NORMAL FARM PRACTICES PROTECTION BOARD
IN THE MATTER OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT S.O. 1998, C.1.
AND IN THE MATTER OF AN APPLICATION TO THE BOARD UNDER SECTION 6 OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT
BOARD FILE NUMBER: 2003-03
BEFORE: Glenn C. Walker, Vice-Chair Ronald Veersteeg Andrew Millar
PARTIES: Barry Guy and Kristy Guy, Applicants and The Corporation of the Township of Black River - Matheson, Respondent
APPEARANCES: The Applicants in person Carol Wilton, Solicitor for the Respondent
DECISION
PURPOSE OF THE HEARING
This Application is made by Barry Guy and his wife Kristy Guy for relief under Section 6 of the Farming and Food Production Protection Act with respect to two bylaws of the Township of Black River - Matheson. The Applicants seek a determination as to whether a tire fence constructed on their property at Lot 9, Concession 4, Geographic Township of Hislop, in the Township of Black River - Matheson, constitutes a normal farm practice.
At the commencement of the Hearing it was determined that Kristy Guy was a co-owner of the subject lands and she was added as an Applicant, together with her husband Barry Guy, on consent. The Hearing took place at the Township of Black River - Matheson Municipal Building, 429 Park Lane, Matheson, Ontario on June 4, 2004. A site visit was conducted by the Board on the day of the Hearing in the presence of the panel, the acting secretary of the Board, the Applicants, counsel for the Respondent, and the witness Rypalowski.
In his Application Mr. Guy sought relief from Township of Black River - Matheson bylaws no. 2060-98 and 2061-98. At the commencement of the Hearing it was determined that bylaw no. 2060-98 was a bylaw passed on April 14, 1998 to amend bylaw no. 1143-94 passed on April 25, 1994. Bylaw no. 1143-94 is what is commonly known as a "property standards bylaw" and bylaw 2060-98 amended that bylaw by changing the definition of the word "waste" so that it included, inter alia, "new or used tires for the purpose of a recycling project or for any other purpose".
It was also determined at the beginning of the Hearing that bylaw no. 2061-98 had been repealed and replaced by bylaw no. 2092-99. This bylaw governs fences. It provides that: "no person shall erect or cause to be erected a fence consisting of new or used tires whether as a recycling project or not in any part of the Township of Black River - Matheson".
It was agreed on consent of the Parties that the Application be amended to provide that the Applicants were requesting relief from bylaws no. 2092-99 and 1143-94 as amended by bylaw no. 2060-98.
EVIDENCE
WITNESSES FOR THE APPLICANTS
Adrian Legault
Mr. Legault testified that he has been farming in the Township for approximately 22 years and that for approximately 14 of those years he has had a corral for his cows and calves constructed of tractor tires. Those tires are stacked approximately eight feet high and filled with dirt to form a solid wall. He has approximately 1,100 tires on his property.
Mr. Legault further testified that he had never received any notification of concern from the Township concerning his tire fence, nor from the Ministry of the Environment. He estimated there are approximately 60 - 70 working farms in the Township, but he is only aware of two or three which have tire fences located on them.
Esther Doey
Mrs. Doey lives on the farm next door to the subject property. She stated that the appearance of the tire fence did not bother her, and that she had not noticed any increase in mosquitoes or other insects as a result of the tire fence.
Barry Guy
Mr. Guy and his wife Kristy and their three children reside on the subject property at Lot 9, Concession 4, Geographic Township of Hislop, Township of Black River - Matheson. He has grade 12 education and has lived in the area for approximately 25 years. Mr. Guy grows hay on his farm and last year made approximately 400 - 500 round bales and 2,000 - 3,500 small bales. At the present time he has 29 beef cattle on the farm and he is gradually building up his beef cattle herd. He belongs to several agriculturally related organizations. Although his gross income from farming is less than $7,000. per annum, he has obtained the property tax reduction for farmers from the Province under a start-up program.
He also has a job as a full-time miner at Kirkland Lake Gold Inc. where he works the day shift. Mrs. Guy is a stay at home mother.
Mr. Guy stated that he started to build tire fences in the spring of 2002 or perhaps somewhat earlier. The tire fences were constructed to contain his cattle and at the present time he has approximately 1,700 tires on his property, most of which are tractor trailer size. He indicated that he does not intend to build any additional tire fences as he has enough for his purposes.
He had not taken any steps to keep water from collecting in the tires; they are not filled with dirt or sand. He is aware that he would require a Certificate of Approval under the Environmental Protection Act if he exceeded 5,000 tire units. He has not applied for a Certificate of Approval as in his opinion he is under that number.
