Cornelis and Hendrika Meijaard v. The Corporation of Norfolk County, 2017 CanLII 13294

Normal Farm Practices Protection Board 1 Stone Road West, 2nd Floor Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: NFPPB@ontario.ca

Commission de protection des pratiques agricoles normales 1 Stone Road West, 2e étage Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca

Board File No. 2016-01

IN THE MATTER OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT, S.O. 1998, ch. C.1

AND IN THE MATTER OF AN APPLICATION TO THE BOARD UNDER SECTION 6 OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT, 1998 FOR A DETERMINATION AS TO WHETHER A MUNICIPAL BY-LAW IS RESTRICTING A NORMAL FARM PRACTICE

Applicants

And

Respondent

Cornelis Meijaard and Hendrika Meijaard

Mark Abradjian, Counsel for the Respondent

BEFORE:

Glenn C. Walker, Vice-Chair

Douglas Eadie

Marty Byl

A. INTRODUCTION

An application has been made by the Applicants, Cornelis Meijaard and Hendrika Meijaard, pursuant to Section 6 of the Farming and Food Production Protection Act, S.O. 1998, ch. C.1, as amended, (the "Act").

The purpose of the hearing is to determine whether By-Law No. 2006-170 of the Corporation of Norfolk County (hereinafter referred to as the "Forest Conservation By-Law") restricts the Applicants' proposed tree cutting, which the Applicants allege to be a normal farm practice.

The Application came before the Board for a hearing on January 30, 31 and February 1, 2017 and was heard at Simcoe, Ontario.

The Board heard evidence from the Applicant, Cornelis Meijaard, and from the Applicants' witness, Jack Winkler, who was qualified to give expert opinion evidence with respect to woodlot assessment and management. The Board also heard evidence on behalf of the Corporation of Norfolk County from Adam Biddle, Superintendent of Forestry for the County. Mr. Biddle was the By-law Enforcement Officer in charge of the enforcement of the Forest Conservation By-Law in 2015.

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

B. BACKGROUND

a) Site Location and Description.

The subject property consists of Part of Lot 19, Concession 3, in the former Township of Woodhouse, in the County of Norfolk and consists of cultivated farmland and an irregularly shaped bush adjacent to East Quarter Line. The Board has chosen in this decision to refer to this wooded area as "bush" as the terms "woodland" and "woodlot" have specific definitions in the Forest Conservation By-Law. Mr. and Mrs. Meijaard purchased the farm in 2003 for the purpose of growing cash crops.

In 2013, Mr. Meijaard removed a portion of the bush on the northeast corner. A Stop Work Order was issued by the County as he had undertaken this work without a permit under the Forest Conservation By-Law. After an interview with County officials, Mr. Meijaard was given a copy of the Forest Conservation By-Law and advised that in future he would be required to make application for a permit under Section 4 of the By-Law which provides for Council Exemptions.

On December 14, 2015 after receiving a complaint, Mr. Biddle, the By-law Enforcement Officer, attended on the subject lands and observed that Mr. Meijaard was removing trees from the southerly boundary of the bush. He then proceeded to issue a second Stop Work Order to Mr. and Mrs. Meijaard.

Mr. Biddle and his assistant then conducted an investigation which consisted of an inventory of the stumps of the trees recently removed on the southern boundary of the bush, an inventory of the full-length trees that had been cut and dragged into the adjacent agricultural land and an inventory of the log pile by the road. The investigators also did a GPS measurement of the disturbed areas as well as assessing the content of four woodland assessment plots adjacent to the clearing which they felt would be representative of the area cleared. As a result of this investigation, the By-law Enforcement Officer concluded that the area cleared was in fact a woodland as defined by the Forest Conservation By-Law and therefore regulated by it. The 2015 Stop Work Order was unsuccessfully appealed to the By-Law Appeals Committee.

b) Specific Farm Practice.

For the purpose of this hearing, the evidence was restricted to the 2015 occurrence. In his testimony, Mr. Meijaard stated that his intention was not to clear cut but only to "straighten up a field". His position is that straightening up the edge of the field by removing trees from the bush would be beneficial to his agricultural operation as it would be easier to work the field with large equipment. He feels that this is a normal farm practice.

c) Site Regulation.

