Van Order v. Nolan, 2003 ONNFPPB 21

ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Van Order v Nolan

2003 ONNFPPB 21

DATE OF DECISION:

2003-11-28

2003-02

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

Peter Van Order and Carolyn Van Order – Applicants

And

Earl Nolan and Sharon Nolan – Respondents

Decision

Purpose For The Hearing

This Application is made by the Applicants, Peter Van Order and his wife Carolyn Van Order under Section 5 of the Farming and Food Production Protection Act, 1998 for a determination that the Respondent's use of a propane-fired gas cannon ("bird banger") between the hours of 8:30 p.m. and 7:30 a.m. is not a normal farm practice.

A site visit was conducted by the Panel on the morning of September 30, 2003 in the presence the acting Secretary of the Board, Counsel for the Applicants, the Applicants and the Respondents.

The Subject Of This Hearing

The Respondents, Earl and Sharon Nolan, grow horticultural crops on Lot 10, Concession 4 in the Township of North Fredericksburgh, in the County of Lennox and Addington. In 2003, the horticultural crops grown consisted of 1 ½ acres of pumpkins, and ¾ of an acre of tomatoes.

The Respondents use a "bird banger" to protect their horticultural crops from damage caused by deer. The "bird banger" is set to go off at intervals ranging from 3 minutes to 10 minutes during the evening hours commencing at approximately 8:30 p.m. and continuing until 7:30 a.m. each day during a six week period in the months of August and September.

Normal Farm Practices Protection Board

The residences of the Applicants and the Respondents are located on opposite sides of Abram's road, also known as Township Road 11, which runs in a North-South direction between Hay Bay and the Bay of Quinte. Township Road 11 runs from County Road 9 along Hay Bay to County Road 9 along the Bay of Quinte. The two houses are located directly across from each other. The Nolan house is situated on the east side of Abram's road and the Van Order house on the west side of the road. Both residences are located on a small knoll and the fields being protected by the "bird banger" are on a lower elevation than the two houses and directly south of the Nolan house and in a south easterly direction from the Van Order home.

Applicants

The Applicants, Peter and Carolyn Van Order, reside at 306 Abrams road, RR #3 Napanee. They purchased this farm property in 1986. Their farm operation consists of a 20 to 25 head cow/calf herd together with approximately 110 head of stockers. Both Applicants have off farm employment. Carolyn Van Order is an X-ray technician and Peter Van Order is a salesman in an Agri-business. They have two daughters who now reside away from home while attending University but who return home on weekends.

The Respondents

The Respondents, Earl and Sharon Nolan reside at 315 Abrams Road, RR #3, Napanee. Earl Nolan is a fourth generation farmer who together with his wife Sharon and their son, John, carry on a farming operation at Lot 10, Concession 4, in the Township of North Fredericksburgh, in the County of Lennox Addington. The portion of the farm operation relevant to this hearing is the growing of horticultural crops on parcel of land of approximately 5 acres. The Nolan's have been growing vegetables for many years. The Nolan farm consists of 226 acres. They crop approximately 100 acres which is mostly hay.

Background

On September 2, 2003, Mr Harold Cuthbertson, an Environmental Engineer employed by O.M.A.F.R.A. attended at the Respondent farm and talked to the Respondents and the Applicant Carol Van Order in an effort to mediate a noise complaint relating to the Respondents operation of a "bird banger". Mr. Cuthbertson's report regarding this incident is Exhibit # 8.

His report confirms that the Respondents were using the "bird banger" to protect their crops from damage caused by deer. The crops being protected consisted of a small acreage of mixed vegetables. The "bird banger" was set to go off intermittently commencing at 8.30p.m. and continuing until 7:30 a.m. When Mr. Cuthbertson attended at the premises on September 2, 2003 the "bird banger" was located 270 feet from the Van Order home on a flat bed wagon. The "bird banger was facing in a southeast direction which is directly away from the Van Order house and toward the fields that contain the crops being protected.

Normal Farm Practices Protection Board

Arrangements were made to have sound level measurements taken on the evening of September 17, 2003 after 8:30 p.m. On September 17, 2003, the location of the "bird banger" was in the pumpkin field situate 440 feet from the Van Order house and the firing direction was still in a Southeast direction away from the Van Order house. Mr. Cuthbertson states that as he walked across the fields the damage to the pumpkins was evident. Mr Cuthbertson was advised that in 2001 the "bird banger" had been located in an adjacent field approximately 1125 feet from the Van Order house.

