Brunton v. Town of Gravenhurst, 2005 ONNFPPB 27

ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Brunton v Town of Gravenhurst

2005 ONNFPPB 27

DATE OF DECISION:

2005-01-20

2004-04

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

Stephen Brunton and Teresa Brunton – Applicants

And

The Corporation of the Town of Gravenhust – Respondent

DECISION

PURPOSE OF THE HEARING

This Application is made by Stephen Brunton and his wife, Teresa Brunton, for relief under Section 6 of the Farming and Food Production Protection Act, 1998, with respect to the Corporation of the Town of Gravenhurst Bylaw No. 97-67. The Applicants seek a determination as to whether the burning of slash on their farm property is a normal farm practice for the purposes of the non-application of the Municipal Bylaw prescribing times for setting fires and precautions.

At the commencement of the Hearing it was determined that Teresa Brunton was a co-owner of the subject lands and she was added as an Applicant together with her husband, Stephen Brunton, on consent. The Hearing took place at the Muskoka-Parry Sound Health Unit, 5 Pineridge Gate, Gravenhurst, Ontario on December 20 and December 21, 2004.

EVIDENCE

WITNESSES FOR THE APPLICANTS

Stephen Brunton

Stephen Brunton and his wife, Teresa Brunton, are the owners of approximately 89 acres located at 1070 Jones Road, being Part Lot 13, Concession 6, formerly in the Township of Muskoka, now in the Town of Gravenhurst. His family has been involved in farming at that location for approximately 70 years and he now operates a cow-calf operation on the farm. The Brunton farm is not in rural seclusion. There is a daycare centre located across Jones Road from his property and there is also a golf course located approximately one mile away. From time to time Mr. Brunton feels it necessary or advisable to clear some of his land of trees. Approximately 25 acres of the farm have been cleared during his memory and he has probably cleared about 10 acres himself. After the trees are taken down, the usable logs are removed and the slash, or the remains, are left to be burned.

Mr. Brunton usually supervises the burning of the slash himself and stated that he has never obtained a Permit or permission to burn from the Municipality or anyone else. He was adamant that the Farming and Food Production Protection Act, 1998 exempted him from any requirements that might be imposed by the Municipality on his burning practices. Mr. Brunton stated that he had no firefighting training, but that he had been taught how to burn by his father, who was a full-time firefighter and fought forest fires all over Ontario.

Mr. Brunton’s evidence was that he conducts his fires in a safe manner, and that he looks for days to burn when the wind is low and the ground is damp. He also stated that he only burns when the wind conditions will not blow smoke towards the road and cause visibility problems, and that he has tractors with loaders available and sand to control the fire in the event that it gets out of hand. He also usually burns during the daytime. He sometimes checks with the Ministry of Natural Resources (MNR) with respect to burning bans and ratings, but mostly goes by the local weather conditions.

Some of the burning takes place in a burn pit, which is located on the edge of a ravine and which is located approximately 60 to 80 feet from surrounding forest.

On July 2, 3, and 9, 2004 he was burning slash from jack pine trees, which had been felled around the end of June, 2004. The Bylaw Enforcement Officer for the Corporation of the Town of Gravenhurst became aware of the fires on those days and on at least one occasion tried to inspect the fire, but was turned away by Mr. Brunton. It would appear from the evidence that the events of those days have triggered the Application presently before the Board.

Harold Cuthbertson

Mr. Cuthbertson is a professional engineer with the Ontario Ministry of Agriculture and Food (OMAF) and has been employed by OMAF since 1975. On consent he was qualified as an expert witness to given opinion evidence as a professional engineer, rural environment.

Mr. Cuthbertson admitted that he had no formal training in forest fire suppression or prevention and that his personal experience was basically limited to parts of southern Ontario which are areas outside the fire regions. When he was contacted to attempt to mediate the dispute between the Applicants and the Respondent he obtained from other Agricultural Engineers with the Ministry a selection of Bylaws dealing with open air fires. He also obtained from other Agricultural Engineers in the north part of Ontario information as to whether farmers in their areas generally burn brush, stumps and other woody materials in the daytime or at night, or whether there is any preference.

The results of his investigation can be found at Tab 3 of the Applicant’s Witness Statements Book and were made Exhibit Number 7 at the hearing. His conclusion was that there was a “mish-mash” of Regulations in the various Bylaws which he reviewed. He also concluded that farmers have generally not applied for burning Permits and just burn as they have always done, without permission. Since 1975 he stated that he had never been asked about this issue before and that he only became aware of the Forest Fire Prevention Act (FFPA) after he started to prepare for this Hearing.

