Hill and Hill Farms Ltd. v. Municipality of Bluewater, 2003 ONNFPPB 26

ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Hill v Mum of Bluewater

2003 ONNFPPB 26

DATE OF DECISION:

2003-03-31

2002-03

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

Hill and Hill Farms Ltd. – Applicant

And

Municipality of Bluewater – Respondent Municipality

And

Brian Gerald Van Aaken and Shelley Elizabeth Van Aaken – Respondent

REASON FOR HEARING

This Hearing results from an application by the Applicant under Section 6 of the Farming and Food Production Protection Act, 1998 for a determination that the Minimum Distance Separation requirements of the Municipality of Bluewater Zoning By-Law No. 22-1985 contained in Section 4.5 and Section 29 restrict the ability of the Applicant to carry on a normal farm practice.

BACKGROUND

In 2001, the Applicant applied to the Municipality of Bluewater, in the County of Ruron for a building permit to construct additions to the existing farrowing barn and gestation barn to allow for the expansion of the swine production capacity on the subject property from 700 sows to 1350 sows.

The Applicant applied to the Municipality of Bluewater for three minor variances required in order for the proposed expansion to comply with existing zoning requirements of Municipality of Bluewater Zoning By-Law 22-1985. The first minor variance was to reduce the front yard set-back requirement for the proposed farrowing barn, the second, to reduce the MDS to the Neighbour to the North West (Brian and Shelley Van Aaken) and the third, to reduce the MDS to the Municipal Complex of the Township of Stanley. Following a Rearing, each of the three requests for minor variances were rejected.

The Applicant reduced the size of the proposed expansion plans and the number of animal units, thereby reducing the required MDS to the residence of Brian and Shelley Van Aaken to a point where the MDS to the Van Aaken property complied with the Zoning By-Law. A new application was submitted to the Municipality for three minor variances. The first was to reduce the front yard set-back requirement for the proposed farrowing barn, the second was to reduce the MDS from the expanded farrowing barn to the Municipal Complex of the Township of Stanley and the third was to reduce the MDS from the expanded gestation barn to the Municipal Complex of the Township of Stanley. Each of the three requests for minor variances were rejected following a Hearing.

On October 11, 2002 the Board Secretary received communications from the Applicant, accompanied by a diagram advising that the proposed farrowing barn would be moved to a location adjacent to and East of the proposed Gestation barn thereby eliminating the requirement for a minor variance to reduce the front yard set back for the proposed farrowing barn.

The Applicants initiated this Application through a letter dated June 6th, 2002, forwarded to the Secretary of the Normal Farm Practices Protection Board. On October 22;''2002 immediately prior to the hearing of this matter Ms. Evans on behalf of the Respondent Municipality of Bluewater presented a Motion challenging the jurisdiction of the Normal Farm Practices Protection Board to adjudicate this matter. After hearing presentations by Ms. Evans, Ms. M' Garry and Mr. Hill on behalf of their respective clients, the Board ruled that the Normal Farm Practices Protection Board does have jurisdiction to adjudicate the issues involved in this application and that the hearing should proceed.

SUBJECT OF THIS BEARING

The subject of this Hearing is the proposed expansion of a farrQwing barm and a gestation barn which are part of a Segregated Early Weaning Swine operation owned and operated by the Applicant at Lot 15, Bayfield Road South Concession in the Township of Stanley, and the conflict between the Minimum Separation Distance (MDS IT) provisions of the Township of Stanley Zoning By-Law No. 22-1985 and the proposed location for the expanded farrowing barn and gestation barn.

APPLICANTS

Hlll and Hlll Farms Ltd. is an Ontario Corporation. Bev Hlll is the majority shareholder and President. The main businesses of the Applicant consist of swine farming, the operation of a commercial grain handling elevator in conjunction with Varna Grain and cash crop production.

The agricultural operation which is the subject of this hearing is a segregated early weaning swine operation. The existing buildings that are the subject of this application are located on Lot 15 in the Bayfield Road South Concession in the Municipality of Bluewater, formerly in the Township of Stanley. The proposed farrowing and gestation barn would be located immediately adjacent to the existing facilities. In conjunction with the swine operation the Applicant owns, Lot 15, 16, 17 and 18, comprising of approximately 350 acres of workable land all located on the South side of the Bayfield Road. Operating a grain handling facility and cash crop farming are other farm enterprises carried on at that location. The Applicant carries on farm operations in four other locations on a total land base of approximately 1000 acres.

The swine farm is located on the south side of Bayfield Road.

Bev Hlll has been involved in the business of swine farming at the subj ect location since 1968 and all of the subject land has been owned by the Applicant since 1967.

RESPONDENT - The Municipality of Bluewater

The Respondent, Municipality of Bluewater, is an amalgamation of the former Townships of Stanley and Hay and the Villages of Bayfield, Hensall and Zurich.

RESPONDENT - Brian and Shelley Van Aaken

The Respondent, Brian and Shelley Van Aaken, are the owners of a farm property located on Lot 15, Bayfield Road North Concession, Township of Stanley and the property lies north of the land of the Applicant on the North side of the Bayfield Road so that the land is separated from the Applicant swine operation by the Bayfield Road. Mr. and Mrs. Van Aaken have three children and have resided on the property since 1991. They carry on a cash crop farming operation.

FARMING AND FOOD PRODUCfION PROTECfION ACT

The Farming and Food Production Protection Act, 1998 (the "Ad') 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 management practices."

Section 6 (1) provides that:

"No Municipal By-Law applies to restrict a normal farm practice carried on as part of an agricultural operation."

Section 6 (2) provides that:

"A person described in Sub Section (3) or a municipality may apply to the Board, in form acceptable to it, for a determination as to whether a practice is a normal farm practice for purposes of the non-application of a Municipal By- Law."

Section 6 (3) provides that:

"An application may be made by,

a) farmers who are directly affected by a Municipal By-Law that may have the effect of restricting a normal farm practice in connection with agricultural operation;" and

b) persons who want to engage in a normal farm practice as part of an agricultural operation on land in the municipality and have demonstrable plans for it."

Section 6 (15) provides that:

"In determining whether a practice is a normal farm practice, the Board shall consider the following factors:

1. The purpose of the by-law that has tlle effect of restricting the farm practice.

2. The effect.ofthe farm practice on abutting lands and neighbours.

3. Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.

4. The specific circumstances pertaining to the site."

Section 6 (16) provides that:

"After the Board has completed the hearing, it shall provide a written decision stating whether the Board is of the opinion that:

a) The farm practice is a normal farm practice;

b) The farm practice is not a normal farm practice; or

c) The farm practice will be a normal farm practice if the farmer makes specific modifications in the practice within the time set out in the decision.

OPERATION OF THE APPLICANT

The existing swine facility consists of a farrowing barn and a gestation barn together with ancillary smaller barns. The Manure produced at the swine facility is stored in three covered manure tanks, one located immediately west of the gestation barn and two immediately west of the farrowing barn. The stored manure is spread on the cash crop land immediately contiguous to the swine facility.

