Normal Farm Practices Board decision overturned by Divisional Court

Read Farms, owned by Wayne Read and Laura Duncan, are tenants on a 400-acre parcel of land in Oakville. The land was formerly an oil refinery site and contaminated, but Read Farms has been growing crops on it since 2001. The lands are zoned industrial and Oakville's zoning by-law prohibits agricultural use of the land. In 2002, Oakville charged Read Farms with violating the by-law. In response, Read Farms went to the Normal Farm Practices Protection Board to seek a stay of the Oakville decision based on the Farming and Food Protection Act, 1998, that provides that no municipal by-law applies to restrict a normal farm practice that is carried on as part of a farming operation. The stay was granted and Oakville appealed the decision to the Divisional Court.

The Ministry of the Environment had earlier restricted use of the property to industrial or commercial, but under no circumstances could the land be used for grazing. Read Farms was cash cropping the land.

After noting the evidence in the case relating to an interesting attempt by the actual owner of the property to avoid property taxes (the decision is worth a read for this story alone), the Divisional Court made the following findings:

• The Board did not provide adequate reasons for its decision, denying natural justice to Oakville;
• The Board has jurisdiction over "farm practices" (the manner in which someone carries out a permitted use of the land); it does not have jurisdiction over the "agricultural operation" (i.e. the right to decide what land use is permitted and what is not); the Board in this case was wrong to expand its authority to overriding the power of the municipality to decide what land uses are permitted on specific lands.

In other words, it is the municipality that is empowered to permit or prohibit categories of land use (zoning). It is the role of the Normal Farm Practices Protection Board to look into the practices undertaken on lands where agricultural operations are permitted and determine whether or not they are "normal" and deserving of protection. The Board cannot exceed that jurisdiction.

Read the Divisional Court decision at: http://www.canlii.org/en/on/onscdc/doc/2010/2010onsc170/2010onsc170.html