Yake v Town Fort Erie, 2003 ONNFPPB 99

ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Yake v Town Fort Erie

2003 ONNFPPB 99

DATE OF DECISION:

2003-10-21

2003-01

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

William Yake and Tracey Margo Yake – Applicants

And

The Municipal Corporation of the Town of Form Erie – Respondent

Decision

Purpose Of The Hearing

This Application is made by William Yake and his wife Tracey Margo Yake for relief under Section 6 of The Farming and Food Production Protection Act with respect to Town of Fort Erie by-law no. 51-2003. The Applicants seek a determination as to whether a tire fence constructed on their property at 2268 Burger Road in the Town of Fort Erie constitutes a normal farm practice.

At the commencement of the hearing it was determined that Tracey Margo Yake was a coowner of the subject lands and she was added as an Applicant together with her husband William Yake on consent. Mrs. Yake was not present for the hearing. The hearing took place at the Town of Fort Erie Municipal building, 1 Municipal Centre Drive, Fort Erie, Ontario on July 29 & 30, 2003 and August 5, 2003. The hearing was recorded, at the request of the Respondent, pursuant to Rule 39(5) of the Board’s Rules of Practice and Procedure. A site visit was conducted by the Board on the morning of July 30, 2003 in the presence of the Panel, the acting Secretary of the Board, both Counsel for the Respondent, the Applicant William Yake and his Agent and Carolyn Kett, Town Clerk.

Evidence

Witnesses For The Applicants

William Yake

William Yake is 52 years of age. He and his wife Tracey are both truck drivers by trade. In approximately 1998 they purchased 50 acres more or less at 2268 Burger Road, in the Town of Fort Erie. The legal description of the subject lands is Part Lot 9, Concession 15 from the Niagara River, formerly in the Township of Bertie, now in the Town of Fort Erie, Regional Municipality of Niagara as in R.O. 722553.

At some point between the time of purchase and his heart attack in 2001 Mr. Yake had ten cattle and ten calves located on the farm, but these were disposed of when he became ill.

When he and his wife moved to the property they brought some horses with them. He now has five adults and two young horses located on the property. They are "Paints" and he and his Wife breed and show them. Two of the adults included in this number have been sold and no longer belong to him. The only crop presently grown on the property is hay, which he harvests for his own personal use. Only 25-30 acres of the 50 acres is cultivated. The property also includes a house, utility shed, a six-stall horse barn with a run-in for shelter and a 30 by 48 foot pole barn for storage of hay and equipment.

William Yake has not declared any farm income for the last two years for income tax purposes. He does not have a farm business registration number and he is not a member of the Ontario Federation of Agriculture.

In an article contained on the front page of the July 26, 2003 issue of the Standard, a newspaper of general circulation in the St. Catherines - Niagara area, he is described as a "52 year old trucker and hobby farmer". On cross-examination, he initially agreed with that description.

Mr. Yake testified that he was in need of fencing, had heard about tire fences and got in touch with Paul Steffanson. In the fall of 2000 he started to receive used automobile tires on his property for the purpose of constructing fencing for his livestock. His evidence was that he has now received approximately 5,000-7,000 tires in seven to eight separate loads. Some of these have been constructed into a barrier to enclose a pasture. They are stacked on their sides’ approximately two tires deep and five tires high. Some are still stored in a trailer on the property pending the resolution of this matter. For the most part the tires are used automobile tires; however, there are some large tractor-type tires, which have been set into the ground vertically to construct a smaller corral for horses. Still other used automobile tires have been set into the ground vertically side by side along the front boundary of the property, topped by a facer board and painted white. This particular fence appears to be of ornamental use only.

Mr. Yake testified that he was unable to complete the fences as a result of his heart attack in 2001 and intends to do so as soon as the issues with the Ministry of the Environment and the Town of Fort Erie have been resolved in his favour.

