The Farming and Food Production Protection Act (FFPPA) and Nuisance Complaints
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Rural Ontario is changing. Farms are increasing in size and complexity, and fewer people living in rural areas are farmers. In 2001, farmers made up only 1.7% of Ontario's total population of 11.4 million people, and only 10% of the rural population. That is, only about 1 in 10 people living in rural Ontario actually farms, and the number of farmers is dropping.
Urban residents are moving to towns and villages, rural routes and concession roads, drawn by the quality of life in rural Ontario. They value the tranquility, the sense of community and the lifestyle.
Farmers appreciate their lifestyles as well, but they also see rural Ontario as a place of business, where the agri-food industry provides their livelihoods and contributes $25 billion a year to the provincial economy.
As in many areas where industry and residences are located side-by-side, conflicts about the way business is carried out sometimes arise between farmers and their neighbours. Not surprisingly, nuisance complaints sometimes come from farmers themselves.
To ensure that the rights of all rural Ontario residents are respected, the Ontario government passed Bill 146, the Farming and Food Production Protection Act (FFPPA), in May 1998.
Before drafting the legislation, the Ontario Ministry of Agriculture and Food consulted widely with rural residents. Eight regional meetings drew close to 1,000 farmers, rural landowners and municipal leaders.
Representatives of Ontario's agricultural community said that to conduct their business, they needed to be protected from complaints and nuisance lawsuits regarding normal farming practices. They said that the existing Farm Practices Protection Act, 1988 was out-of-date and inadequate.
Rural, non-farm residents felt that farming operations needed to be more clearly defined. They said that farming practices should be better explained to create a better understanding of the types of disturbances that stem from them, such as odours or noise. They wanted the Farm Practices Board, which held hearings on nuisance complaints, to be more representative of rural Ontario.
Rural municipal leaders, who often deal with conflicting interests, said that clearer definitions and greater understanding would better meet the needs of all rural residents.
There are two main themes in the FFPPA.
In its preamble, the FFPPA outlines the reasons why this legislation is important.
"It is desirable to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fibre and other agricultural or horticultural products. Agricultural activities may include intensive operations that may cause discomfort and inconveniences to those on adjacent lands. Because of the pressures exerted on the agricultural community, it is increasingly difficult for agricultural owners and operators to effectively produce food, fibre and other agricultural or horticultural products. It is in the Provincial interest that in agricultural areas, agricultural uses and normal farm practices be promoted and protected in a way that balances the needs of the agricultural community with provincial health, safety and environmental concerns."
The FFPPA broadened the definition of an agricultural operation to an: "agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward".
Examples listed in the Act include:
The Act defines a normal farm practice as one which:
Some believe normal farm practice means 'customarily' or 'commonly done'. However, just because something is commonly done, does not make it normal. The real question is, 'Would a farmer with average, to above average, management skills use this same practice on his/her farm under the same circumstances?'
What is normal, or not, varies depending on location, type of farm, method of operation, and timing of the farm practice. Normal is site specific for a given set of circumstances, and may change over time.
Under the Nutrient Management Act, 2002 (NMA) any practice that is consistent with a regulation made under the NMA is a normal farm practice. Similarly, any practice, which is inconsistent with the NMA regulation, is not a normal farm practice.
The FFPPA established the Normal Farm Practices Protection Board (NFPPB) to hear from parties involved in formal complaints that cannot be resolved through mediation efforts. In other words, holding a hearing with the NFPPB is to be used as a last resort. The NFPPB then conducts a hearing to determine if the disturbance causing the complaint results from a normal farm practice.
The very existence of the board aids in resolving nuisance issues. For those issues that cannot be resolved through local mediation, the board provides a less expensive and quicker forum for complaint resolution than the courts.
In coming to a decision, the NFPPB hears from the parties involved and considers the relevant sections in the Act. The NFPPB: "may appoint one or more persons having technical or special knowledge of any matter before the Board to assist it in any capacity in respect of that matter".
'Experts' must be summonsed by the NFPPB to ensure that they appear at a hearing. Each affected party can also call witnesses to speak on their behalf. The affected parties and experts may offer their opinions about whether a particular farm practice is normal. However, only the NFPPB can render a legal decision concerning a normal farm practice for that location, farm type, method of operation, and timing of farm practice.
For example, consider a hearing about noise from equipment used to scare birds away from vineyards. The NFPPB might decide that it was normal to use this equipment:
Decisions by the NFPPB must be consistent with any directives, guidelines or policy statements issued by the Minister of Agriculture and Food in relation to agricultural operations or normal farm practices.
The NFPPB consists of at least 5 members appointed by the minister. The minister also appoints the chair and vice-chair. NFPPB members serve for 3 years, but can be re-appointed for a maximum of 3 more. Members include respected farm peers from across the province, engaged in many types of farming. The chair or vice-chair plus 2 other members constitute a panel for hearings. The board tries to hold its hearings in the counties or regions where the cases originate. To avoid conflict of interest, panel members for a particular hearing are always selected from geographic areas away from the case.
The new legislation added light, vibration, smoke and flies to the previous list of noise, odour and dust as disturbances for which farmers are not liable, provided these disturbances result from normal farm practices.
The bulk of farm nuisance complaints are about odours emanating from manure handling and storage. However, examples of other nuisance complaints might include:
Nuisance issues do not include activities that could be harmful or dangerous to people or the environment. These activities are covered under other legislation.
The FFPPA states that "No municipal by-law applies to restrict a normal farm practice carried on as a part of an agricultural operation." A farmer who feels that a municipal by-law is restricting his/her normal farm practice may apply to the board for a hearing. The board will determine if the practice restricted by the by-law is a normal farm practice. If it is, then, under the FFPPA, the by-law does not apply to that practice at that location. The board cannot strike down the by-law. It can only rule on whether or not the practice under consideration is a normal farm practice, at that location and under those particular circumstances.
