Normal Farm Practices

Commission de protection des pratiques

Protection Board

agricoles normales

1Stone Road West

1 Stone Road West

Guelph, Ontario N1G 4Y2

Guelph (Ontario) N1G 4Y2

Tel: (519) 826-3433

Tél.: (519) 826-3433

Fax: (519) 826-4232

Téléc.: (519) 826-4232

Email: NFPPB@ontario.ca

Courriel: NFPPB@ontario.ca

NORMAL FARM PRACTICES PROTECTION BOARD:

APPLICATION:

Bob Heimbuch v Vienna Farms Limited (RE)

Bob Heimbuch v Vienna Farms Limited (RE)

2024 ONNFPPB 3

STATUTE:

Farming and Food Production Protection Act, 1998

HEARING:

March 19, 20 and 25, 2024

DATE OF DECISION:

August 1, 2024

002Heimbuch23

NEUTRAL CITATION:

2024 ONNFFPB 3

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

AND IN THE MATTER OF an application to the Board under Section 5 of the Farming and Food Production Protection Act, 1998 for a determination as to whether a disturbance is as a result of a normal farm practice.

AND IN THE MATTER OF a Hearing held pursuant to Rule 7 of the Board’s Rules of Practice and Procedure.

BETWEEN:

Bob Heimbuch

Applicant

– and –

Vienna Farms Limited

Respondent

Represented by John D. Goudy

Represented by Steven T. Brogden

Heard: March 19, 20 and 25, via Video Conference

Before: Christine Greydanus, Vice-Chair, Robert Fuller, Member, and Betty Ann MacKinnon, Member

Appearances:

Bob Heimbuch, Applicant

John Goudy, Counsel for the Applicant

Jakub Wrobel, witness for the Applicant Steven Brogden, Counsel for the Respondent

Jake Thiessen, Storage Facility Manager, Vienna Farms Ltd. Ken Martin, Director of Orchard Operations, Vienna Farms Ltd. Robert Anderson, witness for the Respondent

Marco Rodrigues, witness for the Respondent Chris Hedges, witness for the Respondent

DECISION OF THE BOARD

Introduction

1An application was made to the Board by Applicant Bob Heimbuch pursuant to Section 5 of the Farming and Food Protection Act, 1998, S.O. 1998, Ch. 1, as amended, (the “Act”). The Applicant alleges a disturbance due to noise arising from the farm operation of the Respondent, Vienna Farms Limited (“Vienna Farms”), at 4964 Plank Road, Vienna, Ontario located beside the Applicant’s residence. The Applicant seeks a determination as to whether the alleged disturbance results from a normal farm practice.

2The Application came before the Board on March 19, 20 and 25 and was heard electronically by way of Zoom.

3The Board heard evidence from the Applicant Bob Heimbuch, and the applicants witness, Jakub Wrobel, and from Jake Thiessen, Ken Martin, Robert Anderson, Marco Rodrigues, and Chris Hedges witnesses for the Respondent Vienna Farms.

THE EVIDENCE

WITNESSES FOR THE APPLICANT

Bob Heimbuch

4The Applicant, Bob Heimbuch lives alone at 4920 Plank Road, Vienna, Ontario. He is 57 years old, who worked shift work as a millwright but is not currently working. The Applicant has resided at this address for the past 20 years having purchased the property on August 29, 2003. In 2017, he built a garage that is between his house and the apple storage facility of the Respondent. Prior to the moving to this location Mr. Heimbuch had lived on a tobacco farm and had also farmed vegetables for 8 – 10 years before becoming a millwright in approximately 1995.

5Mr. Heimbuch explained that the Vienna Farms apple storage facility was reconstructed in 2018 after a fire in March of that year. The old apple storage facility had fan units on top of the roof. The new apple storage facility has a mechanical room in front of the storage facility with a fan unit on the northwest corner of the storage facility facing

towards his residence. The fan unit is on pillars, the vent for the nitrogen generator is in the same area. The distance from the fan units and vents, the sources of the noise, to the corner of Mr. Heimbuch’s house is 300 feet.

6Mr. Heimbuch stated that he had no issues with the apple farm when he first moved into his property, in 2003. He advised there was truck traffic and noise from people. In September of 2016, he began to hear a high pitch ringing noise coming from the apple storage facility. After a week of around the clock ringing noise he went to the Vienna Farms and spoke with Jake Thiessen. As a result of the noise, Mr. Heimbuch stated that he had a head ache, ringing in his ears and was having problems sleeping.

7Around that time, Mr. Heimbuch also spoke with Ken Martin of Vienna Farms. Mr. Martin said he would look into the problem. It took a month for the problem to be resolved. Meanwhile, after a week had gone by, Mr. Heimbuch went to the Municipality of Bayham (“Bayham”) to make a By-law complaint. The By-law officer Randy White, according to Mr. Heimbuch, initially said that he could do nothing about it as it was a farming operation.

