O’Neil v. Slattery, 1995 ONNFPPB 49

ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

O’Neil v Slattery

1995 ONNFPPB 49

DATE OF DECISION:

1995-03-03

94-01

STATUTE:

Farm Practices Protection Act 1990

HEARING:

BETWEEN:

Walter O’Neil -- Applicants

and

Ben Slattery -- Respondents

REASONS FOR DECISION

This matter was heard on August 25th, 1994 at the Township of Sandwich South Municipal Building, 3455 North Talbot Road, Oldcastle, Ontario.

The hearing was held for the consideration of an application brought by Walter O'Neil, Gaynia Revenburg and Harold Robinson for consideration of Mr. Ben Slattery's practice of manure disposal on property owned by he and Jeraldine Greta Slattery at Part of Lot 2, Concession 7, Township of Sandwich South.

Such application was brought under Section 5 of the Farm Practices Protection Act and was hear before Robert G. Waters, Chair, Yolande Laviolette, Member and William Anderson, Member.

FINDINGS OF FACT

The applicant, Harold Robinson resides at Lot 2, Concession 8, Township of Sandwich South opposite the agricultural operation of Mr. Slattery; while the applicant, Walter O'Neil resides in Lot 3, Concession 7, Township of Sandwich South on a portion of the farm lot immediately to the north of the lands owned by the agricultural operator. The applicant, Gaynia Revenburg, resides with her husband, Gus Revenburg at Lot 1, Concession 7, a parcel of land to the south immediately abutting the lands occupied by Mr. Slattery.

In addition, evidence was heard from Norman Libbey who advised the hearing that he had also made application with regard to Mr. Slattery's practice of disposal of manure.

Given the number of applicants in connection with the agricultural practice being complained of, the Board did not join Mr. Libbey as an applicant in the hearing but it received his evidence as a witness on behalf of the other applicants.

The area occupied by the applicants and the agricultural operator is described as Agricultural in the Zoning By-law of the Corporation of the Township of Sandwich South, 85-18 as consolidated to January, 1994, according to Exhibit No. 8 supplied by the Clerk of the Township of Sandwich South. The zoning regulations allow for "agricultural uses"; "agricultural use, livestock intensive", "riding stables, including a horse training track", as well as accessory buildings, structures and uses.

It was accepted by all parties, both the applicants, witnesses and confirmed by the agricultural operator, that the use of the premises, although it might be described as a "hobby farm", was a use in keeping with the terms of the agricultural provisions of the Zoning By-law with regard to the nature of the livestock operation.

The agricultural operator, Mr. Ben Slattery, provided evidence to the Board with regard to the type of operation which he carries on with his wife, Jeraldine Slattery, at the property. The property was purchased in 1979 at which time the area purchased was 50 acres. Mr. and Mrs. Slattery built a house in 1980 and at a later time purchased an additional six acres to the rear of the lands which they had acquired in Lot 2, concession 7. The concession road dividing concession 8 and 7 is described as the 8th Concession Road. This road runs north and south.

The farm which is owned by Mr. and Mrs. Slattery has, at the rear or the westerly portion, a 16 acre woodlot. The largest open area on the farm is a 20 acre field which has been cleared and is presently slated for conversion into a pasture. There are 16 acres of park like land and pond adjacent to the 20 acre field on the southerly side of the property to the front of the barns, towards the east to the Concession Road. There are approximately 4 acres occupied by the barn and the house, although it was unclear as to whether this was included in the 16 acre parcel. The 6 acre parcel which was purchased at the far westerly limit of the farm at a later date has been left cleared. As a result there are 26 acres available if manure spreading operations were to be undertaken.

The evidence which the Board has from the agricultural operator is that there is 1 full size horse (in the past there has been a second one) and approximately 10 miniature horses, as well as a goat. The agricultural operator indicated that, as a result of the nature of his farming operation and the volunteer work which he undertakes with handicapped individuals, it is his wish to keep the barns on the pr:-.mises "antiseptically" clean.

In the past year there were 22 visits from organizations such as The Companion Animal Visitation Program and the United Way Visitation Program. In the year 1994 to the date of the hearing there had been 16 visits. The visits are generally centered in the summer. In anticipation of the visits, including the fact that a number of the individuals are handicapped, the farm has been credited to be handicapped accessible.

