Britnell v. DeBoer, 2007 ONNFPPB 4

ONTARIO NORMAL FARM PRACTICES PROTECTION BOARD

Britnell v Deboer 2007 ONNFPPB 4

DATE OF DECISION: 2007-10-12

2007-02

STATUTE: Farming and Food Production Protection Act 1998

HEARING:

BETWEEN: Chris Britnell and Erin Britnell -- Applicants and Bert DeBoer and Henrietta BeBoer. -- 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 noise emanating from grain bins used as part of the agricultural operation of the Respondents at R.R. #1 Stayner, Ontario. The hearing took place in the Municipal Chambers of the Town of Wasaga Beach, 30 Lewis Street, Wasaga Beach, Ontario on August 28 and August 29, 2007. A site visit was conducted by the panel on August 28, 2007.

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 noise arising from the operation of grain bins on the farm of the Respondents.

EVIDENCE

WITNESSES FOR THE APPLICANTS

CHRIS BRITNELL

Mr. Britnell resides at 1994 18-19th Side Road R.R. #1 Stayner, Ontario together with his wife, Erin, and his children. He and his wife own eighteen acres at that location in the Township of Clearview in the County of Simcoe. He was not able to advise the Panel of the Lot &'lnO Concession in Clearview Township.

In later evidence, specifically Exhibit # 32, it became clear that the eighteen acre parcel owned by Mr. and Mrs. Britnell is triangular in shape, bounded on the North East by Strongville Road, on the South East by 18-19th Side Road (Sunnidale) and on the West by an unopened road allowance. Mr. Britnell introduced four photographs showing his house from the road allowance and also the location of the two large grain bins, one taken before the straw bales were in place and one afterwards.

Both Mr. and Mrs. Britnell work days and leave the home at approximately 7:30 a.m. Mr. Britnell testified he returns at 4:45 p.m. They bought the house in December 2001 when the bins were already in place on the Respondents' farm. Mr. Britnell testified that he was advised by both Mr. DeBoer and Jake DeBruyn, OMAFRA Agricultural Engineer for that area at the time, that the fans on the grain bins were 10 H.P. axial fans. There is a smaller bin located further away with a centrifugal fan which according to Mr. Britnell is not a problem.

In his evidence Mr. Britnell testified that the sound levels emanating from the bin fans was not acceptable, that he felt trapped in his house when the fans were on and that it was affecting the use of his property. He found it difficult to relax and sleep at night because of the noise from the fans and complained that he and his family could not plan outdoor events when the fans were operating. In his opinion Mr. DeBoer was not being considerate about when the fans were being turned on. As part of his evidence he submitted as Exhibit #5, a "calendar of when grain bins were running; 2002 to present." He testified that these dates and times were transcribed from a traditional calendar which was not available at the hearing.

LARRY CAMACK

Mr. Camack is a farmer. Mr. Camack has been farming for 27 years and he has a cash crop and swine finishing operation. He has two aeration bins on his farm, one 18 foot diameter, 4,000 bushel bin and one 21 foot diameter 5,500 bushel bin. The fans are 3 and 3.5 H.P.; one is axial and one is centrifugal. He testified that his bins are located at 250 feet from his house with the fans directed away from his residence.

ALEX McNABB

Mr. McNabb is also a farmer who has farmed in the Clearview area for fifty years. For the last five years he has been driving a grain truck and has on many occasions been to pick up grain on farm homesteads. His evidence was that he was not aware of any farm where the grain bins are located closer to a neighbour's house than those located on Mr. DeBoer's operation.

In cross-examination it became apparent that Mr. McNabb is Erin Britnell's father and so he is familiar with the Britnell property. He confirmed that he has been to their home on many occasions for social purposes and if the fans were running they would not be able to carry on a normal conversation outdoors. He also observed that there was a difference with the noise with respect to wind direction. There would be less noise if the wind was from the East and the noise was more noticeable if the wind was from the West, Northwest, or Southwest. He also admitted that there was some difference in the noise level when the straw bales were put in place.

RVOR CORSON

Mr. Corson lives in a rural area at 3515 Pinegrove Road in a rural part of the Township of Clearview. He has been to the Applicants' home when the fans are not running and also when they are running. He testified that when the fans are in operation the noise is "annoying" and "disturbing". His observation was that the noise was much louder when there was a wind from the West and hardly noticeable when there was a wind from the East.

