Normal Farm Practices Protection Board

Commission de protection des pratiques agricoles normales

1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433 Fax: (519) 826-4232 Email: NFPPB@ontario.ca

1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433 Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca

Kent and Agnes Benson v Rien and Karen Dekker 2022 ONNFPPB 09

DATE OF DECISION:

2022-11-30

016Benson19

STATUTE:

Farming and Food Production Protection Act, 1998

HEARING:

October 27, 2022

BETWEEN:

Kent and Agnes Benson-- Applicants

and

Rien and Karen Dekker-- Respondents

Normal Farm Practices Protection Board

Commission de protection des pratiques agricoles normales

1 Stone Road West Guelph, Ontario N1G 4Y2 Tel: (519) 826-3433 Fax: (519) 826-4232 Email: NFPPB@ontario.ca

1 Stone Road West Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433 Téléc.: (519) 826-4232 Courriel: NFPPB@ontario.ca

IN THE MATTER OF the Farming and Food Production Protection Act, 1998

AND IN THE MATTER OF an application to the Normal Farm Practices Protection Board (“Board”) under Section 5 of the Farming and Food Production Protection Act, 1998 (“Act”) for a determination as to whether disturbances are as a result of a normal farm practice.

AND IN THE MATTER OF a hearing on the issue of the Board’s jurisdiction.

File No.: 016Benson19

Date: 2022/11/30

BETWEEN:

Kent and Agnes Benson Applicant

– and –

Rien and Karen Dekker Respondent

Self Represented

Self Represented

HEARD: October 27th, 2022

Before:

Brandi Neil, Vice-Chair; John Lohuis, Member; and Betty Ann MacKinnon, Member

Appearances:

Kent Benson Agnes Benson Rien Dekker John MacVicar

Decision

Introduction

1An application was made to the Board by the Applicants, Kent and Agnes Benson pursuant to Section 5 of the Farming and Food Production Protection Act, 1998, S.O. 1998, Ch. 1, as amended, (the “Act”). The application alleges a disturbance due to an odour arising from the farm operation of the Respondents at 9356 Highway 6, Kenilworth, in the Township of Wellington North, located across the road from the Applicant’s residence. The Applicants seek a determination as to whether the alleged disturbance results from a normal farm practice.

2The application came before the Board on October 27, 2022 and was heard at the Township of Wellington North’s municipal building in Kenilworth, Ontario.

3The Board heard evidence from the Applicants Kent Benson and Agnes Benson and evidence from the Respondent, Rien Dekker and his witness John MacVicar.

Preliminary Matters

4At the outset of the hearing Mr. Benson advised that one of his anticipated witnesses, Noah Martin was sick and would not be attending. The Applicants were asked if they are seeking an adjournment so they could call Mr. Martin. They indicated they did not want an adjournment and wanted to finish the hearing in one day if possible.

The “ACT”

5The Board is governed by the Farming and Food Production Protection Act, 1998. The objectives of the Act are set out in the preamble, which state as follows:

a. “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.

b. Agricultural activities may include intensive operations that may cause discomfort and inconveniences to those on adjacent lands.

c. 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.

d. 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 environmental concerns.”

6The following definitions contained in Subsection 1(1) of the Act are relevant to this proceeding:

7“Disturbance” is defined as “odour, dust, flies, light, smoke, noise and vibration”.

8“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.”

9“Agricultural operation” is defined as meaning “an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward”. (Emphasis added)

10The definition of “agricultural operation” is expanded in subsection 1(2) to include the growing, producing or raising of livestock and the production of agricultural crops.

11Subsections 5(1)and5(4) set out the type of Application before the Board in this proceeding and the orders the Board can make:

“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.”

Issues

12The five issues to be determined by the Board are:

(1) Have the Applicant’s proven that they are directly affected by a disturbance arising from a practice related to the operation of the Respondents?

(2) If so, what is the farm practice?

(3) Is the farm practice related to an agricultural operation as defined in the Act?

(4) If so, is the practice a normal farm practice?

(5) 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 to be consistent with a normal farm practice?

Evidence

Applicant’s Evidence

Kent Benson

13The Applicant, Kent Benson has lived at the property at 9357 Highway 6 in Kenilworth since 1956. Mrs. Benson has resided at the property since 1985. The Applicant’s themselves have been involved in farming over the years and consider themselves farmers. Right now, they have cash crops.

14Mr. Benson explained an arrangement he and Mr. Dekker had prior to the building of the manure tank, to assist Mr. Dekker with his nutrient management plan. Mr. Benson went through the history of his complaints with Ontario Ministry of Agriculture Food and Rural Affairs (hereinafter OMAFRA) and the Township in some detail. This aspect of his evidence will not be summarized as it is not relevant to the determinations the Board must make.