The swine operation is referred to as a segregated early weaning facility. There is an existing capacity for approximately 700 sows and the requisite replacement stock. Following farrowing the pigs remain with the mother in farrowing crates for approximately 18 days at which time they are weaned and removed to another off-site facility for finishing. The Applicant owns and operates farming enterprises at four other locations on a total land base of approximately 1000 acres.

The original swine facilities on Lot 15 were built in 1968 and accommodated 122 sows.

In 1978, the facilities were remodelled and added so as to accommodate 325 sows. In 1995, the operation was changed to a segregated early weaning facility. Additions and renovations at that time increased the capacity to 550 sows. An expansion in 2000 increased the capacity to 700 sows along with the replacement gilts.

The expansion proposal of the Applicant giving rise to this Hearing is to construct a new farrowing barn measuring 88' x 110' and a gestation barn measuring 80' x 243' to accommodate 650 additional sows thereby increasing the total capacity at the subj ect location to 13 50 sows together with the requisite replacement stock. The proposal (Exhibit 3) is to construct the new farrowing barn immediately east of the new gestation barn and both adjacent to the existing barns.

POSITION OF THE PARTIES

APPLICANTS:

On behalf of the Applicant, Mr. Hill submitted that:

1. The existing swine operation and the proposed expansion are consistent with normal farm practice.

2. The MDS n provisions contained in Sections 4.5 and 29 of the Township of Stanley Zoning By-Law No. 22-1985 restrict the Applicants ability to carry on a normal farm practice by requiring that the Minimum Distance Separation between the proposed barns and the institutional zone ( the "Stanley Complex") be two times the Minimum Distance Separation required between the proposed barns and the nearest neighbours dwelling and areas zoned or designated Agriculturally related Commercial Use, Passive Recreation or Industrial.

3. The normal farm practice in the surrounding area in .those situations involving an expansion of an existing livestock facility next to an institutional zone is to require compliance with MDS IT but not to use a factor of two (2) in the calculations so that there is not a "doubling" of the Minimum Distance Separation.

4. "Doubling" the Minimum Separation Distance in this case results in a significant additional cost to the Applicant for providing and servicing to the new barns in an area separate and apart from the existing operation. Such a requirement promotes the inefficient use of labour and management and makes control more difficult.

5. In calculating the Minimum Distance Separation, the measurement should be the distance between the proposed barn and the "institutional use" rather than the distance between the proposed barn and the closest point of the "institutional zone"

6. The Township of Stanley restricted the Applicants ability to expand the swine facility located on Lot 15 by constructing the Township of Stanley Municipal Complex in close proximity to the Applicants existing swine operation at a time when the Township of Stanley had not yet implemented a comprehensive Zoning By-Law, thereby depriving the Applicant of any input in that decision.

7. The Township of Stanley should not have located the Municipal Complex in an area adjacent to an intensive livestock operation that had a history of rapid expansion and a sufficient land base to continue that expansion into the future.

RESPONDENT

The position of Ms. Evans on behalf of the Respondent- Municipality of Bluewater and Ms. M' Garry, on behalf of the Respondents-Brian and Shelley Van Aaken overlapped and were consistent and for that reason the position of the Respondents has been combined.

On behalf of the Respondent, Municipality of Bluewater, and the Respondent, Brian and Shelley Van Aaken, Ms. Evans and Ms. Garry submitted that:

1. The MDS 1I provisions of the Township of Stanley Zoning By-Law No. 22- 1985 are a reasoned response to the need to promote the long term future of agriculture and the provisions are consistent with Provincial Policy Statements, the County of Huron Official Plan and the Township of Stanley Secondary Plan and normal practice. The Applicants proposed expansion is not consistent with normal farm practice because it does not respect those standards.

2. The Municipality of Bluewater properly interpreted the Implementation Guidelines of the (MDS IT) by measuring the Minimum Distance Separation from the closest point of the proposed barn to the closest point of the "institutional zone"

3. The Applicant had the option of objecting to the provisions of the Township of Stanley Zoning By-Law No. 22-1985 when the draft by-law was circulated in 1985 but did not do so.

4. The by-law requirement of MDS 1I with a factor of 2 was appropriate in the present case because of the intensive use of the Stanley Township Municipal Complex for much of the year by people of all ages.

5. The MDS 1I provisions of the Township of Stanley Zoning By~Law No. 22-1985 do not restrict the Applicants ability to expand the swine operation because other locations for the placement of the proposed barns are available on the Applicants's land base and the additional cost for providing services to a separate location are not significant given the dimension of the proposed expansion.

EVIDENCE OF WITNESSES

Witness #1

Ms. Elizabeth Ensberth Willard

Ms. Willard testified that she resides in the Township of Hay. For a number of years commencing in 1993 until December of 2000, she.had been the Clerk of the Township of Stanley and had worked at the Stanley Township Municipal Complex. It was Ms. Willard's evidence that during the years she was employed at the Municipal Complex, she had not experienced odours from the Applicant's swine operations either inside or outside the complex except on four or five occasions per year when the Respondent agricultural operators were spreading manure on the fields. She stated that she had walked around the grounds of the Stanley complex on a regular basis and was in a good position to observe odour levels.

Ms. Willard stated that the Municipal Complex was used on a regular basis for sporting and recreational purposes. The pavilion was often used for picnics, and the ball diamonds were used most evenings from May until the end of September. The facilities, including the ball diamonds, were also used on weekends. The auditorium was rented for weddings and for seniors shuffleboard. The auditorium was used regularly on weekends and sporadically throughout the week. Ms. Willard estimated that the facility was used 185 days per year. During the time the complex was used, the number of people, either inside or outside the facility varied from a very few to a large number.

Witness #2

DavId Gordon Hanly

Mr. Hanly is the Director of Planning for Perth County. He was a planner with perth County from 1977 and has been a Director of Planning since 1985. He was qualified as an expert in Land Use Planning Issues.

Mr. Hanley testified that Perth County is divided into four municipalities namely Perth- East, North-Perth, West-Perth, and South-Perth. The four municipalities are the result of the amalgamation of fourteen townships which had existed prior to amalgamation. He stated that each of the four municipalities have a Comprehensive Zoning By-Law. The four documents are the same and were the result of a Generic By-Law prepared in house for all four municipalities.

The same MDS provisions re included in each of the four by-laws.

Mr. Hanly stated that the primary distance for MDS IT is the setback from the nearest neighbouring use. In 1995 revisions were made in Perth County dealing with setback requirements from Institutional uses. Two of the foulieen original municipalities in Perth County acted to lessen the set back distance to Institutional uses. Now variations in the setback distance from institutional used are set out in the Comprehensive Zoning By-Laws of each of the four municipalities in Perth County. The distance to some institutional uses was lowered from a factor of l. A factor of 1 was applied to all existing churches located in agricultural areas, landfills, sewage lagoons, existing government offices, work yards, township offices, open space parks and ball diamonds. Generally these uses were all non-intensive. The 2 factor was retained for other institutional. used such as schools and hospitals. He stated that this variation was completed in consultation with the Ontario Ministry of Agriculture and Food. He stated that there were no appeals to the four municipal by-laws with respect to this issue.