After discussions with the Respondents and the Applicant, Carol Van Order, Mr. Cuthbertson decided that he was unable to offer an acceptable compromise agreeable to both parties. The Respondents felt that the operation of the "bird banger" in any location would not be acceptable to the Applicants. Carol Van Order confirmed that the only satisfactory resolution for her would be that the Respondent farm operators stop using the "bird banger". As a result of the lack of a compromised solution the Applicants applied to the Normal Farm Practice Protection Board for this hearing.

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 which are relevant to this application are:

Section 1

Section 1 of the Act defines "normal farm practice" as

(a) " a practice that 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) 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."

Section 5(4) provides that:

After a hearing, the Board shall,

(a) dismiss the application if the Board is of the opinion that the disturbance results from a normal farm practice;

(b) order the farmer to cease the practice causing the disturbance if it is not a normal farm practice; or

(c) order the farmer to modify the practice in the manner set out in the order so as to be consistent with normal farm practice."

Operation Of The Respondent

For the purposes of this Hearing, the relevant portion of the Respondent agricultural operation consists of the growing of horticultural crops on a 5 acre parcel of land, and the Normal Farm Practices Protection Board use of a "bird banger" set to fire every 3 to 10 minutes, from approximately 8:30 p.m.until

7:30 a.m. each day during a 6 to 7 week period in the months of August and September to repel deer that might otherwise cause damage to the vegetables. The "bird banger" has been operated at various locations on the 5 acre parcel of land where horticultural crops are grown or in close proximity. Three of those locations were measured to be 270 feet and 440 feet from the Van Order home in which locations the canon had been placed during the 2002 crop year and 1125 feet from the Van Order home where the canon had been located in 2001. All three locations are south east of the Van Order home.

Position Of The Parties

The Applicant

Mr. Good, on behalf of the Applicant, submitted that:

1. The Applicants were directly affected by a disturbance between the hours of 8:30 p.m. and 7:30 a.m. during months of August and September, 2003. The disturbance resulted from noise from the Respondents "bird banger".

2. The Respondent's use of a "bird banger" is not a normal farm practice because

a) it is operated during evening hours commencing at 8:30 p.m. and continuing until 7:30a.m. contrary to the prohibition contained in Section 10 of the Ministry of the Environment Sound Level Limits Publication NPC-232, and

b) the noise produced by the "bird banger" exceeds the sound level limits for Pest Control Devises regulated by Section 9(1) of the Ministry of the Environment Sound Level Limits Publication NPC-232.

3. The disturbance deprives the Applicants of sleep and the normal use and enjoyment of their home.

4. There are alternative methods of repelling deer from the Respondents horticultural crops which would be less intrusive and less likely to cause a disturbance to the Applicants.

The Respondent

Mrs. Nolan, on behalf of the Respondents, submitted that;

1. In the general vicinity of the Respondents vegetable crops there are large numbers of deer which cause irreparable damage to the Respondent's horticultural crops if not controlled.

2. It is not possible to profitably grow vegetables in the area of the Repondent's farm unless the deer are repelled. The Respondents have tried other alternatives and have settled on the use of a "bird banger" as the best means of repelling the deer and thereby reducing crop damage.

3. The use of a "bird banger" to produce noise to repel birds and wildlife is an acceptable and widely used farm practice in Ontario and is a normal farm practice within the meaning of Section 1 the Farming and Food Production Protection Act, 1998.

4. The Respondents acknowledge that the Applicants would hear the noise produced by the "bird banger" but, contend that the noise levels and any impact resulting therefrom are reasonable and should be accepted as normal in a farming area.

Evidence

Witnesses For The Applicants

Carol And Peter Van Order

The evidence of Carolyn Van Order and Peter Van Order was similar. They purchased the farm property at 306 Abrams road in 1986 and have resided there with their two daughters since that time. Their farm operation consists of a 20-25 head cow calf beef operation and together with 110 head of stockers. Both Applicants have off farm employment.

