Faux v TWP of Havelock-Belmont-Methuen, 2000 ONNFPPB 10

Faux v TWP of Havelock-Belmont-Methuen

2000 ONNFPPB 10

DATE OF DECISION:

2000-07-20

2000-02

Farming and Food Production Protection Act 1998

BETWEEN:

James Faux and J.W. Faux Ltd. – Applicants

And

The Corporation of the Township of Havelock-Belmont-Methuen, Bryan Welsh and Catherine Welsh, Wayne Drain and Heather Drain, Walter Silbernagel and Paul Silbernagel, James Velcheff and Karin Velcheff, George Joseph and Ada Rugby, Clara Newfon, Thomas Newfon, Robert Rose and Donna Rose, Murray Baptie and Alice Baptie, Rov C. McDonell, Felix Krabi and Lydia Krabi, Glen Parcels, Erwin Bauer and Elizabeth Bauer Rod Manley and Association of Concerned Citizens for Our Environment -- Respondents

Header Instructions

Faux v TWP of Havelock-Belmont-Methuen

2000 ONNFPPB 10

Date of Decision:

2000-07-20

2000-02

Statute:

Farming and Food Production Protection Act 1998

Hearing:

2000-06-28

Between:

James Faux and J.W. Faux Ltd. – Applicants

And

REASONS FOR DECISION

This matter was heard on June 28, 2000. At the conclusion of argument, we dismissed the application and advised the parties that we would provide written reasons for our decision.

At the outset of the hearing. Mr. Millard sought the consent to add his clients as parties to this proceeding pursuant to section 6(1) of the Farming and Food Production Protection Act. ("the Act"), The individuals who attended named in the title of proceedings reside within 120 metres of the area in which the Applicants seek to carry on a swine fanning enterprise. These individuals received notice of the hearing pursuant 10 section 6(9) of the Act and were added as panics with the consent of the Applicants and the Township of Havelock.Belmonth-Methum ("the Municipality").

Mr. Millard also represents a lengthy list of individuals who have formed an unincorporated association known as the Association of Concerned Citizens for Our Environment (" A.C.C.E. "). The definition of "person" under the Act specifically includes an incorporated association. Section 6(1) of the Act indicates that any person may be added as party ·who may be directly affected" by the decision of the Board. Mr. Millard advised that many of the members of A.C.C.E. do reside in close proximity to the proposed swine facility. Other members of A.C.C.E. live at some distance but are concerned that they may be affected because they are downstream from a river system which is c lose to the property in question. After hearing submissions, the Board added A.C.C.E. as a party to the proceeding.

Although it was not necessary {or the Board to hear oral evidence with regard to the issues in this manner, there IIC certain facts which are apparently not in dispute. The Applicants entered into an agreement 10 purchase property located at Part East Y.t Lot I and Southeast ¼ Lot 2, Concession II , in the Township (“the farm”). Mr. Faux received a letter from the building inspector dated September

15, 1999 confirming that a building permit for a swine facility would be available for the farm. Based upon that letter, the Applicants waived. condition in their Agreement of Purchase and Sale.

Subsequently. the Municipality passed bylaw 1999-61 ("the bylaw") on October S, 1999. The tide of the bylaw indicates that it is designed to "designate an interim control area to regulate livestock operations”. The bylaw is in place until October 4, 2000 unless otherwise extended in accordance with the provisions of the Planning Act. The relevant section of the by-law slates:

No person shall use any land, use, erect or construct any building or structure within the Interim Control Area for the purposes of accommodating livestock in an intensive farm operation.

Section 6 of the Act contains the following provisions:

i. No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.

ii. A person described in subsection (3) or a municipality may apply to the Board ... for a determination as to whether a practice is I normal farm practice for purposes of the non-application of municipal by-law.

Section 6(3) of the Act stales that an application may be made by fanners carrying on existing operations or by persons who want 10 engage in a normal farm practice in the Municipality and have demonstrable plans for it. Within their application, the Applicants allege that they are entitled to relief against the bylaw because they plan 10 carry on I normal farm practice and have demonstrable plans for it.

DIRECTIVE OF JUNE 26, 2000

Section 9(1) of the Act states:

The Minister may issue directives, guidelines or policy statements in relation to agriculture operations or normal farm practices and the Board's decisions under this Act must be consistent with these directives, guidelines or policy statements.