Mr. Hanly stated that he had done a quick tour of the Stanley Municipal Complex. He testified that the existing Municipal offices in Perth County typically consisted of three or four offices and were smaller then the Stanley Municipal Complex. He stated that the Perth County Municipal facilities do not have an auditorium,

In determining if that factor of I or 2 should be used to calculate the MDS, Mr. Hanly's opinion was that it is necessary to look at the type of use. In his opinion, baseball diamonds and offices would be I and an auditorium would be 2. The important thing to look at is the predominant use. He stated that there was a general feeling within the municipalities in Perth County that a doubling of the Minimum Distance Separation in the case of all institutional uses could significantly restrict the ability of the farmers to expand their facilities. As a result, the zoning by-laws of each of the four municipalities in Perth County differentiate between the types of institutional uses in determining the MDS setback.

When asked by Ms, McGarry if an underground manure storage facility as proposed by the Applicant would require a factor of 2 in Perth County, he replied that it would,

Witness #3

Brian Gerald Van Aaken

Mr. Van Aaken has resided at Lot 15, Bayfield North Concession which lies on the North Side of the Bayfield road almost directly opposite from the Respondent swine facilities since 1991 when he and his wife purchases the property. Mr. And Mrs. Van Aaken have three children. They operate a cash crop farming operation.

Mr. Van Aaken testified that for many years he had lived two miles further down the road than where he is now and he was aware of the "Hill" operation when he purchases the present farm . He has been a regular visitor to the Stanley Municipal Complex since he was 12 years old.

He stated that in the last ten years there have been two expansions at the Applicant's swine facilities on Lot 15. He stated that he had not received notice of any other expansions. In discussing the impact of disturbances created by the Respondent farm operation, Mr. Van Aaken stated that he had installed air conditioners in his home because he is unable to keep the windows open at night due to the odour. He stated that the odour increased as the number of swine maintained in the Respondent facilities increased. He expressed his concern that the new proposal of the Respondent would increase the odour and also the noise from fans. He stated that he has raised the issue of odours to Mr. Hill in August 2000. He had also expressed to James Hill, the son of the Respondent, his concern about the odour emanating from an incinerator which has been used by the Respondent farm operator to burn dead livestock. He stated that the odour from the incinerator is revolting. He confirmed that nothing was done initially following his complaint but the incinerator has now been moved to the back from the front of the barn and the odour is now less intrusive.

He expressed his concern that in the proposal as submitted by the Applicant, the barns would be of sufficient size that the Respondent could change the type of operation from loose housing to a crated system on which case there would be a capacity for 2 500 sows, almost double the number that the existing plans anticipate. It was his feeling that if the capacity was increased to 2500 sows that there would be a proportionate increase in the odour. Mr. Van Aaken stated that in his opinion, the Respondent farm operator had sufficient land to allow the proposed expansions to take place in other locations and still be in compliance with the MDS requirements of the Stanley Township Comprehensive Zoning By-Law#22-l985

Witness #4

Wayne Joseph Caldwell

Dr. Caldwell is the Senior Planner for Huron County. He is a Professor of the Rural Development Program at the University of Guelph. He was qualified as an expert witness on "Land Use Conflicts". Dr. Caldwell's evidence was that he is familiar with the Applicant's proposal for expansion. He briefly outlined the proposal and stated that the distance between the closest proposed barn and the institutional zone occupied by the Stanley Municipal Complex is 190 metres rather then 600 metres which is the Minimum Distance Separation required to comply with Section 4.5 and Section 29 of the Township of Stanley Comprehensive Zoning By-Laws, 16 #22-1985.

Dr. Caldwell stated that the former Township of Stanley is now part of the municipality of Bluewater which is the amalgamation of the former townships of Stanley and Hay and the villages of Hens all, Zurich, Bayfield.

It was Dr. Caldwell 's opinion that the new buildings proposed by the Respondent would be located on Class # 1 land which is some ofthe best land in Canada. He explained that the area around the Village of Varna to the east, is zoned AG2 which is a restrictive zone. The Applicant's proposed development is in a Zone AG 1 and an agricultural use is a permitted use in AG1 zone.

The provisions of the zoning and planning documents relevant to this application were outlined. The Huron County official plan is current and was adopted in 1998 and approved by the Ministry on March 4,1999. The plan recognizes the importance of agriculture and calls for proper planning for agriculture and its expansion. The theme of the plan is supportive of agriculture. The plan provides that all development in agriculture areas is subject to MDS formula.

The Stanley Township Secondary Plan was passed in 1979 and approved in 1982. Dr. Caldwell testified that the basic principal of the plan is to promote the long term future and viability of agriculture. The plans, goals and policies are directed to that purpose. The plan requires that all farm operations and buildings permitted by the plan must comply with the Minimum Distance Separation provisions of the Agricultural Code of Practise. The Agricultural Code of Practise was the precursor of the MDS formulae, a little different but basically providing the same result.

The Stanley Township Comprehensive Zoning By-Law #22-1985 incorporates Minimum Distance Separation formulae and provides in Section 4.5 that no livestock facilities shall be erected or expanded unless it "complies with the MDS II calculated using Section 29 to this bylaw." He stated that the MDS II provision has been in place in Stanley Township since 1996. Section 29 contains specific provisions related to MDS II. Dr. Caldwell outlines the step-by-step process required to calculate the appropriate Minimum Distance Separation for the Applicant's proposal. The result of his calculation was that the Minimum Distance Separation from the closest proposed barn to the Van Aaken residence is 302 metres and the Minimum Separation Distance from the proposed barn to the institutional zone being the Stanley complex is 604 metres because Section 29 requires that the Minimum Separation Distance between a proposed livestock barn and an institutional zone must be doubled, in this case from 302 to 604 metres.

It was Dr. Caldwell's evidence that the Stanley Township Comprehensive Zoning By-Law #22-1985 incorporates those provisions of the provincial policy statement relating to Minimum Distance Separation, The municipalities, he said, are to have regard to the provincial policy statement when developing policies and by-laws. Stanley Township has done so.

It was Dr. CaldweII 's opinion that since the Stanley Municipal Complex is a Community Centre a "doubling" of the Minimum Distance Separation as required by Section 29 is appropriate. He stated that some of the townships have reduced the MDS factor from 2 to 1.

