June 2007

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.

Restricting Normal Farm Practice - MDS

Provincial Minimum Distance Separation (MDS) requirements have been adopted by many municipalities in their zoning by-laws to establish setback requirements for proposed agricultural development from neighbouring land uses.  However, the Farming and Food Production Protection Act (FFPPA) provides that “no municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation” and the Normal Farm Practices Protection Board has the power to determine whether a proposed agricultural operation which is directly affected by a municipal by-law is a normal farm practice.  Can proposed agricultural development which does not comply with MDS requirements incorporated into a municipal by-law nevertheless be exempted from these requirements as a normal farm practice?   

The Ontario Court of Appeal recently considered this issue upon an appeal by a pig farmer from a lower court decision which had reversed a Board decision allowing a proposed expansion.  The pig farm was located adjacent to a municipal complex which included a community centre, municipal offices and auditorium.  A municipal by-law provided that new or expanding livestock facilities had to comply with provincial MDS requirements.  Although MDS required that agricultural operations located in the vicinity of such an institutional use be sited double the distance required from an ordinary neighbour (the “doubling factor”), the Board exempted the proposed expansion from the MDS requirements in the municipal by-law as a normal farm practice. 

In dismissing the appeal and upholding the reversal of the board’s decision, the appellate court noted that other provisions of the FFPPA require the Board, in determining whether a practice is normal form practice, to consider whether the municipal by-law reflects a provincial interest as set out in a policy statement and to render a decision consistent with provincial directives, guidelines or policy statements.  With respect to application of provincial policy statements, the court stated:

“The Board held that its decision did not contradict the provincial policy statements … the provincial policy statements require that new or expanding livestock facilities comply with the minimum distance separation formulae.  Inasmuch as the Board’s decision cut the required minimum distance separating (the farmer’s) proposed operation from the (municipal complex) in half, the Board’s conclusion that its decision was in compliance with the provincial policy statements is simply not tenable and is unreasonable.”

With respect to the Board’s compliance with provincial directives, guidelines or policy statements, the court further stated:

“The Board … does not refer to the Farm Practices Position Statement issued by the Ontario Ministry of Agriculture Food and Rural Affairs in 1998, the year that the FFPPA, was adopted.  That Position Statement’s purpose was to ‘clearly state the Ministry’s position and to give direction on matters and issues related to farming and normal farm practices.’  The last paragraph of the Statement refers to Minimum Distance Separation, stating … that new or expanding livestock facilities are to comply with the MDS formulae ‘as per Provincial Policy Statement under the Planning Act’  The direction given in this Position Statement clearly falls within the provisions of … the FFPPA.  It was in effect at the time of the Board’s determination.  It constitutes more than a ‘guideline’ and was binding by the Board.”

In the result, the court concluded:

“The Board’s decision cannot stand.  Pursuant to (the FFPPA), the Board was required to ensure that its decision in this case was consistent with the Ministry’s (MDS) guidelines.  Compliance with the Ministry’s (MDS) guidelines would have required the appellant’s closest proposed barn to be located 604 metres from the institutional zone occupied by the (municipal complex).  Instead, the Board permitted a setback of only 302 metres.  This result – a reduction by half to the required setback distance – simply cannot be said to be consistent with the (MDS) guidelines.  The Board could not ignore (the FFPPA) and render a decision that was inconsistent with the MDS guidelines.  Its decision was unreasonable.”

Whether or not proposed agricultural development constitutes normal farm practice, such development will not be permitted in contravention of provincial MDS requirements.  Despite the provision of the FFPPA precluding restriction of normal farm practice by municipal by-laws, a municipal by-law incorporating provincial MDS requirements will be effective to prevent such development.