ONTARIO
NORMAL FARM PRACTICES PROTECTION BOARD
Donkers v County of Middlesex
2006 ONNFPPB 7
2006-11-10
2006-01
STATUTE:
Farming and Food Production Protection Act 1998
HEARING:
BETWEEN:
Martin Donkers -- Applicants
and
Corporation of the County of Middlesex -- Respondents
DECISION
PURPOSE OF THE MOTION
At the commencement of the hearing of this application on July 20, 2006, the Respondent, the County of Middlesex, made a motion challenging the jurisdiction of this Board, and requested an order dismissing the application for want of jurisdiction. The motion was made orally by counsel for the Respondent without notice; however, Mr. Donkers, who was not represented, consented to the Motion being heard without notice.
After submissions by both parties, the Board considered the question raised as being of such significant importance, not only to this case but to future cases, that it reserved its decision.
FACTUAL BACKGROUND
The Applicant, Martin Donkers, carries on an agricultural operation within the County of Middlesex. In his application he states that he has in the past "used a drag hose system to spread manure and needed to cross the county road with a temporary pipeline crossing through an open culvert". The Respondent has passed an encroachment by-law requiring that only permanent crossings will be permitted, and that they must adhere to certain standards and be authorized by an Encroachment Agreement. This is an application under Section 6 of the Farming and Food Production Protection Act, 1998. Mr. Donkers, the agricultural operator, seeks a determination that his practice of using a drag hose system to spread manure and crossing a county road using a temporary pipeline through an open culvert is a normal farm practice and would result in a non-application of the county by-law no. 5843.
There appears to be no dispute that Mr. Donkers owns or occupies as a tenant lands on both sides of a county road, and has in the past used a drag hose system to spread manure and cross the county road with a temporary pipeline through an open culvert. Nor is there any issue as to the fact that the road in question is a county road owned and controlled by the Corporation of the County of Middlesex.
ISSUE
The issue raised by Counsel for the Respondent in the Motion is as follows:
Does the Normal Farm Practices Protection Board have jurisdiction under Section 6 of the Act to make a determination that a municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation where the practice is carried on on property owned or occupied not by the agricultural operator, but by a third party.
ANALYSIS
The Normal Farm Practices Protection Board is a creature of statute, and therefore must look to the Farming and Food Production Protection Act (hereafter called the "Act") for its authority. Section 4 (1) of the Act provides that "the Board may exercise such powers and shall perform such duties as are conferred or imposed upon it by this Act".
The case law provided by the Respondent did not provide any assistance to the Board with respect to this question. For the most part the cases dealt with municipal powers to enact by-laws, an issue that is outside the jurisdiction of this Board. It should be noted that the Divisional Court decision in Hill & Hill Farms Ltd. v. The Municipality of Bluewater, found at Tab F of the Respondent's Book of Authorities, was appealed to the Ontario Court of Appeal with a decision released September 18, 2006. The Court of Appeal in Hill & Hill looked at the interpretation of "municipal by-law" and said that it does not exclude zoning by-laws. Neither of these decisions are relevant to the issue at hand.
This jurisdictional issue has not been previously raised with this Board, nor are there any cases in the Board's jurisprudence where the Board was asked, in a Section 6 Application, to make a find ing with respect to a by-law which affected property owned by a third party. Since the Board's authority comes from the statute it is therefore necessary to undertake a review of the legislation.
Subsections 6 (1) (2) and (3) provide as follows:
No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.
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 the purposes of the non-application of a municipal bylaw.
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.
The essential elements which must be present in an Application under Section 6 of the
Act in order to attract jurisdiction are as follows:
a) The Applicant must purport to be a "farmer" within the meaning of the word contained in Section 1 of the Act, or a person who wants to engage in a normal farm practice as part of an agricultural operation on land in the municipality and has demonstrable plans for it.
b) The relief requested must be in respect of a municipal by-law.
c) The activity to be examined must purport to be a normal farm practice carried on as part of an agricultural operation.
