Annual Report of the Normal Farm Practices Protection Board - April 1, 2001 to March 31, 2002

Table of Contents

1. Introduction
2. Membership
3. Issues
4. Hearings
5. Performance Management Report
6. NFPBB Case Summary - April 1, 2001 to March 31, 2002

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 and Food. 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 Harvey Brown, Ann Haagsma, Marcel Leroux and the Chair, Edward Oldfield. There were five new appointments: Glenn Walker (appointed Vice-Chair), Claude Gravel, Andrew Millar, Linda O'Neill and Ron Versteeg. At the end of the period covered by this report there were ten members on the Board:

• Chairperson: Robert Stephens, St. Marys, lawyer
• Vice-Chair: Glenn C. Walker, Ridgetown, lawyer
• Darlene Bowen, New Liskeard, beef farmer
  
• Claude Gravel, St. Isidore, poultry farmer
  
• John Markus, Beachville, dairy and swine farmer
  
• Andrew Millar, Fenelon Falls, beef farmer
  
• Linda O'Neill, Cambridge, former poultry farmer
  
• Paul Tiessen, Leamington, fruit, vegetables, cash crops
  
• Ron Versteeg, Cumberland, dairy farmer
  
• Bert Vorstenbosch, Mitchell, swine farmer

Issues

1. Increased public awareness of environmental issues, and public concern over intensive livestock operations, increased the number of municipal by-law cases referred to the Board.
2. The Board has had to develop a position on manure management agreements, to assist farmers who do not own sufficient land for the disposal of the manure produced from their operations. Manure management agreements are controversial.
3. The ministry is developing agricultural operations legislation which will have an impact on the mandate and powers of the NFPPB. The extent of the impact will not be known until the legislation is completed.
4. The Board presented to the Minister a response to the proposed Minister's Directive supporting municipalities.

Hearings

Several hundred complaints pertaining to farm practices are received each year by the Ontario Ministry of Agriculture (OMAFRA). OMAFRA Staff mediate and resolve the vast majority of the complaints. In 2001-2002, the Board handled a total of 13 cases; five continued from the previous year and eight new cases referred to the Board during the year. Decisions were issued in eight cases; one was withdrawn; and four are pending.

Following are the seven cases which were decided:

1995-02: Lucas v. Terpstra

Odour: 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. The Board ordered the farmer to install two 60-foot exhaust stacks, one near each barn, to dissipate the odour from the barns.

2000-11: Jansen v. Township of Adelaide

By-law: A farmer had applied to his township for a building permit for a new 2500 hog facility. The permit was refused because he did not own at least 60% of the tillable acreage required for manure disposal. During the hearing, the parties reached a settlement in which the township agreed to grant the permit on the basis of manure agreements obtained by the farmer. The Board approved the settlement only on condition that the manure agreements provide adequate land for manure management for at least five years.

2000-13: Embury v. Township of Stone Mills

By-law: A farmer's 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. 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 management capacity, through either holding additional land in reserve, or maintaining application rates below capacity.

2000-13: Embury v Township of Stone Mills - Supplementary

By-law: In a continuation of the above case, the township required that a site plan be prepared before a permit could be issued for the barn. The Board ruled in a split decision that the site plan requirement did not restrict normal farm practice.

2001-01: Martin v. JMJ Farms

Noise: The applicants complained about excessive noise from rock music used by the farmer to protect his vineyards from birds. The Board ruled that use of a stereo system or other source of continuous noise to protect vineyards from birds was not a normal farm practice.

2001-02: Davis v. Township of Stone Mills

By-law: A farmer applied to the NFPPB for a ruling that a municipal noise by-law was restricting his normal farm practice in operating a pheasant farm. The farmer did not appear at a scheduled pre-hearing conference. He said he received the notice but he had to work and the hearing was not a high priority for him, since he had closed the pheasant operation. The case was dismissed.

2001-03: Stein v. Tiessen

Odour: The applicants complained of excessive odour from spreading of wastes on the farmer's land. The Board ordered the farmer to develop and implement an approved nutrient management plan by August 15, 2002, failing which all spreading of wastes must cease.

2001-04: Kocsis v. Town of Lincoln

By-law: A farmer applied to the NFPPB for a ruling that a municipal by-law was restricting his normal farm practice by preventing him from opening a wine retail outlet on his farm. The township brought a Motion challenging the Board's jurisdiction to hear this case. The Board ruled that it did not have jurisdiction because retailing is not covered by the Act.

