ONTARIO
NORMAL FARM PRACTICES PROTECTION BOARD
Lavoie v Deschatelets
1992 ONNFPPB 48
1992-05-07
91-02
STATUTE:
Farm Practices Protection Act 1990
HEARING:
BETWEEN:
Horace Lavoie – Applicants
And
Michel Deschatelets – Respondents
DECISION OF THE BOARD
The matter was heard in Sturgeon Falls, Ontario, on April 10, 1992. The hearing was in response to a request by Mr. Horace Lavoie for the Board to investigate the farming practices being carried on by Mr. Michel Deschatelets.
Findings of Fact
Mr. Lavoie, the applicant, owns and resides in a house with a swimming pool and garden at 736 Lalonde Road on a residentially zoned lot approximately 109' x 300', on the north shore of the Sturgeon River. Mr. & Mrs. Lavoie enjoy entertaining around the swimming pool and working in their garden.
Mr. Lavoie has been working as a janitor at a local school. He states that he works 4 days Mrs. Lavoie is a part time teacher and is home during the summer months.
Mr. Michel Deschatelets owns and operates a pick-your-own agricultural business, Leisure Farms, at 744 Quesnel Road, Sturgeon Falls, Ontario, opposite to Mr. Lavoie's property on the south shore of the Sturgeon River. This property is zoned for agricultural activities. The farm was originally a dairy enterprise but was considered too small to make the changes required during the 60' s. After working "out" for 5 years Mr. Deschatelets took over the farm from his father and established a pick-your-own strawberry business. The business was, at first, run in combination with his off-farm job, with the expectation that it would grow into a full time occupation.
The farming operation has expanded over the past 9 years from 5 acres to the present 30 acres of strawberries, 5 acres of raspberries and 7 acres of sweet corn and other vegetables.
Mr. Deschatelets' Leisure Farm is a local employer, employing up to 30 pickers and a full time staff of 5.
Mr. Deschatelets stated that the strawberries require irrigation during their development to ensure size, yield and frost protection. However, he pointed out that this has to be well monitored to avoid soft fruit, fruit rot and leeching of nutrients and herbicides. To avoid wilt he endeavours to keep available moisture between 50$ and 100$. Moisture testers and rain gauges are used to facilitate good management decisions about the necessity for irrigation.
A number of changes have occurred over the past 7 years to the irrigation system being used.
In 1984, Mr. Deschatelets built a platform on the river, bought a 30 hp Wisconsin gas engine and began to irrigate the 5 acres of strawberries being grown at that time. Mr. Lavoie complained of the noise of the pump. Mr. Deschatelets added a muffler to the motor.
In 1988, the Wisconsin gas engine burned out and was replaced by a GMC 80 hp diesel motor.
In 1990, Mr. Lavoie contacted the Ontario Ministry of Agriculture and Food (OMAF) and the Ministry of the Environment (MOE). At the suggestion of MOE, the motor was moved from the river bank and placed on a spot 10' higher on the other side of the road behind two rows of trees, 30' west of the Deschatelets kitchen window.
The GMC motor burned out and was replaced on May 16, 1991 by a Fiat 6 cylinder, 100 hp diesel motor. Mr. Deschatelets explained that the pump performance, while sufficient for his present needs, is reduced by 32$ because of the difference in height from the dock to its present position (Exhibit #4).
On June 6, 1991 Peter Lee, MOE, received a complaint from Mr. Lavoie concerning noise from the water pump. Mr. Lee investigated the complaint and contacted the local OMAF office again as well as contacting Mr. J.P. Charles, Reeve of the Corporation of the Township of Springer (page 4, Exhibit #11).
An MOE memorandum of June 19, 1991 written by Jim Mills, Environmental officer, reveals findings that the operation of Leisure Farms was in keeping with proper agricultural practice and that the land is zoned for agriculture (Page 4, Exhibit #11).
Mr. Lavoie retained Mr. Paul Trenker who wrote Mr. Deschatelets outlining his client's concerns regarding noise and offering suggestions regarding placement of the pump and the construction of a baffling wall (Exhibit #2, dated August 23, 1991).
Mr. Deschatelets has refused to build a baffling wall stating as his reasons: aesthetics for his business, fear of lack of air circulation resulting in injury to the pump, a safety hazard caused by blocking pedestrian visibility of road traffic and his belief that it would not solve the problem.
Letters of support for Mr. Deschatelets were submitted by Alex Veens, neighbour to the East (Exhibit #6), Rheal and Suzanne Delorme, present neighbours to the west, (Exhibit #7), and the Corporation of the Township of Springer, (Exhibit #8), and from Therese Delorme, past neighbour to the West (Exhibit #10).
The Board found the testimony of the complainant's witnesses inconclusive as to the extent of the use of the pump and accepts the testimony of Mr. Deschatelets as to the time, 173 hours, as indicated by the two hour meters on the pumps used in 1991.
The description of the noise level varied widely. It was described by the complainant's witnesses as follows: Mr. Lavoie, a large bulldozer pushing dirt with a wide open throttle; Mr. Fournier, a lawn mower working all the time; Ms. Beaudry, a busy freeway; Mrs. Lavoie, of variable intensity, like a vacuum cleaner in the house while you are talking; Mr. Normand Lavoie, a car with no ;muffler. The defendant's witnesses described less intensity:
Mr. Delorme, (neighbour to the west) stated that when he stood beside the pump it was like a tractor running, but one could talk comfortably in the Deschatelets yard and he could not hear it on his property. Letters of support, denying any excess noise were entered as evidence by other close neighbours.
The Board accepts Mr. Lavoie's description of the distance between the site of the motor and his property as approximately 290' from the north shore of the Sturgeon Riven, 340' from the garden, 390' from the swimming pool and 490' from his house. (Exhibit #1).
The Issues
Section 5 of the Farm Practices Protection Act, 1988 mandates the Farm Practices Protection Board, on determining normal farming practice where a person is aggrieved by any odour, noise or dust resulting from an agricultural operation to dismiss the complaint if the Board is of the opinion that the odour, noise or dust results from a normal farming practice. If the Board does not find -that the odour, noise or dust results from a normal farm practice, it may order the owner or operator of the agricultural operation to cease the practice or to modify it in the manner set out in the order to be consistent with normal farming practice.
In determining whether the farming operation in question followed normal farming practice, the Board considered these issues:
Is the practice of irrigation of strawberries with a diesel motor pumping from a water source a normal farming practice?
Is irrigation on Leisure Farms used over extended, unnecessary lengths of time resulting in unnecessary noise?
Is the noise level resulting from the Deschatelets operation which uses a Fiat diesel 100 hp the result of a normal farming practice?
Decision
At the outset we would say that the Board considers irrigation of strawberries with a diesel motor from a water source a normal farming practice.
The Board realizes that Mr. Lavoie finds the noise from the irrigation pump irritating. It further accepts that Mr. Deschatelets is a good manager of his agricultural operation and that his crop of strawberries requires irrigation both to produce well and to guard against freezing. The Board noted that a number of changes were made to the equipment over the period of time. These changes were made, at Mr. Deschatelets' expense, with both efficiency and Mr. Lavoie's complaints in mind. Mr. Deschatelets moved the site of the pump to comply with the suggestions of MOE and his operation has been found to be operated within normal farming practices by both the Ontario Ministry of Agriculture and Food and the Corporation of the Township of Springer. The noise appears to be of a level consistent with a well-managed operation and is the result of normal farming practice.