8Mr. Heimbuch contacted the Ontario Ministry of Agriculture Food and Rural Affairs

(“OMAFRA”) regarding the noise. He eventually spoke with Steve Beadle from OMAFRA. Mr. Beadle advised him to make a formal complaint to the municipality. Mr. Beadle made a visit to Mr. Heimbuch’s property within a week of the call. At that time, Mr.

Heimbuch advised Mr. Beadle that he could not handle the noise any longer as it was unbelievably loud all the time. Mr. Heimbuch noted that when Mr. Beadle was finished his visit with Mr. Heimbuch he went over to apple farm.

9On October 24, 2016, Mr. Heimbuch made a written By-Law complaint to the Bayham. About a week after Mr. Beadle’s visit, the ringing quit. Mr. Heimbuch was advised by a worker at the apple farm that a muffler had been installed on the vent.

10A year later, in the fall of 2017 the ringing returned. Mr. Heimbuch called Mr. Beadle at OMAFRA. The noise subsided after about a week. The noise was not quite as loud as the previous year. There were no further problems with noise from the old apple storage facility.

11The apple storage facility burnt down mid-March 2018. Construction of the new apple storage facility started early in May 2018 and was completed by early fall of 2018. Mr. Heimbuch did not have any discussions with the staff or owners of Vienna Farms during the construction of the new storage facility until around the end of July 2018, when he became aware of the location of the fans. He observed where the power hook-up was being located and the cement pad and pillars were being poured. At that time, he went over to the apple storage facility manager, Jake Thiessen, to find out what was being located in that corner of the storage facility and expressed his concerns.

12Mr. Heimbuch also contacted Bayham to find out what was happening on the apple farm next to him. He eventually got a drawing of the site plan grading. Mr. Heimbuch experienced problems with the new buildings grading, resulting in flooding of his yard each time it rained. Bayham advised Mr. Heimbuch that the as-constructed development did not conform generally with the approved Site Plan. In a letter dated October 29, 2020, Bayham ordered Vienna Farms to correct the grading and drainage issues.

13The noise issues with the new storage facility started in the fall of 2018 with the beginning of apple picking season. The noise has persisted since then such that there has been 5 years of noise. It is louder in the fall and in early October it is 24 hours a day. The vent ringing will be 24 hours per day for 2 to 3 days then stops. There is no pattern but it runs 80 % of the time from October to the end of December. With the cold weather it will peter out but it never completely goes away. In the winter it runs 50% of the time. There is no pattern to whether it runs daytime or nighttime. This current winter of 2023-2024 it has been running more than 50% of the time.

14By March and April, with warmer weather the fans ramp up and it gets louder and louder. By then a bin barrier is put in place, however, it does very little to block the noise by June and July. In the fall the bin barrier is removed and there is no noise protection. Mr. Heimbuch stated that he can hear the vent ringing at all places on his property in the fall including inside his bedroom. The noise from the fans is a never- ending rumble, that he can hear in his bedroom. Mr. Heimbuch stated that the noise is directed right at his home and he can hear it around the clock.

15Mr. Heimbuch observed a site plan agreement for the Vienna Farms location (dated August 22, 2017 between Bayham and the owner of the land Bonnefield Farmland Ont. III Inc.) and notes that there are areas paved that should not be paved, adding to the hard surfaces and reflecting noise towards his property. Further, Mr. Heimbuch observed the fan units sit in a corner with steel walls on two sides.

16Mr. Heimbuch provided quantitative evidence of the noise levels on his property coming from the apple storage facility. The readings he took on August 30, 2021 with only the fans running were from 57 to 59.1 dBA at 30 to 40 feet from the fans. On September 4, 2021 after dark he captured a reading at his lot line fluctuating around 63 dBA, fan only no vent. Mr. Heimbuch advised that he could hear the fans inside his house.

17Mr. Heimbuch provided evidence of the measures he has taken to block the noise of the fans. In June of 2019, he started the construction of a small shed but determined it would not provide much of a noise barrier. He subsequently removed the shed and put an 8-foot by 48-foot, trailer in the location. The trailer cost him about $5,500 and the installation of it cost another $2,500 to $3,000 for fill to raise the trailer location making

it about 12-feet high. The trailer is located on Mr. Heimbuch’s property, next to the lot

line such that it is directly between the apple storage facility fans and his house. Mr. Heimbuch stated that the trailer helped to dampen down the noise to make it a little more tolerable.

18On October 12, 2022, a reading of the noise level demonstrated that the trailer reduced the noise from 62.1 dBA at the lot line to 50.2 dBA behind the trailer. At a distance of 200 feet from the fans and vent unit with the trailer in between, the noise averaged 50 dBA. Mr. Heimbuch provided sound recordings demonstrating that the fan noise could be heard at various locations on his property, and he testified that the noise would continue day after day, around the clock.