15Mr. Benson explained that he himself is a farmer, he understands there are manure smells sometimes, but this odour is much more than that. He explained it is not just when they are spreading manure, there are strong manure odours all the time from March to November. They cannot open their windows. He explained that the prevailing wind in the spring and summer is westerly and blows the odour towards their residence.

16He said there was no problem with manure odours prior to the Dekkers owning the farm in 2013. He said the previous owners milked the same number of cows as the Dekkers. The odour did not happen until the Dekkers built their new barn and open manure tank in 2016. He stated that in the spring of 2017 they started getting a very strong manure odour constantly coming from the manure tank across the road. Mr. Benson said that Mr. Dekkers’s is a top loading tank and, in his experience, bottom loading tanks have less odour as a crust forms on the top that reduces the smell.

17He said he spoke to Andrew Berry from OMAFRA and understood one of the proposals to reduce the smell was for Mr. Dekker to use straw in his barn and tank, but the Dekkers prefers to use sand.

18During his testimony he filed a letter from 2019, sent to him from Darren Jones, the Township of Wellington North’s Chief Building Officer that acknowledges a mistake was made regarding the Minimum Distance Separation (hereinafter, MDS) calculation (Exhibit 3). He also filed as Exhibit 5, a MDS Report on the Dekker’s barn and manure storage tank prepared by Brian Corley at the Township of Wellington North in 2016 that contains the MDS error. Also filed as Exhibit 5, is a letter sent to him by Daniel Ward, P. Eng. from OMAFRA, that set out the proper setback requirements. He testified that the manure tank is 160 feet too close to his residence, it is 656 feet from the Respondent’s manure storage tank, and it should be 817 feet. This was supported by the documentary evidence. He further testified that the tank is too close to the neighbour to the north of him by 106 feet and 223 feet too close to the property to the south, owned by the MacVicars. He filed Exhibit 1a and 1b aerial photographs of the properties that had these distances in feet and meters. He also filed as Exhibit 1c, an aerial photograph for the property south of him belonging to the MacVicars.

19Mr. Benson also expressed concerns about the location of the barn. Exhibits 1a and 1b, also had calculations for these distances. They indicate the barn is 15 feet too close to his property and 79 feet too close to the neighbour to the north of him. He further explained that his distance calculations were to the outside of the barn. He further stated he has been told that the distance is measured from the livestock occupied portion of the building.

20On cross examination he admitted when there is a northerly wind, they can open windows. He reiterated that it is all year round even in the winter, but it is worse most days in the spring and summer months, and they cannot have their windows open. He also indicated that during the spring and summer months, the prevailing wind is westerly. He explained they cannot sit outside, and they are unable to have company over because of the smell. He was very clear that the odour is not just when they are spreading manure, but it is most of the time in the spring and summer.

Agnes Benson

21Mrs. Benson provided brief evidence that set out further details on how the smell has affected her. She has had some health problems and said that some days the smell makes her nauseous. She testified that she regularly walks the dog on her own property and often must wash her clothes several times to get the odour out.

Respondent’s Evidence

Rien Dekker

22Mr. Dekker acknowledged that his manure tank is not in compliance with OMAFRA’s MDS Guidelines. He explained the building process involved consultations with OMAFRA and that he had hired someone to provide the nutrient management plan along with the proposed building plan. He stated he received the permits and believed the manure tank and barn addition were in compliance. He explained that he did not know there was setback issue until after it was built in July of 2017.

23He testified that in July of 2017, Andrew Berry at OMAFRA let him know there was an anonymous complaint but just before that he heard from his nutrient management person that there was a complaint. He stated that they took the complaint very seriously and originally thought it might be from the chemicals in the concrete mixing with the manure, so they washed out all concrete powder.

24His testimony included the distances that the manure storage tank (which he referred to as the pit) was 48 metres from the Benson residence and the 68 metres to the residence to north of the Bensons.

25He then explained they had meetings with the Building Inspector and Andrew Berry from OMAFRA in attempts resolve this. He explained they are more than willing to find solutions. They have tried putting an additive in to the manure pit, which he believes reduced the odour significantly.

26He entered into evidence as Exhibit 8, an email he was sent from Andrew Barrie dated October 16, 2018, that contained odour test results taken by Amadou Thiam, P. Eng. The results contained a statement that “it is higher than the previous sample from last summer (300 OU) but still a good reduction from the base line without any additive > 30 0000 OU”. There was no further information in the email. There was no explanation of the tests performed. Mr. Dekker was able to say the odour test was completed in early September 2018, it was 22 degrees with not much wind. He could not say the direction of the wind.

