ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Knip v TWP of Biddulph 1998 ONNFPPB 47

DATE OF DECISION: 1998-01-08

98-02

STATUTE: Farming and Food Production Protection Act 1998

BETWEEN: Fred Knip, Eileen Knip and Fred Knip Farms Inc – Applicants

And

The Corporation of the Township of Biddulph, Charles Hayden, Roy Moore, Mary Ann Brown, Cliff Cook, Jeff Bryan, John Brown, Joe McIlharghey, Don Mills, Doug Thompson, Marilynne Thompson, Sherry Funston, Phil Harragon, Leo Boyle and Bruce Hackett – Respondents

This application was originally brought by Fred Knip against the Corporation of the Township of Biddulph ("Biddulph") pursuant to section 6 of the Farming and Food Production Protection Act ("the Act"). Mr. Knip alleged in his application that parts of bylaw 38-1998 (the "bylaw") of Biddulph restrict normal farm practice in contravention of the Act.

The application was brought specifically with regard to sections 4.4.9 and 6.8.1 of the bylaw. At.the hearing, Mr. Knip applied to have his application extended to include section 6.8.3 of the bylaw. This application was granted by the Board subject to. the right of Respondents to request an adjournment if necessary in order to prepare themselves to deal with the new portion of the application. None of the Respondents made such a request at the conclusion of the hearing on November 13.

PARTIES

An initial issue involved the parties to the hearing. The Board was advised and heard evidence that Fred Knip, Eileen Knip and Fred Knip Farms Inc. all own an interest in some of the land relevant to this application. Accordingly, Eileen Knip and Fred Knip Farms Inc. were added as parties to the application.

The individual Respondents applied to be added as parties pursuant to section 6(8).of the Act. Leo Boyle resides directly across the road from the farm where the Applicants propose to build a new swine facility. The other individual Respondents live in the Township of Biddulph and are part of an association known as the "Biddulph Group".

All of the individual Respondents were represented by Mr. Waters. The Applicants objected to the addition of the individual Respondents as parties to this hearing. After hearing argument from all parties, the Board concluded that all of the Applicants may be directly affected by the decision in this case and they were added as parties pursuant to section 6(8) of the Act.

BYLAW

The provisions of Bylaw 38-1998 which are the subject of this application read as follows:

4.4.9 Notwithstanding any of the above, no applications will be accepted for construction of facilities in excess of 500 livestock units for any one building site.

6.8.1 1 acre (.4 hectare) of Tillable Land for every 1.5 Livestock Units unless the completed Nutrient Management Plan indicates that a greater Land Base is required in which case the required Land Base shall be provided as in accordance with the Nutrient Management Plan.

6.8.3 Not less than 66% of the total of the required Land Base shall be owned by the owner of the livestock operation, and the remaining required land Base may be available for the spreading of manure subject to a Manure Agreement (Appendix E) being completed and a copy being registered with the Township.

The costs of the Manure Agreement and its registration shall. be at the cost of the person(s) requiring the Agreement. It is not required that the Land Base be comprised of the same lands on a permanent basis as long as the total number of hectares for the required Land Base is continually available during the course of the livestock operation and the use of the Manure Storage Facility.

KNIP FARM OPERATION

The Board heard evidence that the Knips have carried on business as farmers for twenty-five years in the Township of Biddulph. They currently own a hog finishing facility containing 1,000 animals and they grow cash crops. The land base for the Knip operation is as follows:

(a) 145 acres (135 tillable) owned by Fred Knip;

(b) 200 acres (198 tillable) owned by Fred Knip Farms Inc.;

(d) 205 acres (all tillable) rented from property owners who are not family members.

The Knip swine operation is currently located on Lot 13, Concession 1, Biddulph Township. The barn currently on the property will house 1,000 feeder hogs. The Applicants originally intended to place a second barn for 1,000 feeder hogs beside the existing facility. However, construction of that barn would contravene the minimum distance, separation ("MDS II") calculations which outline the distance which should exist between a livestock barn and neighbouring houses.

The Board was advised that there is an ongoing Ontario Municipal Board ("OMB") case in which the Applicants are attempting to obtain consent to place the second 1,000 animal facility beside the existing building. The OMB hearing is not relevant to the application before the Board. However, if the OMB gives approval to the construction of a new facility that is not in accordance with normal farm practice, the Knips could potentially find themselves exposed to an application pursuant to section 5 of the Farming and Food Production Protection Act.