Arrangements for the delivery of the tires to his property were made by Mr. Steffanson’s company, SIR Systems. SIR Systems would arrange for truckloads of tires to be delivered to the property. Occasionally Mr. Yake would pick up loads from various tire dealers in the Niagara Region and as far away as Guelph. Mr. Steffanson’s company was then paid $1,000.00 per trailer load for taking these tires from the dealers. Mr. Yake would receive a percentage of this payment for taking the tires from Steffanson. Mr. Yake denied that he was a part owner of SIR Systems despite the fact that in 2001 Mr. and Mrs. Yake gave a mortgage to Mr. Steffanson for $71,800.00 at 15% per annum interest on which Mr. Yake

testified no payments had ever been made.

Although Mr. Yake testified that there were other persons in the Niagara Region interested in constructing tire fences he was not aware of any other tire fences in the Niagara Region except for one in the Port Colborne area. He was unable to identify the location of that particular fence. He is also aware of another tire fence located in Northern Ontario.

The witness testified that he observed that once the tires were located on the property there were no flies or rats around the barn and that the horses would come near the fence to get away from the flies. He has not taken any steps to prevent the breeding of mosquitoes in the used tires. He removed four different water samples from inside the tires and kept them sealed in his house. His evidence was that he did not observe that there were any mosquito larvae in the water.

In 2001 the Applicants were charged under the Town of Fort Erie zoning by-law that between the 5th day of December 2000 and the 14th day of February 2001 they had used their property at 2268 Burger Road in the Town of Fort Erie, which was in an agricultural zone, for a use other than a permitted use: that is, for storage of tires in contravention of Town of Fort Erie by-law Number 129-90. At trial the Justice of the Peace G. Radojcic acquitted the Applicants after finding that tires were on the property for the purpose of constructing fencing even though during the pertinent time period a number of the tires had not been incorporated into a fence. The Town of Fort Erie appealed and the acquittal was upheld on appeal to the Honorable Mr. Justice A. T. Lacavera. A subsequent appeal by the Town of Fort Erie to the Court of Appeal for Ontario resulted in the acquittal being set aside and a conviction entered against both Mr. and Mrs. Yake with each being fined $50.00.

On or about January 23, 2002 the Applicants were served by the Ministry of the Environment with an Order to either reduce the number of used tires on the property to below the regulated amount of 5,000 units or to obtain a Certificate of Approval under Section 27 of the Environmental Protection Act. The Applicants did neither but applied to the Ministry of the Environment for a review to increase the 5,000-tire limit when the material is used in an "environmentally safe, friendly and valuable" farm fence or other structure. The Ministry denied the request by letter to Mr. Yake dated May 29, 2003.

In early March of 2003 Mr. and Mrs. Yake were notified by a letter from the Town of Fort Erie that it was proposing an amendment to the fence by-law, which would prohibit the use of used vehicle tires in the construction of fences. This matter was to be dealt with at its meeting March 17, 2003 and neither Applicant made any arrangements to be heard at the meeting. A subsequent letter to Mr. and Mrs. Yake from the Town of Fort Erie dated March 19, 2003 advised them that the proposed amendment had been tabled for two weeks until the council meeting of March 31, 2003. They were advised that they should register as a delegation for that meeting if they wished to make a comment. Neither Applicant arranged to make a presentation to council.

By letter dated April 4, 2003 the Applicants were advised by the Town Clerk that the fence by-law had been amended to prohibit the construction or maintenance of any fence composed wholly or partially of used vehicle tires on any property in the Town of Fort Erie.

The letter also enclosed a notice of contravention from the Municipal Law Enforcement Officer for the Town of Fort Erie with instructions that all tires were to be removed from the property within 90 days. Mr. Yake made application for relief from this by-law by letter to the Board dated March 20, 2003.

