ONTARIO
NORMAL FARM PRACTICES PROTECTION BOARD
Malloy v Byford
2002 ONNFPPB 25
2002-11-29
2001-06
STATUTE:
Farming and Food Production Protection Act 1998
HEARING:
BETWEEN:
Robert Malloy – Applicant
And
Terry Byford and Byford Farms Ltd. – Respondent
Reason For Hearing
This hearing resulted from a complaint by the Applicant pertaining to odour and flies which the Applicant alleges emanate from cattle and manure located in a backyard paddock area of the farm owned and operated by the Respondent agricultural operator.
Background
The Applicant initiate this application through a letter to the board secretary dated December 3 , 2001, written by Donald R. Good on behalf of the Applicant.
Mr. Harold Cuthbertson, an engineer employed by the Ontario ministry of agriculture and food met with the Applicant and Respondent parties in early January, 2002 and in an effort to mediate the dispute. The mediation efforts were not successful.
Subject Of This Hearing
The Respondent agricultural operator carries on a dairy operation at lot 41, concession 3, Southwest of Greenpoint in the township of Sophiasburgh, in the county of Prince Edward on the South side of Bethel Road.
The subject of this hearing is the alleged odour and flies emanating from a barnyard paddock which serves as a pasture and feeding area for several cattle owned by the Respondent.
The Applicant resides in a single family dwelling located on approximately 1 acre of land located on the South side of Bethel Road and described as part 1, reference plan 47r-1236 and the Applicant property is surrounded on three sides by the Respondent farm property. The Applicant’s residential property was once part of the farm now owned by the Respondent and was separated from the farm more then 27 years ago.
The Respondent barnyard paddock consists of approximately 8 acres. It commences on the West side of the barn and runs from East to West and extends behind the Applicant’s property. A wire fence separates the Applicant’s property and the barnyard paddock.
The nearest Respondent barn is located approximately 225 feet East of the Applicant’s property. There is a low ridge running from East to West on the Respondent farm, beginning near the South side of the barns and extending Westward across and behind the Applicant’s property. The land slopes from the ridge down through the barnyard paddock to the Applicant’s property. The Applicant’s lot slopes slightly upward from the paddock boundaries that surround the Applicant’s lot so that the Applicant’s home is situated on the highest part of the property.
Applicant
The Applicant, Robert Malloy, resides at 307 Bethel Road in a single detached residence situated on part of lot 41, concession 3, Southwest of Greenpoint. Mr. Malloy’s home is situated on the South side of Bethel Road. Mr. Malloy purchased the property in 1998 and has resided in the home since that time. There have been tenants who occupied the residence along with Mr. Malloy in the past. For the past one and a half years, Mr. Malloy has occupied the dwelling by himself.
Respondent
The Respondent, Terry Byford is one of the principal shareholders of the Respondent, Byford Farms Ltd., The owner and operator of a dairy farm located on the South side of Bethel Road on lot 41, concession 3, Southwest of Greenpoint. Terry Byford or Byford Farms Ltd. Have owned the farm for approximately 27 years. Terry Byford has been farming for that period of time. He and his wife, Linda and son, Claay operate the dairy farm.
Farming And Food Production Protection Act, 1998
The "Farming And Food Production Protection Act, 1998" (the "Act") provides the statutory framework for this application. The sections of the Act that are relevant to this application are:
Section 1
Section 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."
Section 2 (1) provides that:
"A farmer is not liable in nuisance to any person for a disturbance resulting from an agricultural operation carried on as a normal farm practice".
Section 5(1)
Section 5(1) provides that, "A person directly affected by a disturbance from an agricultural operation may apply to the board in a form acceptable to it, for a determination as to whether the disturbance results from a normal farm practice".
Operation of the Respondent
The Respondent carries on a dairy operation but the only portion of that operation that is relevant to this hearing is the farm operations carried on in the barnyard paddock area previously described. The Respondent uses the paddock area as a pasture area, holding area and feeding area for several cattle from April until November each year. The feeders located on the property are used to feed the cattle when there is insufficient pasture in the paddock area.
Position Of The Parties
Applicant
Mr. Good, on behalf of the Applicant, submitted that:
The Applicant is directly and adversely affected by disturbances in the form of odour and flies resulting from the cattle urine and cattle manure build up in the barnyard paddock area of the Respondent’s farm, and
The odours and flies which impact on the Applicant are far in excess of what could be considered normal in a rural area and are not the result of normal farm practices.
