Normal Farm Practices Protection Board

Commission de protection des pratiques agricoles normales

3rd Floor 1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3549 Fax: (519) 826-3259

3^e étage 1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3549 Téléc.: (519) 826-3259

Normal Farm Practices Protection Board

Kinrade v. Harrison 1997 ONNFPPB 12

DATE OF DECISION:

1997-08-12

1997-01

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

Merlyn Kinrade -- Applicants

and

Richard Harrison, Jim Harrison and Evelyn Harrison.-- Respondents

FARM PRACTICES PROTECTION BOARD

IN THE MATTER OF the Farm Practices Protection Act, R.S.O. 1990 c. F.6

AND IN THE MATTER OF application to the Board under Section 5 of the Farm Practices Protection Act by Merlyn Kinrade for consideration of an odour complaint against Richard Harrison, Jim Harrison and Evelyn Harrison.

Board File No.: 97-01.

AND BEFORE: G. EDWARD OLDFIELD, CHAIR

HARVEY BROWN, MEMBER REJEAN POMMAINVILLE, MEMBER

APPEARANCES: MERLYN KINRADE, personally

ARTHUR D. FLEMING, counsel for the Respondents

REASONS FOR DECISION

The Respondents operate a 270 acre dairy farm adjacent to Highway 54, near Caledonia. The Board was advised that the property which is the subject matter of this complaint is owned by Jim Harrison and Evelyn Harrison while Richard Harrison performs much of the work upon that particular property. Accordingly, Evelyn Harrison was added as a Respondent on consent.

The Harrison farm is located at the corner of Highway 54 and Harrison Road. The house on the Respondents' farm faces Highway 54 while the rear of the barns face Harrison Road. The facilities for the cattle include a pole barn in which mature cows are housed, an older style barn where the milking facility is located and a metal clad barn for heifers. There is an open yard between the pole barn and the milking barn to which the dairy cows have access. Manure from the cows is also piled in the yard until the Harrisons have an opportunity to spread it upon their fields.

Richard Harrison testified that there are 35-40 cows and bred heifers in the pole barn and open yard. The heifer barn usually contains about 30 heifers which can range in age from newly born animals to bred heifers.

The Harrison and Kinrade properties are separated by the Harrison Road which is a very narrow road. The distance between the Kinrade house and the.heifer barn is only 100 feet

and the stable cleaner for the heifer barn is located directly across the road from the Kinrade residence. The Kinrades are therefore subjected to any noise, odour or dust created by activitiesat the rear of the barns.

The Kinrade house, pole barn and main dairy barn are all older structures which have been in their present location for many years. The heifer barn was the last building to be erected. The construction of the heifer barn in 1958 predated any minimum distance guidelines between farm buildings and neighbouring properties.

WITNESSES

Merlyn Kinrade, Shirley Kinrade and Ann McAlpine who resides in a home beside Kinrade property testified on behalf of the Applicant. Their evidence was supported by pictures displaying some of the farming activitiesof the Harrisons.

Richard Harrison testified on behalf of the Respondents. He provided detailed evidence regarding his farming practices.

John Percy and Hugh Fraser were called as witnesses by the Board. Mr. Percy is the district manager of the Ministry of the Environment and Energy in Hamilton. This ministry was called on four occasions to respond to complaints by the Kinrades.

Mr. Fraser is an extension agricultural engineer employed by the Ontario Ministry of Agriculture, Food and Rural Affairs. He attended at the Harrison farm on February 13, 1997 at the request of the MOEE. In addition to testifying as to his observations, Mr. Fraser was qualified as an expert and provided opinion evidence with regard to a number of the issues in this case.

ISSUES

Several practices of the Harrisons which create noise, odour and dust were reviewed within the evidence of the various witnesses. The first decision pertaining to these practices is whether Mr. Kinrade is "aggrieved" as defined within the Farm Practices Protection Act by these various practices of the Harrison family. After reviewing the evidence, we are of the opinion that Mr. Kinrade is legitimately aggrieved by the noise, odour or dust created by the Harrison farm operation.

Having concluded that Mr. Kinrade is legitimately aggrieved, the Board must then decide whether the practices are normal farm practices within the. meaning of the Farm

Practices Protection Act. The Harrisons are entitled to continue any activities which conform to normal farm practices. In the event that these practices are not normal farm practices, then the Board has the authority to either order the Harrisons to desist from those practices or to modify the practices to meet appropriate standards.

The various issues presented to the Board are as follows:

1. STORAGE AND MILLING OF CORN

Each fall, the Harrisons erect temporary corn cribs made from snow fences or stationary wagons in their barn yard which faces Harrison Road. Richard Harrison testified that the family owns John Deere milling equipment which is used to grind cobs of corn during daylight hours on two occasions each week from harvest until the crop has been consumed by the cattle.