Mr. Knip testified that after meeting resistance from Biddulph and neighbouring landowners to the proposal to build a 1, 000 animal facility, the Applicants decided to build the new facility at the back of the farm property. The Applicants looked at the cost of infrastructure for a new facility including lane way, new well and hydro installation.

Mr. Knip concluded that the cost of the infrastructure was so high that he would have to build a 2,000 animal facility in order to justify the cost of the infrastructure. Mr. Knip testified that there is a site at the farm on which a 2,000 animal facility can be constructed without offending the MDS II guidelines. However, he has not applied for a building permit because his proposal clearly contravenes bylaw 38-1998.

ISSUES RAISED BY BYLAW 38-1998

The bylaw seeks to control intensive livestock operations. One method of control is through a limitation of the number of animals that can be housed on any single site by an intensive livestock operation. Table 1 to the bylaw sets out the number of animals which equal 1 livestock unit. Four feeder hogs equal one livestock unit.

Therefore, the proposal by the Applicants to have 3,000 feeder hogs on one farm property would create a total of 750 livestock units for that site.

Section 4.4.9 of the bylaw states that no application will be accepted for construction of facilities in excess of 500 livestock units for any one building site.

Accordingly, a proposal by the Applicants to have 750 units on their home farm clearly contravenes the bylaw.

Section 6.8.1 of the bylaw requires 1 acre of tillable land for every 1.5 livestock units unless the Nutrient Management Plan ("NMP") indicates that a greater land base is required. Section 6.8.3 of the bylaw states that not less than 66% of the required land base shall be owned by the owner of the livestock operation with the remaining required land base for the spreading of the manure being subject to a Manure Agreement which must be completed and registered with the township. The bylaw does not require the land base to be comprised of the same lands on a permanent basis as long as the total amount of land is continually available during the course of the livestock operation and the use of the manure storage facility.

In order to comply with section 6.8.1, the Applicants would require at least 500 acres of tillable land to provide for 750 livestock units which they propose to operate.

The Applicants do have that amount of land under their control. However, the ownership of the land would offend section 6.8.3 of the bylaw since Mr. Knip owns 135 acres of tillable of land, while Fred Knip Farms Inc. owns 198 tillable acres. Mr. Knip's mother owns 147 tillable acres which are available to the farm operation on a permanent basis. The balance of 205 tillable acres is rented.

The Applicants allege that the requirements within the three sections of the bylaw require compliance with conditions that are not in accordance with "normal farm practice" as defined by the Act.

Mr. Hotson provided evidence on behalf of Biddulph with regard to this bylaw. The bylaw was a response to concerns expressed by members of the community with regard to the increasing size of intensive livestock operations in Southern Ontario.

The bylaw is not designed to forbid intensive agriculture. It is however intended to restrict the size of any operation located on an individual site. Additionally, Biddulph hopes to prevent environmental problems which can arise if large quantities of manure are improperly managed by farmers.

The individual Defendants are part of an unincorporated association known as the "Biddulph Group" which has expressed concerns about intensive agriculture to the Biddulph council. As a result of representations made by the Biddulph Group, Biddulph created a committee of citizens to assist with the investigation needed in order to prepare a bylaw for the control of intensive livestock operations. Mr. Hotson testified that B:ddulph essentially adopted the recommendations of the committee within the bylaw.

The Board heard evidence from Charles Hayden who was a member of the citizens' committee which was involved with the bylaw. He testified that the committee included ten residents of Biddulph Township. Five or six committee members were farmers. One member of the committee was a brother of Fred Knip.

Mr. Hayden has been a well driller for forty years. He owns 1,400 acres of land and provided evidence. as to the reasoning behind the restrictions recommended by the committee to council.

The township committee was very concerned about pollution which could result from large livestock operations. It was recognized that weather does not always co-operate with agricultural operations and there was concern that intensive livestock operations might be tempted to cut corners in busy seasons where there wasn't enough dry weather in which to plant crops and spread manure. There was also concern that some farmers would not follow nutrient management plans in an honest fashion and would dump huge quantities of manure on fields that were close to large barns.

The committee concluded that by placing a cap of 500 livestock units on any site, they would reduce the likelihood that excessive amounts of manure would be dumped in close proximity to a barn. Additionally, by limiting the number of units at 500 per site, a farmer with a large operation could expand by constructing barns on several farm properties.

The committee was aware that there were no livestock operations in Biddulph Township which were larger than 500 animal units when the bylaw was prepared. They believed that a cap of 500 units would not provide any inconvenience to existing operations.

