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
Boucher v Central Huron
2022 ONNFPPB 8
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 6 of the Farming and Food Production Protection Act, 1998 for a determination as to whether a municipal by-law restricts a normal farm practice carried on as part of an agricultural operation
AND IN THE MATTER OF a hearing on the issue of the Board’s jurisdiction
AND IN THE MATTER OF an electronic hearing to be held pursuant to the Hearings in Tribunal Proceedings (Temporary Measures) Act, 2020
BETWEEN:
Christopher Boucher Applicant
– and –
The Municipality of Central Huron Respondent
Self-Represented
Represented by Nicholas Van Allen
Before: Glenn Walker, Chair; Brandi Neil, Vice-Chair; Robert Fuller, Member
Appearances: Christopher Boucher – Applicant Nicholas Van Allen – Counsel for the Respondent Jason Collinson – Witness for the Applicant Fred Carl Brall - Witness for the Applicant Steven White - Witness for the Applicant Chadwick Armstrong - Witness for the Applicant Richard Harding - Witness for the Applicant Terry Sowerby - Witness for the Applicant Alden Jacobson – Witness for the Applicant
DECISION OF THE BOARD
Introduction
1The Applicant, Christopher Boucher, brought an application to the Board under Section 6 of the Farming and Food Production Protection and Act, 1998, purporting that the Respondent’s Zoning By-law 40-2010 is restricting his agricultural uses of the property owned by him located at Part of Lot 7, Plan 540 Municipality of Central Huron(the “property”) and his access to the property.
2The property is zoned AG1 by the Respondent for agriculture and is .73 of an acre. The Applicant has no direct access to the property as it is landlocked with no open public road. Access to the property is gained through a neighbour’s field. There is an unopened municipal road allowance (known as Pondsview Road) that leads to the property that he previously used but it has now been blocked by the Respondent.
3The Applicant uses the property for various agricultural endeavors and also as a residence by way of a mobile home. A residence is only permitted by the by law if it is ancillary to an agricultural operation. The Respondent has advised the Applicant that there are violations of the zoning by-law on the property as it cannot be used for agricultural purposes when it is less than an acre in size or does not front on a public road.
4The Applicant indicated in both his opening and closing statements that he is seeking the Board order the Municipality to remove the blockade so he can have access to the property to continue his permitted agricultural uses and ancillary residential use. He also asked the Board to determine the unopened road allowance is a public roadway.
Procedural Background & Issues to be Decided
5After a Pre-Hearing Conference on May 11, 2022, the Board determined that there should be a Jurisdiction Hearing to address the following two issues:
a. Does the Applicant operate an Agricultural Operation as defined by the Act?
b. Does the Court of Appeal decision in Oakville (Town) v. Read, 2011 ONCA 22, deprive the Board of jurisdiction because the relief being sought is an attempt to circumvent legitimate municipal planning?
Factual Background
Applicant’s Case:
Evidence of Jason Collinson, Fred Brall, Steven White, Terry Sowerby, Chadwick Armstrong
6The Applicant called the following witnesses, whose evidence was focused on the historical and previous uses of Pondsview Road: Jason Collinson, Fred Brall, Steven White, Terry Sowerby, Chad Armstrong. They all explained that they grew up in the area and their observations and personal experiences using Pondsview Road, whether on bikes or vehicles, several years ago, as well as previous uses of the Applicant’s property.
7All of these individuals gave similar testimony that Pondsview Road was a gravel road that was wide enough for one vehicle (and they either had driven on it or observed vehicles or tire marks). They all stated it was used freely by members of the public and there was no signage or other indications restricting use of the roadway until the last few years.
8Jason Collinson was able to show the location of the subject property on the map entered as Exhibit 1, that was a portion of Plan 540. He testified that Mr. Boucher’s property was the tiny triangle on that map referred to as Lot 7, located at the back of Lots 5 and 6 at the end of Pondsview Road.
