Annual Report of the Normal Farm Practices Protection Board - April 1, 2000 to March 31, 2001

Table of Contents

1. Introduction
2. Membership
3. Hearings
4. NFPBB Case Summary - April 1, 2000 to March 31, 2001

Introduction

The Normal Farm Practices Protection Board ("the Board") is a tribunal with jurisdiction pursuant to the provisions of The Farming and Food Production Protection Act. The primary function of the Board is to adjudicate issues pertaining to farm practices. Practices which are "normal" as defined by the Act are protected. Practices which are not normal can be the subject of orders by the Board requiring the farmer to cease practices or to modify them.

There are two major types of hearings. Firstly, members of the community may complain about odour, dust, noise, flies, smoke, or vibration. The Board will hear evidence regarding complaints and make a determination as to whether these disturbances are protected by the Act.

The second type of hearing involves municipal by-laws. Pursuant to S.6 of the Act; by-laws may not act in a fashion to restrict normal farm practices. In these cases, farmers are the Applicants alleging that the by-laws unduly restrict normal farm practice. The Board hears evidence and at the conclusion of the hearing will render an opinion pertaining to the by-law.

Membership

Under the Act, the Board consists of a minimum of five members appointed by the Minister of Agriculture, Food and Rural Affairs. The members are appointed from across the province, with various backgrounds and expertise in agriculture and municipal affairs.

During the fiscal year four members completed their terms on the Board. They were Barbara Gillies, Rejean Pommainville, Jean-Guy Seguin and Richard Sprau. At the end of the period covered by this report there were nine members on the Board:

• Chairperson: G. Edward Oldfield, Waterloo
• Vice-Chair: Robert Stephens, St. Marys
• Darlene Bowen, New Liskeard
  
• Harvey Brown, Markham
  
• Ann Haagsma, London
  
• Marcel Leroux, St. Isidore
  
• John Markus, Beachville
  
• Paul Tiessen, Leamington
  
• Bert Vorstenbosch, Mitchell

Hearings

Several hundred complaints pertaining to farm practices are received each year by OMAFRA. OMAFRA staff mediate and resolve the vast majority of the complaints. In 2000-2001, a total of 14 cases were referred to the Board. Of these, five proceeded to hearing, four are on hold, three were withdrawn, one was referred to the Ministry of the Environment and one was closed because the applicant did not pursue it.

Following are the five cases which were heard:

Faux v Township of Havelock-Belmot-Methuen et al.

This case involved an application by a farmer alleging that an interim control by-law unduly restricted normal farm practice. Shortly before the commencement of a hearing, the Minister issued a directive pursuant to S.9(1) of the Act, stating that interim control by-laws would be determinative of normal farm practice until the municipality had an opportunity to prepare a complete nutrient management by-law. Accordingly, the application of the farmer was dismissed.

Gardner et al. v Greenwood Mushroom Farm

This application was brought by a number of individuals alleging that the Respondent's mushroom operation created offensive odour which was not consistent with normal farm practice. Previously, a number of individuals, (including one of the Applicants in the farm practices application), had sued Greenwood Mushroom Farm and obtained a judgment in which the Justice made decisions pertaining to normal farm practice. That decision was appealed to the Ontario Court of Appeal. The Board heard arguments pertaining to a number of legal issues. A decision pertaining to those issues was provided to the parties so that the opinion of the Board would be available to the Ontario Court of Appeal. The appeal was argued in March 2001. Whether the case resumes for a decision on the merits will depend upon the outcome of the Court of Appeal decision.

Horbal v Deschastelets

The application was made by the owner of a camp ground located near Sturgeon Falls, Ontario. The Respondent farmer raised sweet corn and berries. The farmer used an air cannon to scare raccoons and birds away from the crops. The Board determined that the use of the air cannon was consistent with normal farm practice and dismissed the application.

Embury v Township of Stone Mills

This application was brought by a farmer alleging that a township by-law should not apply to him because it was restricting his normal farm practice. The township rejected the nutrient management plan for expansion of his poultry facilities, because he did not meet the township's requirements of a minimum of 40% land ownership for the spreading of manure.

The Board ruled that 40% land ownership is not normal farm practice, but 40% long term control over land required for manure management is normal farm practice. Long term control was defined as five-year leases or agreements; with the requirement that there be reserve manure management capacity, through either holding additional land in reserve, or maintaining application rates below capacity.

The hearing was scheduled to continue on April 23 and 24 to address an additional issue raised by the applicant. He was challenging the township's requirement that a site plan be submitted before his new barn could be approved for construction.