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

Performance Management Report

Following is a report on performance goals set in the Business Plan for 2001-2002. These goals were based on the performance management model suggested by the Agency Reform Secretariat of Management Board Secretariat:

Board Performance Measures:

1. Timeliness in scheduling hearings: the period between the receipt of a complete hearing application and the issue of a letter of acceptance of the case was set at 15 days.
   Results: Eight cases were handled during the fiscal year. The average for all cases was 20 days, due to delays caused by the absence of the acting secretary in December and January, and delays in receiving engineer's reports.
2. Courtesy in handling requests for hearings: No complaints were to be received regarding courtesy.
   Results: No complaints were received regarding courtesy.
3. Fairness during hearings: No complaints were to be received regarding fairness.
   Results: No complaints were received regarding fairness at hearings.
4. Transparency at hearings: No complaints were to be received regarding hearing procedure.
   Results: No complaints were received regarding hearing procedure.
5. Courtesy during hearings: No complaints were to be received regarding courtesy to parties during hearings.
   Results: No complaints were received.
6. Fairness in Decisions: No complaints were to be received regarding the fairness of Board decisions.
   Results: No complaints were received regarding fairness of Decisions.
7. Timeliness in rendering Decisions: the period between the date of the hearing and the issue of written Decision with Reasons was set at 60 days.
   Results: Decisions were issued for four hearings, at an average of 33 days.

Individual Performance Measures:

1. Secretary: Request for Hearing - Timeliness: The period between the receipt of a complete hearing application and the issue of a letter of acceptance of the case was set at 15 days.
   Results: Eight cases were handled during the fiscal year. The average for all cases was 20 days, due to delays caused by the absence of the acting secretary in December and January, and delays in receiving engineer's reports.
2. Chair/Vice-Chair: Request for Hearing - Timeliness in scheduling hearings: the period between the receipt of a complete hearing application and the issue of a letter of acceptance of the case was set at 15 days.
   Results: Eight cases were handled during the fiscal year. The average for all cases was 20 days, due to delays caused by the absence of the acting secretary in December and January, and delays in receiving engineer's reports.
3. Chair/Vice-Chair - Hold hearing - Fairness: There should be no complaints relating to fairness in the conduct of a hearing.
   Results: No complaints were received relating to the conduct of any hearing.
4. Members - Hold hearing - Fairness: There should be no complaints relating to the actions of individual members at a hearing.
   Results: No complaints were received relating to the actions of members during a hearing.
5. Members - Render decision - Fairness: There should be no fairness concerns identified by the Chair or Vice-Chair in relation to the position of any members during hearing deliberations.
   Results: No such concerns were raised about any member.

Submitted this 17^th day of July, 2002.

___________________________

Robert Stephens
Chair

NFPPB Case Summary 2001-2002 - April 1, 2001 to March 31, 2002

Case # 1995-02
Lucas v. Terpstra

Application Date: Nov 21, 1995

Type: Odour

Applicant Address: Atwood, Perth County

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.

Pre-Hearing Conference Date/Location:

Hearing Date/Location: May 14, 15, 17, 2001 and Sep 20, 2001/Listwoel, Perth County

Hearing Panel: Bob Stephens, Ann Haagsma, Darlene Bowen

Status: Decision: In favour of applicant, October 2001.
The farmer was ordered to install two 60-foot exhaust stacks, one near each barn, to dissipate the odour from the barns.

Case # 2000-09
Gillies v. Township of Southgate

Application Date: Oct 14, 200

Type: By-law

Applicant Address: Mount Forest, Wellington County

Issue: A farmer complained that a township by-law was restricting her normal farm practice. She had submitted a nutrient management plan to the township for construction of a 2000-head hog finishing barn. The matter fell under the jurisdiction of the county, which rejected the application because it did not meet the county’s minimum distance requirements.

Pre-Hearing Conference Date/Location:

Hearing Date/Location: Nov 16, 2000/Dundalk, Grey County

Hearing Panel: Ted Oldfield

Status: Withdrawn
The matter was resolved and the case was withdrawn by the applicant on Sep 5, 2001.

Case # 2000-11
Jansen v. Township of Adelaide

Application Date: Nov 2, 2000

Type: By-law

Applicant Address: Kerwood, Middlesex County

Issue: A farmer complained that a township by-law was restricting his normal farm practice. He had applied to the 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.

Pre-Hearing Conference Date/Location:

Hearing Date/Location: Feb 26,27 2001/Adelaide, Middlesex County

Hearing Panel: Ted Oldfield, Bob Stephens, John Markus

Status: Settlement approved by Board Aug 15, 2001.
The parties reached a settlement; the Board approved it after a condition set by Board was met. In the settlement the township agreed to grant the permit on the basis of manure agreements obtained by the farmer. The Board’s condition was that the manure agreements provide adequate land for manure management for at least five years.

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

Application Date: Nov 3, 2000

Type: By-law

Applicant Address: Newburgh, Lennox and Addington County

Issue #1

A farmer complained that a township by-law 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.

Pre-Hearing Conference Date/Location:

Hearing Date/Location: Jan 11, Feb 12, 13, 2001/Centreville, Lennox & Addington County

Hearing Panel: Ted Oldfield, Bob Stephens, Marcel Leroux

Status: Decision in favour of farmer, March 30, 2001.
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.

Issue #2

The farmer also complained that the township was requiring that a site plan be prepared before a permit could be issued for the barn. A second hearing was held on this issue.

Hearing Date/Location: Apr 23, 24, 2001/Centreville, Lennox & Addington County

Hearing Panel: Ted Oldfield, Bob Stephens, Marcel Leroux

Status: Decision in favour of township, Aug 15, 2001.
At a subsequent hearing, the Board ruled in a split decision that the site plan requirement did not restrict normal farm practice.