27He entered as Exhibit 9 a photo of his property that contained a tree planting plan that was one of the proposed solutions from OMAFRA. They started planting the trees in 2019 but he stopped when Mr. Benson came forward saying he wants the pit moved. He indicated they are still willing to plant the trees but wanted to wait until the outcome of this matter.

28He said he is willing to do what needs to be done and is open to almost everything, but he is not willing to change the bedding in the barn from sand to straw. He said he built a barn with sand for a reason. It is better health and quality for the cows.

29In terms of the odour, Mr. Dekker said, they do not notice it. They hang their clothing outside to dry and it does not smell.

30Mr. Dekker entered into evidence as Exhibit 10 a picture of his manure pit from June 21, 2018. He explained that the picture was taken 10 days after hauling manure and a crust had still formed. He explained that the pit is not agitated all the time it does settle even though manure gets transferred three times a day to the manure pit, between 10-10:30am, 6:30 pm and around midnight.

31Another option Mr. Dekker said they considered was covering the tank but the costs of that are $400,000-$500,000. He believes he would need a minor variance for that and does not think that Mr. Benson would agree to it so has not considered it further. He said the cost of building the manure pit was $200,000 plus a clay seal that cost $25,000. He testified that if the manure tank had to be moved, he would have to build a pump house for the barn.

32Upon questions from the Board, Mr. Dekker explained how his barn and tank system work. The barn is closed floors and it gets scraped. There is a box scraper and with the elevation it gets collected in the manure gutter in the far west side of the barn. The manure goes down the gutter which sits 6 feet up off the manure tank and it gets dumped into the tank. When asked if there is a pumping system below the crust layer, he said no. When asked if manure gets dumped on the top of the surface continually, he responded that yes there is a disturbance. He explained that the manure entering the tank from the bottom or sideways would not be feasible because of the elevation in the area. For such a system to work, he would have to buy and maintain a pump.

33When asked about whether a sand or straw helps mitigate the odour better, Mr. Dekker answered that straw would likely create a bigger crust.

34He was asked by the Board about how often he spreads manure. He answered that he hires a custom operator who empties and spreads the manure four times a year, on the cornfield in the spring and fall and after the first and third hay cut. He stated that the manure spreading is weather permitting, it needs to be dry. He does not look at wind direction.

John MacVicar

35He explained that the Dekkers live northwest from him. He said his property gets the prevailing winds from the Dekkers and they do not smell anything except when they Dekkers are putting manure on the fields. He indicated they have no issue with any thing the Dekkers have done. He testified he smells the pig barn near him on a regular basis, but it was there when he moved 23 years ago. He stated, “when you live in the country you have manure smells.” On cross examination he acknowledged that he had a lot of trees behind his house on the side of the Dekkers farm that may reduce the smell.

Analysis and Findings

36It appears from Exhibit 6, that the error in the approved location for the manure tank was made by Municipal staff. However, assignment of blame for this error is not an issue that must be decided by this Board. Our jurisdiction is to answer the five questions set out above. The fact the Respondent’s manure tank is not in compliance with OMAFRA’s MDS Guidelines as it is 160 feet too close to the Benson’s residence is the important consideration. This noncompliance with the MDS guidelines is not in dispute. Mr. Benson’s evidence regarding the distances from the manure tank were unrefuted. He testified it was 160 feet too close but from the actual numbers provided in the exhibits it appears it is 166 feet too close to his property.

37The location of the barn is not an issue the Board will consider. It was not included in the Benson’s Normal Farm Practices and Protection Board Hearing Application, nor was there any clear evidence of a nuisance complaint related to the barn itself.

38The Board accepts the evidence of all parties who testified. Both Kent and Agnes Benson gave clear evidence regarding the strong manure odour they have been experiencing a significant portion of the time during spring and summer seasons. Both Mr. Dekker and his witness, John MacVicar only describe a significant odour when the manure is being spread. Mr. MacVicar stated that when you live in the country there are manure smells sometimes. He did not describe it as being excessive in any manner.

39The differences in the described odour by the various witnesses can be reconciled. There may be several explanations for why Rien Dekker does not notice the odour. He is working near the manure tank and in the barn most of the time and is desensitized to the smell or the barn and other outbuilding may block some of the odour towards his residence. As for Mr. MacVicar, his house is located to the southeast of the property, as Mr. Benson pointed out during cross examination of John MacVicar; he has a row of mature trees between his residence and the Benson manure tank. These trees are visible on the aerial photograph showing the MacVicar’s property filed as Exhibit 1c. The difference in the perception of the odour from the Applicant’s, the Respondent and Mr. MacVicar can be explained by these factors. Mr. Benson’s evidence regarding the predominant wind in the area in the warmer months was unrefuted.