The wire fence on the South limit of the Applicant’s property which separates the property of the Applicant from that of the Respondent is located approximately 15' North of the actual boundary and accordingly the Respondent cattle are pasturing on the Applicants land thereby increasing the impact on the Applicant from odour and flies.
Respondent
Terry Byford submitted on behalf of the Respondent that:
The use of the barnyard paddock as a pasture, holding area and feeding area for cattle are a normal farm practice on a dairy farm operation.
All reasonable efforts are taken to reduce the impact of odour and flies resulting from the farming operations, and
The fence separating the South limit of the Applicants property from the Respondent farm has been in its present location for more then 28 years and so far as the Respondent is aware it marks the actual boundary between the properties.
The farming practices of the Respondent agricultural operator are consistent with normal farm practices.
Reasons For Decision
The Issues
Whether the Applicant is directly affected by a disturbance from an agricultural operation.
Whether the Respondent's farm operation is a normal farm practice.
3. Whether The Applicant Is Directly Affected By A Disturbance From An Agricultural Operation.
Section 5 of the "Farming And Food Production Protection Act, 1998" permits a person who is directly affected by a disturbance from an agricultural operation to apply to the Farm Practices Protection Board, for a determination as to whether the disturbance complained of results from a normal farm practice.
Accordingly, the initial issue for determination by the board is whether odour and flies from the Respondent’s farm operation directly affects the Applicant.
The test in section 5 is for the Applicant to establish that the Applicant is "directly affected by disturbance from an agricultural operation". It is hard to imagine a situation where an individual could reside in such close proximity to the Respondent dairy farm operation, as does the Applicant without being directly affected.
The Respondent concedes that there is some odour and some flies resulting from his agricultural operation but does not concede that the odour and flies would impact negatively on the Applicant nor that the odour and flies are inconsistent with what should be expected in a rural area from a dairy operation.
The location of the Applicant’s home just 225 feet from the closest Respondent barn, makes it inevitable that the Applicant would be directly affected by some odour and some flies from the farming operations of the Respondent. Section 5 of the act, does not require that the Applicant be aggrieved or even significantly affected by a disturbance in order to have the board review the Respondent farm operation. The board finds that the Applicant has been directly affected by some odour and some flies emanating from the Respondent dairy farm operation and accordingly the Applicant is entitled to have the Respondent farm operation reviewed by the board.
4. Whether The Respondent Farm Operation Is A Normal Farm Practice.
The Evidence
Robert Malloy
Mr. Malloy testified that he purchased the subject property in 1998 and he was aware at that time that the Respondent farm surrounded his property on three sides. He purchased the property in the winter time when he states that there was no odour and no flies to alert him to the possibility that odours and flies would be present in the spring when cattle were again placed in the paddock area adjacent to his residence.
He did not discuss with the previous owner of the house, Mr. Bruce Hoeskstra, the situation regarding possible odours or flies from the adjacent Respondent farm operations. He first noticed the odour and flies in the spring of the first year he owned the property. He stated that there where 4 or 5 cattle feeders in the paddock area at that time.
He testified that it was the practice of the Respondent to allow manure and trampled feed to build up around the feeders. He stated that there were large mounds of manure in the paddock area on many occasions.
He stated that on one occasion, he saw a wagon load of manure removed from the barn and piled in the paddock area. When asked in cross-examination, how long that pile of manure remained in the paddock area, he replied, "one to one and a half months".
In describing the impact of the odour and flies, Mr. Malloy testified that the odour and flies were present everyday from spring to fall. He stated that the impact was worse in warm weather. His evidence was that he could not enjoy his property because he could not use the back yard for normal summer activities such as barbecuing or sitting in the backyard. He stated that he could not have friends over and that "my yard is part of his farm". Mr. Malloy testified that the flies were so numerous on his back door and his deck, that he was unable to use the back door and was forced to only use the front door of the house.
Mr. Malloy acknowledged in cross-examination, that the odour and flies have been somewhat reduced recently. He confirmed that the cattle feeders had recently been moved further away from his boundary and that the number of cattle being held in the paddock area has been reduced.
Under cross-examination, Mr. Malloy acknowledged that there were bags of garbage and other refuse piled in the back yard area of his lot.
When asked in cross-examination, if he thought that the garbage located on his property contributed to the odour or fly problem. He replied, "I don’t think so".