Applying a factor of 2 can be a problem for agriculture in those cases where the proposed expansion is next to a passive institutional use as a utility shed or a cemetery. Perth County, he said, dealt with that issue and categorically imposed a factor of 1 for some institutional uses in recognition of the considerable restriction that could otherwise be placed on agriculture expansions. He stated that he liked what Perth County did in striking a balance and that a factor of 1 is more fair in some cases. He reiterated that under the present circumstances factor 2 was appropriate because of the intensive use of the Stanley complex as a Community Centre. Perth County made an appropriate revision that works but reducing the factor to 1 across the board would create concerns. Dr. CaldweII testified that some townships in the County of Huron such as Usboume and Stephen chose a factor of 1 and do not require a "doubling" of the MDS where agriculture expansion takes place in proximity to institutional use. He said that he was involved in preparing those by-laws in Usbourne and Stephen Townships and "my opinion had changed". He said municipalities were looking for ways to avoid the restrictive nature of applying MDS times 2 across the board.

Dr. Caldwell's evidence was that at the time the Stanley Township Complex was built, there was no Comprehensive Zoning By-Laws in Stanley Township. The Comprehensive Zoning By-Law was adopted in 1985 and the complex was built in 1984. Dr. Caldwell confirmed that Mr. Hill would not have had input regarding the location of the Municipal Complex because an institutional use had already been established at that location. The property had been used for municipal purposes for a number of years. Dr. Caldwell testified that a complex such as the Stanley Municipal Complex incorporating as it does, a Community Centre would be more appropnately places in urban centres because its presence can be very restrictive when placed in an agricultural area.

It was Dr. Caldwell's opinion that the Minimum distance separation should be calculated by measuring the closest proposed livestock facility to the institutional zone. He acknowledged that Hay Township calculated the measurement from the closest proposed livestock facility to the actual use within its zone. The Stanley Township Comprehensive Zoning By-Law requires that the measurement be to the institutional zone and not to the institutional use.

Witness #5

Ben Hill

Mr. Hill testified that he resides on Lot 16, Bayfield Road South Concession in the municipality of Bluewater in the former Township of Stanley, in the Count ofRuron. The Respondent, Hill Farms Ltd. owns Lots 15, 16, 17, and 18, Denfield Road South Concession, comprising 350 workable acres which land was purchased in 1967. Hill Farms Ltd. own all land between the Respondent grain elevator carrying on business as Varna Grain and the subject swine farm .

Mr. Hill has operated a farrowing facility on Lot 15 since 1968. The Respondent operation is a segregated early weaning system. The system invo 1 ves weaning the pigs at eighteen days of age and moving them to an off-site nursery. Mr. Hill outlined the previous expansions to the swine operations since 1968. The proposal which is the subject of this Hearing is to construct a new gestation barn and a new farrowing barn adjacent to the existing facilities and thereby increase the capacity from 700 sows to 13 50 sows together with the necessary replacement stock. The present proposal is an amended version of earlier proposals which had been submitted to the township for approval and had been denied.

Mr. Hill's evidence was that the existing proposal complies with the Minimum Separation Distance requirement to the closest neighbour's residence, that being Mr. And Mrs. Van Aaken.

Mr. Hill testified that the proposal meets the Minimum Distance Separation requirement to the institutional use of the Stanley Municipal Complex only if the Minimum Distance Separation is not "doubled" as required by Section 29 of the Stanley Township Comprehensive Zoning By-Law #22-1985 and only if in calculating the Minimum distance separation, the measurement is the distance from the proposed barn to the institutional use and not to the boundary of the institutional zone.

Mr. Hill testified. that the total number of animal units after the expansion would be 270, which would require a Minimum Distance Separation of 300 metres. He stated that the distance from the proposed barn to the Van Aaken residence was 308 metres and that the distance to the Municipal Complex building was in excess of 300 metres. The measurements were completed with the help of the Municipality of Bluewater Building Inspector and Mr. Harold House of the Ontario Ministry of Agriculture and Food.

Mr. Hill testified that when the make the first application for a building permit he became aware that the Stanley Township Comprehensive Zoning By-Law #22-1985 required that the Minimum distance separation be multiplied by a factor of2 because of the proximity of his proposed barn to an institutional use. His evidence was that if the "doubling factor" was used , he would be required to set his proposed buildings 600 metres back from the property boundary of the existing municipal complex and that would place the buildings at the very back of his farm.

That location he said, is not practical because of the additional cost of a laneway, hydro and water and such a location would result the inefficient use oflabour and management as a result of operating in two locations rather than in one. He stated that another zoning factor that limits where he can locate the proposed buildings is the present zoning of much of the Respondents land in that area. Most of Lots 18 and 17 and part oflot 16 are zoned AG2 which is a restricted zone because of the proximity to Varna. "doubling" the Minimum Distance Separation in the AG 1 zone leaves a very narrow strip ofland at the back of the farm which would not be an appropriate location for the expanded facilities.

It was Mr. Hill's evidence that the Stanley Municipal Complex is used regularly by various groups. He stated that the Bluewater Council hold their meetings at that location. It is used as a municipal garage and the auditorium is used regularly for social functions and meetings.

The baseball diamonds are used regularly during the summer.

Mr. Hill conceded in cross-examination that he has no planning background and is giving his evidence as a farmer, a landowner and business person. If granted approval for the present application, he would commence building in 2003 after obtaining the building permits, a nutrient management plan and engaging a contractor.. When asked to explain the increase in the size of the proposed gestation barn as compared to the size shown in the former applications, Mr. Hill stated that the first application was a proposal for a crate gestation facility in which all sows would be in crates but the most recent proposal was for pen or group housing which requires more space for the same number of sows. Farrowing crates require an area of fifteen square feet per sow compared to the twenty- five to thirty square feet per sow from group housing. When asked to explain the variation in his inventory numbers on the different applications, he stated that his inventory fluctuates depending on how many replacement gilts are retained and how long the cull sows are retained.

Mr. Hill confirmed that following the first application to the township, he had been approached by Mr. and Mrs. Van Aaken who expressed concerns that the increased number of sows would increase the odour. They were also concerned about the consequences of a manure pipe rupture on the Respondent's land which Mr. and Mrs. Van Aaken thought was close to a ditch. The Van Aaken's also had concerns about the noise and the odour produced as a result of incinerating animals. Mr. Hill did not feel it was appropriate to describe the Van Aaken's concerns as complaints.

Witness #6

Harold Kenneth House

Mr. Harold House is employed by the Ontario Ministry of Agriculture and Food at the Clinton office. He is an Engineer whose specialty is Beef and Dairy Structures and Equipment.

He was confirmed as an expert witness in Livestock Structures. Mr. House testified that he is familiar with MDS n formulae. He reviewed the background reasons for the inclusion of MDS n formulae in municipal by-laws. He stated that the predecessor of MDS n goes back to 1970 when the poultry industry started to grow. It started as a fixed= distance and became the Agricultural Code of Practise which was a calculated distance based upon several factors. That system remained until 1995. He stated that MDS II applies when a livestock facility is built next to an adjacent land use.

