Denese Espeut Post
Farming with non-farm neighbours next door can result in challenges for farmers. There has been an increase in the number of residential neighbourhoods popping up next to farming acreages in the last 25 years. This is likely due, in part, to BC’s significant population growth during this time period. Growing population and high housing prices have increased the number of neighbourhoods adjacent to farm and rural areas.
This trend has led to both anticipated and unanticipated results for farmers, such as more traffic on rural roads, trespass across private farm property and theft of crops. There can also be unanticipated results for non-farmers living nearby a farm such as noise, odour, dust or other disturbances resulting from farming activities. Sometimes conflicts between farmers and their non-farm neighbours have resulted in legal proceedings. As a result of such proceedings, we can get an idea of the standards that may apply to relations between farmers and their non-farm neighbours on various matters such as farm animal noises.
Farmers are protected from liability which may arise from their farm operations under the Farm Practices Protection Act, also known as the Right to Farm Act. This means that a farmer is not liable in nuisance to any other person for an “odour, noise, dust or other disturbance resulting from the farm operation”. To be eligible for this protection, a farmer must be carrying out a “normal farm practice” in the agriculture land reserve or other specified areas set out in the Act. As a farmer, you will want to ensure you are engaged in a ‘normal farm practice’ which means a farm business operated in a manner consistent with the proper and accepted customs and standards followed by similar farm businesses under similar circumstances.
If a non-farm neighbour, or any other person, feels distressed about an aspect of a farm operation, they can file a complaint with the Farm Industry Review Board (“FIRB”). The FIRB is a specialized tribunal which has the authority to hear complaints regarding dust, odour, noise or other disturbances resulting from farm activities. This board decides whether the particular farming activity which is being complained about is part of a “normal farm practice”. If in the opinion of the FIRB an activity is not a part of a normal farm activity, the FIRB must order the farmer to stop that practice or modify that practice so it is consistent with normal farm practice.
One example of such a case is Feehan v Ferguson. Mr. Feehan complained of disturbances from Mr. Ferguson’s poultry, specifically the noises of Mr. Ferguson’s guinea fowl. Mr. Ferguson owned a farm specializing in greenhouse vegetable production, but also raised lamb and poultry and had various animals including the guinea fowl. Mr. Ferguson disputed the complaint. According to expert evidence, Mr. Ferguson’s guinea fowl contributed to the farm operation as a “predator alarm and deterrent.” The expert evidence also concluded that most of the farm practices carried out by Mr. Ferguson fell “within the range of commonly accepted practices of farms of similar size and form.” The FIRB ultimately concluded that Mr. Ferguson was carrying on a farm business and using normal practices for a small mixed farm. The FIRB further noted that based upon the evidence before the tribunal, Mr. Ferguson carried out “good farm management” and was “using best practices for a small, integrated farm”. The FIRB dismissed Mr. Feehan’s complaint.
As noted by the FIRB in Feehan v. Ferguson, “people who are buying property in Agriculture Land Reserve need to understand that agriculture is the primary activity of the area and that agriculture involves animals and animal sounds. It may also involve smells and dust from the operation.
Living within the ALR also means that what is a sheep or llama farm today may become a chicken or hog farm tomorrow. This commonly happens in farming areas when circumstances change. Unfortunately, the seeming tranquility of rural areas is attractive to families until they experience the realities of farming, at which time they often feel betrayed. The Farm Practices Protection (Right to Farm) Act was put into place to provide a balanced approach to give neighbours a venue to complain when aggrieved by farming practices. At the same time, it protects farmers from these complaints when they are carrying on “normal farm practices” and taking reasonable actions to mitigate neighbour complaints.”
If you have concerns about a potential complaint about your non-farm neighbour or questions about whether one of your farming activities fall within the meaning of a “normal farm practice”, see your legal advisor.
By Sukh Kaile (Articled Student) and Denese Espeut -Post
Denese Espeut-Post is an Okanagan-based lawyer and owns Avery Law Office. Her primary areas of practice include wine and business law. www.averylawoffice.ca