ONTARIO NORMAL FARM PRACTICES PROTECTION BOARD
Larmond, Buttrey, and Cruikshank v Bauer 2004 ONNFPPB 33
STATUTE: Farming and Food Production Protection Act 1998
HEARING:
BETWEEN:
Gayle Larmond, Ray Larmond, Edward Buttrey, Linda Buttrey, William Cruikshank, Ruth Cruikshank, - Applicants
And
Mike Bauer and Jill Bauer, - Respondents
DECISION
PURPOSE OF THE HEARING
This Application was made by the Applicants for relief under Section 5 of the Farming and Food Production Protection Act, 1998, regarding odour from the hog operation of Mike and Jill Bauer located at Lot 21, Concession 1, in the Township of Amaranth, in the County of Dufferin. The Hearing took place in the Municipal Chambers of the Township of Amaranth, 374028 6th Line, Laurel, Ontario on December 6th and 7th, 2004. All of the Applicants, with the exception of Edward Buttrey, and both of the Respondents were present.
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 is one of odour arising from the hog operation on the farm of the Respondents.
PRE-HEARING CONFERENCE
A Pre-Hearing Conference was conducted in this matter on July 14, 2004 before former Chair Robert G. Stephens and he issued a Pre-Hearing Conference Order dated July 16, 2004 providing for the usual disclosure. The Order states that the Respondents agree to allow any expert employed for this purpose by the Applicants to access the interior of the barns in question and also they agree to advise the Applicants’ expert how many hogs are located in each barn at the time of the visit.
The following matters were also acknowledged or admitted by the Applicants:
That the Respondents received the necessary Approvals to allow the construction and operation of the swine barn on the Respondent’s property;
That the location of the swine barn on the Respondent’s property is in conformity with the minimum distance separation guidelines for the Township of Amaranth;
A Nutrient Management Plan for the Respondent’s farm is in place and compliance is a matter that will have to be dealt with at the Hearing by way of evidence and argument;
That “The Disturbance” complained of is one of odour only.
A site visit was conducted by the Board on the morning of December 6, 2004.
EVIDENCE
WITNESSES FOR THE APPLICANTS
Gayle Larmond
Mrs. Larmond and her husband Ray purchase their farm on the southwest corner of 2nd Line and the 20th Side Road, Township of Amaranth, and specifically on the east one half of Lot 20, Concession 2, of the Township. She produced a sketch which was made Exhibit “1” to the Hearing, and which is annexed hereto as Appendix “A” to show the relative locations of the Applicant’s homes and the hog barn location. The source of the sketch was not authenticated, nor were the measurements shown thereon.
Mrs. Larmond stressed that she and her husband are not transplanted urbanites, but have lived in rural areas and on farms before. There are horses located on their farm and an outdoor manure pile.
Prior to the construction of the Respondent’s new barn she stated that they had occasionally smelled cattle waste, but nothing offensive. She admitted that she did not smell nor did she even know that the Respondent’s had kept up to 600 hogs in an old style bank barn on the same farm prior to constructing the new facility.
When the Bauers made Application to the Municipal Council for a Building Permit, she and her husband opposed the granting of the Permit for a large hog barn at the proposed location. After the new barn was constructed and filled she started to be disturbed by the odours from the barn in both their frequency and intensity. These odours, she believed, would come with the prevailing winds and were evident three out of four of the seasons.
She described the odour as being unendurable and testified that it can be present both outdoors and inside the house, despite closed windows. Without air conditioning she likes to sleep with the windows open, but can wake up choking and gagging as she has respiratory problems. She believes that the odour has affected the enjoyment of her home and gardens as well as both her physical and psychological health.
Mrs. Larmond noted that the odour they experienced in 2004 was not at the same level of odour as in the past and she wondered if the Respondents had done anything to improve their facility, or if this was just the effect of lower heat and humidity that year. When she questioned the Respondent Jill Bauer, Mrs. Bauer advised her that they were not doing anything differently, but that they were feeding different feed as they were selling to a new Company. Mrs. Bauer, however, confirmed that they were keeping the same number of hogs.
On average Mrs. Larmond stated that there are about 30 days per year that the smell has been extremely offensive. She is concerned about the effect on her heath, the effect it has on her ability to enjoy her property both inside and out, about the possibility of noxious toxins in the gases which produce the odours, and about the effect it might have on her property value.
