ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Lucas v Terpstra

2001 ONNFPPB 50

DATE OF DECISION:

2001-10-26

95-02

STATUTE:

Farm Practices Protection Act 1990

HEARING:

BETWEEN: James Lucas, Bernice Lucas, and Erna Lucas -- Applicants

and

Ben Terprstra and 1079059 Ontario Inc. -- Respondents

NORMAL FARM PRACTICES PROTECTION BOARD

IN THE MATTER OF THE Farm Practices Protection Act.

AND IN THE MATTER OF an Application to the Board under section 5 of the Farm Practices Protection Act

BOARD FILE NO.: 095-02

AND BEFORE: ROBERT G. STEPHENS, CHAIR ANN HAAGSMA, MEMBER DARLENE BOWEN, MEMBER

PARTIES: JAMES LUCAS, BERNICE LUCAS AND ERNA LUCAS -Applicant BEN TERPSTRA AND 1079059 ONTARIO Inc. - Respondent

APPEARANCES: DOUGLAS PRATT, for the Applicant GREGORY STEWART, for the Respondent

REASON FOR HEARING

This hearing resulted from a complaint by the Applicants pertaining to odours from two segregated early weaning swine barns owned and operated by the Respondent agricultural operators.

BACKGROUND

The Applicants initiated this Application through a letter dated November 21^st, 1995, forwarded to the former Farm Practices Protection Board. The Application did not proceed to a hearing before the Farm Practices Protection Act was replaced by the Farming and Food Production Protection Act in 1998. At the hearing of a procedural motion in 1999, Ted Oldfield, the Chairman of the Farm Practices Protection Board on consent ruled that the Farm Practices Protection Act which was in force when this Application was commenced would provide the statutory framework for this Application.

Prior to this hearing, there had been five procedural motions, all of which were heard by Ted Oldfield. Except for the motion regarding the relevant legislation discussed above, all the prior procedural motions involved the disclosure of evidence and the determination of the proper parties to this hearing.

SUBJECT OF THIS HEARING

The subject of this hearing is two barns and a manure pit owned by the Respondent and located on the west side of Perth Road 169. The lands are described as Part of Lot 6, Concession 10 and Lot 6, Concession 11 of the former Township of Elma, in the County of Perth. Barn #1 was constructed in the fall of 1994, Barn #2 in the early spring of 1995 and the manure pit in July 1995. The barns are located approximately 500 feet directly east of two residences, one owned by James and Bernice Lucas and one owned by Erna Lucas. The manure pit is located approximately 870 feet from the same residences. The Lucas residences are located on the east side of Perth Road 169.

APPLICANTS

James Lucas and Bernice Lucas, two of the Applicants in this matter, reside in a semi- detached residence situated on part of Lots 4 and 5, Concession 10, in the former Township of Elma, County of Perth. There they operate a dairy farm comprising approximately 100 dairy cows and cattle on a land base of 140 acres. James Lucas is the fifth generation of the family to live on and farm the land.

The Applicant, Erna Lucas, the mother of James Lucas, owns a single detached residence located on a parcel of land approximately one-quarter acre in size described as Part of Lot 5, Concession 10 in the former Township of Elma. Erna Lucas now resides in Atwood and the residence is currently vacant.

RESPONDENT

The Respondent, Ben Terpstra, is one of the owners of the Respondent 1079059 Ontario Inc. The Respondent has developed a very large farming enterprise, the largest portions of which are swine production and cash crop farming. The Respondent owns and operates approximately 23 swine barns on a land base of 2500 to 3000 acres located in Huron and Perth Counties. Three of the barns are located in the Township of Elma, two of which are the subject barns.

Ben Terpstra has been farming for more than 40 years and has been involved in the production of swine for the past 20 years.

FARM PRACTICES PROTECTION ACT

The Farm Practices Protection Act (the “Act”) provides the statutory framework for this application. The sections of the Act which are relevant to this application are:

Section 1

Section 1 of the Act defines “normal farm practice” as “a practice that is conducted in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances and includes the use of innovative technology used with advanced management practices.”

Section 2 (1) provides that:

A person who carries on an agricultural operation and who, in respect of the agricultural operation does not violate:

1. Any land use control law;
2. The Environmental Protection Act;
3. The Pesticides Act;
4. The Health Protection and Promotion Act, 1983; or
5. The Water Resources Act;

is not liable in nuisance to any person for any odour, noise or dust resulting from the agricultural operation as a result of a normal farm practice and shall not be prevented by injunction or other order of a court from carrying on the agricultural operation because it causes or creates an odour, a noise, or dust.

Section 5(1)

Section 5(1) provides that, “Where a person is aggrieved by any odour, noise or dust resulting from an agricultural operation, the person may apply in writing to the Board for a determination as to whether the odour, noise or dust results from a normal farm practice.”

OPERATION OF THE RESPONDENT

Each of the two subject barns located in the Township of Elma consist of 4 sealed rooms used to house nursery pigs which enter the barn at the age of two weeks and leave at the age of 8 weeks when the pigs weigh 55 to 60 lbs. Each of the sealed rooms has a capacity to hold 500 weaner pigs. The barns are referred to as segregated early weaning barns.

The building permits issued by the Township of Elma indicate that each barn has outside dimensions of 52 feet wide and 160 feet long. The pigs are housed on plastic slats beneath which is a holding area where manure accumulates. Each of the manure holding areas has a depth of 1 foot, 11 1/4 inches and a width of 9 feet for the full length of the rooms which is approximately 72 feet. There are two manure holding areas in each barn.

The manure from each of the manure holding areas is retained inside the barn for a period of between 6 and 8 weeks. Plugs located in each manure holding area when pulled, allow the manure to drain by gravity to an uncovered liquid manure tank located outside the barn. At the same time the production cell is washed down and cleaned. The production cycles are staggered so that only one of the 4 production cells in each barn is likely to be empty at a time.

Each barn has a capacity of 2000 pigs. Since the pigs normally remain in the barn for 6 to 8 weeks, 6 cycles of 2000 pigs or 12, 000 pigs would be housed in each barn each year.

POSITION OF THE PARTIES

APPLICANTS:

1. Mr. Pratt, on behalf of the applicants, submitted that the farm operation of the Respondent on the subject lands was not a normal farm practice and that the obtaining of building permits for the construction of two barns did not render normal what was otherwise not a normal farm practice.

2. That each of the two barns in question constitutes a storage facility for manure and accordingly Section 5 of the Elma Township By-Law 8-88 should have been enforced to require a Certificate of Compliance before the building permits were granted.

3. That the normal farm practice provincially and locally in 1994-95 was to follow the minimum distance separation guidelines contained in the Agricultural Code of Practice and that Elma Township in granting building permits for the two barns in question in the fall of 1994 and the spring of 1995 without the requirement of a Certificate of Compliance contributed to the creation of a farm practice which could not be considered normal.

4. OMAFRA staff contributed to the creation of farm practices that could not be considered normal by failing to provide the Township of Elma with accurate and reliable minimum distance separation calculations pursuant to the Agricultural Code Practice for barn #1, and minimum distance separation II (MDS II) calculations for barn #2 and the manure pit at a time when the Township of Elma Chief Building Official was relying on such calculations to provide recommendations upon which by-law enforcement would be based and building permits issued; and

5. That the Respondent contributed to the creation and operation of farm practices which would not be considered normal by using and by allowing to be used misleading and false information on the applications for building permits and in requests for minimum distance separation calculations at a time when the Respondent knew that significant odour problems could result.

RESPONDENT

On behalf of the respondent, Mr Gregory submitted that:

3. The barns in question were modern, clean facilities that were operated in a manner consistent with normal farm practice.

4. The barns in question constituted a “collection facility” for manure and not a “manure pit” within the meaning of Elma Township By-Law 8-88 and accordingly Section 5 of By-Law 8-88 should not apply to require Certificates of Compliance as a condition precedent to the issuing of building permits for the two barns.

5. At the time in question there was no consistent policy provincially, regionally or locally regarding the imposition of minimum distance separation guidelines or the requirement for Certificates of Compliance. The provincial guidelines contained in the Agricultural Code of Practice were voluntary and if Elma Township had wanted to impose minimum distance separation guidelines they would have done so.

