ONTARIO
NORMAL FARM PRACTICES PROTECTION BOARD
Martin v JMJ Farms
2001 ONNFPPB 16
2001-08-24
2001-01
STATUTE:
Farming and Food Production Protection Act 1998
HEARING:
BETWEEN:
Nicholas Hendriks, Sharlene Hendriks, Ronald Martin, Shirley Martin and Louise Libera -- Applicants
and
Mary Jane Romanoff, JMJ Farms and Aleda Brouwer -- Respondents
REASONS FOR DECISION
BACKGROUND
Aleda Brouwer is the owner of a small farm property beside Tintern Road in the town of Lincoln. The farm contains approximately 10 acres of fruit trees and 20 acres of grapes. The farm is rented by Mary Jane Romanoff. She testified that she carries on business under the name of JMJ Farms. Ms. Romanoff does not have extensive experience as a farmer. While she does work on the farm, her major area of responsibility is financial management. Joe Bator manages the farm on a day to day basis. Mr. and Mrs. Hendriks formerly owned and operated the Brouwer farm. When Mr. and Mrs. Hendriks retired, they severed a lot from their farm and they now live in a house situated on that lot.
Mr. and Mrs. Martin own a 15-acre parcel of land located adjacent to the south side of the Brouwer property. They have lived there for many years. The tillable land on that property is planted in hay and corn. Ms. Libera has a residence located on the south side of Fly Road which is some distance to the north of the Brouwer farm.
Ms. Romanoff and Mr. Bator have operated the farm for about 3 years. The evidence indicates that they, along with other grape producers, have to cope with vast flocks of birds which would consume huge quantities of grapes in the absence of control programs. The issue in this case is to determine whether the bird control program of Romanoff and Bator is conducted in accordance with normal farm practice.
The decision in this case is made in the context of the relationship among the parties. It is clear that Mr. Bator and Ms. Romanoff are involved in a relationship with the Hendriks and the Martins which might best be described as a feud. Fortunately, it is not necessary for the panel to make a finding of credibility in order to arrive at our decision.
However, it is useful to note some of the allegations made during the course of the hearing in order to observe the flavour of the situation. Some specifics are:
Some of the pictures which are exhibit 3 show an area of poplar trees located on the Martin property. Some of these trees are dead. Mr. Bator (supported by Mr. Fraser, the expert witness) testified that these trees would provide roosting areas for birds which consume grapes. Mr. Bator said that Mr. Martin refused to let Mr. Bator cut those trees. Regardless whether or not such a conversation occurred between Mr. Martin and Mr. Bator, one does wonder why Mr. Martin, who evidently keeps a very neat property would not arrange to have the unsightly, dead trees cut down.
The Martin dog escaped and bit Mr. Bator. That matter is apparently in litigation.
Mr. Hendriks apparently told Mr. Bator on a number of occasions that the farm is not currently being properly managed.
Mrs. Hendriks asked for permission to dump compost on the farm. However, the materials which she dumped, allegedly, included nails and glass leading to a shouting match between Mr. Bator and Mr. Hendriks. Mr. Hendriks is alleged to have stated: " I'll get you for this."
Ms. Romanoff and Mr. Bator testified that they formerly used air cannons, also known as bird bangers, for bird control. They alleged that their equipment was vandalized. Mr. Bator was very careful to avoid directly accusing the Hendriks or the Martins of causing the vandalism. Regardless of whether the degree of vandalism described by Ms. Romanoff and Mr. Bator occurred, we do accept that there was some vandalism to their equipment. The many rows of vines running parallel to Tintern Road and the rough wooded area between the local public school and the farm, make it appear unlikely that people destroying property would enter the farm from those directions. It is more logical that someone entered either through the Martin property, the Hendriks property or the Brouwer lane way and then walked to the area where the cannons were located.
Mr. Bator and Mrs. Romanoff utilized a stereo system playing loud rock music on a Hamilton radio station for the purpose of scaring birds in 2000. That system played every day from sunrise to sunset from the second week of August until the last icewine grapes were harvested in early December. From the attitude of Mr. Bator, we conclude that if the noise is a normal farm practice for scaring birds, annoying his neighbours would be a happy side effect.
The parties cannot even agree as to the year when the stereo was first used for bird control. The Applicants testified that the system was first used in 2000. Ms. Romanoff and Mr. Bator testified that they began to use the system late in 1998 and throughout 1999 and 2000.
As noted previously, it is not necessary for us to make findings of credibility among the parties in order to decide this case. However, it is apparent to the Board that our decision is unlikely to end the ill feeling among the parties.