The evidence of the Applicant was to the effect that these temporary corn cribs are unsightly and that the milling process creates noise and dust. The Board accepts the evidence of noise and dust from this farm practice.

It is the opinion of the Board that the noise and dust created by the milling process are consistent with normal farm practice and Mr. Harrison's milling practices are therefore protected by the Farm Practices Protection legislation. This complaint is therefore dismissed.

2. ODOUR FROM MANURE STORAGE

Manure in the pole barn is permitted to accumulate by the Harrisons during the winter months. Richard Harrison testified that he cleans out the pole barn on one or two occasions each year. That manure is piled in the yard between the pole barn and the dairy barn. Manure from the dairy barn is also piled on the concrete pad in this yard.

Mr. and Mrs. Kinrade and Ann McAlpine testified that the manure in the yard is permitted to reach very significant depths and that the manure pile causes significant odour. Pictures presented by these witnesses clearly show that the manure pile reaches significant depths at times. One of the pictures showed a pile of manure which was taller than the holstein cow standing beside it.

Mr. Harrison testified that he endeavours to remove all of the manure from the yard on at least one occasion each year. However, the Harrison property is located upon Haldimand clay and Haldimand clay-loam soils which are not well drained.

Tile drainage has not been installed to any significant degree.

Mr. Harrison testified that during wet years, there is simply not enough time for him to complete all of his cropping activitiesand to completely remove all of the manure.

After listening to the evidence and inspecting the property from the roadside, the Board concludes that the manure pile is the source of most of the odour emanating from the Harrison farm. The odour is certainly significant on many days each year.

The Board further concludes that the methods through which the Harrisons handle this manure are normal farm practices which are protected by the Farm Practices Protection Act. While the manure in the yard undoubtedly causes significant inconvenience to the Applicant and the McAlpines who reside in the neighbouring residence, the Board finds no fault with the Harrisons' management of the manure as long as they continue to use reasonable efforts to remove all of the manure on at least one occasion per year. Accordingly, this complaint is dismissed.

3. MANURE FROM THE HEIFER BARN

The heifer barn is located only 100 feet from the Kinrade residence. The stable cleaner attached to the rear of the heifer barn points directly at the Applicant's livingroom window.

A concrete pad has been set into the ground under the end of the stable cleaner. The concrete pad is approximately 20 feet long and 8 feet wide with an average depth of approximately 12 inches. There is a hole at one end of the concrete pad into which water flows. Mr. Harrison removes water from that hole periodically with a sump pump.

Mr. Harrison testified that he attempts to clean the manure from the heifer barn on a weekly basis although there is a maximum manure storage in the barn of three weeks if adverse weather prevents manure removal. Mr. Harrison drives his manure spreader beneath the stable cleaner and the stable cleaner is then used to dump manure directly into the spreader. Mr. Harrison testified that his practice is to pick up any manure which spills over the side of the spreader with a shovel because if solid manure remains on the concrete pad, it will wash into the sump hole and will clog the sump pump.

There are two low areas to the south of the heifer barn in which water pools. Due to the poor drainage, water can sit

in these large puddles for a significant length of time and green algae grows in the water.

Mr. Fraser calculated that run-off from the roof of the heifer barn during a one inch rain storm would be approximately 2,400 gallons. The water from the south side of the heifer barn flows directly toward the low areas. Water from the north side of the heifer barn leaves the eaves trough at the edge of a lane way and then begins to flow toward the low areas. The concrete manure pad lies directly in the path of much of this water and the Board accepts the evidence of the Applicant to the effect that water flowing through and over the concrete pad flows into the two low areas which are in front of the Kinrade residence. It is inevitable that some manure contamination will flow with this water.

The Kinrades and Mrs. McAlpine believe that a very significant amount of the odour which they endure is caused by the stagnant water in the two low areas. They attribute this odour to manure picked up by the water as it flows through and around the concrete pad.

It is the opinion of the Board that the manure contaminated puddles in the low areas are likely to create only a minor part of the odour emanating from the Harrison farm. The Board concludes that most of the odour is caused from the manner in which manure is handled in the storage yard and while the manure is unloaded from the heifer barn stable cleaner into manure spreaders. Both of these practices are appropriate and normal farm practices of the Harrisons. Additionally, any odour from the two low areas is likely aggravated by the fact that a significant area drains to these low areas and materials other than manure may be rotting in the puddles.

However, the Board concludes that it is not a normal farm practice to permit rain water from the heifer barn roof or the lane way to run through the concrete pad and the Board further concludes that this practice probably creates some of the odour emanating from the Harrison farm.