Paul Steffanson

Paul Steffanson, who was also given permission by the Board to act as Agent for the Applicants, also testified on behalf of the Applicants. Mr. Steffanson is a resident of Alberta and appears to have been a proponent of tire fences in that Province and in several other Western Provinces for several years. He states that the Alberta Environmental Protection and Enhancement Act does not prohibit this type of tire use providing no releases from the tires to the environment occur. Alberta tire fences have been used for buffalo and elk as well as livestock corrals and alleyways. He also states that the Manitoba and British Columbia governments have no problem with tire fences.

According to Mr. Steffanson, the use of used vehicle tires in fences provides a logical recycling use. He cites as benefits, in addition to the recycling of the used tires, the fact that flies and other insects as well as mice and rabbits will stay away from the tires, and that they absorb the heat from the sun and retain it for the benefit of the animals enclosed by the fences. His own personal observation was that when he put water from a ditch containing live mosquito larvae into a tire they were dead by the next day suggesting that some compounds in the tire poisoned them. If the breeding of mosquitoes were a problem with tires fences he indicated that they could be sprayed or perhaps covered with a tarp. From an esthetic point of view vines could be planted in the tires to make them more attractive.

Mr. Steffanson denied that Mr. and Mrs. Yake have any interest in his company, SIR Systems. He explained that the dealers charge a disposal fee per tire to their customers.

They then pay his company between $700.00 and $1,000.00 per load depending on who delivers the load and SIR Systems arranges for the delivery of the used tires to the farm property for the construction of the fence by the farmer. 35 – 40% of what he is paid by the dealer is then paid to the farmer for receiving the tires.

Witnesses For The Respondent

Dr. Fiona Hunter

Dr. Hunter, who is a full professor in biological sciences at Brock University was qualified, on consent, as an expert witness to give opinion evidence with respect to her specialty being entomology and biting and flying insects. She is the medical entomology consultant for West Nile Virus for the Ontario Ministry of Health and Long Term Care West Nile Virus Mosquito Surveillance Program. She is also a member of the Federal Steering Committee for West Nile Virus. She was retained by the Respondent to study and testify concerning the breeding of mosquitoes in used tires.

In total, four species of mosquito have been identified as being likely to breed in used tires and three of those four species have been found breeding in tires in the Niagara Region. Some of the species which breed in used tires can also carry West Nile Virus. Consequently there has been a strong and visible campaign by the Ministry of Health and Long-Term Care to encourage people to reduce standing water, which includes emptying or disposing of used tires left outdoors. Exhibit 26, which is the pamphlet prepared by the Ministry of Health and Long Term Care and distributed to all households in the province this year advised to "clean up and empty containers of standing water such as old tires, flowerpots, wheelbarrows, barrels or tin cans that are outdoors". Leachate from tires has also been shown to detoxify mosquitoes making them less susceptible to three of the four insecticides used to eradicate them.

Methods for reducing the potential for breeding include baling the tires tightly so that water cannot enter, drilling each tire with several holes to let water drain out, spraying the water that collects in tires with larvacide or a soap or oil to reduce the surface tension in the water.

She felt that the designs for tire fences proposed by Mr. Steffanson were not acceptable, as they would breed large numbers of mosquitoes.

David Young

David Young is employed by the Niagara Health Department as Manager of Health Protection and Promotion and has been responsible for the West Nile Virus contingency plan for the Municipality of Niagara since 1999. This year the Province of Ontario passed Regulation 119/03 under the Health Protection and Promotion Act to provide for the control of mosquitoes. It mandates the Medical Officer of Health to reduce the potential for breeding places for mosquitoes and they have identified used tires as being such breeding places. There have in fact been orders given in the Region to clean up used tires under this Regulation. He has viewed the tire fence in question from the road and has concerns that water can enter these tires, pool there and provide a breeding place for mosquitoes.

Ronald Steele

Ronald Steele is a full-time farmer operating a cash crop operation of approximately 1200 acres in Port Colborne, adjacent to the Town of Fort Erie. He has 35 years experience in farming, a Diploma in Agriculture from the University of Guelph and is actively involved in agricultural organizations, presently being a Director of the Ontario Farm Producers Association. He was qualified as an expert witness to give opinion evidence with respect to cattle and cash crops.

