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Tuesday, October 30, 2012
100,000 Hits!
Law of the Lands - Farm, Energy & Enviro Law has reached the 100,000 hit mark! Thanks to all my readers.
Wednesday, October 24, 2012
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Landowner has to pay engineer's cost for withdrawn Drainage Act petition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.
Monday, October 15, 2012
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:
Read the decision at: Organix Matters Inc. v. Director of Employment Standards.
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.
Thursday, October 4, 2012
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.
2.3.3.1 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.
2.3.4.1 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).
2.3.5.1 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.
Friday, September 28, 2012
Drainage Tribunal decides it has no jurisdiction to rule on prescriptive easement rights
In a recent drainage appeal case, the Agriculture, Food and Rural Affairs Tribunal has decided that it does not have jurisdiction to determine property and prescriptive rights; this jurisdiction rests exclusively with the Ontario Superior Court of Justice pursuant to Sections 97 and 100 of the Courts of Justice Act and, on a limited basis, with the Director of Titles on an application to convert a property to Land Titles Absolute under the Land Titles Act.
One of the appellants in the drainage case alleged that he had acquired a prescriptive right in the form of an easement. The easement, it was alleged, allowed for the construction of a built up roadway crossing of the natural watercourse on the appellant's property. The building up dammed the water, causing drainage problems.
The Tribunal noted that it is a creature of statute (a creation of the Province) and has no inherent jurisdiction or authority. It's only jurisdiction in this case arose from the Drainage Act and, in the absence of a decision of the Superior Court determining the prescriptive rights alleged (or in the absence of title documents demonstrating those rights), the Tribunal has no jurisdiction to determine whether a prescriptive right exists.
Read the decision at: David Adams Municipal Drain.
One of the appellants in the drainage case alleged that he had acquired a prescriptive right in the form of an easement. The easement, it was alleged, allowed for the construction of a built up roadway crossing of the natural watercourse on the appellant's property. The building up dammed the water, causing drainage problems.
The Tribunal noted that it is a creature of statute (a creation of the Province) and has no inherent jurisdiction or authority. It's only jurisdiction in this case arose from the Drainage Act and, in the absence of a decision of the Superior Court determining the prescriptive rights alleged (or in the absence of title documents demonstrating those rights), the Tribunal has no jurisdiction to determine whether a prescriptive right exists.
Read the decision at: David Adams Municipal Drain.
Wednesday, September 26, 2012
Court rules that admission that right-of-way exists cannot be withdrawn
The owners of a large farm property in the Cookstown, ON area applied to the Court for an order that would have the effect of withdrawing an admission they made in previous court proceedings that their property is subject to a right of way (a narrow strip of land measuring 60 m x 20 m). As the judge explained in his decision on the motion before him:
In spite of that, the applicant owners now argued that, even though a right of way was created in 1974, the chain of title was broken such that the right of way was not validly transferred to the current owners of the "dominant tenement" (i.e. the land benefitting from the right of way).
In deciding the issue Justice Edwards stated, "An admission made in a pleading or an affidavit is something to be relied upon not only by the opposite party but by the court. An admission may therefore only be withdrawn in very limited circumstances." Whether to allow an admission to be withdrawn is a matter of discretion for the Court; in this case, Justice Edwards ruled that the admission could not be withdrawn. Among the reasons given for this decision was that, "it would be contrary to public policy to allow a party now to come before this court to withdraw an admission that has been made in three separate actions, one of which has been disposed of by settlement and the other one of which has been adjudicated upon by McIssac J."
Justice Edwards continued:
Now the applicants seek an order that would have the effect of withdrawing their admission that there is a right of way – precisely the same right of way that the applicants admitted existed, and upon which this court and the Court of Appeal has already rendered a decision. Should this court exercise its discretion to allow for such an amendment in the face of these facts?The parties to the application had been parties to three previous actions, one of which proceeded to trial and then an appeal. Justice Edwards noted that, "there can be no doubt then that in all three actions the applicants have accepted and asserted the existence of the right of way."
In spite of that, the applicant owners now argued that, even though a right of way was created in 1974, the chain of title was broken such that the right of way was not validly transferred to the current owners of the "dominant tenement" (i.e. the land benefitting from the right of way).
In deciding the issue Justice Edwards stated, "An admission made in a pleading or an affidavit is something to be relied upon not only by the opposite party but by the court. An admission may therefore only be withdrawn in very limited circumstances." Whether to allow an admission to be withdrawn is a matter of discretion for the Court; in this case, Justice Edwards ruled that the admission could not be withdrawn. Among the reasons given for this decision was that, "it would be contrary to public policy to allow a party now to come before this court to withdraw an admission that has been made in three separate actions, one of which has been disposed of by settlement and the other one of which has been adjudicated upon by McIssac J."
