When Is “Farming” not “Normal Farm Practice”?
AgriLaw: September 2010
The Farming and Food Production Protection Act (FFPPA) provides that “No municipal by-law applies to restrict a normal farm practice carried on as part of an agricultural operation”. Can this prohibition on use of municipal by-laws to restrict farm practices be used by a farmer to circumvent land use restrictions in municipal zoning by-laws?
In a recent decision of the Ontario Divisional Court, the court considered an appeal from the Normal Farm Practices Protection Board which exempted a farmer from the application of a municipal zoning by-law prohibiting farming or growing crops on industrial zoned lands. The lands in issue had previously been used as a petroleum refinery and were subject to an order of the Minister of Environment restricting use of the lands for growth of animal fodder. After harvesting alternate year crops of winter wheat and barley, a tenant farmer of these lands was charged with contravention of the municipal by-law. The Board then granted the farmer’s application exempting it from the by-law use restriction.
The appellate court allowed the municipality’s appeal and dismissed the farmer’s application. The court concluded that the farmer’s conduct of its agricultural operation could not itself constitute a normal farm practice eligible for exemption from municipal by-law land use restrictions. The court stated:
“In my view, ‘farming’ can not, as a matter of law, be what is meant in the Act by a normal farm practice. Such an approach would conflate the requirement that a normal farm practice be restricted by the by-law, and the requirement that the normal farm practice be carried on as part of an agricultural operation. Normal farm practices are ‘farming techniques and methods that are of a requisite standard or established and followed by similar agricultural operations’ … Farming itself is obviously not a farm practice. Nor is cash cropping or assessment farming. Cash cropping does no more than identify the category of agricultural operation carried on by (the farmer): farming crops for sale. Assessment farming simply describes the reason that [the farmer] is engaged in farming at this location. These terms do no more than describe the use to which the land is being put. In no sense do they describe normal farm practices being carried on by [the farmer] as part of an agricultural operation.”
Evidence in the case established that the landowner paid the tenant to farm the land in an attempt to obtain the benefit of favourable property tax treatments accorded to farmland. The tenant asserted that its activities, described as “assessment farming” were entirely permissible, even in the face of zoning by-laws that preclude farming. In refusing to extend to the tenant the statutory protection against restriction of farm practices, the court commented:
“[The farmer] is attempting to use [the statutory prohibition] as a sword, enabling it to introduce a new farming use to land that has validly been zoned industrial. To the extent that the majority of the Board may have accepted [the tenant’s] approach to this issue, their decision reflects a fundamental misunderstanding of [the Act]. In short, it was wrong in law. Regardless of whether or not [the tenant] were farmers, or were carrying on an agricultural operation, its application should be have been dismissed”.
The FFPPA may be used by farmers to obtain relief from restrictions in municipal by-laws which purport to restrict normal farm practices. However, this protection will not be available to legitimize agricultural operations which contravene land use restrictions in municipal zoning by-laws.