Mr. Malloy testified that Mr. Byford had moved the Southerly fence which marked the Southerly boundary of his property to a location approximately 15 feet North of where it should be located so that the cattle were actually pasturing on the Applicant’s property. Mr. Malloy testified that Mr. Byford had moved the subject fence during the time that Mr. Malloy lived on the property. He stated that his lot should be 218 feet deep as indicated by the survey entered as exhibit # 3 and that because Mr. Byford had moved the fence, his lot was only 205 feet deep. Mr. Malloy feels that as a result of the fence being moved closer to his house, the cattle and manure piles are closer to his house then they should be resulting in a greater impact from odour and flies. He was not sure how far the feeders needed to be moved away from his house so that the odour and fly situation would be acceptable.
William Graham
William Graham is a professional agrologist and certified agricultural consultant. He is a principal of Weston Graham and associates Ltd. who provides consultancy in Agriculture, Land Use, By-Product Use and Environmental Issues. He was qualified as an expert in general agricultural practices.
Mr. Graham’s report was entered as Exhibit #2 and is entitled "Observation and Assessment of Farm Practices that Might Impact on the Residence of the Malloy Property" and was prepared for Mr.
Donald Good, the solicitor for the Applicant.
Mr. Graham’s report included observations and findings on certain matters that were not at issue at this hearing and for that reason, the contents of some portions of his report have not been included in the summary of his evidence. Mr. Graham’s evidence was as follows:
Mr. Graham measured the dimensions of the Malloy property to be: Frontage 200 feet Depth along East boundary 203 feet Depth along West boundary 206 feet
"Photographs "B" and "C" filed as part of exhibit #2, show an accumulation of surface water at the bottom of the down slope from the Byford barnyard or paddock adjacent to the Malloy property".
Photograph "D" "at the opposite corner of the Malloy property shows a small depressional area where the cattle have been trampling, very wet ground, indicating an area where water accumulates. There is no indication of the presence of any control system to collect or manage the run-off from the Byford barnyard".
The fenced barnyard up slope from the Malloy property and well has the "potential to generate liquid manure that would contaminate the well, in addition to generating large numbers of flies and odours during the hot weather".
"No other livestock farms in the area were observed to have fenced barnyards up-slope from the adjacent rural residence".
It was Mr. Graham’s evidence that he did not see any piles of manure in the paddock area on the day that he visited the farm. He had only visited the farm on one occasion but he had driven past it on other occasions. Mr. Graham did not offer any evidence about his own observations concerning odours or flies at the Malloy property.
Derek John Hoekstra
Derek John Hoekstra testified that he, his wife and six children had lived in the residence now owned by Mr. Malloy for twenty years prior to the time that Mr. Malloy purchased the property. Mr. Hoekstra is now residing directly across the road from the Respondent farm. He testified that during the entire time that he lived at the premises, he did not have a significant fly problem or an odour problem. He considered the odour and fly situation normal for a rural area. He stated that the cattle feeders located in the paddock area were located in that area when he lived at the subject premises. While he lived there, the cattle were allowed to pasture and feed. He saw no difference between the way the Respondent agricultural operator used the paddock area when he lived there and the situation as he now sees it. He testified that the only time he saw manure placed in piles in the paddock area, was when the manure was being scraped up from around the feeders and that on those occasions, the manure was immediately removed from the area and spread on other parts of the farm.
It was his evidence that during the time he lived there, he had maintained a well-manicured lot and that he and his family enjoyed all outdoor activities. He confirmed that weddings had been held in his back yard and that odour and flies had never interfered with those types of outdoor activities. He stated that in his experience, the impact of the odour and flies while he lived in the home, now owned by the Applicant, were what he expected in a rural residential dwelling located in such close proximity to a dairy farm and that the impact of the odour on his family were minimal. He stated that he had not complained to the Respondent agricultural operator at anytime during the twenty years he resided in the subject property and never felt he had a reason to complain.
Bruce Arnold Hoekstra
Bruce Arnold Hoekstra lives directly across the road to the North from the Applicant property. He stated that he has experienced no odour and no fly problems. His evidence was that he has never seen piles of manure left in the subject paddock area and the Respondent farm operators keep the area scraped clean. He confirmed that his residence is located 800 to 1000 feet from the Malloy house. He was very familiar with the Malloy house and had been there on numerous occasions during the time that his brother, Derek John Hoekstra, resided at the premises.
Arnold Clifton Closton
Mr. Closton testified that he has lived in the immediate area of the Respondent farm for thirty years. His residence is located West of the Malloy residence. He stated that the Respondent cattle pasture in a field immediately adjacent to his lot to within twenty-five feet of his home. He stated that he enjoys the cattle and that flies and odour are not a problem. It was his evidence that he has only seen piles of manure in the paddock area of the Respondent farm when the farm operators are scraping around the feeders. He has never seen manure drawn from the barn and deposited in piles in the paddock area. He testified that recently the feeders were moved further South and thus further away from Mr. Malloy’s house. He stated that usually the cattle in the paddock area were young cattle and not milking cows. His residence is located 700 to 1000 feet away from the Malloy residence.
