ONTARIO
NORMAL FARM PRACTICES PROTECTION BOARD
Huff v Prinzen
1991 ONNFPPB 43
DATE OF DECISION:
1991-04-25
90-01
STATUTE:
Farm Practices Protection Act 1990
HEARING:
BETWEEN:
Catharine P. Huff - Applicant
And
Dark Prinzen - Respondent
REASONS FOR DECISION
This matter was heard in Bloomfield, Ontario on August 2nd, 1990. This hearing was based on an application brought by Mrs. Catharine Huff and others for consideration of Derk Prinzen's practice of operating a diesel tractor for purposes of irrigation in his agricultural operation under Section 5 of The Farm Practices Protection Act.
FINDINGS OF FACTS
The applicant, Catharine Huff, has, along with her husband, Lanny, resided on lands abutting a right-of-way in part of Lot 3 in the Concession South Side of West Lake, Township of Hallowell in the County of Prince Edward. The parcel owned by Mr. and Mrs. -Huff is immediately to the northeast of the right-of-way. Immediately to the northeast of their parcel is the parcel of land occupied by Arnold Murphy, one of the applicants and immediately to the northeast of his parcel is the parcel occupied by Frederick Bailey, one of the applicants. To the northwest of the right-of-way are the lands owned by Patricia Elley, which lands about the right-of-way from West Lake Road to the water's edge of West Lake.
The right-of-way contains on it the location of the agricultural operation which is subject to the complaint of the applicant. The right-of-way was registered by instrument number 37571 in the Land Registry office for the Registry Division of the County of Prince Edward on the 19th day of
May, 1967.
The terms of the right-of-way which was granted by James Bruce Hyatt to Derk Prinzen and Johanna Prinzen were that "the Prinzens, and their agents, servants and workmen, a free and uninterrupted right-of-way for all purposes in connection with farm operations through, along and over that certain parcel of land consisting of a strip of land 25 feet in perpendicular width throughout". The right-of-way stretched from West Lake Road to West Lake and there is no dispute between the parties as to its existence, although the parties disagree as to the use by Mr. Prinzen of the right-of-way for the irrigation of his lands.
Based on the evidence before the Farm Practices Protection Board it would appear that the Prinzen's right-of-way was indeed granted for the establishment of irrigation as, its sole purpose appears to be to provide access to the water for Mr. Prinzen, whose lands are located on the south side of West Lake Road. It appears that from the evidence Mr. Prinzen and Mrs. Hyatt, as well as other witnesses at the hearing that irrigation has occurred on the right of way prior to Mr. Prinzen's commencement of irrigation in 1983 through the use of independent contractors.
Considerable evidence was provided by Catharine Huff, Lanny Huff, Patricia Elley and Arnold Murphy as to the extent of the noise caused by the tractor located on the right-of-way which is used by Derk Prinzen to pump water to his farm property on the south side of West Lake Road. In addition Mr. Prinzen provided further evidence as to the nature of the setup for irrigation which he has established.
Based on the evidence given by these parties, in large part irrigation has been conducted through the use of a John Deere 2140 tractor which was first used in 1986. This tractor is situated at the waters edge and has been placed in various locations on the right-of-way. There have been changes made in the location of the tractor during the course of irrigation from 1983 to 1989. It would appear that a different tractor was used until 1986 and that the tractor has been moved approximately 36 feet from the location used in 1985 and prior years.
In recent years, because the irrigation line has been placed underground on the right-of-way the location of the tractor has been dictated by the location of the line as it enters the ground. The pumping occurs through the use of a power takeoff (PTO) on the tractor. The pump has an intake pipe of five inches in diameter and feeds into a line which has a six inch diameter. The tractor is set at an RPM which can alternate between 2000 and 2400 RPMs in order to maintain 80 pounds per square inch pressure from the pump towards the fields to be irrigated.
