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.

Butternut Trees on your Ontario farm? Be aware of the Endangered Species Act, 2007

The following is a notice posted yesterday on the Environmental Bill of Rights (EBR) Registry in Ontario in connection with the proposed removal of ONE butternut tree:

Title:
Permit under clause 17(2) (c) of the Endangered Species Act, 2007 for Removal of one Butternut tree by Hydro One
 
Members of the public are invited to submit their written comments by June 21, 2010 to the contact person listed in this notice.

Rationale for Exemption to Public Comment:
 
This proposal is not prescribed by Ontario Regulation 73/94 under the Environmental Bill of Rights as a classified proposal for an instrument.

Ministry of Natural Resources (MNR) is voluntarily posting this notice to advise the public of the proposal and to invite the public to submit written comments on this proposal to the contact person identified in this notice.

Description:

Hydro One (applicant) has applied for a permit for the removal of one Butternut tree (Juglans cinerea) for the purpose of clearing and maintaining a transmission corridor beneath a transmission line located in Ottawa, Ontario.

Butternut is listed on the Species at Risk in Ontario List, in Ontario Regulation 230/08 under the Endangered Species Act, 2007 (ESA), as an endangered species. Clause 9 (1)(a) of the ESA, provides that no person shall kill, harm, harass, capture or take a living member of a species that is listed on the Species at Risk in Ontario List as an extirpated, endangered or threatened species.

The health of the Butternut tree at this site has been assessed by a qualified Butternut Health Assessor and was determined not to be severely affected by Butternut Canker and therefore retainable. The identification of retainable trees is based on an assessment of crown dieback and the coverage of the stem and root flare by cankers conducted by a qualified Butternut Health Assessor. Retainable trees do not qualify for the exemption in section 5 of Ontario Regulation 242/08 under the ESA and can not be removed without an authorization. The retainable Butternut tree within this project area would be removed.

The Minister may issue a permit to an applicant under clause 17(2)(c) of the ESA that authorizes the person to engage in an activity that would otherwise be prohibited by section 9 or 10 of the ESA if the Minister is of the opinion that the main purpose of the activity authorized by the permit is not to assist in the protection or recovery of the species specified in the permit, but,

(i) the Minister is of the opinion that an overall benefit to the species will be achieved within a reasonable time through requirements imposed by conditions of the permit,

(ii) the Minister is of the opinion that reasonable alternatives have been considered, including alternatives that would not adversely affect the species, and the best alternative has been adopted, and

(iii) the Minister is of the opinion that reasonable steps to minimize adverse effects on individual members of the species are required by conditions of the permit;

The options of leaving the tree in its current location and avoiding or transplanting it have been examined. The location of the Butternut tree would cause it to come in contact with overhead hydro-electric lines and potentially cause a future safety risk. Transplanting the tree has been considered as an option, but the tree is too large to be transplanted successfully.

An overall benefit could be achieved for Butternut by planting and tending replacement trees. Based on the size of the Butternut tree threatened with removal (i.e. diameter at breast height), the Forest Gene Conservation Association guidelines recommend that the applicant plant 5 seedlings from a local seed source in suitable sites. The ratio of five seedlings planted per tree removed is intended to provide an overall increase to the seed production capacity of the species. Establishing and tending to these seedlings in a protected area will result in a net increase in the local reproductive potential for the species.

To achieve overall benefit for Butternut, the applicant is proposing to plant a total of five new Butternut seedlings in Coronation Park, owned by the City of Ottawa. Hydro One would plant, tend and monitor the seedlings for a period of five years from the time of planting. Under the supervision of a qualified professional biologist or forester, the five Butternut trees would be planted in locations suitable to support Butternut. Tending and monitoring of the Butternut seedlings on site would take place over a five year period to ensure that at least half of the planted trees will be alive (e.g., a minimum of three Butternut trees at the end of five years). These newly planted Butternut trees will receive protection under the ESA.

Purpose of the Notice:

The purpose of this notice is to ensure that the public is made aware of, and given an opportunity to comment on, the proposal, including the proposed conditions and outcomes of the permit for which the Hydro One is applying in order to remove one Butternut tree. The proposed permit would be issued under clause 17(2)(c) of the ESA.

Decision:

This notice will be updated when more information is available.

Other Information:

Please email comments to Esa.permits.agreements@ontario.ca and quote the registry number in the subject line.

The following web-links provide additional information about this notice:

Endangered Species Act, 2007 (Section 9 and 17 are sections of the Endangered Species Act that are referred to in this posting)

Butternut Tree Regulation  Section 5 of general regulation 242/08 addresses the exemptions pertaining to Butternut