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).