19Mr. Heimbuch provided a video recording of the sound heard on January 15, 2023, at that time only a humming noise can be heard. Mr. Heimbuch stated that the noise makes him not want to go out of doors and that he waits for the ringing to go away or subside. He wears ear protection while outside and after several hours will get a mild head ache. The noise keeps him up at night, he thinks about it all the time.

20Mr. Heimbuch testified that he has communicated with the Respondent over time since the 2018 reconstruction of the apple storage facility. In 2019 to early 2020 he has talked with Jake Thiessen and made an attempt to talk with Ken Martin in an effort to resolve his noise issues.

21In September 2019, he made a muffler unit and temporarily placed it on the end of the vent that created the purging noise. The muffler reduced the noise but did not eliminate it. He left the muffler on for about 5 minutes. He advised Jake Thiessen later what he had done and offered to build a muffler at his own cost. Jake Thiessen advised him he would talk to the owner, Ken Martin. He got no reply from either.

22In mid 2021, the Respondent added a pipe onto the vent that went up and over the apple storage facility elbowing at the end downwards. Mr. Heimbuch feels that the pipe helped to dampen the noise of the ringing and the blow off. Mr. Heimbuch provided sound reading for October 23, 2022, at his lot line directly beside the apple storage facility fans, the reading was approximately 63 dBA. Mr. Heimbuch observed that the fans were running but the vent was not running.

23Mr. Heimbuch contacted Bayham in 2018 and 2019 and spoke with Margaret Underhill in planning to get information and the site plan maps. He also spoke to Paul Shipway, CAO/Clerk at Bayham who advised him he could do nothing for him. He contacted the councillor for his ward in late 2018 and the councillor came over to his house. He did not hear back from either his ward councillor or Mr. Shipway.

24He again contacted Mr. Beadle at OMAFRA in 2018 and again in 2019 after he discovered where the equipment was to be installed. He asked Mr. Beadle what he would do to help him out. Mr. Heimbuch requested an engineer be sent out to resolve the problem. Mr. Heimbuch advised that Mr. Beadle did not come out to his property after these calls.

25Mr. Heimbuch read the March 2023 OMFRA factsheet “Understanding and Reducing Noise Nuisance from Stationary Farm Equipment” which offers advice to farmers on the best management practices to avoid nuisance complaints from neighbours. Mr. Heimbuch cited practices such as discussing with the neighbour why you need to install the equipment and to put the equipment as far away from your neighbour’s home as possible, the use of mufflers and sound absorbing and barrier materials to reduce the noise transmission.

26Mr. Heimbuch completed the conflict resolution process prior to bring an application to the Board. Mr. Heimbuch asserted that Vienna Farms could have constructed the new apple storage facility such that the fans would have been over 550 feet from his house if they had wanted to.

27Mr. Heimbuch engaged Jakub Wrobel as a noise consultant to conduct a noise study at his property. On September 23 & 24, 2022, Mr. Wrobel did a 24-hour noise recording stationing his equipment around his driveway at a location where his trailer made a barrier. At that time there was an apple bin barrier at the apple farm. This was not at the peak of the fan noise, and there was vent ringing.

28Mr. Heimbuch also had a second noise study at his home by HDC Engineering. The study was done for the Respondent, Vienna Farms. The study was completed in January at a time Mr. Heimbuch observed is much quieter than the peak noise times in the fall. The equipment was in place for a week.

Jakub Wrobel

29Jakub Wrobel was qualified as an expert witness in the areas of:

o Environmental Noise Assessments

o Noise Source Management and Acoustic Audits

o Environmental Noise Propagation Modeling

o Noise Mitigation Analysis & Acoustic Design Consultation

30From September 23 to September 24, 2022, Mr. Wrobel conducted an acoustic audit at the Heimbuch property and prepared a report dated May 18, 2023. At the time, Mr. Wrobel attended at Mr. Heimbuch’s home there were some apple bins along the

property line, Mr. Heimbuch’s trailer was in place and the fans and venting equipment

at the apple storage facility were operating.

31The Bayham Noise By-law No. 2017-068 does not provide any quantitative sound levels

but specifies that: “no person shall emit or cause or permit the emission of sound

resulting from an act...which sound is clearly audible at a point of reception.” The By-

law also defines a “Point of Reception” as follows: “Point of Reception” means any point on the premises of person where sound of vibration originating from other than those premises is received.” and “Premises” means building and lands appurtenant thereto.

32The noise by-law makes reference to the “exceptions”, which includes “Agricultural Activities”. However, this exception permits sound or vibration from agricultural operations “for food crop seeding, chemical sprays or harvesting”. It is Mr. Wrobel’s

position that the neighbouring Vienna Farms operation is warehousing and would not be covered under this exception.