6. The Respondent satisfied all municipal requirements by obtaining building permits. The operative municipal By-Law for the granting of building permits for the barns and the siting of the barns on the property was by-law 78-35 and since the barns were located in conformity by By-law 78-35 the barns are legally existing. A Certificate of Compliance was obtained for the manure pit and a building permit was issued pursuant to By-Law 8-88.

RELEVANT LEGISLATION GUIDELINES AND POLICY

PROVINCIAL GUIDELINES AND POLICIES

The Government of Ontario has supported the concept of maintaining appropriate separation distances between livestock uses and non-farm uses since the early 1970's in an effort to minimize the possibility of environmental pollution from livestock farms and to avoid land use conflicts. The Provincial priority was to create a buffer zone between differing land uses.

The Agricultural Code of Practice

The Agricultural Code of Practice (January 1976), was a response to increasing public concern regarding pollution issues relating to livestock manure management. It was recognized that “objectionable odours can be reduced if livestock buildings and rural residences are constructed at reasonable distances from each other” and that “the intensity of odour from livestock buildings or manure storage relates closely to separation distance”. “The purpose of the separation distance is to reduce potential environmental conflicts between non-compatible uses”. The purposes of the code was to assist livestock farmers in reducing the potential for their operations to pollute the environment with particular emphasis on odour. The Code incorporated appropriate separation distances for new or expanding livestock operations proposed in proximity to existing non-farm development.

The Code established a Certificate of Compliance program which allowed livestock operations to make application to the Ministries of Environment and Agriculture and Food for a review of their operations according to the guidelines of the code. The review involved an assessment of operations according to a variety of manure management factors including a Certificate of Compliance where a new or expanding operation was proposed.

It was recommended that the Agricultural Code of Practice should guide the development of local official plan policies regarding rural land use issues and that MDS II formulae should be incorporated within zoning by-laws.

Food Land Guidelines

The “Food Land Guidelines” was a policy statement of the Government of Ontario on Planning for Agriculture issued in 1978. The guidelines were intended to give direction to municipal councils, counties or regions in planning for agriculture in all areas that had the potential to impact upon rural areas.

The Food Land Guidelines supported the Agricultural Code of Practice and required that all local official plans for agricultural areas refer to the Code in creating policies relating to the location of farm and non-arm uses.

Section A-9 reads in part:

“The Agricultural Code of Practice is a set of guidelines which applies to management of livestock operations and to the rational use of land in relation to the livestock industry.”

It contains guidelines on the storage and spreading of animal manure to minimize pollution of air, ground water or surface streams. The Code provides a method using the minimum distance separation (MDS) formula to calculate an appropriate distance between an existing or proposed livestock building and another use on an adjacent lot to reduce the likelihood of nuisance complaints.

Section 4A.10 states:

“In any new or amended official plan, reference must be made to the formula. The relevant policies in the official plan should indicate that the formula will be applied reciprocally, both for new livestock operations and new residences.”

Minimum Distance Separation (MDS II)

The Agricultural Code of Practice was replaced by the minimum distance separation MDS I AND MDS II formulae in 1995. MDS II provides recommended minimum distance separation requirements for new or expanding livestock facilities proposed in the vicinity of proposed or existing, non-farm development. The MDS II Implementation Guidelines indicate that local municipalities can apply the MDS II formulae through appropriate reference within official plans and inclusion within zoning by-laws.

Comprehensive Set Of Policy Statements

In May 1994 the Government of Ontario issued the Comprehensive Set of Policy Statements which replaced all of the individual policy statements under Section 3 of the Planning Act, R.S.O. 1990.

The Policy Statements made compliance with minimum distance separation formulae mandatory. “New development and land uses, and new or expanding livestock facilities will comply with the minimum distance separation formulae.”

MUNICIPAL LEGISLATION AND POLICIES

The lands which are the subject of this hearing are situated in the Township of Elma. The Township of Elma has now been amalgamated with the Township of Wallace, the Town of Listowel and the Village of Atwood to form the Town of North Perth.

Official Plan - Elma Township

The Elma Township official plan was adopted on the 14^th day of December, 1992 and approved by the Ontario Municipal Board on December 2^nd, 1994. The policy regarding minimum distance separation was largely in conformity with the provincial priorities at that time as reflected in the Food Land Guidelines and the Agricultural Code of Practice.

The policy of the official plan regarding minimum distance separation for livestock uses was contained in Section 5.1.4.13 as follows:

Separation Distances Between Farms and Non-Farms Uses

In order to minimize incompatibilities between farm uses and non-farm uses it is a policy of this plan that acceptable separation distances be maintained between farm and non-farm uses.

For the purposes of this plan, acceptable separation distances shall be as follows:

a. Where new agricultural buildings or expansions to structures used for the raising of livestock and/or poultry are being constructed on farm properties that were previously vacant of livestock and/or poultry buildings, such new livestock and/or poultry building shall be located so as to satisfy the minimum distance separation provisions of the Agricultural Code of Practice. Manure containment and/or storage structures shall be considered as structures for the raising of livestock and/or poultry.

b. Where livestock and/or poultry are being established in an existing building that was constructed for the purpose of housing livestock and/or poultry, the use of such buildings for the housing of livestock and/or poultry shall be permitted by this plan. The policies of clause (a) above shall apply in respect to any subsequent enlargements or expansions of these livestock and/or poultry operations.

c. All new farm dwellings shall be required to satisfy the minimum distance separation provisions of the Agricultural Code of Practice.

d. All new non-farm uses, including non-farm dwellings shall be required to satisfy the minimum distance separation provisions in the Agricultural Code of Practice.

Section 3.5

Section 3.5 provides that one of the purposes of the Elma Official Plan is “to provide guidance for council, the Planning Advisory Committee, the Committee of Adjustment, the County of Perth Land Division Committee, and Municipal Administrators in all decisions regarding planning matters such as the Township’s zoning by-laws, Plans of subdivision, the division of land, individual development proposals and minor variances”.

Elma Township - By-Laws

The building permits in question were issued in November 1994, April 1995 and July 1995. The relevant regulatory by-laws in effect at that time are:

Zoning by-law 78-35 (as amended)

Zoning by-law 78-35 was approved by the Ontario Municipal Board on October 4^th, 1982. The zoning by-law zones the property which is the subject of this hearing AI Agricultural Zone I on Schedule A thereto.

Section 6.1.3 (h) of the by-law was entitled “Supplementary Yard Regulations” and contained yard requirements which applied equally to the livestock buildings and structures and manure storage facilities. The minimum required setback was 40m. Setback refers to the distance between the building and the property boundaries. There was no MDS requirements in the by-law. By-law 78-35 remained in effect until replaced by Elma Township Zoning By-law 87-38 in October 1997. The latter by-law did deal with the matter of separation distances and the application of MDS II within the Agricultural A1 zone.

By-Law 8-88

This by-law was in effect at the time of the agricultural operators’ applications for building permits for the two barns and manure pit in question. By-Law 8-88 was passed by the Corporation of the Township of Elma on March 14^th, 1988. It is a by-law to regulate the erection and use of manure pits in the Township of Elma. Details contained in the by-law provide:

“Whereas liquid manure is a potential cause of water and air pollution;

And whereas provision is made for councils to pass by-laws concerning liquid manure pits”.

Section 4 provides:

“Storage capacity of all manure pits must be sufficient to carry seven (7) months’ of manure in total”

Section 5 provides:

“All building permit applications for manure pits must have a Certificate of Approval from the Ministry of Environment before a building permit will be issued”.

NOTE

It was agreed by the parties that the reference to “Certificate of Approval” in Section 5 is an error in wording and that the intention of the township was to require the applicants to obtain a Certificate of Compliance under the Agricultural Code of Practice. Certificates of Compliance are jointly issued by the Ministry of Environment with input from the Ontario Ministry of Agriculture Food and Rural Affairs.

Certificates of Compliance evaluated under the Agricultural Code of Practice were not to be issued for livestock facilities which do not meet the recommended MDS II formula under the Code.