Justice Edwards continued:
Litigants are entitled to assume that once there has been a decision of this court, particularly one which has proceeded so far as the Court of Appeal, that such a decision is final and that the facts upon which that decision is based are also deemed to be final. Apart from the question as to whether or not there is prejudice, which in my opinion there clearly is, public policy dictates that the withdrawal of the admission now sought by the applicants should not be granted. The applicants’ motion is therefore dismissed.Read the decision at: Pagliuca et al. v. Paolini Supermarket Limited.
Wednesday, September 19, 2012
Ontario: Licensing Private Natural Gas Wells
The Ontario Ministry of Natural Resources (MNR) has now released the final version of its "Approach for Licensing Private Gas Wells". This internal operating policy directive establishes the criteria by which operating, pre-existing private gas wells can become licensed by the MNR under the Oil, Gas and Salt Resources Act. The requirement for a license came into effect for all wells, private or commercial, in June 1997. However, many private wells were not licensed.
The policy directive clarifies the terms and establishes minimum guidelines for licensing pre-existing private wells. According to MNR, the policy addresses potential safety and environmental risks posed by those wells, while recognizing the benefits of having private well operators come forward to obtain a well licence. Read the policy directive at: Licensing Existing Private Natural Gas Wells.
On the Environmental Bill of Rights Registry, the MNR has also posted a summary of various comments it received during the review process and its responses to these comments:
1. “Private Use” of Gas
Comment: Natural gas from these wells is often consumed by someone on a property other than the one on which the gas well is located. Such a transfer of gas, or the transfer of a gas well itself in some cases, may have been captured in a written agreement between the two parties who believe they are acting within the law. The policy describes any sale of gas as disqualifying the well from being considered as “private use”. The suggestion was made to allow flexibility to recognize these ‘good faith’ agreements as being within the definition of private use.
MNR Response: To accommodate these types of agreements, the interpretation of “private use” has been revised to include persons with a legal interest in the well. MNR recognizes that such agreements exist and will have various levels of complexity and sophistication. Agreements will be examined on a case-by-case basis to determine if there is substantial evidence to support the legitimate use of gas by someone other than the well owner.
2. Annual Consumption of Gas
Comment: The policy requires that the annual consumption of gas from a well be less than 10,000 m3 for it to be considered a private well. Some respondents commented that this threshold should be removed from the policy altogether. Others commented that the limit was too low and should be increased to accommodate farmers who use the gas in the operation of their farm (for drying crops, heating outbuildings, etc).
MNR Response: The annual consumption limit has been removed from the policy.
3. Adjacent Lands
Comment: The policy allows for use of gas on “adjacent” properties so long as those properties are owned by the well operator. The meaning of the term “adjacent” needs to be clarified.
MNR Response: The term adjacent has been clarified in the policy to mean “two properties that share a common boundary.”
4. Pipelines Crossings Right-of-Ways
Comment: Transmission of gas through a pipeline crossing or alongside a municipal road allowance or right-of-way disqualifies the well for licensing unless the pipeline is inspected by the Technical Standards and Safety Authority (TSSA) and authorized by the municipality. A number of respondents were uncomfortable with the idea that TSSA might be contacted by MNR, because TSSA operates on a cost-recovery basis and could cause undue hardship for well owners.
MNR Response: MNR is responsible only for the licensing of the gas well. The intention of this requirement was to ensure well owners recognized that MNR’s gas well licence may not be the only approval needed for the operation of a private well. The wording in the policy has been revised to make clear that it is the responsibility of the well owner to obtain any other necessary approvals that may be required to use and/or transmit gas from a private well. The onus to seek other approvals rests solely with the well owner or operator and will not be a condition of licensing.
5. Qualified Persons
Comment: The list of Qualified Persons in the policy should be expanded to include technicians and technologists, not just engineers, geoscientists, and Examiners. Respondents pointed out that the cost of using an engineer, for example, may be prohibitive.
MNR Response: The policy is revised to state that other persons not already qualified as Class II Examiners may seek to qualify as a Class II Examiner and thereby become a Qualified Person. This would include someone certified as an engineering technologist (C.E.T.) or certified technician (C. Tech) with the Ontario Association of Certified Engineering Technicians and Technologists.
6. Cementing Around the Wellhead
Comment: Generally respondents felt that the requirement to cement around the wellhead was not practical and should be removed from the policy. The freezing and thawing of the ground around the wellhead will cause the cement to fracture and break apart, defeating its intended purpose. In some locales, the ground around a well is made of hard clay and is already impervious to water.
MNR Response: MNR has removed the requirement to cement around the wellhead from the minimum Acceptable Well Conditions described in the policy. However, it is still required that the ground around the wellhead be sloped away in all directions to prevent the pooling of water in the vicinity of the well.