33Mr. Wrobel looked to the Ontario Ministry of Environment, Conservation and Parks (MECP) Publication NPC-300 “Environmental Noise Guideline - Stationary and Transportation Sources - Approval and Planning” for acceptable noise levels. In Mr. Wrobel’s opinion and interpretation of the guidelines, the acceptable noise emitted from a stationary source in a rural area is at or below 40 dBA from 7 pm to 7 am (nighttime) and at or below 45 dBA from 7 am to 7 pm (daytime).

34Mr. Wrobel testified that his sound monitoring equipment recorded noise levels at two receptor locations. One at the house façade and the other 30 meters closer to the Vienna Farms equipment. Mr. Wrobel’s analysis of the readings produced the following key data as provided in the chart below.

Location

Modelled with Barrier (dBA)

Modelled without Barrier (dBA)

Target Limit (dBA)

Monitoring Location

41

48

40

House Façade

39

45

40

35Mr. Wrobel also observed a swing in the noise level as a result of the apple storage

facility’s equipment which further exasperates nuisance noise. The noise swing, Mr. Wrobel noted, was clearly audible in the audio recording collected simultaneously with the sound level monitoring. Mr. Wrobel further noted that it is reasonable to expect the sound levels on the Heimbuch property, without the benefit of the screening from Mr.

Heimbuch’s trailer along the property line would be as indicated in the table above. It is Mr. Wrobel’s opinion that these levels are well above the MECP’s applicable 40 dBA minimum limit in the NPC-300.

36Mr. Wrobel reported that the swing of 10 dB above the background sound levels during the nighttime period would be clearly noticeable and reasonable to cause adverse effects. The location of the large air-cool condensing units and vents at Vienna Farms and their relative position to the storage facility’s west and south facing-walls further contributes to excess noise at the Heimbuch property due to acoustic reflection off of the wall surfaces in the direction of the Heimbuch residence. A more strategically selected location for this equipment, and/or a design review of the proposed storage facility and equipment at the planning stage would have benefitted all parties.

37Mr. Wrobel opined that under the current situation and without the installation of some acoustic screening, noise barrier or add-on noise control equipment, the adverse noise impacts will continue to be experience at the Heimbuch property from the Vienna Farms operations.

38Upon review of the product data and installation sheet for the Keep-Rite refrigeration units, also referred to as Air Cooled Condensers (“ACC”) that are located at the Vienna Farms location, Mr. Wrobel stated that the installation guide advises to take into consideration local building codes and adjacent buildings relative to the noise levels.

Mr. Wrobel noted that the unit that he believes is in place at the Vienna Farms has 1140 rpm with 12 fans. Mr. Wrobel explained that according to the data sheet, this unit when measured at 3 meters from the unit sound levels will be expected to be 79.3 dBA.

Reflecting walls will increase the noise and in Mr. Wrobel’s opinion the rule of thumb for increase in noise, with one wall reflecting noise, is 3 dB higher and with 2 reflecting walls, is 6 dB higher. At Vienna Farms there are two reflecting walls. In his opinion, locations that would have been a better placement for the ACC units would have been to the east or south of the building thereby providing an acoustical barrier. He noted that any additional source of noise would increase the overall dBA, therefore when the nitrogen emitters run, the dBA will be higher than the expected 79.3 dBA noise level created by the ACC.

39Mr. Wrobel stated that if there had been consideration during the design stage given for the noise impact to the neighbours from Vienna Farms operation it would likely have been determined that a better location for the equipment could be found and the noise could have been within the Provincial sound guidelines.

40Mr. Wrobel acknowledges that if this is a normal farm practice the MECP guidelines do not apply. He also acknowledged that the noise bylaw does not specify specific noise levels.

WITNESSES FOR THE RESPONDENT

Jake Thiessen

41Mr. Thiessen has been employed for 20 years as the manager of the apple storage facility at Vienna Farms located at 4564 Plank Road, Vienna, Ontario. In this position he is responsible for the shipping, receiving of the apples, equipment operations and administration work associated with the cold storage. The property is zoned A1 agriculture and he understands that allows for farming operations to produce food. As far as Mr. Thiessen is aware Vienna Farms has never been told it is in contravention of zoning by-laws or noise by-laws.

42The Vienna Farms location is about 50 acres and has a 40,000 square foot apple storage facility. The operation commenced around 1996. At this location, they store apples that are grown on site as well as apples grown near the site. The storage facility was first built in 2000. To the south and east of the storage facility are farm fields. The storage facility burnt down in March 2018 and was rebuilt the same year. Mr. Thiessen was Vienna Farms main contact during construction with the general contractor HRH. An engineer provided all the drawings and the site plan for the rebuild of the apple storage facility. A building permit was obtained, the building was built according to the

engineer’s drawings, inspections were completed by Bayham with the final inspection

being conducted December 19, 2018.

