Laurie Macpherson and Terry Brake v. The Corporation of the County of Huron, 2016 CanLII 66269

Board File No.: 2012-05

NORMAL FARM PRACTICES PROTECTION BOARD

IN THE MATTER OF the Farming and Food Production Protection Act, S.O. 1998, ch. 1

AND IN THE MATTER OF an application to the Board under Section 6 of the Farming and Food Production Protection Act, S.O. 1998, ch. 1 for a determination as to whether a municipal by-law is restricting a normal farm practice

B E T W E E N:

LAURIE MACPHERSON and TERRY BRAKE

Applicants

and

THE CORPORATION OF THE COUNTY OF HURON

Respondent

Appearances:

Terrance Green, Counsel for the Applicants (for February 29, March 1, 2, 3 and 4, 2016) (unrepresented thereafter)

Darell N. Hawreliak, Counsel for the Respondent

Before:

Glenn C. Walker, Vice-Chair

Douglas Eadie

Robert Brander

REASONS FOR DECISION

A. Introduction

By way of an application under Section 6 of the Farming and Food Production Protection Act, S.O. 1998, ch. 1 (the “Act”), Laurie Macpherson made an application to the Board dated January 7, 2013 alleging that By-Law 10-2006 of the Corporation of the County of Huron impeded the normal farm practice of clear cutting land to establish additional farmland for cultivation and planting. At the commencement of the hearing, on consent, the application was amended to include By-Law 38-2013 of the Corporation of the County of Huron. On the same date, after hearing evidence and argument, the application was further amended by adding Terry Brake as an Applicant.

The purpose of the hearing is to determine whether By-Law 10-2006 and/or By-Law 38-2013 of the Corporation of the County of Huron restricts the Applicants’ proposal to clear cut farmland to establish additional farmland for cultivation and planting, which practice the Applicants allege to be a normal farm practice.

This application came before the Board for a hearing on February 29, March 1, 2, 3 and 4 and September 12 and 13, 2016 and was heard at Clinton, Ontario.

The Board heard evidence from one of the Applicants, Terry Brake, and the Applicants’ witnesses, Jeff Thompson, who was qualified to give expert opinion evidence as an environmental biologist, Ray Storey, David Hemingway, Patrick O’Neal, who was qualified to give expert opinion evidence as a farmer on the issue of clear cutting and David Honey. The Board also heard evidence on behalf of the Corporation of the County of Huron from Scott Tousaw, Director of Planning and Development for the County of Huron, who was qualified to give expert opinion evidence with respect to land use planning; David Stephenson, who was qualified to give expert opinion evidence in the areas of ecological land classification; wetland evaluation; wildlife, vegetation and aquatic habitats; evaluation of environmental impacts; woodlot and tree inventories; mapping evaluations and management plans; arboriculture and aerial photo interpretation; David Pullen, Forest Conservation Officer for the County of Huron who was qualified to give expert opinion evidence as an agrologist and with respect to tree and plant identification and woodland management and Brandi Walter, Environmental Planner/Regulations Officer with the Maitland Valley Conservation Authority (MVCA).

For the reasons that follow, the Board dismisses the application.

B. Background and Other Matters

a) Site Location and Description.

The subject property consists of the west one-half of Lot 32, Concession 3, in the geographic Township of East Wawanosh, in the Township of North Huron, in the County of Huron being 100 acres more or less, municipally known as 38926 Moncrieff Road. A significant portion of the 100 acres consists of woodlands with smaller portions of the farm having been cleared for cropland and buildings. Several watercourses cross the farm including a municipal drain known as the McVittie Drain. Some of the watercourses are spawning grounds for trout.

Ms. Macpherson purchased the lands in 2010 and since then, she and her tenant administrator, Terry Brake, have cropped those portions of the farm lot which had been cleared prior to her purchase or which were cleared subsequent to the purchase. They have also constructed several hoop houses on the property for the production of tropical fruits such as bananas, papaya, etc. The hoop houses together with the house on the property are heated with a furnace burning wood harvested from the farm property.

