January 2004

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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The replacement of a family dairy farm with a large hog production operation may cause concern in the community with respect to impacts on drinking water and interference with the use and enjoyment of neighbouring properties. Where a municipal by-law restricts development of such an intensive livestock operation, in considering the issue of a building permit, a question may arise as to whether the proposed use is simply a continuation of an existing agricultural use or whether the expanded hog facility amounts to a change in use of the property. In making this determination, what consideration should be given by the responsible municipal official to potential community impacts?

The Ontario Superior Court recently considered an appeal of the issue of a building permit authorizing the construction and operation of an intensive commercial pig farm on a site which had been occupied for many years by a family dairy farm. Prior to issue of the building permit, the municipality had enacted an interim control by-law which prohibited farming operations in excess of 150 cows or 750 sows. At the date of enactment of the by-law, the dairy operation had 209 cows; permitting an equivalent hog operation under the by-law would have allowed 1,045 sows. The building permit as issued would have permitted a hog operation accommodating 1,045 sows.

Both the neighbours of the proposed development and the municipality were concerned about impacts of the proposed development on the community and drinking water sources. Ontario’s Planning Act provides that an existing land use cannot be prevented by passage of a by-law as long as the land continues to be used for the same purpose. In considering the significance of the pre-existing use in permitting an intensive livestock operation larger than allowed under the by-law, the Court referred to an earlier Supreme Court of Canada decision which held that:

“If the use undertaken after the change to the by-law is of the same nature as the actual use under the former by-law, it will be protected by acquired rights. If, on the other hand, it is even minimally different, the protection will be lost. That is…because any use that has not yet materialized must, as a general rule, be excluded from the sphere protected by acquired rights.”

Therefore, the Court addressed the issue of whether the proposed expanded hog operation constituted an agricultural use “of the same nature” or “different”. The Court determined:

“By any standard, it would be difficult to conclude that to change from a family dairy farm to an industrialized, sophisticated hog operation is not a difference in kind. The evidence before me as to the moratorium imposed by the province of Quebec on such hog operations and the evidence of community impact and concern of the community about their drinking water, the nuisance caused by the smell when the nutrients are spread over the property, are all factors, which would lead me to conclude that this is a difference in kind and that the protection is lost.”

With respect to the relevance of community impacts on this comparison of existing and proposed use, the Court stated:

“I have to determine whether the extent of the activities added is within the original scope of usage. The Court has to balance the community interest against the interest of the landowner. The greater the disruption, the more tightly drawn will be the definition of pre-existing use or acquired right. “…Obviously, the proposed pig farm operation of the intervenor is not yet in existence, and therefore, many of the neighbourhood and environmental effects are not considered in a factual setting. Nevertheless, there is sufficient history and notoriety about industrialized hog operations for the Court to understand that the neighbourhood concerns are not based on imagination or fiction. The Court has to consider that our neighbouring province of Quebec has imposed a moratorium on such hog operations. The neighbours in that area get their drinking water from wells. Given the existence of unused wells on the property, the existence of streams that feed into neighbouring rivers, given the topography, geology, and hydrogeology of the property, all of these factors may have some impact on the drinking water of the neighbours. All of these concerns, of course, are taking place within the context of the report of the Walkerton inquiry and the recommendations of the presiding commissioner about the protection of drinking water sources from agricultural activity.”

In the result, the Court determined that “the proposed hog farm operation is not a continuance of the pre-existing dairy farm operation. Its character has been so altered, and in terms of impact on the community, is a very different use.” Accordingly, the Court directed that the building permit be amended to limit the number of hogs to 750 in accordance with the by-law.

Large, industrialized hog production operations are not simply an extension of existing family farm agricultural use. Community disruption, interference with the use and enjoyment of neighbouring properties and impacts on drinking water sources are all relevant considerations in applying municipal land use by-laws and determining where such intensive livestock operations will be permitted and the size of these operations.