Finally, the committee decided that an ownership requirement of sixty-six percent for the land base required for manure management was appropriate. The committee concluded that farmers who own the land on which manure is being spread would be less likely to abuse that land than rented land. Additionally, if a farmer lost control of rented land, the operation would still have most of the land needed for manure disposal purposes on an ownership basis.

Mr. Hayden also provided evidence regarding the landforms and water supply in Biddulph Township. He is well qualified to provide this evidence with his vast experience as a well driller. Mr. Hayden advised the Board that the township has variable conditions in which one can locate water. Over fifty percent of the wells in the township use shallow aquifers as a source. There are places where the shallow aquifer is within six feet of the surface. Mr. Hayden also believes that water from the shallow aquifer can mix in places with water from a deeper aquifer. He is legitimately concerned that manure from pollution in a shallow aquifer could also contaminate a huge quantity of water in a deep aquifer.

Marilynne Thompson also testified with regard to local conditions. She was not a member of the township bylaw committee, but she does own 200 acres with her husband where they raise beef cattle and some pigs. Their farm is adjacent to a farm owned by Premium Pork which apparently maintains 2500 sows. That operation would equal 500 livestock units in accordance with the table utilized in the bylaw.

Mrs. Thompson vividly described the concerns that can arise when one lives near a large livestock facility. If the wind is from the east or there is no wind, the smell from the Premium Pork barn almost makes her "choke". The odours remain for many hours on windless days. One of Mrs. Thompson's children wanted to be married at the Thompson family farm, but they did not have the wedding at that property because they were concerned about the potential odours emanating from Premium Pork.

Mrs. Thompson has also experienced discomfort from odour when manure is being spread by neighbouring swine operators. Manure was taken past Mrs. Thompson's farm for eight consecutive days in 1998 and the odour from the field where the manure was spread carried more than one kilometre.

It appears from the evidence of Mrs. Thompson that the operator who spread the manure was planting crops in a minimum tillage system and was not working the manure into the soil. This Board has concluded in an earlier case (Kelly v. Alderman) that minimum tillage crop practices and the spreading of liquid swine manure are often incompatible. The Board also heard evidence from Mr. Knip that his practice is to work manure into the ground within forty-eight hours of spreading and accordingly, the type of odour problem outlined by Mrs. Thompson from spreading manure should not arise from the Knip farm.

Mrs. Thompson also has concerns about pollution. In May 1998 she saw manure running from a farm into a river. The farm from which the pollution emanated. Was not a property belonging to the Applicants. Mrs. Thompson contacted the Ministry of the Environment ("MOE") on three occasions and never received any response. Accordingly, a potentially significant incident of pollution was not investigated.

This is not the first hearing in which this Board has heard witnesses complain that the MOE is less than diligent in the investigation of pollution running off farm properties.

In summary, the bylaw was a response to community concerns about the damage which might result from unregulated livestock enterprises.

EXPERT EVIDENCE

The Applicants called Paul Verkley who was qualified as an expert witness. He is a member of the Ontario Farm Environmental Coalition ("OFEC") which is a coalition of Ontario farm organizations. He is a representative of the Ontario Federation of Agriculture ("OFA") within OFEC. He is the chair of the nutrient management working group for the OFA.

Mr. Verkley indicated that the work of OFEC has led to the conclusion that a scientific review of individual farms is the best method for permitting farmers to obtain the maximum benefit from manure and to prevent environmental concerns. A Nutrient Management Plan ("NMP") is a program designed to test and monitor farmland and to permit farmers to manage their manure in a fashion which meets these goals.

Mr. Verkley described how an NMP is created. Soil samples are analyzed for their ability to absorb nutrients and the manure may also be analyzed. A qualified individual can then calculate the quantity of manure based nutrients which can be absorbed by the soil and the farmer spreads manure in accordance with that plan. The theory behind a well managed NMP is that farmers will obtain the benefit of maximizing the nutrients available within manure and nutrients will not turn into pollution running off the farm because the quantity spread will be appropriate for the land which is the subject of the NMP.

It is important to note that no one who testified at the hearing disagreed with the concept of NMP. The Applicants are quite content to submit an NMP, and their concerns are limited to the particular aspects of the bylaw which are the subject of this hearing.

Mr. Verkley went on to provide opinions with regard to a minimum distance separation which is a key element of odour control. He noted that in many places it would be extremely difficult to meet the existing minimum distance separation guidelines between barns and neighbouring homes if one wanted to place a 500 livestock unit facility on a 100 acre farm. He indicated that appropriate third party review of an operation through an NMP would be sufficient in some cases to permit a large operation to be located in locations which would not be consistent with current MDS II guidelines.