RESPONDENTS' CASE

BERT DeBOER

Mr. DeBoer farms approximately 1,200 to 1,300 acres. He resides on Lot 18, Concession 7, Clearview Township. There are some grain bins on the home farm. He stores grain there for his cattle. In 2002 he required more grain bins for his crops and had a system designed by Phair Farm Systems. Each of the grain bins has a 10,000 bushel capacity and a 27 foot diameter with an aeration floor and a 10 H.P. axial fan. The system was oversized to provide for drying as well.

A building permit for the bins was issued by the Township of Clearview on June 14, 2002 (Exhibit #27) requiring a 50 foot side yard fronting on the open road allowance. He testified that the bins are located 110 feet from the property line. The bins were constructed after the issuance of the building permit.

Mr. DeBoer produced a number of photographs showing other areas of his farm lands which show substantial flooding in the spring. He testified that there was a difference of 70 to 80 feet from the highest to the lowest points of his farm land, and that the present location of the bins was the only place on the lands that he owned, where the bins could be located and be accessible year round. In particular the home farm location is too wet, and even the lands around the bins at that location flood in the spring. Phair Farm Systems advised him not to put the new bins at the home farm.

The bins are used for storing and drying grain, corn and soya beans. The drying time cannot be predicted as there are too many variables. The fans do not directly face the Applicants home. The fan on the bin to the North is pointed in a Northeasterly direction, while the fan on the South bin is pointed in a Southeast direction. The Respondents' evidence was that the fans could not be located on the other side of the bins, that is, on the West side of the bins, as the fans have to be in line with the loading augers. The loading augers are adjacent to the laneway on the West side of the bins, so that the fans were located on the East side. This was probably the ideal location relative to the layout but may not have been the only place they could have been placed. .

After some discussions with Mr. Britnell, the Respondents decided to put up some large square straw bales around the fan outlets in order to muffle the sound. Mr. DeBoer was subsequently contacted by Jake DeBruyn, and Hugh Fraser, Agricultural Engineers with OMAFRA. They suggested that he put up more straw bales and subsequently Hugh Fraser did sound testing. Mr. DeBoer added additional straw bales in a half-circle. In addition he put plywood on top of the half-circle to assist with the muffling effect. This structure is shown in Exhibits #19 and 20.

HENRIETTA DeBOER

Henrietta DeBoer, the wife of the previous witness and one of the Applicants, testified that Mr. and Mrs. Britnell told her and her husband that if they didn't shut down the fans the Britnells would go on their property and shut them down. The next morning the DeBoers found that the fans had been turned off. The police were called but the Respondents did not lay any charges.

CHANTELLE LESLIE

Ms. Leslie has been a field representative for Ontario Federation of Agriculture for four years. She became involved in this matter at the request of Mr. DeBoer in an attempt to mediate a solution. The Board declined to qualify her as an expert witness to give evidence with respect to the subject matter of this hearing as her curriculum vitae and her evidence did not support a finding of appropriate training or experience.

JACOB DeBRUYN

Mr. DeBruyn is the OMAFRA Agricultural Engineer who became involved in this matter as a result of the complaint made by the Applicants. After filing his curriculum vitae (Exhibit # 30) he was qualified as an expert witness to give opinion evidence in this matter. He attended at the site and met with both parties to assess the situation. He subsequently made recommendations to the parties in a letter dated March 1, 2005, a copy of which is filed as Exhibit #31. In that letter he gave options to ameliorate the situation. He testified that the recommendations in his report were in no particular order, but possibly from low cost to high cost. The first option contained in his report was to increase the size of the straw bale walls around the fan outlets. He confirmed that Mr. and Mrs. DeBoer had followed through on that recommendation.

HUGH FRASER

Mr. Fraser is also an OMAFRA Agricultural Engineer who was contacted by Mr. Jacob DeBruyn to assist him in this matter. Mr. Fraser was qualified as an expert witness to give opinion evidence with respect to noise arising from agricultural operations based on his curriculum vitae filed as Exhibit #33. He has successfully completed the Environmental Noise Certificate for Municipal and Provincial Officers from the Ministry of Environment, been involved in noise measurement across the Province assisting other OMAFRA engineers on abatement issues with respect to noise from bird bangers, grain dryers, potato storage ventilation fans and wind machines. He has also testified for this Board on a number of occasions and as well before the Ontario Municipal Board.

