October 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.

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The Farming and Food Production Protection Act includes provision that “no municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation”. Does this provision provide protection for a proposed farm operation which contravenes municipal zoning requirements?

In a recent appeal by a municipality to Ontario’s Divisional Court, the Court considered a decision of the Normal Farm Practices Protection Board which would have allowed a swine operation to almost double its production capacity in contravention of minimum distance separation (MDS) requirements incorporated into the municipal zoning by-law. Prior to applying to the Board, the swine operation had applied to the municipal Committee of Adjustment for minor variances from the MDS requirement in connection with the proposed construction. Following dismissal by the Committee of this application, the farmer applied to the Normal Farm Practices Protection Board for an order permitting him to proceed with the proposed construction as “a normal farm practice” despite contravention of the requirements of the zoning by-law. The Board issued an order authorizing the proposed construction with certain modifications as “a normal farm practice” even though it violated MDS zoning requirements.

In allowing the municipality’s appeal and setting aside the Board’s order, the Divisional Court determined that the Board cannot authorize “a normal farm practice” if it is in violation of MDS zoning requirements. The court stated:

“… it is our view that the jurisdiction of the Board is confined generally to matters involving the protection of farmers who cause inevitable nuisances and disturbances to others by giving farmers the right to do so provided that their farming operations fall within the definition of “normal farming practice”. The Board has no jurisdiction to interfere with matters pertaining to land use such as those which arose in the circumstances of this case”.

In coming to this conclusion, the court made the following observations on the respective jurisdiction of the municipality and the Board: “Land use matters, especially those which involve zoning issues, can have enormous ramifications not only for owners of the land involved but also for the community as a whole. They can also have similar ramifications for the municipality itself in the way that it performs its duties to plan, service, secure and finance orderly urban development. These are matters which require consideration of factors much different and broader than those which the Board is required to consider in carrying out its functions under the Act. They are also matters which must be considered by persons who have expertise in areas of law and land planning who are required to safeguard the public interest. As well, to the extent that they are addressed by municipal councils, zoning matters must reflect the views of ratepayers who are also entitled to participate in the process”.

The Board’s power to prevent a municipal by-law from restricting “a normal farm practice” is limited to municipal by-laws which prohibit or regulate only certain types of nuisance or disturbance. The jurisdiction of the Board does not extend to suspending the application of a municipal zoning by-law to permit “a normal farm practice”.