Mr. Slattery is now retired from work off the farm. This operation represents his full-time occupation at present. The agricultural operator advises that he uses approximately two bales of straw per day in his stables and at the same time burns two bales of soiled straw per day. After this burning operation, at a burn area to the rear of the barn located on the premises, all residue is picked up and dumped at the rear of the farm.

The agricultural operator indicates that he has a number of smaller tractors, including a Massey Ferguson, two John Deere, a small trailer with a one yard volume capacity. Other than Mr. Slattery there was no evidence given as to the burning of manure within the Township of Sandwich South with the exception of one Elgin McFadden who had purchased a property previously owned by the applicant Gaynia Revenberg and her husband, Gus. This burning was confirmed by the Chief Building Official,David Hobbs, as having occurred. Although other witnesses in the vicinity of Mr. McFadden, more particularly Walter O'Neil, who is located between Mr. Slattery and Mr. McFadden, could not confirm the nature of the burning operation, the Board is satisfied that there are two parties within the Township of Sandwich South burning manure.

As reasons for such method of disposal Mr. Slattery indicated that he was concerned regarding the filth associated with a manure pile and the possibility of rabid skunks. He also provided evidence in the form of an article dated August 20th, 1994 from the Windsor Star, Section A5 indicating the possible problems with manure piles related to rainwater with the water runoff entering into the local drainage catchment area.

The article, however, dealt with the control of manure pile runoff. It described rainwater draining directly through a marsh and the effectiveness of the marsh as a natural agricultural waste treatment system (Exhibit #7).

The complainants are all adjacent or abutting property owners. It would appear that the complaints emanated in their earliest form from Walter O'Neil who has farmed at part of Lot 3, Concession 7, Township of Sandwich South since 1938. Mr. O'Neil provided the first formal complaint in this matter by initiating a call to the Ministry of Environment and Energy in the summer of 1992. Mr. O'Neil stated that the prevailing winds in summer at times of high humidity are from the south or the southwesterly direction. Although he is a considerable distance from the Slattery property boundary (1,200 feet minimum), as a result of the prevailing winds he advised the Board that he was the first to notice the problem.

Although the odour, as far as Mr. O'Neil was concerned, never hurt his health, it made it hard for him to breathe. In the summer, as Mr. O'Neil does not have air conditioning, he could not prevent the odour from permeating his home. Mr. O'Neil, a longtime farmer, indicated that the smell of burning manure was far more oppressive than that which would occur with its spreading.

Mr. O'Neil advised that in his period of farming in Sandwich South Township he had never heard of manure being burned and in his own words he commented "it is a shame to burn good manure".

It was acknowledged by Mr. O'Neil that he did not approach Mr. Slattery at the time as, in his opinion, Mr. Slattery did not have too good a name as a neighbour. Mr. Slattery, in his cross-examination of Mr. O'Neil, tried to elicit evidence with regard to the burning of old farm buildings such as a chicken coop and the burning the stumps of trees which were cut on the property. Certain of these operations were acknowledged by Mr. O'Neil as was burning operations of other abutting land-owners. However, none of the abutting landowners, with the exception of Mr. McFadden mentioned earlier, burn manure.

Both Harold Robinson and Norman Libbey who own houses or farms opposite the Slattery property in Concession 8 advised that the problem had become so bad that in September, 1993 they were involved with a petition to the Council of the 'township of Sandwich South. This petition was entered as Exhibit No. 3.

Mr. Libbey advised that the problem, in his estimation, had gone back three or four years. The problem had escalated to the extent that he and Harold Robinson had talked to Mr. Slattery. At the time of this discussion, suggestions were made by Mr. Libbey that a manure pile be placed at the back of Mr. Slattery's lands. They proposed that the manure be spread on his own lands or that he allow local farmers to spread it on their lands. Mr. Slattery, according to the evidence of Mr. Libbey, rejected this suggestion. Mr. Libbey, who no longer farms, is sharecropping at the present time. He has not had livestock in the last 25 years. When he was farming actively with a mixed farm occupation, all manure was put back on the land. He could not recall local practices of burning manure.

Both Mr. Robinson and Mr. Libbey described the odour problem as it relates to the special conditions in Essex County. They confirmed that the more serious occurrences occur in the summer when, depending on humidity and the stillness of the air, the smoke from the burning and the odour attendant upon it, would stay in the air for three to five hours.

