ONTARIO NORMAL FARM PRACTICES PROTECTION BOARD
Kelly v Alderman
1997 ONNFPPB 44
97-02
STATUTE: Farm Practices Protection Act 1990
HEARING:
BETWEEN:
Bud Kelly – Applicant
And
David Alderman – Respondent
REASONS FOR DECISION
The applicants are individuals who reside near the Village of Inwood in Lambton County. Bud Kelly, who was the principal participant on behalf of the applicants operates a cash crop farm. His residence and shop are located at Part Lot 2, Concession 4, Brooke Township. Mr. Kelly also owns property located at Lot 3, Concession 5, Brooke Township.
The Respondent David Alderman has carried on a cash crop business for many years. Mr. Alderman resides at a farm located at Part Lot 2 and Lot 3, Concession 4, Brooke Township which is immediately to the east of Mr. Kelly's home property. The building which is the subject matter of this application is a swine nursery barn located on land owned by Mr. Alderman at Lot 2, Concession 5, Brooke Township. This barn is across the road and directly to the north of Mr. Kelly's home. The property upon which the barn is located is also abutted to the east by Mr. Kelly's property at Lot 3, Concession 5.
The applicant Morris Dudley is also a farmer. He has a cash crop and beef farm. Mr. Dudley's home is located approximately one-half mile to the south east of the Alderman swine barn.
The applicant Dennis Phillips resides in a home that is approximately one-third of a mile south east of the Alderman barn. Mr. Phillips did not appear at the hearing although properly served with notice and the hearing proceeded in his absence.
The applicant Sam Loosemore resides in a home located in the country approximately one-half mile directly east of the Alderman barn.
The applicants Jim Scott and Dan Rowland reside in the Village of Inwood. Mr. Rowland did not appear personally but did appoint Mr. Scott as an agent and Mr. Scott made representations on behalf of both of these applicants.
ODOUR FROM BARN AND MANURE FACILITY
Mr. Alderman testified that he wanted to expand his farm operation in 1995. After reviewing several options, Mr. Alderman decided to diversify his farm by adding a swine nursery barn to his existing cash crop farm. Prior to commencing construction in the fall of 1995, Mr. Alderman consulted Harvey Huffman, an agricultural engineer employed by the Ontario Ministry of Agriculture, Food and Rural Affairs ("OMAFRA"). Mr. Huffman assisted with the ;ocation of an appropriate site for the barn. The barn is slightly more than 1,000 feet away from the nearest buildings which were in existence at the time of construction and the location of the barn did comply with the minimum distance separation guidelines of OMAFRA at the time of construction. The home of Wes Kelly was subsequently constructed closer to the barn than the minimum distance guideline would deem appropriate.
The barn consists of four sealed rooms for nursery pigs which enter the farm at the age of two weeks and leave at the age of ten weeks. Manure from the pigs falls into a system of shallow gutters located beneath each room. After the pigs leave a room, the manure from that room is pumped to a large uncovered outdoor holding tank. The tank has storage for all of the manure which the operation would generate during a twelve month period. The evidence heard by the Board was to the effect that the manure storage system is in accordance with all OMAFRA recommendations.
Fred Groenestege is one of the owners of Groenestege Construction Ltd. which erected Mr. Alderman's barn. Mr. Groenestege testified on behalf of the respondent about the construction of the barn. Groenestege Construction Ltd. has constructed a significant number of swine barns in Ontario in recent years and he stated that the Alderman barn is constructed in accordance with all current standards. Mr. Alderman did accept advice received from Mr. Groenestege regarding construction and that advice included the construction of manure storage facilities -which exceed the current OMAFRA guidelines. Mr. Huffman also testified with regard to the construction of the barn which he has viewed on three occasions. Mr. Huffman described the barn as "typical" of modern construction.
There is one unusual flaw with the barn. The heating and ventilation system has not performed in accordance with its specifications. Mr. Groenestege testified that he has not been involved with any other barns where the systems have not functioned properly. Mr. Groenestege believes that the problem may be related to the fact that the barn is situated in an area where the wind is apparently extremely variable and the system does not react quickly enough to shifting winds which can quickly reduce the temperature inside the barn below a level which young pigs can easily tolerate.
In spite of the efforts taken by Mr. Alderman to construct a barn which meets all reasonable specifications, the barn has been the subject of complaints from the time it was constructed. Bud Kelly has made numerous complaints including approximately 60 calls to the Ministry of Environment and Energy. Mr. Kelly testified that the wind regularly blows a very intense plume of odour toward his house. Mr. Kelly agreed with other witnesses who state that the wind is extremely variable in that area and he noted that the problem quickly shifts if the direction of the wind changes. Mr. Kelly described the odour in strong language and confirmed that the odour interferes substantially with his enjoyment of his home and property.
Mr. Morris, Mr. Loosemore and Mr. Scott also testified about the Alderman barn. Their evidence was consistent in showing that an odour does emanate from the barn on a regular basis and that the odour is carried by the wind at a strong concentration on many occasions.
