August 2005

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.

Should you need to discuss a energy regulation related matter, please contact Paul Vogel or John Goudy by e-mail or by telephone at (519) 672-9330.  If corresponding by e-mail, be sure to include your name, your telephone number and a brief message.

Under the provisions of Ontario’s Nutrient Management Act, 2002, Regulation, agricultural operations generating 300 or more nutrient units annually must be managed in accordance with a nutrient management strategy including a nutrient management plan and registered manure spreading agreements. However, the Regulation excludes from the requirement for a nutrient management strategy agricultural facilities which were the subject of a building permit application before September 30, 2003. Where such facilities generate 300 or more nutrient units annually, must these agricultural operations nevertheless comply with the nutrient management strategy requirements of the regulation?

The Ontario Superior Court recently considered an appeal by municipal residents of the issue of a building permit for construction of a barn and manure storage silo for an intensive hog operation which will generate 300 or more nutrient units annually but for which the building permit application pre-dated September 30, 2003. The court was required to determine whether despite the application date, the nutrient management strategy requirements of the Regulation were nevertheless legal requirements with which the proposed agricultural operation had to comply.

The owner of the proposed hog operation raised by way of preliminary objection the status of municipal residents to attack his building permit. In deciding that the appellants had sufficient interest, the court stated:

“The appellants are residents and taxpayers in the (municipality). They are neighbours to the respondent, (owner of the hog operation). All of the appellants, apparently, draw their water from wells. Given the location of this hog operation, near the watershed, and a potential environmental damage, either from leakage of the liquid manure storage tanks or the spreading of the manure in the area, the concern of the neighbours is justified. The Court can also appreciate that the neighbours would be concerned about the smell that emanates from one of these operations and the impact that this may have on the evaluation of their properties. Finally, the neighbours have concern about the safety of the roads and bridges, which they use and lead to (the owner’s) hog operation.”

Even though the building permit application pre-dated September 30, 2003, the court determined that issue of the building permit should have been conditional on compliance with the nutrient management strategy requirements of the Regulation. The court held:

“As far back as October 2002, the (chief building official) was alive to the issue that such a large hog operation would generate materials and that these should be disposed in accordance with a Nutrient Management Plan and Manure-Spreading Agreement. One would then conclude that, when the go ahead was given to (the owner), in April or May 2004, the (chief building official) would certainly have been aware of the provisions of (the Regulation). He would have been aware that the Nutrient Management Plan and the Manure Spreading Agreements of (the owner) would have had to conform with the Nutrient Management Act, 2002. Would it not have been wise for the (chief building official), when he allowed the construction of (the owner’s) hog operation to proceed, to have imposed a condition that (the owner’s) hog operation would not commence until the provisions of the Nutrient Management Act, 2002 had been complied with?

Accordingly, I would order that the respondent, (owner), is not to commence his hog operation, until he is able to satisfy the requirements of (the Regulation) to the Nutrient Management Act, 2002”.

Agricultural operations must comply with the nutrient management strategy requirements of the Nutrient Management Act if they generate 300 or more nutrient units annually even if the building permit application for agricultural facilities pre-dated September 30, 2003. Regardless of the date of building permit application, such facilities must have a nutrient management plan and registered manure spreading agreements.