LEVEL OF NOISE
Fifteen witnesses were called on behalf of the Applicants. They included the five Applicants, the local by-law enforcement Officer, two individuals who were Municipal Aldermen in the fall of 2000, a police officer who investigated noise complaints, the local building inspector, and two farmers who grow significant grape acreages. The relevant facts which emerged from this evidence were:
The stereo system commenced operation in early August 2000 and operated every day from sunrise to sunset until the last ice wine grapes were harvested in early December.
Four large speakers were used to project the sound. The speakers were moved on one occasion as an early maturing variety of grape was harvested and a later maturing variety needed protection. The speakers faced in a southerly direction because that was the point from which the birds would arrive. According to measurements taken by Mr. Fraser based on the aerial photograph which is exhibit 1, the Hendriks house is about 685 feet from the closest speaker, while the Martin house is about 625 feet from the nearest speaker. The speakers are set on poles which are slightly higher than the top of the grape plants. There is no significant vegetation which might muffle the sound before it reaches the Hendriks and Martin properties.
The radio station played primarily rock music.
The Martins and Hendriks became extremely frustrated with the music. The noise forced them indoors during good whether and they could not leave their windows open if they wanted to escape the noise.
The Martins ended up seeking psychological treatment during the month of October in order to cope with the stress. Mr. Hendriks stated that the noise "got on my nerves" to the point where he had to seek medical attention and was prescribed with anti-depressants.
The volume of the noise at the Hendriks and Martin homes was described by various witnesses as approximately equal to someone speaking in a loud voice close to your face. Constable Vuyk of the Niagara Regional Police stated that he had to raise his voice in order to speak with the Martins and the Hendriks over the noise of the speakers.
The two experienced grape farmers who testified were unaware of any other grape growers in the Niagara area who utilize loud music as a bird control mechanism. They were also unaware of any other grape grower who utilized continuous noise to control birds. The bird control devices in common use include bird bangers, acoustic devices which make noises designed to frighten birds and which mimic the distress calls of birds, streamers, other visual deterrents and other noise makers. Where permitted, some farmers also shoot some pest birds such as starlings which are not native to the area and which appear to be increasing in numbers. A very effective form of control is the use of nets to cover the grapes. Netting is, however, quite expensive.
The problem with birds will vary from farm to farm depending upon the varieties of grapes which are planted and the habitat located in the locality for birds. The grapes become vulnerable when they begin to turn colour. Varieties such as Concord grapes are rarely attacked. However, varieties such as Baco Noir and Cabernet Franc are extremely vulnerable to birds, especially when surrounded by trees or other vegetation favoured by birds as a roosting area.
The farmers who testified were Mr. Staff and Mr. Lockey. They testified that while one seeks perfect predator control, a farmer also has to recognize that he/she is working in a community and that interests of other community members have to be respected.
EVIDENCE OF MS. ROMANOFF AND MR. BATOR
Ms. Romanoff and Mr. Bator testified that after being victims of vandalism, they purchased the stereo system in the fall of 1998 and they alleged that they have used it ever since. They testified that the system is extremely effective. It has provided better pest control than the cannons. They testified that they work in an area with a large population of birds and they did have significant losses in their grapes before obtaining the stereo system. The noise from the stereo system, obviously, is not offensive to Ms. Romanoff or Mr. Bator. Mr. Bator works at the farm for many hours each day.
THE POSITION OF THE APPLICANTS
All of the Applicants testified that they are members of a rural community in which grapes form a significant part of the economy. They anticipate that they will have to live with noise from bird bangers. The testified that they would not object to the use of bird bangers. Many of the witnesses testified that one quickly becomes acclimatized to the bird bangers.
EVIDENCE OF HUGH FRASER
Mr. Fraser is an Engineer who has been employed by OMAFRA for many years. Approximately 50% of his time is spent dealing with environmental issues, including noise complaints. He is familiar with this situation and is qualified to provide opinion evidence.
Mr. Fraser testified that the best control for birds can be obtained through a combination of techniques. A grower must start the process before the birds begin to eat the grapes. The bird bangers are the most popular form of bird control with approximately 1,000 units in use in Ontario. 400 - 500 accoustical noisemakers are in use. Farmers also use a variety of visual scaring techniques, other noisemaking techniques and shooting to scare birds. Netting placed over grapes provides a high degree of protection although it is expensive with a capital cost of approximately $350.00 per acre per year
Mr. Fraser is unaware of anyone in Ontario who has used loud music or continuous noise. One of the theories behind the use of noise is that it should be intermittent and that birds will get acclimatized to continuous noise. Mr. Fraser theorized that the loud music would be an effective bird deterrent because the songs change and are interspersed with commercials, newscasts etc. Therefore, while the noise is continuous, it changes sufficiently in tone that the birds do not become used to it.