In consultation with the parties and Mr. Jacob DeBruyn, Mr. Fraser conducted noise measurement tests at the site of the Applicants' residence on December 12, 2005. His report based on those tests was filed as Exhibit #34. Sound measurements were taken near the North fan, then about 11-0 feet, 220 feet, and 440 feet away from the fans, with the 440 foot measurements just outside the Britnell home on their deck, then just inside their sliding patio door.

The results of those measurements are contained in revised figure 3 to his report entered as Exhibit # 35. In each instance the sound levels were measured with the bales in place around the fans and without any bales, and vary from a high of approximately 100 decibels with no bales directly by the fan to just slightly more than 20 decibels inside the Britnell residence with windows closed and bales in place.

On the house deck at 440 feet from the noise source the measurement that day was approximately 65 decibels without bales and slightly over 40 decibels with bales. On average the reduction in decibel levels when the bales were in place was 20 decibels and he found that the sound levels were drastically cut by the bales. He testified that there was only a slight difference when two fans were running as opposed to one. He also gave evidence that on that day it was very cold and dry with clear skies. There was a slight breeze from the Northeast that would take the sound away from the Britnells'. If the testing had been done with a West Northwest wind then the noise would have been somewhat higher. For comparison purposes the decibel level for normal speech is between 65 and 70 decibels and Ministry of the Environment uses 45 decibels as being average rural ambient noise.

In summary he concluded that the actions taken by the Respondents strategically placing bales around the fans resulted in a significant sound level reduction compared to having the fans run without any bales in place and that the sound in the house and on the house deck were acceptable.

THE LEGISLATION

The Farming and Food 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 the 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 a normal farm practice."

Disturbance is defined in Section 1 (1) of the Act:

"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 processing by a farmer of the products produced primarily from the farmer's agricultural operation.

"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 in 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 a disturbance from an agricultural operation?

2. 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

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

The disturbance alleged is one of noise, which is one of the disturbances listed in the definition of "disturbances" in Subsection 1 (1) of the Act. The Board finds, based on the evidence that the Respondents operate an agricultural operation within the meaning of the 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 Applicants must be found to be persons "directly affected by a disturbance". If an 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 BOrml to have jurisdiction.

This Board has previously held that there is a threshold test for disturbance and that once the threshold has been 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 Order prohibiting a farmer from carrying on an agricultural operation. Consequently it would seem that the threshold test for disturbance is one and the same as the Common Law test for nuisance in civil actions. It is not unreasonable to expect an Applicant to establish the same level of interference with 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.

Has there been an unreasonable interference with the use and enjoyment of the lands of Chris and Erin Britnell? The Applicants make no allegation of a depreciation of the resale value of their lands or of injury to their health. Mr. Britnell's evidence is directed towards their comfort and convenience alone and that of their family. The Applicants' Application to the Board is dated May 6, 2007. The Board finds that whether as of the date of the actual Application or as the date of the hearing, the number of bales, increased at the suggestion of Jacob DeBruyn were already in place resulting in a significant reduction in the noise from the fans as determined by Mr. Fraser on December 12, 2006. Since the Board must deal with the nature of the disturbance as either at the date of the Application or the date of the hearing, the Board finds that as of either date, and considering all the evidence, the Applicants have not shown that any disturbance exists. 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 is there at the present time an unreasonable interference with the use and enjoyment of their land. Consequently the Applicants are not persons directly affected by the alleged disturbance 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, does the disturbance 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 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 consider whether or not it was a normal farm practice, the Board would have found that the Respondents' agricultural operation at the present time is a normal farm practice based on all the evidence before it. The Board bases this conclusion on the fact that the bales are in place in front of the aeration fans and that the Respondents are expected to maintain at least as many of bales (and possibly a few more) in front of the aeration fans and to keep the bales well maintained.

DECISION

For the reasons given above the Board therefore dismisses the Applicants' Application.

Dated: October 12, 2007

Glenn C. Walker - Chair

~L Bill French, Member