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Town loses appeal to overturn Farm Practices decision, but secures more input

Posted January 29, 2018

An Ontario Divisional Court has ordered New Tecumseth to pay $15,000 in fixed costs to Stan Snieg following a "divided success" appeal of a 2016 Normal Farm Practices Protection Board (NFPPB) decision permitting the importation of approximately 87,000 cubic metres of fill for his proposed apple orchard at 2881 Sideroad 20.

Mr. Snieg's plan is to use approximately 19 acres of his property as an apple orchard featuring of about 3,000 trees of six to eight different varieties. The fill is to aid in "good water drainage." His neighbours complained to the Town about the dump trucks, noise, and dust, as well as impacts on their properties from the changes in elevation. The Town's position was "that this cannot be a normal farm practice because it is, in fact, a commercial fill operation" and Mr. Sneig was not a farmer.

In its September 27, 2016 ruling, the NFPPB sided with Mr. Snieg's position noting "the proposed farm practice will be a normal farm practice" but attached to several conditions, including retaining the services of a "qualified person .... to undertake an assessment to establish the current site condition of the soil and ground water to ensure the site is appropriate to be used as a Receiving Site in accordance with the MOECC - Management of Excess Soils - A Guide for Best Management Practices."

The Town's appeal suggested the NFPPB erred on four separate issues:

  • 1) by its weighing of the evidence and mainly the expert evidence;
  • 2) by failing to consider evidence supporting a finding that the fill application was for a commercial, not an agricultural, operation;
  • 3) by its interpretation of the FFPPA, finding that fill importation was a "normal farm practice" and finding that fill importation met the FFPPA's definition of "agricultural operation"; and,
  • 4) by imposing a fill management plan on the Town without jurisdiction to do so.

In an order released Jan. 26 following a hearing earlier the same week held in Oshawa, delivered orally by Justice J Matheson, it concluded "the findings made by the Board were open to it on all of the evidence before it, put forward during a five-day hearing, and that no reviewable error has been demonstrated by the Town."

The Town, represented by Colleen Butler of Feehely and Gastaldi, did secure a consolation on the fourth issue, which the Court deemed "unreasonable" and amended the Board's order to include the following condition:

"The Fill Management Plan must be submitted to the Chief Building Official for the Town of New Tecumseth within 30 days after its completion. Within 90 days of receipt of the Plan, the Town shall provide any comments to the QP and the applicant. The QP shall consider those comments and make any amendments the QP concludes ought to be made to the Plan. The revised Plan, or notice that no changes were made, shall be given to the Town and the applicant promptly after the above process is complete."

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All stories, unless otherwise noted,
by Tony Veltri