Mr. House stated that he is familiar with the existing proposal of the Respondent agricultural operator. He helped to prepare the Minimum Separation Distance calculations for Mr. Hill. He had discussed the implications of the adjacent institutional land use and the requirement of Section 29 of By-Law #22-1985 that the MDS be "doubled" . Mr. House had explained to Mr. Hill that the application of the "doubling factor" when calculating MDS was a reflection of the need to increase the separation distance as the intensity of a use increases.

It was the opinion of Mr. House that the Minimum Distance Separation provisions are a necessary planning tool that should be used to avoid land use planning conflicts. The Ministry's position is the MDS should be incorporated into municipal comprehensive zoning by-laws. The Ministry have been clear in setting out their position in farm practice position statements. He stated that there was no other corresponding formulae in use in the province designed to avoid land use conflicts.

SUMMARY OF EVIDENCE

We have summarized the evidence of the various witnesses at length. The witnesses were impressive. They all presented themselves as thoughtful individuals without preconceived biases. The witnesses did not promote extreme positions.

CONSIDERING THE EVIDENCE

The evidence of the witnesses as summarized supports the following findings by the board.

1. l. The Subject lands are located within the geographic Township of Stanley, in the County of Huron. The former Township of Stanley is now part of the amalgamated Municipality of Bluewater, which consists of the former Townships of Stanley and Hay and the Villages of Hensall, Zurich and Bayfield. Lands in the geographic Township of Stanley are still governed by the Township of Stanley consolidated zoning until by-law number 22-1985 (the "By-Law"). That by-law will apply to them until a comprehensive zoning by-law is adopted by the Municipality of Bluewater.

The By-law, a certified copy of which was filed as Exhibit #5, was passed in 1985 and subsequently came into effect after the necessary approvals. In 1996, the By-law was amended to incorporate minimum distance separation. Section 4.5 of the By-law, as amended, provides that: "Notwithstanding any other yard or setback provisions of this By-law to the contrary, no livestock facility shall be erected or expanded unless it complies with the Minimum Distant Separation (MDS II) calculated using Section 29 to this By-law."

For all intents, and purposes Section 29 of the amended By-laws contains the formula and tables that are set out in the MDS II documents developed and distributed by the Ontario Ministry of Agriculture and Food (OMAF) . At "Step 4", under Section 29 of the By-law, there are two columns which are relevant to this matter. The first column is headed "neighbouring land use or boundary" and the second column "factor". Under column 1, the "Nearest Neighbour's Dwelling" shows a factor of 1.0 under column 2. "Areas zoned or designated Agriculturally Related Commercial Use, Passive Recreation or Industrial" in column 1 shows a factor under column 2 of 1.0, but "areas zoned or designated Residential, Institutional, Active Recreation or Commercial. Urban Areas" under column 1 shows a factor of2.0 under column 2. This factor shall hereafl;er be referred to as the "doubling factor".

2. The board finds that the existing swine facility of the Applicant consists of a farrowing bam and a gestation bam together with ancillary smaller barns and that it is a segregated early weaning facility with an existing capacity for approximately 700 sows and the requisite replacement stock

The Applicant owns and operates farming enterprises at four other locations in the area with a total land base of approximately 1,000 acres. The original swine facilities on Lot 15 were built in 1968 and accommodated 122 sows. In 1978 the facilities were remodelled and expanded to accommodate 325 sows. In 1995, the operation was changed to the present ·segregated early weaning facility and additions and renovations increased the capacity to 550 sows. An expansion in 2000 increased the capacity to 700 sows along with the replacement gilts.

We accept the undisputed evidence of Mr. Hill that all existing swine facilities were constructed according to the existing municipal requirements at the time and that all necessary permits were obtained.

We find that the expansion proposal of the Applicant is to construct a new farrowing bam measuring 88 feet by 110 feet and a new gestation barn measuring 80 feet by 243 feet to accommodate 650 additional sows thereby increasing the total capacity of the subject location to 1,350 sows together with the requisite replacement stock. The new farrowing bam would be located immediately east of the new gestation bam and both bams would be adjacent to the existing bams. The Board finds that the present proposal would meet MDS II requirements with respect to the nearest neighbour' s dwelling, that is the home of Brian and Shelley Van Aaken, which would require an MDS IT factor of 1.0. However, the Applicant' s proposal will not conform to the MDS IT provisions of the zoning By-law with respect to the Stanley Complex because the distance between the closest proposed barn and the institutional zone occupied by the Stanley Complex is 190 metres rather than 604 metres which is the minimum distance separation MDS required to comply with sections 4.5 and 29 of the Township of Stanley comprehensive zoning by-law (CZB) #22-1985.

3. The land upon which the Stanley Complex is located had been used for municipal purposes for a number of years before the "Stanley Complex" was constructed in 1984. Outside, there is a pavilion often used for picnics and ball diamonds which are used most evenings from May until the end of September each year. The building contains municipal offices, which were the offices for the former Township of Stanley and are now used for meetings of the council for the Municipality of Bluewater. In addition, there is an auditorium which is rented for weddings and used for other community events on a regular basis. In 1984 when the building was built, there was no comprehensive zoning by-law in the Township of Stanley.

4. The evidence of both Dr. Caldwell and Mr. Hanley confirm that the "doubling factor" was not universally used in the surrounding area. When MDS IT was downloaded from the Province to the local municipalities, who then had to consider incorporatlOg Minimum distance separation in their zoning by-laws, many rural municipalities found the "doubling factor" excessively restrictive. Within the CQunty of Huron, 11 former townships specified a factor of 1.0 when dealing with an Institutional use as opposed to the "doubling factor" set out in the Provincial MDS IT document. Those townships are West Wawanosh Township, East Wawanosh Township, Morris Township, Grey Township, Tumberry Township, Howick Township, McKillop Township, Goderich Township, Stephen Township, Usbourne Township and Hay Township. It is to be noted that Hay Township is now included in the Municipality of Bluewater. Ashfield Township, Colborne Township, Hullett Township and Stanley Township chose the "doubling factor" and Tuckersmith Township did not incorporate MDS II at all.

Neighbouring Perth County is now divided into four municipalities, namely Perth-East, North-Perth, West-Perth, and South-Perth. The four municipalities are the result of the amalgamation of 14 townships. Each of the four new municipalities have put in place a comprehensive zoning by-law which are based on a generic by-law prepared by the County. The same MDS provisions are included in each of the four zoning by-laws, but in 1995, when MDS IT was being adopted by the previous township municipalities into their old zoning by-laws, two of the fourteen original township municipalities in Perth County acted to lessen the setback distance to Institutional uses. Some institutional uses were given a "doubling factor" and others a factor of 1.0. For example, a factor of 1.0 was applied to all existing churches located in agricultural areas, land fills, sewage lagoons, existing governments offices, work yards, township offices, open space parks, and ball diamonds. A "doubling factor" was retained for other institutional uses such as schools and hospitals. This policy of distinguishing between types of institutional uses which would attract a factor of 1.0 and those that would attract a "doubling factor" is now the same in the four amalgamated municipalities in the County of Perth. A factor of 1.0 is applied to Township offices, existing churches, landfills, sewage lagoons, existing government offices, work yards, township offices, open space and ball diamonds. The" doubling factor" is applied to institutional uses such as schools and hospitals.