The Van Orders state that for many years the Respondents have operated a "bird banger" commencing in mid August and continuing until approximately the third week of September. In 2003, the " bird banger" was set to go off intermittently approximately every 3 minutes from 8:30 p.m. until 7:30 a.m. each day. The noise produced by the "bird banger" prevents them from sleeping and interferes with the normal use and enjoyment of their home both inside and outside. The noise was variously described as "a big bang" "obnoxious" " like being hit in the face", "intrusive", "debilitating", and "explosive".

Carolyn Van Order stated that while the "bird banger" is operating she is unable to sleep without a light sedative and even with the sedative she is only able to sleep for approximately 2 ½ to 3 hours per night. The lack of sleep keeps her in "on edge" "uptight" "impatient" and "upset". Peter Van Order testified that the noise deprives him of 1 to 3 hours of sleep per night.

In further describing the impact of the noise on their family, they stated that "the noise prevents us from enjoying the inside of our home because you can not get away from the noise". "The noise level can be heard over and above conversation, the radio and television". Summer outdoor activities such as barbequing are restricted because of the noise. They stated that it was "embarrassing to invite friends to their home while the "bird banger" was operating".

In an effort to reduce the impact of the noise in 2003 they moved from their own bedroom to their daughter's bedroom which is located further from the source of the noise. They found that the noise was still intolerable. In 2002, they rented a home at a different location for the months of August and September in an effort to avoid the noise. They were unable to rent those premises in 2003.

It was Carolyn Van Order's evidence that she is an X-ray technician at the Hospital and it is imperative that she have the required amount of sleep to avoid making errors of judgment. It was her concern that lack of sleep during the months of August and September could "place my job in jeopardy".

Carolyn Van Order testified that she and her husband have made accommodations in an effort to reduce the impact of the noise. They have closed their windows, turned on their radio or television and changed the location of their bedroom, but they still find the noise level to be intolerable.

William Graham

William Graham is an Agricultural Consultant and was qualified as an expert on general agriculture. Mr. Graham explained that he had been retained by Mr Good on behalf of Mr. Good's clients, Mr. and Mrs. Van Order. His terms of reference were to conduct a survey of a small number of market gardeners in Eastern Ontario to determine if the use of propanefired canons was a common practice among vegetable crop producers. Mr. Graham's report is Exhibit #2. Mr. Graham's evidence was that he contacted four market gardeners, three by telephone and one in person. The growers were from the City of Ottawa, Lennox and Addington, Hastings and Prince Edward Counties. Three growers had crop acreages ranging from 25 to 50 acres and the fourth grower cropped more than 50 acres.

Each grower grew 10 to 20 different crops.

In addition to the market gardeners Mr. Graham had discussions with OMNR Officials from the Kemptville and Kingston offices. Mr. Graham summarized information obtained from the OMNR Officials as follows:

1. 10 to 12 market garden producers have problems with deer each year.

2. "Bird bangers" are not always effective for deer because they get used to the noise and ignore it.

3. Electric fencing is the most effective deer deterrent when it is bated with peanut butter on tin foil plates suspended on the fence.

4. Constructing electric or page wire fence high enough to deter deer from the crops is more expensive than many farmers can afford.

The conclusions of the survey were:

1. Two of the four growers use "bird bangers" during the daytime to keep the black birds away from their sweet corn.

2. One of the four growers uses a "bird-in-distress" alarm system to protect his corn from birds. He did use a "bird banger" at night at one time to keep raccoons away from the crops.

3. None of the four growers were now using "bird bangers" at night. Two growers said that they had tried to use a "bird banger" at night and were told by the Ontario Provincial Police to shut them off because of the neighborhood complaints. The two growers complied.

4. It was not conclusive from talking with OMNR officials that "bird bangers" were an effective deterrent to keep deer away from crops.

Witnessess For The Respondent

Sharon And Earl Nolan

The evidence of Sharon and Earl Nolan was similar. Earl Nolan is a fourth generation farmer. Sharon Nolan has been growing vegetables for most of her life. In 2002 they grew 1 ½ acres of pumpkins and ¾ of an acre of tomatoes. They stated that deer are a major cause of damage to those vegetables. In an effort to mitigate the damage, they have for a number of years used a propane-fired canon to produce intermittent bursts of loud noise to scare the deer. They have found the canon to be "about 85% effective". It was the opinion of Sharon and Earl Nolan that the use of a "bird banger" is a common farm practice which works and without which vegetable crop producers could not produce vegetable crops at a profit.