9Chad Armstrong gave further evidence regarding the present day blockade on Pondsview Rd. He runs a Solar off grid power company and advised the Board he recently tried to attend the Applicant’s property to service the solar panels so he could have water for his animals. Pondsview Rd was blocked and he got stuck in the trail in the farmer’s field. He indicated he would not be able to travel to the property through the farmers field in the winter or spring.
10The Respondent chose not to cross exam any of these parties.
Richard Harding
11Richard Harding was called by the Applicant. He gave the following evidence:
He wrote the letter dated March 26, 2004 (filed as Exhibit 3), from the Municipality to Sid and Mona Bruinsma regarding Lot 6, Plan 540 when he was the Clerk for the Township of Central Huron
The letter stated there is public access to Lot 6 on Plan 540 (filed as Ex 1)
The road manager had said there was public access to Lot 6, Plan 540
There is a difference between open public access and “public access” as set forth in the letter, “public access” does not mean it is open for the public all the time
12Upon Questions from the Respondent & the Board:
He identified on Exhibit 2, the Property Identification Map (hereinafter referred to as the PIN map)- PIN 0005 labelled on the map as UNNAMED ST. as being the access he was referring to in his letter dated March 26,2004.
He confirmed PIN 0005 was also known as Pondsview Road
When he said in the letter “public access”, his assumption was there was either an unopened road allowance or a municipally controlled parcel of land
He believed PIN 0005 to be an unopened road allowance as there was access to PIN 0076 that was a business as well as the Bruinsma residence which he believed was PIN 0087
Whether a lot on the property is buildable depends on many factors including zoning and environmental concerns.
Christopher Boucher
13The Applicant completed his testimony in the first day of the hearing. However, on day two of the hearing, he requested to recall himself to enter several documents into evidence. The Respondent opposed the Applicant’s request. The Board concluded that the documents the Applicant sought to enter had all been previously provided to the Respondent and it would not result in any prejudice to the Respondent.
14The Applicant gave the following evidence:
Pondsview Road has been there for many years, the excavating property next door maintained and used it
Prior to 1989 there were no houses accessing Pondsview Road
No one had ever limited or hindered the use of the road
The road had not always been kept up as it really led nowhere, so parties had to do it themselves, such as pick up dead branches that may have fallen on the road
Culverts were in place on the road and if they became blocked, it had to be done by himself
His lot has always been an agricultural property that either stored farming equipment, or was used as agricultural land
He has transformed the property into a 100 per cent off grid agricultural property, he pumps water and stores it off grid
He has all the licenses in place to grow cannabis tobacco as well as some specialty items like blue spruce and honey
The Respondent has told the neighbours to block the culverts and they have set up a blockade of the road
He has three Registrations for the Personal Production of Cannabis for Medical Purposes from Health Canada
Upon questioning from the Board, he indicated the Registrations allow for the production of a total of 1200 plants for 3 different people
He had a permit to grow Tobacco in 2019 and plans to get another one if he can expand. The permit was entered as an exhibit and is a Raw Leaf Tobacco Dealer Registration Certificate.
He currently is allowed to grow Tobacco as he is a member of First Nations but can only give or trade Tobacco to other First Nations persons
He has a Beekeepers’ Certificate of Registration and he uses the bees’ products was to make a healing ointment. He also sells a large amount of honey
He raises 100 free range chickens and 20 turkeys that he will sell at Thanksgiving. He filed as an exhibit a receipt from Frey’s Hatchery showing his purchase of birds
He entered photographs as exhibits he took to show the rubbish, debris and the blocking of the culvert on Pondsview Road
15Upon cross examination and questions from the Board, Mr. Boucher provided this further evidence:
He owns and farms 0071 on the PIN map but he also farms 0073, an adjoining road allowance.
He confirmed PIN 0087 is the Bruinsma farm and that Lot Number 6 is PIN 008 owned by Mr. Bruinsma’s father. Mr. Bruinsma’s father did access his property from Pondsview Road but he is managing with the blockade as he can access his property from his son’s property. For years prior to the blockade, he used Pondsview Road.
