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Thursday, March 30, 2017

Normal Farm Practices Protection Board examines tree clearing as a normal farm practice

Pursuant to Section 6 of the Farming and Food Protection Act (the "Act") in Ontario, municipal by-laws do not to apply to restrict a normal farm practice carried on as part of an agricultural operation.  Farmers or other persons wanting to engage in a normal farm practice (that is part of an agricultural operation) can apply to the Normal Farm Practices Protection Board (the "Board") for a determination as to whether a specific practice is a "normal farm practice" for the purposes of Section 6.  If the Board makes a determination that a specific practice is a "normal farm practice", then the municipal by-law in question, by operation of the Act, would not restrict the practice.

Recently the Board heard an application by landowners in the County of Norfolk who contended that the removal of trees from an irregularly shaped bush to "straighten up a field" was a normal farm practice.  On that basis, the landowners argued that the County of Norfolk's Forest Conservation By-Law did not apply to restrict the removal of trees for that purpose.

The County disagreed.  The County had already issued a stop work order to the landowners previously when a portion of the bush on their property was removed in 2013.  It advised the landowners at that time that, in the future, an application for a permit would be required for any future removal.  Late in 2015, a complaint was received about further removal of trees and a second stop work order was issued to the landowners.  The landowners appealed that stop work order to the By-law Appeals Committee for the County, but were unsuccessful.

The Board determined that, in this case, the tree clearing activities proposed by the landowners did not constitute a "normal farm practice".  The landowners did not call expert evidence on the question of whether tree removal to straighten a field is a normal farm practice.  They did not call evidence from any other agricultural operators to demonstrate that similar tree removal had been done under similar circumstances.  Absent evidence to support the notion that the tree removal was a "normal farm practice", the Board found that the landowners failed to prove on a balance of probabilities that it was a "normal farm practice".

Also, the Board went on to find that, in any event, the landowners' tree removal would not have been a "normal farm practice" because they had cleared more trees than "would be reasonably expected to be necessary to straighten a field line and, in fact, it amounts to an attempt to clear cut a portion of the bush."  And further, the Board noted as an aside (obiter dicta) that the County's tree by-law does not actually restrict a "normal farm practice" to the extent that straightening a field is a normal farm practice.  The Board referred to the fact that the by-law provides for a permit process and that the requirement of a permit, the application fee and any condition of reforestation or payment in lieu "are reasonable and would not be restrictive."

On that point, it is worth noting the following evidence given by the County's By-Law officer at the Board hearing:

Mr. [B]’s evidence was that Mr. and Mrs. [M] would have required a permit under Section 4 of the by-law in order to authorize the tree removal that they had done and wished to continue, that approximately 80% of exemption permits are supplied with respect to agricultural operations and that he has not seen any denied when they went to Council.

The present application fee for a permit for a Council Exemption is $255.00.  The permit may come with conditions requiring reforestation or a fee payable to the Municipality in lieu of reforestation in the approximate amount of $1,900.00 per acre.  These monies are placed in a separate fund and are used for reforestation elsewhere in the County. [emphasis added]

Landowners who intend to remove trees from woodlot and woodland areas need to be aware of any applicable municipal tree by-laws or other regulations.  While compliance with by-law or regulatory requirements may seem a nuisance to farmers and landowners who have no intention of clear-cutting bush and only want to "straighten up a field", the price of obtaining necessary permits is often much less expensive than the consequences of non-compliance.  Although the Board's decision does not indicate that any prosecution was launched against the landowners, failure to comply with tree by-laws may result in the laying of charges and, in the case of a conviction, in greater restrictions on future tree removal than would have been applicable in the first place.

Read the decision at: Meijaard v Corporation of Norfolk County.