43There had been an urgency on the rebuild of the apple storage facility as the apple harvest commences in September. Harvested apples need to immediately be brought into storage. The storage cools and reduces oxygen in the storage rooms to put the apples “to sleep” in order for them to retain their freshness for an extended period of time. The ideal storage temperature for apples is between 1 – 3 degrees Celsius.

44The difference between the old and the new apple storage facility is that the new storage facility has the condenser fans and nitrogen emitter equipment in front of the building instead of on the roof. The equipment in the new storage facility was put in front of the apple storage facility in a separate room as a result of concerns for fire. The 2018 fire in the apple storage facility was believed to have started in the equipment on the roof and in the new storage facility, being in a separate room, Mr. Thiessen believes there would be more time to stop the fire.

45The equipment room and condenser fans are located towards the road on the west side of the building. The equipment room was placed at the front of the building as there was not enough room behind the building due to the proximity to railroad easement. The east of the building was reserved for future expansion. The condenser fans were placed to the west of the equipment room as to the east of the equipment, there is truck and forklift traffic.

46Mr. Thiessen testified that they were not told by Bayham that they could not put the equipment in its current location. To Mr. Thiessen’s knowledge there is no legislation prohibiting the location of the equipment.

47Mr. Thiessen testified that the condenser unit makes noise as it cools the storage rooms. The unit runs continuously, coming on in stages as needed to cool the rooms. The nitrogen generator works by bringing in outside air and filtering out oxygen. The nitrogen generator makes noise as it purges oxygen. It cycles about every 40 seconds. It could be set to a different interval, but it would not provide the level of nitrogen that is required for apple storage.

48Mr. Thiessen stated that, if apples are not stored with refrigeration and nitrogen and with very limited oxygen, they would only last about 2 months. With controlled

atmosphere (“CA”) storage the apples last about 12 months. Mr. Thiessen stated that he relies on the OMAFRA publication “Controlled Atmosphere Storage Guidelines and

Recommendations for Apples” to properly handle the apples. Mr. Thiessen testified that he has visited other apple storage facilities and has observed that they utilize the CA system similar to what they use at Vienna Farms.

49Mr. Thiessen has had at least two conversations with Mr. Heimbuch regarding noise. Once with regards to the homemade muffler and the second about the use of a generator during construction. Mr. Thiessen has concerns about a homemade muffler being added to the outlet as the pipe needs to be unrestricted to allow for the expelling of dangerous gases and preventing back pressure.

50With regards to the bin barrier, it cannot be in place as a noise barrier while the bins are being used for the apple harvest. In 2020 to 2021, the year the bins were not put along the lot line on the west side of the property, that was because Vienna Farms was required by Bayham to do some regrading in that area of the yard.

51Mr. Thiessen stated that the nitrogen vent was altered in order to accommodate Mr.

Heimbuch’s request for noise reduction. It is Mr. Thiessen’s observation that to carry on a conversation beside the condenser fans you need to raise your voice and if you are standing to the west of the bins when the bin barrier is in place, you can carry on a conversation at a normal volume.

52Mr. Thiessen stated that he did not communicate with Mr. Heimbuch about the location of the equipment or the building prior to the construction of the new apple storage facility.

Ken Martin

53Mr. Martin stated that he is the Director of Orchard Operations at Vienna Farms. In this role he oversees general operations and during harvest there is about 180 employees. Martin’s Family Fruit Farm is the parent company to Vienna Farms. He has worked for Vienna Farms for 8 years. He has been employed by Martin’s Family Fruit Farm for over 40 years. Martin’s Family Fruit Farm has been in business since 1971 in the Waterloo, Ontario area.

54Mr. Martin stated that Vienna Farms has about 700 acres of apple orchards, mostly in the Port Burwell area near the Vienna Farms location. At the Vienna Farms location there is an apple storage facility. It is ideal to have apples in CA storage as soon as possible after they are picked. CA storage has been utilized in the apple industry for at least the past 70 years. The technology that is used has changed over the years.

55Mr. Martin stated that he is not aware of any regulations in Ontario for the placement of the CA equipment. At the Martin’s Family Fruit Farm location in Waterloo the apple storage facility was constructed in 2014 with the equipment room in front of the storage facility and the condenser fans beside it. This configuration was utilized as it was recommended by their engineers. At the Waterloo location, the nitrogen vent is situated towards a duplex house located 130 feet from the fans. This is where Mr. Martin lives.

56Mr. Martin testified that the loss of the Vienna Farms storage facility and the apples in storage was valued at 10 million dollars. The Vienna storage was important to the whole operation and there was an urgency to have it rebuilt for the 2018 harvest. Without it being rebuilt there would be no place for the apples to be stored in Ontario as there is no surplus apple storage facilities in Ontario.

