Normal, not nuisance
Spreading manure produces a widespread odour; the operation of farm machinery is often noisy; and ploughing creates dust. The use of property in a way which interferes with a neighbour’s use and enjoyment of his property is, at law, a nuisance. What protection does a farmer have against the possible claims of those around him that his farm operations are interfering with his neighbours’ use and enjoyment of their property?
The Farm Practices Protection Act provides that, as long as a farmer is not in violation of environmental protection legislation and land use control restrictions, the farmer cannot be liable in nuisance to any person for any odour, noise or dust resulting from “a normal farm practice”. In addition, a farmer cannot be restrained by court order, if the odour, noise or dust results from “a normal farm practice”.
What is “a normal farm practice”? The Act defines “a normal farm practice” to be a practice that is conducted in a manner consistent with proper and accepted customs and standards as established by other farmers under similar circumstances. Thus, where the odour, noise or dust is no more than that which results from customary farm operation, the farmer will have no liability to his neighbours.
In the event of a dispute arising concerning whether or not odour, noise or dust is greater than would usually be expected, there is a Provincial Farm Practices Protection Board which is responsible for making this determination. Upon a complaint being filed with the Board, the Board must assess whether the complaint is trivial, or frivolous or vexatious, and whether the complainant has a sufficient personal interest in the subject matter of the complaint. If the Board is satisfied that the complaint should proceed, the Board is then required to hold a hearing to decide if the odour, noise or dust is no more than might be expected. If the odour, noise or dust exceeds that which is customary, the Board may order the farmer to cease the operation producing the odour, noise or dust, or modify the manner in which the operation is carried out.
With increasing encroachment of urbanization into farm communities, there is increasing conflict between traditional and new land uses. The Farm Practices Protection Act recognizes that the creation of odour, noise and dust is often unavoidable in the operation of a farm. Such by-products of the farm operation which, in other circumstances, might constitute a nuisance are necessary and incidental to the production of agricultural products. Provided that the farmer’s practices are consistent with the standard in the agricultural industry, the farmer will be protected from liability.