The Board concludes that this opinion is not consistent with normal farm practice and may confuse the separate goals of minimum distance separation calculations and an NMP. The NMP deals with the nutrient capacity of a particular parcel of land while MDS II requirements are designed to minimize the odour and noise concerns emanating from a barn which has the potential to disturb neighbouring residents.

Gary Roberts is an agronomist employed by Stratford Agri Analysis. Mr. Roberts was qualified as an expert and testified with regard to the procedure for preparing an NMP. He has been involved with farm operations that exceeded 500 livestock units.

He testified that grid soil sampling is necessary to properly prepare an analysis of a property. He indicated that a farmer needs to have land available at least one year prior to the date that manure is spread upon that land. For practical purposes, leased land in an NMP must be leased for at least two years with the soil sampling to occur the year before manure is spread.

Mr. Roberts noted that the standard of 1 acre of tillable land for each 1.5 livestock units is an average figure which one sees in many cases when an NMP is calculated. Some types of land can absorb the nutrients from a larger number of livestock units, while thin or shallow soils may require more than 1 acre for 1.5 livestock units.

Mr. Roberts expressed the opinion that an NMP is the best current method for the management of manure. He also testified emphatically that it would not be a normal farm practice for a farmer to breach an NMP which had been calculated for a particular farm. In the opinion of Mr. Roberts, the NMP should be the basis from which manure management is policed and the occasional farmer who ignores environmental responsibilities can be punished for breaching an NMP.

Mr. Roberts also expressed concern that unqualified people may become involved in the preparation of an NMP. The Board recognizes that Mr. Roberts has a legitimate concern when he suggests that unqualified people may be very detrimental to the goals that are to be achieved through an NMP. Additionally, the Board acknowledges the point made by Mr. Roberts to the effect that some farmers may be qualified to do their own soil sampling and analysis.

However, Biddulph Township has decided to require professionals with specified qualifications to act as third party consultants. The Board does not believe that this requirement would offend normal farm practices.

Sam Bradshaw also testified on behalf of the Applicants and was qualified as an expert. Mr. Bradshaw is an employee of the Ontario Pork Producers. His expertise is with regard to the size of livestock operations in Ontario.

Mr. Bradshaw testified that only eight percent of swine operations in Ontario have 500 or more livestock units. Almost all of these facilities have been constructed within the last eight years. Mr. Bradshaw acknowledged that any operator with poor manure management practices would cause legitimate concerns for other property owners. Mr. Bradshaw supports the use of minimum distance separation requirements and an NMP on every farm containing a significant amount of livestock. He expressed the opinion that the combination of these programs would be the most efficient way of permitting farmers to carry on business with a minimum of inconvenience to neighbours. Finally, Mr. Bradshaw was of the opinion that the flexibility offered through an NMP for each farm would be more appropriate than the imposition of standardized limits within a bylaw that would not recognize the different capabilities of individual farms.

Harry Huffman was called by the Board to testify pursuant to section 8(3) of the Act. He is an agricultural engineer who has been employed by OMAFRA for twenty-seven years. One of his areas of expertise is environmental issues pertaining to agriculture. He was qualified by the Board as an expert witness.

Mr. Huffman expressed the opinion that there is no higher incidence of pollution problems in large farms than in small farms. Size alone does not increase the likelihood that difficulties will arise.

Mr. Huffman noted that in his experience, most farmers are cognizant of good manure management practices and they endeavour to follow appropriate practices.

However, "a few bad apples" do exist and their actions have to be policed in some fashion. This opinion was shared by some of the other expert witnesses.

Mr. Huffman also pointed out that no one wants to be the "manure police". However, the creation and enforcement of appropriate standards is an issue of significant concern to livestock industries in Ontario.

When examined about the methods of controlling the small minority of farmers who ignore good manure management practices, Mr. Huffman noted that a penalty within a municipal bylaw was one approach. He also noted that the Ontario Water Resources Act and the Lakes and Rivers Improvement Act are used by the MOE. Mr. Huffman testified that formal NMP calculations are not yet common in

Ontario. The total percentage of farmers using formal plans is small. For example, Mr. Huffman has reviewed six NMPs in Middlesex County which has 2,200 2,600 farmers.

Mr. Huffman expressed the opinion that a formal NMP is still an innovative farm practice in Ontario. However, most farmers do plan manure management informally in their minds and adhere to reasonable manure management practices.