Linda Buttrey
Mrs. Buttrey and her husband Edward Buttrey moved to the area from Toronto in 1972 and purchased their farm property located at Lot 21, Concession 2, Township of Amaranth, several years later. She was a member of the Amaranth Township Council when the Bauers first applied for the Building Permit for the new barn across the road from her home. Feeling that this facility had the potential to devalue her property she declared a pecuniary interest and took no part in the proceedings. Eventually she resigned on September 12, 2000 since she felt the Council was not taking into consideration the concerns of the neighbours who would stand to be affected by their decisions.
She stated that although an Interim Control By-law had been recommended to Council at the time the Bauers approached Council about building the new facility, Council chose not to proceed in this direction and granted the Bauers a Building Permit subject to their obtaining a Nutrient Management Plan.
She and her husband have experienced odour on their property both inside and out on many occasions and she feels that the enjoyment of their property has severely declined since the advent of this new barn. She provided some documentation with respect to the days that she had experienced odour showing that she had documented odour five times in August 2003, four times in June 2004, and again four times in July 2004.
Ruth Cruikshank
Mrs. Cruikshank has resided most of her life on the Hamilton Farm at Lot 22, Concession 2, Township of Amaranth, first with her parents and grandfather, and now 32 years with her husband William Cruikshank. She stated that she was accustomed to normal farm odours and was not easily offended by them.
Since 2001 her lifestyle has changed. The odours emanating from the Bauer farming operation offend her on a frequent basis. They are overpowering and generally necessitate a retreat to indoor activities and the closing of all windows. There is no way of predicting when the odours will be present, so planning social events at her home is increasingly stressful as she worries about accommodating everyone indoors if they need to get out of the fumes.
She is concerned about the effect the odours will have on her heath and the property value of their farm, and she feels that the opportunity for her children or their cousins to purchase the “Hamilton Family Farm” is gone because of the horrible odours.
Ray Larmond
The husband of one of the previous witnesses, Gayle Larmond, Mr. Larmond grew up on a farm and has lived most of his life on one. When he was in his 20’s he worked in a hog operation with about 3,000 hogs in an enclosed building, which was located about 150 feet from the road. He stated that you could not smell the odour of the hogs from the road, although the stench inside the building was awful.
He is concerned about his wife’s health stating that she wakes up at night gagging and choking. The odour has affected his home life in many ways.
He testified that there was no problem with odour when the Bauer’s hog operation in the older barn had 600 hogs.
Robert Mitchnick
Mr. Mitchnick testified that he and his wife purchased property directly south of the Respondent’s farm at Lot 20, Concession 1, Township of Amaranth, in the year 2000 with the intention of building a home. He found out about the proposed hog barn and thinking that it would affect the value of his property he attended the Council meetings in 2000. He and his neighbours were unsuccessful in getting Council to pass an Interim Control By-law.
After waiting to see how bad the odour would be, he built his new home in 2003 and located it 700 feet from the road among a number of trees.
He testified that the tree cover appears to protect him more or less from the odour at the location of his house. He has noticed the odour especially at the foot of his driveway or when driving past the barn.
Robert McLean
Mr. McLean, who was not under subpoena, was not able to attend the Hearing prior to the Applicant’s closing their case. With the Consent of the Respondents, his letter to the Board dated July 12, 2004 was accepted as Exhibit #6 to be given such weight as the Board deemed appropriate taking into consideration that it was not under oath and the Respondents had no opportunity to cross-examine Mr. McLean.
In view of those considerations, and Mrs. Bauer’s statement that she had several questions that she wished to ask Mr. McLean, the Board gives his letter very little weight, if any.
WITNESSES FOR THE RESPONDENTS
Sam Bradshaw
Mr. Bradshaw has been employed as an Environmental Communication Specialist with Ontario Pork since 1998. From 1994 to 1998 he was District Coordinator with Agricorp-Crop Insurance and Stabilization Branch, Ontario Ministry of Agriculture and Food, and previous to that from 1990 to 1994 he was a Research Technician at the Centralia College of Agricultural Technology. From 1969 to 1989 he was an Engineering Technician with the Ontario Ministry of Agriculture and Food at Clinton, Ontario.
Mr. Bradshaw was qualified as an expert witness, on the Consent of the Applicants, to give opinion evidence with respect to hog production.