REASONS FOR DECISION

THE ISSUES

1. Whether the Applicants are aggrieved.

2. Whether the Respondent farm operation is a normal farm practice.

1. WHETHER THE APPLICANTS ARE AGGRIEVED.

Section 5 of the Farm Practices Protection Act (FPPA) permits a person who is “aggrieved” by any odour, noise or dust resulting from an agricultural operation to apply to the Farm Practices Protection Board, for a determination as to whether the odour, noise or dust result from a normal farm practice. Accordingly, the initial issue for determination by the Board is whether the Applicants are aggrieved by odour from the Respondent’s weaner pig operation

James Lucas, Carl St Pierre, Dr. Wayne Caldwell and Don Hilborn gave evidence relative to this issue.

The evidence of James Lucas was that the odour is very strong and while it varies in intensity the odour is present most of the time. He testified that the odour has not improved since the business commenced in the spring of 1995. He likened the odour to “rotting flesh” and “like someone choking you with a pillow”, and “putrid”. He stated that as a result of the odour he and his family have been “prisoners in their own home”, deprived of the use and enjoyment of their home and yard. The odour “sticks to the vegetables and to the automobile”. They have been unable to plan outdoor functions or activities such as barbequing or sitting outside when the wind may shift at any moment and create a wave of odour over their property. They cannot hang clothes on the line to dry and the windows must be kept closed.

Exhibit 12 is a daily journal which was maintained by Mr Lucas for 5 years commencing in March 1997. In the journal he recorded the presence or absence of pig manure odour at the location of his home. The journal indicates that over that 5 year period, on average the pig manure odour was present 18 days per month and on 36 occasions the odour lasted 8 days or more in succession.

Mr. Lucas testified that the odour has caused health problems for both he and his daughter. His daughter has been hospitalized on two occasions for eight days suffering from upper respiratory problems, which Mr. Lucas believes is a direct result of the odour. Mr. Lucas has, on occasion, been unable to carry on the farming operation due to illness which he attributes to the odour. On other occasions, the odour was so severe he had to remain in the house and leave field work undone.

Carl St Pierre is a Registered Professional Engineer and a Senior Planner and Partner in Dillon Consulting Limited. He was qualified as an expert in measuring odourous magnitude and assessing odour impact. He was retained by the Applicants to conduct an odour sampling/analysis study at the Respondent’s barns to determine the magnitude of odours released to the atmosphere from the two weaner pig barns owned by the Respondent. (Exhibit 21) He attended at the Respondent’s premises on March 1, 2000 to conduct the assessment. The conclusion of the assessment was that “the odour impact at the Lucas farm house under both normal and upset conditions at the swine conference buildings results from odour impact that exceeds one odour unit, which is typically used by the Ministry of Environment for odour compliance, by 4500% and 8700% respectively based upon a one hour averaging period”. The odour assessment report concludes further that, “these odour levels were hedonically rated at very unpleasant and in our opinion would cause discomfort to persons and cause loss of enjoyment of normal use of property at the Lucas farm house.”

The assessment also concluded that if the minimum separation distance was increased from 164 to 362 metres by moving the barns in on easterly direction, the odour levels would decrease from 45 odour units to 10 odour units at the “Lucas” house under “normal” conditions and from 87 odour units to 21 odour units “under upset” conditions.

During cross-examination by Mr. Stewart, Mr. St. Pierre conceded that the assessment would be more reliable if the odour measurements had been conducted at both barns rather than just one barn and if the tests had been conducted over several days rather than just one day. He agreed that the results are affected by wind direction, type of manure, humidity, and temperature and that those variables could increase or decrease the odour measurements and odour impact. He admitted that he was not experienced using this model of odour measurement for livestock.

Three occurrence reports of the Ministry of Environment and Energy during August, 1995 confirm complaints of “odour” from the new pig barns. The odour was variously described as, “sickening”, and “unbearable”. A letter from Dan Cromp, a Provincial Officer with the Ministry of Environment and Energy in a letter written to Erna Lucas in September, 1995, states: “ I have visited your site and confirmed that the odour from the farm operation at Lot 6, Concession 10, can be severe at times”.

Dr. Wayne Caldwell, who was qualified as an expert in land use planning visited the site on eleven occasions between May 1996 and November 1999 while considering planning issues on behalf of the Respondent. He tabulated his observations regarding the intensity of the odour (see Exhibit 18). Dr. Caldwell was forthright in stating that he has no particular expertise in measuring odour levels and that his evidence in this regard should be treated as that of any other person attending the site. His tabulated observations indicate that no odour was detectable during seven of his visits and that a mild odour was discernable on four occasions. He did not describe the odour as persistent or strong on any of the eleven visits.

Don Hilborn is a By-Product Management Specialist with O.M.A.F.R.A. and was qualified as an expert. He attended at the Respondent barns, at the request of the Respondent on one occasion in October 1996. He observed there was little evidence of odour.

The Board finds that all of the witnesses accurately described their impressions of the odour. It is difficult to reconcile the evidence of Dr. Caldwell and Don Hilborn with the evidence called on behalf of the Applicants, although we note that the prevailing winds blow from the property of the Respondent to the property of the Applicants. In analysing the evidence we conclude that some witnesses react more strongly to odour than others.

We are satisfied that the Applicants’ enjoyment of their property has been substantially diminished by the operation of the Respondent swine facility and that the degree, persistence and intensity of the disturbance created an intolerable situation for the Applicants. The only expert witness to give evidence of odour intensity was Mr. St Pierre and while he admitted that there were certain shortcomings in the testing, he defended the results. The results were not challenged by other technical evidence. The test results from the odour measurements show that the magnitude of odour was not borderline but rather greatly in excess of levels considered tolerable by the Ministry of Environment.

The reasonableness of the Applicants’ complaints is enhanced by the fact that being farmers themselves they were not unusually sensitive and are accustomed to tolerating the usual farm odours from mixed farms. We find that the Applicants are subjected to a “disturbance” as defined by the legislation.

It is our opinion that nothing turns upon the quantity of the odour. We have concluded that the odour emanating from the Respondent facility is a disturbance. This Board previously held that disturbance is a threshold test within the Act. Once the threshold is passed, the degree and quantity of the disturbance is not relevant. We recognize that the position of the Board outlined in this paragraph would be subject to the Court of Appeal decision in Pyke et al v. Tri Gro Enterprises Ltd et al ( unreported O.AC. Docket C32764 August 3, 01). However, the tests outlined in that case would not change the issues involved here.

It is not necessary for the Board to make a determination as to whether the odour is actually hazardous to human health. We specifically refrain from making such a finding because it is unnecessary. The Applicants are entitled to have the practices of the Respondent reviewed by the Board.

Having decided that the Applicants are aggrieved we must now consider whether the odours are the result of normal farm practices as defined by the Farm Practices Protection Act. Subject to principles outlined by the Court of Appeal in Pyke v. Tri Gro Enterprises Ltd (Supra), normal farm practices are protected and may continue even if they cause the Applicants to be aggrieved. If the practices are not normal farm practices, then this Board has the authority to make orders which will bring the farm into compliance with normal farm practices or to order the owner of the agricultural operation to cease the practice causing the odour.

2. WHETHER THE RESPONDENT FARM OPERATION IS A NORMAL FARM PRACTICE.

In determining if the Respondent farm operation is a normal farm practice, we will consider the following issues.

i) Whether it was normal practice for municipalities to require that all new farm dwellings be required to satisfy the minimum distance separation provisions of the Agricultural Code of Practices and MDS II.

ii) Whether it was normal practice for Elma Township to require that all new farm dwellings be required to satisfy the minimum distance separation provisions of the Agricultural Code of Practice and MDS II.

iii) Whether Elma Township By-Law 8-88 should have been imposed to require Certificates of Compliance for the location of the Respondent barns.

iv) Whether Elma Township by-law 8-88 was enforceable for the purpose of imposing minimum distance separation guidelines of the Agricultural Code of Practice and MDS II.

v) Whether the minimum distance separation calculations for the barns and manure pit were based on appropriate input data.

i) WHETHER IT WAS NORMAL PRACTICE FOR MUNICIPALITIES TO REQUIRE THAT ALL NEW FARM DWELLINGS BE REQUIRED TO SATISFY THE MINIMUM DISTANCE SEPARATION PROVISIONS OF THE AGRICULTURAL CODE OF PRACTICE AND MDS II.