Mr. Huffman noted that the practice of spreading too much manure close to a barn has been a problem which he has seen in the past. The temptation to avoid travel time spent driving manure spreading equipment to and from fields which are a distance from a barn has the potential to cause excessive quantities of manure to be spread in fields which are in close proximity to barns. Mr. Huffman is of the opinion that an NMP is one step which can reduce this concern because it would permit a farmer to know with certainty whether any fields were receiving excessive quantities of manure.

Mr. Huffman was asked to provide specific opinions with regard to section 6.8 of the bylaw. With respect to section 6.8.1, Mr. Huffman noted that the requirement of 1 tillable acre for each 1.5 livestock units is not an absolute standard. The range in Mr. Huffman's experience is that one acre of land may be appropriate for 0.5 to 2 livestock units. The range is a significant one depending upon the soil of any particular farm.

When examined about the requirements of section 6.8.3, Mr. Huffman testified that OMAFRA has not provided a position statement with regard to the percentage of a total land base which should be owned by the owner of a livestock operation.

Finally, Mr. Huffman expressed the opinion that if rental land is part of a land base for manure management, the "practical" minimum length of a lease would be three years to permit crop rotation and nutrient management within an NMP. Mr. Huffman also noted that the vast majority of commercial farmers in Ontario do not own all of the land base utilized in farm operations. The use of rental land is important to many commercial farm ventures.

SUBMISSIONS

The parties provided written submissions. A summary of the submissions is as follows:

Submissions of the Applicants

The Applicants confirm that they are prepared to abide by an "environmentally sensitive" NMP. The Applicants are also prepared to submit to all sections of the bylaw with the exception of the three subsections that are the subject of this application.

The Applicants allege that the restriction of livestock operation sizes to 500 livestock units, the requirement of one tillable acre for every 1.5 livestock units, and a sixty-six percent land base ownership requirement are not in conformance with normal farm practice. The Applicants also allege that there is no scientific basis for the restrictions within the bylaw.

Biddulph

The township submits that the bylaw "was drafted after two public meetings by a committee of ten citizens of the municipality". The council feels that it is appropriate to support a bylaw drafted with significant input from the citizens of the municipality.

Biddulph Group

The Biddulph Group provided extensive submissions including the following:

(i) The Biddulph Group submits that this hearing is premature because Mr. Knip has made application to the committee of adjustment for Biddulph in order to obtain a "minor variance" to reduce the minimum distance separations otherwise required by Biddulph. The request for a minor variance is before the Ontario Municipal Board. The Biddulph Group alleges that the Applicants have shown no demonstrable plans for an operation which would conflict with the bylaw and have not taken the actions required to prepare an NMP as required by the bylaw. The Biddulph Group submits that this application should be stayed until the Board "knows the detailed agricultural operation that Mr. Knip proposes toexempt" from the bylaw.

(ii) The Biddulph Group submits that the application is actually designed to remove any controls from the farm and that the Applicants want the benefits of expansion without bearing the additional management required by such expansion.

(iii) The Biddulph Group submits that the 500 livestock unit cap does not prevent the expansion of operations in excess of 500 livestock units within the township. The cap refers only to each building site, and not to each agricultural operation. It is submitted that this ability to expand on multiple sites prevents any significant restriction of farm expansion.

(iv) The Biddulph Group notes that the NMP is a precondition of obtaining a building permit and that once the NMP is filed and a building permit is provided, there is no duty upon an agricultural operator to comply with the plan'. The Biddulph Group is concerned that the section of the bylaw dealing with violations and penalties will provide no effective control of the Applicants' operation.

(v) The Biddulph Group submits that there is no need for the Board to exempt the Applicants from section 6.8.1 of the bylaw. It is submitted that if the Applicants provide further evidence to satisfy the Board regarding the rental property and the lease of land owned by Mr. Knip's mother, there is sufficient land to operate the business without offending the bylaw.

(vi) Finally, the Biddulph Group submits that the sections of the bylaw under review are in accordance with normal farm practices. The submission is that the bylaw does not restrict, "in general terms any farm practice as size is not a practice but simply a matter of density". The Biddulph Group also submits that there are good planning reasons to restrict the maximum size of a barn on any single site in the fashion set out within the bylaw.

ROLE OF TAE NORMAL FARM PRACTICES PROTECTION BOARD

Section 6(1) of the Act states:

No municipal bylaw applies to restrict a normal farm practice carried on as part of an agricultural operation.

Section 1(1) of the Act defines normal farm practice as a practice that,

(a) is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances, or

(b) makes use of innovative technology in a manner consistent with proper advanced farm management practices.