57The decision to put the equipment in a room in front of the building was made as it followed the recommendation of engineers for the construction of apple storage facility at the Waterloo location. Consideration was to fire safety as it was believed that the fire at the Vienna Farm started in the equipment on the roof.

58Mr. Martin stated that the location of the fans allowed for the best utilization of the space they had on this parcel of land, taking into consideration the loading of apples into the storage facility, the docking of trucks at the front of the storage facility and the proximity to the road, the existing cement pad for the loading of flatbed trucks, the railroad easement at the rear of the building, the pre-existing mechanical shop and preserving an opportunity for future expansion.

59Mr. Martin testified that he did not consider the noise of the condenser to be excessive as he himself lives very close to the same equipment and from his perspective it is not

noisy equipment. Mr. Martin has been outside next to the condensers, and it is his experience that you might have to raise your voice to carry on a conversation but would not consider it necessary to wear ear protection.

60In cross examination, Mr. Martin agreed that his home is located such that it is shielded from the fans by the apple storage facility and not located in a corner and that the condenser at the Waterloo location is smaller than the one at the Vienna storage facility.

61Mr. Martin testified that there was no noise study prior to the construction of the new apple storage facility, as in his opinion, they were not running noisy equipment. Mr. Heimbuch had had concerns about noise, but it was only with a high pitch noise.

Robert Anderson

62Robert Anderson is the President of Buchannan & Hall, refrigeration contractors and suppliers of refrigeration equipment to the food and agriculture sectors. Mr. Anderson is a licenced refrigeration mechanic, master electrician and has a Class 2 gas fitter certification. At Buchanan & Hall there are several other mechanical licences incorporated within the company and their staff.

63Mr. Anderson stated that Buchannan & Hall supplied and installed the refrigeration equipment at Vienna Farms. They supplied a centralized refrigeration plant with a compressor that is located in the mechanical room, evaporator coils in each of the cold storage rooms and an outdoor condenser located beside the mechanical room for the heat rejection produced by the system. The refrigeration compressors produce a hot vapour that needs to go outside to the condenser. The condenser is like a giant radiator with a series of fans. The one at Vienna Farms has 14 fans. As the ambient conditions and the load conditions of the building changes it will start with a small number of fans running and add more fans as needed.

64Mr. Anderson testified that the refrigeration equipment was installed in accordance with the manufacturer’s guidelines. Mr. Anderson attended at the Vienna Farms on February 16, 2024, and determined that the equipment was working normally without any mechanical defects that would not cause higher than expected sound pressure ratings close to the condenser. Buchannan & Hall has supplied the same type of equipment to other apple farms.

65On cross examination, Mr. Anderson noted that with the installation of the condenser units there was no consideration with regards to noise as typically noise has never been a problem with these units in the past. Mr. Anderson was not part of the decision making for the location of the condenser.

66Mr. Anderson confirmed that they had installed a similar condenser system at the Chris Hedges apple storage facility and recently made the necessary changes for Mr. Hedge’s expansion. The equipment, at the Hedges farm, is in a mechanical room within the building. Mr. Anderson confirmed that the layout works well for the condenser system. The condenser equipment at the Hedges farm was sized originally to be large enough for an expansion. The equipment at Chris Hedges’ farm was installed in a very similar manner as at the Vienna Farm.

67Mr. Anderson stated that the equipment at Vienna Farms is sized to accommodate an expansion that could add 30 to 40% more storage. The equipment then would, depending on the ambient temperature, run longer to pull down the temperature in the all the storage rooms.

Marco Rodrigues

68Mr. Rodrigues has been an employee of Storex for twelve years. Storex manufactures and installs equipment to regulate gasses in closed environments which are used to lower the respiration rate of fruits and vegetables to extend their shelf life. Mr. Rodrigues has been a senior project manager at Storex for the past four years. In this capacity he oversees the engineering, development, and installation of new projects. He has taken college courses in mechanical control and automation, but his qualifications come mostly from experiential learning as the technology used is not taught in school.

69Mr. Rodrigues explained that there are three main components to a CA system. One is the gas tight enclosure/room for storing the produce. This room is sealed and does not let outside air in. This room is connected to two main components, the first is a CO2 scrubber which filters the CO2 out of the room. The apples will use the oxygen in the room and release CO2 which then needs to be removed from the room. The second component connected to the room, is a nitrogen generator. As the CO2 is removed from the room it is replaced with nitrogen in order to reduce the level of oxygen in the room. This is an important component as a low level of oxygen in the room slows down the respiration rate of the apples and this lengthens the time the apples stay fresh.

70Mr. Rodrigues stated that Storex has been in business for over thirty years and operates worldwide. Storex supplied Vienna Farms with the CA equipment that is currently in use at Vienna Farms. The equipment was installed by the Storex technical team in accordance with the manufacturer’s instructions.