In total 11 of the 16 geographic townships in Huron County and all of the municipalities in Perth County would require the Applicant to comply with MDS IT without the "doubling factor" in locating the expanded facility next to municipal offices. However, the Stanley Complex is the only example in either County of a Community Centre being attached to municipal offices. It was the opinion of both Dr. Caldwell and Mr. Hanley that the presence of the Stanley Township Community Centre within the municipal complex justified the "doubling factor" . It was also their opinion that the placing of the municipal complex with the Community Centre in an agricultural area is not a good planning decision because its presence can be restrictive of future agricultural uses. It would be desirable to locate such a facility in a built up area where the possibility ofland use conflicts would be reduced. They agreed that many municipalities chose to use MDS IT with a factor of 1 because they felt the "doubling factor" would be too restrictive of agricultural development.

ISSUES

1. Is the Applicant's existing swine operation a Normal Farm Practice?

2. Is the Applicant's proposed expansion (as amended) a Normal Farm Practice for the purposes of the non-application of the MDS IT provisions contained in Sections 4.5 and 29 of the Township of Stanley zoning by-law #22-1985?

3. In calculating MDS IT, should the measurement be taken between the proposed barn and the "institutional use" or between the proposed barn and the closest point of the "institutional zone"?

NORMAL FARM PRACTICE

Section 6(1) of the Act states that

"no municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation"

The definition of "Normal Farm Practice" contained within Section 1 of the Act has two definitions.

(a) The first definition is a comparative one which indicates that a normal farm practice is a practice "conducted in a manner consistent with proper and acceptable customs and standards as established and fol1owed by similar agricultural operations under similar circumstances, or"

(b) "makes use of innovative technology in a manner consistent with proper advanced management practices."

1. Existing farm operation

Is the Applicant's existing swine operation a Normal Farm Practice?

The Applicant swine operation has an existing capacity of 700 sows with replacement stock and would be considered litrge within the industry. There was no evidence that compared the farming practices or husbandry standards of the Applicant swine operation with those of any other swine operations. The management practices of the Applicant were not called into question at the Hearing. There was no evidence of odour, dust, water pollution or noise at the location of the "Stanley Complex". Mr. Van Aaken testified that there was odour at the location of his family residence which emanated from the Applicant's swine operation. He installed air conditioners to lessen the impact of the odour. He did not indicate that the odours where greater than one would normally expect in a rural area adjacent to a swine operation. The Board found Mr. Van Aaken to be a very credible witness not given to exaggeration. He testified that he had gone to Mr. Hill to discuss his concerns about the odour emanating from the animal incinerator being used at the Applicant's swine facility. The incinerator was subsequently moved to a new location which resulted in the impact of the odour being reduced.

It was Mr. Van Aaken's evidence that he and his wife have resided at the same location since 1991 and during that time he has expressed his concerns regarding odour to Mr. Hill or Mr. Hill's son on 2 or 3 occasions. As previously stated, one of those occasions involved the odour from the incinerator. On another occasion Mr. Van Aaken expressed his concern about the potential odour that might result from the presently proposed expansion and also the existence of an manure pipe rupture which Mr. and .Mrs. Van Aaken thought was close to a ditch. We gained the distinct impression during the Hearing that Mr. Hill and Mr. Van Aaken were responsible and reasonable men attempting to understand and accommodate the needs and concerns of the other.

The Applicant has been operating the swine farm in its present location since 1968. During that time there have been several expansions to the facilities as previously described. The closest swine barn is located 190 metres from the Stanley Complex rather then 302 metres which would meet the MDS II guidelines without the "doubling factor" . The Applicant's existing swine facilities were however, located in accordance with the zoning requirements in existence at the time that they were constructed. Despite the significant short fall in the MDS of 112 metres if a factor of 1 is used or 414 metres if the "doubling factor" is used, it was the undisputed evidence of Mr. Hill that he has never received a complaint of any kind from anyone regarding any disturbance at the location of the Stanley Complex nor from the municipality who operate it. We believe that the absence of complaints under such circumstances is clear evidence that Mr. Hill takes his responsibility to control odours seriously. We believe this evidence is an important site specific circumstance to be considered in determining if the Applicant's existing operation is a normal farm practice but also in determining the MDS required to ensure that the expanded facilities will be a normal farm practice.

Having heard the evidence, we are satisfied that the Applicant's existing swine 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" and is a normal farm practice. Having decided that the Applicant's existing swine operation is a normal farm practice it is not necessary to deal with the second definition of "Normal Farm Practice" contained in Section 1 (b) of the Act.

2. Proposed farming operation

Subsection 6(3)(b) anticipates that an agricultural operator may wish to apply to this Board for a determination that a farm practice not yet engaged in would be a normal farm practice provided that they have demonstrable plans for it. We interpret this to mean that an Applicant may come to this Board with demonstrable plans for a expansion and ask the Board to determine whether or not the proposed expansion will be a normal farm practice for a purposes of a nonapplication of a Municipal byelaw. Section 6(15) of the Act requires that we consider 4 factors in determining whether a practice is a normal farm practice in: applications pertaining to by-laws. This section of the Act was quoted previously. The conclusions of the Board with regard to these factors are:

The purpose of the by-law that has the effect of restricting the farm practice.

1. In 1995, the MDS I and MDS II booklets presently used were prepared by the Ministry.

The MDS II documents contain certain background statements which may be of assistance in determining the purpose of the by-law. They are as follows:

" The agricultural community generally acknowledges that even with the best management, noise and dust cannot be eliminated for certain agricultural operations and that odours are associated with livestock production. Not all rural residents, including some farmers, can accept these conditions particularly when the nuisance is perceived to exceed acceptable levels."

"The Minimum Distance Separation (MDS) is a tool to determine a recommended distance between a livestock facility and another land use. The objective is to prevent land use conflicts and minimize nuisance complaints from odour. MDS does not account for noise and dust."

In the present context, it is clear that the sole purpose of requiring compliance with the MDS II provisions contained in the Township of Stanley zoning by-law # 22-1985 is to minimize the disturbance to the institutional use, in this case the Stanley Complex, as a result of odour from the expanded swine operation of the Applicant.

The effect of the farm practice on abutting lauds and neighbours.

2. We have considered the effect of the proposed expanded farm practice on abutting land and neighbours. Previously stated there is no evidence of odour at the location of the Stanley Complex emanating from the Applicant's swine operation. Mrs. Willard, the former Clerk of the Township of Stanley, testified that she had not experienced odour, either Inside or outside the Complex except on 4 or 5 occasions during the year when the Applicant was spreading manure.