The Act places further specific requirements upon the Board when determining whether a practice is a normal farm practice when considering an application under section 6 of the Act. Section 6(15) states:

In determining whether a practice is a normal farm practice, the Board shall consider the following factors:

The purpose of the by-law that has the effect of restricting the farm practice.
The effect of the farm practice on abutting lands and neighbours.
Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.
The specific circumstances pertaining to the site.

With regard to these requirements, the Board notes that the purpose of the bylaw is to regulate the storage and use of nutrients within the Township of Biddulph. The scope of the bylaw goes well beyond the three sections which are challenged at this hearing.

The effect of intensive livestock operations on abutting lands and neighbours can be significant. The Board recognizes that appropriate bylaws for the purpose of regulating nutrient and manure management can play an important role in balancing the interests of intensive livestock operations and other farmers and citizens who reside in the vicinity of intensive livestock operations. The Board recognizes that intensive livestock operations are agricultural practices which can have a significant negative effect upon abbuting lands and neighbours if the operations are not carefully managed.

As far as provincial interests under other pieces of legislation or policy statements are concerned, the only one brought to the attention of the Board is in the submissions provided on behalf of the Biddulph Group. The attention of the Board was drawn to a provincial policy statement indicating that "new land uses, including the creation of lots, and newer expanding livestock facilities will comply with the minimum distance separation formula". The Board is most supportive of the use of minimum distance calculations.

We have also considered the specific circumstances pertaining to the site in question.

The Board is mandated by section 6(16) of the Act to provide a written decision stating our opinion as to whether:

(a) the farm practice is a normal farm practice;

(b) the farm practice is not a normal farm practice; or

(c) the farm practice will be a normal farm practice if the farmer makes specific modifications in the practice within the time set out in the decision.

During the course of the hearing, the parties from time to time made reference to the fact that the Applicants are seeking an "exemption" from the provisions of the bylaw. The Board does not interpret our authority as extending to the point where we can provide exemptions to bylaws or to declare that bylaws are inapplicable to a particular farm practice. Our role is restricted to considering the evidence and the factors which we are required to consider by the Act. We are then to provide an opinion based upon those considerations.

ANALYSIS OF ISSUES

The evidence and submissions lead to the following issues:

Whether The Application Is Premature And Should Be Stayed.

As outlined previously herein, the Biddulph Group submits that this application is premature because the Applicants have shown no demonstrable plans for their operation. The submissions dealing with this issue also make reference to the first plan of the Applicants to seek a reduction of the minimum distance separation calculations before the OMB.

We conclude that the existence of an OMB appeal regarding the proposal to add a 1,000 animal barn beside the existing barn does not cause the application before this Board to be premature. While the Board would have a great deal of concern about any OMB decision which would have the effect of ignoring minimum distance separation calculations, the existence of the OMB matter is not the issue before the Board at this time. We are dealing with the 2,000 animal facility which the Applicants propose to construct and the existing 1,000 animal facility.

Secondly, we are of the opinion that the Applicants do have "demonstrable plans" for the new 2,000 animal facility as required by section 6 (3) of the Act. We are satisfied from the evidence of Mr. Knip that the Applicants have made inquiries as to minimum distance calculations and the infrastructure costs of the proposed facility and that a significant amount of thought has been placed into the proposed development of the 2,000 animal facility. Because section 4.4.9 of the bylaw states that no application for the construction of the facility proposed by the Applicants would be accepted by the municipality, it is appropriate to proceed to the Board prior to taking further action. Accordingly, it is our opinion that the Applicants have brought this matter before the Board at a reasonable time and with "demonstrable plans" for the facility. Whether The Applicants Are Seeking To Remove Any Controls From Their Farm.

The Biddulph Group submits that the Applicants are seeking the benefits of expansion without wishing to bear the additional management required by expansion. The evidence of Mr. Knip is that he supports the use of an NMP. The Applicants state- in their submissions than they are fully prepared to enter into an NMP and to meet all provisions of the bylaw other than the three subsections which are the subject of this application.

The Board is of the opinion that the Applicants are not seeking to escape all controls upon their operation.

Status of Nutrient Management Plans.

All of the witnesses support the concept of NMPs. While the witnesses differed with regard to some of the specific requirements which they would support, the use of an NMP to assist with manure management meets with- general approval. The issue between the parties is whether it is appropriate for the municipality to go beyond the requirement for an NMP and to impose other limitations through the bylaw.