Jansen v Township of Adelaide

A farmer applied to the Board for a ruling that a township by-law unduly restricted his normal farm practice. He had applied to his township for a building permit for a new 2500 hog facility. The building permit was refused because he did not own at least 60% of the tillable acreage required for manure disposal. The Board heard the case; the decision is pending.

A summary of all cases handled by the Board is presented in the Appendix.

Submitted this day of June, 2001.

___________________________

G. Edward Oldfield
Chair

NFPPB Case Summary - April 1, 2000 to March 31, 2001

Case 1995-02: Lucas v. Terpstra

Applicant Location: Atwood, Perth County
Application Date: Nov 21, 1995
Decision/Termination Date: N/A
Type: Odour

Issue:

The applicants complained about excessive odour from a hog operation on a neighbouring farm. They also complained that the hog structures did not meet minimum separation distance requirements.

Resolution (as of March 31, 2001):

Hearing pending. Both parties have delayed this case. A hearing is now scheduled for May 14, 15 and 17, 2001.

Case 2000-01: Gardner et al v. Greenwood Mushroom

Applicant Location: Uxbridge, R.M. of Durham
Application Date: Jan 6, 2000
Decision/Termination Date: Sep 21, 2000
Type: Odour

Issue:

The applicants complained about odours arising from a mushroom composting operation. The mushroom producer has been taken to court and assessed to pay damages to his neighbours. However the neighbours were not able to shut the operation down through the court process; so a different set of neighbours are bringing the case before the Normal Farm Practices Protection Board.

Resolution (as of March 31, 2001):

Dismissed. A prehearing took place to decide on a motion put forth by the applicants to utilize the decision and evidence of the court system. The Board dismissed the applicants' motion. No further action has been taken by the parties, who are awaiting a Court of Appeal decision some of the parties.

Case 2000-02: Faux v. Township of Havelock-Belmont-Methuen

Applicant Location: Keene, Peterborough County
Application Date: Mar 1, 2000
Decision/Termination Date: July 27, 2000
Type: By-law

Issue:

A swine farmer challenged the township's Interim Control By-law which stopped him from getting a Building Permit for a swine barn.

Resolution (as of March 31, 2001):

Dismissed. Under Section 9 of the Farming and Food Production Protection Act, the OMAFRA Minister issued a Directive which supported the Township's right to put in place an Interim Control By-law, and stipulated that the Board would not be able to rule that the farm activity was a normal farm practice. The Board dismissed the case.

Case 2000-03: Horbal v. Deschatelets

Applicant Location: Sturgeon Falls, Nipissing County
Application Date: Feb 3, 2000
Decision/Termination Date: Aug 14, 2000
Type: Noise

Issue:

The applicant complained about noise from continuous use of a bird banger, 24 hours a day, to keep birds and other predators (e.g. raccoons) away from sweet corn.

Resolution (as of March 31, 2001):

In favour of farmer. The Board ruled that the use of a propane fired canon to control raccoons at night was a normal farm practice between August 10 and Labour Day.

Case 2000-04: Neumann

Applicant Location: Stratfordville, Elgin County
Application Date: May 15, 2000
Decision/Termination Date: July 18, 2000
Type: Odour

Issue:

The applicant complained about noxious odours from the storage and spreading of wastes on a farm. The complaint was supported by a petition with almost 200 signatures.

Resolution (as of March 31, 2001):

Referred to MOE. No hearing. It was determined that the wastes involved were non-agricultural wastes; their storage and spreading was authorized by a Certificate of Approval from the Ministry of the Environment. The applicant was referred to the relevant Senior Environmental Officer in MOE.

Case 2000-05: Country Pork vs. Township of Ashfield

Applicant Location: Brussels, Huron County
Application Date: July 4, 2000
Decision/Termination Date: N/A
Type: By-law

Issue:

A farmer applied to the NFPPB for a ruling that a township by-law should not apply to him because it was restricting his normal farm practice. He had applied to his township for a building permit for a new hog nursery and liquid manure system. He complained to the NFPPB that although he had met all requirements, an interim bylaw was passed by the township limiting the expansion of livestock facilities, and his application was rejected. The township based its rejection on a directive from the Minister of Agriculture, Food and Rural Affairs excluding interim control by-laws from the FFPPA.

Resolution (as of March 31, 2001):

On hold. The matter was scheduled for a hearing, but the hearing was put on hold at the request of the applicant and the township, pending a decision on a related court action.

Case 2000-06: Oshawa

Applicant Location: Oshawa, R.M. of Durham
Application Date: May 31, 2000
Decision/Termination Date: March 30, 2001
Type: Odour

Issue:

A municipality applied to the Board for a hearing on whether the operation of a zoo on farmland was a normal farm practice.

