SOUTH HURON — While a tribunal overseeing an appeal over the Exeter Municipal  Diversion Drain has agreed such a drainage project is necessary, the appeal has been granted and the tribunal has ordered that the engineer's report be “set aside.”
Reached Monday afternoon, South Huron Mayor Ken Oke said the municipality will have to “start over again” with the drain project. He said South Huron will seek a legal opinion on the tribunal’s findings, but hopes in the meantime an agreement can be reached between the municipality and the appealing landowners.
Results from the Jan. 18-19 tribunal were released last week. The hearing was held in South Huron's council chambers as the result of an appeal by property owners R. and D. Hamather and G. and J. McBride, on whose land much of the project was to be constructed.
While the Ministry of Agriculture, Food and Rural Affairs Appeal Tribunal consisting of John O'Kane, Enio Sullo and Sharon Weitzel agreed a drainage project is necessary for Exeter, their report included criticism about the engineering of the project and the tribunal ordered that the engineer's report be “set aside.”
Oke said all sides involved in the tribunal have come out as the “losers.”
As previously reported, council decided to go ahead with the $1.5 million project to deal with flooding problems in the eastern portion of Exeter. The project involves a combination of a municipal storm sewer and an open ditch from Huron Street north to the Ausable River along the former Exeter-Usborne boundary. The project was designed to handle a 100-year storm, a level the tribunal deemed excessive and overly costly.
The project aims to provide relief for a 96-acre catchment area, much of which is agricultural land, but also included are urban areas along Huron Street, roads and bush. A portion of the project is to take place on Ironwood Golf Club.
One matter to consider is the fact that in order for the municipality to remain eligible to receive grants of $462,550 each from the province and Ottawa for the $1.5 million project, it must be finished by March 31, 2011.
Oke said the grant is still on the table.
The tribunal results were expected to be discussed by council at Monday night's meeting after the Times-Advocate's deadline.
“We have to start over fresh,” Oke said.
In documents released by the province, the tribunal found that “the benefits of the proposed works are not commensurate with the estimated costs and accordingly grant the appeal and set aside the report.”
The documents detail that according to project engineer William Dietrich, the eastern parts of Exeter have “received uncontrolled runoff from predominantly agricultural properties to the east, often resulting in flooding of certain roads, residences and businesses along the flow path during various rainfall and snow melt events. The flooding has caused significant disruption and damage, particularly to immediately downstream roads and dwellings.”
The project would permanently use 1.87 acres of McBride agricultural land, 0.79 acres of Hamather agricultural land and 0.75 acres of Hamather bush land.
Counsel for the appellants argued that the project would take some of their land out of productive agricultural use resulting from the installation of catch basins, berms, rock erosion protection and buffer strips.
Counsel also said the drainage project is “strictly for the benefit of urban land within Exeter and will be a detriment to the agricultural lands.”
Counsel said there are other options and locations for a drainage project.
In cross-examination, Dietrich disagreed that the appellants' property would not see any benefits from the project.
Speaking in favour of the project was Sherwood Crescent resident Peter Aunger, who spoke of how flooding has affected Exeter. He expressed concern that delays in the project could result in the loss of government grants.
Also of issue was assessing the costs of the project. While the municipality was assessed the cost of the project, Dietrich admitted, “the municipality is not obliged to pay for the entire cost of the works and that, under normal circumstances, he would have assessed the affected parties, including the McBride and Hamather lands, for both benefit and outlet. Given that a major portion of the runoff originates on the McBride and Hamather lands, they would normally have been assessed a significant part of the cost for outlet liability.”
The tribunal was critical of the municipality's and the engineer's “apparent disregard and cavalier attitude” in certain provincial provisions and listed instances of non-compliance, including the fact that Dietrich was deemed both the engineer and the drainage superintendent of the project, “both of which are defined roles with distinct mandates,” according to the tribunal's report.
“Throughout the process, the municipality confuses Mr. Dietrich's roles . . . The tribunal is not satisfied that the engineer was able to act independently as required by Section 11 while holding concurrent roles as engineer and drainage superintendent.”
Another instance of non-compliance, according to the tribunal, is a May 5, 2008 council resolution that instructs the drainage superintendent to “move forward on the municipal drain preliminary report.” The tribunal states, “the Act does not authorize drainage superintendents to prepare reports.”
The tribunal report also says the draft drainage report is “incomplete, inconsistent or does not comply with the Act.”
The tribunal did, however, agree with the location and routing of the drain project “as recommended by the engineer. The uncontested evidence is that the source of the runoff that causes the flooding in the urban area is predominantly from the agricultural lands, including those of the appellants, with the exception of a small residential strip along Huron Street. That flooding is the impetus behind the Petition for Drainage.”
The tribunal agreed with Dietrich that the drain will carry the overland water flowing from the agricultural land to a sufficient legal outlet.
“We also accept the engineer's evidence that the drain will provide improved sub-surface water controls to the McBride and Hamather lands, which is a benefit to their agricultural activities.”
One of the tribunal's concerns is that the project was designed to handle a 100-year storm, something the tribunal called “an unusually high standard for a municipal drain. One of the panel members is a retired professional engineer and drainage engineer with over 30 years professional experience in drainage. In that panel member's experience, he has never seen a 100-year standard for a municipal drain.”
Dietrich testified that the proposed design standard is “much higher than the current five-year standard for the storm sewers in the town of Exeter,” and said in his career he had never previously designed a municipal drain to a 100-year standard.
According to the tribunal’s documents, Dietrich said, “If he had used a typical design standard for municipal drains, the cost of the project would probably be about one quarter of the cost currently proposed. He also confirmed that had he used any other standard less than the 100-year standard, the project's costs would likely go down by about half.”
As a result, the tribunal decided Dietrich's design standard is not warranted in this case, and agreed with the appellants “that the benefits to be derived from the proposed drain design are not commensurate with the estimated costs.”
The tribunal summarized that “the source of the runoff is predominantly from agricultural lands, including those of the appellants. Therefore, we find the proposed works will benefit the appellants' lands for their continued use growing crops and livestock. We also find the proposed works are not storm water management facilities for the sole benefit of the urban lands within Exeter.”
The tribunal continued: “Under common law, the appellants have no assurance they can continue to discharge runoff onto downstream lands and roads. The tribunal is satisfied that an appropriately designed drainage works is necessary for the appellants' agricultural land use to collect and direct runoff from the agricultural properties to a good and sufficient outlet in the Ausable River.”
The tribunal granted the appeal, set aside Dietrich's engineer's report and ordered that all parties involved in the appeal are to pay their own costs.