Normal Farm Practices Protection Board 1 Stone Road West, 2^nd^ 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, 2^e^ étage Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca
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 5 of the Farming and Food Production Protection Act, S.O. 1998, Ch. 1 for a determination as to whether certain disturbances are a normal farm practice.
Board File No.: 007Yarrow17: Yarrow v Buys
BETWEEN
James Yarrow and Stacy Yarrow
Applicants
And
John Buys and Glenna Buys
Respondents
Appearances:
James Yarrow for the Applicants
John Buys for the Respondent
Before:
Glenn C. Walker, Vice-Chair
Thomas Field, Member
Douglas Eadie, Member
REASONS FOR DECISION
A. INTRODUCTION
An application has been made by the Applicants, James and Stacy Yarrow, pursuant to Section 5 of the Farming and Food Production Protection Act, S.O. 1998, Ch. 1, as amended, (the “Act”). The application, dated August 14, 2017, alleges disturbances due to dust, light, noise and vibration from the agricultural operation of the Respondents and seeks a determination as to whether the alleged disturbances result from a normal farm practice.
The application came before the Board for a hearing on July 9 and 10, 2018 and was heard at the Vineland Research and Innovation Centre, 4890 Victoria Avenue North, Lincoln, Ontario.
The Board heard evidence from the Applicants’ witnesses being Erma Mutch; Stacy Yarrow; David Graham, Director of Public Works, Town of Lincoln and Michael Kirkopoulos, Chief Administrative Officer, Town of Lincoln. The Board also heard evidence from the Respondents’ witness who were Ken Hessels, who was qualified to give opinion evidence with respect to excavation, site erosion control, site preparation and farm drainage; Glenna Buys; James Dyck, who was qualified to give opinion evidence with respect to the operation of egg-laying facilities; Robert Swayze, who was qualified to give opinion evidence with respect to the operation of egg-laying facilities and Hugh Fraser.
For the reasons that follow, the Board dismisses the application.
B. FACTUAL BACKGROUND
Site Location and Description
The Respondents’ farm is located at Part Lots 2 and 3, Concession 10, in the former Township of Clinton, in the Town of Lincoln, Regional Municipality of Niagara and is known municipally as 3610 Spring Creek Road, Vineland, Ontario. It consists of approximately 47 acres of which approximately 22 acres are workable. The property contains their home and chicken barns set well back from the road.
The Applicants live across Spring Creek Road from the Respondents’ farm at 3617 Spring Creek Road, Vineland, Ontario. In 2008, they purchased and moved to this property, which is approximately two acres in size and contains a designated heritage home built in 1871.
Access Road to the Chicken Barns
In 2013, the Respondents were making preliminary plans to construct a chicken barn on their farm. In considering road access to the barn they made an application to the Town of Lincoln to close and convey to them the unopened road allowance located to the east of their property. Shortly after their application was made, the municipality placed a moratorium on the closing and sale of unopened road allowances within the municipality and their application was refused.
They then sought professional assistance from Ken Hessels in designing and locating the access road, which was eventually constructed with its entrance directly across Spring Creek Road from the home of the Applicants in 2015. The choice of location was dictated by the narrow frontage of the farm, the topography of the land and the need to avoid lands under the jurisdiction of the Niagara Peninsula Conservation Authority. The egg-laying operation of the Respondents commenced operation in 2015 with a quota of 5000 birds and now consists of a quota of 14000 birds. The barn has a capacity of 15900 birds.
Tractor trailer type trucks deliver feed once per week and pick up eggs once per week using the access road. A smaller truck brings in water once or twice a week depending on the need. There is very occasional use by passenger cars and other small vehicles. All deliveries are done during daylight hours with the exception of emergencies and the removal of the flock once per year when two large trucks must use the access road at night.
The Applicants complain about dust, light, noise and vibration from the use of the access road. They want the Respondents to move the access road to the other side of the Respondents’ farm as the moratorium has now been lifted and the unopened road allowance could now be closed and purchased. However, they have not offered to pay for the cost of the relocation.
The evidence disclosed that the Respondents have been more than accommodating in trying to minimize any adverse effects from the use of the access road on the Applicants. They have instructed all truck drivers to only deliver or pick up during daylight hours with the exception of the flock changeover when that is not possible. They have also avoided using the access road themselves unless absolutely necessary.
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 that 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 environmental concerns.”
Subsections 5(1) and 5(4) of the Act provides as follows:
“5(1) A person directly affected by a disturbance from an agricultural operation may apply to the Board, in a form acceptable to it, for a determination as to whether the disturbance results from a normal farm practice.”
“(4) After a hearing, the Board shall,
(a) Dismiss the application if the Board is of the opinion that the disturbance results from a normal farm practice;
(b) Order the farmer to cease the practice causing the disturbance if it is not a normal farm practice; or
(c) Order the farmer to modify the practice in the manner set out in the order so as to be consistent with normal farm practice.”
A disturbance is defined in the Act as “odour, dust, flies, light, smoke, noise and vibration”.
“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:
Have the Applicants proven that they are directly affected by a disturbance of dust, light, noise or vibration arising from a practice related to the agricultural operation of the Respondents?
