An appeal was allowed from a Divisional Court decision concluding that the Normal Farm Practices Protection Board (the “Board”) lacked jurisdiction to determine whether a zoning bylaw restricted a normal farming practice. The Divisional Court erred in adopting an interpretation of the words “municipal bylaw” that excluded a zoning bylaw. Therefore, the Board had jurisdiction to determine the issue. However, the Board’s decision was unreasonable, as it did not comply with a provincial policy statement regarding the required distances between farm operations and their neighbours.

28. November 2006 0

Administrative law – Municipalities – By-laws – Planning and zoning – Permits and licences – Variance orders – Decisions of administrative tribunals – Farm Practices Protection Board – Government policies – Judicial review – Jurisdiction – Standard of review – Reasonableness simpliciter

Hill and Hill Farms Ltd. v. Bluewater (Municipality), [2006] O.J. No. 3674, Ontario Court of Appeal, September 18, 2006, K.M. Weiler, R.A. Blair and P.S. Rouleau JJ.A.

The Applicants, Hill and Hill Farms owned and operated a pig farm located next to a community centre. Hill applied for a building permit to increase the capacity of the farm. He also applied for minor variances to accommodate proposed construction. Hill sought relief from the zoning bylaw requiring a minimum distance of separation between his farm and his neighbours. The Municipality dismissed Hill’s application for variance of the zoning bylaw. Hill then applied to the Board on the basis that his proposed expansion was a normal farm practice not subject to the bylaw. The Board held that Hill’s proposed operation would be a normal farm practice if he were relieved of the distance requirement and, in effect, held that he did not have to comply with the bylaw. The Municipality appealed the Board’s decision to the Divisional Court. The Divisional Court concluded that the Board lacked jurisdiction to determine matters pertaining to land subject to zoning bylaws.

The Appeal Court held that the Divisional Court erred in adopting an interpretation of the words “municipal bylaw”, that excluded a zoning bylaw. Therefore, the Board had jurisdiction to determine the issue of whether the zoning bylaw restricted a normal farming practice.

The Court then reviewed the decision of the Board on a standard of reasonableness. The Court noted that one of the four factors the Board was required to consider in determining whether a practice was a normal farm practice was whether the bylaw reflected a provincial interest as set out in a policy statement. The Board held that its decision did not contradict the provincial policy statements issued under section 3 of the Planning Act. The provincial policy statements required that new or expanding livestock facilities comply with the minimum distances separation formula. Inasmuch as the Board’s decision cut the required minimum distance separating Hill’s proposed operation from the neighbouring properties in half, the Board’s conclusion that its decision was in compliance with the provincial policy statements was untenable and unreasonable.

In addition, under section 9 of the Farming and Food Production Protection Act, the Board’s decisions must be consistent with the Minister of Agriculture’s directives, guidelines or policy statements. The exercise of the Board’s power was therefore limited by this section. The Board’s decision that Hill need not comply with the minimum distance specified in the bylaw for siting his barns was not consistent with the Minimum Distance Separation Guidelines. The Board’s decision was therefore unreasonable and could not stand.

The appeal was dismissed.

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