When asked by the Board if he makes money with these agricultural uses of the property, he indicates farming is tough but yes, he makes some money
He purchased the property in 2017
He identified a letter sent to him from the Municipality dated May 2, 2017 , filed as Exhibit 5, which outlined the Municipality’s planning concerns for his property and set out the zoning for the property as AG1 which requires building setbacks of 30 metres and that the property has insufficient area to build and comply with these setbacks
The letter also set out that the size of this operation does not allow for a farm operation on the property (and a single detached house is only permitted on AG1 when it is accessory to a farming operation)
The letter also states that rezoning to AG4 would still conflict with Mr. Boucher’s proposal, as AG4 has a minimum lot area of 1 acre
The letter goes on to indicate the largest issue the Municipality has with the property is its lack of access or frontage on a public road. The letter cites section 3.1.6 of the by-law which provides that no building or structure can be erected unless the lot fronts or abuts a public road. It goes on to explain that the Official Plan indicates developments must front on or abut a public road constructed to municipal standards
He accepted that he was aware of this letter and that it states he was not allowed to have buildings on the property
He built structures on the property after he was denied building permits
There are two homes on the property, one is 3 transport truck trailer flatbeds that have poured cement on them for in floor heating and he has built four walls and a roof on them. This home was to be a customized mobile home but it is not complete as the Municipality told him to stop.
The second is a mobile home, camper where he lives with his son that is movable
There are also shipping containers on the property where he grows the Cannabis plants and has located a solar shack
The mobile home (truck trailer flat beds), the solar shack, the movable camper and the outhouse were installed after he received the letter dated May 2, 2017
There is a honey shack on the property where he does processing that was there before he received the letter on May 2, 2017
He built a temporary green house that the Municipality does not consider a structure so he takes the position he does not need a permit
After being asked again about what part of the By-Law is restricting his agricultural practices, he said it is his view that it is restricting the use in general as 4.1.7 of the By Law allows for a Licensed Cannabis Production facility in accordance with Section 29.4 of the By Law
He then pointed out that Section 29.4 of the By Law has smaller lot area requirements (ie., a quarter of an acre, 600 square metres)
The Chair pointed out that this would also require municipal water and sewage or alternatively if it was larger, 1850 square meters it would need a private well and septic and asked if there is any evidence that there is either of those things and he indicated no
And when asked he confirmed he is doing much more on the property than cannabis production
Alden Jacobson
16Mr. Jacobson testified that he was a professional engineer in Ontario in the area of civil and structural engineering and has been an engineer for 30 years. He explained he has done surveying for roads like Pondview Road and airport runways. He explained that he took courses in B.C. for civil and structural engineering work even before he started working as an engineer.
17The Respondent did not question Mr. Jacobson’s qualification nor object and the Board deemed him an expert in the area of civil engineering and road structure.
18His report had been previously entered through the testimony of Mr. Boucher as Exhibit 4.
19He reiterated in his evidence the statements in his report that Pondsview Road was suitable for safe travel for a motor vehicle from the Boucher residence right to the entrance point off Highway 8.
20He estimated the road to be a minimum of 25-30 years old and said it was in a good state of repair.
21Upon cross examination it was confirmed that he assessed the road in August of 2021 and that he stands by his report and recommendation that Pondsview Road be recognized as a roadway and necessary access.
22He was asked if it required modification to bring it up to municipal standards and he indicated he has not reviewed the standards of Central Huron regarding roadways, and therefore could not opine.
Respondent’s Case
23The Respondent did not call any witnesses. They filed as an exhibit a certified copy of the Municipality of Central Huron Zoning By-Law 40-2010, September 28, 2020 Consolidated June 2022.
24The sections of the By-Law referred to in testimony state:
1.27 USES NOT LISTED AS PERMITTED
Uses not listed as permitted in a zone or otherwise provided for in this By-law shall be prohibited in such zone except as provided for under Section 3.19 Non-Conforming Uses of this By-law.