Dr. Caldwell testified that the purpose of the Agricultural Code of Practice was to assist farmers in reducing the potential for their livestock operations to pollute. The province anticipated that minimum distance separation provisions would be instituted in Ontario by local municipalities incorporating the formulas in local by-laws and official plans. The province did not mandate it. By leaving the decision to the local municipality the government, he said, acknowledged that differences would exist throughout the province. It was permissible on a provincial level for a municipality to make a conscious decision not to implement the MDS II criteria.

Dr. Caldwell’s evidence was that on a regional basis there are several municipalities in the province that had not at the relevant time implemented MDS II formulae in their by-laws. He concluded that on a regional level there was no clear direction. The inclusion of MDS II in by-laws and official plans has increased but there were examples where it was not in place. He gave as examples Oxford County which had no such requirements until 1996 and Bruce County which adapted MDS II in 1997. He stated that all 16 Townships in Huron County had passed local zoning by-laws which required Certificates of Compliance. In Perth Country all the townships except Elma and Wallace had incorporated MDS II in local by-laws at the time of the applications for building permits for the Respondent barns.

Sam Bradshaw, who was qualified as an expert in manure handling systems testified that at the relevant time there were many municipalities in Ontario which had not implemented minimum distance separation formulae in their by-laws. He has visited numerous swine barns on a regular basis for many years in the course of his employment and he confirmed the existence of other swine barns similar to those of the Respondent which were not located according to minimum distance separation guidelines.

It is our opinion that in determining the normal practice of municipalities in respect to implementing the MDS II provisions of the Agricultural Code of Practice into by-laws, it would be inappropriate to look at the province as a whole. The circumstances existing in the particular area in question must be taken into consideration. This means that the same practice may qualify as a normal farm practice in one situation, but not in another where the circumstances are different. What may be a normal farm practice in an isolated area may not be a normal farm practice in an area of residences. The pressure to establish proper manure management policies would have been the greatest in those areas where intensive livestock operations were locating. We would expect the impetus to establish proper manure management policies to be greater in South Western Ontario, for example, than in Northern Ontario.

Two of the counties which were experiencing an influx of intensive livestock operations at the relevant time were Huron and Perth. Of the 27 townships in Huron and Perth counties, 25 had implemented MDS II in local zoning by-laws. Although Elma Township had not passed a local zoning by-law to incorporate MDS II , the Elma Township official plan did contain such provisions. As well, for reasons stated hereunder it is clear that Elma Township was using the “manure pit” By-law 8-88 to impose the MDS II provisions of the Agricultural Code of Practice in the absence of a zoning by-law better suited to their purpose.

Conclusion

It is our conclusion that in the fall of 1994, intensive livestock buildings in Huron and Perth Counties should have been located in accordance with minimum distance separation criteria regardless of the policies of any particular township in that regard. In our opinion, the practices and policies of 25 of the 27 Townships in Huron and Perth Counties regarding the implementation of minimum distance separation criteria in their local by-laws is the best evidence of the normal practice of those municipalities experiencing significant manure management pressures. Except for Wallace and Elma Townships there was virtual unanimity in imposing MDS II formulae at that time in that region in local by-laws. The policy in Elma Township was consistent in that they were using the “manure pit” by-law 8-88 rather than a zoning by-law to impose MDS II.

ii) WHETHER IT WAS NORMAL PRACTICE FOR ELMA TOWNSHIP TO REQUIRE THAT ALL NEW FARM DWELLINGS BE REQUIRED TO SATISFY THE MINIMUM DISTANCE SEPARATION PROVISIONS OF THE AGRICULTURAL CODE OF PRACTICE AND MDS II.

As previously stated, it is our opinion that the normal policy in Elma Township at the relevant time was to require compliance with the minimum distance separation guidelines of the Agricultural Code of Practice and MDS II.

Elma Township zoning By-law 78-35 (as amended) which was in force at the relevant time did not require minimum separation distance compliance. Section 6.1.3 (h) did require a set back of 40 m from each boundary. Livestock buildings and structures and manure storage buildings are treated equally under the by-law in terms of the required setback.

Zoning By-law 78-35, as amended, was replaced on October 27, 1997 with zoning By-law 97-38, as amended. By-law 97-38, as amended, dealt with the matter of Minimum Distance Separation and required compliance with MDS II within the Agricultural A1 zone.

At the relative time in the fall of 1994 and the spring of 1995 the only township by-law which could have been used by Elma Township to enforce the minimum separation distance guidelines under the Agricultural Code of Practice was the “manure pit” by-law 8-88. Dr. Caldwell testified that in his opinion the Township of Elma Chief Building Official did not think By-law 8-88 applied to the placement of the subject barns. We are of the opinion that the evidence does not support that position.

No employee of the Township of Elma was called to testify at this hearing. That is unfortunate. The evidence of those involved in the process would have been helpful. However, the documentary evidence leads to the conclusion that the Chief Building Official thought that the minimum distance separation guidelines of the Agricultural Code of Practice were to be adhered to in locating the subject barns.

When the Respondent applied for a building permit for barn #1 in August of 1994, the Chief Building Official communicated with O.M.A.F.R.A. officials concerning the obtaining of Certificate of Compliance and calculations for minimum distance separations according to the Agricultural Code of Practice. If the township position was that Section 5 of By-law 8-88 did not apply there would have been no point in conducting the calculations. The evidence shows that between September 7, 1994 and November 1, 1994 the Chief Building Official for Elma Township forwarded site plans to O.M.A.F.R.A. officials on 3 occasions each of which resulted in MDS calculations. The building permit for barn #1 was issued on Nov 2,1994 and contained the following condition. “Require verbal approval from Jim Weeden OMAF prior to construction”. The next day the Chief Building Official and Jim Weeden met at the property and calculated the required setbacks. There is no indication that Jim Weeden ever gave the approval requested. The only conclusion one could draw is that Jim Weeden was at the premises to complete the calculations necessary to satisfy the condition contained in the building permit. Although the exact meaning of the condition in the building permit is unclear, in light of previous communications between the parties, the condition must have related to the separation distance for barn # 1 being in compliance with the Agricultural Code of Practice.

Prior to issuing a building permit for barn #2 the Chief Building Official for Elma Township requested input from O.M.A.F.R.A. (Jim Weeden) as to the MDS II. The request specifically asked the question, “ how far back should barn be built”? This request would only make sense if the township position was that By-law 8-88 was applicable. The building permit for barn #2 was issued in April, 1995, and contained conditions including the following condition.

“Shall maintain for the following setbacks as to the Agricultural Code of Practice”.

We conclude that the Chief Building Official was attempting to use by-law 8-88 to impose the minimum distance separation provisions of the Agricultural Code of Practice on the location of the barns. There is no other obvious way of explaining why the Chief Building Official made several requests for MDS calculations from O.M.A.F.R.A. and why the conditions indicating the same were included in the building permits for barns #1 and #2. Further confirmation that the township viewed By-law 8-88 as an appropriate means of imposing MDS II guidelines was provided when the township entertained an application for relief from the provisions of By-law 8-88 by another farmer during this period of time. The relief sought involved the construction of an ‘under building” manure storage 825 feet from a house owned by the spouse of the owner. We agree with the conclusion of Ms. Rosser, a planning consultant retained by the Applicants, that “by bringing this matter to council, it is apparent that the township Building Inspector viewed By-law 8-88 as applicable to manure storage which is provided within a barn and that MDS II was applicable through the by-law. It is a parallel situation to that involving barns #1 and #2 in which the Building Inspector did not apply the requirements of By-law 8-88 for a Certificate of Compliance and implicitly, compliance with MDS II”.

During the period from August, 1995, until By-law 97-38 was passed in October 1997, the township issued 3 building permits for early weaning barns similar to those of the Respondent. Each of these permits required compliance with MDS II and Certificates of Compliance were required in each case. The first of those permits was issued on August 9, 1995, prior to the first odour complaints received by the Ministry of Environment in respect to the Respondent barns. On 3 other occasions during that period the township entertained applications for variances to By-law 8-88, in circumstances which made it clear that the township was using by-law 8-88 as a means of controlling odour through minimum distance separation from neighbouring residencies.

Conclusion

We conclude that the Township of Elma saw By-law 8-88 as a suitable vehicle for imposing the minimum distance separation provisions of the Agricultural Code of Practice and later MDS II formulae in the township in the absence of By-law 97-38 which did contain MDS II provisions but which was not passed until October 1997.

iii) WHETHER ELMA TOWNSHIP BY-LAW 8-88 SHOULD HAVE BEEN IMPOSED TO REQUIRE CERTIFICATES OF COMPLIANCE FOR THE LOCATION OF THE RESPONDENT BARNS.