The Meijaard property is subject to the Forest Conservation By-Law passed on August 1, 2006. The County has had by-laws regulating the destruction or injuring of trees in one form or another since 1947.

This by-law has a general prohibition in Section 2 and there are exceptions and exemptions set out in both Sections 2 and 3 of the by-law. The by-law provides for a Council Exemption in Section 4 and a process for applying for a permit and an appeal. The Council Exemption process is available to "owners of woodlands", which term is defined in the by-law as being lands at least 1.0 hectare or more in area with at least 1,000 trees, of any size, per hectare.

Mr. Biddle's evidence was that Mr. and Mrs. Meijaard would have required a permit under Section 4 of the by-law in order to authorize the tree removal that they had done and wished to continue, that approximately 80% of exemption permits are supplied with respect to agricultural operations and that he has not seen any denied when they went to Council.

The present application fee for a permit for a Council Exemption is $255.00. The permit may come with conditions requiring reforestation or a fee payable to the Municipality in lieu of reforestation in the approximate amount of $1,900.00 per acre. These monies are placed in a separate fund and are used for reforestation elsewhere in the County.

C. THE ACT

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 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 the provincial health, safety and environment concerns."

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:

The purpose of the by-law that has the effect of restricting the farm practice.
The effect of the farm practice on abutting lands and neighbours.
Whether the by-law reflects a provincial interest as established under any other piece of legislation or policy statement.
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:

What is the specific practice the Applicants claim is being restricted by the by-law?
Is that practice a normal farm practice in the circumstances of this farm operation?
If the practice is a normal farm practice, is it restricted by the Forest Conservation By-Law No. 2006-170?

(1) What is the specific practice the Applicants claim is being restricted by the by-law?

The Board finds that the specific practice that Mr. and Mrs. Meijaard claim is being restricted by the by-law is the removal of trees from a bush in order to straighten up the edge of the abutting cultivated field. This was clearly stated by Mr. Meijaard in his testimony to be his intention, although he did state in cross examination that if he had his way, he would clear cut the whole bush.

(2) 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 is the specific circumstances pertaining to the site in question.

(a) Evidence with respect to straightening a field.

The onus is on the Applicants, on a balance of probabilities, to demonstrate that the work done on the southerly boundary of the bush and which they wish to continue is a Normal Farm Practice. In order to succeed, it was incumbent on the Applicants to present evidence at the hearing that the work engaged in was conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances. It is clear that the work engaged in did not make use of an innovative technology in a manner consistent with proper advanced farm management practices.

Other than Mr. Meijaard's assertion that the removal of trees to straighten a field is a normal farm practice, the Applicants failed to call any expert opinion evidence on this issue. As well, the Applicants failed to call any evidence from other agricultural operators to demonstrate that removal of trees to straighten a field is something that they had done under similar circumstances. The only evidence of this was contained in Exhibit #5 which was a list of eight farmers allegedly farming in Norfolk County who had cleared some trees. Not only was this information hearsay, but it was devoid of details such as who these farmers were, the nature of the tree removal that they had allegedly done, and whether or not they did so with or without a permit under the by-law. The Applicants could certainly have summonsed these witnesses to testify at the hearing and be subjected to cross-examination. As it is, this evidence is totally unreliable.

The Board finds that the evidence of Mr. Winkler is of no assistance in determining the issues before it. His evidence appeared to be directed towards alleged deficiencies in the by-law and issues of interpretation especially with respect to the definition of "woodland". His evidence failed to address the issue before the Board, that is whether or not the work undertaken by the Applicants on the southerly boundary of the bush was a normal farm practice.

Throughout the hearing, Mr. and Mrs. Meijaard took the position that the by-law did not pertain to them as the County had no authority to control what they did on their own farmland with respect to tree cutting. Mr. Meijaard testified that when given a copy of the by-law in 2013, he only read the first couple of paragraphs and stopped when he came to the phrase "injuring of trees" in the first recital. It is clear that Mr. Meijaard's intention is to clear the bush piece by piece under the guise of a normal farm practice.