The witness has observed the subject property and confirms that with cattle or other livestock a good fencing system is essential. However, he has not in either his personal or organizational experience seen scrap tires used as a fence. Personally he has disposed of all of his used tires as they were promoting the breeding of mosquitoes. He did not feel it would be practical for him to have such a fence as it would have to be sprayed or tarped in order to prevent the breeding of mosquitoes. He was of the opinion that tire fences are not a normal farm practice in the Niagara Region.

Dale Koabel

Dale Koabel is a semi-retired cash crop farmer who resides in the Town of Fort Erie. He started farming in approximately 1979. Before reducing his acreage to 300 or 400 acres he was cash cropping around 2200 acres per year. He has been involved in a number of local agricultural associations and has testified at the Ontario Municipal Board as an expert witness in this area. He was qualified as an expert witness to give opinion evidence with respect to normal farm practices and cash cropping.

Mr. Koabel has viewed the subject property where he has seen horses but no cattle or crops. He has not seen any tire fences in the Niagara Region and would not be interested in building one. He felt that a tire fence on a farm would be detrimental as it would be high maintenance and disposal would be a problem when the fence was no longer required. He would not call a tire fence a normal farm practice in the Niagara Region.

Mary Pysch

Mary Pysch is employed by the Ministry of the Environment as a Senior Policy Adviser with the Waste Management Branch and has been with the Ministry since 1985. She is the primary contact person for used tire issues and has general knowledge of what is going on with used tire initiatives in other Provinces.

In Ontario the Environmental Protection Act defines "waste" in Section 25 including such other materials as are designated in the Regulations. "Waste disposal site" means any land upon, into, in or through which, or building or structure in which, waste is deposited, disposed of, handled, stored, transferred, treated or processed. Section 2 of Regulation 347 R.R.O. 1990 designated "used tires that have not been refurbished for road use" as waste. Subsection 27(1) of the Environmental Protection Act requires that a person shall not use, operate, establish, alter, enlarge or extend a waste disposal site unless a provisional

Certificate of Approval therefore has been issued by the Director. Subsection 6(3) of Regulation 347 further states that Section 27 of the Act does not apply in respect of a used tire site if the total number of tire units at the site is less than 5,000. She testified that the tire units on the Yake site exceed 5,000.

Because of concerns about West Nile Virus there is Legislation pending to designate used tires under the Waste Diversion Act, 2002. However, there is no authority in this Statute for the use of used tires for the purpose of fences.

She stated that Ontario’s laws concerning used tires may be stricter since the Hagersville fire and that although the Western Provinces may not deem used tires as waste for the purpose of their Environmental Legislation, she is not aware of any provincial initiative that condones the use of used tires for fences. It was her testimony that even if this Board should find that a tire fence is a normal farm practice Mr. and Mrs. Yake would still have to obtain a Certificate of Approval under the Environmental Protection Act.

James Douglas

James Douglas has been the Fire Chief for the Town of Fort Erie since 1998. On consent he was qualified as a expert witness to give opinion evidence with respect to fire safety and the Fire Code.

After the Hagersville fire, Subsection 3.5.3 of the Ontario Fire Code came into existence. It is entitled "Outdoor Tire Storage" and is a Provincial document which is to be enforced by Local or Municipal authorities. Under this Legislation he has authority to enter and inspect lands. Even if someone were to have a Certificate of Approval under Section 27 of the Environmental Protection Act they would have to meet these requirements.

This document regulates pile dimensions, pile separations, pile clearance, clearances from vegetation, fire breaks, fire safety planning, fire department access, fencing and water supply.

The Fire Code does not apply directly to farming operations only to a non-farm use. As Fire Chief, Mr. Douglas is the person who determines whether or not this a farming operation and he does so based on whether or not the owner declares any farm income on his income tax return.