John B. Guy
This witness is the father of the Applicant, Barry Guy. Although previously a resident of the Township of Black River - Matheson he presently lives on a farm in the Cochrane District. He stated that he is a proponent of tire fences; that they are long lasting and cost efficient, and that he had a tire fence on his previous farm in the Township of Black River - Matheson.
Kristy Guy
Kristy Guy, one of the Applicants, also gave evidence that she had counted the tires the week before the Hearing and that she had counted 1,453, but that her father-in-law John B. Guy had removed 30 of them subsequently. She testified that all were tractor trailer tires, with the exception of approximately 200 car tires.
WITNESSES FOR THE RESPONDENT
Les Ronholm
Mr. Ronholm has been a firefighter for the Volunteer Fire Department in this Township since 1964, and he has been the Fire Chief of the Municipality for the last 35 years. He has had an opportunity to visit the subject site and had determined that it is a farming operation and therefore not subject to the Ontario Fire Code.
However, he does have concerns with respect to the tire fences, and the juxtaposition of the tire fences with respect to the farm buildings, which he noted are used to store hay. He was of the opinion that a grass fire would probably not ignite a tire, but that if there was a barn fire there would be sufficient heat to ignite the tire fences and tire fires are difficult to put out. Usually it is necessary either to bury the tires or use foam to suffocate the flames.
Nadine Rypalowski
Ms. Rypalowski is the coordinator for the West Nile Virus Program for the Porcupine Health Unit in Timmins. She is certified as a Public Health Inspector, and has some 20 years experience in the field. She has been coordinator of the West Nile Virus Program for the last two years and has attended conferences on the subject. She was certified by the Board as an expert witness to give evidence concerning West Nile Virus.
It is not practical to larvicide or adulticide in this part of Ontario. The emphasis is on "clean up", which means getting rid of stagnant water. Stagnant water is water that is still, not moving, for at least seven days. She indicated that during the site visit she had observed stagnant water in the tires in the tire fence, and that she had further observed mosquito larvae and organic material which could be used by larvae as food in the water.
Used tires have been targeted by the Province as a source of stagnant water and a breeding ground for mosquitoes. Government literature has been distributed through the Province advising the public to remove these used tires from outdoors. Tires absorb the heat and the stagnant water in them becomes a medium for faster hatching and growth of the larvae.
There are 162 species of birds that can become infected with West Nile Virus and there are many birds in this area in this particular category. The virus can be spread by migratory birds. The Porcupine area has eight of the ten species of mosquito which are known to carry the West Nile Virus. To date there has been only one reported case of West Nile Virus in the Porcupine area, and that was in a mosquito. However, although West Nile Virus has been concentrated to date in southwestern and central Ontario it will eventually be moving northward.
Curtis Nicholson
Mr. Nicholson has been the Bylaw Enforcement Officer for the Township for approximately 11 months. He estimates that there are between 50 - 60 farms in the Municipality and three of them have tire fences. He attended at the subject property and did an inspection from the road. His estimate is that there are approximately 2,000 tires on the property, most of which are tractor trailer tires which each count for 4-5 units.
THE LEGISLATION
THE FARMING AND FOOD PRODUCTION PROTECTION ACT, 1998 (The "Act")
The 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 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 6 of the Act. Subsections 1, 2 and 3 of Section 6 of the Act provide as follows:
"6(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:
"(15) In determining whether a practice is a normal farm practice, the Board shall consider the following factors:
The purpose of the by-law that has the effect of restricting the farm practice.
The effect of the farm practice on abutting lands of neighbours.
Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.
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
makes use of innovative technology in a manner consistent with proper advanced farm management practices.
b) makes use of innovative technology in a manner consistent with proper advanced farm management practices
THE ISSUES
Are the Applicants farmers within the meaning of Subsection 6(3) of the Act, or if they 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?
If the Applicants are entitled to bring this Application under Subsection 6(3) of the Act, are the tire fences constructed on their lands a normal farm practice for the purpose of the non-application of bylaws no. 2092-99 and 1143-94 as amended by bylaw no. 2060-98?
FINDINGS AND REASONS
- Are the Applicants farmers within the meaning of Subsection 6(3) of the Act, or if they 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?
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. Based on his evidence and the exhibits submitted by him, we are of the opinion that Mr. Guy is a farmer within in the meaning of the Act. His farmland is used to grow hay for his beef cattle herd, which at the time of the Hearing consisted of 29 animals. Despite the fact that he is not yet producing $7,000.00 gross farm income per year yet, he obtains the property tax reduction from the Province under a start-up program. He participates in various agriculturally related organizations. His full-time employment off-farm is not unusual. Many farmers must supplement their incomes by working elsewhere on a full-time basis.