Neil Tarlton

Mr. Tarlton is a Member Service Representative for the Ontario Federation of Agriculture (OFA) and has been so for the past 8 years. His territory primarily covers the area from North Bay to Sault Ste Marie. Prior to joining OFA he was employed by OMAF for 29 years as an Agricultural Representative and provided agricultural management advice to farmers regarding a wide variety of agricultural techniques and products, the application of relevant Legislation and the application and administration of many Government Grant and Operational Programs. He has an Honours Degree in Agriculture from Reading University, England. On consent Mr. Tarlton was qualified as an expert witness to give opinion evidence on general agricultural practices.

Mr. Tarlton was not the OFA Representative who would normally service Mr. Brunton’s area, but in the absence of the Representative for this area he visited Mr. Brunton’s farm on July 19, 2004. He related his personal experience with respect to agricultural burning as an Agricultural Representative for OMAF while stationed in New Liskeard, Ontario. In the early 1980s the Government of Canada and Ontario ran a NORDA Program allowing farmers to clear land in Northern Ontario, and several thousand acres were cleared under this Program. After the farmer got as much usable lumber off the lands as possible the leftovers, or slash, were collected in wind rows and burned. At that time farmers did not apply for burn Permits, but he admitted that there was a different version of the FFPA in effect at that time.

WITNESSES FOR THE RESPONDENT

Jason Ross

Jason Ross is currently the Bylaw Enforcement Officer and Property Standards Officer for the Corporation of the Town of Gravenhurst. On July 3, 2004 he noticed smoke and flames on the Brunton farm where he attended to investigate. He was concerned about various safety issues such as the hot, dry day, and the proximity of the trees and he believed that the fire was unsafe at that time. When he asked Mr. Brunton to put out the fire Mr. Brunton advised him that he could burn on his farm without a Permit as it was agricultural land and he refused Mr. Ross permission to approach the fire. Mr. Ross cautioned Mr. Brunton that he could be charged for obstructing the Bylaw Enforcement Officer and with Bylaw Infractions.

Since starting his employment with the Town of Gravenhurst on May 4, 2004 Mr. Ross acknowledged that he was not aware of any farmer having applied for a burning Permit under the Gravenhurst Open Fires Bylaw.

Edward Matthews

Mr. Matthews is the Fire Management Supervisor for the Parry Sound Fire Management area for MNR. This area extends south from the French River to the Severn River and West from Georgian Bay to the eastern boundary of Algonquin Park and includes the Town of Gravenhurst. He has been employed by MNR for 24 years and has held the position of Fire Management Supervisor since 1994. He is also a Captain on the Parry Sound Municipal Fire Department and has been involved in fire service for 19 years. On consent the witness was qualified as an expert witness to give opinion evidence with respect to forest fire management and suppression.

Mr. Matthews explained that the Town of Gravenhurst is located in the Parry Sound Fire Management Area, which is within the boundaries of the East Fire Region established under the FFPA. The Province of Ontario and the Corporation of the Town of Gravenhurst, pursuant to the Provisions of the FFPA, entered into a Municipal Forest Fire Management Agreement, dated April 1, 2000. This Agreement provides that the Municipality will develop a Forest Fire Prevention Plan and implement a Forest Fire Prevention Program for all areas of the Municipality, that it agrees to control open air burning in a coordinated fashion in the Municipality through Bylaws or a Fire Permit System consistent with the FFPA, the Ontario Fire Code, and the Ministry of Environment and Energy Guidelines. It also provides that the Municipality will at its expense be responsible for the management and enforcement of any Fire Permit System enacted under authority of Bylaw and that at the request of the Municipality the Ministry will assist in the investigation of fire occurrences and undertake prosecutions for contravention of the FFPA and its Regulations. There are similar Agreements with other Municipalities across the Province. Basically the regulation and enforcement of open air burning is downloaded to the local Municipality.

Mr. Matthews also referred to the Outdoor Fires Regulation passed pursuant to the FFPA and advised that it prescribes various Rules with respect to the conduct of outdoor fires in Fire Regions. The witness also advised that he had an opportunity to review the Town of Gravenhurst Burning Bylaw no. 97-67 and that it was consistent with the FFPA and the Outdoor Fires Regulation. He explained that the Bylaws passed by the Municipalities who are under Agreement with the MNR did not have to be exactly the same as the Regulation, but that they should be as consistent as possible. The Regulation contains minimum requirements, but Bylaws can be more stringent.