In this particular case Chief Douglas testified that he had seen no farming activity on the property except for the horses and he determined that the Fire Code applied to Mr. and Mrs. Yake’s property. On November 28, 2000 Kevin Winney, Fire Prevention Inspector, wrote to Mrs. Yake to advise her that the Fire Department had concerns as to the safety of the corral made of old vehicle tires being constructed on her property and were investigating this issue. No response was received from the Yakes.

On July 28, 2003 further investigation was made and photos taken by one of his officers and a number of areas of non-compliance were noted, namely: insufficient clearance between the piles of tires and buildings, woodlands, and property line, lack of proper fencing to contain tire site, laneway not sufficient for Fire Department access and the nearest water hydrant is four kilometers away. There have also been several incidents of arson in this area in recent years.

Jeffery Stephenson

Jeffrey Stephenson is the By-Law Enforcement Officer for the Town of Fort Erie. He has seen no other tire fences within the Town. The earliest involvement of the Town of Fort Erie with the Yake property was an order made under the Property Standards By-Law, but this was not proceeded with as the Municipality laid charges against the Yakes under the Zoning By-Law. These are the charges, which were dismissed by Justice of the Peace Radojcic and on which convictions were eventually entered by the Ontario Court of Appeal. He has made numerous visits to the property and has not noticed any farming activity.

On March 31, 2003 the Town of Fort Erie passed by-law no. 51-203, which is the by-law in question in this proceeding. This by-law prohibited the use of used vehicle tires in the construction of a fence within the Town of Fort Erie and also prohibited such a fence from being maintained. It does not contain a grandfather clause but requires the owner of any property upon which a tire fence is situated to remove such fence within 90 days of the date of receiving a notice from the Municipality to do so.

The Legislation

The Farming And Food Production Protection Act, 1998 (The "Act")

This Board was established by and this Application brought under the Act. At the outset, it is appropriate to look at the preamble for some guidance as to the purpose and interpretation of this legislation. It states as follows:

"It is desirable to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fiber and other agricultural or horticultural products. Agricultural activities may include intensive operations that may cause discomfort and inconvenience to those on adjacent lands. Because of the pressures exerted on the agricultural community, it is increasingly difficult for agricultural owners and operators to effectively produce food, fiber and other agricultural or horticultural products. It is in the Provincial interest that in agricultural areas, agricultural uses and normal farm practices be promoted and protected in a way that balances the needs of the agricultural community with Provincial health, safety and environmental concerns."

This Application was made under Section 6 of the Act. Subsections 1, 2 and 3 of Section 6 of the Act provide as follows:

1. No Municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.

2. A person described in Subsection (3) or a Municipality may apply to the Board, in a form acceptable to it, for determination as to whether a practice is a normal farm practice for purposes of the non-application of a municipal by-law.

3. 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 an 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."

Subsections 15 and 16 of Section 6 also provide:

1. 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 the effect of restricting the farm practice.

2.The effect of the farm practice on abutting lands of 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.

(16) 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;

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

In order to properly interpret Section 6 one must look at Section 1 of the Act for various definitions. The relevant definitions for this Application are:

"farmer" means the owner or operator of an agricultural operation.

"agricultural operation" means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward.

"normal farm practice" means a practice that,

a. is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances, or

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

The Issues

1. Are the Applicants farmers within the meaning of Subsection 6(3) of the Act?

2. If the Applicants are not farmers are they persons who want to engage in a normal farm practice as part of an agricultural operation and have demonstrable plans for it?

3. If the Applicants are entitled to bring this Application under Subsection 6(3) of the Act, is the tire fence partially constructed on their lands a normal farm practice for the purposes of the non-application of by-law no. 51-2003?

