Richardson v. Fox, 2005 ONNFPPB 34

ONTARIO

NORMAL FARM PRACTICES PROTECTION BOARD

Richardson v Fox

2005 ONNFPPB 34

DATE OF DECISION:

2005-01-20

2004-02

STATUTE:

Farming and Food Production Protection Act 1998

HEARING:

BETWEEN:

Mark Richardson and Sherry Richardson, Applicants

And

Bruce Fox and Mona Fox, 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 and noise from the broiler chicken operation of Bruce and Mona Fox located at 415 Fox Road, being Part Lot 16, 17 and 18, Concession 6, Murray Ward, in the City of Quinte West. The Hearing took place in the Municipal Chambers of the City of Quinte West, 7 Creswell Drive, Trenton, Ontario on January 11, 2005.

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 and noise arising from the broiler chicken operation on the farm of the Respondents. A site visit was conducted by the Board on the morning of January 12, 2005.

EVIDENCE

WITNESSES FOR THE APPLICANTS

Mark Richardson

Mark Richardson resides with his wife, Sherry Richardson, and their four children aged 5 through 16 years of age, at 422 Fox Road, in Murray Ward, City of Quinte West. He and his wife have resided there for approximately 7 years. On this 54 acre farm he and his wife raise hogs and cattle and Mr. Richardson also works off the farm in a Belleville factory.

When Mr. Richardson became aware that Mr. and Mrs. Fox were going to build a new barn for a broiler chicken operation, he contacted the City of Quinte West Planning Department and spoke to Greg King, a Planner in that office. He expressed his concerns about the location of the new barn. As a result of that contact Greg King took the Richardsons to the location of another chicken barn in Murray Township located approximately 2 kilometers south of their home. This barn belonged to one John Moelker and was a two story barn with exhaust fans on only one side of the barn. Mr. Richardson stated that at that time he was under the understanding that the new Fox barn would be similar to the Moelker barn and that it would have exhaust fans on only one side of the barn facing away from their home. Although there were no birds located in the Moelker barn at the time of their visit the fans were turned on and the Richardsons were satisfied that at a distance of 700 feet on the side of the barn on which there were no fans the noise would not be disturbing.

As a result of the mediation by Greg King and the visit by the Richardsons to the Moelker barn site, the Richardsons agreed that they would not object to a Minor Variance application made by Mr. and Mrs. Fox reducing the set back between the barn and their home to 700 feet from the 1,000 foot distance separation set out in the former Murray Township Zoning Bylaw.

Mr. Richardson testified that construction of the new barn commenced in May 2002 and was put into operation in August 2002. About 2 weeks after the commencement of the operation of the new barn he noticed that the vibration and noise from the exhaust fans were coming into their home. He also testified that the family began to experience an unbearable odour from the broiler chicken operation. The odour could be experienced when the weather was calm and was especially bad on damp days.

His evidence was that the noise from the fans interfered with the family’s time together and that it was very noticeable within their home even with windows closed. He cited an example of his children waking up asking for the windows to their bedrooms to be closed because of the noise when in fact they were already closed. He further stated that the noise was ascertainable in the family room, furthest from the barn, even over the sound of the television and that it was distracting and noisier than the background noise at his factory workplace.

The Minor Variance had been granted by the Committee of Adjustments for the City of Quinte West on the condition that there be a Site Plan Agreement. Mr. Richardson requested in writing to Greg King, the City Planner connected with the Application, that he and his wife be involved in the Site Plan Agreement process. He testified that he and his wife were not allowed to be a part of that process. He also felt that he and his wife had been misled in agreeing not to object to the Minor Variance as the new barn as constructed was not the same type of barn as the Moelker barn, which they had visited with Mr. King.

Sherry Richardson

Sherry Richardson is the wife of the previous witness. She testified that after the first crop of chickens went into the new barn in August 2002, she had hung her laundry out to dry and that when she brought it in she noticed the odour on bath towels. She likened the noise of the fans to a refrigerator running all of the time and testified that she understood that the fans operated for 2 minutes, went off for 4 minutes, and then recycled. Her evidence was that she could hear the fans when lying in bed with the windows closed.

Her children complain about the odour, especially at night, and she finds the odour from the broiler barn offensive and that it is different than the odour produced by the pigs and cattle on her farm.

WITNESSES FOR THE RESPONDENT

Greg King

Mr. King is a Registered Professional Planner and has given evidence before the Ontario Municipal Board. He has been an area Planner for the City of Quinte West or previous Municipalities for 16 years.

The Quinte West Official Plan Designation for the Fox farm is Agricultural and Aggregate Reserve and the barn is a permitted use. The Official Plan requires that MDS II be complied with, with respect to new agricultural construction.