In unorganized areas, where there are no Municipal Forest Fire Management Agreements, he is the authority who issues Permits for burning. He was of the opinion that in areas controlled by Agreements if the Municipal Bylaw is less stringent than the Outdoor Fires Regulation the MNR still has authority to charge the landowner for a violation of the FFPA and/or Regulation.

Lorne McNeice

Mr. McNeice has been the Volunteer Fire Chief of the Town of Gravenhurst Fire Department since 1985. His full-time job is as a Mechanic at the Ontario Fire College. He has been a firefighter since 1972 and Chief since 1985 and is a graduate of the Ontario Fire College. On consent he was qualified as an expert witness to give opinion evidence as to fire prevention and firefighting.

Mr. McNeice advised that he was aware of the Municipal Forest Fire Management Agreement between the Province and the Town of Gravenhurst, and the Municipal Burn Control Bylaw. As the Chief Fire Official he is the person who would issue Permits under the Bylaw. He advised that in the last 10 years he would have Permit Requests once or twice a year from contractors wishing to burn slash leftover when clearing land for subdivisions, although he has never had an Application from a farmer. He would approach an Application from a farmer in the same manner as that of a contractor.

Mr. McNeice would prefer night burns at which time the humidity is higher and the winds lower and there are less complaints. He stated that the conditions would have to be very good before a day burn would be permitted.

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 or 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:

“6(1) No Municipal Bylaw 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 a determination as to whether a practice is a normal farm practice for purposes of the non-application of a Municipal Bylaw.

(3) An Application may be made by:

a) Farmers who are directly affected by a Municipal Bylaw 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:

1. The purpose of the Bylaw that has the effect of restricting the farm practice.

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

3. Whether the Bylaw 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 farm 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” 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 Forest Fire Prevention Act (FFPA)

The FFPA only applies to Fire Regions established by Regulation under it. The administration of this Act is under the control and direction of the Minister of Natural Resources. Section 19 of the FFPA provides that the Minister may enter into Agreements with respect to the prevention, control or extinguishment of grass, brush or forest fires, and Section 36 provides that the Lieutenant Governor in Council may make Regulations regulating or prohibiting outdoor fires.

Ontario Regulation 207/96 as amended by Ontario Regulation 230/00 is entitled “Outdoor Fires”.

Section 2 of the Regulation states:

“2. No person shall start or tend a fire outdoors outside of a restricted fire zone during the fire season unless the person has a permit issued under Subsection 5(1) or all of the following conditions are met:

1. The person is burning piled wood, brush, leaves, or discarded wood byproducts.

2. A responsible person is available to tend the fire until it is extinguished.

3. The material is burned in a single pile that is less than 2 meters in diameter and less than 2 meters high.

4. The fire is started not earlier than 2 hours before sunset, and is extinguished not later than 2 hours after sunrise the following day, or earlier.

5. The fire is at least 2 meters from any flammable materials.

6. The person tending the fire has tools or water adequate to contain the fire within the fire site.

“5(1) An Officer may issue to a person a Fire Permit for a fire outdoors or in an incinerator, outside of a restricted fire zone, for the purpose of burning piled wood, brush, leaves, grass, leaf litter or discarded wood byproducts.

(3) An Officer may make a Permit issued under Subsection (1) or (2) subject to conditions relating to one or more of the following:

1. Restrictions on the time during which there may be a fire.

2. The requirement that the fire be or not be in a specific location, including the distance that must be maintained from flammable materials.

3. Required fire suppression equipment.

4. The method to be followed to extinguish the fire.

5. Any other factors which the Officer reasonably considers to be necessary to ensure that the fire is made and extinguished safely.”

The relevant portions of the Town of Gravenhurst Burn Control Bylaw being Bylaw no. 97-67, as amended, are:

“7 - Chief Fire Official

Open air fires may be set in all areas of the Municipality except those prohibited under Section 5. The Open air fires are approved by the Chief Fire Official, provided that Section 8 of this Bylaw are (sic) complied with. Failure to comply with Section 8 of this Bylaw will void the Chief Fire Official’s consent.”

