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Law of the Lands - Farm, Energy & Enviro Law has reached the 100,000 hit mark!  Thanks to all my readers. 

Happy Harvesting!  To those "lucky" enough to be at it still...

Court of Appeal rules dock at end of right-of-way can stay

The Court of Appeal has released its decision in a right-of-way case I argued before it on October 11.  The Court overturned a trial decision that prohibited the appellant landowners from using their right-of-way to a lake to access a dock they had constructed in the lake.  The local conservation authority had granted a permit for the dock, but the owners of the right-of-way opposed the presence and use of the dock. 

 

On behalf of the Court of Appeal, Justice Goudge ruled that the right-of-way in question was one of general use and that accessing the dock was not an overburdening use of the right-of-way.  Importantly, he stated that, "what the user does immediately after leaving the right of way cannot be said to affect the use made of the right of way at all.  Accessing the dock does not extend the right of way beyond the shoreline."

 

Read the decision at: Kendrick et al. v. Martin et al.

Landowner has to pay engineer's cost for withdrawn Drainage Act petition

The Agriculture, Food and Rural Affairs Appeal Tribunal has ruled that a landowner who petitioned a municipal drain and then withdrew the petition is still on the hook for engineer's costs already incurred before the withdrawal.  The landowner had petitioned to have his property added to another municipal drain that was being petitioned by neighbouring landowners.  However, when he learned of the cost of joining the drain and when his drainage problems appeared to be alleviated by a neighbour's private drainage works, the landowner sought to withdraw his own petition.

 

The Tribunal found that the landowner should be responsible for the added costs of the engineer related to surveys and designs for extending the drainage works onto the withdrawing landowner's lands.  A ruling was made that the $7,500 cost would be assessed to the non-participating landowner as a special benefit assessment.

 

Read the decision at: Van Driel Drain.

Manure company not exempt from employment standards requirements

The Ontario Labour Relations Board has ruled that a manure transporting and spreading company is not a "farm" within the meaning of the Ontario Employment Standards Act ("ESA").  Organix Matters Inc. ("Organix") was found by the Ministry of Labour to have violated the overtime provision in the ESA; employees worked in excess of the maximum hours of work permitted by the Act, were not paid at the overtime rate, and worked more than the maximum number of hours without required breaks for meals or rest.

Organix does the primary tillage and injects manure into the soil thereby ensuring an even application of nutrients and reducing odour and nitrogen losses. Organix uses large pieces of agriculture equipment with specialized tire rims to prevent soil compaction to ensure the best root growth for crops and the best crop yields. Organix’s process is fast and efficient. What traditionally took a week can be done in half a day. Farmers use Organix because it is cost effective and efficient. The farmer gets the benefit of Organix’s spreading processes without having to make the large capital investment of buying the equipment.

Spring is Organix’s busiest season with the early application of manure on winter wheat plants to meet its nitrogen requirements. Organix then fertilizes hay and corn. When the first crop of hay has been taken there is an immediate requirement for the application of manure so that the second planting of hay is not burned. In the summer, Organix fertilizes summer soybeans and white beans. In the fall, Organix fertilizes winter wheat before snow falls, because under the Nutrient Management Act fertilizer can not be applied to frozen ground. In the winter, Organix’s operations are mostly suspended with the exception of assisting farmers if a manure pit overflows.

Organix argued to the Labour Relations Board that it was a farm operation and, therefore, the overtime provisions did not apply.  However, the Board found that Organix employees are not engaged in farming; it is a commercial operation which provides a service to approximately 200 farms, and Organix employees do not have a direct employment relationship with the farmer.  The Board did not agree that Organix is involved in the primary production of farm produce; it provides ancillary services. 

The Board noted further:

Organix may be considered under some legislation to be operating in farming or agriculture. Had the legislature intended the exemption to apply to commercial operations such as Organix it could have used the definitions used in other pieces of legislation under which Organix is considered an “agricultural operation,” “person engaged in the business of farming,” “agriculture,” or user of “farm implement[s]”under other pieces of legislation. The Act’s purpose is different from than other pieces of legislation because it has as its purpose, the protection of workers and the insurance of minimum employment standards.

Read the decision at: Organix Matters Inc. v. Director of Employment Standards. 