3.16 LOTS TO FRONT ON PUBLIC ROAD
No lots shall be created and no building or structure shall be erected, and no person shall use any land, building, or structure unless the lot to be so used or proposed to be erected abuts or fronts on an open public road provided that:
3.16.1 A building or structure may be erected upon a lot within a registered plan of subdivision in accordance with the provisions of a Development Agreement. A plan of subdivision which has been deemed is not considered to be a plan of subdivision.
3.16.2 A building or structure may be erected upon an existing lot shown on a reference plan which was registered in the Registry Office during or before 1970, provided that the road is of satisfactory construction and maintenance to permit the reasonable and safe passage of motor vehicles to the satisfaction of the Municipality.
3.16.3 A building or structure may be erected upon a lot within a registered plan of condominium in accordance with the provisions of a Development Agreement.
SECTION 4 GENERAL AGRICULTURE (AG1)
No person within any General Agriculture (AG1) zone shall use any land, or erect, alter or use any building or structure for any purpose except in accordance with the following provisions:
4.1 PERMITTED USES
4.1.1 Agricultural use, general
4.1.7 Licensed cannabis production facility in accordance with provisions of Section 29.4
4.1.8 Uses accessory to the permitted uses
4.2 ACCESSORY USES
4.2.6 One detached residential dwelling, accessory to an agricultural use
4.2.7 Converted dwelling, accessory to an agricultural use
4.2.9 Additional Residential Unit (total of 2) with minimum one (1) within the main dwelling and maximum one (1) within a detached structure (As amended by By-law 27-2022)
4.2.10 Storage containers in accordance with Sections 4.5.5 and 3.40
4.3 PERMITTED STRUCTURES
4.3.1 Buildings and structures for the permitted uses
4.3.2 One detached residential dwelling or converted dwelling, and/or one mobile home accessory to an agricultural use
4.3.3 More than one main agricultural building per lot is allowed
4.3.4 Other buildings and structures, not including residences, accessory to the permitted uses
4.4 ZONE PROVISIONS
4.4.1
Lot Area (minimum) -
Areas of the lot zoned Natural Environment may be included in the calculation of the lot area.
Areas of the lot zoned Restricted Agriculture (AG2) may be included in the calculation of lot area.
30 hectares
4.4.2
Lot frontage (minimum)-
150 metres
4.4.3
Yard Requirements (minimum)
For buildings and structures used for livestock, poultry and fur bearing animal housing and waste storage, setbacks will be in accordance with the following provisions or MDS requirements (whichever is greater)
4.4.3.1
Front yard setback (minimum)
30 metres
4.4.3.2
Interior side yard setback (minimum)
30 metres
4.4.3.3
Exterior side yard setback (minimum)
30 metres
4.4.3.4
Rear yard setback (minimum)
30 metres
4.4.3.5
Distance between main and accessory buildings
2 metres
4.6 EXISTING AGRICULTURAL HOLDINGS with reduced lot area (less than 30 hectares) and/or reduced frontage (less than 150 metres)
Notwithstanding the provisions for Section 4.4 and 4.5 where an existing lot has a lesser lot area and/or frontage than required under this By-law and is developed for an agricultural use, with or without existing farm buildings and accessory structures, additional farm buildings and structures may be erected, or existing farm structures may be altered providing all other requirements of this By-law are complied with. The farm holding will be deemed to conform with the By-law with respect to the minimum lot area and minimum lot frontage provisions.
4.9 EXISTING AGRICULTURAL HOLDINGS with reduced lot area (less than 30 hectares) and/or reduced frontage
(less than 30 hectares)
Notwithstanding the provisions for Section 4.4 and 4.5 where an existing lot has a lesser lot area and/or frontage than required under this By-law and is developed for an agricultural use, with or without existing farm buildings and accessory structures, additional farm buildings and structures may be erected, or existing farm structures may be altered providing all other requirements of this By-law are complied with. The farm holding will be deemed to conform with the By-law with respect to the minimum lot area and minimum lot frontage provisions.