Findings And Reasons

1. Are the Applicants farmers in the meaning of Subsection 6(3) of the Act?

In order to attract the protection of subsection 6(1) of the Act the Applicants must be either farmers or persons who want to engage in a normal farm practice as part of an agricultural operation and have demonstrable plans for it as set out in Subsection 6(3) of the Act. The Applicants have the onus of establishing their entitlement to this protection.

In order to qualify as "farmers" the Applicants must be the owners or operators of an agricultural operation that is carried on in the expectation of gain or reward. It is clear from this wording that the Legislature did not intend to give the protection of this Act to every agricultural operation. The preamble states that the purpose of the Act is to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fiber and other agricultural or horticultural products. In our opinion neither Mr. nor Mrs. Yake are farmers within the meaning of the Act.

Both Mr. and Mrs. Yake are full-time truck drivers. The property which they own at 2268 Burger Road in the Town of Fort Erie is used by them for their personal residence and to house seven show horses, of which two have been sold, as well as to grow hay for their own personal use. They do not have a farm business registration number, have not declared farm related income for the last two years for income tax purposes and are not members of the Ontario Federation of Agriculture or any other agricultural organizations. A number of witnesses testified that they had seen no significant agricultural activity on the property over several years other than the horses which are kept there. The fact that Mr. and Mrs. Yake had cattle on the farm several years is not relevant to our consideration. It is the current use of the property, which determines whether or not the owners are "farmers". The Yake property is not an agricultural operation as defined by the Act because the activity carried on there is not in expectation of gain or reward. We are in agreement with the position of the Municipality that it is in fact a hobby farm and used for the purpose of the Applicants hobby of breeding and showing "Paint" horses. That is how the property was described in the St. Catherines Standard on July 26, 2003, a description that Mr. Yake on cross-examination initially agreed with. The Applicants have failed to establish that they are "farmers" within the meaning of the Act.

2. If the Applicants are not farmers are they persons who want to engage in a normal farm practice as part of an agricultural operation and have demonstrable plans for it?

Nor do we believe that the Applicants are persons who want to engage in a normal farm practice as part of an agricultural operation and have demonstrable plans for it. We have already determined that this is not an agricultural operation as defined by the Act in view of the fact that there is no expectation of gain or reward. We find that there are no demonstrable plans to engage in a normal farm practice as part of an agricultural operation in the future. The only evidence proffered by the Applicants in this regard was Mr. Yake’s testimony that he would like to retire and have a small cattle operation. However, there was no certainty associated with this proposition nor was any detail given by him. It is quite clear that the continued present use of the tire fence for the horses is the main thrust of the Application, although such fencing may at a future date be used for cattle. We therefore find that the Applicants do not qualify under Subsection 6(3) (b) of the Act as persons entitled to bring this Application.

Having determined that the Applicants are not persons who are either farmers or persons who wish to engage in a normal farm practice and have demonstrable plans for it the Application is dismissed. However, since we believe the issue of whether or not the construction and maintenance of tire fences is a normal farm practice is of significant importance to the agricultural community we will consider the third issue.

3. If the Applicants are entitled to bring this Application under Subsection 6(3) of the Act, is the tire fence partially constructed on their lands a normal farm practice for the purposes of the non-application of by-law no. 51-2003?

The pros and cons of tire fences in connection with an agricultural operation can be summarized as follows:

Pros

1. They provide an innovative manner in which to recycle used vehicle tires;

There is no doubt that the disposal of used or scrap tires is a significant problem in our society. Tire fences are an innovative approach to this problem and, esthetics aside, if that were the only consideration such fences might be very attractive to some farmers.

2. They keep flies and other vermin away

The only evidence that the tire fences repel flies and other vermin was proffered by William Yake and Paul Steffanson during their testimony. This testimony was anecdotal at best. Their testimony that insects were repelled by a substance released from the tires is inconsistent with the expert evidence, given by the witnesses for the Respondent, that mosquitoes are in fact attracted to used tires for breeding grounds. Consequently we find that there is no credible evidence to support this finding proposed by the Applicants.