The applicant, Gaynia Revenburg, resides immediately to the south and as a result of prevailing winds receives less of the odour when the winds are moving the air about. Mrs. Revenburg advised that the problems starting getting more severe in September of 1993. She advised the Board that she does not have a problem with normal spreading practice for manure and expects such smells attendant with living in a rural area. She confirmed, as did Mr. O'Neil, that she made no attempt to contact Mr. Slattery initially. It appears that none of the applicants contacted Mr. Slattery directly prior to commencing a petition or contacting the Ministry of Environment and Energy.

Mrs. Revenburg confirmed a local practice of burning brush and that a.farm building on her farm had been burned approximately three years ago.

It is the evidence which has been received by the Board that none of the neighbours approached Mr. Slattery as a result of what they perceived as his disagreeable nature. Indeed there has been considerable evidence given at this hearing relating to matters which are not within the jurisdiction of the Board nor upon which it finds it necessary to comment, such as opposition regarding severances, charges of assault and allegations of threatening. It is sufficient to note that both the applicants and the agricultural operator acknowledge that manure burning was occurring; the applicants finding it an extreme nuisance, while the agricultural operator indicates it not to be a problem for himself personally.

The Board also heard evidence from the Chief Building official who is an abutting landowner to the west. Mr. Hobbs confirmed 'that, in fact, one of the other property owners in the Township burned manure. He indicated as well, the direction of the prevailing winds were such that the smell very seldom came towards his property.

Mr. Hobbs also stated that after review of the Zoning By-law for the Township that the Township had decided not to pursue prosecution under Section 5.18 which was a section relating to noxious uses. This Section prohibits any use which by its nature or materials used therein is declared under the Public Health Act or the Environmental Protection Act to be a noxious or offensive trade, business, or manufacture.

The Board had the opportunity to hear from Chris Gibson of the Ministry of Environment and Energy, a Provincial officer with the Abatement Section. Mr. Gibson confirmed that the first complaint was received from Walter O'Neil on July 31, 1992. He confirmed that Mr. O'Neil complained with regard to the property to the south of him which he established to be that of Mr. Slattery. On August 5th, 1992 he met with Mr. Slattery, explained Mr. O'Neil's complaints and indicated that Mr. Slattery, at the time, had stated that the burning of manure was a common practice. He showed the Abatement Officer the burn area and stated that he would attempt to try complete combustion, rather than piling the manure to allow it to slowly smoke away. This meant feeding it at a bushel at a time, taking a three to five hour period to burn.

The matter came again to the attention of Mr. Gibson in 1993 when he was approached, as a result of the petition which has been described previously, by the Township of Sandwich South. The Township raised concerns regarding the Environmental Protection Act, Section 14(2).

By a letter dated September 28th, 1993, after an attempt to visit the site had occurred on September 27th, 1993, Mr. Gibson wrote to the agricultural operator and advised him that he was of the opinion that the agricultural operator was operating an illegal waste disposal site, contrary to Section 27 of the Environmental Protection Act. Mr. Gibson advised that no prosecution was undertaken under Section 27 because of the exemption contained in the Environmental Protection Act in Sections 9 and 10. Attempts were made at site visits but no entry was gained. The question, that both Mr. Hobbs and Mr. Gibson were concerned about, was whether the burning of manure was a normal farm practice which would provide an exemption to allowing a discharge of a contaminate into the natural environment pursuant to Section 14.2 of the Environmental Protection Act.

The Board also heard evidence of Helmut Spieser, an Agricultural Engineer with the Ontario Ministry of Agriculture, Food & Rural Affairs at Ridgetown College. Mr. Spieser provided evidence as to the amount of manure which would be produced by the number of livestock located at the Slattery property. That evidence indicated that 3.5 to 4 acres was the maximum needed to accommodate all of the manure created from these animals on a once a year application.

Mr. Spieser indicated that in connection with the Agricultural Code of Practice, depending on the suitability of soils, the storage can be directly on land or there can be the use of a concrete pad. He indicated that the information that he had as an Agricultural Engineer working in the Essex-Kent area, that rats and skunks were not a problem in this particular area. He further stated that manure such as this could be available as compost for the mushroom industry. He indicated that the 20 acre field which Mr. Slattery had hoped to grow wild into a natural pasture would be useable for four years worth of application of manure.

Finally, the Board heard from Barry Martin, the Fire Prevention Officer for the Sandwich South Fire Department. This officer indicated that the odour complaint for burning was exempt pursuant to Section 1.171 of the Ontario Fire Code.