SECTION 7 AGRICULTURAL SMALL HOLDING (AG4)
No person within any Agricultural Small Holding (AG4) zone shall use any land, or erect, alter or use any building or structure for any purpose except in accordance with the following provisions:
7.1 PERMITTED USES
7.1.1 Residential use
7.1.2 Uses accessory to the permitted uses.
7.2 ACCESSORY USES
7.2.1 Home industrial use
7.2.2 Home occupation use
7.2.3 Agricultural use, limited
7.2.6 Uses accessory to the permitted uses
7.2.7 Livestock housing facility in accordance with Section 7.6
7.3 PERMITTED STRUCTURES
7.3.1 One single detached dwelling or converted dwelling or a double wide mobile home
7.3.2 Buildings and structures for the permitted uses
7.3.3 Buildings and structures accessory to the permitted uses
7.3.4.Additional Residential Unit in a detached dwelling, within a detached accessory building not containing livestock, or as modular home dwelling or mobile home. (As amended by By-law 27-2022)
7.4 ZONE PROVISIONS
7.4.1
Lot Area (minimum)
4,046 square metres (1 acre)
7.4.2
Lot Area (maximum)
4 hectares
7.4.3
Lot frontage (minimum)
40 metres
7.4.4
Front yard setback (minimum)
17 metres
7.4.5
Interior side yard setback (minimum)
5 metres
7.4.6
Exterior side yard setback (minimum)
17 metres
7.4.7
Rear yard (minimum)
7.5 metres
7.4.8
Lot coverage (maximum)
30 percent
7.4.9
Building height (maximum)
12 metres
7.4.10
Dwelling unit floor area (minimum)
84 square metres
Analysis and Findings
25Jason Collinson, Fred Brall, Steven White, Terry Sowerby, Chad Armstrong all gave honest and credible testimony. Their evidence primarily focused on Pondsview Road and establishing it had historically been used as public access road. The Board also accepts the evidence of Mr. Jacobson, with the qualification that he was unable to testify as to the municipal road standards as he had not reviewed them. Although their evidence is accepted, these witnesses did not offer any evidence relevant to the matters within the Board’s authority as will be explained below.
26The Board accepts that, through the combined evidence of Jason Collinson and Christopher Boucher, it has been established that that the subject property is the .73 acre triangular parcel of land labelled on Exhibit 1 as Lot 7, identified as PIN 0071 on the Property Identification Map entered as Exhibit 2 and has a mailing address of 79915 Porters Hill Line.
27The Respondent is not disputing any of the evidence given by Mr. Boucher.
28The Board accepts Mr. Boucher’s evidence as credible and honest.
29The Board must determine if it has the jurisdiction to hear this application and provide the type of relief sought by Mr. Boucher. The Board will answer the following questions to make those determinations:
I) Does the Board have any authority to grant the specific relief the Respondent is seeking, specifically:
a) To declare that Pondsview Road meets the definition of a roadway in the by-law?
b) To order the Municipality to remove the barricade on Pondsview Road and reopen Pondsview Road?
II) Does the Applicant’s Agricultural Operation meet the threshold definition of Agricultural Operation so that the Board can even begin to consider if the By-Law restricts a normal farm practice?
III) If the Applicant’s farm does meet the definition of Agricultural Operation, does the Court of Appeal decision in Oakville (Town) v. Read, 2011 ONCA 22, deprive the Board of jurisdiction because the relief being sought is an attempt to circumvent legitimate municipal planning?
I) Does the Board have any authority to grant the specific relief the Respondent is seeking?
30The Respondent argued we should not consider the issue of Pondsview Road as it is already before the Provincial Offences Court as well as the Superior Court. We do not need to consider this argument as the issues related to Pondsview Road itself are not a matter within the jurisdiction of this Board. Declarations regarding the status of roads and orders to remove barricades and open roads, are outside of the Board’s jurisdiction. The Applicant suggested the Board use the Roads Act but the Board’s authority is statutory derived specifically from the Farming and Food Production and Protection Act, 1998 and it provides no powers or authority for declarations or orders of that nature.