We have accepted the evidence of Catharine Huff and her husband as to the level of noise which occurred in the initial years. We are satisfied that the information provided to the Board that 90 decibel levels occurred is correct and that the decibel level with windows closed at 80 could have also been attained. We also accept the evidence of Catharine Huff as to the frequency of irrigation in 1985 when records were kept where the time used for irrigation was 21 days. At the time a number of complaints were lodged, mainly through the auspices of Catharine Huff, but other complainants also indicated their displeasure. It is established in the evidence that Mr. Prinzen made attempts to alter the effect which his irrigation, using the tractor, was having. A new tractor was used in 1986, the tractor was moved to a different location within the right-of-way and Mr. and Mrs. Huff constructed a railway tie retaining wall to control some of the sound. In the spring of 1986 it appears that the Farm Pollution Advisory Committee attended at the site and made recommendations regarding deflection of sound and the construction of sound absorbing panels extending above the tractor.
After some correspondence which was provided to the Farm Practices Protection Board, it appears that the attempts to muffle sound were not continued in the form of deflection and only sound absorbing panels were completed by Mr. Prinzen.
The sound absorbing panels, however, were not constructed to such a height as to meet the recommendations of the Farm Pollution Advisory Committee or provide the needed muffling or absorption of sound. The change of tractor, its location and the sound barrier, however, did have the effect of reducing sound levels as indicated by the evidence of Michael Coleman from the Ministry of Environment Abatement Section who tested on July 26th, 1989 for sound. At that time he collected data on the property of Catherine and Lanny Huff showing 68 decibels at a distance of 25 feet from the tractor and on the property of Patricia Elley at 71-72 decibels at a distance of 20 feet from the tractor. The Board is satisfied with the readings that Mr. Coleman presented to the Farm Practices Protection Board as being accurate at the time while it accepts the evidence provided by Mr. and Mrs. Huff as to the intensity of the noise levels in 1985:
The Board is also satisfied on the evidence of Mrs. Huff, Mrs. Elley and Mr. Murphy that considerable discomfort occurs as a result of the noise levels for the time involved during the irrigation process, with the discomfort being most greatly felt by Catherine Huff who resided on the premises closest to the tractor for the greatest length of time.
However, the Board believes that the situation from 1986 to the present has improved somewhat and that the following represents the current operation of the irrigation by Mr. Prinzen. Although he can reach 80 acres he generally irrigates 60 to 65 acres at a rate of 10 acres per day. This would represent a time period of two weeks and two days on the basis that Mr. Prinzen does not irrigate on Sunday. During the period of irrigation the tractor can run at anywhere from 2000 RPMs to 2400 RPMs depending on the amount of power required to provide pressure at 80 pounds per square inch. Evidence was provided as to alternate systems and the cost of the system now operated by Mr. Prinzen. Mr. Prinzen over-emphasized the savings of the present system, especially as to his fuel costs but I am satisfied with the evidence of John Inwood, district manager of Ontario Hydro's Picton office as to the costs of an electric pump which could be located on the right-of-way. Based on information provided by Mr. Prinzen and Mr. Inwood the Board is satisfied that the cost at present of an electric pump, using three-phase power would be $43,600.00. It is~also satisfied that an alternate system with a conversion to roto-phase would also be prohibitively expensive with the cost of the line being at least $10,900.00 together with a further cost of a converter to change single-phase power to three-phase power. Evidence was provided by Mr. Prinzen to indicate that a pump with phase converter would costs $24,312.00 and in addition there would be the requirements of an electrician to hook up such a converter.
The Board does not accept Mr. Prinzen's evidence that he fully conformed with the recommendations of the Farm Pollution Advisory Committee. Reviewing the written recommendations of the Farm Pollution Advisory Committee against the photographs shown of the location of the tractor and the sound barrier we are satisfied that the sound barrier was not erected high enough in relation to the muffler of the tractor and no attempt was made to deflect the noise from the tractor, although this lack. of attempt may have related to the concerns of the Ministry of Environment that the problem may simply be sent in another direction across West Lake.
In reviewing the evidence of Mr. Prinzen we also see no rebuttal of the statements made by the various witnesses and complainants as to his attitude to their complaints which were brought about by their view that he was impairing the quality of the natural environment in which they lived. We would accept the statements of all the witnesses as to his method of dealing with this and we would point out that as an alternative the evidence of Dean Foster as to the proper way in dealing with a neighbour and the method of consultation which we would highly recommend to Mr. Prinzen.
THE ISSUE
The issues before the Farm Practices Protection Board are as follows:
Is the noise resulting from Derk Prinzen's agricultural operation which uses a tractor, together with a power takeoff to run a pump for irrigation, a normal farm practice?