Dr. Wayne Caldwell, Barbara Rosser and Don Hilborn gave evidence relative to this issue.

Dr. Wayne Caldwell

It was the opinion of Dr. Caldwell that Elma Township By-law 8-88 did not apply to the barns in question because the barns constituted a “manure collection facility” not a “manure storage facility” or “manure pit” as anticipated by Section 5 of By-law 8-88. The township, he stated, was correct in issuing building permits for each barn without requiring a Certificate of Compliance.

Dr. Caldwell testified that By-law 8-88 was designed to apply to manure stored in manure pits and in his opinion manure retained inside the barn did not constitute a “manure pit”, within the meaning of the by-law. Dr. Caldwell distinguished between liquid manure collected and retained inside the barn and liquid manure stored outside the barn in a “manure pit”. The former is a “manure collection facility” and the latter is a “manure storage facility”. It is his opinion that it is only a “manure storage facility” or “manure pit” which is caught by the provisions of Section 5 of By-law 8-88.

He noted that typically manure collection tanks in barns are shallow and are contained in small areas of the barn, whereas a “manure storage facility” is characterized by a large deep tank outside the barn. Typically the manure collected in the barn is retained in the barn for shorter periods of duration than manure stored in a “manure pit”. These differences, he noted, are consistent with the subject barns where manure is only stored in the barn for 6-8 weeks in shallow tanks contained in small areas of the barns.

Dr. Caldwell suggested that if the township had intended the manure collected and retained in the barn to be considered a “manure pit” for the purposes of By-law 8-88 they would have included the word “barn” in the By-law. In support of his opinion Dr. Caldwell referred to the Agricultural Code of Practice and MDS II guidelines which distinguish between manure collection and manure storage. It was his opinion that the two are treated differently for MDS II and Certificate of Compliance purposes.

Dr. Caldwell agreed that if all of the manure produced by the livestock operation in one year was retained in the barn and not transferred to a “manure pit” the barn would be considered both a collection and a storage facility and By-law 8-88 would apply. That would be the case where the total manure storage capacity required by Section 4 of by-law 8-88 was contained in the barn.

In summary it was his opinion that the township properly interpreted Section 5 of By-law 8-88 by not requiring Certificates of Compliance as a condition of approval for the building permits for the two barns and further that the township would have been unable to enforce such a requirement if the farm operator refused to comply with such a condition.

Barbara Rosser

Barbara Rosser’s opinion was that By-law 8-88 did apply because the barn constituted a “manure storage facility” or “manure pit” regulated by Section 5 and the Township erred in not making the issuance of building permits for the barns contingent upon the Respondents obtaining Certificates of Compliance.

Ms. Rosser further stated that if Section 5 of the By-law 8-88 of Elma Township had been enforced on the barns in question so as to require their location in accordance with the Agricultural Code of Practice the potential for odour related problems would have been reduced.

Her opinion was that together the pits in these barns hold a substantial amount of manure for a significant period of time. Her evidence was that together, these barns provide approximately 40% of the total manure storage capacity required to accommodate the manure generated by approximately 4000 weaner pigs and the manure stays in the barns for between 6 to 8 weeks at a time before it is emptied to the outdoor manure pit. The inbarn storage was therefore a significant factor in sizing the liquid manure tank. It follows, she stated, that if the inbarn storage did not constitute a “manure pit”, then the liquid manure tank should have been sized proportionally larger in accordance with the requirements of Section 4 of By-law 8-88.

Ms. Rosser stressed that if the barns are not to be considered a component of storage as anticipated by Section 5, then Elma Township incorrectly issued building permits for a livestock barn # 1 in November 1994 and barn # 2 in April 1995 which didn’t have the required minimum storage capacity required by Section 4 of By- law 8-88. That follows from the fact that a building permit for the liquid manure tank for the barns was not issued until June 1995 after both barns had been constructed and barn #1 was in operation.

It was Ms. Rossers’ opinion that Elma Township in dealing with other livestock barns during the same time period had made MDS II compliance a condition of the building permits and in not doing so in the case of the Respondent barns amounted to an inconsistent application of By-law 8-88.

Don Hilborn

Mr. Hilborn testified that since 1976 the Agricultural Code of Practice has recommended the imposition of minimum separation distance guidelines for both barns and manure pits. The Ministry, he stated, did not distinguish between “manure storage” and “manure collection”. It was his opinion that the inbarn manure storage would be considered part of the total manure storage capacity for the purposes MDS II calculations. The barns and the “manure pit” would be treated the same. He stated that there is no definition of what constitutes short-term or long-term storage.

CONSIDERING THE EVIDENCE

A. For the purposes of determining the application of Section 5 of By-law 8-88, can a Distinction be drawn between a “manure collection system” and a “manure storage system”.

We are not satisfied that a distinction can reasonably be drawn between manure stored in tanks within a barn and manure stored in a manure storage tank outside the barn. One of the stated purposes of By-law 8-88 is to control odour from liquid manure and to that end Section 5 requires a Certificate of Compliance as a condition of obtaining the building permit, thereby ensuring that the manure storage facility is located in accordance with the Agricultural Code of Practice. Unless it can be shown that manure stored in the barn emits less odour than manure stored in the manure pit, it makes no sense that the application of Section 5 of the By-law should depend on the location of the manure. No evidence has been presented to the Board to suggest otherwise.

We accept the evidence of Dr. Caldwell that for the purpose of defining the type of manure storage system being utilized a distinction exists between a “manure collection system” and a “manure storage system”. However, the distinction is only useful or meaningful for that limited purpose. A “manure pit” might more accurately describe the type of manure storage which is characterized by a deep pit located outside the barn than a “manure collection system” which is more typical of the Respondent barns whereby manure is collected under slats in the barn. However, after describing the system, the distinction ends. Both systems contain an element of collection and an element of storage. The manure collected in the barn is stored until allowed to feed by gravity to the manure pit. In the same way manure in the pit is collected by gravity from the barn and stored until applied to the land.

Conclusion

We accept the evidence of Don Hilborn a manure management specialist that neither O.M.A.F.R.A. staff nor the Agricultural Code of Practice make a distinction between a “manure collection system” and a “manure storage system” and require the same MDS compliance for a barn containing stored manure as they do for a manure storage tank located outside the barn. We believe it would be inappropriate to apply Section 5 on any basis that did not treat odour emissions from liquid pig manure the same no matter where the manure was stored. If the spirit and intent of section 5 is to control odour pollution , no other interpretation is justified.

B. Did the Township of Elma treat the subject barns as “manure pits” for the purposes of Section 4 of By-law 8-88?

Section 4 of By-law 8-88 requires that the farm operation have total manure storage capacity totalling 70% of the total manure produced by the farm operation in 1 year. Dr. Caldwell, Ms. Rosser, and Sam Bradshaw did not agree on the total manure storage capacity of the 2 Respondent barns. From the evidence it is apparent that approximately 30% of the total manure storage capacity of the Respondent farm operation is contained in the barns and that the manure is stored in the barns for up to 8 weeks at a time before the tanks are emptied. The evidence confirms that in calculating the total manure storage requirements for the Respondent operation as required by Section 4 of the By-law 8-88 the inbarn storage capacity was included. The effect of including the inbarn storage as part of the total storage requirements was to reduce the required size of the manure pit for which the building permit had been issued. By reducing the required size of the manure pit by an amount equal to the capacity of the inbarn storage, the township was effectively treating the barn as a “manure pit” and within the parameters of By-law 8-88. Put simply the Township treated the manure stored in the barn as a “manure pit” for the purposes of section 4 but as a “manure collection area” and not a “manure pit” for the purposes of sec 5 of the same by-law thereby exempting the barns from the requirement of a Certificates of Compliance.

We agree with the evidence of Ms. Rosser that, “if it was to be contended that the within barn storage does not constitute a manure pit, then the liquid manure tank should have been sized proportionally larger in order to comply with the 70% requirement of Section 4”.

It is clear the township was treating the barns as part of the required 70% manure storage because as previously stated at the time building permits were issued for barns #1 and #2 there was no manure storage capacity available other than in the barns.