He has lived next to the Respondent farm for 30 years and for 27 of those years, Mr. Byford has been carrying on the dairy operation. He testified that odour and flies are present as they are in all rural areas, but they are not a significant problem and are a normal part of the rural setting.
Terry Byford
Terry Byford testified that the complaint of odour and flies from Mr. Malloy was the first and only complaint of any kind he has received in 27 years of farming in that location.
It was his evidence that whenever manure was drawn (liquid or solid) that the farm operators try to do so only when the winds were coming from the North or Westerly direction so as to keep the odour away from neighbours. He stated that this was usually the case because the prevailing winds are from the Westerly direction. He stated that he only agitated the liquid manure for a short time as needed before he drew it away to try and reduce the odour. He stated that all manure applied to the land is immediately worked in.
It was his evidence that the area surrounding Mr. Malloy’s property, namely, the barnyard paddock is always kept as clean as possible. The area where the feeders are placed is kept scraped up and drawn away when needed. He stated that this was done many times through the year usually early in the spring when the land is dry enough to apply the manure and if needed, through the summer and once again in late fall before it becomes too wet. Following scraping the yard or cleaning around the feeders, if there are any depressions left, they are filled with four-inch rock gravel to level it. He stated that the pasture fields around Mr. Malloy’s property are kept mowed down every year to control any bull thistles or other weeds and to keep it looking nice. He stated that all milk cows are kept in a separate pasture located due South of the Malloy property and that this property is managed in the same way. Only a few dry cows and holstein springer heifers are in the area around the Malloy property. It was his evidence that all feeders are kept on the Easterly side of Malloy’s property so as to reduce any odour or flies due to the prevailing wind coming from the West.
Mr. Byford testified that during the spring for approximately 3 to 4 weeks, water runs Westerly parallel with Bethel Road, across the Respondent property and through the area behind the Malloy property along a narrow water coarse that runs East into the big swamp. He stated that this water coarse dries up in mid April and remains dry throughout the rest of the year.
Mr. Byford stated that he has used good faith and due diligence to try and resolve the complaints of Mr. Malloy regarding odour and flies.
He did not believe that the complaints of Mr. Byford had anything to do with those cattle or the manure in the paddock area. He felt the complaints of Mr. Malloy were unjustified and unreasonable. He stated that he is familiar with almost every dairy farm in the county and his use of a barn yard paddock area for holding, deeding and pasturing cattle is consistent with the norm.
Robert Williams
Robert Williams is the president of the prince Edward county federation of agriculture and is the chair of the nutrient management committee. He evidence was that he has been familiar with the Respondent dairy farm operations for many years. He stated that he had visited the property on the Saturday prior to this hearing "to look around". He did not provide evidence concerning the issue of odour or flies. He stated that the "Byfords were doing a great job". That comment he said was based of years of knowledge of the Byford operation.
Considering the Evidence
Mr. Malloy, Mr. Graham and Mr. Byford gave evidence concerning the location of the fence on the South limit of the Malloy property. Mr. Malloy testified that his lot should be 218 feet deep as shown on the reference plan entered as exhibit #3. It was his contention that Mr. Byford had moved the fence in a Northerly direction toward the Malloy house so that the Malloy lot is now 203 feet deep along the East limit and 206 feet along the West limit. It was Mr. Malloy’s opinion that the Respondent cattle were therefore pasturing on part of his property.
Pasturing cattle on the Malloy property, he felt, was not a normal farm practice and increased the impact of odour and flies. Mr. Graham testified that he measured and found the lot had an irregular depth of approximately 205 feet that he stated was inconsistent with the measurements on the survey.
Mr. Byford testified that he has never moved the subject fence and that the fence has been in its present location for the full twenty-seven years since he started farming in that location. It was his opinion that the present location of the fence correctly marks the boundary between the Respondent property and the Malloy property.
It is the opinion of this board that determining the correct location of the fence that separates the Southerly boundary of the Applicant’s land from that of the Respondent is not within the jurisdiction of this board.