Subsequent to the purchase of the property, in November, 2010 the County authorized certain tree clearing on the subject property under Forest Conservation By-Law Number 10-2006. The property owner was allowed to clear a maximum 15 metre width of trees on the main farm lane to accommodate automobiles, service vehicles, farm equipment and cosmetic lighting; a maximum 12 metre width of clearing for the existing hydro line and the creation by clearing trees of a farm equipment access along the east boundary of the property from the south field to the north field being a distance of approximately 150 metres and having an approximate width of 12 metres. This authorized tree cutting was undertaken; however, the evidence established that, in some cases, the authorized area of clearing was exceeded by the Applicants

b) The Applicants’ Proposal

The Applicants wish to clear all of the lands, not already cleared, lying south of a red line drawn by the witness, Terry Brake, on Exhibit #13, which is a 2010 aerial photo of the subject farm. In evidence, he indicated that the remaining lands to be cleared consisted of between 30 to 35 acres; however, in argument this number was revised to between 16 and 17 acres. The Applicants intend to use any lands which are clear cut for the purpose of their agricultural operation to either grow crops or to locate additional hoop houses for the growing of their tropical fruit crops. They allege that clear cutting agricultural lands to use them for an agricultural purpose is a normal farm practice. By clear cutting it is meant that all trees and other vegetation would be removed.

c) Site Regulation

i. The Macpherson property is presently subject to the Forest Conservation By-Law passed on May 1, 2013 as By-Law 38-2013 for the County of Huron. This By-Law revoked a previous Forest Conservation By-Law, being By-Law 10-2006 effective May 1, 2013. By-Law 10-2006 was the by-law in effect at the time this application was filed on January 7, 2013. At the commencement of the hearing, the application was amended, on consent, to include By-Law 38-2013 in addition to By-Law 10-2006. The County’s position is that since the 2006 by-law has been repealed, any decision made by this Board with respect to that by-law would be moot as a repealed by-law cannot interfere with any farm practice. The Applicants’ position is that the application should proceed dealing with the 2006 by-law which was the by-law in force at the time the application was commenced.

The Board finds that the proper by-law for it to consider is the 2013 by-law. To find otherwise would mean that the application could not proceed as it would be moot and the Applicants would not be persons who were restricted from carrying on an alleged normal farm practice because the by-law has been repealed. However, for the reasons that follow, it will be seen that whichever by-law is considered the result would be the same.

The 2013 Forest Conservation By-Law prohibits or regulates the destruction or injuring of trees in woodlands and woodlots in the County of Huron. There is a general prohibition in Section 2 which provides that except as provided in this by-law, no person by themselves or through any other person shall destroy or injure, or cause or permit to be destroyed or injured, any living tree located in a woodland or woodlot within the county. The terms “woodland” and “woodlot” are defined in the by-law and there is no question that the trees which the Applicants wish to clear on the Macpherson farm fall within the definition of either a “woodland” or a “woodlot”.

The by-law further provides for certain exceptions in Section 3 and certain exemptions in Section 5, none of which apply to the Applicants’ proposal to clear cut.

ii. Zoning

The Macpherson farm is subject to the Zoning By-law of the Township of North Huron. Those portions of the farm which the Applicants wish to clear cut are either zoned Natural Environment I (full protection zoning) or Natural Environment 2 (limited protection zoning). Both Natural Environment zone I and Natural Environment zone 2 prohibit agricultural uses unless they existed on the date of the passing of the Zoning By-law. It is common ground that the lands which the Applicants wish to clear cut did not have an agricultural use at the date of the passing of the by-law.

County records produced by the Respondent also show that large portions of the lands intended to be cleared have been designated as provincially significant wetlands and areas of natural scientific interest by the Ministry of Natural Resources and Forestry. A portion of the area of natural and scientific interest is known as the Westfield Swamp.

iii. Maitland Valley Conservation Authority

Almost all of the woodlands which the Applicants wish to clear cut are subject to regulation 164-06 of the Conservation Authorities Act, R.S.O. 1990, Chapter C.27 enforced by the Maitland Valley Conservation Authority (MVCA) and designated as either provincially significant wetland, buffer zone to provincially significant wetland or buffer zone to watercourses. No clear cutting of trees from either the wetland or the buffer zones can be done without permission from the MVCA. No evidence was presented to the Board to indicate that such permission has been received by the Applicants.

d) Jurisdiction Issue

In argument, Counsel for the Respondent raised the issue of the jurisdiction of the Board, relying upon the Ontario Court of Appeal decision in Town of Oakville v. Read, 2011 ONCA 22, an appeal from a decision of this Board. That was an application by Read under Section 6 of the Act for relief from the land use provisions of a Zoning By-Law. The Court found that this Board did not have jurisdiction to make an order with regard to the land use provisions of zoning by-laws. The portions of the decision relied upon by Counsel for the Respondent are obiter dicta and do not deprive this Board of jurisdiction in the present case although the zoning of the property is relevant in considering Subsection 6(15)(4) of the Act.

e) Crown Patent Argument

As part of the Applicants` evidence, they introduced as an exhibit a certified copy of the Crown Patent for the subject farm. In argument, they advanced the theory that the Forest Conservation By-Law, or indeed any by-law or provincial law did not apply to these lands as the property had been conveyed to the Applicant, Macpherson, by an original Crown Patent.