No doubt the Township took comfort in knowing that a significant portion of the total manure storage requirements were contained within the barns offering the flexibility to issue a building permit for the manure pit after the barns had been constructed and after barn #1 had been operation for two months.

Conclusion

We conclude that the words “manure pit”in Section 4 must be given the same meaning as “manure pit” in Section 5. As Cory J. stated in Thomson v. Canada ( Agriculture), (1992) 1992 CanLII 121 (SCC), 1 S.C.R. 385 at p. 400: “ Unless the contrary is clearly indicated by the context, a word should be given the same interpretation or meaning whenever it appears in an act”: see also P.-A. Cote, The Interpretation of Legislation in Canada, 3^rd ed. (Toronto: Carswell, 2000) at p. 332. The same would hold true for phrases recurring throughout a statute. Since the inbarn manure storage was treated as part of the total manure storage for the purposes of Section 4, it must be considered part of manure storage in Section 5.

Having determined that the barn and the “manure pit” both constituted manure storage, the Township should have given them equal treatment under By-law 8-88. The building permits for barns #1 and #2 and the building permit for the “manure pit” should all have been issued conditionally upon the Agricultural operator obtaining Certificates of Compliance.

Certificates of Compliance evaluated under the Agricultural Code of Practice were not to be issued for livestock facilities which do not meet the recommended Minimum Distance Separation Formula II under the Code. It is therefore implicit in Section 5 of the By-law that manure pits must comply with the minimum distance separation Formula II.

iv) WHETHER BY-LAW 8-88 WAS ENFORCEABLE FOR THE PURPOSE OF IMPOSING THE MINIMUM SEPARATION DISTANCE GUIDELINES, OF THE AGRICULTURAL CODE OF PRACTICE AND MDS II.

By-law 8-88 is stated to be a by-law to regulate the erection and use of manure pits in the Township of Elma. The By-law contains no definition of “manure pit”. The preamble states in part that “liquid manure is a potential cause of water and air pollution”. In an effort to determine the meaning of “manure pit” in the context of the By-law we have used a purposive interpretation by looking at the purpose the by-law is intended to achieve. We are required to do so by Section 12 of the Interpretation Act which provides as follows:

“Every enactment is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best insures the attainment of its objects”.

We are satisfied that the purpose the by-law was intended to achieve was to prevent air and water pollution from liquid manure. The means used to prevent the potential pollution are set out in paragraphs 1 through 5. Central to the pollution control is the requirement to comply with the Ministry of Agriculture and Food Code of Practice as in paragraph 3, and the requirement for Certificates of Compliance as in paragraph 5.

In the absence of a definition of “manure pit” in the by-law the words should be given a meaning that would allow the purpose of the by-law to be realized. In that context, it would make no sense to interpret “manure pit” as being limited to an outdoor manure storage tank if the pollution which the by-law attempts to avoid is equally probable from liquid manure stored in a tank in a barn. Liquid pig manure can create the same odour inside a barn as outside. We therefore conclude that the words “manure pit” should be interpreted broadly to include manure storage areas in a barn.

Reference to the Elma Township Official Plan leads to the same conclusion. Section 3.5 provides that one of the purposes of the Elma Township Official Plan is to provide guidance to municipal administrators in decisions regarding planning matters such as the interpretation of Township zoning by-laws. When interpreting By-law 8-88 to determine if Certificates of Compliance should be required for the Respondent barns, Township Officials would have benefited from a reference to Section 5.1.4.13. (a), of the Official Plan. This section provides that “Where new agricultural buildings or expansions to structures used for the raising of livestock and/or poultry are being constructed on farm properties that were previously vacant of livestock and/or poultry buildings, such new livestock and/or poultry buildings shall be located so as to satisfy the Minimum distance separation provisions of the Agricultural Code of Practice. Manure containment and/or storage structures shall be considered as structures for the raising of livestock and/or poultry”.

Conclusion

We conclude that the Township of Elma could have enforced the provisions of By-law 8-88 as a means of imposing minimum distance separation in the form of Certificates of Compliance. It is our opinion that locating intensive livestock barns in accordance with minimum distance separation criteria is part of normal farm practice. It follows that it is our opinion that the township erred in not having in place legislation which required that compliance. The Township also erred in not imposing Sec 5 of By-Law 8-88 so as to require a Certificate of Compliance for each of the Respondent barns.

v) WHETHER THE MDS II CALCULATIONS FOR THE BARNS WERE BASED ON APPROPRIATE INPUT DATA.

Ms. Rosser and Dr. Caldwell agreed that the location of the Respondent barns are not in compliance with the Agricultural Code of Practice and the MDS II guidelines. The Applicant argued that in determining the minimum distance separations for the barns, improper input data was used in conducting the calculations. A review of the documentary evidence leads us to comment on the following:

1. The existing barn

At the time of construction of barn #1 there was in existence on the property of the agricultural operators an existing barn which had previously been used to house beef heifers but which had not been used during the summer and fall of 1994. The evidence indicates that the first sketch submitted with the building permit for barn #1 in August 1994 indicated that the existing barn was to be “demolished”. The preliminary plans do not show the presence of the existing barn. Subsequent plans indicate that the barn was “to be removed”. The MDS II calculations were carried out on the basis of the existence of 100 beef heifer cattle within the existing barn despite the above noted evidences that the barn was to be removed.

This proposal for barn #1 as an “expansion” of the existing barn and not “new” as was actually to be the case, was not challenged by the township nor O.M.A.F.R.A. This assumption, led to a lower minimum distance separation than otherwise would have been the case. The existing barn was demolished shortly after the building permit for barn #1 was issued.

2. Should barn #1 have been considered “existing” or “new”?

Following demolition of the beef heifer barn, the existence of barn #1 was used as the basis for an expansion involving barn #2 despite the fact that barn #1 had only been in production for approximately one month at that time. To be clear, just as the Respondent had used an existing beef heifer barn as the basis for the “expansion” of barn #1, the Respondent used the newly constructed barn #1 as the basis of an expansion for barn #2.

Ms. Rosser testified that in her experience O.M.A.F.R.A. staff had a long-standing policy that one construction season, “ie” spring to spring or fall to fall, has been required to elapse before livestock operation have been considered “existing” in MDS calculations. On that basis, she concluded that barn #1 should have been in production for another 11 months before barn # 2 could be considered an expansion and the calculations for barn #2 should have treated barn #2 as “new”.

Dr. Caldwell’s opinion was that the question of how much time should elapse before the first barn took on the status of “existing” was a matter of debate. He expressed the opinion that it may not be material that a certain period of time must elapse.

We question how the first barn could be considered “existing” at a time when the manure storage capacity for barn #1 required by Sec.4 of By-law 8-88 did not exist. In other words, the barn was not operational because it lacked the requisite manure capacity. As previously stated, the liquid manure pit which would have put barn #1 in compliance with Section 4 was not constructed until the summer of 1995. We also question having a distinction between “existing” and “new” if “existing” can include a barn for which construction had been completed for only one month. In such cases the distinction is meaningless. We must assume that there was a reason for creating the distinction between “existing “ and “new” and that reason had to do with a desire to treat existing operations that wished to expand differently than new operations. Treating barn #1 as “existing” defeats whatever purpose there was in creating the distinction in the first place. The result of treating barn #2 as an expansion and not “new” led to lower minimum distance separations than would otherwise have been the case.

3. Whether the factor determined to be applicable to the manure system in barn #1 and barn #2 for the MDS 11 calculation was correct.

Table 5 of the Agricultural Code of Practice lists a total of four types of manure systems and gives examples of each. The type of manure system chosen to best describe the system utilized in the Respondent barns was “wet or semi-solid, removed from the barn frequently (stored in the barn 14 days or less)” with examples being:

1. Free stall dairy barn, alleys scraped frequently,
2. Piggeries with deep, narrow gutter systems,
3. Caged laying barn with set droppings.

Another option was described as “wet” and anaerobic” within the barn (stored wet in the barn more than 14 days)”. An example given was “Total Confinement barns for cattle or hogs on slats”.

Mr.Terpstra testified that the flow of manure to the storage tanks in the subject barns was not continuous. The system involved the storage of manure within the barns for a period of 6 to 8 weeks before being allowed to flow to the liquid manure tank by gravity when the plugs are pulled.

