Hill and Hill Farms Ltd. v. The Municipality of Bluewater

[Indexed as: Hill and Hill Farms Ltd. v. Bluewater (Municipality of)]

74 O.R. (3d) 352

[2005] O.J. No. 659

Court File No. 1388

Ontario Superior Court of Justice

Divisional Court

Then, Matlow and Pierce JJ.

January 14, 2005

Municipal law -- Jurisdiction of Normal Farm Practices Protection Board -- Municipality incorporating into its zoning by-law policy [page353] statement issued by Ministry of Agriculture, Food and Rural Affairs known as "Minimum Distance Separation II" ("MDS II") -- Farmer applying for minor variance from MDS II requirements -- After minor variance application dismissed, farmer applying to Normal Farm Practices Protection Board for relief from zoning requirements -- Board not having jurisdiction to interfere with matters within the traditional scope of land use planning -- Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 -- Planning Act, R.S.O. 1990, c. P.13, s. 71.

Planning -- Jurisdiction of Normal Farm Practices Protection Board -- Municipality incorporating into its zoning by-law policy statement issued by the Ministry of Agriculture, Food and Rural Affairs known as "Minimum Distance Separation II" ("MDS II") -- Farmer applying for minor variance from MDS II requirements -- After minor variance application dismissed, farmer applying to Normal Farm Practices Protection Board for relief from zoning requirements -- Board not having jurisdiction to interfere with matters within traditional scope of land use planning -- Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 -- Planning Act, R.S.O. 1990, c. P.13, s. 71.

The Municipality of Bluewater incorporated into its zoning by-law a policy statement issued by the Ministry of Agriculture, Food and Rural Affairs known as "Minimum Distance Separation II" ("MDS II"). The statement set out minimum distance separation requirements for livestock facilities within agricultural areas. In 2001, Hill and Hill Farms Ltd. ("Hill"), which was the owner and operator of a swine farming business in Bluewater, made two applications to the local Committee of Adjustment for minor variances from the MDS II requirements in the zoning by-law. These variances were needed to accommodate Hill's plans to construct additions to the farrowing barn and the gestation bar. After the applications were dismissed, Hill applied under the Farming and Food Production Protection Act ("FFPPA") to the Normal Farm Practices Protection Board (the "Board") for relief from the provisions of the by-law. The Board dealt with the application as if it were a request for an exemption from the MDS II zoning requirements so that Hill could proceed with the plans to expand. The Board concluded that the proposed expansion was not a "Normal Farm Practice" under the FFPPA, but that the expansion would qualify if certain specified adjustments were made. Bluewater appealed and sought an order setting aside the Board's decision and dismissing Hill's application.

Held, the appeal should be allowed.

The Board did not have jurisdiction under the FFPPA to entertain Hill's application. The Board could not properly conclude that Hill's expanded operation would qualify as a normal farm practice if it were in violation of the MDS II zoning requirements. Furthermore, the Board had no jurisdiction to grant any exemptions from those requirements or to countenance any contemplated violations. The Board did not have jurisdiction to interfere with matters that fell within the traditional scope of land use planning. The jurisdiction of the Board is confined generally to matters involving the protection of farmers who cause inevitable nuisances and disturbances to others by giving farmers the right to do so provided that their farming operations fall within the definition of "normal farming practice", but the Board under the Act has no jurisdiction to interfere with matters pertaining to land use such as those arising in the circumstances of this case. Minor variances and spot rezonings are matters that fa ll exclusively within the various processes recognized by the Planning Act. The Board exceeded its jurisdiction and its order must be set aside. [page354]

APPEAL of an order made in an application made pursuant to s. 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1.

Statutes referred to Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, ss. Preamble, 1-6 Planning Act, R.S.O. 1990, c. P.13, ss. 3(5), 71

Michael E. Mitchell, for applicant. Valerie M'Garry, for respondent.