Case # 2001-01
Martin v. JMJ Farms

Application Date: May 14, 2001

Type: Noise

Applicant Address: Vineland, Niagara County

Issue: A group of neighbours complained about excessive noise from rock music used by a farmer to protect his vineyards from birds.

Pre-Hearing Conference Date/Location:

Hearing Date/Location: July 13, 2001/Beamsville, R.M. of Niagara

Hearing Panel: Ted Oldfield, Harvey Brown, Paul Tiessen

Status: Decision In favour of applicants, Aug 24, 2001.
The Board ruled that use of a stereo system or other source of continuous noise to protect vineyards from birds was not a normal farm practice.

Case # 2001-02
Davis v. Township of Stone Mills

Application Date: May 22, 2001

Type: By-law

Applicant Address: Yarker, Lennox and Addington County

Issue: A farmer complained that a township by-law was restricting his normal farm practice. He was operating a pheasant farm, at which dogs were used for hunting. The barking of the dogs was contravening the township’s noise by-law.

Pre-Hearing Conference Date/Location: Aug 7, 2001/Centreville, Lennox & Addington County

Hearing Date/Location:

Hearing Panel: Ted Oldfield

Status: Application dismissed by Order Aug 21, 2001.
Farmer did not appear at a pre-hearing conference. He said he received the notice but he had to work and the hearing was not a high priority for him, since he had closed the pheasant operation.

Case # 2001-03
Stein v. Tiessen

Application Date: June 18, 2001

Type: Odour

Applicant Address: Wheatley, Essex County

Issue: A group of neighbours complained of excessive odour from spreading of wastes on the farmer’s land.

Pre-Hearing Conference Date/Location: July 23, 2001/Leamington, Essex County

Hearing Date/Location: December 17, 18, 19 2001

Hearing Panel: Bob Stephens, Bert Vorstenbosch, John Markus

Status: Conditional Decision in favour of farmer, Feb 15, 2002.
The Board ordered the farmer to develop and implement an approved nutrient management plan by August 15, 2002, failing which all spreading of wastes must cease.

Case # 2001-04
Kocsis v. Town of Lincoln

Application Date: July 17, 2001

Type: By-law

Applicant Address: Beamsville, Niagara County

Issue: A farmer complained that a township by-law was restricting his normal farm practice by preventing him from opening a wine retail outlet on his farm.

Pre-Hearing Conference Date/Location: Aug 31, 2001/Beamsville, R.M. of Niagara

Hearing Date/Location: October 23, 2001/Beamsville, R.M. of Niagara

Hearing Panel: Bob Stephens

Status: Application dismissed Nov 14, 2001.
The Board ruled that retail activities are not covered by the FFPPA.

Case # 2001-05
Quick v

Application Date: Aug 2001

Type: Odour

Applicant Address: Glanworth, Middlesex County

Issue: A neighbour complained that the farmer had built his new poultry barn too close to the neighbour’s home, and that the township had given him a permit to build even though the barn did not meet minimum distance requirements.

Pre-Hearing Conference Date/Location:

Hearing Date/Location:

Hearing Panel:

Status: The neighbour has not submitted an application to the NFPPB.

Case # 2001-06
Malloy v Byford

Application Date: Dec 18, 2001

Type: Odour; Flies

Applicant Address: Picton, Prince Edward County

Issue: A neighbour complained that the farmer had located his cattle feeders too close to the neighbour’s house, and consequently he was affected by the resultant odour and flies.

Pre-Hearing Conference Date/Location: No pre-hearing conference.

Hearing Date/Location:

Hearing Panel: Bob Stephens, Glenn Walker, Linda O’Neill

Status: The farmer’s lawyer has requested time to get an expert witness report.

Case # 2001-07
Wanless et al v Horsburgh et al

Application Date: Dec 7, 2001

Type: Odour

Applicant Address: Palmerston, Wellington County

Issue: A group of neighbours complained about odour from two swine barns, which they said do not meet minimum distance standards.

Pre-Hearing Conference Date/Location: March 20, 2002/London, Middlesex County

Hearing Date/Location: July 2002

Hearing Panel: Glenn Walker, Bert Vorstenbosch, Andrew Millar

Status: Hearing pending.
A pre-hearing conference was held on March 20, 2002; the Order was issued March 26, 2002. The hearing is pending.

Case # 2001-08
Parker v Demmers

Application Date: Feb 14, 2002

Type: Noise

Applicant Address: Port Perry, R.M. of Durham

Issue: A group of residents complained about excessive noise from a wind turbine generator operated by a farmer.

Pre-Hearing Conference Date/Location: May 7, 2002/Port Perry, R.M. of Durham

Hearing Date/Location:

Hearing Panel: Bob Stephens, Paul Tiessen, Ron Versteeg

Status: Hearing pending.
A pre-hearing conference was held on May 7, 2002; the Order was issued May 14, 2002. The hearing is pending.