31The Board has a very narrow authority conferred upon it from the Act. In this case, the Board can only make a determination under Section 6 as to whether a municipal by-law is restricting a normal farm practice in connection with an agricultural operation. The Applicant is claiming that the By-law requiring farm property to be an acre or over and the by-law requiring a farm front on a public roadway is preventing his entire farming operation. Before that can be assessed we must first determine if he meets the threshold definition of agricultural operation:
II) Is it an Agricultural Operation
32In order to make that assessment we first need to find that the Applicant’s agricultural uses meet the definition of an Agricultural Operation as defined by the Farming and Food Production and Protection Act, 1998. The definition as contained in the Act states:
S.1(1) “agricultural operation” means an agricultural, aquacultural, horticultural or silvicultural operation that is carried on in the expectation of gain or reward”
S. 1(2) (2) For the purpose of the definition of “agricultural operation”, “agricultural, aquacultural, horticultural or silvicultural operation” shall be construed to include,
(a) draining, irrigating or cultivating land;
(b) growing, producing or raising,
(i) livestock, including poultry and ratites,
(ii) fur-bearing animals,
(iii) bees,
(iv) cultured fish,
(v) deer and elk,
(vi) game animals and birds, or
(vii) any additional animals, birds or fish prescribed by the Minister;
(c) the production of agricultural crops, greenhouse crops, maple syrup, mushrooms, nursery stock, tobacco, tree and turf grass, and any additional agricultural crops prescribed by the Minister;
(d) the production of eggs, cream and milk;
(e) the operation of agricultural machinery and equipment;
(f) the application of fertilizers, soil conditioners and pesticides;
(g) ground and aerial spraying;
(h) the storage, handling or use of organic wastes for farm purposes;
(i) the processing by a farmer of the products produced primarily from the farmer’s agricultural operation;
(j) activities that are a necessary but ancillary part of an agricultural operation such as the movement of transport vehicles for the purposes of the agricultural operation; and
(k) any other agricultural activity prescribed by the Minister, conducted on, in or over agricultural land. 1998, c. 1, s. 1 (2).
33Although there was not a significant amount of evidence in this regard, there is enough evidence to support that the Applicant carries on various agricultural activities for gain or reward. He testified he uses the property for the following agricultural activities: bee keeping to make honey and ointments out of the bees wax, raising free range chickens and turkeys, growing blue spruce, cannabis and tobacco.
34The cannabis is grown for medicinal use for specific parties and not for sale. He was not asked if he gets paid to grow these plants for those parties, but presumably this undertaking is not for free.
35He does not sell Tobacco right now as he does not currently have a dealer’s license but instead gives it or trades with First Nations people. Trading can also be a form of reward.
36Mr. Boucher commented that farming is tough but he does make some money. He said that he sells a lot of honey, he sells chickens and turkeys. In his submissions he explained this is not a hobby farm, he sells his products to local stores.
37The Board has determined the Applicant meets the definition of an agricultural operation under the Act.
III) Does the Court of Appeal decision in Oakville (Town) v. Read, 2011 ONCA 22, deprive the Board of jurisdiction because the relief being sought is an attempt to circumvent legitimate municipal planning?
38In essence, the Board must determine if the By-Law in question relates to an actual farm practice or to land use planning. To make this determination, we need to examine the farm practice the Applicants states is restricted, and consider the by-law he is saying is restricting it.
39In both his evidence and submissions, Mr. Boucher clearly stated the by-law restricts his entire farm practice. When asked by the Chair, what specific farm practice, he maintained the zoning By-Law was preventing all his normal farm practices that were permitted uses. He listed all the agricultural activities but did not provide a specific agricultural practice.