Mr. Huffman and Dennis Walker of MOEE testified that the odour which they noticed during attendances at the Alderman farm was "typical" of swine operations. They did not notice odour escaping from the immediate vicinity of the barn, although both men readily agreed during cross-examination that the prevailing weather conditions in the local area vary sufficiently to prevent them from making definitive statements to the effect that the barn is not a cause of unpleasant odours to neighbours from time to time.
MANURE SPREADING PRACTICES
Mr. Alderman began to fill the barn with pigs during the month of December, 1995. Mr. Alderman had originally hoped to spread manure upon wheat stubble, but unfavorable weather conditions prevented Mr. Alderman from growing wheat in 1996 or 1997. An extremely wet autumn in 1996 also prevented Mr. Alderman from spreading manure after he harvested his other cash crops.
By December, 1996, Mr. Alderman faced a crisis. The tank was at its capacity of one year of storage. Mr. Alderman concluded that he had no alternative but to spread manure in circumstances which he readily acknowledged to be less than favorable.
Mr. Alderman spread liquid manure on three occasions on December, 1996, January, 1997 and February, 1997. Mr. Alderman testified that his manure coverage was 3,000 gallons per acre and as a result of the manner in which the Alderman barn is equipped, the manure was diluted by a high percentage of water which flowed into the system.
The Lot 2, Concession 5 property and the Lot 2 and 3, Concession 4 properties were covered with manure. While spreading manure in January, Mr. Alderman spread to within 15 feet of the line between his farm and Mr. Kelly's home farm. Mr. Kelly's shop is located immediately adjacent to the lot line while his house is relatively close to the lot line.
The applicants raised two issues with regard to the spreading practices of Mr. Alderman as follows:
Whether spreading manure on frozen ground was causing water pollution which was not in accordance with a normal farm practice;
Whether spreading manure close to the Kelly shop and residence was creating odour in contravention of normal farm practices.
POLLUTION
With regard to the pollution issue, Mr. Kelly produced pictures which showed that significant rainfall had occurred during and after the spreading of manure in February. The pictures showed water flowing off the fields and into the ditches. It is logical to infer that some manure would have been flowing into the ditches.
Everyone who testified at the hearing with regard to the manure spreading issue agreed that spreading manure in winter conditions is a practice which farmers should endeavour to avoid. Mr. Alderman testified that his intention is to spread manure on wheat stubble during the fall in future years and he spread manure in the winter only because unfavourable weather conditions prevented him from having available wheat stubble in the fall of 1996. The Board finds Mr. Alderman to be a credible witness and we accept his evidence that manure will not be spread in the winter again in the absence of extremely unfavourable weather conditions.
Water pollution which may or may not have arisen from winter spreading is beyond the jurisdiction of the Board. Our mandate is to deal with issues arising from odour, noise or dust. It is neither necessary or appropriate for the Board to provide a definitive statement regarding whether spreading manure in the winter is or is not a normal farm practice at this time.
PROXIMITY OF MANURE SPREADING TO NEIGHBOURING PROPERTIES
The second issue arising from the manure spreading practice of Mr. Alderman is within the Board's jurisdiction. The evidence of Bud Kelly and Wes Kelly who own the two residences which are closest to the Alderman barn was to the effect that the odour conditions became dramatically worse after the manure was spread. Bud Kelly in particular experienced a deterioration of the air in his house and shop because they are so close to the area where the manure was spread. BudKelly testified that while he normally experiences odour only when wind carries odour from the barn to his property, the odour was continuous for many days after the manure was spread regardless of wind conditions simply because Mr. Kelly was living and working in such close proximity to the manure.
Bud Kelly presented a number of OMAFRA publications which were entered as Exhibits. The publications outline practices which are appropriate for manure management from livestock operations. These publications provide guidelines, recommendations and suggestions. Mr. Huffman of OMAFRA was a witness called by the Board. During his evidence, Mr. Huffman was asked to comment upon the various OMAFRA publications and to advise the Board as to which publications remain current and which ones may be somewhat obsolete. The Board is satisfied that it has had the benefit of up to date evidence pertaining to appropriate manure management practices.
Mr. Alderman testified that he plants several hundred acres of crops each year utilizing "no-till" practices. No-till (often used interchangeably with the term "minimum" tillage by the farm community) crop production is a normal farm practice in Ontario which can create some significant benefits for farmers. However, no-till crop production does not provide the best reduction in manure odour for a farmer who is involved in both livestock and crop production.
The Board has reviewed OMAFRA Fact Sheet 711 produced in June, 1992 entitled "Reducing Odour and Noise Conflicts Between Rural Neighbours" and the OMAFRA "Guide to Agricultural Land Use" produced in March, 1995. :?r. Huffman confirmed that these publications remain current. The Board accepts these Exhibits and the evidence of Mr. Huffman as a guideline to recommended manure practices.
The OMAFRA publications confirm that odour from manure spreading practices can be reduced if the manure is incorporated into the soil or if the soil is tilled immediately before or after manure spreading.
