NORMAL FARM PRACTICES PROTECTION BOARD
IN THE MATTER OF the Farming and Food Production Protection Act, S.O. 1998, C.1.
AND IN THE MATTER OF an application to the Board, under Section 6 of the Farming and Food Production Protection Act, for a determination as to whether a Municipal By-Law restricts a normal farm practice.
Board File No.:2013-03 : Sproul v. County of Huron
BETWEEN:
Matthew Sproul
Applicant
and
County of Huron
Respondent
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Anthony H. Little, Q.C., Vice Chair Douglas Eadie, Mem ber
Ma Kaiser, Mem ber
I APPLICATION
. Matthew Sproul filed an Application for a Hearing pursuant to Section 6 of the Fanning and Food Production Protection Act .
· The Normal Farm Practices Protection Board agreed to accept the Application as it related
to operations being undertaken from the Applicant's premises which allegedly were negatively affected by the enactment of By-Law 10, 2006, an enactment which was designed to prohibit or regulate the destruction or injuring of trees in woodlands in the County of Huron. The Application sought a ruling that the operations negatively affected are12vrmal farm practice .
II PRE-HEARING EVENTS
Prior to the commencement of the Pre-Hearing, pursuant to Rule 65( 1) of the Board's Rules of Practice and Procedure, a Conflict Resolution Session was organized.
In any event, as the Conflict Resolution Session and Process did not result in an agreed upon resolution, accordingly, The Normal Farm Practices Protection Board (hereafter the "Board") agreed to accept the Complaint and proceed to a Hearing.
Pursuant to the Board's Rules of Practice and Procedure , a Pre-Hearing Conference was ainnged to take place on Thursday, February 27rn , 2014 by way of a linked in teleconference facility at 10:00 am. Although there was a possibility of the Hearing also becoming engaged in Settlement discussions, for various reasons including the availability of necessary personnel, the Hearing did not assume that secondary purpose.
As a consequence of the outcome of the Pre-Hearing Conference, the issues were addressed at a second teleconference undertaken by the Parties and the Board on March 26, 2014 when a date for Hearing was selected and the final an-angements for preparation for that Hearing confirmed.
III HEARING
- When the Hearing convened, the following participated:
Normal Farm Practices Protection Board
(i)
(ii)
(iii)
(iv)
Anthony Little - Vice Chair, Normal Farm Practices Protection Board Douglas Eadie - Member, Normal Farm Practices. Protection Board Max Kaiser - Member, Normal Farm Practices Protection Board Finbar Desir - Secretary, Normal Farm Practices Protection Board
Applicant
(i)
(ii) '
Mr. Kurtis Andrews - Counsel for Matthew Sproule Mr. Matthew Sproul
Respondent
(i) Mr. Darrell Hawreliak - Counsel for County of Huron
(ii) Mr. David Pullen - Forestry Conservation Officer - County of Huron
(iii) Mr. Scott Tousaw - Director, Planning & Development- County of Huron
Mr. Little, the Vice Chair of The Normal Farm Practices Protection Board, acted as Chair of the Hearing Panel and called the Hearing to order.
While The Normal Farm Practices Protection Board is most grateful to the Parties for their participation in the mediation process mandated by the Board's Rules, the Board's mandate is to determine whether or not the operations being undertaken from the Applicant's premises that allegedly were negatively affected by the enactment of By-Law 10-2006, an enactment which was designed to prohibit or regulate the destruction or injuring of trees in woodlands in the County of Huron. The Application sought a ruling that the operations negatively affected constitute a normal farm practice.
As noted above, the authority for the Hearing derives from the Farming and Food Production Protection Act, 1998 (hereinafter referred to as the "Act").
IV PRELIMINARY MATTERS AT HEARING:
The Hearing commenced with Mr. Little completing his opening remarks, explaining the processes and securing data as to the Parties and their representatives etc. as well as outlining the expected course of the Hearing which had not yet commenced.
Mr. Little confirmed that there were to be two matters entered into the Record of the Hearing which were to be marked as Exhibits with the consent of the Parties. The first Exhibit was an Agreed Statement of Facts and the second was a Joint Document Brief. With respect to the latter, each document presented was to speak for itself and no further evidence would be
,.·,.requ ired ·as to its provenance, creation or accuracy. Each of the Documents presented in Exhibit 2 and each of the statements in Exhibit 1 were accepted by the Parties as being accurate, capable of proof and the position of the Parties.
The Chair read the content of the Agreed Statement of Facts into the Record as an assistance to the many members of the public who were in respectful attendance throughout the Hearing.