The judgment of the court was delivered by

[1] MATLOW J.: -- This appeal by the Municipality of Bluewater ("Bluewater") is allowed and the order of the Normal Farm Practices Protection Board is set aside. In its place an order will issue dismissing the application made to the Board. Counsel seeking costs may make initial written submissions regarding costs within 30 days and the other party may reply within 15 days thereafter.

[2] The application, which was made to the Board by Hill and Hill Farms Ltd. ("Hill"), was made pursuant to s. 6 of the Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1 (the "Act"). The Board's reasons recite that the application was for "a determination that the Minimum Distance Separation requirements of the Municipality of Bluewater Zoning By-Law No. 22-1985 contained in s. 4.5 and s. 29 restrict the ability of the applicant to carry on a normal farm practice".

[3] However, the record before us contains a copy of a letter dated June 6, 2002, sent by Hill to the Board in which the author, Bev Hill, described Hill's application, in part, as follows;

Further to my telephone conversation with you and subsequent discussions with Mr. Harold House, P. Eng., I wish to make application to the Normal Farm Practices Protection Board requesting relief from the Municipality of Bluewater MDS II formula that is restricting expansion of our farrowing farm.

[4] In its decision, the Board came to the following conclusion:

Having considered all of the evidence, it is the opinion of this Board that the proposed expansion of the Applicant's present hog operation is not a Normal Farm Practice, but the proposed expansion would be consistent with Normal Farm Practice if the Applicant makes the following specific modifications to the Practice.

(Those specifications were then set out.)

[5] One of the modifications then contemplated by the Board was a reduction by 50 per cent of the separation distances [page355] required by MDS II, notwithstanding the inclusion of its requirements in the applicable zoning by-law.

[6] "MDS II" is the short title of a policy statement document issued by the Ministry of Agriculture, Food and Rural Affairs. It is also known by its full name, "Minimum Distance Separation II". It is described as a document which "provides minimum distance separation requirements for livestock facilities within agricultural areas". A background statement recites that its purpose was to address some of the problems created by incompatible land uses in rural areas by separating them by appropriate distances determined by the application of stipulated formulas. It affirms that the primary purpose and use of prime agricultural area should be for agriculture and that "non-farm residents who seek the advantages of country life must be aware of the noise, odours and dust associated with normal farm practices". The background statement also recites that persons having complaints regarding "odours, noise or dust" that cannot be resolved may request a hearing by the Farm Practices Protection Board which "can only ho ld hearings in regard to odour, dust or noise concerns" and then rule whether the occurrence complained of is "a normal farming practice".

[7] Section 3(5) of the Planning Act, R.S.O. 1990, c. P.13 requires that Bluewater "have regard" to policy statements such as MDS II "in exercising any authority that affects a planning matter". In compliance with that requirement, Bluewater council chose, as indicated above, to incorporate its requirements into the zoning by-law which is applicable to this case.

[8] For ease of reference, copies of the Act and of MDS II (except for the calculation details) downloaded from the Internet are included in these reasons as Appendix A (see p. 8) [Appendix omitted] and Appendix B (see p. 22) [Appendix omitted] respectively.

[9] For the reasons which follow, we are of the view that the Board erred in law in accepting jurisdiction to entertain Hill's application, regardless of the version it addressed, and making the order that it did. For that reason alone, we are required to intervene.

[10] Hill's application to the Board was made in the following circumstances.

[11] Hill is the owner and operator of a business primarily engaged in swine farming on lands located on the south side of Bayfield Road in Bluewater. In 2001, Hill applied to Bluewater for a building permit to permit it to construct additions to the existing farrowing barn and gestation barn to allow for the expansion of its swine production capacity from 700 sows to 1,350 sows. As well, Hill applied to the local Committee of Adjustment [page356] for three minor variances from the applicable zoning by-law to accommodate the proposed construction. Two of the variances sought were for relief from the MDS II requirements contained in the zoning by-law. Following a hearing, the application for the variances was dismissed. Hill then reduced the size of the proposed expansion plans and swine production capacity to an extent that resulted in partial compliance with MDS II and then made a fresh application for minor variances but that application too was dismissed.