We note that publication 711 suggests that liquid manure spreading should be at least 300 metres away from neighbouring houses while the Guide to Agricultural Land Use suggests that if liquid manure is spread within 300 metres of an incompatible use, it should be injected or worked into the soil within 24 hours. Mr. Huffman testified that there is no inconsistency between these two statements prepared by OMAFRA as the 1992 publication 711 deals with suggestions for "good neighbourliness" while the 1995 Guide to Agricultural Land Use sets out a recommended standard which could be applicable in any situation.
The use of the 300 metre guideline between the edge of manure spreading and a neighbour's home as a normal practice in Ontario would create a significant burden for many farmers in Ontario who work near other neighbours. Mr. Alderman is an example since only 25 acres of his land would not be within 300 metres of an adjoining home.
Additionally, farmers such as Mr. Alderman who use no-till cropping practices would normally not till manure into the ground after spreading although tillage practices certainly increase the amount of nutrient available from manure for crops and reduce the potential of manure run off.
No-till or minimum till crop production is a normal farm practice in Ontario. The spreading of liquid swine manure in proper conditions with the type of equipment utilized by Mr. Alderman is also a normal farm practice. If these practices are carried on independently of each other, then they would be protected through the provisions of the Farm Practices Protection Act.
The difficulty posed by this situation is that the two normal farm practices are not compatible with each other. If manure is spread utilizing appropriate equipment, but is not tilled into the ground, then it will sit on the surface for a significant period of time. A significant part of the nutrient value of the manure will be lost. The odour caused by the manure will also be dramatically increased if the manure sits on the surface of the ground.
After carefully reviewing all of the evidence, the Board concludes that no-till or minimum tillage practices are incompatible with the spreading of liquid swine manure if one is within 300 metres of a neighbouring home. The Board concludes that normal farm practices for manure management are as follows:
Manure would not be spread within 20 metres of buildings owned by adjoining property owners under any circumstances;
Manure spread between 20 and 300 metres from buildings located on adjoining properties should be incorporated or tilled into the ground shortly after the manure has been spread. We note that the Guide to Agricultural Land Use suggests that manure should be tilled into the ground within 24 hours of spreading. We do not accept that part of the publication as defining normal farm practice in this area.
While a 24 hour period of time for the tillage would be ideal, the Board recognizes that weather or work conditions may prevent farmers from tilling manure into the soil for a period that is longer than 24 hours after spreading. However, normal farm practice would require the manure to be tilled into the ground as soon as practicable after spreading.
- If manure is spread more than 300 metres from buildings located upon adjoining properties, then the incompatibility between no-till or minimum cropping practices and liquid manure spreading should cease to be a problem. The distance between the manure and the neighbouring home should prevent the lack of tillage from creating a problem for farmers or home owners residing on adjoining properties.
SUMMARY AND ORDERS
The initial finding which the Board must make is whether the applicants are aggrieved by the odour arising from the barn and the manure management practices of Mr. Alderman. The applicants who provided evidence and Wes Kelly all testified that they do not wish to have Mr. Alderman forced to leave the swine industry. However, the complainants do experience significant discomfort from the odour of the barn and manure which has been spread upon the fields. While some comments during the course of the evidence suggested that the complainants may perhaps be overly sensitive to the manure odour, the Board finds that the applicants presented their evidence in a credible fashion and that they are genuinely affected by the odour emanating from the Alderman operation. Accordingly, the Board finds that the applicants are "aggriE-ed" within the meaning of the Farm Practices Protect-on Act.
Having concluded that the applicants are aggrieved, the Board must then consider whether the practices of Mr. Alderman are normal farm practices which are protected or whether they are not normal farm practices for which the applicants are entitled to receive a remedy. The-Board concludes as follows:
That the construction and operation of the barn and manure storage conform to normal farm practices. While the temperature controls within the barn may not function properly at this time, the Board is satisfied that the controls do not create any significant increase in the odour arising from the barn and the Board is satisfied that Mr. Alderman will continue diligently to rectify the situation because it does create a significant expense for Mr. Alderman. Accordingly, because the Board has concluded that the odours emanating from the Alderman barn and manure storage are created by normal farming practices, the application with regard to the barn and manure storage is dismissed.
The manure spreading practices of Mr. Alderman do not conform with normal farm practices. Mr. Alderman testified that it is not his intention to spread manure during the winter in the future unless weather conditions leave him with no alternative and the Board makes no ruling as to whether spreading manure during the winter is or is not a normal farm practice in this situation.
However, the Board finds that Mr. Alderman's practices of spreading manure to within a few feet of the shop of a neighbouring farmer and combining the use of liquid swine manure with no-till or minimum till crop production are not normal farm practices. The Board concludes that normal farm practice in Ontario involves the tillage of liquid swine manure into the ground shortly after spreading where the manure is placed in the proximity of a neighbouring home.
Accordingly, Mr. Alderman is ordered to alter his manure management practices as follows:
(a) No manure is to be spread within 20 metres of any building not owned by Mr. Alderman;
(b) Manure spread between 20 metres and 300 metres away from a neighbouring home shall be tilled into the ground as soon as practicable;
(c) Mr. Alderman may continue to use his current manure management practices on land that is more than 300 metres away from the nearest home.