Based on an MDS II calculation prepared by Harold Cuthbertson, OMAF Engineer, the distance separation from the Richardson residence, being the nearest neighbours residence to the proposed new barn, would be 577 feet, while the Zoning Bylaw required a distance separation of 1,000 feet. Consequently the Foxs required a Minor Variance in order to construct the barn in the proposed location. Mr. King was contacted by Mr. Richardson with his concerns about the barn location prior to an Application for a Minor Variance actually having been made. He attempted to mediate the situation with the Richardsons. The Richardsons had concerns about the barn being located on tillable acreage and that it was too close to their home. As part of the mediation process Mr. King attended with the Richardsons at the Moelker farm, measured off approximately 700 feet from the side of the barn with no fans and then arranged to have the fans turned on. There was no significant vegetation located between the observation point and the Moelker barn. As a result of that site visit the Richardsons appeared to be satisfied with a distance separation of 700 feet and agreed not to object to the Minor Variance or to appeal the decision of the Committee of Adjustment to the Ontario Municipal Board.

The Application for a Minor Variance to 700 feet was submitted to the Committee of Adjustment resulting in a unanimous decision of the Committee and no appeals. Mr. King supported the request for the Minor Variance as it met all three tests for a Minor Variance. The decision was subject to one condition and that was that the proposed broiler barn be subject to a Site Plan Agreement. Mr. King testified that in order to satisfy the condition a Site Plan was prepared and attached to the Building Permit. Mr. and Mrs. Richardson did not have any input into the preparation of the Site Plan, however in order to satisfy their concerns that the existing buffering vegetation be retained between the proposed barn and their home, Mr. King added the following notation to the Site Plan:

“The owners shall preserve and maintain all existing mature, healthy trees located within this noted area except those trees required to be removed for the construction of the barn and driveways and/or the installation of services i.e. hydro, water, etc. The existing vegetation will be maintain as a buffer area between the barn and adjacent residences i.e. Richardson’s residence located to the northwest. Additional vegetation may be required to be planted to enhance the buffer zone to the satisfaction of the Municipality.”

After the barn was constructed Mr. King became aware of the complaints made by the Richardsons concerning odour and noise. He testified that he had attended at the Richardson’s and the Fox barn on many occasions, approximately 10 – 15 times, since then. He also testified that he stood at various locations on the Richardson property and had not been able to notice the level of noise and odour described by the Applicants on any of those occasions.

In a further attempt to mediate this matter he suggested that perhaps an earth berm could be constructed on the Fox property to deflect odour/noise. However, Mr. and Mrs. Fox would not agree to such a proposal. Just recently Mr. and Mrs. Fox have planted about 30 evergreen trees approximately 4 feet apart and approximately 3 feet high. This was done to enhance the existing vegetation between the barn and the Richardson residence. Mr. King testified that he is waiting to see the results of this Hearing in order to decide whether or not the Municipality will require further buffering.

Harold Cuthbertson

Mr. Cuthbertson has been an Agricultural Engineer with OMAF since 1975 and is based in this area. He had numerous conversations with Greg King about the MDS II calculations used for the Fox Minor Variance Application. He subsequently became involved as a mediator when the Richardsons voiced their complaints concerning noise and odour from the broiler chicken operation. He attended on the Richardson site and testified that he did not find the noise to be loud nor did he find the odour to be excessive or objectionable.

Henry Eigenberood

Mr. Eigenberood is a dairy and chicken farmer who resides within 4 – 5 miles of the subject site and as a local representative for the Christian Farmers Federation of Ontario he was asked to mediate in this matter. He was advised by the Applicants that they were complaining about a droning noise and odour from the broiler barn. He attended at the site on several occasions when the birds were almost ready to be shipped and therefore the odour would be greater and the fans running more often. He listened to the fans from the driveway to the broiler barn and also at several locations on the Richardson property. He testified that he could only detect a slight noise and asked the Richardsons to call him when the noise was bad so that he could experience that. According to Mr. Eigenberood he was never called by the Richardsons to come and hear the noise when it was bad. He testified that on one night visit the fans were blowing at maximum.

As a farmer who raises 10,000 – 11,000 broiler chickens he is familiar with the odour produced by them. He testified that he could not smell odour on any of his visits to the site at any of the locations.

Ronald Pols

Mr. Pols is a contractor who has been installing and maintaining fans in poultry barns all across Ontario since 1987. He testified that he has installed fans in thousands of barns and installed the fans in the new Fox barn.

The Fox barn is 64 feet in width and requires fans on both sides to provide effective ventilation. Efficient ventilation is necessary for many reasons but it also keeps the litter dryer and thus keeps the odour down. He testified that there is a combination of sizes of fans in this barn being 18 inch, 24 inch, 36 inch, and 48 inch diameter, and that they are used in various combinations and sequences. He described the fans in the Fox barn as being state-of-the-art and testified that he had done installation of fans in approximately 10 barns of a similar nature.

