Bader v. Dionis, 1992 ONNFPPB 39

ONTARIO NORMAL FARM PRACTICES PROTECTION BOARD

Bader v Dionis 1992 ONNFPPB 39

DATE OF DECISION: 1992-09-02

92-01

STATUTE: Farming and Food Production Protection Act 1990

HEARING:

BETWEEN: Patricia Bader – Applicant And Mirella Dionis – Respondent

REASONS FOR DECISION

This matter was heard on May 25th, 1992 and July 20th,1992 at the Town of Lincoln Municipal Building, Beamsville, Ontario. This hearing was based on an application brought by Mrs. Patricia Bader and others for consideration of Mirella and Lorenzo Dionis's practice of operating a Bird Banger for the purpose of protecting their fruit crop, more particularly, grapes in their agricultural operation under Section 5 of the Farm Practices Protection Act.

FINDINGS OF FACTS

The applicant, Patricia Bader, along with her husband, Tony, and Gord Hubbard, along with his wife, June, reside on part of Lot 10, Broken Front Concession, Township of Clinton, now in the Town of Lincoln, along the road allowance between Lots 10 and 11 known as Tufford Road.

The houses of Mr. and Mrs. Bader and Mr. and Mrs. Hubbard are located on the east side of the road. Immediately adjacent and across the road allowance for Tufford Road, in Lot 11, Broken Front Concession, Township of Clinton, now in the Town of Lincoln, is the agricultural operation run by Mirella and Lorenzo Dionis.

On the Dionis property is located a grapery, eleven rows deep, extending westerly from Tufford Road, a depth of approximately 88 feet. The grapery commences at a point opposite the southerly boundary of the property owned by Mr. Gord Hubbard and extends approximately 255 feet northerly from that point. At the end of the grapery is the home and farm buildings of Mr. and Mrs. Dionis.

On reviewing the evidence of Mrs. Bader, Mr. Hubbard and Mirella Dionis, there is little disagreement with regard to the current location of the Bird Banger or acoustical bird scaring device and We have accepted the evidence of Mr. Hubbard, more particularly his sketch and survey, Exhibits 2 and 2A, as establishing the dimensions of the grapery and the location of the Bird Banger.

Considerable evidence was provided by Patricia Bader, Gord Hubbard, Elaine Slingerland and Vera Youngblut as to the nature and extent of noise caused by the Bird Bangers and other scaring devices which have been used by Mr. and Mrs. Dionis. Mr. Hubbard confirmed that plastic bags, yellow streamers and electronic devices known as AV alarms have been used in the past by Mr. and Mrs. Dionis in an attempt to control the birds.

Mr. Hubbard, in his evidence, indicated that when the AV alarm, which provided a high pitched electronic screeching or whining noise was in operation, he had no difficulty with the use of the alarm in that he had air conditioning and no real problem when he was outside, except for a certain nuisance value to the noise. He found the cannon however, much louder.

Patricia Bader, in her evidence however, indicated that as a result of her lack of air conditioning in her and her husband's home, she found the AV alarm very disconcerting and when the AV alarm was twinned with a Bird Banger which was purchased by Mr. and Mrs. Dionis she found the noise unbearable.

All parties agree that since late August, 1991 only a Bird Banger or acoustical bird scaring device, also variously described as an impulse banger, has been used and that the AV alarm's use has been discontinued. As a result, the farm practice which all parties described to the Board was the use of an impulse acoustical bird scaring device known as a Triple John.

It is the evidence of all parties that a somewhat defective AV alarm which was used in September of 1990 has since been removed from the property and that a newer AV alarm which was purchased by Mr. and Mrs. Dionis after investigation of a noise complaint by the Ministry of Agriculture and Food and the Ministry of Environment, is also no longer operating. The reason given to the Board, and not contradicted by any of the parties, was that of Mrs. Dionis in which she advised that she had greater success with the Triple John and for that reason she has discontinued use of the AV alarm.

As a result, there is no evidence before the Board of simultaneous use of impulse and non-impulse alarms by Mr. and Mrs. Dionis at the present time.

While there is a great deal of evidence as to the intensity and distressing nature of the noise caused by the Triple John Bird Banger, there is also evidence from witnesses in the vicinity, more particularly, Clifford House, who abuts the property of Mr. And Mrs. Dionis on the southerly limit of the grapery, as well as previous owners of the property being Otto Mertens and Gineen Lock who indicated that the noise caused by previous bird bangers did not cause them problems

In evidence introduced by Patricia Bader, Exhibit 13, "Noise in the Workplace", the Canadian Hearing Society, it is acknowledged that the individual's susceptibility to noise varies very markedly between each individual and as a result, the fact that Mr. House finds the noise less offensive than Mrs. Bader may relate, not so much to the level of noise being produced, but his or her susceptibility.