[12] Having failed to achieve its objective through these applications made under the authority of the Planning Act, Hill adopted a new approach to attempt to overcome the remaining MDS II zoning requirements and proceeded instead with its application to the Normal Farm Practices Protection Board. At issue in this case was the odour generated by the pig farm.

[13] Hill sought a determination that the MDS II requirements in the zoning by-law restricted its ability to carry on a "normal farm practice" as defined in the Act. This application was presumably made pursuant to s. 6(3), but our reading of that provision leads us to conclude that there is nothing in it which authorizes such an application to be made. Nevertheless, if Hill was, at the time it made the application, actually carrying on a normal farm practice, it would follow that the only reasonable response to its application would have been a determination that the MDS II zoning requirements did not restrict its ability to carry on a normal farm practice.

[14] However, the Board did not address what was explicitly sought in Hill's application as described in the Board's reasons. Rather, it proceeded to hear evidence and examine Hill's plans to expand its operations and it then dealt with the application in a manner that was not responsive at all to the application. In essence, it dealt with the application as if it were a request by Hill to obtain an exemption from the MDS II zoning requirements so that it could proceed with its plans to expand. In other words, it dealt with the application as it was worded in Hill's letter to the Board described in para. 3 above.

[15] The Board then issued an order purporting to be made pursuant to s. 6(16)(c) of the Act which would have authorized it in a proper case to state its opinion that Hill's "farm practice will be a normal farm practice if the farmer makes specific modifications in the practice within the time set out in the decision".

[16] The Board's response also included what is described in it as a "decision" which may have compounded the errors it had already made. In particular, the Board could not properly have concluded, as it did, that Hill's expanded operation could still [page357] qualify as a normal farm practice if it were in violation of the MDS II zoning requirements. Furthermore, the Board had no jurisdiction to grant any exemption from those requirements or to countenance any contemplated violations.

[17] At p. 37 of its reasons, the Board stated the following;

We are of the opinion that compliance with MDS II will generally be found to be a necessary requirement of a normal farm practice. However, that should not be taken to mean that non-compliance with MDS II automatically eliminates the possibility of a farming operation being found to be a normal farm practice.

There may be extenuating site specific circumstances such as minor distance deficiencies, an absence of alternatives, the intensity of the disturbance, the characteristic of the surrounding land uses, and others that the Board should continue in determining if a particular farming practice is a "normal farm practice". Such an approach is implicit in the MDS II implementation guidelines which provide, inter alia, as follows:

"Minor variances to the MDS II distances can be considered based on the site specific circumstances. Municipal officials must consult with Ontario Ministry of Agriculture, Food and Rural Affairs staff when considering a variance application. Conditions that meet the intent, if not the precise distance of MDS II or mitigate environmental impacts, will receive further consideration".

[18] Although we agree with the essence of this statement, it is our view that the Board misapplied it. It does not support the jurisdiction assumed by the Board to interfere with the applicable MDS II requirements. That could be done only by the granting of minor variances by the Committee of Adjustment, as Hill had attempted to do, or by obtaining a spot zoning adjustment from the municipal council of Bluewater.

[19] During the course of submissions before us, it became evident that Hill's ultimate goal was, as reflected by its letter to the Board, to obtain the Board's opinion that its intended expanded operation would be characterized as a normal farming practice by the Board so that it could rely on s. 6(1) of the Act. It reads as follows:

6(1) No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.

It was submitted by counsel on behalf of Hill that this section would render the MDS II zoning requirements inapplicable to Hill's operations provided that they fell within the definition of "normal farm practice" as determined by the Board. Therefore, in making its order, which Hill's counsel submitted the Board did have jurisdiction to make, the Board purported to effectively grant Hill the so-called minor variances which it had earlier sought repeatedly without success.