William Miedema

Mr. Miedema has been a Services and Inspection Representative with the Chicken Farmers of Ontario for approximately 15 years. He advised the Board that Mr. and Mrs. Fox have been certified under the OFFSAP Program, which requires the chicken farmer to comply with 84 audit requirements with the purpose of ensuring the safety of their product. Mr. and Mrs. Fox entered into this Program voluntarily and immediately met all requirements with the exception of two, which have since been remedied.

Sean Dawe

Mr. Dawe is the Poultry Territorial Manager for ShurGain Feeds and deals with many poultry farmers across Eastern Ontario. He advises the Foxs with respect to various products which they must use in the production of their broiler chickens and in addition sells them the chicks, feed, vitamins and medications which they require. He produced a Nutriprime Summary for the Fox operation for the crop ending November 16, 2004. This is basically a report card done at the end of every crop. He indicated that the performance levels for the Fox operation were above average and that they would not get these results without doing the right things in the barn.

Bruce Fox

Mr. Fox provided information concerning the operation of the barn. There are approximately 6 crops per year with each crop of birds being in the barn for approximately 6 weeks followed by a 2 week period when the barn is empty for cleaning. When the chicks are placed in a barn there is a bedding of coarse straw already in place. That bedding is not removed or changed until approximately 6 weeks later when the birds have gone to market. Barn temperature requirements for the young birds are greater than for the older ones and accordingly the fan exhaust fan system is used less often at the beginning of the crop and increases to the point the birds are removed. The various sizes of exhaust fans are used in different combinations during different stages of the crop cycle and activity of the fans is activated automatically by heat and moisture levels within the barn. Mr. Fox provided information to show that out of the 235 days that there are chickens in the barn the fans are only operating for 40 – 56 of those days.

Mr. Fox felt that he had compromised by building the barn at least 700 feet from the Richardson residence when MDS II only required a separation of 577 feet. In locating it where he did he had to expend an additional $20,000.00 for fill and leveling.

SITE VISIT

On the morning of January 12, 2005 the Panel visited the Fox broiler barn and the Richardson residence. At the broiler barn Mr. Fox advised that the birds presently in the barn were going to be shipped very shortly. The Board noted that the fans were accordingly operating on a fairly regular basis on both sides of the barn and that there was some odour present outside of the barn. The Panel also noted that the wind that day was blowing in the direction of the Richardson’s residence.

The fairly thick vegetation between the Richardson residence and the broiler barn was noted. The Panel also observed that there was a significant rise in the land between the Richardson residence and the broiler barn.

Upon attending at the Richardson residence no member of the Panel was able to ascertain any smell or noise coming from the broiler barn despite the fact that the wind was blowing from the East.

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 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 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

1. Are the Applicants persons directly affected by disturbances from an agricultural operation?

2. If the Applicants are entitled to bring this Application under Subsection 5(1) of the Act, do the disturbances complained of result from a normal farm practice?

FINDINGS AND REASONS

1) Are the Applicants persons directly affected by disturbances from an agricultural operation?

The disturbances alleged are ones of odour and noise which are both 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 also finds based on the evidence that the Respondents operate an agricultural operation within the meaning of that definition in Subsection 1(1) of the Act.

In order to have standing to apply under Section 5 to the Board for a determination as to whether the disturbance results from a normal farm practice the Applicant must be found to be a person “directly affected by a disturbance”. If the Applicant establishes standing by providing sufficient evidence to show that he or she is a person directly affected by a disturbance from an agricultural operation then the onus of proof shifts to the Respondent to prove on the balance of probabilities that the alleged disturbance results from a normal farm practice. In other words the onus is on the Applicant to prove that he or she is directly affected by a disturbance from an agricultural operation in order for this Board to have jurisdiction.

This Board has previously held that there is a threshold test for a disturbance and that once the threshold is passed the degree in quantity of the disturbance is not relevant (Lucas v. Terpstra et. al., NFPPB 2001 unreported). If the significance of the alleged disturbance is not of such a level as to “affect” the Applicant the Board will be without jurisdiction.

What is the threshold test? Subsection 2(1) of the Act provides that a farmer is not liable in nuisance to any person for a disturbance resulting from an agricultural operation carried on as a normal farm practice. Subsection 2(2) of the Act states that no Court shall issue an Injunction or other Order that prohibits a farmer from carrying on the agricultural operation because it causes or creates a disturbance. The Legislature has transferred from the Superior Court to the Board the ability to deal with nuisance claims relating to disturbances as defined in the Act when the aggrieved person is seeking an injunction or other Order prohibiting a farmer from carrying on an agricultural operation. Consequently it would seem that the threshold test for a disturbance is one and the same as the common-law test for nuisance in civil actions.

