Landowners succeed on appeal of assessment for municipal drain maintenance work

Little Creek Municipal Drain services a watershed in the Municipality of the Town of Lakeshore. Little Creek itself drains approximately 2,700 hectares (or 6,650 acres) of mostly farmland into Lake St. Clair.  In 2011, the Town instructed a drainage Engineer to prepare a new updated assessment schedule for Little Creek for the purposes of future maintenance.  Several landowners who farm within the watershed disputed the results of the Engineer’s new assessment schedule primarily on the basis that his ratio of “benefit” to “outlet” assessment was disproportionate and unfairly burdened their lands with a higher assessment.

On the appeal of the Engineer's assessments, the Agriculture, Food and Rural Affairs Appeal Tribunal (the "Tribunal") concluded that the Engineer's method of assigning benefit assessments to the landowners relied too heavily on previous reports and not enough on his own objective determinations.  As this was a drain repair or maintenance project, the assessment process was not the same as it would be for a new drain construction.  The Tribunal said the following about the determination of "benefit" to the landowners and its role in setting the assessment of costs to the landowners:

According to the definition of “benefit” in Section 1 of the Act, benefit assessments apply to new work or improvement work where it can be easily justified that the construction, in fact, “… will result in a higher market value or increased crop production or improved appearance or better control of surface or subsurface water, or any other advantages …”. However, once that initial benefit has been paid by those lands, they should not have to pay a higher assessment every time it is maintained or repaired; that is, those lands should not have to pay over and over again for those initial benefits. Using the outlet assessment schedule is the fairest way to charge properties for maintenance and repair because, as stated in Section 23(3) of the Act, it is “…based upon the volume and rate of flow of the water artificially caused to flow … into the drainage works from the lands and roads …” as well as the length of the drainage works used by those lands and roads.

 

For the reasons mentioned above, when both a benefit assessment schedule and an outlet assessment schedule exist within a report prepared under Section 4 or Section 78, it seems most reasonable that only the outlet assessment schedule be used for maintenance purposes, after the new or improved drain has been constructed. In this case, the Engineer has prepared a benefit schedule that totals $11,000 and an outlet schedule that totals $39,000. The Tribunal does not find the 1981 Brewer-Terry Drain Decision to be comparable as the report under consideration in that hearing was an improvement report, prepared under Section 78 of the Act, wherein the appellant’s lane crossing was being extended. It was not a report prepared under Section 76 of the Act.

 

Accordingly, the Tribunal agrees with the Appellants that, given the facts of this case, benefit assessments should not be considered when apportioning assessments for maintenance.

[emphasis added]

The Tribunal ordered the Engineer to revise the Schedule of Assessment so that assessments would be based only on revised outlet assessments (rather than on the standard categories of "special benefit", "benefit" and "outlet").

Read the decision at: Little Creek Drain (Re).