Each Party presented a form of Written Argument and a Book of Authorities. Each was received by the Board without being marked as Exhibits.
Certain issues relating to a series of cases relati ng to the concept of Jud icial Notice and soine extracts from the Statut01y Powers Procedures Act were presented. Some initial objection
was made to that presentation of materials; however, the Board ruled that the materials would be admitted and would form part of the Board 's materials with the understanding that relevance would be argued at a later date.Notwithstanding that limitation, the Board agreed that evidence on issues which had transpired before that date which bore on issues of cred ibility might be accepted as admissible evidence. Those matters would be dealt with if and when they arose on an ad hoc basis without there being the enforcement of a hard and fast Rule as to admissibility.
Mr. Little further confirmed that the purpose of any Hearing before the Board was to determine whether or not the operations being undertaken from the Applicant's premises which allegedly were negatively affected by the enactment of By-Law 10-2006, constitute a normalfarm practice. It should be noted that the said By Law was subsequently repealed and replaced by the enactment of By Law 38- 2013 effective May 1, 2013.
The burden of proving the existence of those facts was upon the Applicant; the standard of proof in relation thereto was on a balance of probabilities. Only upon the Board accepting -on relevant and cogent evidence - the establishing of such facts on that standard, would the Applicant be successful in his Application
The term agricultural operation is also defined in Section 1(1) of the Act as:
"Agricultu ral operation" means an agricultu ral, aquacultu ral, horticultu ral or silvicultu ral operation that is carried on in the expectation of gain or reward.
The phrase or term normalfarm practice is defined in Section 1(1) of the Act as:
"Normal farm practice" means a practice that:
(a) is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultu ral operations under similar circumstances or
(b) makes use of innovative technology in a manner consistent with proper advanced management practices.
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V EVIDENCE AT HEARING:
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Given the consent filing of the Agreed Statement of Facts, Counsel for the Applicant simply moved into presentation of argument, with the understanding that various items in the Joint Document Brief and Agreed Statement of Facts wou ld form the evidence upon which the Applicant would rely.
The opening argument presented was that the impugned by-law was enacted under the provisions of the Municipal Act and not within the purview of the Planning Act and, accordingly, for that reason that the Respondent's position regarding land use, and thus,
zoning, was not appropriate.
Relying upon the authority of Oakville (Town) v Read (c.o.b. Read Farms), [2011] O.J. No. 86 (C.A) a decision of the Ontario Court of Appeal, the Applicant argued that the Normal Farm Practices Board could not consider issues of zoning and/or land use.
The Applicant claimed that any decision by the Board would have to be case-specific, and that the simple question was only whether or not the Board could determine that the activities of the Applicant could constitute a normalfarm practice.
The Applicant drew the Board through consideration of various exhibits and specifically referred to the document found at Tab 14 and the notes thereupon placed by the Applicant, Matthew Sproul.
Specifically, the Applicant argued that the pictures identified as "C" and "D" of Tab 14 established evidence of boundary-marking devices of some age, creating the implication that the original extent of the cultivated land extended into the now forested area.
The Applicant argued that the configuration of the trees with extending limbs (limby branches) showed that the land had been previously cultivated and/or cleared for cultivation.
The Applicant referred to photos "S" and "T" of Tab 14 which, he argued, indicated the edge of the wood lot. The larger trees located therein (which would have a diameter of between one inch and two-and-a-halfinches , according to the Agreed Statement of Facts), indicated an encroachment upon the cultivated land by smaller trees.
The Applicant further argued that the existence of the Kirk Drain, as shown on Tab 15, indicated an intention by the Drainage Design Engineer to reduce the wetland to allow cultivation consistent with the clearing of the then drained area for purposes of cultivation.
The Applicant argued that what was occurring was nothing more than an attempt to square up the field.
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The Applicant referred to two aerial photographs taken in 1955 and 1978, respectively, shown as developing evidence of earlier farm use (cultivation) and, thus, a return to an existing situation.
The Applicant referred to the preamble to the Farming and Food Production Protection Act as supplying certain strength to his position. The pream ble reads, inter alia:
It is desirable to conserve,protect and encourage the development of agricultural lands for the production offood, fibre and other agricultural or horticultural products.
- The essence of this point in the Appl icant's argument was that lands were to be developed for cultivation and expand ing the area of cultivation in any individual location was
consistent with the aims of the Farming and Food Production Protection Act as set forth in its preamble.