“8(1) - Burning Regulations

No owner shall set a fire in open air or permit a fire to burn:

a) Using materials other than Class A combustibles;

b) On any traveled portion of any common and public highway;

c) On any asphalt surface;

d) Within 15 meters of a structure or vehicle;

e) Unless attended to by a responsible person until out;

f) Without having apparatus, equipment, personnel and a supply of water at the ready, sufficient to control the fire;

g) Under conditions whereby the wind may carry or expand the fire to another part of the lot on which the fire is located, or to another lot;

h) In such a manner and condition that the smoke therefrom impairs the vision of a motorist at a distance of 150 meters or less;

i) No owner shall set a fire in open air or permit a fire to burn including a fire in a yard incinerator from April 1^st of each and every year to October 31^st of each and every year except from 2 hours before sunset through the night to 2 hours after sunrise;

j) No owner shall set a fire in open air or permit a fire to burn unless placed in a single pile less than 2 meters in diameter and less than 2 meters high. Notwithstanding the generality of this clause, the Chief Fire Official or his designate may upon application extend the size of the pile to be burned.

k) Within 2 meters of flammable materials;

l) Within 5 meters of any forest; or

m) In a yard incinerator unless enclosed and covered by a heavy steel screen mesh with openings less than 5 millimeters.”

“8(5) Upon the request of any Officer mentioned in Section 9(1), the owner shall produce the written approval of the Chief Fire Official and/or any Permits issued by the Ministry of Natural Resources and/or the Ministry of the Environment and Energy.”

“9 - Fires to be Extinguished

1Every owner to whom this Bylaw applies shall comply with every direction of the Chief Fire Official or his designate, the Chief Municipal Law Enforcement Officer, or a Municipal Law Enforcement officer and immediately cease any action prohibited. For the purpose of this Bylaw all Officers mentioned above may enter upon any lands.

2Open air fires and contravention of this Bylaw are not approved by the Chief Fire Official and shall be extinguished.

3When the person does not comply to the directive to extinguish the open air fire, the Chief Fire Official, his firefighters, fire trucks, and any other fire equipment may enter upon the land where the fire is burning to extinguish the fire.

4Upon the fire department attending to extinguish the open air fire whether it has been extinguished or not the owner will be responsible to pay fees as established in the Fees and Services Charge Bylaw.

THE ISSUES

1. Are the Applicants farmers within the meaning of Subsection 6(3) of the Act or persons who want to engage in a normal farm practice as part of an agricultural operation and have demonstrable plans for it?

2. If the Applicants are entitled to bring this Application under Subsection 6(3) of the Act, is the Applicant’s practice of burning slash on their farm a normal farm practice for the purposes of the non-application of Bylaw no. 97-67 of the Corporation of the Town of Gravenhurst?

FINDINGS AND REASONS

1. Are the Applicants farmers within the meaning of Subsection 6(3) of the Act or persons who want to engage in a normal farm practice as part of an agricultural operation and have demonstrable plans for it?

The Respondent did not question the Applicant’s standing as a farmer within the meaning of the Act. The evidence before this Board supports the Applicant’s assertion that they are farmers within the meaning of the Act carrying on a cow/calf operation on the subject farm in the expectation of gain or reward.

2. If the Applicants are entitled to bring this Application under Subsection 6(3) of the Act, is the Applicant’s practice of burning slash on their farm a normal farm practice for the purposes of the non-application of Bylaw no. 97-67 of the Corporation of the Town of Gravenhurst?

It would appear from the evidence before the Board at this Hearing that generally farmers do not comply with Municipal Bylaws when it comes to burning slash at least with respect to applying for Burn Permits. Mr. Brunton testified that he had never done so and neither Mr. Cuthbertson or Mr. Tarlton were aware of any cases where a farmer had applied for a Burn Permit. This position was further strengthened by the evidence of the Respondent’s witnesses Matthews and McNeice, neither of whom were aware of applications by farmers for Burn Permits. Although this may be the “custom” or “standard” followed by similar agricultural operations under similar circumstances to Mr. Brunton’s, the question remains as to whether they are “proper and acceptable” within the meaning of the Act. Merely because a bad practice has been established over the years or over generations does not necessarily mean that it is a “normal farm practice” which would allow a farmer to acquire an exemption from municipal legislation.

Subsection 6(15) requires the Board to consider four factors in determining whether the alleged practice is a normal farm practice within the meaning of the Act. An analysis of those considerations follows.

1. The purpose of the Bylaw that has the effect of restricting the farm practice.

The purpose of the Fire Control Bylaw as well as the purpose of the FFPA and the Outdoor Fire Regulation is one of safety. Its purpose is to protect lives and public and private property. The parties do not dispute that this is the purpose. The Applicants contend that Mr. Brunton has satisfied the purpose of the Bylaw in the manner in which he conducts his fires that is in his opinion in a safe and responsible manner. The Respondent takes the position that this leaves all the safety concerns in the control of the farmer.