- If the Applicants are entitled to bring this Application under Subsection 6(3) of the Act, are the tire fences constructed on their lands a normal farm practice for the purpose of the non-application of bylaws no. 2092-99 and 1143-94 as amended by bylaw no. 2060-98?
This Board previously dealt with the issue of tire fences in the case of Yake v. The Municipal Corporation of the Town of Fort Erie (Board File Number: 2003-01). In that case the Board made a determination that the tire fences located on the Applicant's property in the Town of Fort Erie were not a normal farm practice. That Decision was site specific.
Based on the evidence in that case the Board cited five positive issues with respect to tire fences and four negative issues, they are as follows:
PROS
They provide an innovative manner in which to recycle used vehicle tires;
They keep flies and other vermin away;
They hold heat which is beneficial to the animals enclosed by the fences;
They are long lasting, and
They are inexpensive.
CONS
The tires provide a breeding ground for mosquitoes;
They are a fire hazard and must comply with the provisions of the Fire Code relating to tire storage;
The tires are a designated waste under the Environmental Protection Act; and
The tires will be costly to dispose of when they are no longer required for a fence.
The evidence provided by the Applicants touched on only positive issues 1, 4 and 5. The Applicant Barry Guy and his father addressed the innovation of tire fences, the recycling aspect, and the fact that they were durable and inexpensive to build. Mr. Legault's evidence also supported these positions.
With respect to the negative issues the Respondent's main thrust was with respect to the first negative issue dealing with mosquito breeding grounds and West Nile Virus. The evidence of the Fire Chief was that the Ontario Fire Code did not pertain to these particular tire fences in view of the fact that this was a farming operation in his opinion. He did, however, have concerns with respect to the location of the fences in relation to the barns. Although there was evidence received as to the approximate number of tires located on the farm, there is not enough evidence for the Board to make a determination as to whether or not a Certificate of Approval under the Environmental Protection Act would be required for this property. And lastly there was no evidence from the Respondent or the Applicant as to whether or not there would be a problem with disposal 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:
- The purpose of the bylaw that has the effect of restricting the farm practice.
Bylaw no. 2092-99 appears to be a bylaw dealing with fences within the Municipality. The purpose of Section 4 (F) is to prohibit the construction of any fence consisting of new or used tires, whether as a recycling project or not in any part of the Township of Black River - Matheson. The bylaw does not specifically target agricultural lands and its purpose would appear to be to prevent the proliferation of tires on all types of property, including farm properties. Prohibition of tire fences does not appear to be unreasonable in view of the intent in reducing potential breeding grounds for mosquitoes to prevent the spread of West Nile Virus.
Bylaw no. 1143-94 as amended by bylaw no. 2060-98 would appear to be of the type of bylaw known as a "property standards bylaw", which requires owners of land to keep their property clean and clear of "waste", which includes "new or used tires for the purpose of a recycling project or for any other purpose". The purpose of the bylaw is to keep all kinds of "waste" as defined from being accumulated on private property. It too is not necessarily directed at agricultural lands, but applies to all lands within the Municipality.
- The effect of the 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 the Fire Chief are also accepted as effecting both the abutting lands and neighbours of Mr. and Mrs. Guy.
- Whether the bylaw reflects a Provincial interest as established under any other piece of legislation or Policy Statement.
The evidence of Ms. Rypalowski expresses a desire of the Provincial Government to remove used tires as potential breeding grounds for mosquitoes and control the spread of West Nile Virus. Despite the fact that the West Nile Virus may not yet be as common in the Porcupine area as it is in southwestern or central Ontario, the evidence was that it is spreading northward, and that all Ontarians need be vigilant about stagnant water, especially stagnant water located in tires. Therefore the bylaws reflect the Provincial interest to regulate the use of scrap tires.
- The specific circumstances pertaining to this site.
From a fire safety point of view the tire fences are located in close proximity to the farm buildings, which in the opinion of the Fire Chief was of concern.
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 breeding habitat and the spread of West Nile Virus, as well the fire safety concerns noted above 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 the evidence, we find that the tire fences located at Lot 9, Concession 4, Geographic Township of Hislop, Municipality of Black River - Matheson are not a normal farm practice for the purpose of the non-application of bylaws no. 2092-99 and 1143-94 as amended by bylaw no. 2060-98. Accordingly the Application is dismissed.
GLENN C. WALKER