71Mr. Rodrigues testified that when the CO2 is removed from the storage room it is vented and released back into the atmosphere. Mr. Rodrigues has been to Vienna Farms, inspected the equipment and was satisfied that the equipment was operating properly without any issues. Storex technician, Mile Dill made a service call to Vienna

Farms on February 10, 2024 to provide a report on the operation of the equipment. At that time the equipment was working properly with no anomalies.

72Storex has sold CA equipment to apple storage facilities in Ontario, Quebec, P.E.I. New Brunswick, Nova Scotia, Vermont and New York. The equipment operates in the same manner as the equipment installed at the Vienna Farms.

73The equipment at Vienna Farms was installed and located within the mechanical room taking into consideration the various manufacturers recommendations, the distance between scrubber intake and the vent and the length of exhaust pipe. The sound from the equipment was considered. As the same equipment, in the previous apple storage facility, was located in the same spot and Storex was not aware of there being any problems in the past, the equipment was located in the same spot on the new build.

74Mr. Rodrigues stated that 99% of the Storex units are located on storage facilities with no houses nearby and they do not normally offer sound reducing equipment, however, there are sound balancing units available on the market to reduce the noise from the vent.

Chris Hedges

75Mr. Hedges has been an apple farmer since 1998 and is located near Simcoe, Ontario in Norfolk County. He has four hundred acres of apple orchards and operates a CA storage facility. The facility was built in 2018 and is located near some of his orchards. He completed a 13,000 sq. ft. expansion of the storage facility in 2021. The facility is now 40,000 sq. ft.

76Mr. Hedges is currently Vice Chair of the Ontario Apple Growers. Mr. Hedges operates his storage facility in the same manner as does Vienna Farms, putting the apples into the CA storage rooms on the day of harvest and pulling down the oxygen within a week of harvest. By utilizing CA storage Mr. Hedges can store apples up to a year, without the CA storage the apples would last 8 to 12 weeks.

77Mr. Hedges noted that the CA equipment at his storage facility was installed by Buchanan & Hall. He has a 12-fan condenser unit on cement piers located on the front southwest corner of the storage facility. There are also three intakes and vents at the west corner of the building. The CA equipment was purchased from Besseling.

78Mr. Hedges noted that there is noise from the units, just like an air conditioner. The nitrogen generator and the scrubber are contained within the building. He is not aware of any ringing noise from this equipment. There is a neighbouring house more than 700

feet to the east of the Hedges’ storage facility with old tobacco barns between the

house and the fans on the storage barn.

79Mr. Hedges stated that he sells apples to Martin’s Family Fruit Farm and worked for Martin’s Family Fruit Farm from 2009 to 2017 as a liaison between the contract apple growers and Martin’s Family Fruit Farm, providing infield support and assisting the growers to produce apples at the quality that Martin’s Family Fruit Farm desired.

80Mr. Hedges has attended at the Vienna Farms as recently as a year ago and had been at the location prior to the fire at the apple storage facility. Mr. Hedges indicated that he was not aware of any other apple growers who have had noise issues similar to the ones being experienced at the Vienna Farms.

THE LEGISLATION

81The 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.”

82The following definitions contained in Subsection 1(1) of the Act are relevant to this proceeding:

“Disturbance” is defined 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.”

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

84The 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.

85Subsections 5(1) and 5(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.”

THE ISSUES

86Is the Applicant a person directly affected by disturbances from an agricultural operation?

87If the Applicant is entitled to bring the Application under Subsection 5(1) of the Act, does the disturbance complained of result from a normal farm practice?

THE FINDINGS AND REASONS

88Is the Applicant directly affected by the disturbance from an agricultural operation?

89The Board finds based on the evidence that the Respondent Vienna Farms operates an agricultural operation within the meaning set out in definitions at subsection 1 (1) of the Act.

90The alleged disturbance of noise is set out in the definition of disturbances at subsection 1 (1) under the Act. In order to have standing to apply under Section 5 to the Board for determination as to whether the disturbance results from a normal farm practice the Applicant must first be found to be a person “directly affected by a disturbance”. The onus is on the Applicant to prove that he is directly affected by a disturbance (noise) from an agricultural operation.

91If the Applicant establishes standing by providing sufficient evidence to show that he is a person directly affected by a disturbance from an agricultural operation then the onus of proof shifts to the Respondent to prove on a balance of probabilities that the alleged disturbance results from a normal farm practice.

92The Board finds that the alleged disturbance is the result of the operation of the CA equipment at the apple storage facility at the Vienna Farms apple farm. The apple storage equipment at Vienna Farms is similar to CA equipment utilized throughout the Ontario apple agricultural sector and it is a normal practice to operate CA equipment from the time of harvesting apples in the fall throughout the year until all the apples have been marketed.

93The Board finds that the Respondent is in compliance with applicable Provincial and Municipal noise Regulations and By-Laws.

