ONTARIO NORMAL FARM PRACTICES PROTECTION BOARD
Lowe et al v Housler
2004 ONNFPPB 28
STATUTE: Farming and Food Production Protection Act 1998
HEARING:
BETWEEN:
Lynne Lowe, Gordon Lowe, Norman Fish, Debby Fish, Werner Dencker, Mary Margaret Milic, - Applicants
and
Inge Hausler and Robert Burtney - Respondents
DECISION
PURPOSE OF THE HEARING
This Application was originally made by Lynne Lowe for relief under Section 5 of the Farming and Food Production Protection Act regarding odour from the burning of manure at the farm of Inge Hausler, 115 Kossuth Road, Cambridge, Ontario. At the commencement of the hearing Gordon Lowe, husband of the original Applicant, Norman Fish, Debby Fish, Werner Dencker and Mary Margaret Milic were added as Applicants on consent. It was also determined that Robert Burtney was an owner of the lands at 115 Kossuth Road, Cambridge, Ontario and he was added as a Respondent, on consent. The hearing took place at the Ontario Government Building, 1 Stone Road West, Guelph, Ontario on August 24, 2004. No site visit was conducted by the Board in view of the events hereinafter set out.
The Applicants allege that they are persons directly affected by a disturbance from an agricultural operation operated by the Respondents and seek a determination under Section 5 of the Act as to whether the disturbance results from a normal farm practice. The alleged disturbance one of odour and smoke arising from the alleged burning of horse manure on the farm of the Respondents.
EVIDENCE
WITNESSES FOR THE APPLICANTS
Daniel Ward
Mr. Ward is an engineer with the Ontario Ministry of Agriculture and Food. He had occasion, as a result of a complaint made to the Ministry by one of the Applicants, to attend at the Respondents’ premises at 115 Kossuth Road, Cambridge, Ontario on June 30, 2004. A copy of his written report was made Exhibit 1 in this hearing.
Mr. Ward first met with Lynne Lowe and Werner Dencker, two of the Applicants in this hearing. He advised the Court that these individuals have lived on the west side of the Respondents’ horse farm for eleven years and forty years respectively. They complained about the problem of burning manure in the past two years and told him that when there is no wind or if the wind is not from the west, smoke and odour from the burning manure is unbearable.
He subsequently attended at the premises of the Respondents, which he viewed together with both Respondents. He was advised by them that the property has been owned by Mr. Burtney for the past twelve years and that Ms. Hausler has had horses there during this whole period. They presently have between twenty and twenty-six horses on site although the number varies since they breed and race thoroughbreds. The farm property consists of the buildings and six or seven turn-out fields around the buildings where the horses are turned out daily.
He was advised by the Respondents that due to the small size of most of these paddocks, the horses quickly graze off the available grass so a large round bale of hay is placed in each paddock for the horses to feed from. The bales are placed directly on the ground and the horses, being selective eaters, waste a fair amount of the hay from each bale. In an effort to reduce the amount of wasted feed left in the paddocks, Ms. Hausler advised that she has been scraping the remaining hay into piles and burning it as necessary. The second reason she provided for burning is to create smoke as a fly-control measure for the horses. She also advised Mr. Ward that she generally adds two-three wheelbarrow loads of straw-bedded stall manure to the piles. At the time of his visit, Mr. Ward observed such burning taking place.
The Respondents advised the engineer that the manure from the barn is removed daily and stockpiled behind the barn. They do not spread any of this manure on the subject property but historically a manure hauler/broker has taken it away. At the present time, they were searching for someone to haul this material away as the previous arrangement had terminated. They also appeared to him to seem reluctant to pay someone for this service and were looking for someone to take it away for free.
Subsequent to his visit, Mr. Ward testified that he sent a letter to the Respondents (Exhibit 2) advising them to stop the burning. He provided them with a copy of the Board’s decision in O’Neil et. al. and Slattery decided in February, 1995 wherein the Board found that in that case the burning of manure is not a normal farm practice. He also provided them with a list of potential brokers that could be contacted with respect to removal of the manure from the site under contract.
Upon being questioned by the Board, Mr. Ward testified he was educated as an agricultural engineer and had worked in that capacity for about nine years in New Brunswick and three years for the Ontario Ministry of Agriculture and Food in the Stratford office. He further testified that he had grown up on a farm in Quebec where his father had a lot of horses and had married into a family who kept horses. The Board was satisfied as to his qualifications and qualified him as an expert witness to give opinion evidence as to the disposition of manure.
In answer to questions by the Board, Mr. Ward opined that it is not general practice to burn manure and that the Ministry’s policy is to return organic materials to the soil.