The Board is satisfied, from the evidence of Mr. House, Otto Mertens and Gineen Lock that bird scaring devices in the past have been used and more particularly bird scaring devices of the impulse or bird banger variety. It has been established by Mr. Mertens and Mrs. Lock that in fact bird scarers were used on the property which is subject to the complaint.

In addition, these witnesses confirm that the difficulties with birds was not as pronounced when Concord or Niagara grapes were being grown as they were with French varietal grapes which have been planted by Mr. Mertens and Mr. Ralph Lock, prior owners of the property.

It appears that these graperies however, were not located in the same parcel of land and not in close proximity to the neighbours who are the complainants in this matter. The field in question in fact, was producing pears prior to the purchase of the property by Mr. and Mrs. Dionis.

Evidence was provided by Ian French of C. French Limited, suppliers of agricultural and aviation bird control equipment as to the nature of bird scaring devices. In the absence of any other witnesses who were experts in this matter and, based on the qualifications given by Mr. French, the Board was satisfied as to his expertise in this matter. The Board was satisfied as to the evidence given by Mr. French as to the nature of the operation of a Triple John, solid state acoustical bird scaring device and we accept his comments as to the nature of the time variation between sound created by the unit located on the property owned by Mr. and Mrs. Dionis. This evidence, we might add, was confirmed by Mr. House and in part, by Mr. Hubbard during the Hearing.

Mr. French provided evidence that, in the worse case, sound would impulse from the bird banger every 2.4 minutes but that, because of the random nature of the equipment, it is desirable in scaring birds that it varies from 2.4 minutes to 16 minutes. Stated another way, the shortest average interval would be 3.6 minutes which would provide 3 seconds of sound every 210 seconds. We accept the evidence of Mr. French that the nature of the equipment is such that frequency is not variable mechanically.

We are also satisfied that the evidence provided by Mr. French as to the nature of netting, together with that evidence provided by Walter Lenko, among other witnesses, establishes that netting is not the preferred method of protection for grapes as it tends to be costly, labour intensive and used only for specialty grapes such as grapes used in fermenting ice wine.

Mr. French indicated, in his evidence, that he felt less noise would occur for the complainants if the bird banger was located in the middle of the grapery and allowed to rotate randomly. However, all parties have accepted, as a last resort, the northwest corner of the grapery which is subject to this application with the Triple John being tethered and facing in a westerly direction.

We accept the evidence of Mr. French that the direction of the flame and the direction of the sound would be the same and as such, should the flame be directed at the houses of Mr. and Mrs. Bader and Mr. and Mrs. Hubbard that this would be a farm practice different than that which is complained of.

The owners of the agricultural operation, Mirella and Lorenzo Dionis called a number of witnesses who had, in the past, or were currently operating graperies. More particularly, Wayne Lockey, one of the directors of the Grape Growers' Marketing Board, gave evidence of his experience in growing French varietal grapes and the use of Double Johns in close proximity to residential dwellings (120 feet), without complaints.

Mr. Lockey gave evidence as to the nature of the changes which are occurring in Ontario's domestic wine industry with the removal of Lambrusca type grapes, on an increasing basis. He, and other witnesses, confirmed that with the removal of the Lambrusca/Concord/Niagara graperies-there has been more pressure placed on the remaining French varietal or Vinifera grapes which, in the first place are the grapes favoured by birds.

We are satisfied, on the evidence of Mr. Lockey and more particularly, on the evidence of William Lenko who farms 26 acres of grapes and who has grown French varieties since 1959, that the use of bird bangers, also known as impulse acoustical bird scaring devices, is a normal farm practice within the wine/grape growing industry in Ontario.

We are also satisfied, on the evidence of both Mr. Lenko and Mr. Lockey that the use of nets, although it occurs in a certain percentage of the graperies, is not the normal farm practice for preventing damage to the crop by birds.

Mr. French, on the second day of the Hearing, provided as Exhibits 9 and 10, certain portions of the Ministry of Environment's Model Noise By-law, also known as the Ontario Model Municipal Noise Control By-law.

In his exhibits, publication NPC-105, stationary (a) sources, Exhibit 9, Sound Level Limits for Pest Control Devices, a standard is set for impulsive sound at the point of reception of 70 dBAI. As evidence of confusion in relation to the Model By-law, the guidelines for noise control in rural areas, publication NPC-132, sets out a different sound level for impulsive sounds within 30 metres of a dwelling at 100 dBAI.

In contrast to this Mr. Keith Anderson of the Ministry of Environment, in his evidence, in presented Exhibit 3, guidelines for impulse bird bangers to 70 dBAI average for Residential areas.