In Pyke v. Tri Gro Enterprises Ltd. [1999] O.J. NO. 3217 (Ontario Superior Court of Justice), Ferguson J. instructed himself on the law of nuisance at paragraphs 202 through 206 inclusive:

“The fundamental issue in a nuisance claim is whether, taking into account all of the circumstances, there has been an unreasonable interference with the use and enjoyment of the Plaintiffs’ land.

In this case the Plaintiffs rely on the alleged injury to their health, comfort and convenience, and the alleged depreciation of the resale value of their lands.

To establish nuisance, the Plaintiffs must show substantial interference which would not be tolerated by the ordinary occupier in their location. The test is objective. The interference must be repeated or continuous.

In considering the interference, the Court must consider the type of interference, the severity, the duration, the character of the neighbourhood, and the sensitivity of the Plaintiffs’ use of their lands. With respect to the severity of the interference, it is not actionable if it is a substantial interference only because of the Plaintiffs’ special sensibilities. With respect to the character of the neighbourhood, the Court should consider the zoning, whether the Defendants’ conduct changed the character of the neighbourhood and the reactions of other persons in the neighbourhood.

The Court must balance these considerations against the value of the Defendant’s enterprise to the public and the Defendant’s attitude towards its neighbour. The Court must consider whether the Defendant is using the property reasonably having regard to the fact that the Defendant has neighbours. The Court should consider whether the Defendant took all reasonable precautions.”

It is not unreasonable to expect an Applicant to establish the same level of interference with the use and enjoyment of his property in an Application under Section 5 of the Act, as he would have to establish if he were making a claim for damages on the basis of nuisance in the Superior Court. A consistent approach is absolutely necessary. After an analysis of the evidence in accordance with the statements of law set out in Justice Ferguson’s decision, the Board must be able to find on the balance of probabilities that the evidence supports a finding that the Applicant has been directly affected by the disturbance.

Has there been an unreasonable interference with the use and enjoyment of the lands of Mark and Sherry Richardson? The Applicants make no allegation of a depreciation of the resale value of their lands or of injury to their health. Their evidence, if accepted, is directed towards their comfort and convenience alone and that of their family.

CHARACTER OF THE NEIGHBOURHOOD

The evidence discloses that the neighbourhood is designated as agricultural in the Municipal Official Plan and zoned as Agricultural Zone 2. The Applicants have livestock buildings on their lands and are also involved in livestock production. They reside in close proximity to their own barns. They are familiar with the types of odours normally associated with livestock production. The Respondents entering into a broiler operation did not fundamentally change the character of the neighbourhood and there is no evidence of complaint by any other persons in the neighbourhood.

SEVERITY OF THE INTERFERENCE

As to duration of the alleged noise disturbance, the evidence is, and the Board finds, that the fans are only in operation from between 40 – 56 days a year and that during those times the fans may not operate on a regular basis depending on the age of the flock and the season. There is a significant rise between the broiler barn and the Richardson residence, which rise is covered by a great deal of vegetation, both of which factors would dissipate odour and noise to a certain degree. The evidence of the two Applicants with respect to the disturbances was uncorroborated. It is difficult to reconcile it with the evidence of King, Cuthbertson and Eigenberood all of whom were independent witnesses, although called by the Respondents. Although Mr. Eigenberood invited Mr. Richardson to call him when the odour or noise were bad so that he could re-attend on the property Mr. Richardson never did so.

THE DEFENDANTS’ ATTITUDE AND ACTIONS

On the other hand the Respondents have expended a significant amount of money in developing an apparently successful business. The Foxs compromised on the location of the barn, at an additional cost of approximately $20,000.00, by having the distance separation reduced to only 700 feet when the evidence supports the fact that the distance separation could have been the MDS II distance of 577 feet. Furthermore the Respondents agreed not to reduce the existing vegetation between themselves and the Richardsons and in fact have added more trees which will grow into an even thicker buffer between the barn and the Richardson residence.

Considering all of these factors the Board finds that the Applicants have not shown substantial interference which would not be tolerated by the ordinary occupier in their location, nor has there been an unreasonable interference with the use and enjoyment of the Applicants’ land. Consequently the Applicants are not persons directly affected by the disturbances alleged and this Board has no jurisdiction to entertain their Application to consider whether or not the Respondents’ operation is a normal farm practice.

2) If the Applicants are entitled to bring this Application under Subsection 5(1) of the Act, do the disturbances complained of result from a normal farm practice?

In view of the Board’s finding that the Applicants have not met the threshold test as to being directly affected by a disturbance, it is not necessary for the Board to answer this question. However, if the Board had in fact found that it had jurisdiction to make a decision on this question the Board would have found that the Respondents’ agricultural operation is a normal farm practice based on all of the evidence before it.

DECISION

The Board therefore dismisses the Applicant’s Application.

DATED: January 20, 2005

GLENN C. WALKER

JOHN MARKUS

GORDON GARLOUGH