The jurisdiction of this Board is to determine what is and what is not a normal farm practice for the purpose of the non-application of a municipal by-law. Once a certified copy of the by-law is filed with the Board, it must accept it as being in full force and effect. Only a Court has the jurisdiction to set aside, quash or find that the by-law does not effect the subject lands.

Having said that, it should be noted that the very same argument was advanced in the case of Desmarais et al. v. Town of Fort Erie, 2016 ONSC 1750 in the Ontario Superior Court of Justice regarding a property standards by-law where the Court found that there is nothing in the conveyance from the Crown which prevents properly enacted provincial legislation, or suggests that a Crown Patent has paramountcy over a municipality`s ability to regulate private property.

f) Reliability of Mapping Evidence

During the evidence of the Respondent, a number of maps were introduced as exhibits showing, inter alia, provincially significant wetlands, areas of natural scientific interest, zoning and MVCA wetlands and buffer zones. The foundation for the production of these maps using a geographic information system, involving various ministries of the province and the municipality was laid out in detail by Mr. Tousaw, Director of Planning, in his evidence. Each map introduced through Mr. Tousaw was certified as being a true copy from the County records by the County Clerk. The MVCA map was certified by Brandi Walter as being obtained from the records of the MVCA. In most cases the Applicants objected to the Board accepting these exhibits on the basis that they were not signed by the Minister and were not reliable.

The Board has accepted all of the challenged mapping as reliable evidence relying upon Rule 40 of its Rules of Practice and Procedure; Section 29 of the Evidence Act, R.S.O. 1990 c. E.23; Section 15 of the Statutory Powers Procedure Act, R.S.O. 1990 c. S.22 and the common law best evidence rule. Although entitled to do so, the Applicants failed to produce any mapping to contradict the evidence of the Respondent.

g) Applicants` Additional Documents

During the hearing it became apparent that Counsel for the Applicants did not have copies of some of the documents that he intended to introduce into evidence. He stated that copies of his Application Record had already been filed with the Board three years previously. That may have in fact been the case as several records had been filed in connection with at least two pre-hearing motions before panels differently constituted from the present panel. However, Rule 41(1) of the Boards Rules of Practice and Procedure requires that any party tendering a document as evidence must provide one copy for each Board member, for each party, for the court reporter and an additional copy, or if practicable, the original document, to be marked as the official exhibit. It was the Applicants Counsel`s obligation to provide those copies at the hearing.

During a break in the first week of the hearing, the Board Secretary confirmed with the Board office that there were no documents located in its file there. However, after the completion of the first 5 days of the hearing, the Board Secretary did locate a box containing one copy of Applicant documents. The Board then notified both parties in writing and provided them with a data stick containing the documents. A telephone conference call between the Vice-Chair and both counsel was held on June 6, 2016 with a view to getting consent to re-open the Applicants`case to admit those documents which had not been previously available on a document by document basis. However, no consent could be obtained as Mr. Green had not reviewed the documents.

Shortly thereafter, the Board became aware that Mr. Green was no longer representing the Applicants and that they would continue with the hearing representing themselves. By letter dated July 20, 2016 sent by courier to the parties, the Board made it clear that should the Applicants wish to make a motion for leave to re-open and file additional material that must be done by way of a motion in writing in accordance with the Board`s Rules of Practice and Procedure returnable at the re-commencement of the hearing on September 12, 2016. No motion was served and filed. At that time, the Applicants requested that they be allowed to make the motion orally without notice. That request was denied.

C. The [Act](https://www.canlii.org/en/on/laws/stat/so-1998-c-1/latest/so-1998-c-1.html)

The objectives of the Farming and Food Production Protection Act, 1998, are set out in the preamble, which states as follows:

“It is desirable to conserve, protect and encourage the development and improvement of agricultural lands for the production of food, fibre and other agricultural or horticultural products.