Mr. Van Aaken testified that he had attended the baseball parks at the Complex from the time he was 12 years old but his only complaint regarding odour was at the location of his own residence. The lack of complaints regarding water pollution, noise, odours, dust or other matters arising from the Applicant's existing practices other then those stated leads the Board to conclude that practices of the farm operator have not had an unreasonably adverse affect on abutting lands and neighbours. Through the use of a sophisticated nutrient management plan the Board anticipates that the expansion of the operation of the Applicant in a location consistent with the Board's decision herein will not have a negative effect upon abutting lands and neighbours.

Whether the by-law refl~cts the provincial interest as established under any other piece of

legislation or policy statement.

3. What is now known as MDS II was initially revised and incorporated into the agricultural code of practice ' in approximately 1976. The concept and process were developed by O.M.A.F . to provide a guideline for the location of intensive livestock operations relative to residential dwellings and other non-agricultural uses on the theory that the greater the separation, the less conflict between incompatible land uses. The Board is aware of the Provincial Policy statement issued under Section 3 of the Planning Act which came into effect on May 22, 1996. We have reviewed that policy statement. It provides some very general principles. We are satisfied that the decision in this case does not contradict the Policy statement.

The specific circumstances pertaining to the site.

4. The specific circumstances pertaining to the site were considered by the Board. The Respondent's concerns related to the separation distance between the location of the proposed new barns and the location of the Respondent properties. The Respondents did not suggest that the proposed site poses an environmental threat. The Board is satisfied that the location of the proposed barns as dictated by the decision herein adequately address the Respondents concerns regarding separation distance and that such site of the proposed barns is appropriate for that purpose.

REASONS FOR DECISION

Section 16 of the Act provides that

5. " After the Board has completed the hearing, it shall provide the written decision stating whether the Board is of the opinion that,

a. the farm practice is a normal farm practice;

b. the farm practice is not a normal farm practice; or

c. the farm practice will be a normal farm practice if the farmer makes specific modifications to in the practice within the times set out in the decision.

Is the Applicant's proposed expansion as amended a normal farm practice for the purposes of the non-application of the MDS II provisions contained in Sections 4.5 and 29 of the Township of Stanley zoning by-law number 22-1985?

Dr. Caldwell's evidence was that the distance between the closest proposed barn and the Institutional zone occupied by the Stanley Municipal Complex is 190 metres. He stated that compliance with a MDS IT factor of 1.0 would require a setback of 302 metres and compliance with the MDS ITwith the "Doubling Factor" as required by Sections 4.5 and 29 of the by-law would require setback of 604 metres.

We concur with the opinions of Dr. Caldwell and Mr. House that the Minimum Distance Separation provisions are a necessary planning tool and should be used to avoid land use conflicts. The Ministry's position is that MDS provisions should by incorporated into municipal comprehensive zoning by-laws. The Ministry has been clear in setting out its position in policy statements. We accept the opinion of Mr. House that there is no other corresponding formulae in use in the Province designed to avoid land use conflicts.

We are of the opinion that compliance with the MDS II will generally be found to be a necessary requirement of a normal farm practice. However, that should not be taken to mean that noncompliance with MDS IT automatically eliminates the possibility of a farming operation being found to be a normal farm practice.

There may be extenuating site specific circumstances such as minor distance deficiencies, an ab sence of alternatives, the intensity of the disturbance, the characteristics of the surrounding land uses, and others that the Board should consider in determining if a particular farming practice is a "normal farm practice." Such an approach is implicit in the MDS II implementation guidelines which provide, inter alia, as follows:

" Minor variances to the MDS IT distances can be considered based on the site specific circumstances. Municipal officials must consult with Ontario Ministry of Agriculture, Food and Rural Affairs staff when considering a variance application. Conditions that meet the intent, if not the precise distance of MDS II or mitigate environmental impacts, will receive further consideration" .

The compliance or non-compliance with MDS ll, does not appear to us to be the sole determining factor as to whether or not a farmer is carrying on a normal farm practice. As stated by this Board on another occasion "if a farmer who was in non-compliance with MDS II but otherwise pracllsing in accordance with the accepted standards of the industry is not carrying on a normal farm practice, then is the farmer who does not carry on his business using the accepted standards carrying on a normal farm practice just because he meets MDS ll. We think unfortunately, that the question is much more complex."

In the Ontario Court of Appeal decision in Pyke et.al.v. Tri Gro Enterprises Ltd. Et.al (2001) 2001 CanLII 8581 (ON CA), 55 O.R.(3D) 257. At paragraph 71, MR. JUSTICE SHARPE, J. A. states:

"It appears to be common ground that the inquiry into whether a farming operation qualifies as a "normal farm practice" is both fact and site-specific. I agree with Charron J. A. at para. 42 that "the determination of what constitutes a "normal farm practice" must be made in a proper context, and that, depending on the practice under review, the context may be broad indeed, involving the consideration of many relevant factors including the proximity of neighbours and the use they make of their lands."

In the dissenting opinion of JUSTICE CHARRON the following appears at paragraph

"1 agree, and the parties do not dispute, that the determination of what constitutes a "normal farm practice" must be made in a proper context, and that, depending on the practice under review, the context may be broad indeed, involving the consideration of many relevant factors including the proximity of neighbours and the use they make of their lands."

JUSTICE SHARPE, J.A.. later goes on to state at paragraph 78 :

"In my opinion, a broad approach, relating the inquiry to the specific circumstances pertaining to the site with a view to striking an appropriate balance between the rights of affected property owners and nuisance creating farming operations is borne out by the language of the statute. 1 agree with the trial judge that the legislative language indicates that there should be a qualitative or evaluative element to the interpretation of "normal farm practice". As I read both the 1988 and the 1998 Acts, farming operations do not automatically gain statutory protection by showing that they follow some abstract definition of industry standards."

Continuing on at paragraph 79:

"First, both statutes require that the "circumstances", 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. Section 6 (15) directs the Board to consider, among other factors, "the specific circumstances pertaining to the site."

Having reviewed the site specific circumstances it is our opinion that locating the swinebarns where proposed by the Applicant, would not be a normal farm practice, because alternate suitable locations for the new barns are available which locations would provide an acceptable separation distance from the institutional use and at the same time be cost efficient in terms of construction, labour and management.

The evidence confirms that the Applicant could comply with the MDS 1I provisions of the By-law using a "doubling factor" by placing the new barns near the back of the farm in the AG 1 zone. The farm buildings would be a permitted use in the AG 1 zone. The new barns would be located approximately 600 metres from the institutional zone where the Stanley Complex is located. However, for the following reasons, we are of the opinion that the Applicant farm operation would be a normal farm practice if the proposed farm buildings were located in accordance with MDS IT without the requirement of the "doubling factor" In the case at hand, the agricultural operator had established his operation at its present location and had expanded several times before the Municipality constructed the Stanley Municipal Complex in 1984. Since there was no comprehensive zoning by-law for the Township of Stanley at the time, the Applicant had no way of objecting to the constructions of the Municipal Complex and when the zoning by-law was passed in 1985, had no way of objecting to the institutional use as the site had already been established as legal non-conforming. As previously noted, the Applicant's farm operation at the subject location is large by farming standards and comprises a land base of350 acres. In the absence of the institutional use the Applicant could reasonably ltave expected, that future expansions would be permitted and welcomed in this predominantly agricultural area. The evidence shows that the proposed expansion is in compliance with MDS 1I to the residence of the closest neighbour.

