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Thursday, February 10, 2011

Appeal Tribunal rules that drainage engineer didn't favour downstream mayor

The McWilliam-Campbell Drain is a closed tile drain located on Lots 6 to 8 Broken Front Concession A in the Municipality of Dutton/Dunwich. The drain was originally constructed under the Drainage Act in 1965. In its existing state, the tile is comprised of approximately 525 ft (160 m) of open ditch and 2,775 ft (845 m) of closed tile ranging in size from 6" (150 mm) to 12" (300 mm) diameter. The drain outlets to the Thames River and serves a watershed of approximately 44 hectares (109 acres) on both sides of Coyne Road. The lands within the watershed are predominantly agricultural with some wooded areas.

Robert and Susan McWilliam appealed to the Agriculture, Food and Rural Affairs Appeal Tribunal under Section 48(1) and 54(1) of the Drainage Act (The "Act") from the Engineer's Report (the "Report") dated July 22, 2010, and from a decision of the Court of Revision dated September 1, 2010. John M. Spriet, (the "Engineer") a professional engineer with the firm Spriet Associates Limited was appointed under Section 78 of the Act to prepare the Report.  The work proposed by the Engineer's Report encompasses the replacement of the lower portion of the existing 12" (300 mm) diameter tile with a new 24" (600 mm) tile, including a new crossing at Coyne Road and three new catch basins. The Engineer's estimated cost of the proposed works is $44,000 which is assessed against two affected landowners and Coyne Road.

Susan McWilliam testified that she and her husband believe the Engineer favoured the downstream landowner throughout the process, who is also the Mayor for the Municipality of Dutton/Dunwich. She said that they do not dispute that the existing drain tile has problems and that they need an outlet for their lands. However, she stated that their issues have not been addressed and that the Engineer ignored their questions and concerns throughout the process. She said that the 24" (600 mm) tile proposed by the Engineer will not fix the problems on the drain and she believes that the costs are too high relative to the benefit they will receive. She added that the Engineer's Report does not provide evidence that the drainage issues will be resolved and that costly maintenance repairs will persist even after construction of the larger tile. In further testimony directly from Robert McWilliam, he explained that their share of the costs to repair the existing 12" (300 mm) tile drain have been on average about $600 per year. He reasoned that since the new tile drain is larger, the yearly cost to maintain the new tile will also increase. Additionally, he said that they would have to make payments of $2,500 per year for the construction of the larger tile. He complained that this would be a huge burden on them.

The Tribunal found no evidence to substantiate the Appellants' claim that the Engineer favoured the downstream landowner, Cameron and Anne Marie McWilliam. The Tribunal also found no evidence that the downstream landowner, Cameron McWilliam, who is also the current Mayor for the Municipality of Dutton Dunwich, knowingly influenced the Drainage Act process. Accordingly, the Tribunal was satisfied that the Engineer's Report is a "true report" pursuant to Section 11 of the Act.  The Tribunal also found no evidence to substantiate the Appellants' claim that the Engineer did not carry out a proper investigation of the condition of the existing tile drain.

In view of the evidence, the Tribunal found that the work proposed by the Engineer's Report was reasonable under the circumstances and declined to order any amendments.  However, the Tribunal did find that the Appellants were justified in their claim that the Assessment for Maintenance is unfair.  The Tribunal did not accept the Engineer's explanation as to why his Assessments for Maintenance significantly deviated from his Assessments for Construction.  The Tribunal therefore ordered changes to the Assessments for Maintenance.

Read the decision at: McWilliam Campbell Drain.