Mr Nolan stated that other methods of protecting the crops from deer have been tried and are considered to be either too expensive or to be less effective. Placing an electric fence or a page wire fence around the fields is very expensive and impractical. Expensive because the fence must be high enough to exclude deer and impractical because the fence must be moved as the crops are rotated. The construction of the fence is labour intensive. The Applicants have also tried using a guard dog with invisible fence but have discontinued the practice.

The Nolans expressed the belief that the complaints of noise by the Applicants are exaggerated and unreasonable. While admitting that the "bird banger" does create noise, it was their feeling that the noise was within limits that should be expected and tolerated in an agricultural area. Sharon Nolan expressed her belief that the Applicants lack an understanding of the difficulty and cost of growing vegetables and are somewhat malicious in insisting that the Respondents stop using the "bird banger". Sharon Nolan's evidence was that she and her husband have had at least one visit per year from the police resulting from complaints of noise by the Applicants.

Sharon Nolan testified that the Respondent's farming practices have not changed in the past 15 years. During that time they have attempted to accommodate the Applicants and have responded to their complaints of noise. She outlined some of their efforts at accommodation.

1. They stopped growing corn, so that the "bird banger" would not operate during the day time.

2. They chose not to purchase the "double bird banger" which would have increased the frequency of the noise.

3. They placed the "bird banger" at different locations further away from the Van Order home in an effort to reduce the impact of the noise.

Sharon Nolan stated that their home is situated closer to the location of the "bird banger" than is the home of the Applicants and the noise from the "bird banger" does not adversely affect the Respondents use and enjoyment of their property. The Applicants should make more of an effort to compromise by closing their windows or by turning on the air conditioner or by simply trying to ignore what the Nolans consider to be only a modest noise. Both Sharon and Earl Nolan expressed their belief that the complaints by the Applicants are not capable of accommodation in the absence of turning off the "bird banger". Stopping the use of the "bird banger" is not, in the opinion of the Respondents, an accommodation which can be made because the Respondents would no longer be able to profitably produce vegetable crops.

Eric Kaiser

Eric Kaiser is a farmer who resides approximately three kilometers from the Nolans. He has used "bird bangers" to scare raccoons, skunks, and crows from his sweet corn crop. He has only operated "bird bangers" during the daylight hours. He uses his two "bird bangers" as little as possible because they are a "nuisance". In addition to the use of the "bird bangers" he has taken other remedial actions on his 850 acre farm to make the farm less hospitable for wildlife and birds. He removed all fences to eliminate the wildlife refuge of fence bottoms. He eliminated trees to eliminate that refuge for birds. He hunts coon to keep the population to a minimum and he encourages bow hunters and shot gun hunters in an effort to reduce the number of deer. He considers the damage caused by deer to be a major problem facing vegetable producers. On one occasion at 7:00p.m. on a summer evening, he counted more than 50 deer.

Mr. Kaiser's evidence was that it is necessary to use a combination of control measures rather than just one or two. It was his evidence that "bird bangers" will only be effective if the frequency of the shots, the locations of the canon and the direction from which the shot is fired are changed on a daily basis. These daily changes are time consuming, but if done the "bird banger" can be a useful tool in controlling the damage from wildlife and birds. Mr. Kaiser was not aware of any other farmers using a "bird banger" at night. He used it at night on one occasion to scare coons but it wasn't successful.

Eric Maerzinger, Keimpe Jansen And Harold Amos

Eric Maerzinger, Keimpe Jansen and Harold Amos are neighbours of the Applicants and Respondents. Mr. Maerzinger resides approximately 2200 feet south of the Nolan and Van Order homes on Abrams road as does Mr. Jansen. Mr. Maerzinger testified he hears the noise from the "bird banger", but that the noise does not prevent him from sleeping. He accepts the noise as a "necessary product of living in a farming area". He did not consider the noise offensive. He suggested that the Applicants could sound proof their home to lessen the impact of the noise. Mr. Jansen stated that he hears the noise but he and his wife are not bothered by it and "we live with it". He stated that it does not stop their enjoyment of outdoor activities. Harold Amos testified that he hears the noise from the "bird banger" when he is out walking the dog but not when he is at home. Mr Amos lives approximately ½ mile from the Nolan residence at the bottom of Abrams road. He stated that the noise does not affect him nor visitors attending at his home.