Both Dr. Caldwell and Ms. Rosser were of the opinion that the manure in the barns becomes anaerobic in nature in that little or no oxygen is present because no air is pumped into the stored manure. Both Dr. Caldwell and Ms. Rosser are experts in planning issues and are not Agricultural Engineers. However, both visited the barns and would have been in a position to observe the type of system and to note if any compressor or mechanical agitation equipment used to pump oxygen into the system was present. Ms. Rosser testified that she observed no such equipment. Her evidence was not contradicted.

Based on the evidence, we conclude that the manure system factored into the MDS II calculation clearly did not accurately describe the manure system in the Respondent barns. The correct factor would have resulted in an increased MDS II calculation.

4. Capacity of Barns.

The actual capacity of each of the Respondent barns is 2000 weaner pigs. The calculations undertaken by O.M.A.F.R.A. for barn #1 assumes a total capacity of 1000 weaner pigs.

The accurate capacity for each barn at 2000 weaner pigs was shown within Section 13 of the O.M.A.F.R.A. evaluation for a Certificate of Compliance application dated September 12, 1994. Subsequently, the detailed construction drawings prepared by Land Mark Builders, labelled the barn as “PROPOSED NEW 1000 HD WEANER BARN” and O.M.A.F.R.A. staff continued to use the 1000 pig capacity as the basis for subsequent calculations. The reduced capacity figure does not appear to be challenged by O.M.A.F.R.A. staff. Such a challenge might have been expected given that the dimensions of the barn did not change when the stated capacity was reduced by half and the available floor space for each pig was twice the norm. The understatement of housing capacity automatically decreased the minimum distance separation from what it would have otherwise been.

Conclusion

In summary, we conclude that the input data used to conduct the minimum distance separation calculations for the subject barns was inappropriate in the following ways:

1. The use of the existing beef heifer barn as justification for treating barn #1 as an “expansion” was wrong in view of the fact that the demolition of the beef heifer barn was clearly indicated and the barn was not at the time being used.

2. Barn #2 should not have been treated as an “expansion” because barn #1, although being used to house weaner pigs for approximately one month, was not finished in that it did not have manure storage capacity required by Section 4 of By-law 8-88. The calculations for barn #2 should have been on the basis of barn #2 being a “new” operation.

3. The calculations were based upon an incorrect factor for the manure system for both barns #1 and #2.

4. The calculations were incorrectly based on the barn #1 having a capacity of 1000 weaner pigs rather than 2000 weaner pigs.

Each of the above choices had the effect of reducing the minimum distance separation from what would otherwise have been the case. Taken together these factors resulted in the subject barns being located significantly closer to the Applicant dwellings than they would have been had appropriate input factors been used in the calculations.

APPLICATION OF THE ACT

Normal farm practice is defined within Section 1 of the Act as:

“ a practice that is conducted in a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances and includes the use of innovations technology used with advanced management practices”.

Examples of innovative technology used in the Respondent farm operation are the early segregation of pigs from their mother at 10-14 days of age and the housing of those pigs in total confinement on slats using a heated floor system. We conclude that the Respondent farm practices do include “the use of innovative technology used with advanced management practices”.

The farming operation must also satisfy this Board that, in the circumstances, the customs and standard are consistent with proper and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances”... as contained in the statute invite a comparative evaluation. We must review the Respondent farm operation by requiring the Respondent to meet that test.

Ben Terpstra, Dr. Caldwell, Don Hilborn and Sam Bradshaw testified that the Respondents’ barns were clean and modern and were operated in a fashion consistent with other well managed early weaning barns. Sam Bradshaw stated that the cleanliness of the barns and the condition of the livestock was above average. The management practices of the Respondent were not questioned by any witness. We conclude that the swine husbandry practices of the Respondent were consistent with normal farm practice.

These findings relate to the day to day management of the Respondent facilities. However, a normal farm practice involves more than the maintenance of a clean, efficient, modern barn and the proper care of livestock. After all the evidence has been analysed this case comes down to deciding if the Respondent swine barns and manure storage tank located where they are in relation to the Applicants’ residences producing at times excessive odours can be considered a normal farm practice. A comparative analysis must therefore involve a comparison of the manure management practices of the Agricultural operators with the normal practice within the industry.

For reasons stated we have previously concluded that:

1. A comparative analysis should compare the manure management practices and policies in those townships experiencing similar pressure to accommodate large intensive livestock operations and we concluded that the 27 townships in Huron and Perth Counties were best suited for that analysis.

2. The normal practice in 25 of 27 of the Townships in Huron and Perth Counties was to enforce the minimum distance separation guidelines of the Agricultural Code of Practice and MDS II through local by-laws.

3. The normal practice in Elma Township was to enforce the minimum distance separation guidelines of the Agricultural Code of Practice and MDS II by imposing Section 5 of By-Law 8-88.

The Applicants submit that proper and acceptable customs and standards require that the Respondent barns and manure storage tank be located in accordance with the minimum distance separation guidelines of the Agricultural Code of Practice and MDS II. We agree with that submission.

The evidence of Ms. Rosser was that barn #1 is located 514 feet from the house occupied by James and Bernice Lucas and is 462 feet or 47% short of the required MDS II under the Agricultural Code of Practice and is 507 feet or 52% short of the MDS II requirement for the Erna Lucas dwelling.

Barn #2, she stated, is located 577 feet from the Erna Lucas dwelling which is 620 feet or 52% closer that should have been the case according to the provincial guidelines and practices, and barn #2 is located 572 feet or 48% closer to the James and Bernice Lucas dwelling than the guidelines would permit. Her opinion is that the outdoor manure tank is constructed at a distance of 878 feet from the Erna Lucas house and approximately 900 feet from the James and Bernice Lucas farmhouse. Respectively, this is 398 feet and 376 feet short of the MDS II to the nearest neighbour’s dwellings.

Dr. Caldwell agreed that the location of the barns was not in compliance with the guidelines but disagreed with the extent of the non-compliance. His evidence is that barn #1 is located 539 feet from the Erna Lucas house or 154 feet short of the MDS II guidelines of the Agricultural Code of Practice. Barn #2, he stated, is located 439 feet from the Erna Lucas residence rather than 845 feet required by the provincial guidelines and practices. His evidence was that a Certificate of Compliance was issued for the liquid manure tank and it is properly located at 892 feet from the Erna Lucas residence.

The Respondent submits that although the subject barns are not located in accordance with the MDS II requirements under the Agricultural Code of Practice, the location is permissible because building permits were obtained from the Municipality prior to construction and all municipal requirements were met. The position of the Applicant is that the obtaining of building permits for the barns cannot render normal what is otherwise not a normal farm practice.

The mandate of this Board is to determine if a farm practice is a normal farm practice as opposed to determining whether the farm practice has received municipal approval. A farm practice may be consistent with municipal requirements and yet not be a normal farm practice because the practice is not conducted in “a manner consistent with proper and accepted customs and standards as established and followed by similar agricultural operations under similar circumstances....”.

We are satisfied that the Agricultural Code of Practice and MDS II guidelines are an appropriate guide for what constitutes a normal farm practice in terms of manure management in Elma Township. All the witnesses agree that the maintenance of a suitable buffer zone between livestock buildings, manure storage, and neighbouring residences is known to be effective in controlling odour. There was also agreement that the Agricultural Code of Practice and MDS II guidelines set appropriate standards for measuring the “minimum separation distance”. The Code does not specifically define normal farm practice, however it does describe acceptable manure management practice. Normal farm practice would require the farm operator to locate the barns and manure storage tank in accordance with those guidelines.

Mr. Terpstra outlined a number of criteria which were relevant to the selection of the building site. Comparing his original application to the township and his completed construction, and after listening to the evidence of Mr. Terpstra, the Board is satisfied the Respondent built the barns in their location in order that he would not have to replace an existing laneway, hydro service and drilled well. It was a choice motivated by expediency. This choice was made with full knowledge that the chosen location did not meet provincial minimum distance separation guidelines and that a significant risk existed that the applicants would be adversely affected by intensive odour. After being advised by O.M.A.F.R.A. officials that a Certificate of Compliance would not be issued for barn #1 and that he should “move the barns” or “purchase the houses”. Mr. Terpstra submitted several new requests for Minimum Distance calculations in an apparent effort to find a combination that would meet the guidelines. In the end, he was not able to meet the provincial standards, and rather that move the barns to a location that the evidence confirms would have been suitable for his purposes and was available and which would have met provincial standards for minimum distance separation, the barns were located without apparent concern for the impact the potential odour might have on the neighbours. The resulting location of the barns represents a violation of accepted customs of other agricultural operators locating intensive livestock barns in that area.