Mr. Bradshaw paid a visit to the Respondent’s swine operation in July 2004. He described the barn, constructed in 2001, as being a standard barn for that type of operation with natural ventilation, slatted floors, with an under pit manure storage. He gave the opinion that the operation appeared to him as being a very normal swine operation and he did not note any improper practices. The barn has a capability of storing 280 days worth of manure, whereas the minimum requirement for that size of barn is for 240 days.
He calculated that the Respondent’s operation, including cattle, amounts to 250 nutrient units under the Nutrient Management Act. Save for the requirement imposed by the Municipality upon granting the Building Permit for the barn, the Respondents would not be required to have a Nutrient Management Plan at that level of nutrient units. During his visit in July Mr. Bradshaw did not note any unusual or extraordinary odours.
Robert Chambers
Mr. Chambers is an Agricultural Engineer presently employed by the Ontario Ministry of Agriculture and Food since 1999. Previously he was employed in the private sector. During his employ with OMAF Mr. Chambers has been OMAF’s swine and poultry structures and equipment specialist providing engineering information on swine and poultry housing and equipment to producers and to the agricultural industry throughout Ontario. With the Consent of the Applicants, Mr. Chambers was qualified as an expert witness to give opinion evidence concerning swine production.
The witness attended the subject barn on August 27, 2004 at the request of both the Applicants and the Respondents and subsequently rendered a written report addressed to both Mr. and Mrs. Larmond and Mr. and Mrs. Bauer (Exhibit #9). In his report, supported by digital photographs taken by him at the site, he describes the facility as follows: “There is a barrier for biosecurity and the barn is well set back from the road in an open field. The barn is a naturally ventilated barn with an under pit manure storage. The dimensions of the barn are approximately 60 feet by 204 feet and it has a nominal capacity for approximately 1,224 feeder hogs. There are two feed bins (in red) and a utility shed between the road and the barn.”
He described the barn as being naturally ventilated with walls known as “Turkey Curtains” that are raised and lowered automatically. The chimneys on the top of the roof function primarily for winter ventilation. He noted that due to the size of the hogs and the temperature on the day of his visit all the curtains were completely down to allow for maximum ventilation. As there are no fans with this style of barn the only method to cool the hogs is to drop the curtains. He further noted that he was downwind from the barn by approximately 200 meters. The odour was detectible but no off odours from such things as spoiled feed, dead stock dumped into the manure pit, waste feeding, etc. was apparent. The temperature was approximately 26° C with humidity of approximately 80° and a humidex of 36. With 800 hogs in the barn with an average weight of 230 lbs, he felt that this would be one of the more odourous events of the summer. His conclusion was that on the day of his visit he did not observe anything that would indicate to him that this facility was generating odours in excess of what one would expect of this size of operation.
Mr. Chambers stated that the hogs appeared to be clean and the slats dry and he considered this farm operation to be average to above average with regard to practice. When questioned by the Board he stated that there was nothing that struck him as not being a normal practice for an operation of that size and nature.
Mike Bauer
Mr. Bauer is one of the Respondents and part owner of the swine operation at Lot 21, Concession 1, Township of Amaranth. He has educated himself in the methods of good husbandry and considers himself a good steward of his animals. He also stated that he tries to be a good neighbour and notify neighbours when he is going to spread manure so that he can work around their social events.
He stated that the common recommendations for reducing odours are keeping the barn clean, rodent control, and cleaning up spilt feed. He follows these recommendations, keeping the barn clean with a pressure washer, keeping the grass cut around the barn for rodent control, and always cleaning up spilt feed. He has also investigated the chemical additives which allegedly reduce manure odour, but he has decided against this option as he does not feel that they really work, they are costly, and he also has concerns about then spreading the manure containing the chemicals on his fields.
Before constructing the barn he researched and investigated different types of barns, eventually settling on this model. He explained that the curtains which provide the ventilation operate in connection with a computer system, which takes into consideration wind speed, direction and temperature.
Mr. Bauer has a Nutrient Management Plan which was prepared at the time the barn was built. His manure is spread on hay fields and on tilled fields. He stated that he does not incorporate the manure in the tilled fields as sowing takes place soon after, and that it is not possible to incorporate the manure spread on the hay fields.