40The Applicant also referenced a number of other sections under the Zoning By-Law that relate to Cannabis Production Facilities, 4.17 and 29.4. He cited them to support his position that he can comply with setbacks to have a building envelope. The Applicant also raised section 4.9 on existing Agricultural Holdings which provides some leniency on compliance with lot size and reduced frontage to allow additional farm buildings and structures to be built or altered.
41We have reviewed all these additional sections cited by the Applicant; however none specifically relate to the jurisdiction issue at hand. They appear to be an attempt by the Applicant to show he is in compliance with the By-Law. Whether or not these specific By-Law sections are applicable to his land, do not assist in a determination of whether the Board has jurisdiction to address this matter or in the ultimate question of whether the By-Law is restricting his normal farm practice.
42The Respondent submits that although the Applicant is zoned AG1 that requires 30 hectares, the smallest size of land that can be farmed under the By-Law is one acre. The Respondent takes the position that the when read collectively the implication of sections 4, 7, and 1.27 of the By-Law is to prevent any agricultural holding of less than 1 acre and that is a matter of land use planning.
43It is the Respondent’s position that Oakville v. Read, determines the jurisdiction issue of this case as it does not permit section 6 to be used to circumvent land use planning. The Board agrees with the Respondent. The size requirement of a property that is allowed for a specific purpose, whether farming, industrial or commercial, is a land use planning issue. The requirement that no lots be created or used and no buildings be erected unless the land fronts on a public roadway is also a land use planning matter. To use section 6 to address this would be a circumvention of land use planning.
44The Court of Appeal in Oakville (Town) v. Read at paragraph 42 clearly states that the Board, “may have power to order that some restrictive provision of a zoning by-law does not apply as to restrict a normal farm practice which is carried on as part of an agricultural operation, but it has no jurisdiction to grant relief from the use provisions of a zoning by-law”. These are land use matters raised by the Applicant.
45The purpose of this application by Mr. Boucher has nothing to do with whether his practice was a normal farm practice but rather whether or not he can have an agricultural operation on the land.
46There is no actual particular normal farm practice that is being restricted for Mr. Boucher. As stated by the Divisional Court in Oakville (Town) v. Read, 2010 ONSC 170 at paragraph 51, upheld by the Court of Appeal in Oakville (Town) v. Read, 2011 ONCA 22,
“In my view, “farming” cannot, as a matter of law, be what is meant in the Act by a normal farm practice. Such an approach would conflate the requirement that a normal farm practice be restricted by the by-law, and the requirement that the normal farm practice be carried on as part of an agricultural operation. Normal farm practices are “farming techniques and methods that are of a requisite standard or established and followed by similar agricultural operations” (see Bluewater at para. 50). Farming itself is obviously not a farm practice.”
47In the present matter, it is the overall act of farming and running a farming operation that is being prevented because the size of the land is too small and it does not front on what is considered to be a roadway according to the Municipality or their official plan. Those are land use planning decisions made by the Municipality. This is not a matter of a by-law that is restricting an actual normal farm practice.
48The Respondent raised valid arguments with the case of Leamington v. Degoey, 2021 ONSC 694, that Mr. Boucher should have brought a s.6 application before the farming operation began, as well as David Buurma and 1828107 Ontario Ltd v. The Municipality of Brooke-Alvinston, 2021 ONNFPPB 9, which states it must be a legitimate farming operation. The Respondent submits that as it does not comply with the By-Law, it is not a legitimate farming operation. It is the Respondent’s position that these cases act as a bar for the Applicant to bring a section 6 application.
49The Board finds there may be merit to those arguments, as the Applicant admitted to building structures after being denied a building permit (Leamington), and he may not meet the definition of legitimate farmer as set out in Buurma. However, the Board will not make rulings on the applicability of those cases as the Court of Appeal case of Oakville v. Read case is determinative of the jurisdiction issue in this case.
Decision
50The zoning By-Law in question relates to land use planning, not the restriction of a normal farm practice. The Board does not have the jurisdiction to deal with this matter. The application is dismissed.
Glenn C. Walker, Chair
Released: October 4, 2022