Levelling Farm Land – Are There Regulatory Restrictions?

Levelling of farm land through excavation of subsoils or importation of fill is commonly undertaken by farmers to improve productivity. What regulatory authorization may be required before undertaking such work? Two recent cases have both concluded that provincial or municipal restrictions may apply to such activities.

In a recent decision of the Ontario Court of Appeal, the court reversed decisions of a trial and lower appellate court in holding that a ministerial exemption from the Ministry of Natural Resources is required under the provisions of the Aggregates Resources Act (ARA) before undertaking agricultural soil levelling operations involving topsoil removal, excavation and removal of subsoil, and restoration of topsoil to render lands arable for farming. The court rejected the conclusion of the lower courts that it was not the purpose of the ARA to regulate the type of activity where “a farmer was simply trying to improve his farmland to better grow crops.” In the case under consideration by the Court of Appeal, a municipal by-law expressly allowed above grade levelling of agricultural land to extend agricultural uses notwithstanding the definition of a pit for the purposes of the Aggregates Resources Act as “land … from which unconsolidated aggregate is being or has been excavated, and has not been rehabilitated …” Despite the provisions of this municipal by-law, the appeal court stated:

“It is clear that what the respondent was doing was excavating a pit within the grammatical and ordinary sense of the definition in the ARA. The respondent argues that the ARA should not be interpreted to include pits that are being excavated and that will be rehabilitated in order to improve farmland and not for the purpose of commercial aggregate production. The problem with that interpretation is that [the Act] provides a specific ministerial exemption where the primary purpose of the excavation is not for the production of aggregate. There would be no need for such an exemption if the licensing requirement did not apply … to the particular excavation. Moreover, the intention to rehabilitate the excavation in the future does not take the operation out of the definition of a ‘pit’. That definition covers land that ‘has not been rehabilitated’ and [the Act] requires all licensees and permitees to rehabilitate the site in accordance with the Act and regulations.

There is no specified exemption for farm betterment projects. This is another indication within the statute that there is no intent to exempt such projects from the licensing requirements of the ARA.”

Similarly, the Supreme Court of Ontario has recently granted a municipality injunctive relief to prohibit landowners from depositing fill on their land for the purpose of enhancing their ability to farm the property. In that case, the municipal by-law restricting fill deposit expressly excepted fill deposited in accordance with “normal farm practice”. The landowners asserted that the purpose of the fill deposit was to increase the arable amount of land that can be used for cultivation purposes. The court concluded:

“Based on the evidence that was placed before this court I am not satisfied that the depositing of the quantity of fill that has been observed, and specifically the intent of the respondents to ultimately deposit upwards of 30,000 truck loads of fill, in any way remotely resembles a normal farming operation … The depositing of fill in the quantities evidenced to date on the property and the additional fill which the respondents seek to continue to deposit are not the operations of a farming operation but rather are akin to a commercial fill operation.”

The levelling of farm land through subsoil excavation or fill import may be subject to the requirement for regulatory approvals. Even if undertaken for the purpose of increasing productivity, provincial or municipal restrictions may apply.

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