to be changed but this would not change assessments.

Therefore, with regard to the issues the Tribunal finds:

1. The location of the drain is appropriate as indicated in the Report.
2. The costs require adjustment and our findings above and order below will provide guidance in making these adjustments.
3. The assessments, as upheld by the Court of Revision, require adjustment and our findings above and order below will provide guidance in making these adjustments.

The Order and Reasons of the Tribunal

After careful consideration of the evidence filed and the submissions made the Tribunal orders:

1. The location of the Winger Road Drain will remain as recommended in the Report. The reason is that the recommended location maintains the balance of shared responsibility amongst property owners in the provision of adequate drainage for all lands within the watershed. In addition, the location as recommended minimizes the effects of the works on all properties and does not impinge on the livelihood of Mr. Young.



2. The soil around the roots of up to five mature trees (to be selected by Ms. Eckert or her designate) at the back of the Eckert and/or Eckro Precision properties will be hand excavated to limit damage to the roots from mechanical excavating equipment during construction of the drain. The costs of such work should be considered as part of the "Construction Cost Estimate" in the Report and therefore should be adjusted in the Report by the Engineer if necessary. The reason is that the property owner made a reasonable request to preserve the view and nature of the area in which the drain is constructed on her lands as influenced by the presence of these trees.



3. The design of the drain will be modified by the Engineer to include specifications for protection of the south side of the drain with the costs allocated in a similar fashion to those costs allocated for the buffer on the north side of the drain. The reason is to ensure similar protection for both sides of the drain.



4. All costs will be borne by the drain as allocated. The reason is that the appeal process was used to its full extent and there was no evidence of vexatious or frivolous intent by any of the parties.



5. Costs will remain as ordered by the Court of Revision except as follows:
   
   
   
   1. Benefit assessment (Schedule A of the Report) will be adjusted to decrease the amount by $500 for the Eckert, Eckro Precision, Waeger, Maxner and Cote properties and to increase the amount by $2500 for the Young property. The changes in benefit assessment, in the opinion of the Tribunal, provide a more equitable distribution of benefit for cutoff by reduced flow and benefit for improved direct outlet. Mr. Young gains significant outlet benefit due to an anticipated improved ability to farm his land in a timely manner as one block in the future, which directly affects his livelihood in perpetuity. The other properties, while gaining some real benefit for cutoff, were not particularly bothered by the water that was flowing over their properties, which suggests the benefit from cut off may be less than anticipated by the Engineer.
   
   
   
   2. Allowances (Schedule B of the Report as modified by the Court of Revision) related to the provision of buffer protection along the south side of the ditch will be adjusted in the same manner used to provide allowances for affected lands on the north side of the drain. The reason is to bring consistency to the Report in the protection of the north and south sides of drain

      Schedules A (Exhibit 2) and B (Exhibit 2A) will be revised by the Engineer to reflect these changes in the Benefits, Actual Assessments and Allowances, respectively, and incorporated into the Report.

Dated at Maidstone, Ontario this 28th day of May, 2008.