A farmer who is planning to engage in a normal farm practice restricted by a municipal by-law can also use the legislation. For the board to hear his/her case, the farmer would have to prove that he/she is planning to implement the normal farm practice.
When a hearing is to be held, anyone who owns property within 120 m of the site of the farm practice is entitled to be notified of the hearing and to participate in it. This applies only in by-law cases.
The FFPPA is intended to ensure that farmers can carry out normal farm practices knowing that there is legislation to protect them against nuisance complaints. It does not mean that they will not get complaints. It also does not give farmers the right to pollute, or to violate the:
The FFPPA has sometimes been incorrectly referred to as the 'Right to Farm Act'. This gives the connotation that farmers can do whatever they wish on their own property, regardless of the consequences. This is not the case. Farmers are protected from liability concerning a nuisance only when the activity causing the nuisance is a normal farm practice. At the same time, this legislation does not prevent anyone from pursuing an injunction against a farmer charged under another Act.
When a neighbour is bothered by any of the 7 nuisances under the FFPPA, he or she should first try resolving the matter by speaking with the farmer believed to be creating the nuisance. This helps open up the lines of communication. Many complaints are resolved this way. However, if the complaint is not resolved, neighbours or farmers can seek assistance from the local Municipal Agricultural Advisory Committee or the municipality. If further mediation is still needed, neighbours or farmers can call OMAFRA's Agricultural Information Contact Centre at 1-877-424-1300. Staff will arrange for the most appropriate OMAFRA agricultural engineer to contact the parties and facilitate the conflict resolution process, with the goal of avoiding a hearing. The OMAFRA engineers will work with the parties to address contentious issues before they escalate. Where necessary, they may call upon other experts with knowledge of agriculture issues. This process has proven to be very successful in resolving conflicts about nuisances. Over 98% of all such nuisance conflicts are resolved this way in Ontario.
Only after the mediation process has been tried will a case be accepted for a hearing by the Normal Farm Practices Protection Board.
A fraction of one per cent of the complaints received by OMAFRA involves municipal by-laws. This is because there is usually much consultation between municipalities and OMAFRA when by-laws are being developed. Since any related conflicts involve contravention of a by-law, there is generally little room for negotiation or mediation. Farmers or municipalities involved in by-law conflicts should call OMAFRA's Agricultural Information Contact Centre and OMAFRA's conflict resolution process will be initiated. If not resolved, the case may then proceed to the Board for a hearing.
Once all other voluntary or mediated efforts have failed, an applicant may make a formal application to the NFPPB.
Applications for nuisance complaints must state:
Applications for by-law complaints must include:
In short, the more information the applicant can supply, the better. The NFPPB makes decisions based only on what it hears from each of the parties involved at the hearing. Information in the application is extremely important, since the NFPPB may refuse to hear an application if it is considered to be trivial, frivolous, vexatious, not made in good faith, or if it appears that the applicant has insufficient personal interest in the subject matter.
Once the NFPPB decides to hold a hearing, a date and location is chosen. It can be difficult to choose a suitable date, since it must fit the schedules of the NFPPB, the applicant, the farmer, any persons having technical or special knowledge of any matter in the hearing that may be testifying, and any lawyers that may be present for either party.
Forward all applications to the:
Applicants and respondents ("parties") should be aware of the following before attending a hearing.
The sequence of events in the hearing is normally outlined by the chair of the hearing panel at the outset of the hearing.
If a dispute has continued for a long period, the applicant and respondent may not be on speaking terms. The hearing might be the first time they have been in the same room for a long period. It can be uncomfortable for them. However, hearings often become a 'healing session', and a chance to finally air both of their concerns on the issue. Often, concerns about farm practices arise from a misunderstanding or a lack of communication. Comments such as, 'I didn't know that', or 'Why didn't you tell me first', or 'I just want you to understand that the odour bothers me', are commonly heard at hearings. That is why OMAFRA continues to work with farm organizations and rural municipalities to increase awareness of the realities of rural living, and why OMAFRA's agricultural engineers offer abatement, conciliation and mediation services for nuisance and by-law complaints.
The NFPPB has 3 options available to it after a hearing. In a nuisance case the board shall:
If the board rules that the practice causing the disturbance is a normal farm practice, the farmer is free to continue the practice under the protection of the Act. The board will not entertain further complaints unless circumstances have changed appreciably.
In a by-law complaint, the board may rule that the practice in question is a normal farm practice, is not a normal farm practice, or that it will be a normal farm practice if the farmer makes specific modifications.
The decision is issued in written form, with reasons explaining why the board decided the way it did. It normally takes 4-6 weeks after a hearing for the decision to be issued. This is quick compared to the court system.
Under the Act, any party to a hearing may appeal an order or a decision of the board, on any question of fact, law or jurisdiction. The appeal must be made to the divisional court of the Superior Court of Justice, within 30 days of the date of the order or decision.
Like other regulatory agencies, NFPPB orders and decisions are enforced in the same way as court decisions. The procedure for enforcement is established by the Statutory Powers Procedure Act, which governs agencies, boards and commissions of the provincial government. First, one of the parties or the board must file a certified copy of the decision or order with the Superior Court of Justice itself. The decision or order then becomes a decision or order of the court, and is enforceable as such. The party seeking enforcement would apply to the court at the court offices.
For more information on solving nuisance complaints, pick up a copy of the following OMAFRA Factsheets, or visit our web site.
For more information:
Toll Free: 1-877-424-1300