[20] In our view, this argument is circular and, therefore, not persuasive. If effect were given to it, it would result in the Board [page358] determining that Hill's intended expanded operation, albeit in violation of the zoning by-law, would nevertheless qualify as a normal farm practice. Therefore, if it were to qualify, there would be no violation of the zoning by-law. This absurdity could make sense only if the Board were somehow empowered to grant Hill an exemption from the MDS II zoning requirements.

[21] However, it is our view that ss. 6(1) and (2) of the Act, the provisions relied on, cannot be the source of any such jurisdiction. Section 6(2) confers jurisdiction on the Board to determine whether a practice is a normal farm practice for the purposes of the non-application of a municipal by-law. A "municipal by-law", as used in s. 6, does not include a zoning by-law. Rather, s. 6(1) and (2) are intended to refer to municipal by-laws which deal with matters prohibiting or regulating nuisances and disturbances of the type referred to in the preamble of the Act. This is one of those rare instances in which a court should not give effect to the literal meaning of a word where the context shows overwhelmingly that the legislature intended that it should be given a more restricted interpretation.

[22] Our conclusions are further supported by the following brief analysis of the Act.

[23] The preamble to the Act includes the following recital:

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.

There is nothing in the preamble which confers authority on the Board to interfere with matters that fall within the traditional scope of land use planning.

[24] Section 1(1) of the Act defines "normal farm practice". It may be that there is good reason to conclude that this definition is one best understood and applied by the Board. However, there [is] nothing in the Act to lead to the conclusion that the Board is qualified to deal with matters pertaining to land use planning.

[25] Section 2(2) confers protection to farmers for acts of "disturbance" and "nuisance".

[26] Section 3 establishes the Board, while s. 4(2) confers jurisdiction on it limited:

(a) to inquire into and resolve a dispute regarding an agricultural operation and to determine what constitutes a normal farm practice; and

(b) to make the necessary inquiries and orders to ensure compliance with its decisions.

[27] Section 5 permits persons directly affected by a disturbance from an agricultural operation to apply to the Board for its [page359] determination whether the disturbance results from a normal farm practice. If it does not, the Board can order the farmer to cease the practice.

[28] Section 6(5) confers jurisdiction on the Board to refuse to hear an application if it is of the opinion that the "main reason for the application is other than to be able to carry on a normal farm practice". Had the Board not misconstrued the extent of its jurisdiction as outlined above, it might well have invoked this provision.

[29] Section 6(9) requires that the parties to an application and every owner of land that is within 120 metres of the area in which the farm practice is being exercised, and the municipality that has passed the by-law in issue, are entitled to notice of the hearing by the Board. This level of entitlement to notice is much less than that required for zoning by-law amendments pursuant to the Planning Act.

[30] Accordingly, it is our view that the jurisdiction of the Board is confined generally to matters involving the protection of farmers who cause inevitable nuisances and disturbances to others by giving farmers the right to do so provided that their farming operations fall within the definition of "normal farming practice". The Board has no jurisdiction to interfere with matters pertaining to land use such as those which arose in the circumstances of this case. Minor variances and spot rezoning are matters which fall exclusively within the various processes recognized by the Planning Act. Moreover, s. 71 of the Planning Act provides that, in the event of conflict between the provisions of that Act and any other general or special Act, the provisions of the Planning Act prevail.

[31] The reason for this is obvious. Land use matters, especially those which involve zoning issues, can have enormous ramifications not only for owners of the land involved but also for the community as a whole. They can also have similar ramifications for the municipality itself in the way that it performs its duties to plan, service, secure and finance orderly urban development. These are matters which require consideration of factors much different and broader than those which the Board is required to consider in carrying out its functions under the Act. They are also matters which must be considered by persons who have expertise in areas of law and land planning who are required to safeguard the public interest. As well, to the extent that they are addressed by municipal councils, zoning matters must reflect the views of ratepayers who are also entitled to participate in the process.

[32] With the greatest of respect, the scope of the Board's jurisdiction and its area of expertise are much different. In this case [page360] the record clearly reflects that it exceeded its jurisdiction and that its order must be set aside.

Order accordingly.