Ontario: Provincial Planning Act Policy Statement undergoing 5-year review

The Provincial Policy Statement (PPS), the document that guides municipalities in planning decisions (including severances from farm properties) is undergoing its regular 5-year review.  Draft policies have been released for public review (see Draft Policies).  The main draft policy on agricultural areas is as follows:

2.3 Agriculture

2.3.1 Prime agricultural areas shall be protected for long-term use for agriculture.

Prime agricultural areas are areas where prime agricultural lands predominate. Specialty crop areas shall be given the highest priority for protection, followed by Canada Land Inventory Classes 1, 2, and 3, and any associated Class 4 to 7 soils within the prime agricultural area, in this order of priority.

2.3.2 Planning authorities shall designate prime agricultural areas and specialty crop areas in accordance with guidelines developed by the Province, as amended from time to time.

2.3.3 Permitted Uses

2.3.3.1 In prime agricultural areas, permitted uses and activities are: agricultural uses, agriculture-related uses and on-farm diversified uses.

Proposed agriculture-related uses and on-farm diversified uses shall be compatible with, and shall not hinder, surrounding agricultural operations. Criteria for these uses may be based on guidelines developed by the Province or municipal approaches, as set out in municipal planning documents, which achieve the same objectives.

2.3.3.2 In prime agricultural areas, all types, sizes and intensities of agricultural uses and normal farm practices shall be promoted and protected in accordance with provincial standards.

2.3.3.3 New land uses, including the creation of lots, and new or expanding livestock facilities shall comply with the minimum distance separation formulae.

2.3.4 Lot Creation and Lot Adjustments

2.3.4.1 Lot creation in prime agricultural areas is discouraged and may only be permitted for:

a) agricultural uses, provided that the lots are of a size appropriate for the type of agricultural use(s) common in the area and are sufficiently large to maintain flexibility for future changes in the type or size of agricultural operations;

b) agriculture-related uses, provided that any new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services;

c) a residence surplus to a farming operation as a result of farm consolidation, provided that:

1. the new lot will be limited to a minimum size needed to accommodate the use and appropriate sewage and water services; and

2. the planning authority ensures that new residential dwellings are prohibited on any vacant remnant parcel of farmland created by the severance. The approach used to ensure that no new residential dwellings are permitted on the vacant remnant parcel may be recommended by the Province, or based on municipal approaches which achieve the same objective; and

d) infrastructure, where the facility or corridor cannot be accommodated through the use of easements or rights-of-way.

2.3.4.2 Lot adjustments in prime agricultural areas may be permitted for legal or technical reasons.

2.3.4.3 The creation of new residential lots in prime agricultural areas shall not be permitted, except in accordance with policy 2.3.4.1(c).

2.3.5 Removal of Land from Prime Agricultural Areas

2.3.5.1 Planning authorities may only exclude land from prime agricultural areas for:

a) expansions of or identification of settlement areas in accordance with policy 1.1.3.8;

b) extraction of minerals, petroleum resources and mineral aggregate resources, in accordance with policies 2.4 and 2.5; and

c) limited non-residential uses, provided that:

1. the land does not comprise a specialty crop area;

2. the proposed use complies with the minimum distance separation formulae;

3. there is a demonstrated need within the planning horizon provided for in policy 1.1.2 for additional land to be designated to accommodate the proposed use; and

4. alternative locations have been evaluated, and

i. there are no reasonable alternative locations which avoid prime agricultural areas; and

ii. there are no reasonable alternative locations in prime agricultural areas with lower priority agricultural lands.

2.3.5.2 Impacts from any new or expanding non-agricultural uses on surrounding agricultural operations and lands are to be mitigated to the extent feasible.

There are also other aspects of the proposed PPS that deal with agriculture, such as extraction of petroleum or aggregates from prime agricultural lands.

You can participate in the PPS review up to November 23, 2012:

Ontario is holding workshops in communities across the province. Please visit the regional workshops page or call 1-877-711-8208 if you have any questions.

To submit your comments electronically, complete this online questionnaire, or you can send written comments to:

Provincial Policy Statement Review
Ministry of Municipal Affairs and Housing
Provincial Planning Policy Branch
777 Bay Street, 14th Floor
Toronto, ON M5G 2E5
Tel: 416-585-6014 or 1-877-711-8208
Fax: 416-585-6870
E-mail: PPSreview@ontario.ca

Please note: All comments and submissions received will become part of the public record.

Comments must be received no later than November 23, 2012.