ONTARIO
NORMAL FARM PRACTICES PROTECTION BOARD
Embury v TWP of Stone Mills - Supplementary
2001 ONNFPPB 9
DATE OF DECISION:
2001-08-15
2000-13
STATUTE:
Farming and Food Production Protection Act 1998
HEARING:
BETWEEN:
River Valley Poultry Farms Ltd. -- Applicants
and
The Corporation of the Township of Stone Mills -- Respondents
SUPPLEMENTARY REASONS FOR DECISION
Of: G. Edward Oldfield, Chair and Robert Stephens, Vice Chair
The hearing in this matter resumed on April 23, 2001.
Pursuant to a previous Interim Order, the Applicant added three new issues to the hearing. The Board was advised on April 20 that two of the issues were being abandoned and the hearing on April 23 was restricted to one issue. The issue was whether a requirement for a site plan contravenes the provisions of the Farming and Food Production Protection Act ("the Act').
The five witnesses who testified at the resumption of the hearing had all previously provided evidence to the Board. Mr. Embury, Mr. Bird and Mr. Stone provided evidence on behalf of the Applicant. Mr. Uliana and Mr.Caldwell testified on behalf of the municipality.
Section 4.4.3(5) of the by-law states that prior to the issuance of a builidng permit, it is necessary that:
A Site Plan Agreement has been duly executed with the Township under the authority of Section 41 of the Planning Act, as amended. The site plan drawings, which are to be completed in association with the agreement shall show the following information: the location of all livestock barns and manure storage facilities and manure pits; the finished floor elevation of the relevant building/structure; the lot grading and overland drainage system to be developed around the said building/structure; the construction of earthen berms; external lighting; principal location of access, parking and loading facilities
The Applicant alleges that the requirement for a site plan unduly restricts normal farm practice and therefore contravenes Section 6 of the Act. The Applicant acknowledges that the municipality has some rights to control the development within the municipality and that a zoning by-law providing for agricultural uses is appropriate. The objection from the Applicant arises from a concern that municipal consent to a site plan will be arbitrarily withheld, thereby causing significant delay to farmers who wish to construct new facilities.
As noted in our previous Reasons, River Valley operates one of the largest poultry businesses in Ontario. The main poultry production site is an 88 acre farm. The 9 barns on that farm cover approximately 150,000 sq. ft. in what could best be described as two building sites. River Valley wishes to construct another facility at this farm to accommodate quota increases and to reduce crowding in existing facilities.
River Valley also wishes to build an extension to another layer barn located at a second property.
LEGISLATION
Section 6 of the Act states that no municipal by-law may restrict a "normal farm practice" as defined by the Act. Section 6 (15) also sets out a number of issues to be considered by the Board when determining whether a by-law restricts normal farm practice.
"Normal farm practice" is defined by the Act as:
a. is conducted in a manner consistent with property and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances; or
b. makes use of innovative technology in a manner consistent with proper advanced farm management practices.
The Planning Act is also relevant to this case. Section 41 of the Planning Act states that municipalities may choose to utilize site plans as a tool for municipal development. A review of the legislation and a review of the relevant by-laws would indicate that the municipality has properly created the site plan requirement for the entire municipality of Stone Mills. It designates the entire township as an area where site plans will be required.
Non-intensive developments are then exempted from the site plan requirement. Because Stone Mills is a very rural area, it is probable that intensive livestock operations and related commercial uses such as grain elevators would be the only facilities actually requiring site plans.
We also noted Section 71 of the Planning Act which states that where the provisions of the Planning Act conflict with other legislation, the Planning Act will apply.
ANALYSIS OF NORMAL FARM PRACTICE
There are two definitions of normal farm practice within the Act as quoted previously within these Reasons. The initial definition invites a comparative analysis between the subject farm and other similar operations.
The evidence of the witnesses indicates that the use of site plan control for farms is in its infancy. The four witnesses who are regularly involved in rural planning matters were aware of one other township requiring site plans for large barns and there was some evidence (on a hearsay basis) to indicate that another township in southwestern Ontario may have a similar requirement. It is obvious that large poultry operations have not been forced to prepare site plans in the past, and the Applicant submits that this evidence should be sufficient to establish that site plans are not in accordance with normal farm practice.
It is our view that the comparative analysis within the Act goes beyond simply looking at the past practices of existing farms in other municipalities. If one does not go beyond what has happened in the past, then reasonable progress in agricultural planning may be impeded. The right to carry on a normal farm practice under the Act does not give the farmer an unfettered right to do whatever he or she wishes. Farms which are similar to that of the Applicant are subject to reasonable planning controls in other municipalities.
Municipalities establish zoning requirements setting out areas within municipalities where agriculture is permitted. By-laws can require nutrient management plans for intensive operations. (and we recognize that we have previously determined that a nutrient management plan is an innovative farming practice). Minimum distance requirements can be established through by-laws.
In summary, it is our opinion that the comparative analysis has to go beyond looking at the control mechanism of the site plan which is the subject of this hearing and we must instead determine whether other similar farms are subject to planning requirements with similar goals.
The evidence established that the purpose of the site plan is to act as a tool permitting municipal planning to proceed from generalities contained within official plans and zoning by-laws to particular sites. The specific requirements listed in Section 4.4.3(5) of the by-law are not particularly onerous because detailed drawings have to be prepared before work can commence on the barns. It requires the applicant to extend the process that is already in existence. It is our opinion that a site plan merely takes the existing zoning controls that are placed upon most large operations that are in the province and adds a detail that is specific to a particular location. River Valley is therefore being treated on a comparative analysis in a fashion which is similar to other large agricultural operations.
A second definition of normal farm practice deals with innovative technology. This Board has previously concluded that innovative technology is not limited to advances in building or field practices. Innovative technology can include the use of intellectual processes which improve agriculture or diminish environmental risk. This Board has specifically concluded in prior decisions that nutrient management plans are a form of innovative technology as envisioned by the Act. It is our opinion that the site plan requirement is a