Normal Farm Practices Board shuts down greenhouse biodigester

AS PREVIOUSLY PUBLISHED IN THE RURAL VOICE:  

In Ontario, a person affected by a disturbance from an agricultural operation, such as odour or noise, may apply to the Normal Farm Practices Protection Board for a determination as to whether the disturbance results from a “normal farm practice”.  If, following a hearing, the Board determines that the disturbance results from a practice that is not a normal farm practice, the Board must order the farmer involved to cease the practice.

On November 8, 2018, the Board issued its Reasons for Decision in a case involving allegations of disturbances due to odour, flies, dust, light, noise and vibration arising from the operation of a biodigester at a large greenhouse operation.  The Board determined that the operation of the biodigester was not a normal farm practice and ordered that the digester system be shut down immediately.  The Application was brought by a number of residents living in the vicinity of the operation in 2015.  A hearing of the Application was held by the Board over the course of 20 days in December, 2015, and January, April, June, and July, 2016.  In addition to hearing from no fewer than 25 witnesses, the Board received approximately 200 documentary exhibits into evidence.

The Board heard that the biodigester in question had been installed in or about 2008 by the greenhouse operator (now in receivership) at the rear of its greenhouses to provide an alternative source of energy.  Biogas produced by the digester ran a large electrical generator, and the electricity produced was used to heat water to heat the greenhouses.  The system included two enclosed digesters, a large generator, a flare for burning off excess gas, cement bunkers where feedstock for the digesters was stored, and both open and buried tanks for liquid digestate.  Feedstock for the digester has included material such as pet food, coffee grounds, vegetable and flower waste from grocery stores, solids from meat processing, and occasionally manure.

The rural area where the greenhouse operation was located is composed of small farms with narrow frontages, along with a number of residential lots that have been severed from larger farm properties.  Prior to the installation of the biodigester, the neighbourhood was considered to be "a relatively quiet, peaceful rural setting" where disturbances from agriculture were limited to the occasional sound of tractors operating and periodic odour from nearby chicken barns.  Following installation of the biodigester, however, significant disturbances were reported, including offensive odour noticeable almost daily, and an extreme increase in the number of flies around neighbours' homes.

In assessing the application, the first question for the Board was whether one or more of the applicants had proven that he or she was directly affected by a disturbance of odour, flies, dust, light, noise or vibration arising from a practice related to the greenhouse operation.  Although under the test applicable to the application, the Board would only need to find that one of the applicants had been directly affected by one of the alleged disturbances, the Board found that several of the applicants demonstrated that there had been:

"a substantial and repeated interference with the use of their properties by reason of the excessive odour and flies since 2009.  The character of the neighbourhood has been changed by the operation of the digester from a quiet, peaceful rural setting with the occasional sounds and smells of farming to one besieged by almost daily intense odour and hordes of flies."

The next question was whether the operation of the biodigester was a "normal farm practice", which is defined in the Farming and Food Production Protection Act, 1988 as a practice that: (a) “is conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances”, or (b) “makes use of innovative technology in a manner consistent with proper advanced farm management practices."  If the Board found that the operation of the biodigester did not meet one or both of those definitions, the legislation would require the Board order the greenhouse operator to cease operation of the biodigester.

With respect to the first definition of "normal farm practice", being one that is conducted in a manner consistent with proper and acceptable customs and standards, the Board found that the greenhouse operator failed to provide sufficient evidence of other similar biodigester systems being used in similar circumstances as the biodigester at issue.  With respect to the second definition of "normal farm practice", being one that makes use of innovative technology, the Board accepted that the use of a biodigester in an agricultural setting, and the use of agricultural waste as feedstock, were innovative.  However, relying on the decision of the Ontario Court of Appeal in Pyke v. Tri Gro Enterprises Ltd., the Board ruled that operation of the biodigester was nevertheless not a "normal farm practice" on account of the intensity and severity of the disturbances caused and the change in the character of the neighbourhood surrounding the greenhouse operation.

The Board also found that the operation of the biodigester could not be modified so as to make it a “normal farm practice”, leaving no option but to shut the digester down.

Read the decision at:  2018 CanLII 107105 (ON NFPPB).