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

Despite the lack of complaints to date there is a potential for adverse effects on abutting lands and neighbours as a result of smoke and the possibility of the escape of fire from the Applicants’ property to adjoining properties. The evidence discloses that there are nearby neighbours and businesses as well as Jones Road and a nearby Railway. Any of these could be potentially affected if things should go wrong.

3. Whether the Bylaw reflects a Provincial interest as established under any other piece of Legislation or Policy Statement.

The Provincial interest in the regulation of outdoor fires is clearly set forth in the FFPA and the Outdoor Fires Regulation as it relates to slash or wood byproducts. The Municipal Forest Fire Management Agreement with the Town of Gravenhurst dated April 1, 2000 obliges the Municipality to control open air burning through Bylaws or a Fire Permit System consistent with the FFPA, the Ontario Fire Code, and the Ministry of the Environment and Energy Guidelines. Mr. Matthews was of the opinion that MNR could still enforce the FFPA and the Outdoor Fires Regulation within the Town of Gravenhurst despite the Agreement and based on the wording of the Agreement. We would agree. This is a Provincial interest that must be given considerable weight.

In addition the pamphlet (Exhibit Number 8) Crop Residue Management and the Forest Fires Prevention Act reflects the joint Provincial interest of both OMAF and MNR.

4. The specific circumstances pertaining to the site.

The subject farm is located in a heavily forested area of Ontario and within the Eastern Fire Region as designated under the FFPA. In fact there are forested areas still remaining on the subject farm.

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 safety concerns of potentially dangerous unregulated outdoor fires as reflected in the Town of Gravenhurst Fire Control Bylaw, the FFPA and the Outdoors Fire Regulation and the Ontario Fire Code far outweigh the inconvenience which might be experienced by farmers having to comply with the provisions of a Fire Control Bylaw.

The Applicants also take the position that since the Forest Fires Prevention Act is not referred to in Subsection 2(5) of the Act which states: “This Act is subject to the Environmental Protection Act, the Pesticides Act, and the Ontario Water Resources Act” then somehow this Act supersedes the FFPA. This Board has previously considered the meaning of Subsection 2(5) of the Act and has concluded that it means that the Act has concurrent jurisdiction with the Environmental Protection, the Pesticides Act, and the Ontario Water Resources Act until such time there is a conflict at which time those three Statutes would have precedence over the Act. The failure of the Legislature to mention every Statute that the Board might consider as reflecting a Provincial interest under Subsection 6(15) of the Act does not prevent the Board from taking other Legislation not so mentioned into consideration.

DECISION

Having considered all of the evidence, we find that the practice of Stephen and Teresa Brunton with respect to the burning of slash on their farm at 1070 Jones Road, Gravenhurst, Ontario will be a normal farm practice for the purpose of the non-application of the Town of Gravenhurst Bylaw no. 97-67, as amended if:

1. The Applicants conduct any such burn in accordance with the provisions of the Outdoor Fires Regulation, Ontario Regulation 207/96 as amended and the Town of Gravenhurst Burning Control Bylaw no. 97-67, as amended; or

2. If the proposed burn is not in accordance with the Outdoor Fires Regulation and the Burning Control Bylaw, the Applicants:

a) Once each year before the first day of April file with the Chief Fire Official an Agricultural Burn Planning Checklist in the Form attached as Schedule “A”;

b) Obtain annually on or before the first day of April approval of that Agricultural Burn Planning Checklist from the Chief Fire Official or his designate;

c) Receive telephone permission from the Chief Fire Official on the morning of each proposed burn during the ensuing fire season; and

d) Conduct any such burn in accordance with the terms of that Agricultural Burn Planning Checklist and any oral instructions from the Chief Fire Official with respect to that specific day’s burn.

3. During any such burn, the Applicants permit the reasonable entry onto their farm of a Municipal Enforcement Officer or Officers to ensure that the burn is in accordance with the Outdoor Fires Regulation and the Burning Control Bylaw or an approved Agricultural Burn Planning Checklist and the oral direction of the Chief Fire Official (if any) as the case may be;

4. The Applicants comply with any Safety Order or Directions made during the course of the burn by the Chief Fire Official or his designate.

DATED: January 20, 2005

GLENN C. WALKER

JOHN MARKUS

GORDON GARLOUGH