There is nothing in the first three Subsections of Section 6 quoted above, nor in the remainder of the section, which would indicate that the Board does or does not have the authority to deal with a by-law which affects the use of real property, whether that real property be owned by a third party or the municipality itself. This section anticipates that the ApplicanUfarmer and the municipality which passed the by-law would be the parties.
Section 7 of the Act is a seldom used section which provides as follows:
- A municipal by-law that has the effect of restricting the times during which a vehicle may travel does not apply to the vehicle if,
a. The vehicle is going to or from an agricultural operation;
b. The purpose for which the vehicle is going to or from an agricultural operation and the times during which the vehicle is arriving at or leaving the operation are part of normal farm practice; and
c. There is no road that could serve as a reasonable alternative that the vehicle may use to travel to or from the agricultural operation.
- A municipality or any person with a direct interest in the result of the Application may apply to the Board, in a form acceptable to the Board, for a determination as to whether the conditions set out in Subsection (1) are met in any particular case.
It is not unreasonable to assume from the wording of Section 7 (1) that it is meant to apply to a by-law passed by a municipality governing the travel of vehicles on its roads.
The legislation is very specific as to when the Board may interfere with the application of the by-law, having to consider all of the factors set out in Subsection 7 (1) (a), (b), and (c).
The Act and its counterparts in other jurisdictions has been referred to in the vernacular as "right to farm legislation". The preamble of the Act says in part that it is intended to address the pressure placed on the agricultural community in a way that balances the needs of that sector of the community with provincial health, safety, and environmental concerns. The balances achieved by protecting "normal farm practices" (a defined term) from certain objections arising out of the fact that they may produce odours, dust, flies, light, smoke, noise and vibration (disturbances). Farm practices that do not meet the test of "normal farm practice" (again a defined term) do not merit the protection of the statute.
The normal farm practice must occur in the context of an "agricultural operation" (another defined term) which can be agricultural, aquacultural, horticultural or silvicultural, as long as it is carried on for the expectation of gain or reward. Subsection 1 (2) U) extends the definition of "agricultural operation" to include activities that are necessary but an ancillary part of an agricultural operation such as the movement of transport vehicles for the purpose of the agricultural operation (emphasis by the Board).
It is clear from a reading of these sections that when the Board considers what is or is not a norrnal farm practice in the context of an agricultural operation, whether in an
Application under Section 5 or Section 6, the activities that might be considered would include the movement of transport vehicles for the purpose of the agricultural operation (emphasis again by the Board).
The question that follows is what about those activities that are not specifically recognized in the Act in the way that the vehicles in Section 7 are recognized or in the way that the Board considers the issue of normal farm practice in the context of an agricultural operation including the movement of transport vehicles for the purposes of the agricultural operation. Was it the intention of the Legislature to authorize the Board to interfere with the property rights of a property owner other than the Applicant without regard to specific wording as in Subsection 1 (2) 0), or applying a specific test such as in Section 7 applications. We think not.
Without specific recognition, those activities cannot qualify for protection under the Act. The Act recognizes that there is a fine balance to be worked whenever clashing interests come together. The issues that come to the fore when private and public interests come together are complex. While Legislators were willing to accommodate the farming community on agricultural lands, they acknowledge that activities that make use of non-agricultural lands like roads have to have special treatment. While they could accept that the application of By-laws aimed at eliminating or reducing odours or other disturbances could be restricted, they were not prepared to accept that by-laws aimed at controlling the activities of the agricultural community using public land should be restricted without identifying the activity and assessing the basis for its protection.
CONCLUSION
The Board concludes that the Act is intended to address operations and activities on agricultural lands, and that when non-agricultural lands are involved, including roads and other municipal property like culverts, then specific wording is needed to address the activity and to set out a specific test for it to meet.
As the Board has concluded that it does not have the jurisdiction to proceed, the Application is dismissed.
DATED: November 10, 2006.
Glenn C. Walker - Chair
Dwayne Acres, Member
HeleneB