Mr. Fraser stated that bird complaints are increasing. He believes that this is because Ontario growers are moving more of their production to varieties that birds find tasty. There is also a concern that there are more birds in the area, especially starlings. Additionally, the fields tend to be increasing in size and provide more opportunity for the birds.
Mr Fraser and a student are involved in ongoing research regarding bird control.
Noise levels are being measured. A survey conducted last year among a significant group of farmers suggested that the cannons are the most popular bird control method, but they are subject to vandalism with approximately 1/3 of the farmers reporting vandalism to equipment.
FARMING AND FOOD PRODUCTION PROTECTIONACT
The Farming and Food Production Protection Act, ("the Act") provides the statutory framework for this application.
Section 5 of the Act states
Any person directly affected by a disturbance from an agricultural operation may apply to the Board . . . for a determination as to whether the disturbance results from a normal farm practice.
After conducting the hearing, the Board is to dismiss the application if the disturbance comes from a normal farm practice. If the practice is not a normal farm practice, then the Board can order the farmer to cease the practice or to modify the practice.
Noise and vibration from farm operations are included within the meaning of the word "disturbance" as used within the Act. In this case, the noise from the stereo is an alleged disturbance. It would appear that the loud bass notes in the stereo also create some level of vibration.
The other important definition in the Act is "normal farm practice".
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.
Finally, the preamble to the legislation is relevant to this case. The preamble notes that it is desirable to promote agriculture, but it is also in the Provincial interest that agricultural uses should be promoted and protected in a way that "balances the needs of the agricultural community with provincial health, safety and environmental concerns".
APPLICATION OF ACT TO THIS CASE
The initial threshold for the applicants is to prove that they suffer from a disturbance as defined by the Act. We are satisfied that the noise from the stereo was a significant disturbance in 2000. Accordingly, the applicants are affected by a disturbance and are entitled to proceed with this application pursuant to the Act.
We have considered the evidence of the various witnesses. The board recognizes that effective bird control is vital to the production of grapes and other fruit in Ontario. The Board has recognized the use of bird bangers as a normal farm practice in the cases of Bader v. Dionis and Horbal v. Deschatelets. The Board has not previously considered the use of loud music or other continuous sound devices for pest control. The definition of normal farm practice as quoted previously, has two tests. The first test is a comparative one dealing with customs and standards established and followed by similar agricultural operations. The evidence is that while a stereo system may have been used by at least one operation many years ago, it is not currently in use anywhere in southern Ontario except on the farm of the Respondents. The stereo is, therefore, not a normal farm practice based on a comparative test.
The second test is whether this is an innovative technology used in a manner consistent with proper advanced farm management practices. After listening to the evidence, and considering especially the evidence of the other farmers who testified, it is apparent that some degree of loss is going to be sustained while farmers balance the need to control birds with the necessity of avoiding excessive problems with other community members.
The Board is satisfied that the use of the stereo or other continuous noise techniques is not an innovative practice at this point. It would be better described as an experimental practice. It is apparent that the noise level generated by Mr. Bator and Ms. Romanoff through their stereo system, negatively affected the health of their neighbours, even though those neighbours were accustomed to the use of bird bangers and testified that they would willingly accept bird bangers as a bird control technique.
We are not suggesting that continuous noise or stereo systems may never have a place in the arsenal of farmers who are struggling to control predators.
However, people such as Mr. Fraser are going to have to conduct further research and develop techniques which are less intrusive to neighbours before loud music or continuous noise practices will become normal farm practice within the meaning of the Act.
ORDER
For the reasons outlined previously, we conclude that the use of the stereo system to scare birds is not a normal farm practice. We therefore order the Respondents to cease to the practice of using the stereo or any other continuous noise technique for scaring birds. This Order shall affect Mr. Bator and Ms. Romanoff, who operate the business and Ms. Brouwer who is the owner of the property.
We assume that Mr. Bator and Ms. Romanoff will utilize bird bangers or other acoustical devices as part of their bird control techniques in the fall of 2001. Given the history of vandalism which they described, they may also have to consider some sort of surveillance to provide protection for vines and equipment against
Because of the state of the relationship among the parties, we wish to remind them that this Board has, in the past, explicitly approved of bird bangers, but that it is also necessary to properly place the bird bangers. Mr. Fraser testified that they should not be less than 300 ft. from a home. In the event that there is a dispute about the placement of the bird bangers or other approved bird scaring equipment, the Board recommends that the parties consult Mr. Fraser as to the placement of this equipment and we would hope that all parties would accept Mr. Fraser's recommendation in this regard.
August 24, 2001