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. 002Gulin17
IN THE MATTER OF THE FARMING AND FOOD PRODUCTION PROTECTION ACT, S.O. 1998, c. 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
BETWEEN:
759501 Ontario Limited
Applicant
AND
THE CORPORATION OF The County of Grey
Respondent
APPEARANCES:
John Gulin, President of 759501 Ontario Limited for the Applicant Erroll Treslan, Counsel for the Respondent
BEFORE:
Glenn C. Walker, Vice-Chair Douglas Eadie, Member Thomas Field, Member
REASONS FOR DECISION
INTRODUCTION
This matter was commenced by way of an Application dated March 16, 2017 in which the Applicant, 759501 Ontario Limited, alleged that the Forest Management By-law No. 4341-06 (the “By-Law”) of the Corporation of the County of Grey restricted a normal farm practice preventing the Applicant from farming vacant land. Prior to the hearing, the Respondent brought a motion asking the Board for an Order summarily dismissing the application on the grounds that the specific normal farm practice exemption contained in the By-law rendered the hearing of this matter moot. The motion was dismissed on October 25, 2017. A hearing of the application took place at Owen Sound, Ontario on December 11, 2017.
For the following reasons, the Board dismisses the application.
BACKGROUND
The subject lands are located at part Park Lots 9 & 10, Range 6 EGR, in the City of Owen Sound, in the County of Grey. These vacant lands are situated on the edge of the city and consist of approximately 33 acres. They were purchased by Heritage Centre Inc. in 2007 at which time a mortgage was given to the applicant, 759501 Ontario Limited. There was a default under the mortgage and the applicant took possession of the lands as a mortgagee in possession in 2010 prior to the events which lead to this application.
Part of the subject lands are zoned Rural Commercial (C2) and part are zoned Rural Industrial (M2). Neither zone permits an agricultural use. Heritage Centre Inc. had purchased the lands with the intention of developing them for “big box” stores.
In 2015 the applicant leased the lands to George and Byron Bothwell for the purpose of farming. Prior to that time, the majority of the lands were covered with a young ash tree stand. In December 2015, the tenants cleared a large portion of the lands, large enough to be considered a clear cutting, ostensibly to be able to farm a larger portion of the lands.
The Corporation of the County of Grey By-law Number 4341-06, being the Forest Management By-law for the County of Grey (hereinafter called the “By-law”) governs the harvesting, destruction or injuring of living trees in Woodlands as defined in the By-law. The By-law contains a process for obtaining a minor exemption (Section 5) and a permitting process (Section 6). It also contains certain exemptions (Section 4); including the following exemption at Section 4(o): for the “injuring and destruction of trees to prevent the encroachment of woodlands on agricultural production resources that occur during the pursuit of normal farming practices as outlined under the Farming and Food Production and [sic] Protection Act, S.O. 1998, c.1”.
Neither the applicant or the tenants had a minor exemption or permit under the By-law. When the tree cutting came to the attention of the By-law Enforcement Officer, a Stop Work Order was issued in January, 2016. Subsequently in July 2016 the applicant was charged with a breach of the By-law.
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.”
DISCUSSION AND ANALYSIS
Issues to be Determined
The issues to be determined by the Board are:
What is the specific practice the Applicant claims 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 Management By-Law No. 4341-06?
Issue Number 1 – Specific Farming Practice
The specific practice here is the practice of clear cutting trees to permit land to be farmed.
Issue Number 2 – Is it a Normal Farm Practice
The applicant has the onus of proof for each of the three issues to be determined.
Mr. Gulin, the President of the applicant, was the only witness for the applicant. He submitted no evidence to show that clear cutting in these circumstances has been established as a normal farm practice or was innovative technology. In particular, no expert witness was called to give expert opinion evidence on this issue in support of the applicant’s case.
Instead, inexplicably, he chose to rely upon the motion decision of the Board dated October 25, 2017 arguing that he did not have to prove that the tree cutting was a normal farm practice because the By-law contained an exemption for a normal farm practice.
The Board finds that the applicant has failed to prove on the balance of probabilities that the tree cutting which occurred on the subject lands was a normal farm practice.
The issue before the Board on the motion was whether the application should be dismissed or whether there should be a hearing. On the motion the Board concluded:
“The Applicant is therefore entitled to have the issue of whether or not its farming practice is a normal farm practice determined by the Board rather than have this issue determined by a Justice of the Peace in the Provincial Offences Court. Although the Justice of the Peace is not without jurisdiction to make this determination if required, the Applicant’s choice should not be fettered by the wording of the By-Law. If the County’s argument were to succeed, any agricultural operator who wished to challenge a by-law with a normal farm practice exemption would be precluded from coming to the Board to have that issue determined by this specialized tribunal.
If, after a hearing, the Board should decide that the farming practice is a normal farm practice, the By-Law would not apply due to its own wording and there would be no need to consider the second issue of whether or not the By-Law restricts that normal farm practice as it would be exempt under the By-Law. However, if the Board should decide, after a hearing, that the farming practice is not a normal farm practice, then the Application would be dismissed without any further consideration of the By-Law.”
In the motion decision, the Board made no determination with respect to the issue of whether the tree cutting which had taken place on the subject lands was or was not a normal farm practice and it remained the obligation of the applicant to prove this at the hearing.
Issue Number 3 – Does the By-Law Restrict a Normal Farm Practice.
As the applicant has failed to prove a normal farm practice, it is unnecessary for the Board to deal with the third issue.
DECISION AND ORDER OF THE BOARD
For the above reasons, the Board dismisses the application.
DATED: March 23rd, 2018