In any event the board are of the opinion that moving the fence ten to fifteen feet closer to Mr. Malloy’s house would not significantly increase the impact of odour and flies. Accordingly, the issue of the location of the subject fence will form no part in the board’s deliberations in considering whether the Respondent farm operation is a normal farm practice. The board finds that all of the witnesses accurately described their impressions of the odour and flies in the general area of the Applicant’s property. It is difficult to reconcile the evidence of Mr. Derek Hoekstra, Mr. Bruce Hoekstra, Mr. Arnold Closton, and Mr. Terry Byford with that of Mr. Malloy. We note that the prevailing winds blow from the West to the East or from the property of the Applicant to the property of the Respondent. We also note from exhibit #1, which is a series of photographs numbered a, b, and c, that each of the photographs show a considerable amount of bagged garbage and other refuse located around the buildings of Mr. Malloy. The garbage and refuse on the Malloy property was also evident at the time of the site visit by the board. There can be little doubt that some of the odour and some of the flies Mr. Malloy complains of would result from the numerous bags of garbage located on his property.
The evidence of Mr. Byford that any odour or flies resulting from the Respondent farm operations were not significant in terms of their impact in the immediate neighbours, was strongly corroborated by Derek Hoekstra, Bruce Hoekstra and Arnold Closton.
The board was very impressed with Mr. Hoekstra’s evidence because as previously stated, he and his family resided for 20 years in the home in which Mr. Malloy now lives. During all of that time, the dairy farm operation was carried on by the Respondent. His evidence was in direct conflict with that of Mr. Malloy. He stated that he and his family were able to enjoy the property, to use the back yard for normal family gatherings including weddings and barbecuing and the odour and flies while present, were only consistent with what Mr. Hoekstra consisted to be the norm in an agricultural community. The evidence of Mr. Bruce Hoekstra and Mr. Arnold Closton also corroborated the evidence of Mr. Byford although the board notes that those witnesses reside a further distance away from the Respondent farm operation than does Mr. Malloy. The board notes that there was no evidence presented at the hearing to corroborate the evidence of Mr. Malloy concerning unusual odours or an unusual fly infestation from the Respondent farm. Mr. Graham’s evidence contained no reference to his observations regarding odours or flies.
The board notes that Mr. Graham’s evidence included two photographs numbered " B" and "C" which are part of exhibit #2, which show a small amount of surface water lying in a small area, lying immediately South of the South boundary of the Malloy property. However, photographs numbered "D", "E" and "F" which were also part of Mr. Graham’s evidence, show the area South of the South boundary of the Malloy property, to be free of any surface water. Since Mr. Graham had only visited the property once, that being the day that he took the photographs, it would not be possible for Mr. Graham to know if his photographs numbered "B" and "C" showing surface water, represented the norm or the exception resulting from a recent period of rain. In that regard, we accept the evidence of Mr. Byford who confirmed that during 3 to 4 weeks in the early spring, water does flow past but not on the Malloy property to a swampy area shown in photograph numbered "H" in exhibit #1.
Having considered all of the evidence, the board found the evidence of those who testified on behalf of the Respondent farm operator compelling. Mr. Derek Hoekstra, Mr. Bruce Hoekstra and Mr. Arnold Closton resided in the area for a number of years and are very familiar with the Respondent farm operations. Their evidence was unequivocal in supporting the proposition that any odour and flies emanating from the Respondent farm operations are consistent with what one would expect in a rural area in the vicinity of a dairy farm. The evidence of Mr. Derek Hoekstra gains further credibility by the fact that after he and his family moved from the property now occupied by Malloy, they moved directly across the road from the Respondent farm. One could have expected, if the Hoekstra family had experienced any significant impact from odour and flies, that they would have moved to a location a significant distance away from the Respondent farm operations.
The board cannot ignore the distinct possibility that part of any impact the Applicant may feel from odour and flies would emanate from the garbage located on the Applicant’s property.
The board accepts the evidence of Mr. Byford regarding the efforts that have been made to reduce the impact of odour and flies. In that regard the board strongly encourages the Respondent’s agricultural operations to avoid the moving of cattle feeders closer to the Malloy property or further West then they are now situated.
Decision
In summary, there was no credible evidence presented at this hearing to suggest that the Respondent farm practices were inconsistent with normal farm practice as defined in section 1 (a)
of the Act.
Accordingly, the board finds that the Respondent farm operation
is conducted in A manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances.
The board orders this action dismissed.
Dated this 29th day of November 2002.
Exhibit
No.
Filed By Description of Exhibit
1Don Good Observation and Assessment Of Farm Practices - by
Bill Graham.
2Byford Farms Summary of Farm Practices of Byford Farms
3Don Good
Reference
Plan 47r-1236 - Malloy Property.
4Don Good Photographs of Manure Pile on Byford Property.
5Don Good Series Of 5 Photographs on Byford Property.