October 2002

Disclaimer: Agrilaw is a syndicated column produced by the full service London law firm of Cohen Highley LLP.  Paul G. Vogel, a partner in the firm, practises in the area of commercial litigation and environmental law.   Agrilaw is intended to provide information to farmers on subjects of interest and importance. The opinions expressed are not intended as legal advice.  Before acting on any information contained in AgriLaw, readers should obtain legal advice with respect to their own particular circumstances.

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Where there is business advantage to be gained from industrial development, what consideration should be given to a community’s desire to retain its agricultural and rural character? With the continuing expansion of urban areas and industrial encroachment on agricultural lands, this is an issue increasingly confronting rural municipalities.

The Ontario Municipal Board was recently required to consider this issue in the context of an application to amend a rural township’s official plan and zoning by-law to permit construction of a large water bottling plant in an agricultural, environmentally sensitive location. The applicant company was already shipping water from the site under authority of a provincial permit which it had obtained but proposed construction of the plant to permit water bottling on site. The township’s official plan had been developed in contemplation of this application and township planners supported the application provided the company instituted a long term monitoring program to assess impacts of the water taking on the recharge of the area”s acquifer.

In response to the company’s position that, having obtained the required provincial permit, the Ontario Municipal Board could not consider the environmental and ecological impacts of the water taking in deciding the company’s application, the Board concluded that it “has a positive obligation to examine the environmental and ecological impact of the proposed land use and it’s associated water taking”. The Board stated:

“As with so many other matters that come before the Board, consideration of the need to bottle on site is really consideration of conflicting ambitions. On the one hand, there is the reasonable business ambition of (the company) to maximize its market position. On the other hand, there is the equally reasonable ambition of the community – expressed through its official plan – to maintain the agricultural and rural character of the community and to confine industrial operations in general to pre-identified industrial areas."

“In this case, the township has a recently approved official plan that reflects the ambition and vision of its residents. It has made clear that the plan is not simply an invitation for site specific amendments or “let’s make a deal” planning. It is both reasonable and appropriate to begin the analysis by testing the need for the change which, if approved, would alter the community’s ambition and vision."

“Bulk water is currently shipped by tanker from the site and bottled elsewhere. On the evidence of the (company’s) representatives, the Board is satisfied that the “need” to bottle on site is, at best, a question of business advantage for marketing purposes and not even a question of business need.”

In rejecting the company’s application to permit construction of the water bottling plant, the Board determined that the company’s application met neither the requirements of provincial planning policies requiring protection of ground water sources or the intent of the township’s official plan. The Board held:

“The proposed water bottling plant will involve substantial additional heavy truck movements and a considerable increase in automobile movements such that (the company) proposes to widen, straighten, flatten and pave the existing side road. The additional traffic will create additional noise, vibration and fumes. Coupled with the substantial changes proposed to the side road, the Board finds that there will be a significant change to, and loss of, the rural character in this part of the community. The township’s ambition to protect its rural character and natural environment….will not then be achieved in this part of the community…."

While the lands to be re-designated as industrial seem relatively small – about 14 acres – the re-designation nonetheless introduces a strong and intrusive non-agricultural use into an agricultural area with active agricultural operations. Slow moving farm vehicles currently compete for space on area roads even without the pressure of additional truck and automobile traffic. Agricultural uses may also be water-intensive, and uncertainty about the (company’s) drawdown in groundwater levels creates uncertainty about the degree of flexibility that is then afforded to existing and future agricultural operations”.

From this decision it is clear that “business advantage” may not be a sufficient basis for permitting industrial development to infringe upon agricultural lands in rural communities. Even where provincial authorization has been granted providing access to the resources on site, consideration of surrounding land use and preservation of the rural character of the community may nevertheless defeat the proposed development.