7. Setbacks
Comment: Setbacks from buildings and other infrastructure were the subject of many responses. Some pointed to the fact that many wells had been encroached upon by development (i.e. were there prior to the infrastructure, not vice-versa) and therefore the setbacks unfairly penalize the well owners. The 30 metre (m) setback from a property boundary was the subject of most comments. People noted that many wells were purposefully placed near a property boundary to keep them from obstructing farming operations. Others remarked that utility installations were often located within 10m of a roadway and felt that private gas wells were being unfairly penalized by requiring a 10m setback from the road allowance.
MNR Response: MNR has made the following changes to the setbacks in the policy:
• The 30m setback from a property boundary has been removed.
• Reduced the setback from road allowance to 5m (from 10m).
• Removed the 50m setback from Great Lakes and tributaries. A 15m setback will apply to water bodies.
Other setbacks, namely the 30m setback from private residences and the 75m setback from public buildings, remain unchanged. However, the ministry will consider a reduced separation distance if it is supported by the opinion of a professional engineer hired by the well owner.
8. Term of Licence
Comment: A number of respondents did not agree with limiting the term of a private gas well licence to 10 years. Some thought it should be longer than 10 years; others thought that there term should not be limited at all. There was a general concern that the licensing conditions will be different in 10 years time and wells that had previously received a private licence would no longer qualify.
MNR Response: The policy has been changed so that licences will be eligible for a 10-year renewal upon expiry. The 10-year renewal is subject to an evaluation confirming that the well continues to meet the requirements expressed in the policy.
9. Transfer of Licence
Comment: Most respondents agreed that a private well licence should be transferable to a new land owner. One person suggested that the requirement for an evaluation prior to transfer be waived if the well had recently been evaluated.
MNR Response: The well licence will be transferable without the requirement for a new evaluation if the well owner can provide proof that the well had been evaluated within the last year.
10. Safeguards
Comment: The policy requires that methane detectors be installed in buildings being supplied gas from a private well and that barriers be built around a well with the potential to be struck by a vehicle. Although several respondents recognized methane detectors would improve safety for those using the gas, it was felt by some that that it was not within the MNR’s authority to establish such a requirement. Several respondents supported the requirement for barriers to protect the well where there was potential for a vehicle to collide with the well.
MNR Response: The safeguard section has been reworded to recommend the installation of methane detectors and vehicular barriers as a “best practice”.
11. Incentives
Comment: Many respondents who commented on the proposed incentives thought that the MNR should pay the entire cost of upgrading or decommissioning a well. One commentor suggested that the MNR pay for half (50%) of the well operator’s cost to become compliant. Another commentor did not support the use of government resources to upgrade or decommission private wells.
MNR Response: The MNR has decided to proceed with incentives to help well operators meet the requirements established by the policy.
The policy directive clarifies the terms and establishes minimum guidelines for licensing pre-existing private wells. According to MNR, the policy addresses potential safety and environmental risks posed by those wells, while recognizing the benefits of having private well operators come forward to obtain a well licence. Read the policy directive at: Licensing Existing Private Natural Gas Wells.
On the Environmental Bill of Rights Registry, the MNR has also posted a summary of various comments it received during the review process and its responses to these comments:
1. “Private Use” of Gas
Comment: Natural gas from these wells is often consumed by someone on a property other than the one on which the gas well is located. Such a transfer of gas, or the transfer of a gas well itself in some cases, may have been captured in a written agreement between the two parties who believe they are acting within the law. The policy describes any sale of gas as disqualifying the well from being considered as “private use”. The suggestion was made to allow flexibility to recognize these ‘good faith’ agreements as being within the definition of private use.
MNR Response: To accommodate these types of agreements, the interpretation of “private use” has been revised to include persons with a legal interest in the well. MNR recognizes that such agreements exist and will have various levels of complexity and sophistication. Agreements will be examined on a case-by-case basis to determine if there is substantial evidence to support the legitimate use of gas by someone other than the well owner.
2. Annual Consumption of Gas
Comment: The policy requires that the annual consumption of gas from a well be less than 10,000 m3 for it to be considered a private well. Some respondents commented that this threshold should be removed from the policy altogether. Others commented that the limit was too low and should be increased to accommodate farmers who use the gas in the operation of their farm (for drying crops, heating outbuildings, etc).
MNR Response: The annual consumption limit has been removed from the policy.
3. Adjacent Lands
Comment: The policy allows for use of gas on “adjacent” properties so long as those properties are owned by the well operator. The meaning of the term “adjacent” needs to be clarified.
MNR Response: The term adjacent has been clarified in the policy to mean “two properties that share a common boundary.”