3. They hold heat which is beneficial to the animals enclosed by the fences;

There was no dispute that the tires in a fence or corral absorb heat during the day and release it during the night for the benefit of the animals housed within the fences; however, we find that there would be little benefit from an agricultural point of view from this.

4. They are long lasting;

There was no dispute from the Respondent that the used tires would last for a very long time as compared to traditional fencing methods. However, the concern is that when they are no longer required for a fence the owner will have to probably pay someone to remove them and dispose of them properly.

5. They are inexpensive;

The evidence revealed that not only would the farmer receive the tires for constructing fences for free but also he would actually receive money to take the tires from SIR Systems.

Cons

There are basically four negative issues regarding tire fences. They are as follows:

1. The tires provide a breeding ground for mosquitoes;

We accept the evidence of Dr. Hunter that used tires stored out of doors are a prime breeding ground for mosquitoes and that leachate from tires has been shown to detoxify mosquitoes making them less susceptible to three of the four insecticides used to eradicate them. With the current threat of West Nile Virus all levels of government are now calling for the removal of used tires to reduce the potential of mosquito breeding.

2. They are a fire hazard and must comply with the provisions of the Fire Code relating to tire storage;

From a safety perspective the subject location, which has been determined by Chief Douglas not to be a farm operation for purposes of the Ontario Fire Code, is subject to all of the Regulations contained therein with respect to clearances, fencing, fire access routes, water supply, etc. There was uncontradicted evidence of noncompliance at this site.

3. The tires are a designated waste under the Environmental Protection Act;

The Environmental Protection Act and its Regulations designate used tires as "waste" and require a Certificate of Approval for those sites containing 5,000 or more tire units, such as Mr. Yake’s property. With the continued threat of West Nile Virus it is proposed that even that 5,000 limit may disappear in the near future. The Yakes do not have a Certificate of Compliance and are in contravention of the legislation.

4. The tires will be costly to dispose of when they are no longer required for a fence;

Since the tires do not wear away there is significant risk to Municipalities and future owners of property where tire fences have been constructed with respect to removal and disposal of the tires when the fences are no longer required.

The Act provides that the Board must consider the following factors in determining whether a practice is a normal farm practice:

1. The purpose of the by-law that has the effect of restricting the farm practice. The purpose of Subsections 7(b) and (c) of the by-law is to prohibit the construction of any fence composed wholly or partially of used vehicle tires on any property within the Town of Fort Erie and furthermore to require, on appropriate notice, any such fences constructed prior to the amendment of the by-law to be removed. The bylaw does not specifically target agricultural lands and we agree with the Respondents position that the purpose of the by-law is to prevent the proliferation of tires on all types of property, including farm properties. Although the Applicants may feel that the by-law was targeted at them, the prohibition of tire fences does not appear to be unreasonable in view of intent in reducing potential breeding grounds for mosquitoes to prevent the spread of West Nile Virus.

2. The effect of the farm practice on abutting lands and neighbours. The potential as a breeding ground for mosquitoes and the spread of West Nile Virus is indeed a negative effect of tire fences on abutting neighbours. The fire safety concerns described by Chief Douglas are also accepted as effecting both abutting lands and neighbours of Mr. and Mrs. Yake.

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

The evidence of Dr. Fiona Hunter and David Young expresses a desire of Federal, Provincial and Regional governments to remove used tires as potential breeding grounds for mosquitoes and control the spread of West Nile Virus. The provincial interest is set out in the Ontario Health Protection and Promotion Act and Regulations thereto. Furthermore, the Environmental Protection Act and Regulations thereunder have designated used tires as "waste" and at the present time those sites which contain 5,000 or more tire units are designated to be waste disposal sites requiring a Certificate of Approval. In addition, the Ontario Fire Code has specifically dealt with outdoor tire storage yards.

The by-law reflects the Provincial interest to regulate the use of scrap tires under all of these pieces of Legislation.