Witnesses For The Board

Hugh Fraser

Hugh Fraser is an Agricultural Engineer employed by the Ontario Ministry of Agriculture and Food. He was asked to testify as a witness by the Board pursuant to Section 5(6) of the FFPPA. 30% of Mr. Fraser's employment time is involved in his role as a specialist in Provincial horticultural crop structures and equipment and the other 70% of his time is spent on environmental issues. Mr. Fraser possesses an Environmental Noise Certificate for Municipal and Provincial Officers and he has completed a field study of sound levels from propane-fired bird scaring canons used in vineyards under many different conditions in 2000. Mr Fraser was qualified as an expert to provide evidence relating to the measurement

of sound.

Mr. Fraser testified that he and Harold Cuthbertson, who is also with the Ministry, attended at the farms of both Carolyn and Peter Van Order and Sharon and Earl Nolan on September 17, 2003 for the purpose of taking sound level measurements at various locations while the canon was operating. The sound level measurements commenced after it was dark at about 8:30 p.m. and continued until 10:00 p.m. The evening was calm, clear, cool and dry.

Sound level measurements were taken with the canon situated in the two locations referred to as location #1 and location #2. At the request of the Board, Mr. Fraser made a second visit to the subject farms on October 20, 2003 to take more sound level measurements at the location where the canon had been situated in the summer/fall of 2001 hereinafter referred to as location #3. Mr. Fraser's report of the second visit (Exhibit #12) contains the following caution.

"The Board and others reading this report need to understand the site conditions at my second visit were not the same as at the first visit, and this affected sound level readings"…

The report stated further that

"The Southeast wind direction and occasional gusts helped carry sound waves toward the Van Order home and complicated readings"…and further

"The windier conditions at my second visit contrasted the calm, clear night at my first visit". Mr. Fraser stated that the canon being used by the Respondent farmers was a stationary type sitting on a farm wagon that fires once in a unidirectional fashion and can be controlled as to how often it fires by turning a small valve.

It was Mr. Fraser's evidence that the Ministry of Environment's Sound Level Limits for Stationary Sources in Rural Areas, Publication NPC-232 dated October 19, 1995 (figure 4) states that:

"For impulsive sound other than Quasi-Steady Impulsive Sound, from a pest controlled devise employed solely to protect growing crops, the sound level limit at a point of reception within 30 m of dwelling or a camping area, expressed in terms of the Logarithmic Mean Impulse Sound Level(lml) is 70dBAI". Mr. Fraser determined that a point of reception 30 m (100feet) from the Van Order house is about the distance of the road away, so that sound levels should not be more than 70dBAI at that point.

Table A reproduced here is part of Exhibit #12 and is part of Mr. Fraser's report. The Table shows the comparative sound level readings from the first visit on September 17, 2003 and the second visit on October 20, 2003. The table shows 8 possible combinations which Mr. Fraser considered to be relevant to this case. He noted that the sound levels recorded at all canon locations exceed the Ministry limits set out in Section 9(1) of Publication NPC-232.

As well, when the canon was located 1125 feet from the Van Order house as it was in 2001, and the direction of the firing was set to simulate the 2001 situation, the sound level recorded again exceeded the Ministry limits, both when the receptor was at the road and in the Van Order bedroom with the window open. Table B was prepared by the Board to summarize the sound levels recorded when the canon was located at distances of 440, 270 and 1175 feet respectively from the Van Order house when the direction of firing was away from the Van Order house in an East South-easterly direction. The fourth reading is a simulation of the situation in 2001 when the canon was located 1125 feet from the Van Order house and the direction of firing was West Northwest.