Before the new barn was built in 2001 he had up to 600 hogs in an old barn on the same farm. He stated that he had never had any odour complaints with respect to those hogs. He did not deny that there was odour but he believes that it is not excessive.
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, fiber 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, 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 5 of the Act. Subsection 5(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 a 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
- Are the Applicants persons directly affected by a disturbance from an agricultural operation?
The evidence clearly establishes and the Board finds that the Applicants are persons directly affected by the alleged disturbance. The Applicants, Gayle Larmond, Ray Larmond, Linda Buttrey and Ruth Cruikshank testified that they resided in the immediate vicinity of the Respondent’s farming operating 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 which is 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. The Board further finds that the Disturbance is of 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 onus on the Respondents is to establish on the balance of probabilities to the Board’s satisfaction that the hog 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. This definition of “normal farm practice” must be read in conjunction with the Court of Appeal’s comments on the Act as found in Pyke et. al. vs. Tri Gro Enterprises Ltd. et. al. (2000) 55 O.R. 3(d) 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. [as she then was] 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.”
It has been accepted by this Board, that absent any other farm practices which might be considered abnormal, the compliance with Minimum Distance Separation (MDS) requirements is sufficient to establish a normal farm practice with respect to the location of the barns and the proximity of residential neighbours. Wanless et. al. v. Horsburgh et. al. (Board File No.: 2001-07). The Applicants cited to the Board a case where remedial action was taken with respect to an odour complaint from hog barns, namely: Lucas v. Terpstra et. al. (Board File No.: 1995-02). However, in that particular case the farm buildings did not comply with MDS.
The introduction of the MDS policy by the Province was an attempt to deal with separation issues between farming and residential uses. At page 45 of the Wanless et. al. v. Horsburgh et. al. Decision, the Board states that the background section of the MDS II document provides as follows:
“The agricultural community generally acknowledges that even with the best management, noise and dust cannot be eliminated from certain agricultural operations and that odours are associated with livestock production. Not all rural residents, including some farmers (emphasis ours), can accept these conditions particularly when the nuisance is perceived to exceed acceptable levels.”
“The primary purpose and use of prime agricultural areas should be for agriculture. Non-farm residents who seek the advantages of country life must be aware of the noise, odour and dust associated with normal farm practices.”
“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.”
The Applicants have admitted that the Respondent’s hog facility complies with MDS, and the Board so finds. Farmers who go the approved route and expend significant amounts of money in establishing livestock facilities intensive or otherwise in accordance with the MDS regulations, should be protected from complaints of odour based on distance separation only.
The evidence supports the Respondents contention that their hog operation is a normal farm practice. Based on the evidence of Mike Bauer and confirmed by the expert evidence of Mr. Bradshaw and Mr. Chambers and the site visit by the Board, we find that the building housing the operation meets the proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances in Ontario. The Applicants contend that the natural ventilation system produces more odour than a closed, fan ventilated system; however, no expert evidence to this effect was produced by them. Furthermore, Mr. Chambers and Mr. Bradshaw confirmed the evidence of the Respondent Mike Bauer that he carried out all of the recommended practices to reduce odour in and around the barn. The Applicants offered no evidence inconsistent with this despite the fact that the Pre-Hearing Conference Order provided them with an opportunity to have an independent expert examine the Respondents’ barn and operation.
During his testimony Mr. Bauer indicated that he did not incorporate the liquid manure spread on his tilled fields as he would sow these fields soon after the application. It is possible that this practice may contribute to the odour being experienced by the Applicants.
The Board finds that the Respondents agricultural operation is a normal farm practice within the meaning of the Act, save and except the practice of not incorporating liquid manure into the soil within a reasonable period of time after spreading. Subsection 5 (4) (c) of the Act provides that the Board may Order the farmer to modify his practice in the manner set out in the Order so as to be consistent with a normal farm practice.
DECISION
Having considered all of the evidence, we find that the agricultural operation of the Respondents carried on at Lot 21, Concession 1, in the Township of Amaranth, in the County of Dufferin will be a normal farm practice if the Respondents incorporate manure into the soil on tilled lands only within a reasonable time after spreading. The Board therefore Orders the Respondents to modify their practice by incorporating manure spread on tilled land into the soil within 48 hours after spreading.
DATED: December 9, 2004
GLENN C. WALKER, Chair
RONALD VERSTEEG
WILLIAM FRENCH