Resolution (as of March 31, 2001):

Closed. No hearing. The municipality was referred to the OMAFRA regional engineer for investigation of the case but they did not pursue the matter.

Case 2000-07: Minnema

Applicant Location: Appin, Middlesex County
Application Date: March 31, 2000
Decision/Termination Date: N/A
Type: By-law

Issue:

A farmer applied to the NFPPB for a ruling that a township by-law should not apply to him because it was restricting his normal farm practice. He had applied to his township for a building permit for a manure storage tank for a new hog barn.

Resolution (as of March 31, 2001):

On hold. At the applicant's request, the matter was put on hold until he is ready to proceed.

Case 2000-08: Day v. Thompson

Applicant Location: Belleville, Hastings County
Application Date: Aug 5, 2000
Decision/Termination Date: March 9, 2001
Type: Noise

Issue:

The applicant complained of excessive noise from a machine shop, which she said the neighbouring farmers were operating across the street from her home.

Resolution (as of March 31, 2001):

Withdrawn. The case was accepted for a hearing, but after asking for lengthy delays, the applicant withdrew the application.

Case 2000-09: Gillies v. Township of Southgate

Applicant Location: Mount Forest, Wellington County
Application Date: Oct 14, 2000
Decision/Termination Date: N/A
Type: By-law

Issue:

A farmer applied to the NFPPB for a ruling that a township by-law should not apply to him because it was restricting his normal farm practice. She had submitted a nutrient management plan to the county for construction of a 2000-head hog finishing barn; it was rejected because it did not meet the county's minimum distance requirements.

Resolution (as of March 31, 2001):

On hold. A pre-hearing conference has been held. At the request of the applicant, the hearing has been put on hold while efforts are made towards resolution of the issues.

Case 2000-10: Sebben v. Township of Perth East

Applicant Location: Stratford, Perth County
Application Date: Oct 16, 2000
Decision/Termination Date: Feb 5, 2001
Type: By-law

Issue:

A farmer applied to the NFPPB for a ruling that a township by-law should not apply to him because it was restricting his normal farm practice. He had constructed a hay storage barn without a building permit. The township was prosecuting him because the building did not meet minimum distance requirements.

Resolution (as of March 31, 2001):

Withdrawn. A hearing was scheduled for this case; the applicant withdrew his application after the township issued a minor variance and a building permit.

Case 2000-11: Jansen v. Township of Adelaide

Applicant Location: Kerwood, Middlesex County
Application Date: Nov 2, 2000
Decision/Termination Date: N/A
Type: By-law

Issue:

A farmer applied to the NFPPB for a ruling that a township by-law should not apply to him because it was restricting his normal farm practice. He had applied to his township for a building permit for a new 2500 hog facility. The building permit was refused because he did not own at least 60% of the tillable acreage required for manure disposal.

Resolution (as of March 31, 2001):

Hearing decision pending

Case 2000-12: Rainville

Applicant Location: Chelmsford, Sudbury County
Application Date: Sep 11, 2000
Decision/Termination Date: N/A
Type: Odour

Issue:

The applicant complained of odour from the neighbouring farm, owned by her relatives, whom she said were sabotaging her mini-golf operation through their activities.

Resolution (as of March 31, 2001):

On hold. The matter was referred to the Agriculture and Rural Rep in the area. He has advised the applicant on the application of the FFPPA, and on proper procedures to refer the matter to the NFPPB if appropriate.

Case 2000-13: Embury v. Township of Stone Mills

Applicant Location: Newburgh, Lennox and Addington County
Application Date: Nov 3, 2000
Decision/Termination Date: March 30, 2001
Type: By-law

Issue:

A farmer applied to the NFPPB for a ruling that a township by-law should not apply to him because it was restricting his normal farm practice. His nutrient management plan for expansion of his poultry facilities was rejected because he did not meet the township's requirements of a minimum of 40% land ownership for the spreading of manure.

Resolution (as of March 31, 2001):

In favour of farmer; hearing continues on new issues. The Board ruled that 40% land ownership is not normal farm practice, but 40% long term control over land required for manure management is normal farm practice. Long term control was defined as five year leases or agreements; but there was also a requirement made for reserve manure management capacity, through either holding additional land in reserve, or maintaining application rates below capacity.

The hearing was scheduled to continue on April 23 and 24 to address additional issues raised by the applicant.

Case 2000-14: Money's Mushrooms

Applicant Location: Campbellville R.M. of Halton
Application Date: Nov 20, 2000
Decision/Termination Date: N/A
Type: Odour

Issue:

The home-owner has contacted the Board regarding odour from a neighbouring mushroom operation.

Resolution (as of March 31, 2001):

On hold. The home-owner has not yet submitted an application to the Board.