VanBuuren Municipal Drain Branch
"A"
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 Dave and Jackie Orgar, Grassie, Ontario
under Section 48(1) and 54(1) of the Drainage Act from the engineer's
report and from a decision of the Court of Revision; and Andrea and Jorge
Clemencio, Grassie, Ontario; and John Petropoulos, Grassie, Ontario under
Subsection 54(1) of the Drainage Act from a decision of the Court of Revision
on the VanBuuren Municipal Drain Branch "A" in the Township
of West Lincoln.
Before: Kirk Walstedt, Chair; Jack Young, Vice-Chair; Enio Sullo,
Member
Appearances:
Dave and Jackie Orgar - Appellant and assessed landowner
Andrea Clemencio - Appellant and assessed landowner
John Spriet - Engineer on behalf of the Municipality
Harold Hall - Drainage Superintendent for the Municipality
Decision of the Tribunal
This hearing was held in the Municipal Building, Township of West Lincoln,
(the Municipality), in Smithville, Ontario on July 13, 2010. Dave and
Jackie Orgar appealed to the Agriculture, Food and Rural Affairs Appeal
Tribunal under Sections 48(1) and 54(1) of the Drainage Act, (the Act)
and Andrea and Jorge Clemencio and John Petropoulos appealed to the Agriculture,
Food and Rural Affairs Appeal Tribunal under Section 54(1) of the Drainage
Act regarding assessments from the Engineer's Report titled "VanBuuren
Municipal Drain Branch "A" dated October 31, 2008, prepared
by Spriet and Associates Ltd. (the Engineer), and signed by John R. Spriet,
P.Eng.
Ms. Carolyn Langley, 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 have been served with notice of this hearing.
Background
This hearing was held in the Municipal Building, Township of West Lincoln,
(the Municipality), in Smithville, Ontario on July 13, 2010. Dave and
Jackie Orgar appealed to the Agriculture, Food and Rural Affairs Appeal
Tribunal under Sections 48(1) and 54(1) of the Drainage Act, (the Act)
and Andrea and Jorge Clemencio and John Petropoulos appealed to the Agriculture,
Food and Rural Affairs Appeal Tribunal under Section 54(1) of the Drainage
Act regarding assessments from the Engineer's Report titled "VanBuuren
Municipal Drain Branch "A" dated October 31, 2008, prepared
by Spriet and Associates Ltd. (the Engineer), and signed by John R. Spriet,
P.Eng.
Ms. Carolyn Langley, 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 have been served with notice of this hearing.
Issues
- Should the design of the drain be altered in configuration or location?
- Should the assessments be adjusted?
Evidence
Appellant: Mr. Orgar
Mr. Orgar testified that he and his wife purchased their property in
2007. He produced a number of photographs illustrating the drainage problems
along South Grimsby Road 12 and also on his property. The photographs
depicted several pipe culverts almost totally filled with sediment.
Mr. Orgar objected to the proposed drain being located on his property.
He proposed that the water from the road pipe culvert in front of his
property should be rerouted northward along the east road ditch of South
Grimsby Road 12 to Mud Street (Regional Road No. 73) then eastward along
Mud Street to the VanBuuren Drain. The photographs also indicated that
there were drainage problems at the rear of Mr. Orgar's property.
With respect to the alignment of the open portion of the drain as proposed
in the Engineer's report, Mr. Orgar suggested that the channel should
be rerouted onto the neighbouring Culette property to continue with the
alignment of the tile portion of the drain.
In response to questions by the Tribunal, Mr. Orgar confirmed that one
of the photographs indicated that the water from the road pipe culvert
in front of his property was flowing east along the north edge of his
property in the location of the drain proposed in the Engineer's report.
Appellant: Ms. Clemencio
The Clemencio's purchased their property in 2007. Ms. Clemencio argued
that the drainage issues being addressed in the Engineer's report were
largely caused by the Municipality's inaction in dealing with drainage
when they approved the severances of lots along South Grimsby Road 12.
She stated that the Municipality should be held accountable for this inaction
and therefore should pay a larger portion of the drainage costs.
Appellant: Mr. Petropoulos
Mr. Petropoulos did not attend the hearing. However, he provided a written
submission indicating the same concerns as Ms. Clemencio.
The Engineer who prepared the report: John Spriet
Mr. Spriet provided an overview of his report. He testified that he did
not agree with the alternative design route as proposed by Mr. Orgar.
He presented engineering elevation measurements which indicated that it
was not feasible to route the water northward along the east road ditch
of South Grimsby Road 12 to Mud Street (Regional Road No. 73) then eastward
along Mud Street to the VanBuuren Drain.
The Engineer presented a series of photographs taken in 2004 depicting
the drainage problems along the proposed drain.
The Engineer testified that the drain has been designed for a 38 mm (1.5")
drainage co-efficient which is an acceptable design for a rural drainage
project. He indicated that the 400 mm (16") tile drain will carry
the drainage water adequately with the exception of overflow during extreme
storm events. He stated that the open channel design at the outlet of
the drain was more than adequate to carry the design flow.
In response to Mr. Orgar's suggestion that the downstream portion of
the open channel should be rerouted off his property and onto the neighbouring
Culette property, Mr. Spriet stated that the proposed alignment of the
channel closely follows the existing overland drainage flow route.
In response to the arguments raised by Ms. Clemencio and Mr. Petropoulos,
Mr. Spriet stated that he was aware of the severances of lots that were
granted by the Municipality since the time of his appointment in 2003,
and that he had considered this in determining the assessment to the Municipality
(South Grimsby Road 12). He provided several worksheets to support his
assessment calculations.
Analysis and Findings
The Tribunal accepts the elevation evidence provided by the Engineer
illustrating that it is not feasible to divert the flow of water from
the existing road culvert on the Orgar property line northward along the
east road ditch of South Grimsby Road 12 to Mud Street (Regional Road
No. 73) and then easterly to the VanBuuren Drain. The Tribunal also accepts
the Engineer's justification for the proposed alignment of the downstream
open portion of the drain.
Mr. Orgar did not present any substantive evidence to refute the professional
evidence of the Engineer. He also did not provide any substantive evidence
to suggest any feasible alternative designs to contradict those proposed
by the Engineer.
The Tribunal has reviewed the assessments in the report, supported by
the Engineer's assessment worksheets, and finds the methodology to be
in general compliance with the Drainage Act and in keeping with accepted
engineering practices.
The Tribunal accepts Ms. Clemencio's evidence that the Municipality failed
to adequately address drainage issues as part of the severance of lots.
However, the Tribunal is satisfied that the Engineer adequately considered
this in setting the assessment to the Municipality (South Grimsby Road
12). Accordingly, the Tribunal accepts the Engineer's assessments against
the Municipality to be reasonable in the circumstances.
Order of the Tribunal
The Tribunal Orders that:
- The appeals by Dave and Jackie Orgar under sections 48(1) and 54(1)
of the Drainage Act; and the appeals by Andrea and Jorge Clemencio,
and John Petropoulos under section 54(1) of the Drainage Act are denied.
- 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 all parties are
responsible for their own costs.
Dated at Maidstone, Ontario this 19th day of July, 2010.
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