THE ISSUES

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

1. Jurisdiction:

Does the Board have jurisdiction in relation to the farm practice if there is a potential violation of The Environmental Protection Act?

2. Normal Farm Practice:

Does the burning of manure represent a normal farm practice?

DECISION

A. JURISDICTION

The Board is satisfied, as a result of the evidence provided by Rick Gibson of the Ministry of Environment and Energy, that regardless of whether there is a potential complaint pursuant to Section 14(1) of the Environmental Protection Act, the exemption provided by Section 14(2) for "adverse effects" which are an "impairment of the quality of the natural environment for any use that could be made of it", when animal wastes are disposed of in accordance with normal farming practices. There is required a definition of what normal farm practice is.

The Board notes that there is no definition of normal farm practice within the Environmental Protection Act. However, there is such a definition within the Farm Practices Protection Act.

Pursuant to Section 4(1) the Board has the power to "inquire into and resolve a dispute respecting an agricultural operation, including the determination as to what constitutes a normal farm practice." As a result the Board takes the position that it is empowered in this situation, nothwithstanding that there may be a potential violation of theEnvironmental Protection Act to establish what is a "normal farm practice" in the disposal of animal waste.

The fact that that establishment of normal farm practice may lead to a potential prosecution in the future for the agricultural operation does not limit the Board's jurisdiction to define normal farm practice or pursuant to Section 4(1)(b) make such orders as are necessary to ensure that there is compliance with its decision.

Based on the evidence of the hearing and for the above reasons, the Board assumes jurisdiction in this matter.

B. NORMAL FARM PRACTICE

A 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 by and followed by similar agricultural operators in similar circumstances and includes the use of innovative technology with advanced management practices".

In making a finding whether there is a normal farm practice the Farm Practice Protection Board must have regard to what are proper and accepted customs as established and followed by similar agricultural operations. The evidence of both Walter O'Neil and Norm Libbey who have farmed in the area in the past and that of Helmut Spieser, Agricultural Engineer, provide indication of proper and accepted customs of similar farm operations.

It was the evidence of these persons which the Board accepts to confirm that burning of manure is not a normal farm practice. The agricultural operator, in suggesting that burning of brush and various old farm buildings establishes a right to burn manure, is widening what may be an accepted custom in the Township of Sandwich South related to disposal of other farm waste. Yet there should be no comparison between animal waste and other types of waste in establishing what is normal farm practice for disposal.

Based on the evidence before the Board, it finds that the burning of manure is not a normal farm practice.

1. The Board therefore orders that Ben Slattery and Jeraldine Slattery cease the burning of manure.

2. The Board notes that a number of remedies for the situation can be undertaken by Mr. Slattery in order to continue with the charitable works which he has undertaken with the Companion Animal Visitation Programs. Given the evidence of Helmut Spieser it is the recommendation of the Board that the manure be placed at the northwest corner of the 20 acre field which is being re-seeded to a natural pasture. This should be situated at a point at least 75 feet from the northerly boundary between the farm owned by Mr. and Mrs. Slattery and the farm immediately to the north.

3. The Board recommends, but does not order, a concrete base and/or clay berm be installed to prevent run off. It is acknowledged, provided that there is proper siting of the manure pile to prevent water runoff or surface water flows into the Webster Drain, the nature of the soils in the location are adequate to prevent quick entry into the local watercourse without such concrete base or clay bean.

4. The Board further recommends that the manure be spread in spring and fall at a minimum. Considering the nature of the natural pasture, the Board also would suggest that if the agricultural operator wishes to spread more frequently on a natural pasture he should be able to do so without harming the natural environment.

5. Finally, if the operator does not wish to dispose of manure in accordance with the practice which the Board has suggested within the site, the operator has always the option of shipping the manure off site for disposal with composters or other farmers.

The Board confirms that its decision that the form of disposal of manure by Mr. Slattery as not being a normal farm practice extends to describing it as not a normal farm practice pursuant to Section 14(2) of the Environmental Protection Act, as well as within the meaning of the Farm Practices Protection Act. Therefore pursuant to Section 4(1)(b) of the Farm Practices Protection Act the Board orders that the above practice cease

DATED this 3rd day of February 1995.

"Robert G. Waters"

"Yolande Laviolette"

"William Anderson"

I certify that this decision is a true copy of the original decision. Dated

at the Town of Newmarket in the Region of York this 3rd day of February,

Michael Toombs, P.Eng.

Acting Secretary

Farm Practices Protection Board