If so, is the practice a normal farm practice?
If the practice is not a normal farm practice, should the Board order the Respondents to cease the practice or to modify the practice in such a way as to be consistent with normal farm practice?
(1) Directly Affected by a Disturbance
In Richardson v. Fox, 2005 ONNFPPB 34, the Board made a determination on the issue of being directly affected by a disturbance, as follows:
“In order to have standing to apply under Section 5 to the Board for a determination as to whether the disturbance results from a normal farm practice the Applicant must be found to be a person “directly affected by a disturbance”. If the Applicant establishes standing by providing sufficient evidence to show that he or she is a person directly affected by a disturbance from an agricultural operation then the onus of proof shifts to the Respondent to prove on the balance of probabilities that the alleged disturbance results from a normal farm practice. In other words, the onus is on the Applicant to prove that he or she is directly affected by a disturbance from an agricultural operation in order for this Board to have jurisdiction.
This Board has previously held that there is a threshold test for a disturbance and that once the threshold is passed the degree in the quantity of the disturbance is not relevant (Lucas v. Terpstra et. al., NFPPB 2001 unreported). If the significance of the alleged disturbance is not of such a level as to “affect” the Applicant the Board will be without jurisdiction.
What is the threshold test? Subsection 2(1) of the Act provides that a farmer is not liable in nuisance to any person for a disturbance resulting from an agricultural operation carried on as a normal farm practice. Subsection 2(2) of the Act states that no Court shall issue an Injunction or other Order that prohibits a farmer from carrying on the agricultural operation because it causes or creates a disturbance. The Legislature has transferred from the Superior Court to the Board the ability to deal with nuisance claims relating to disturbances as defined in the Act when the aggrieved person is seeking an injunction or other Order prohibiting a farmer from carrying on an agricultural operation. Consequently, it would seem that the threshold test for a disturbance is one and the same as the common-law test for nuisance in civil actions.
In Pyke v. Tri Gro Enterprises Ltd. [1999] O.J. NO. 3217 (Ontario Superior Court of Justice), Ferguson J. instructed himself on the law of nuisance at paragraphs 202 through 206 inclusive:
“The fundamental issue in a nuisance claim is whether, taking into account all of the circumstances, there has been an unreasonable interference with the use and enjoyment of the Plaintiffs’ land.
In this case, the Plaintiffs rely on the alleged injury to their health, comfort and convenience, and the alleged depreciation of the resale value of their lands.
To establish nuisance, the Plaintiffs must show substantial interference which would not be tolerated by the ordinary occupier in their location. The test is objective. The interference must be repeated or continuous.
In considering the interference, the Court must consider the type of interference, the severity, the duration, the character of the neighbourhood, and the sensitivity of the Plaintiffs’ use of their lands. With respect to the severity of the interference, it is not actionable if it is a substantial interference only because of the Plaintiffs’ special sensibilities. With respect to the character of the neighbourhood, the Court should consider the zoning, whether the Defendants’ conduct changed the character of the neighbourhood and the reactions of other persons in the neighbourhood.
The Court must balance these considerations against the value of the Defendant’s enterprise to the public and the Defendant’s attitude towards its neighbour. The Court must consider whether the Defendant is using the property reasonably having regard to the fact that the Defendant has neighbours. The Court should consider whether the Defendant took all reasonable precautions.”
It is not unreasonable to expect an Applicant to establish the same level of interference with the use and enjoyment of his property in an Application under Section 5 of the Act, as he would have to establish if he were making a claim for damages on the basis of the nuisance in the Superior Court. A consistent approach is absolutely necessary. After an analysis of the evidence in accordance with the statements of law set out in Justice Ferguson’s decision, the Board must be able to find on the balance of probabilities that the evidence supports a finding that the Applicant has been directly affected by the disturbance.”
In this case, the evidence presented by the Applicants on this issue was scant although they were instructed by the Board that they had the burden of proof on this issue. There was little evidence at all as to how the alleged disturbances affected the lives or lifestyle of the Applicants. Evidence as to the safety of the entrance to the access road, parking on or damage to roads or the effect on the Applicants’ free-range chickens was not relevant or helpful for the issues at hand.
Stacy Yarrow was the only witness who testified as to this issue. She stated that the large transport trucks disturbed her and her husband by causing dust, noise and vibration and that at night the lights of the trucks shone into their home. The testimony of Mrs. Buys, which evidence is accepted, was that those disturbances have been minimized by having the large trucks deliver and pick up just once per week and restricting those deliveries and pick-ups to daylight hours with an exception of once per year.
The Board finds that there has been no unreasonable interference with the use by the Applicants of their lands and that they have failed to meet the threshold test established by the Board. In making this finding the Board has considered the lack of sufficient evidence as to the severity of the disturbances, the lack of sufficient evidence with respect to how the alleged disturbances have affected them, the character of the neighbourhood and the steps taken by the Respondents to ameliorate any effect of their neighbours.
In view of the finding of the Board on this issue, it is not necessary to consider issues (2) and (3).
E. FINDINGS
The Board finds that the Applicants have failed to prove that they are directly affected by any of the alleged disturbances
For the above reasons, the Application is dismissed.
DATED: July 26, 2018