Agricultural activities may include intensive operations which may cause discomfort and inconveniences 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, fibre and other agricultural or horticultural products.

It is in the provincial interest in agricultural areas, that agricultural uses and normal farm practices be promoted and protected in a way that balances the needs of the agricultural community with the provincial health, safety and environment concerns.”

“Agricultural Operation” means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward.”

“Farmer” means the owner or operator of an agricultural operation.

Subsection 6(1) through 6(3) provide as follows:

“6(1) No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation.

(2) 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 purposes of the non-application of a municipal by-law.

(3) 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.”

Subsection 6(15) sets out the factors which must be considered by the Board in determining whether or not a practice is a normal farm practice. It states as follows:

“In determining whether a practice is a normal farm practice, the Board shall consider the following factors:

1. The purpose of the by-law that has the effect of restricting the farm practice.

2. The effect of the farm practice on abutting lands and neighbours.

3. Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.

4. The specific circumstances pertaining to the site.”

“Normal farm practice” is defined as meaning 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 uses of innovative technology in a manner consistent with proper advanced farm management practices.”

D. Discussion and Analysis

Issues to be Determined

The issues to be determined by the Board are:

1. Are each of the Applicants a “farmer” as defined in the Act?

2. Is the proposed practice in connection with an agricultural operation?

3. Is the proposed practice a normal farm practice?

4. If the practice is a normal farm practice, is it restricted by Forest Conservation By-Law Number 38-2013?

(1) Farmer Status

The Board finds that each of Ms. Macpherson and Mr. Brake qualify as a farmer within the meaning of the Act being either the owner or operator of an agricultural operation

(2) Is the Proposed Practice in connection with an Agricultural Operation?

The Board finds that the Applicants carry on an agricultural operation which includes the production of agricultural and greenhouse crops. The practice of clear cutting may be carried on as part of an agricultural operation. The question before this Board is whether or not such a practice is a normal farm practice in these circumstances for the purpose of the non-application of Forest Conservation By-Law Number 38-2013.

(3) Normal Farm Practice

With respect to the issue of normal farm practice, the focus of the Board is site specific. Subsection 6(15)(4) of the Act states that one of the factors the Board must consider are the specific circumstances pertaining to the site in question.

(a) Historical Use of the Lands

The Applicants called Mr. Jeff Thompson as an expert witness in an attempt to establish that portions of the land intended to be clear cut were previously used for agricultural purposes and had not always been woodland. He cited the presence of shards of clay drainage pipe located in woodland areas, the presence of mature Hawthorn trees indicating that the vegetation community was once a field grazed by cattle, the lack of old or rotting stumps which would indicate the lands had been cleared at one point. There was also evidence that portions of the lands intended to be cleared had been planted in white pine as plantations.

If any of these lands had an agricultural use in the distant past, that designation had long been lost by the time zoning regulations, the MVCA regulation and the Forest Conservation By-Laws came into effect. We find this history to be of no assistance in determining whether or not the proposed practice of clear cutting these areas would be a normal farm practice now. The fact is that these lands are now woodlands.

(b) Expert Evidence with Respect to Clear Cutting

The Applicants attempted to qualify several witnesses as experts with respect to the issue of the farm practice of clear cutting. None of those witnesses, with the exception of Patrick O’Neal, were found by the Board to have sufficient experience to give an expert opinion with respect to clear cutting. Mr. O’Neal testified that he has cleared about 100 acres so that he could grow cash crops; however, more recently, he has been charged under Forest Conservation By-Law 10-2006 as a result of his clear cutting activities and those charges remain outstanding. He further testified that there are areas he would not clear if they were wet areas or would not make good farmland, unless there was a way of adequately draining them.