Is the present practice not a normal farm practice because it reduces the land value or renders some properties unsaleable.
Finally, is the present practice not a normal farm practice because it forces a homeowner out of his home, even temporarily.
DECISION
"Normal farm practice" as set out in Section 1 of the Farm Practices Protection Act means "a practice that is conducted in a manor consistent with proper and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances .and includes the use of innovative technology used with advanced management practices". In making a finding as to whether there is a normal farm practice, the Farm Practices Protection Board must have regard to what are proper and accepted customs and standards as established and followed by similar agricultural operations.
In the particular situation of Derk Prinzen's agricultural operation, because of the cost factor, there is no use of innovative technology or advanced management practices. During the course of the hearing limited evidence was provided by the Prinzen's agent as to the accepted customs and standards followed by similar agricultural operations. Evidence was given by Mark Henry, president of the Prince Edward Federation of Agriculture as to the number of farms in the County which were irrigating. Evidence was provided by Fred Hassenback as to the method of irrigating with an electrical pump and by Dean Foster using a tractor and PTO in various locations in the area. No evidence was given as to the proximity of the tractor to residences of neighbours. The only evidence which appears to be on point is Mr. Prinzen's evidence that until 1983 he was able to irrigate using the right-of-way without what appears to be substantial complaint by using independent contractors.
At the outset we would say :.at irrigation through means of a tractor with a PTO attached to a portable pump is a normal farm practice.
"Normal farm practice" is not defined by the effect that it might have on land values in the vicinity or their saleability of local properties. The value of property is in the eye of the beholder and what may be an irritant to one person is quite acceptable to another. By the same reasoning, the fact that a practice might force a homeowner out of his home on a temporary basis does not render that practice not a "normal farm practice". As an example, the spreading of liquid manure with proper incorporation practices may still offend the sensibilities of a neighbour and send them to a motel for a day or two. This however, does not make the practice of spreading the manure and the incorporation of the same into the soil not a "normal farm practice".
It is the Board's decision that the practice as presently carried out by Derk Prinzen cannot be described as a "normal farm practice", given there are no proper and accepted customs with regard to the extended operation of a tractor and a PTO in such close proximity to houses.
Therefore it is the order of the Board that Mr. Prinzen erect a proper noise barrier to provide for the effective absorption and muffling of sound from a tractor with a power takeoff to a portable pump which shall be of the following construction:
The structure shall be of a semi permanent character, able to withstand local climatic conditions.
It shall be located equidistant between the lands currently owned by the complainants Huff and Elley in the middle of the existing right-of-way.
The barrier shall be constructed of a 3/4 inch plywood exterior with 4 inch thick fiberglass insulation attached to its interior throughout. The barrier shall be four sided: enclosing the tractor completely on all sides except the side facing West Lake. The fourth side of the barrier shall be a roof or top barrier which shall be situate at least four feet above the top most limit of the tractor's muffler. This top barrier shall also have 4 .inch fiberglass insulation attached to it on its interior and shall have an exterior shell of 3/4 inch plywood.
After the tractor is installed within the barrier, prior to commencement of irrigation, a further moveable barrier shall be constructed of the same materials including the fiberglass insulation on the interior side to further enclose the structure. The structure may on the side facing the lake be open at the bottom to a maximum of two feet from ground level and on the top there may be a further opening extending a distance of one feet below the top or roof of the structure to allow ventilation. This barrier may be moveable to allow the removal of the tractor.
During the period of irrigation, the hours of operation shall be limited between 8 o'clock a.m. and 8 o'clock p.m... The complainants and the operator shall arrange for weekly readings to be conducted of noise levels during the first year of operation and shall arrange for the submission to the Board of the findings as to noise levels within 30 days of the completion of the irrigation for the crop year 1991, or should no irrigation be necessary during that year, 30 days after the first sustained period of irrigation thereafter.
Mr. Prinzen shall contact the complainants either verbally or by written notice advising them that he will be commencing irrigation operations at least 72 hours in advance of such commencement.
Upon receipt of such information, the Board shall decide whether the altered farm practice, as conducted in accordance with its order, constitutes a normal farm practice and whether it shall make such further order to change the said practice.
DATED AT STRATHROY this 25th day of April 1991.