In addition, the Board has received evidence from Ernest Allan, By-law Enforcement Officer for the Town of Lincoln as to the nature of the By-law number 81-63 being a By-law respecting noises together with its amendment, By-law number 85-47. I note that this By-law has not been passed in accordance with the procedure laid down in relation to the Ontario Model Municipal Noise Control By-law. Evidence was given that a complaint led to a prosecution by Her Majesty the Queen, on behalf of the Town of Lincoln, against Mr. and Mrs. Dionis, ending in a dismissal of the charge against Mr. and Mrs. Dionis.

The Board is further aware that, as a result of the introduction of Exhibit 11 by the complainants, being a memorandum of the Environmental Approvals and Land Use Planning Branch for the Ministry of Environment regarding certain bird banger mitigation measures on the Saunders Farm, Township of Beamsville, that a Consent Control order had been issued in relation to the operation of an impulse bird banger in this municipality, although an obviously different fact situation.

THE ISSUES

The issues before the Farm Practices Protection Board are as follows:

(a) Does the Board have jurisdiction in relation to the farm practice if there is a potential violation of

(a) any land use control law:

(b) The Environmental Protection Act?

(b) Does the use of bird bangers, as opposed to the use of netting to prevent the destruction of crops, more particularly grapes, represent a normal farm practice?

(c) Is the noise resulting from Mirella and Lorenzo Dionis's agricultural operation which uses a Triple John impulse acoustical bird scaring device a normal farm practice?

DECISION

(a) JURISDICTION

The Board is satisfied that, as a result of the decision of Her Worship, Justice of the Peace, D. Cowan, of January 9, 1992 in which the By-law number 81-63 of the Town of Lincoln was interpreted, as amended, that there was no violation of the Noise Control By-law of the Town of Lincoln and hence the Board has jurisdiction in relation to its inquiry as it has no evidence of violation of a Land Use Control By-law.

The Board has no evidence before it that there is a violation of the Environmental Protection Act. The evidence of Keith Anderson and the guidelines for the use of acoustical bird scaring devices in residential areas, in the Board's opinion, is not relevant to a property which is zoned agricultural which is the case before it.

Reference is had to portions of the Model Noise Control By-law, more particularly publication NPC-132, for a definition of rural area, we are satisfied that the zoning for the Town of Lincoln in designating this property as agricultural, and our own inspection of the area, established that the property is predominantly used in farming and is a rural area as in the guidelines contained in the Model Noise Control By-law.

In addition, the Board notes that there has been no measurement of impulsive sound on the particular site with which it is dealing. An alternate standard is set out in Section 7 ofthe Guidelines for Noise Control in Rural Areas, publication NPC-132, at 100 dBAI within thirty metres of a dwelling for impulsive sounds from a stationary source.

The Board accepts the evidence of Mr. Hubbard that the fixed and final location of the Triple John bird banger is 240 feet from his home which would be somewhat closer to the home of Mr. and Mrs. Bader being a distance of 187 feet at least.

As there is no evidence of that the agricultural operation exceeds the impulse sound standard from a stationary source for a rural area, the Board assumes jurisdiction in this matter.

(b) NORMAL FARM PRACTICE

Normal farm practice as set out in Section 1 of the Farm Practices Protection Act means "a practice that is conducted in a manner 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 Mirella and Lorenzo Dionis's agricultural operation, during the Hearing, extensive evidence was provided by witnesses for the agricultural operation and some of the witnesses called by the complainants as to the use of bird bangers in similar agricultural operations for the control of pests, more particularly birds, in graperies.

Specifically, the information given was that the preferred method of bird control in graperies was the use of bird bangers and other acoustical bird scaring devices and that the use of netting occurred in only 5% of graperies and then, based only on specific need as a result of an extended harvest period for specialty wines (ice wines).

The use of impulse accoustical bird scaring devices is a normal farm practice. Does the Board have jurisdiction in this matter pursuant to Section 4(1)(a) to inquire into and resolve a dispute regarding an agricultural operation, including a determination as to what constitutes a normal farm practice or does the practice involved violate a land use control law and/or the Environmental Protection Act?

While the Board generally accepts that the use of acoustical bird scaring devices is a normal farm practice; this does not mean that in all situations where it is in close proximity to residential dwellings that the use of the bird banger will be a normal farm practice. It is satisfied that serious efforts to mitigate noise have been made by Mirella and Lorenzo Dionis in this situation.

The Board finds that the operation of a Triple John impulse acoustical bird scaring device (bird banger), provided that the same is located at the northwest corner of the grapery as shown on a Exhibit 2, provided further that the Triple John cannon or megaphone is pointed westerly from the property and tied in a fixed position pointing in that direction is a normal farm practice.

The Board finds, as a matter of fact, that the flame directed from the megaphone extension represents the direction from which the sound is being projected.

Provided further that the acoustical device operates solely and not simultaneously with other acoustical devices and is operated between dawn and dusk, such operation shall deem to be a normal farm practice.

DATED this 2nd day of Septeber 1992.