The Applicant further discussed the impugned Bylaw and indicated that he had .found certain difficulties in respect to it. He specifically referred to other bylaws of a similar nature which brought into play consideration of the Farming and Food Production Act , and, thus, the mandate of the Normal Farm Practices Protection Board.
Specifically, the Applicant referred to the Woodland Conservation By-law No. 05-03 for the County of Elgin, in its paragraph 3. o), the Tree Bylaw for the Regional Municipality of Halton By-law No. 121-05 in its paragraph 4. k), and the City of Ottawa Urban Tree Conservation By-law in its Section 25(g) each of which made reference to normalfarm practices and/or the Farming and Food Production Act as providing exceptions which favored the farmer. He argued the impugned By-law was silent to that exception. Accordingly, it was subject to questionable validity or enforceability.
Arguments were made with respect to the operation of the Public Lands Act and its successor legislation .
From the perspective of the Respondent, the activities of the Applicant were said to be clear-cutting and clear-cutting is not a normalfarm practice. From the perspective of the Respondent , this was not a correcting of a creeping forest; it was a clear-cutting of five acres of woodland land.
. The Respondent argued that the consequence of the Applicant's activities was to increase the acreage by five percent, thus increasing value as well as available land for crop cultivation purposes. Greater land area means greater profitability for the Applicant but such should not be secured by contravention of a valid Municipal By-law.
The Respondent argued that this proceeding before the Normal Farm Practices Protection Board was simply to counter-act with a defense to a charge laid under the impugned By law which was presently before the Courts under the Provincial Offences Act.
In that regard , the Respondent argued that the purpose of the Application ought to be considered ; aricf if fourid 'fo be inappropriate, should be denied. Frorn the persj5e6tive 6f '
the Respondent , it is impossi ble to ignore zoning in determ ining appropriateness of the purpose. The location of the subject lands within the NE 1 Zone and/or the NE2 Zone makes the point and precludes the Applicant from cultivating within those two zones.
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The Respondent's position also relied upon an interpretation of paragraph 34 of the Oakville (Town) v Read (c.o.b. Read Farms), [2011] O.J. No. 86 (C.A.) decision.
The strength of the Respondent's argument falls withi n a consideration of the property being located in the NE 1 and NE2 zones, meaning that the property in question was not an agricultu ral land, and thus the application of Section 6 of the Farming and Food Production Act was not engaged .
The Respondent argued that pictures shown as items "C", "D", "E", and "F" of Tab 14 were not actually within the subject area where clear cutting had occurred but, rather, another part of the Applicant's property, unrelated to the lands in issue.
The Respondent conceded that the Board's Decision would be case-specific.
The Respondent argued that the Board must consider the mandate placed upon it by Section 6. (15) of the Act which reads:
(15) In determining whether apractice isa normalfarm practice, the Board shall consider thefollowing factors:
1. Thepurpose of the by-law that has the effect of restricting afann practice;
2. The effect of thefarm practice on abutting lands and neighbours;
3. Whether the by-law reflects a provincial interest under any other piece of legislation or policy statement;
4. The specific circumstances pertaining to the site.
In his analysis, Respondent's Counsel made the following points.
The Respondent argues that the purpose of the by-law is to promote and protect forested areas and encourage the regeneration of trees within the area. In his analysis, clear-cutting defeats that purpose ;
The Respondent states that there is neutral effect of the farm practice on abutting lands and neighbours;
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3. In the Respondent's argument, the impugned By-Law is in full compliance with the entirety of the Provincial Policy Statement despite arguments made by the Applicant within a specific analysis of the policy on a microcosmic basis. The Respondent argues that Section 2.1.1 demands that natural features and areas shall be protected for the long term. The Respondent argues that the use of the word shall continues throughout the same section specifically in Subsections 2.1.4. 2. 1.5 and 2.1.8 when stating how the Provincial Policy is to be interpreted. Specifically, Subsection 2. 1.8 makes it clear that developrrient and site alterations shall not be permitted if there is . to be a negative impact upon abutting lands after an
ecological function analysis has been undertaken and those features have been evaluated and established. In attempting to gain approval for clear-cutting activity, the burden of proving compliance with Subsection 2.1.8 always remains with the Applicant. The Respondent argues that the mandatory provisions of Subsection 2.1.8 have not been met on a balance of probabilities by the Applicant in this instance -despite the provisions of Subsection 2.1.9 which have the effect of protecting the continuance of existing agricultural usage. In his analysis, the Respondent argues that the subject property - the clear-cut area - is either zoned NEl or NE2 and, thus, does not constitute a prime agricultural area so defined within the Policy Statement thus invoking Section 2.3.