The Board recognizes that there is legitimacy to the concern that some farmers are likely to spread excessive amounts of manure in close proximity to barns. The Board is also concerned with the small minority of livestock farmers mentioned by several of the witnesses who ignore appropriate manure management practices. The detrimental effect of uncontrolled and improper manure management practices upon abutting lands and neighbours of intensive livestock operations is obvious and as Mr. Hayden and Mrs. Thompson testified most persuasively, the effect of uncontrolled manure management has the potential to affect the drinking water and environment of farmers and individuals who are a considerable distance away from the source of the manure.

The Board accepts Mr. Huffman's evidence that most livestock farmers have informal nutrient management plans which are rarely committed to writing. The formal NMP of the type contemplated within the bylaw is a relatively new concept which is not yet a general practice within the livestock industry.

The Board is of the opinion that an NMP is a "normal farm practice" as defined by the Act because the NMP is an innovative technology which is consistent with proper advanced farm management practices.

Accordingly, it is the opinion of the Board that a municipality may in principle impose the requirement of an NMP upon intensive livestock operations without restricting a normal farm practice carried on as part of an agricultural operation.

The Board recognizes that our opinion regarding an NMP may arguably go beyond the narrow issues before the Board in this application. However, the Board is aware that many municipalities are currently struggling with nutrient and manure management issues. When the development of the evidence in this application focused upon a determination as to the appropriate method for controlling manure management, the Board is of the opinion that a general statement of principle regarding the use of an NMP is not beyond the scope of this decision. We hope that a statement of general principle regarding NMPs will be of assistance to municipalities and the agricultural community. The Board will be prepared to review specific provisions within municipal bylaws requiring NMPs in future applications.

Penalties For The Violation Of A Nutrient Management Plan Mr. Waters expressed the concern that section 4.6 of the bylaw which deals with violation and penalties would not be broad enough to permit the municipality to lay charges against farmers who violate an NMP. A review of the relevant sections of the bylaw suggests that this concern may be well founded.

Having previously expressed the opinion that an NMP is an appropriate mechanism through which municipalities may regulate the manure management practices of intensive livestock operations without restricting a normal farm practice, we feel it is appropriate to express an opinion regarding actions taken by municipalities to enforce an NMP through penalties contained within a bylaw.

It is our opinion that a penalty clause within a bylaw would not restrict a normal farm practice. The use of an NMP is a normal farm practice as defined by the Act.

We do not see how an action which breached an NMP would ever be a normal farm practice .because of the implication that a farmer who breaches an NMP would be acting beyond the normal farm practice outlined within the NMP.

Because it is impossible to foresee all potential fact situations, we cannot state categorically that a penalty for the violation of an NMP would never restrict a normal farm practice and we would in appropriate circumstances hear an application pertaining to this issue. However, it is our opinion that as a matter of general principle, a decision by a municipality to utilize a penalty for a breach of an NMP would not restrict a normal farm practice in contravention of section 6(1) of the Act. Whether such a penalty is otherwise lawful would be a decision which is beyond the jurisdiction of this Board.

Effect Of Section 4.4.9 Of The Bylaw

The Board heard evidence indicating that the facility which the Applicants proposed to build is not a new or innovative technology. The large new swine operations are using existing technology and replicating that technology within multiple units of similar types of barns. However, the volume of manure produced by large numbers of animals housed on one building site requires careful manure management.

The Biddulph Group submits that by limiting the number of livestock units on one site and not limiting the number of sites upon which one owner may construct buildings, the township is regulating density of animals and not attempting to regulate a farm practice. We do not accept this submission. It is our opinion that placing a cap upon the number of livestock units which may be located upon one property does act as a restriction of normal farm practice contrary to section 6(1) of the Act.

The use of a properly monitored NMP should provide for the appropriate management of manure generated by large livestock facilities.

Effect Of Section 6.8.1 Of The Bylaw

This section of the bylaw requires 1 acre of tillable land for every 1.5 livestock units unless the completed NMP indicates that a greater land base is required.

The evidence presented by the parties indicates that the requirement of 1 tillable acre for every 1.5 livestock units is a typical or average figure which occurs when one calculates an NMP. However, the Board accepts Mr. Huffman's evidence that the range of nutrient management capabilities within various soil types is wide enough 'that 1 acre of tillable land may be necessary for a range between 0.5 and 2 livestock units. Mr. Huffman's evidence therefore indicates that the acreage requirement within the bylaw is an arbitrary "norm".

It is our opinion that section 6.8.1 therefore restricts normal farm practices of livestock operations utilizing NMPs in contravention of section 6(1) of the Act.