Table A

· 2 cannon locations (Location '3': 1225' away vs. Location '1':440' from Van Order house) · 2 cannon directional firings (to ESE firing away from vs. to WNW firing at Van Order house) · 2 sound meter locations (road 100' from Van Order house vs. bedroom with window open)

Canon Location Relative to Van Order house

Canon Firing Direction

Sound Meter Location Relative to Van Order House

Lmas dBAI

Things to Consider

Location '3' (2nd visit)

Firing to East-Southeast, away from Van Order house

On the road, East-Southeast of Van Order house about 100" from house

79.2

13.8 dBAI reduction in sound levels between Locations "1" & "3" because 685' further from Van Orders

Location'1' (1st visit)

Firing to East-Southeast, away from Van Order house

On the road, East-Southeast of Van Order house about 100" from house

93.00

13.8 dBAI reduction in sound levels between Locations "1" & "3" because 685' further from Van Orders

Location'3' (2nd visit)

Firing to East-Southeast, away from Van Order house

In Van Order bedroom by south window, with window open

63.9

18.4 dBAI reduction in sound levels between Locations '1' & '3' because 685' further from Van Orders. Expected similar reduction as above (13.8dBAI); wind and likely influenced readings.

Location '1' (1st visit)

Firing to East-Southeast, away from Van Order house

In Van Order bedroom by south window, with window open

82.03

18.4 dBAI reduction in sound levels between Locations '1' & '3' because 685' further from Van Orders. Expected similar reduction as above (13.8dBAI); wind and likely influenced readings.

Location '3' (2nd visit)

Firing to West-Northwest toward Van Order house

On the road, East-Southeast of Van Order house about 100' from house

80.6

Simulates 2001 situation

Location '1' (1st visit)

Firing to West-Northwest toward Van Order house

Not Applicable, as the canon was apparently never pointed at the Van order House in this location

Location '3' (2nd visit)

Firing to West-Northwest toward Van Order house

In Van Order bedroom by south window, with window open

75.6

Simulates 2001 Situation

Location '1' (1st visit)

Firing to West-Northwest toward Van Order house

Not applicable, as the canon was apparently never pointed at the Van Order house in this location

Table B

The sound level measurements recorded at the 3 locations of the canon when the receptor was placed on the road 100 feet (30 m) from the Van Order home were as follows:

Location

Sound level

Direction of firing

1 440 feet from the Van Order house

93.0 dBAI

East Southeast away from the Van Order home

2 270 feet from the Van Order house

86.7 dBAI

East Southeast away from the Van Order home

3 1125 feet from the Van Order house

79.2 dBAI

East Southeast away from the Van Order home

4 1125 feet from the Van Order house

80.6 dBAI (simulates 2001 situation)

West-Northwest toward the Van Oder home

When the receptor was located in the Van Order bedroom in front of the south window (open) the sound level measurements for each of the 3 locations were:

Location

Sound level

Direction of Firing

1 440 feet from the Van Order house

82.3 dBAI

East southeast away from the Van Order home

2 270 feet from the Van Order house

78.2 dBAI

East southeast away from the Van Order home

3 1125 feet from the Van Order house

63.9 dBAI

East southeast away from the Van Order home

4 1125 feet from the Van Order house

75.6 dBAI (simulates 2001 situation)

West Northwest toward the Van Order home

Mr. Fraser's evidence was that the Ministry Sound Level Limit of 70dBAI is a low threshold which would be difficult to comply with when using a propane-fired canon. The rural ambient background noise in the area of the Respondent's farm is approximately 43 dBAI.

The sound level of normal conversation would be approximately 65dBAI and that produced by heavy traffic would be approximately 80 dBAI. The most effective noise control measure is to keep the noise source as far away as possible from neighbours who might not appreciate it. It was his opinion that there are few ways to reduce the impact of sound levels from a canon on a receptor. Since sound travels a long distance under the right conditions it is difficult to predict "how far away one would have to move a canon, but 70dBAI is not a very loud sound." Mr. Fraser suggested that in theory one would likely have to move the canon to at least 2500 feet away from the Van Order house to accomplish a sound reduction sufficient to comply with the Ministry limit. That opinion was supported he said, by the evidence of Mr. Maerzinger and Keimpe Jansen who heard the noise from the canon at a distance of approximately 2200 feet further from the source of the noise than the Van Order home. That would explain why those individuals would hear the noise from the canon but not be seriously impacted by it.

Mr. Fraser noted that when speaking to both the Applicants and the Respondents, there appeared to be some disagreement on how often the canon was firing. The Applicants saying that they have heard the canon fire as often as every 2 minutes while the Respondents said that they set it to fire about every 10 minutes. He felt this was a large discrepancy. Firing the canon every two minutes over 10 hours is 300 firings, while every 10 minutes is only 60 firings. Mr. Fraser's experience with scaring birds is that if the canon is fired too frequently it becomes less effective.