The planning evidence was that placing a Municipal Complex containing a community centre in the midst of any agricultural area does not accord with good planning principals because it is restrictive of agricultural expansion. Dr. Caldwell testified that the farm land in the location of the Applicant's farm operations comprises some of the best agricultural land in Canada. We find that it was entirely predictable that this new institutional use would be incompatible with the existing livestock farms and those which could be. expected to either come to the area or expand in the area. The municipality should have anticipated prior to constructing the complex in 1984 that placing the complex in that area immediately across the road from a thriving farm operation, consisting in part of a significant swine operation would lead to the very land use conflicts which have resulted.

We begin with first principals. The Farming and Food Production Protection Act 1998 protects the right of a farmer in a farming area to carry on reasonably his normal farming business. The question becomes who should bare the burden of accommodation when there is an incompatibility between the farmers normal business, reasonably conducted since 1968 in such a way as to not create a disturbance as defined by the Act, and the neighbours non-farm use of his land? The answer must be that the majority of the burden of accommodation must not fallon the shoulders of the farmer. This principal becomes even more compelling when we consider that, firstly, good planning principals would dictate that the institutional use as in this case, should not have come to this farming area and secondly, there is no evidence that the neighbours use of the institutionally zoned land was compromised in any way by the Applicant farm operation.

In the Decision of the Court of Appeal in the Pyke case, (supra), at paragraph 85, MR.

JUSTICE SHARPE, J.A. states: "I agree that a strict or automatic' first in time, first in right' approach would not be warranted and that it would result in an unduly restrictive interpretation of the Act that would unduly limit the establishment of new farming operations. However, I would not go to the other extreme and accept the proposition that the timing factor should be excluded as entirely irrelevant. In my view, the relative time of the establishment of the farming operation and the occupancy of those who complain of the disturbance it creates is one of the relevant contextual, site-specific circumstances to be considered."

It is the opinion of this Board that in the circumstances of this case timing is one of the important factors that should be taken into account, but it is only part of the larger picture. To impose a doubling of the minimum distance separation upon Mr. Hill would have the effect of imposing all the burden of the incompatibility upon him when he did not create the problem.

However, in order for this Board to find that the Applicant' s proposed expansion is a Normal Farm Practice while not complying with the MDS II provisions of the Stanley Township by-law, we must be satisfied that there are other important site specific circumstances which weigh in favour of such a finding. The following are some of the considerations we looked at.

1. We accept the evidence of the Applicant that operating two swine facilities located approximately 400 metres apart would significantly increase the labour cost and make management more difficult. We do not feel that the extra cost of servicing the second location is in anyway a determining factor on its own, but taken together the total cost of inefficiencies on an annual basis would.be significant.

2. There was no evidence of odour at the location of the "Stanley Complex". In the Pyke decision, the trial judge did take both the degree and eldent of the disturbance into consideration and the Court of Appeal confirmed that this was a proper approach.

3. It is common policy among many of the municipalities in Huron and Perth Counties to require MDS IT without the ''Doubling Factor" As stated, 11 of 16 geographic townships in Huron County chose to incorporate only a factor of 1.0 in connection with institutional uses as opposed to four who chose the "doubling factor" In our option, it is very relevant that Hay Township, which is the only other former rural township in the Municipality of Bluewater, used the 1.0 factor. A farmer with the same site specifics as the Applicant located in the geographic Township of Hay would only be required to meet MDS IT with the 1.0 factor, but this Applicant is required to comply with the "doubling factor" because the farm is located in the former Township of Stanley, albeit within the same municipality of Bluewater.

4. Compliance with MDS IT without the "doubling factor" requires that the closest proposed building to the "institutional use" be located 112 metres further away from the "institutional use" then the closest proposed barn is now located. While we acknowledge that the significant increase in capacity of the swine operation from 700 to 1350 sows would be expected to increase the odour at the location of the barns, we are satisfied that the increased buffer of 112 metres will protect the neighbouring land uses from the effects of any disturbance from odour. Such a location would result in a separation distance of approximately 415 metres from the Van Aaken residence which would be 107 metres greater then is required to meet the MDS IT provisions of the by-law. The separation distance from the institutional use would be 302 metres rather then the proposed distance of 190 metres. The increased buffer would be approximately 115 metres which would comply with MDS IT without the "doubling factor" .

For all of these reasons, it is the view of this Board that requiring the new barns to be located so as to comply with MDS IT with a factor of one is reasonable. The "doubling" thereof is not.

In calculating MDS n, should the measurement be taken between the purposed barn and the "institutional use" or between the proposed bam and the closest point of the "institutional zone"?

With respect to the manner in which the MDS II measurement is taken from the proposed= expansion to the Institutional uses, we find that the evidence is overwhelmingly in favour of the practice. in this area that the measurement must be taken from the nearest point of the proposed expansion to the nearest point of the institutional or recreational use lot line.

The capacity of the Applicant facilities

In his evidence, Mr. Van Aaken expressed his concern that in the proposal submitted by the Applicant, the barns would be of sufficient size that it could change the type of operation from loose housing to a crated system, in which case there would be a capacity for 2,500 sows, almost double the number that the existing plans anticipate. In view of this concern, we wish to clarify that our decision is based upon there being a maximum of 1,350 sows at this location after the proposed expansion.

DECISION

Having considered all of the evidence, it is the opinion of this Board that the proposed expansion of the Applicant's present hog operation is not a Normal Farm Practice, but the proposed expansion would be consistent with Normal Farm Practices if the Applicant makes the following specific modifications to the Practice.

The Board does hereby order as follows:

1. The proposed expansion must comply with (MDS II) without regard to the doubling factor with respect to the location of the institutional and recreational use, i.e. the lands of the Municipality of Bluewater, notwithstanding the provisions of the Township of Stanley Consolidated ZoD,ing By-law 22-185, as amended;

2. In calculating (MDS II) in relation to the institutional and recreational use, the measurement must be taken from the nearest point of the proposed expansion to the nearest point of the institutional and recreational use lot line; and

3. The number of sows comprising the Respondent's swine operation at the location of the proposed expansion that is the subject of this Hearing including both the existing and expanded facility must be limited to 1350 sows.

4. For the purposes of an appeal from this Decision the I" day of the 30 day appeal period shall be the date that these Reasons for Decision are released to the Parties.

DATED: March ,2003

C.WALKER

LINDA O'NEILL

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