Obtaining a building permit cannot be an excuse to avoid the usual considerations that farmers should have for their rural neighbours.

The preamble to the Farming and Food Production Protection Act reminds us that in determining normal farm practice we are to maintain a balance between the needs of agriculture and the concerns of the wider communities. It states:

“It is desirable to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fibre and other agricultural or horticultural products.

Agricultural activities may include intensive operations that may cause discomfort and inconveniences to those on adjacent lands.

Because of the pressures exerted on the agricultural community, it is increasingly difficult for agricultural owners and operators to effectively produce food, fibre and other agricultural or horticultural products.

It is in the provincial interest that in agricultural areas, agricultural uses and normal farm practices be promoted and protected in a way that balances the needs of the agricultural community with provincial health and environmental concerns.”

While this preamble is not contained in the Farm Practices Protection Act, the governing legislation for this case, the Board is satisfied that maintaining the balance referred to therein is an important part of the mandate of the Normal Farm Practices Protection Board and is reflective of the intent of the Legislature in enacting the legislation.

Dr. Wayne Caldwell, in addition to being a highly regarded land use planner, is equally well-known for his untiring efforts to encourage the managed integration of intensive livestock operations into the community so as to reduce land use conflicts. Dr. Caldwell has expressed his concern about the consequences of a failure to maintain a balance between the needs of agriculture and the concerns of the wider community. He has stated that, “food production and the environment both require attention.” and that “decreasing the risk associated with manure is important in order to reduce animosity from the community”. “ If a public is not convinced that proper manure management controls are in place”, Dr. Caldwell is concerned “that communities may place severe standards upon manure management which cannot be met by livestock operations”.

Odour is a normal and acceptable product of farming. Its acceptance is part of the give and take of rural life. Farmers have the right to expect the good will of those in rural areas as they attempt to implement new technologies and new intensive farming methods in a very competitive environment. It is only with those expectations that farming can continue to be a viable way of life. This Board was created to protect that right. However, those who share rural areas with farmers have a right to expect that farm operators will use their best efforts to integrate their activities so as to cause as little impact as possible. That includes the expectation that intensive livestock operations which have the potential of producing offensive odour will be located in consideration for the impact that such odours could have on their neighbours.

The documentary evidence indicates a commitment by some of those involved in the processes of applying for and issuing building permits and locating the barns on the Respondent property to enable the construction of the barns in the location preferred by the agricultural operator. This appearance of working backwards to justify a preferred result is not always subtle.

In addition, the failure of the Township of Elma to require a Certificate of Compliance as a condition of issuing the building permits for barns #1 and #2 was an exemption enjoyed by no other swine farmer who applied for a building permit under similar circumstances in Elma Township. It is our opinion that there was no justifiable reason for the selective application of Section 5 of By-Law 8-88 by the Elma Township authorities.

Conclusion

The ultimate responsibility for the location of the barns rests with the agricultural operator. It is our view that the agricultural operator failed to take reasonable and responsible measures to insure that the barns were situated so as not to cause conflict with neighbours when the barns and the tank became operational.

We conclude that due to the location of the buildings the Respondent farm operation is not a normal farm practice. In deciding that in locating the barns the Respondent failed to satisfy the “normal farm practice” standard of “proper and acceptable” we were strongly influenced by three factors. First, as already mentioned, the degree and intensity of the disturbance created an intolerable situation for the Applicants. The second was the fact that prior to constructing the barns, the Respondent knowing that the proposed location did not meet provincial standards on minimum distance separation and that the proposed location was likely to cause the very odour that resulted, ignored the O.M.A.F.R.A. staff request that he “move the barns” or “buy the houses”. The third is the fact that suitable alternate locations were available on the same farm which the evidence shows would have allowed the Respondent to comply with minimum distance separation standards in that area and thereby reduce the intensity of the odour at the Applicants’ residences.

CONSIDERING THE ORDER

Section 5(b) of the Farm Practices Protection Act provides that the Board shall

“order the owner or operator of the agricultural operation to cease the practice causing the odour, noise or dust if it is not a normal farm practice or to modify the practice in the manner set out in the order to be consistent with normal farm practice.”

The Applicants have submitted that the appropriate order would require the Respondent to construct a 60 foot exhaust stack immediately adjacent to each barn for the purpose of dispensing the odour from the immediate area of the Applicants homes. The Applicants’ submitted that exhaust stacks are commonly used in industry for similar purposes, the technology is well developed and the stacks are known to be effective.

Carl St.Pierre testified that such exhaust stacks, with specification set out in Section 6.3, Exhibit 21, would reduce the odour units at the Lucas farmhouse to 0.5 odour units and 1.0 odour units for normal and upset conditions, respectively. As previously stated, Mr. St.Pierre testified that one odour unit is typically used by the Ministry of Environment for odour compliance.

Don Hilborn in his testimony reviewed various remedial measures that might be effective in reducing odour. Alternatives included the planting of trees to create a visual screen, the use of feed additives, the addition of a floating organic cover for the outdoor manure pit, the use of Biofilters and the construction of exhaust stacks. Mr. Hilborn outlined some advantages and disadvantages of each alternative measure. The visual screen he said would be of small benefit. Feed additives give inconsistent and undependable results. The floating organic cover at a cost of approximately $15, 000 would not reduce the odours emanating from the barns. Biofilters are new technology, untried in an agricultural setting, and very expensive. Mr. Hilborn suggested that the exhaust stacks might be a cost effective way to reduce the odour.

Having listened to the evidence of Carl St. Pierre and Don Hilborn and hearing the representation of the Applicants, the Board is satisfied that of the alternatives suggested, exhaust stacks properly constructed and equipped would be the most dependable and cost effective way to bring the Respondent operation into compliance with normal farm practice.

In making an order, the Board are cognizant of the fact that the disturbance and upset endured by the Applicants has continued for a period in excess of six years. However, the Respondent will require a reasonable period of time to obtain estimates, arrange for a contractor and complete the necessary construction necessitated by the order.

ORDER

1. The Respondent is ordered to install two 60 foot exhaust stacks, one in the immediate vicinity of each of the two Respondent barns, in accordance with specifications which will result in compliance with the performance criteria as set out in Section 6.3, Exhibit 21 on page 21.

2. The exhaust stacks are to be operational on or before April 1, 2002, failing which the housing of swine in the subject barns is to cease until the exhaust stacks are operational.

3. The Board wishes to advise the agricultural operator that it is not a prerequisite of compliance with the decision of the Board that the agricultural operator requests that the Board reconvene to review the work undertaken and the Board notes that should the Applicant make a further request for a hearing as a result of the work undertaken, it will be viewed as a new matter.

Dated this _____ day of October/ 2001.

ROBERT G. STEPHENS

DARLENE BOWEN

ANN HAAGSMA

EXHIBIT NO. DESCRIPTION OF EXHIBIT

1-2 books Building Permit App.-Terpstra’s barn and 3 other wiener barns 2 Resume Dillion Consulting -C.Vitae 3 Pictures of barns/house 4 Barbara Rosser C.Vitae 5 Notes to Miss Rosser’s Report (list of exhibits) 6 Photo of Terpstra barns 94-95 7 County of Perth Map 8 Photo of Schlupp farm 9 Photo of Trysenaar farm 10 Photo of Friesen farm 11 Zahnd Real Estate. Authority to Sell 12 James Lucas Journal 13 A.W. Millwrights- price quotation 14 Mitchell Millwrights- price quotation 15 Estimate Land Mark Builders 16 Impact of Township Zoning By-laws on Ontario Swine Farms 17 CV Wayne Caldwell- C.Vitae 18 Site visits by Wayne Caldwell 19 Elma Township By-law 78035 20 Figure 2- Terpstra Barns 21 Dillon Consulting- Odour Impact Assessment 22 Mr. Sam Bradshaw- C.Vitae