NORMAL FARM PRACTICES PROTECTION BOARD

IN THE MATTER OF THE f ARMI NG AND FOOD PRODUCTION PROTECTION ACT', S.O. 1998, C.,1.

AND IN THE MATTER OF AN APPLICATION TO THE BOARD UNDER SECTION 5 OF THE FARMINIG AND FOOD PRODUCTION PROTECTION ACT 11 998

BOARD FILE NUMBER: 2010-.02

BEFORE:

Glenn C. Walker, Chair Helene Blanchard, Member Dwayne Acres, Member

BETWEEN:

Daniel Mark Platt and Elizabeth Lore Platt

Applicants

and

James Stuart Fisher, Helle Verbeke Fisher and Fidale Farms Ltd.

Respondents

APPEARANCES:

Applicants: Self-Represented

Respondents: Edward Oldfield, Counsel for the Respondents

DECISION

PURPOSE OF THE HEANG

This Application was made by the Applicants for relief under Section 5 of the Farming and Food Production Protection Act, 1998, regarding alleged disturbances of noise and vibration emanating from the agricultural operation of the Respondents at 6420 McNiven Road, Kilbride, Ontario. The Hearing took place at the University of Guelph Laboratory Service Board Room B, 95 Stone Road VVest, Guelph, Ontario, on January 17, 18, 19 and 20, 2011. A site visit was conducted by the panel on January 20, 2011 . The Board heard evidence from 5 witnesses on behalf of the Applicants and 16 witnesses on behalf of the Respondents and logged 32 exhibits.

The Applicants alleged that they are persons directly affected by disturbances 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 disturbances are ones of noise and vibration from the agricultural operation of the Respondents.

BACKGROUND FACTS

The Applicants reside at 6500 McNiven Road in the Hamlet of Kilbride which is now located within the municipal boundaries of the City of Burlington, Regional Municipality of Halton. Their home, which is approximately 200 feet north on McNiven Road from the entrance to the Respondents' property!, is located on a residential lot.

There are approximately 49 residences located on McNiven Road, south of Kilbride Street, and including McNiven Court.

McNiven Road itself is a paved road with narrow shoulders and no sidewalks. Its width varies in various locations.

The Respondents, James Stuart Fisher and Helle Verbeke Fisher purchased 101 acres lying on the west side of McNiven Road in 1997. These lands had previously been used as a·gravel pit, which had been decommissioned some time ago. The Fisher's have used their property in conjunction with their farming corporation, Fidale Farms Ltd. Initially they put up some temporary buildings and used the lands to pasture sheep. They also severed 3 large residential lots off of the westerly portion of the property leaving the farm with an acreage of 89 acres more or less. In 1999 they built a home on the property and moved there. In 2002 they stopped the sheep operation because of predation problems and switched to a cow-calf operation. Historically they have kept 3 to 5 horses on the property and in that same year they built a smaller hay barn and a barn for the horses. In addition to the home farm, the Respondents rent approximately another 1000 acres of farmland. The property has several large deep pits

where gravel has been extracted and the land surrounding these pits is used for the pasturing of the cattle and the horses.

In approximately 2009 the Respondents built a large hay barn at the bottom of one of the large pits. This barn is approximately 30 feet below the grade of the surrounding lands and is used for the.storage of hay. Access to the farm is by way of a lane which runs west from McNiven Road between the propHrty to the north and the most northerly of the severed lots.

At approximately the same time as the large hay barn was built, the Respondents commenced storing hay produced on their rental farms on tho subject lands. This hay was then sold retail to others including a number of horse fanns. This type of

agricultural activity necessitated more traffic to and from the Respondents' lands, moving the hay in and then back out again.

As stated above the Applicants'' compllaint involves the disturbances of noise and vibration. The source of the noise complained of has two potential sources. One is noise arising from the farm itself ("onsite noise") and the other source is from machinery and farm traffic passing by the Applicants' home on McNivein Road ("road noise").

Mr. Platt gave evidence concerning the disturbances. Mrs. Platt did not testify.

With respect to "onsite noise" he claims that he can hear this noise during the week and also on weekends and holidays and that it "creates a drone" effect. He believes that the source of this "drone" is from the operation of farm equipment on the farm