Werner Dencker
Mr. Dencker, one of the Respondents, lives at 183 Kossuth Road, Cambridge, Ontario. His home is located approximately 100 yards from the subject farm. He farmed all of his working life, approximately 40 years, until retirement and was familiar with livestock.
Mr. Dencker suffers from emphysema and heart problems. He testified that the smoke and odour from the burning manure piles make him gag and makes it difficult for him to breathe. The odour and smoke from the burning manure most affect his property when there is an east wind. When the odour and smoke are bad, he has trouble breathing and has to go into the house but he testified that both the smoke and the odour have come into his home in the past. His evidence was that the odour and smoke from the burning manure have affected his lifestyle and his ability to be outside gardening and enjoying his yard.
He first noticed problems with the smoke and odour in 2001 but it didn’t get really bad until February of this year. In the spring of this year, he contacted the Respondent Hausler who promised that she would stop burning manure and only burn left over hay. However, odour continued and Mr. Dencker believes that Ms. Hausler did not keep her promise.
Norman Fish
Mr. Fish lives at 5 Kossuth Road with his wife Debby. His property is adjacent to the Hausler farm and he has lived there for approximately forty years. He testified that he has seen and smelled smoke from the farm seven days a week and has observed burning piles both in the paddocks and behind the barn. He testified that when the wind comes from the west, he and his wife cannot sit outside because of the smoke and odour, which also comes into their home. In the last thirty days before the hearing, he testified that the odour had been very bad and that there had been a fire every day. He can’t stand the smell of the burning manure and it has made him ill in the past.
Mary Margaret Milic
Ms. Milic resides at the same address as Werner Dencker at 183 Kossuth Road, Cambridge, Ontario and has resided there since March of this year, although she has been familiar with the area for some time. She is diabetic and insulin-dependent and her evidence was that the pungent smoke from the Respondent’s farm nauseates her so that she isn’t able to keep food down. She also believes that it causes her to have headaches and burning eyes.
She also testified as to being at a social function outdoors at the home of Norman and Debby Fish at 5 Kossuth Road. She observed on that day that the guests had to keep moving around the various buildings on the property to avoid the smoke.
Debby Fish
Mrs. Fish is the wife of the Applicant, Norman Fish, and gave similar evidence to that of her husband with respect to the odour and smoke and the effect on their lifestyle. She testified as to being forced to go into the house from the yard because she felt like she couldn’t breathe.
Lynne Lowe
Mrs. Lowe, one of the Applicants, resides at 145 Kossuth Road, Cambridge, Ontario, together with her husband, Gordon Lowe, and has lived there for almost eleven years. Their property is adjacent to the Respondents’ farm and she has experienced odours and smoke from the burning manure which she testified has become more severe in the last year. The odour and smoke make her sick and she feels a tightening in her chest. She described the smell as unbearable both inside and outside of her home. She has also developed a steady cough over the last five months, but was unable to advise whether or not this can be tied to the alleged disturbance. She and her husband have about three acres of land but she hasn’t been able to enjoy her property this year because of the odour and smoke.
She approached Ms. Hausler about the problem and Ms. Hausler agreed to stop, but subsequently Ms. Hausler continued to burn the manure as previously.
Gordon Lowe
Mr. Lowe, the husband of Lynne Lowe, testified that he has experienced many of the same problems as the previous witnesses. He has also developed a steady cough in the past five months. He believes that in the last thirty days before the hearing, Ms. Hausler has been burning the manure vindictively as a result of this application having been filed.
WITNESSES FOR THE RESPONDENT
The Respondents elected to call no evidence and did not take the opportunity to cross-examine the witnesses Debby Fish, Lynne Lowe and Gordon Lowe, although given the opportunity to do so.
WITNESS FOR THE BOARD
Robert Chambers
Mr. Chambers was called as a witness by the Board pursuant to Rule 50 of the Board’s Rules of Practice and Procedure. With respect to his qualifications, he testified that he has obtained a Masters of Science in agricultural engineering and has been employed by the Ontario Ministry of Agriculture and Food for the last five years. Previously, he was employed in the private agricultural sector. He served on several committees in developing the regulations for nutrient management and has reviewed nutrient management plans including some for horse farms. The witness was qualified by the Board to give expert opinion evidence with respect to nutrient management.
Based on some experimentation which had previously been done with respect to the burning of poultry litter, he was concerned about the quality of the air that would be created by the burn and would expect similar results from the burning of horse manure.
He opined that neither the burning of the horse manure or of the straw or remnants of the hay bales is a normal farm practice. Typically, the Ministry prefers that waste hay or straw be composted or treated as a nutrient source and incorporated with the soil.