The Applicants also attempted to attack the by-law on the basis that it did not specifically state in the by-law that it was subject to the Farming and Food Production Protection Act, 1998. This again is a specious argument as it is clear that any by-law which affects an agricultural operation is subject to the Farming and Food Production Protection Act, 1998, whether or not it specifically states so.

(b) Consideration of Subsection 6(15) Factors.

(i) Purpose of the Forest Conservation By-Law.

The purpose of the Forest Conservation By-Law 2006-170 is set out in its preamble, which provides as follows:

"Whereas Council has determined that it is desirable to enact a by-law for the purposes of conserving and improving the Woodlands in Norfolk County for the purposes of production of wood and wood products, provision of proper environmental conditions to maintain and enhance forest integrity and wildlife habitat, protect against floods and soil erosion, recreation, and the protection of water supplies."

(ii) Effects on Abutting Lands and Neighbours.

No evidence was adduced by the Applicants to show how abutting lands and abutting neighbours might be affected by the farm practice of removal of trees to straighten a field.

(iii) Provincial Interests.

The by-law reflects a provincial interest contained in the Forestry Act, R.S.O. 1990, ch..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".

The 2014 Provincial Policy Statement issued under the Planning Act provides in section 2.0 that Ontario's long-term prosperity, environmental health and social wellbeing depend on protecting natural heritage, inter alia, for their economic, environmental and social benefits. Subsection 2.1.1 provides that natural features and areas shall be protected for the long term. The definition of natural heritage features and areas includes significant woodlands.

The province has also initiated the "50 Million Trees" program, pursuant to which it has recognized the importance of tree planting and preservation in the Province of Ontario.

(iv) Specific Circumstances Pertaining to the Site.

This farm was purchased by Mr. and Mrs. Meijaard in 2003. Mr. Meijaard testified that this field is his worst producing field because it consists of heavy clay and that he left it to improve the field lines until 2013 as it was not his top priority.

From Exhibit #3, which is a Google map submitted by the Applicants and which depicts the subject bush apparently prior to any tree removal, it appears that there is a portion of the bush which juts out in a northerly direction at the northeast corner of the bush; while the southeast corner of the bush appears to have been sliced off to create farmland.

Exhibits 13 and 14 are investigative maps produced by the Respondent which show that, after the 2013 tree removal on the northeast corner of the bush, the northerly limit of the bush has been more or less straightened although the cleared area does protrude further into the easterly portion of the bush than was necessary to straighten the field. These exhibits also show, together with the photographs in Exhibit #3, that the southerly boundary of the bush was in fact more straight before any tree removal than after. The evidence shows that the work engaged in by the Applicants included clearing on the southerly boundary of the bush up to or even over 50 feet from its previous edge, mostly at the easterly portion of the southerly boundary.

E. FINDINGS

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

a) That the specific practice the Applicants claim is being restricted by the by-law is the practice of removing trees from the edge of a bush in order to straighten a field line.

b) That this practice, is not a normal farm practice as it pertains to this site for the following reasons:

(i) The Applicants have failed to call sufficient reliable evidence to prove to the Board on the balance of probabilities that this practice is a Normal Farm Practice.

(ii) In any event, this practice would not be a Normal Farm Practice on this site because what, in fact, the Applicants have done is to clear more trees than would be reasonably expected to be necessary to straighten a field line and, in fact, it amounts to an attempt to clear cut a portion of the bush.

c) That, although it is not necessary for the purposes of this Decision to make a finding with respect to whether or not the practice is restricted by the Forest Conservation By-Law No. 2006-170 as the Applicants have not proven that the specific practice is a Normal Farm Practice, the Board wishes, by way of obiter dicta, to make a finding that had a Normal Farm Practice been established, it would not be restricted by this by-law. The Norfolk County Forest Conservation By-Law provides for a process for the Applicants to obtain a permit if they do not fall within the exceptions and exemptions set out in the By-Law. We find that the requirement of a permit, the application fee and any condition of reforestation or payment in lieu are reasonable and would not be restrictive.

F. DECISION AND ORDER OF THE BOARD

For the above reasons, the Board dismisses the Application.

DATED: March 10, 2017