- The Respondent argues that the site in question is Zoned NEl or NE2 and, thus, agricultural activity within that area cannot be the subject of an investigation as to whether or not activity - read clear-cutting
- in the specific circumstances pertaining to this site can be considered a normal farm practice .
44. With respect to the specific points raised by the Applicant, the Respondent's Counsel had the following comments:
The issue of the content of By-laws from other jurisdictions is completely iITelevant, given that the case is dealing with a site-specific matter and thus, the Huron County Tree By-law.
Secondly, the By-law does not restrict lands within the agricultural zone designation in this case as the site is zoned natural environment - NEl or NE2.
In any event, the By-law permits farm practices including logging firewood
and the taking of limbs but only within the purview and permittd. acticm,s described in that By-law. · · .· · .. ·· ·· · , ···
The Applicant's argument that clear-cutting is a 1tormalfarm practice cannot be applied since, in this instance, the activity was neither a maintenance initiative nor an activity against forest creep.
The Public Lands Act references are iiTelevant.
VI DECISION AND REASONS THEREFOR:
45. The Board finds that the Applicant has not successfully established the alleged effect of the impugned Municipal By Law which had the effect of precluding the Applicant from can-ying on a normalfarm practice as described in the Act on a balance of probabilities thus satisfying the onus placed upon him by the Act.
The Board confirms that each case must always be determined on its own facts.
The facts found by this Board are based upon and found either within the Agreed Statement of Facts marked as Exhibit # 1 or evidenced from the documentation found in Exhibit # 2.
The Board finds that the evidence presented does not confirm the subject property has been returned to an agricultural use -cultivation preexisting the relevant by-law. In that regard, the Board has considered the evidence relating to the boundaries of the cleared area as shown on various aerial photographs found at Tabs 4, 6. 9, 10, 11, 12, 13 and 15 along with the photographic evidence presented at Tabs 6. 14. The Board notes that some of the latter evidence related to boundaries outside of the clear-cut area and were, accordingly, inelevant to the Board's consideration on the issue ofretum to cultivation.
In considering the arguments placed before it by the Parties, the Board has placed reliance on various cases and authorities set forth in the two Case Briefs presented by the Parties respectively. Specific reference has been made to the following:
Oakville (Town) v Read (c.o.b. Read Farms), [2011] O.J. No. 86 (C.A.)
Hill and Hill Farms Ltd. V. Bluewater (Municipality) [2001] O.J. No. 3674 (Div. Ct.) Ontario Provincial Policy Statement 2014
The Municipal Act, 2001 S.O. 2001, Chapter 25 - as amended.
- . . . . : Tlie Planning Act, 2001 R. S.O. 1990, Chapter P. 13 "' a:s amended. ,_
By-Law No. 38-2013 of the Corporation of the County of Hu ron (forest Conservation By-Law).
The Board finds that the Applicant has not met the necessary satisfaction of its burden to prove his case on a balance of probabilities.
While considering the Arguments which were made with respect to the application of the Public Lands Act (and its successor legislation), the Board finds those arguments to be irrelevant and without application to the subject Application and, thus, to the ultimate decision made by the Board.
The Board has considered the arguments made by the Applicant as to the deficiency of the impugned By-Law when viewed against the content of similar by-laws in the other three jurisdictions outlined in Paragraph 32. While not necessary to its decision - as the Board's purpose is limited to an analysis as to whether or not the impugned by-law restricts a normalfarm practice - the Board comments that the issue of the validity of the impugned By-Law is beyond its scope and function.
The Board finds that the Zoning applicable to the subject property is either NE l or NE 2 and that, accord ingly, agricultural uses as that term is defined are not permitted therein. In the result, this Application cannot proceed because the Board's consideration of the issue does not permit it to answer the question of whether or not the activity of the Applicant is a normalfarm practice when the zoning does not permit agricultural activity.
VII. ORDER OF THE BOARD:
- The Application to the Board by Matthew Sproul presented pursuant to the authority of Section 6 of the Farming and Food Production Act, 1998 is hereby dismissed and, as required by Section 6 (16), declares that the Applicant's activities relating to the specific site do not constitute a normalfarm practice.
Dated September 12, 2014 at Guelph,
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Anthony Little, Q. C., Vice-Chair,
Nor al Farm Practices Protection Board
Douglas Eadie, Member,
Normal Farm.Practices ProtectionB.oard , , ...
Max Kaiser, Member,
I G1Z