THE LEGISLATION
The Farming and Food Production 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, fibre and other agricultural or horticultural products.
Agricultural activities may include intensive operations that may cause discomfort or inconvenience to those on subject lands.
Because of the pressures exerted on the agricultural community, it is increasingly difficult for agricultural owners and operators to effectively produce food, fibre 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 5 of the Act. Subsection 1 of the Act provides as follows:
“5(1) A person directly affected by a disturbance from an agricultural operation may apply to the Board, in a form acceptable to it, for a determination as to whether the disturbance results from the normal farm practice.”
Subsection 5(4) of the Act provides as follows:
“5(4) After a hearing, the Board shall,
(a) dismiss the application if the Board is of the opinion that the disturbance results from a normal farm practice;
(b) order the farmer to cease the practice causing the disturbance if it is not a normal farm practice; or
(c) order the farmer to modify the practice in the manner set out in the order so as to be consistent with normal farm practice.”
Disturbance is defined in Section 1(1) of the Act as: ‘ “Disturbance” means odour, dust, flies, light, smoke, noise and vibration’
Agricultural operation is defined in Section 1(1) of the Act as: ‘ “Agricultural operation” means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward’
Farmer is defined in Section 1(1) of the Act as: ‘ “Farmer” means the owner or operator of an agricultural operation’
Section 1(2) provides that for the purpose of the definition of “agricultural operation” agricultural operation shall be construed to include the growing, producing or raising of livestock, including poultry and ratites.
“Normal farm practice” as defined in Section 1(1) of the Act is 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
Are the Applicants persons directly affected by a disturbance from an agricultural operation?
If the Applicants are entitled to bring this Application under Subsection 5(1) of the Act, does the disturbance complained of result from a normal farm practice?
FINDINGS AND REASONS
1. Are the Applicants persons directly affected by a disturbance from an agricultural operation?
The evidence clearly establishes and the Board finds that all of the Applicants are persons directly affected by the alleged disturbance. Each of the Applicants testified that they resided in the immediate vicinity of the Respondents’ farm and each of them had been affected by the alleged disturbance personally. The Board also finds that the Respondents meet the definition of “farmer” and are carrying on an agricultural operation as defined by the Act.
The “disturbance” alleged is one of odour and smoke, both of which are enumerated in the list of disturbances to which this Act applies as set out in the definition of disturbance in Subsection 1(1) of the Act. Although there is no expert evidence that the odour and smoke arising from the burning of manure and hay on the farm of the Respondents has caused health problems among the Applicants, there is ample evidence from the Applicants themselves that the disturbance has affected their comfort and wellbeing as a result of existing health problems. Furthermore, the Board accepts the evidence of the individual Applicants as to their inability to enjoy their respective properties as a result of the odour and smoke emanating from the Respondents’ fires.
The burning of the hay remnants and the stall bedding containing horse manure was not denied by the Respondents and was observed by Mr. Ward during his site visit on June 30, 2004. Ms. Hausler admitted to Mr. Ward that she carried on this practice and implicitly admitted this fact when she promised to desist when approached by both Mr. Dencker and Mrs. Lowe.
The Board finds that the Applicants are persons directly affected by a disturbance from an agricultural operation and that the disturbance is of such a nature and quantity that it meets the threshold test requiring the Respondents to establish to the Board’s satisfaction that it results from a “normal farm practice”.
- If the Applicants are entitled to bring this Application under Subsection 5(1) of the Act, does the disturbance complained of result from a normal farm practice?
The Respondent Robert Burtney was present at the hearing although the Respondent Inge Hausler was not. No evidence was called on behalf of the Respondents, nor any final argument given, in an attempt to establish that the burning of the hay and horse manure on the farm of the Respondents was a normal farm practice. The only evidence available to the Board on this issue is the opinion evidence of the Board’s witness Robert Chambers. He testified that in his opinion neither the burning of horse manure or of straw or of remnants of hay bales is a normal farm practice. The Respondents having failed to meet the onus of establishing that the burning is a normal farm practice.
The Board has also considered the decision in O’Neil et. al. and Slattery where it previously found that the burning of manure is not a normal farm practice.
DECISION
Having considered all of the evidence, we find that the burning of hay, straw and manure on the farm of the Respondents located at 115 Kossuth Road, Cambridge, Ontario is not a normal farm practice. The Board therefore orders that Inge Hausler and Robert Burtney cease the burning of hay or straw or manure, or any combination of the same, at any location on their lands at 115 Kossuth Road, Cambridge, Ontario effective immediately.
DATED: October 7, 2004
GLENN C. WALKER
JOHN MARKUS
WILLIAM FRENCH