(c) Consideration of Subsection 6(15) Factors

1. Purpose of the Forest Conservation By-Law. The purpose of Forest Conservation By-Law 38-2013 is set out in its preamble which provides as follows:

“Whereas sections 135, 136, 137 and 138 of the Municipal Act, S.O. 2001, c.25, as amended (the “Act”), permit the enactment of a by-law by the Council of the Corporation of the County of Huron to prohibit or regulate the destruction or injuring of trees in woodlands and woodlots as defined in the By-law;

And whereas Council has determined that it is desirable to enact such a by-law for the purpose(s) of improving the forest, soil, fish, wildlife and water resources of the County of Huron by conserving and improving the woodlands and woodlots as hereinafter defined;”

2. Effects on Abutting Lands and Neighbours. David Pullen testified that clear cutting the areas that the Applicants want to clear would be catastrophic to this property and to neighbouring properties as especially in the wetland areas there would be significant topsoil eroded into the watercourses finding its way down to the Maitland River because of the nature of the soil and the high water table. Mr. Pullen also testified as to the wind break effect the present woodlots would have in reducing wind erosion on both the subject lands and the lands of neighbours. Brandi Walter, the witness from the MVCA also testified that draining or changing a wetland can affect abutting lands as well.

3. Provincial Interests. First of all, there is a provincial interest reflected in the preamble to Forest Conservation By-Law 38-2013, which is to improve the forest, soil, fish, wildlife and water resources of the County of Huron. The By-Law further reflects a provincial interest as set out in the 2014 Provincial Policy Statement made by the Ministry of Municipal Affairs and Housing under the Planning Act R.S.O.1990, c. P.13. In particular, site alteration, which the evidence indicated included clear cutting, shall not be permitted in significant woodlands in Ecoregion 6 and Ecoregion 7 (which include Huron County) or in significant areas of natural scientific interest unless it has been demonstrated that there will be no negative impacts on the natural features or their ecological functions. No evidence to demonstrate that there would be no such negative impacts was called by the Applicants. Furthermore, site alteration shall not be permitted on adjacent lands to the natural heritage features and areas identified as significant woodlands or areas of natural and scientific interest.

Subsection 2.1.9 of the Provincial Policy Statement provides that this policy is not intended to limit the ability of agricultural uses to continue. However, the Board finds that there are no agricultural uses on the present woodlands which should be protected.

The By-Law also reflects a provincial interest contained in

(a) the Conservation Authorities Act and regulations made thereunder which provide for protection for watercourses and wetlands and their buffer zones; and

(b) the Forestry Act, R.S.O.1990, c. F.26 which defines good forestry practices as embracing the minimizing of detriments to forest values including significant ecosystems, important fish and wildlife habitat, soil and water quality.

4. Specific Circumstances Pertaining to the Site

i) Zoning. The lands which the Applicants intend to clear cut are zoned either Natural Environment I or Natural Environment 2 and do not have legal non-conforming use status. The lands intended to be cleared do not permit an agricultural use. Even if the Applicants were successful, they would not be entitled to farm these lands unless they obtained an amendment to the zoning by-law.

ii) Environmental Concerns. The lands intended to be cleared have been designated as provincially significant wetlands and areas of natural scientific interest. Furthermore, they are governed by Regulation 164-06 of the Conservation Authorities Act enforced by the MVCA and before they could be cleared the Applicants would require permission from MVCA.

The lands intended to be cleared also abut natural watercourses which include spawning grounds for trout.

E. Findings

Based on the evidence and its considerations of the issues and legislation, the Board finds:

a) That the Applicants are persons entitled to apply to the Board pursuant to Subsection 6(3)(a) of the Act.

b) That the Applicants proposed practice of clear cutting, if found to be a normal farm practice, would be in connection with their agricultural operation.

c) That the proposed practice of clear cutting is not a normal farm practice as it pertains to this site for the following reasons:

(i) the Applicants have failed to call sufficient evidence to prove to the Board on the balance of probabilities that clear cutting is a normal farm practice.

(ii) In any event, clear cutting would not be a normal farm practice on this site because the Zoning By-law does not permit the lands which they wish to clear cut to be used for an agricultural use.

(iii) the environmental concerns raised by the presence of provincially significant wetlands and areas of natural scientific interest as well as regulation by the MVCA must be balanced with the needs of the agricultural community and, in the opinion of the Board, in these circumstances, the environmental concerns outweigh them.

(iv) The Applicants have not demonstrated that they would improve the lands to be cleared to deal with issues of drainage and erosion.

(v) This conclusion is consistent with the findings of the Board in Sproul v. County of Huron, 2014 CanLII 99368 (ON NFPPB)

d) That, as a result of this finding, it is not necessary for the Board to determine whether or not the proposed practice is restricted by Forest Conservation By-Law Number 38-2013.

F. Decision and Order of the Board

For the above reasons, the Board dismisses the application.

Date: September 20, 2016