4. The specific circumstances pertaining to the site.

The lands of the Applicants are located in an area of Ontario where West Nile Virus is a threat. From a fire safety point of view the lands are located in an area where two incidents of arson have occurred in recent years. Furthermore, from the fire fighting perspective there are difficulties with fire fighting vehicle access and water supply.

The Applicants rely upon the assertion that Justice of the Peace Radojcic and Mr. Justice A. T. Lacavera who upheld the acquittal as well as the Judges of the Ontario Court of Appeal, have somehow condoned tire fences as being a normal farm practice. In the first place the issue in this previous case was not whether or not the tire fence was a normal farm practice but whether or not the Applicants were guilty of the contravention of the Town of Fort Erie zoning by-law for using land in an agricultural zone for a use other than a permitted use to wit for storage of tires. At trial the Justice of the Peace acquitted the Applicants because in his view, although not all of the tires were incorporated into a fence at the time of the alleged contravention the tires were there for the purpose of constructing "this relatively novel and perhaps unique, and without commenting on the aesthetics of this technique or technology, use or fences". The by-law in question prevents the storage of used tires and at the Ontario Court of Appeal, where the acquittals were set aside and convictions substituted, the Justices of Appeal were of the opinion that the Justice of the Peace and the Provincial Court Appeal Judge erred in focusing on the eventual use to be made of the remaining tires. Although they were inclined to the view that the tires were no longer being "stored" within the meaning of the zoning by-law once they were in place and actually being used as fencing on the Applicant's farm land they declined to make a decision on that issue. In any event, even if they had, this case is not about whether or not the tires in the fence are being "stored" but rather whether or not a fence composed wholly or partially of used tires is a normal farm practice.

The Applicants also brought to our attention the case of Her Majesty the Queen and Jean Guy and John Guy and the decision of Provincial Judge Carr dated June 11, 1998. In the circumstances of that case, Guy's built a tire fence with used tires after securing approval from the Ministry of the Environment.

Counsel for the Respondent advises us that the approval was in the form of a

Certificate of Approval under Section 27 of the Environmental Protection Act and this fact is not disputed.

After the fence was constructed the Municipality of the Corporation of the Township of Black River - Matheson, wherein the property was situated, ordered the Guys to clear the premises of the tires pursuant to Section 6 of bylaw no. 1143-94 which required an owner after notice in writing from a Municipal By-Law Enforcement Office, to clean and clear the premises of any "waste or discarded material of any kind". "Waste" was further defined in the by-law as consisting of "vehicle tires mounted or unmounted on rims". This is a normal type of property standards by-law.

At trial Justice of the Peace Quinn acquitted the Defendants as the tires were placed in a "defined and precise manner" and were erected under the guidelines of the Ministry of the Environment. Doing so she and Judge Carr on Appeal declined to consider the tires when incorporated into a fence as being waste within the meaning of the property standards by-law. Again, these decisions have no bearing whatsoever on the issue before this tribunal that is whether or not a tire fence is a normal farm practice.

The last paragraph of the preamble to the Act provides that it is within the provincial interest that normal farm practices be promoted and protected in a way that balances the needs of the agricultural community with provincial health, safety and environmental concerns. The health concerns of potential mosquito breeding habitat and the spread of West Nile Virus, the safety concern set out in the Ontario Fire Code and the environmental concern evidenced by the Environmental Protection Act and Regulations as they relate to used tires, all combined, far outweigh the use of tire fences in an agricultural or any other setting despite any innovative technology which might be present.

Decision

Having considered all of the evidence, we find that the tire fences at 2268 Burger Road, in the Town of Fort Erie are not a normal farm practice for the purpose of the non-application of by-law no. 51-2003. Accordingly, the Application is dismissed.

Dated: October 21, 2003

Original Signed By:

______________________

Glenn C. Walker

Original Signed By:

______________________

Linda O'Neill

Original Signed By:

______________________

John Markus