Mr. Fraser visited the Harrison farm early in 1997 and suggested that a berm directing water away from the concrete pad would be an appropriate solution to this problem. Mr. Harrison stated during his evidence that he has created the berm and that he is content to maintain the berm. While Mr. Harrison evidently believes that the water running through the concrete pad is not a major source of odour, he obviously recognized the validity of Mr. Fraser's opinion.

The Board viewed the berm which has been constructed by Mr. Harrison. It will certainly reduce the amount of rain

water flowing through the concrete paid, but it must be extended in order to adequately prevent water from reaching the concrete pad. Accordingly, the Board orders the Harrisons to extend the berm from the northwest corner of the barn around the north and west sides of the berm to a point on the southwestern corner of the concrete pad. The Board is content to permit the Harrisons to choose appropriate materials for the construction of the berm, but the Harrisons are ordered to maintain a berm of sufficient height and density to prevent rain water from the lane way or roof of the heifer barn from reaching the concrete pad. The berm shall be maintained by the Harrisons as long as they continue to use the concrete pad as part of their manure removal process.

In the alternative, the Harrisons may choose to drain this water past the concrete pad with the use of eavestrough pipes or any other effective means of transporting water. The only stipulation placed upon the Harrisons is that they must prevent water from the lane or heifer barn roof from flowing into the concrete pad.

The Board also heard evidence from Mr. Harrison to the effect that he uses a sump pump to remove water from the drainage hole at the end of the concrete pad and from a 45 gallon barrel inside the barn which is used to catch any rain water which may leak into the building. Mr. Harrison testified that he currently pumps this water to the east side of the horse corral which is adjacent to the heifer barn. This practice is satisfactory and the Harrisons are ordered to continue to use this practice for the disposal of water removed with sump pumps.

4. FLIES

The Board heard evidence that flies from the Harrison farm are a significant nuisance to the Kinrades and McAlpines. The Board accepts this evidence to the effect that the flies are a significant nuisance during hot weather.

The Farm Practices Protection Board has no jurisdiction to grant orders pertaining to flies under the current legislation. However, as long as the Harrisons honour the order made by the Board with regard to rain water flowing through the concrete pad (which Richard Harrison testified that he would voluntarily undertake) and honour our order regarding equipment parking, the manure handling practices of the Harrisons will comply with normal farm practice and the flies will be the result of an acceptable and normal farm practice.

Accordingly, the Board dismissesthe complaint pertaining to flies.

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PARKING OF EQUIPMENT

The Harrisons have limited space at the rear of their barns. They have developed the practice of parking farm equipment beside the road. Mr. Harrison testified that he simply does not have room to turn equipment around in the yard if more than one wagon or other implement is towed into the yard by a tractor.

There was a conflict between the evidence of Mr. Kinrade and Mr. Harrison as to whether the Harrison equipment has ever been used to block access by the Kinrades to their lane way. While this issue is obviously of significant importance to the parties, it is beyond the jurisdiction of the Board to make rulings which pertain to the parking of machinery on municipal property in the absence of odour, noise or dust. The municipality would presumably have authority to deal with this issue.

However, the Board does have concern that manure spreaders parked on the road allowance across from the Kinrade home may contribute to the odour experienced by the Kinrades. The Board further concludes that it is not a normal farm practice to park a manure spreader on a road allowance or in a yard which is only 100 feet from a neighbouring home. Accordingly, the Board orders the Harrisons to park their manure spreaders in the machinery yard adjacent to the shed which forms part of the pole barn. The manure spreaders shall not be parked in the lane way, beside the heifer barn or on the road allowance unless the Harrisons or their employees are actually in the process of removing manure from their barns.

6. NOISE FROM SPRAYER

On one occasion in the past, a custom sprayer parked his equipment close the Kinrade home and operated that equipment late at night. Mr. Harrison testified that he had not expected the equipment to be parked at that location by the custom operator. The Board accepts the evidence of Mr. Harrison in this regard and concludes that Mr. Harrison does not intend to engage in this practice in the future. Accordingly, the Board does not have to rule as to whether this practice is a normal farm practice and this complaint is dismissed.

SUMMARY

The Board realizes that the Kinrades do experience substantial inconvenience from the odours associated with the Harrison farm. However, a very significant portion of the odour does result from the use of normal farm practices and the Harrisons are entitled to continue to utilize those

practices. The practices of the Harrisons which do not meet the standard of normal farm practices can be brought into compliance through minor changes to which Mr. Harrison voiced no objection during his evidence.

Accordingly, the Harrisons are ordered to modify their practices pertaining to manure spreaders and the run-off from the heifer barn as outlined in detail above. The balance of the application is dismissed.

Kinrade v. Harrison, 1997 ONNFPPB 12

Case Summary