On June 26, 2000, the Minister of Agriculture, Food and Rural Affairs signed. Directive to the Board which states as follows:

Whereas the Fanning and Food Production Protection Act. 1998 is intended to promote farm practices in I way mat balances the needs of the agricultural community with provincial health, safety and environmental concerns; pursuant to subsection 9(1) of the Act I direct that an agricultural operation proposed to be carried on in an area which is the subject of an interim control by-law under the Planning Act shall be deemed not to be carried on as I normal farm practice until by-law providing for nutrient management planning & minimum distance separation and manure storage has been passed.

The Directive was not brought to the attention of the Board until after the end of regular business hours on June 27. Accordingly. the Board was unable to advise counsel of the Directive until the morning of June 28 prior to the scheduled hearing. The Board appreciates the efforts of the lawyers representing the parties who were able to quickly prepare their arguments with regard to the effect of the Directive upon the hearing.

Mr. McGillen. Mr. Ewan and Mr. Millard were in agreement that the Board should consider the effect of me Directive before hearing any oral evidence. They were in agreement that if the Board came to the conclusion that the Directive would determine the final conclusion of the hearing regardless of evidence called by the parties, it would be appropriate for the Board to make that ruling before hearing evidence. The Board if in agreement with these submissions as the costs to the parties or proceeding through two scheduled days of evidence and submissions would be significant and would be wasted if the Directive determines the outcome of the hearing.

Mr. McGillen argued that the Board would have authority to proceed and to arrive at its own decision regarding the merits of the case. He submitted that the Directive of the Minister usurps the authority delegated 10 the Board 10 make decisions pursuant to the Act and he expressed the view that we would have the legal authority to make a decision contrary to the wording of the Directive if we felt that such a decision was appropriate under the wording of the Act.

Mr. Ewart and Mr. Millard argued that the: limitation upon our authority is contained directly within the Act They submitted thll section 9( 1) specifically contemplates situations in which the Minister may wish to provide directives to the Board and that the Minister is specifically authorized to exercise this power through the provisions of section 9( I).

After adjourning to consider the Directive and arguments.. we concluded that the Directive is binding upon the Board and that we are required to follow the Directive.

The bylaw is clearly an interim bylaw under the Planning Act. II remains in effect until October 4, 2000. The Directive states that any proposed operation which a farmer seeks to carry on in an area subject to the interim control bylaw ~ shall be deemed not to be carried on u a normal farm practice" until a further bylaw is in place.

Accordingly, it is our conclusion that the Directive requires us 10 conclude that the proposed operation of the Applicants is not in compliance with normal farm practice. No evidence which the Applicants could provide to the Board would lead to any other conclusion given the mandatory wording of the Directive. Accordingly, we dismiss the application.

In order to assist the panics 10 this proceeding and others who may be involved with interim control bylaws in situations where the Directive of June 26, 2000 would have relevance, we wish to outline our interpretation of the manner in which the Directive is 10 be followed. We note that the Directive states that proposed operations are deemed not to be carried on as a normal farm practice "until a by-law providing for nutrient management planning, minimum distance separation and manure storage has been passed". We interpret the quoted phrase to mean that the Minister expects municipalities which use interim control bylaws to prepare new bylaws providing for nutrient management planning, minimum

distance separation and manure storage in a reasonable period of time. In our view, a municipality which simply renewed a control bylaw indefinitely or used an reasonably long term within the control bylaw would not be acting m accordance with the intention behind the Directive provided by the Minister. A series of interim control bylaws designed to avoid dealing with nutrient management issues al together would lose their interim nature. They would become in real terms permanent bylaws which would not rail within the Minister' s Directive.

We do not purport to bind the authority of any future panel of the Board reviewing control bylaws. We simply wish to state our view that the use of control bylaws for the purpose of avoiding the type of planning set out in the Minister's Directive would be actions that would not be in accordance with that Directive.

DISPOSITION OF APPLICATION

The application is dismissed. The Applicants may proceed with another application before the Solid if they wish to do so pertaining to any bylaw of the

Municipality which may be in effect after the current interim control bylaw expires on October 4, 2000.

DATED al Waterloo, Ontario, this 20 day of July. 2000.

G. EDWARD OLDFlELD

DATED .1/,:t/:t",;O.iJ ti~1 d.y of ,.Iy. 2000.

r&to L!,:,;t::U- RRSTENBOSCH

DATED at rry-'" Ontario, this )-5 day of July, 2000.

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