40There was no expert evidence called by either party. Mr. Dekker entered into evidence an email setting out an odour test that was conducted. This was deemed admissible evidence by the Board as it was relevant, but the Board stated it would be given very little weight for a number of reasons. The party who conducted the test did not attend and was not qualified as an expert in the area of conducting these types of odour tests. There was no opportunity for the Applicant or Board to ask questions regarding the nature of this test and the weather and wind conditions or wind direction at the time of the test. Mr. Dekker provided some evidence in this regard but not enough to increase the weight of this evidence as he does not have expertise in this area. This was also such a limited piece of evidence, a single test on one day as opposed to a series of tests over a several month time period. For all these reasons the Board has given no weight to this evidence.

41The Board accepts that Mr. Dekker was acting in good faith when he built his new barn addition and manure storage tank and believed that he was in compliance with the MDS Guidelines. The Board also accepts that Mr. Dekker has been ready and willing to explore a number of different solutions including, planting trees and using additives to reduce the smell.

42The Board has considered the following other solutions that were discussed in the evidence:

a) Planting trees may eventually provide some relief to the odour nuisance. However, this would be several years perhaps a decade before the trees would be mature enough to make a difference. This solution would still not make the location of the manure tank comply with or come closer to complying with the MDS Guidelines.

b) Another proposed solution to alleviate the odour was to change to straw bedding for the cows as that will form more crust on the top of the manure tank and reduce the smell. Mr. Dekker was very clear that this was one option he would not consider as sand is a better healthier option for his cows. Regardless, this will still not make the location of the manure pit closer to compliance with MDS Guidelines.

c) The Board canvassed the possibility of switching the manure tank to bottom or side loading which Mr. Dekker explained would require a pump and pump house. This would also not bring the tank any closer to compliance with the MDS Guidelines.

d) Another possible solution of covering the pit was canvassed with Mr. Dekker but the costs of that are prohibitive and would still not change the location of the manure pit.

Issues Determined by the Board

43The Board has determined the five issues as follows:

1. The Applicant’s have proven that they are directly affected by an odour disturbance arising from a practice related to the operation of the Respondent. For the reasons outlined above the odour test has been given very little weight. The differences in evidence between the Bensons, Mr. Dekker and Mr. MacVicar can be reconciled as outlined above. The Benson’s evidence regarding the strong odour they smell is unrefuted as no one else spoke to the conditions near their house or on their property for much of the spring and summer. There has been no evidence to refute their testimony. The Board accepts that the strong manure odour they smell for much of the spring and summer is a disturbance related to the dairy cow operation of the Respondent.

2. The farm practice in question is the Respondent’s top loading manure tank and its location.

3. The Farm practice is clearly related to the Dekker’s diary farm operation. The manure pit is used to store all the manure from the diary cows in the barn beside the manure pit.

4. The Board accepts that the practice of having a manure pit is accepted as a normal farm practice and part of a dairy farm agricultural operation. The real issue is the location of the manure pit and whether that is a normal farm practice. The noncompliance with the MDS guidelines by a significant distance is the determining factor for the Board. The noncompliance is not a matter of a few feet, it is a matter of 166 feet. This is a considerable distance that the manure tank is too close to the Benson’s residence as well as being too close to other neighbouring residences. The Board finds the location of the manure tank is not a normal farm practice. The Board is not saying that all situations of noncompliance with OMAFRA MDS Guidelines will result in a similar ruling, each hearing is determined on the specific facts. The fact this manure tanks is too close by a substantial distance of 166 feet is the determining factor.

5. The Board orders that the Respondent needs to cease the practice of using the manure storage tank as such in it’s current location within twenty-four months and any new or relocated manure storage tanks shall either comply with OMAFRA’s MDS Guidelines or shall be within 10 per cent of those Guidelines and have all necessary approvals from the Ontario Ministry of Agriculture Food and Rural Affairs and the Municipality of Wellington North to deviate from the Guidelines by up to 10 per cent, and the manure tank shall be bottom or side loading (not top loading).

Orders of the Board

44The Board therefore orders that:

(1) The Respondents shall cease using the manure storage tank located at 9356 Highway 6, Kenilworth, ON, to store manure, effective in twenty-four months from the date of this order.

(2) Any new or relocated manure storage tank shall either be:

a) in full compliance with the Ontario Ministry of Agriculture Food and Rural Affairs, Minimum Distance Guidelines or

b) shall be within 10 per cent of those Guidelines and have all necessary approvals from the Ontario Ministry of Agriculture Food and Rural Affairs and the Municipality of Wellington North to deviate from the Guidelines by up to 10 per cent, and the manure tank shall be bottom or side loading (not top loading).

(3) In accordance with subsection 4(2)(b) of the Act, the Board reserves the right to make further Orders as may be needed from time to time to ensure compliance with its decision.