4. Pipelines Crossings Right-of-Ways
Comment: Transmission of gas through a pipeline crossing or alongside a municipal road allowance or right-of-way disqualifies the well for licensing unless the pipeline is inspected by the Technical Standards and Safety Authority (TSSA) and authorized by the municipality. A number of respondents were uncomfortable with the idea that TSSA might be contacted by MNR, because TSSA operates on a cost-recovery basis and could cause undue hardship for well owners.
MNR Response: MNR is responsible only for the licensing of the gas well. The intention of this requirement was to ensure well owners recognized that MNR’s gas well licence may not be the only approval needed for the operation of a private well. The wording in the policy has been revised to make clear that it is the responsibility of the well owner to obtain any other necessary approvals that may be required to use and/or transmit gas from a private well. The onus to seek other approvals rests solely with the well owner or operator and will not be a condition of licensing.
5. Qualified Persons
Comment: The list of Qualified Persons in the policy should be expanded to include technicians and technologists, not just engineers, geoscientists, and Examiners. Respondents pointed out that the cost of using an engineer, for example, may be prohibitive.
MNR Response: The policy is revised to state that other persons not already qualified as Class II Examiners may seek to qualify as a Class II Examiner and thereby become a Qualified Person. This would include someone certified as an engineering technologist (C.E.T.) or certified technician (C. Tech) with the Ontario Association of Certified Engineering Technicians and Technologists.
6. Cementing Around the Wellhead
Comment: Generally respondents felt that the requirement to cement around the wellhead was not practical and should be removed from the policy. The freezing and thawing of the ground around the wellhead will cause the cement to fracture and break apart, defeating its intended purpose. In some locales, the ground around a well is made of hard clay and is already impervious to water.
MNR Response: MNR has removed the requirement to cement around the wellhead from the minimum Acceptable Well Conditions described in the policy. However, it is still required that the ground around the wellhead be sloped away in all directions to prevent the pooling of water in the vicinity of the well.
7. Setbacks
Comment: Setbacks from buildings and other infrastructure were the subject of many responses. Some pointed to the fact that many wells had been encroached upon by development (i.e. were there prior to the infrastructure, not vice-versa) and therefore the setbacks unfairly penalize the well owners. The 30 metre (m) setback from a property boundary was the subject of most comments. People noted that many wells were purposefully placed near a property boundary to keep them from obstructing farming operations. Others remarked that utility installations were often located within 10m of a roadway and felt that private gas wells were being unfairly penalized by requiring a 10m setback from the road allowance.
MNR Response: MNR has made the following changes to the setbacks in the policy:
• The 30m setback from a property boundary has been removed.
• Reduced the setback from road allowance to 5m (from 10m).
• Removed the 50m setback from Great Lakes and tributaries. A 15m setback will apply to water bodies.
Other setbacks, namely the 30m setback from private residences and the 75m setback from public buildings, remain unchanged. However, the ministry will consider a reduced separation distance if it is supported by the opinion of a professional engineer hired by the well owner.
8. Term of Licence
Comment: A number of respondents did not agree with limiting the term of a private gas well licence to 10 years. Some thought it should be longer than 10 years; others thought that there term should not be limited at all. There was a general concern that the licensing conditions will be different in 10 years time and wells that had previously received a private licence would no longer qualify.
MNR Response: The policy has been changed so that licences will be eligible for a 10-year renewal upon expiry. The 10-year renewal is subject to an evaluation confirming that the well continues to meet the requirements expressed in the policy.
9. Transfer of Licence
Comment: Most respondents agreed that a private well licence should be transferable to a new land owner. One person suggested that the requirement for an evaluation prior to transfer be waived if the well had recently been evaluated.
MNR Response: The well licence will be transferable without the requirement for a new evaluation if the well owner can provide proof that the well had been evaluated within the last year.
10. Safeguards
Comment: The policy requires that methane detectors be installed in buildings being supplied gas from a private well and that barriers be built around a well with the potential to be struck by a vehicle. Although several respondents recognized methane detectors would improve safety for those using the gas, it was felt by some that that it was not within the MNR’s authority to establish such a requirement. Several respondents supported the requirement for barriers to protect the well where there was potential for a vehicle to collide with the well.
MNR Response: The safeguard section has been reworded to recommend the installation of methane detectors and vehicular barriers as a “best practice”.
11. Incentives
Comment: Many respondents who commented on the proposed incentives thought that the MNR should pay the entire cost of upgrading or decommissioning a well. One commentor suggested that the MNR pay for half (50%) of the well operator’s cost to become compliant. Another commentor did not support the use of government resources to upgrade or decommission private wells.
MNR Response: The MNR has decided to proceed with incentives to help well operators meet the requirements established by the policy.
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