94The Applicant argued that the Respondent’s specific use of the equipment at its apple storage facility in close proximity to Mr. Heimbuch’s property is not a normal farm practice because of the configuration and location. Right equipment, wrong location. citing Kent and Agnes Benson v. Rien and Karen Dekker, 2022 ONNFPPB 9 at para. 43.

95The matter before us is distinguished from that case, as in that case the location of manure pit (the normal farm practice) at the Dekker dairy farm was placed incorrectly due an error in the calculation of the Minimum Distance Separation (“MDS”) number resulting in the manure pit being placed too close to the Benson home. In the matter before us, there was no requirement to place the CA equipment a specific distance from a house.

96We need to analyse this dispute utilizing test set out for us by Ferguson J. in Pyke v Tri Gro Enterprises Ltd. [1999] O.J. NO. 3217 (Ontario Superior Court of Justice), Ferguson J. 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 sensitivities 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 Plaintiff’s special sensitivities. With respect to 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 is 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 the reasonable precautions.”

97It is therefore reasonable to expect the Applicant to establish the same level of interference with the use and enjoyment of his property in the 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 nuisances in the Superior Court. 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.

98Has there been an unreasonable interference with the use and enjoyment of the lands of Bob Heimbuch? The Applicant’s allegation is that the noise interferes with his enjoyment of his house and property. The Applicant made no allegation of the depreciation of the resale value of his land nor did he provide medical evidence of injury to his health. The evidence of the Applicant, if accepted, is directed to the infringement of his comfort and an imposition on his tolerance of noise. Mr. Heimbuch testified that the interference he experiences leads to his discomfort and inconvenience and thereby infringes his enjoyment of his property.

CHARACTER OF THE NEIGHBOURHOOD

99The evidence disclosed that the neighbourhood is designated as an agricultural area and zoned A1 Agriculture within Bayham. There are crop fields to the south, west and east of the apple storage facility. The apple storage facility has been in operation since 2000 and there is no evidence of a complaint by any other persons in the neighbourhood.

SEVERITY OF THE INTERFERENCE

100As to the duration of the alleged noise disturbance, the evidence is and the Board finds, that the fans and vent noise is continuous from September through until the apple storage is emptied sometime during the summer months, for 10 months or possibly up to a year.

101The evidence is, and the Board finds that the alleged noise disturbance varies in degree throughout the apple season, depending on the temperature out of doors, the requisite temperature of the apple storage rooms and the quantity of apples in the storage facility. The evidence is and the Board finds that as the storage facility is being filled from September through to the end of October the CA equipment is running at its peak and producing the loudest noises. It is difficult to accept Mr. Heimbuch’s evidence that the level of the noise arising from the apple storage operation has, continuously since September 2018, interfered with his use and enjoyment of his property.

RESPONDENT’S ATTITUDE AND ACTIONS

102The Respondent, after the total loss of the apple storage facility in 2018, immediately rebuilt its facility on the footprint of the original apple storage facility. The modifications that it made to the rebuilt storage facility took into consideration the ongoing needs of its agricultural business and the cause of the fire. The evidence is that the Respondent did not take into consideration the possibility of noise creating a nuisance for Mr. Heimbuch. The evidence is and the Board finds that the Respondent did not take preventative action as it did not perceive the equipment it was installing to be too loud. Mr. Heimbuch, having resided beside the storage facility since 2003, had two incidents of noise that produced complaints prior to the reconstruction of the apple storage facility in 2018. Although, the Respondent was not immediately responsive to Mr. Heimbuch’s noise complaints in 2016 and in 2017 it did remedy and reduce the particular noise that Mr. Heimbuch was complaining about.

103The Respondent has attempted to buffer the noise arising from the condenser fans by locating empty apple bins along the property line between the fans and Mr. Heimbuch’s house and by altering the nitrogen generator vent such that it is directed away from Mr. Heimbuch’s house.

104Considering all the factors, the Board finds that the Applicant has not shown substantial interference and discomfort which would not be tolerated by the ordinary occupier in their location, nor has there been an unreasonable interference with the use and enjoyment of the Applicant’s land. Consequently, the Applicant is not a person directly affected by the disturbances alleged and this Board has no jurisdiction to entertain his application to consider whether or not the Respondent’s operation is a normal farm practice.

105If the Applicant is entitled to bring this Application under Subsection 5 (1) of the Act, do the disturbances complained of result from a normal farm practice?

106In the view of the Board’s findings that the Applicant has not met the threshold test as to being directly affected by a disturbance, it is not necessary for the Board to answer this question. However, if the Board had in fact found that it had jurisdiction to make a decision on this question the Board would have found that the Respondent’s agricultural operations at the time of the hearing are normal farm practices based on all the evidence before it.

THE DECISION

107The Board therefore dismisses the Applicant’s Application.