The Board was directed to Section 10 of Publication NPC-232 which states that"the operation of a pest control devise employed solely to protect growing crops is prohibited during the hours of darkness, sunset to sunrise."

It was Mr. Fraser opinion that this prohibition "was included to limit the use of canons in scaring birds from vineyards, which was where most canons on most farms are employed."

"There is still plenty of light for birds to eat for 30 minutes after sunset and 30 minutes before sunrise, so for vineyards, normal canon operation is between these times." Mr. Fraser noted that canons sound louder at night when the background sound levels are much lower than during the daytime.

Monique Pigeon

Monique Pigeon has been an Area Biologist with the OMNR in the Peterborough District (Kingston Area Office) from 2001 to the present. She was called as a Board witness pursuant to Section 5 (6) of the Act. She did not recommend using "bird bangers" to control deer because the deer get used to the noise too quickly and cease to be repelled by it. She suggested alternate control measures such as soap and human hair. It was her view that these options should be looked at before killing of the deer which should be the last option.

She felt that a controlled hunt was an option. She was not aware of any one using "bird bangers" to control deer.

Eugene Deshane

Eugene Deshane is been an Integrated Resource Specialist with OMNR in the Kingston office since 1999 and prior to that time was a Resource Technician since 1989. He was called as a Board witness pursuant to Section 5(6) of the Act. He felt "bird bangers" were not a control method of choice for deer because the deer become accustomed to the noise too quickly. He supported alternate control methods and suggested farmers should work together to allow controlled hunts. He had no knowledge of any one using a "bird banger" at night to control deer.

The Issues

1. Whether the Applicants are directly affected by a disturbance.

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

1. Whether The Applicants Are Directly Affected By A Disturbance.

Section 5 of the Farming and Food Production Protection Act, 1998 permits a person directly affected by a disturbance from an agricultural operation to apply to the Board, for a determination as to whether the disturbance results from a normal farm practice.

Accordingly, the initial issue for determination by the Board is whether the Applicants are directly affected by a disturbance in the form of noise produced by the Respondent "bird banger".

The Board finds that all of the witnesses were credible individuals not given to exaggeration. The evidence of the Applicants Peter and Carolyn Van Order was that the noise of the canon deprived them of sleep and the normal use and enjoyment of their home.

If that were not so, it would be hard to rationalize renting alternate accommodations during the summer of 2002 in an effort to avoid the noise from the "bird banger". We find that their evidence was corroborated in part by the evidence given by Mr. Fraser. A given noise sounds louder at night when the background levels of noise are much lower than during the daytime. That effect would be even more pronounced in this case because the Respondents farm is in a remote and quiet location away from traffic and commotion. We are mindful that it would be more difficult to escape or to accommodate the noise at night than during the daytime. It is less likely for example, that a radio or television or air conditioner would operate at night to help to muffle or cover the noise. It is also more likely that the

Applicants would or could be away from the home during the daytime while working, shopping, or otherwise and thereby escape the noise.

Mr. Fraser's evidence was unchallenged by any other technical evidence. His evidence confirms that the sound level record exceeded the Ministry limits and that on some occasions the magnitude of the sound was not border line but rather considerably in excess of the Ministry limits.

We find that the persistence and intensity of the noise caused the Applicants to be directly affected by a disturbance as defined by the legislation. Accordingly, they are entitled to have the practices of the Respondent farm operators reviewed by the Board.

Having decided that the Applicants are directly affected by a disturbance produced by the Respondent farm operators, we must now consider whether the disturbance is the result of normal farm practices as defined by the Farming and Food Production Protection Act, 1998.

2. Whether The Respondent Farm Operation Is A Normal Farm Practice Application Of The Act

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

a) "a practice that 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". We consider the second part of the definition first. Earl Nolan testified that the propane-fired canon now in use was purchased by him approximately 15 years ago. The evidence of Mr. Fraser was that propane fired canons are available in a wide range of configurations ranging from earlier mechanical single-shot units to the present day fully electronic, randomized, rotating multi-shot units. The Respondents canon he said is an early unsophisticated unit. The type of propane-fired canon used by the Respondent has been in existence for many years and used for the purpose of scaring birds from orchards, vineyards, crops and other areas. We find that the canon used by the Respondent would not qualify as "innovative technology" for the purpose of qualifying the Respondents farm operation as a normal farm practice as defined in Section 1(b) of the Act.