Effect Of Section 6.8.3 Of The Bylaw

This section of the bylaw places two restrictions upon farmers. Firstly, the bylaw requires that not less than sixty-six percent of the total land base shall be owned by the owner of the livestock operation. Secondly, the remaining required land base is to be subject to a Manure Agreement although the balance of the land base does not have to be comprised of the same lands on a permanent basis.

"Land Base" is defined in section 3.23 of the bylaw to include the tillable land owned by the Applicant together with other land available for manure management by way of a legal agreement. Accordingly, when reviewing the acreage available to the Applicants, we are adding only the tillable acres.

The requirement that the owned portion of the land base must be registered in the name of the owner of the livestock operation does not reflect the reality of many farm operations in Ontario. Planning Act considerations, estate planning and tax planning may lead farmers to conclude for legitimate reasons that the land base of a single farm operation should be held in more than one name. For example, two or more members of a family may each own farms and they may decide to construct a livestock facility upon a property owned by one family member or a family corporation. However, the land owned by all family members would be available for manure management.

It is our opinion that the requirement that the owned portion of the land base must be registered in the same name as the owner of the livestock operation restricts normal farm practice and contravenes section 6(1) of the Act. It is our opinion that it is a normal farm practice for farm operations to own land in more than one name.

It is our opinion that it would be more appropriate for control to be exercised on the basis of land which is available on a long term basis to the livestock operator for manure management. This test would be consistent with normal farm practice.

Using the test of land that is available on a long term basis, the Applicants have 135 tillable acres owned by Fred Knip, 198 tillable acres owned by Fred Knip Farms Inc. and 147 tillable acres rented from Mr. Knip's mother. The evidence of Mr. Knip was to the effect that the land owned by his mother is available to the operation on a permanent basis.

Accordingly, the Applicants have 480 tillable acres available to them on a long term basis.

The Applicants did not complete an NMP before proceeding with this application. The Board therefore does not know how many livestock units may be managed per acre of land. However, assuming that the land fits into the typical situation where 1 acre of land is needed for 1.5 livestock units, the 480 acres of tillable land under long term control by the Applicants would service 720 livestock units. Since the entire operation of 3,000 pigs would represent 750 livestock units, it is almost inconceivable that the Applicants would not meet a requirement that sixty-six percent of the total land base must be available to the operation on a long term basis.

In summary, it is our opinion that the provision within the bylaw requiring sixty-six percent of the total land base to be owned by the owner of the livestock operation is a restriction upon normal farm practice. If the test which recognizes normal farm practice is applied, the Applicants do not need an exemption from the sixty-six percent requirement.

The final issue is whether the sixty-six percent ownership requirement restricts normal farm practice. While Mr. Verkley suggested that a farmer with one acre of land could in theory meet an NMP through the long term rental of land for manure management purposes, the Board also recognizes that it may be appropriate to require a farm operation to have permanent control over part of the land base needed for manure management. It is our opinion that the evidence developed by the parties at this hearing was not extensive enough with regard to the percentage of land base ownership issue to permit us to express an opinion with regard to this issue. It is not necessary for us to make a determination with regard to this issue as we have previously expressed the opinion that the Applicants meet the sixty-six percent test set out in the bylaw if one utilizes the appropriate test of the land base which is permanently available rather than the land base owned by the owner of the livestock operation.

Accordingly, we do not express any opinion with regard to this issue.

CONCLUSION

In accordance with section 6(16) of the Act, our opinions with regard to the specific sections of the bylaw 4. It is our opinion that the plan of the Applicants to have 750 livestock units on one building site is a normal farm practice.

It is our opinion that manure management through a nutrient management plan instead of adhering to the ratio of 1 tillable acre for 1.5 livestock units is a normal farm practice.

It is our opinion that it is not a normal farm practice to calculate land available to the livestock owner by

including only land which is owned by the livestock owner.

The appropriate test to meet normal farm practice is to add the tillable acreage available to the livestock owner on a long term basis.

It is not necessary in the context of this application for us to decide whether a requirement that sixty-six percent of the land base must be permanently available to the livestock operator is appropriate and we do not feel comfortable in expressing an opinion regarding this issue based upon the evidence before the Board. challenged by the Applicants are as follows:

It is our opinion that the plan of the Applicants to have 750 livestock units on one building site is a normal farm practice. It is our opinion that manure management through a nutrient management plan instead of adhering to the ratio of 1 tillable acre for 1.5 livestock units is a normal farm practice.

It is our opinion that it is not a normal farm practice to calculate land available to the livestock owner by including only land which is owned by the livestock owner.