The first definition of normal farm practice set out in Section 1(a) of the Act is a comparative one. It invites a comparison between the farm practice as carried on by the Respondent farm operators and other farm operators under similar circumstances. The onus of establishing that the farm practice carried on by the Respondents is "consistent with proper and acceptable customs and standards established and followed by similar agricultural operators under similar circumstances" rests upon the Respondents.

Findings From The Evidence

There was considerable evidence that there are a large population of deer in the area of the Respondents farm which have caused considerable damage to the horticultural crops. This damage has significantly impacted the ability of the Respondents to produce those crops at a profit.

We accept the evidence of Mr. Hugh Fraser that the use of a propane-fired canon "bird banger" to produce loud bursts of noise intermittently to repel birds from vineyards, during the daylight hours of sunup to sundown is a long established farm practice in Ontario. We are satisfied that the sound level limits for Pest Control Devises contained in Section 9(1) of Publication NPC-232 and the prohibition against operating the canon during the hours between sundown and sunup was the Ministry's response to complaints of noise by neighbours who lived in close proximity to those using the noise producing Pest Control Devises.

We believe the Ministry guidelines which allow the canon to operate during the day time from sunup to sundown but not from sundown to sunup strikes reasonable balance between the interests of the neighbours who are better able to compromise during the daytime and farmers who are expected to compromise from sundown to sunup, at a time when most rural residents would be more likely to be at home with their families and have the reasonable expectation of enjoying relative peace and quiet.

As previously stated the onus of establishing a normal farm practice is upon the Respondent farm operators. There was no evidence presented at this Hearing that would justify a finding by the Board that the operation of the canon at night is a normal farm practice. The evidence was to the contrary. There was some anecdotal evidence that some farmers had tried using a "bird banger" at night but had ceased either because of complaints by neighbours or because the practice did not achieve the desired results.

There was no evidence of anyone other than the Respondent farm operator presently using a "bird banger" at night. The evidence fell far short of establishing that this farm practice of using a propane-fired canon at night is "consistent with proper and acceptable customs and standards established and followed be similar agricultural operations under similar circumstances". It follows that the operation of the propane-fired canon by the Respondent farm operator during hours which are prohibited by Section 10 of the Ministry of the Environment Publication NPC-232 cannot be considered a normal farm practice.

We accept the evidence of Mr. Fraser, Mr Kaiser, Ms. Pigeon, and Mr. Deshane that the use of the "bird banger" is not the only means available to the Respondents to repel deer and that the "bird banger" may not be the most desirable method of doing so. In different ways these witnesses expressed the view that a more encompassing program of control is necessary. Mr. Kaiser encouraged controlled hunts and bow hunters. He has attempted to make his farm a less desirable home for wildlife and birds by removing fence bottoms to eliminate their habitat. The evidence of these witnesses suggest that the 'bird banger" alone is not the solution. We accept the Respondents view that the construction of fencing of sufficient quality to repel deer might be impractical because of the labour and material cost.

That would be rendered even more so because of the small acreage of horticultural crops grown by the Respondent.

The Respondents testified that they had in previous years grown corn and had operated the "bird banger" during the daytime. They did however suggest that the growing of sweet corn continued to be an option available to them.

Section 5 (4) of the Act provides that after a hearing, the Board shall,

a) dismiss the application if the Board is of the opinion that the disturbance results from a normal farm practice;

b) order the farmer to cease the practice causing the disturbance if it is not a normal farm practice; or

c) order the farmer to modify the practice in the manner set out in the order so as to be consistent with normal farm practice.

Decision

The Respondent operator's use of a propane-fired canon between sundown and sun up is not a normal farm practice and the Respondent farm operators are ordered to cease the practice.

The operation of the propane-fired canon between sunup and sundown is a normal farm practice so long as the sound level produced by the canon does not exceed the limits established by the Ministry of the Environment in Section 9(1) of Publication NPC-232.

DATED: November 28, 2003

Original Signed By:

Linda O'Neill, Member

Original Signed By:

Andy Millar, Member

Original Signed By:

Robert G. Stephens, Chair