Original Published on Aug 24, 2022 at 14:26
By Lori Thompson, Local Journalism Initiative Reporter
A dispute between neighbours that began back in 2015 has proved costly in more ways than just dollars. Roy Bayer and his wife Doris were respondents in a hearing about normal farm practices. In an August 16 decision, a tribunal for the Normal Farm Practices Protection Board (NFPPB) dismissed the application of Jacqueline and Claudio Rocca for a ruling on whether disturbances were outside of normal farm practices.
The Rocca v. Bayer case was one of the first between landowners and farmers here on Manitoulin. Changing demographics across the Island may lead to more conflicts between neighbours in agricultural areas and an increasing number of complaints over odours, noise, flies and dust filed before the NFPPB.
Roy and Doris Bayer said the animosity began after they told Claudio and Jacqueline Rocca they could no longer hunt on their property. There had been an arrangement in place, where Mr. Bayer cut and baled hay off the Rocca’s property in exchange for snow clearing and granted hunting privileges. Ms. Rocca changed her system, said Mr. Bayer.
“Because of the bobolinks (birds), she didn’t want the hay cut until sometime in August,” he said. He complied the first year but the hay was overripe and dry. The cattle didn’t care for it. “She didn’t tell me the second year was the same deal and I didn’t ask. I went ahead and cut it in June and that was it.”
Bobolinks tend to nest in hayfields and meadows. According to the American Bird Conservancy, grassland bird species like the bobolink have experienced a 53 percent reduction in population since 1970. The main reason attributed to bobolink declines is habitat loss, particularly due to early and repeated hay harvests.
The Roccas agreed there had originally been a good relationship between themselves and the Bayers. However, that deteriorated due to Mr. Bayer cutting the hay before August 1, when he disturbed the nesting sites for bobolinks.
“Everything was fine,” Mr. Bayer said. “When she got mad about the hay, I just decided I didn’t need to cut it anymore and I cut them off the hunt on my property.”
The Bayers farm approximately 1,300 acres in total. Their property is 400 acres and they rent the rest from neighbouring landowners. All properties are zoned rural by the Town of Northeastern Manitoulin and the Islands, which permits farming and other agricultural uses.
Mr. Bayer is 73 years old. He has lived on his property for all except three years of his life. His great-grandfather began farming the property in 1896. Mr. Bayer is the fourth generation of his family to farm there. He began farming in 1968 with his mother, after his father passed away. His cow-calf operation has a Farm Business Registration Number and is small enough that he is not required to have a Nutrient Management Plan. “I’ve been there more than 50 years,” he said. “Nobody else has complained to me. It’s a farming community.”
The Roccas purchased 25 acres next to the Bayer’s 400 acres in 2011. They built a cottage on their property, planted gardens, fruit and other trees. They forage and hunt on their land. The Bayer’s driveway leading to their home and farm buildings is located on a 33-foot deeded right of way along the east property line of the Rocca property. Two other properties that are not farms are also accessed by this right of way. The cottage is currently located 196.5 metres from one of Mr. Bayer’s manure storage areas.
On April 22, 2019 the Roccas filed an application with the Nuisance Farm Practices Protection Board; the original application was amended on March 19, 2021. The Roccas claimed they were suffering from manure odors, manure-laden dust and an unacceptable level of flies. These nuisances were alleged to be due to improper storage, application and excessive spillage of manure causing nuisance flies and odours as a result of the Bayer’s farming operations.
The Roccas also claimed that an increase in manure odours and flies was caused by damage and/or removal of hedgerows, shrubs, trees and vegetable buffers from the right-of way by the Bayers. There was an additional nuisance from manure-laden dust on the Rocca’s property, gardens, fruiting hedges, shrubs and trees, and improper deadstock disposal caused odours and flies.
According to the Rocca’s claim, flies have reduced their enjoyment of their property. They also alleged the Bayers have increased the number of cattle since 2017 and spread manure more frequently and in a greater volume in the fields immediately adjacent to their property, up to eight times in a season, thereby increasing the odour. An expert hired by the Bayers took soil samples. “He said I could spread three times what I’m using on my field,” Mr. Bayer said.
Mr. Bayer said he is farming “pretty much the same” as he always has. “She made it bad enough. She reported me to the MECP (Ministry of the Environment, Conservation and Parks) and I had to move my manure pile quite a bit further away from the barn and the creek, which there was a bit of seepage and it was probably for the better.”
He did voluntarily ensure he wasn’t spreading manure near the Rocca’s well. “She has a well just inside the lot line of the municipal road and I farm on the other side, so when I spread manure there I did come down and I made a half moon around it. I did this on my own,” said Mr. Bayer.
The decision recognized that the Roccas chose to reside in a rural area and sought out good agricultural land when they purchased their property. There was no evidence of complaints by any others in the neighbourhood.
The Board concluded the Roccas did not show substantial interference and discomfort which would not be tolerated by the ordinary occupier in their location, nor did they prove unreasonable interference with the use and enjoyment of their own land. The board also found the Roccas did not meet the threshold test as to being directly affected by a disturbance, and therefore dismissed the application.
Ms. Rocca said she was really surprised by the decision. “We have to endure over three months of thousands of flies and I cannot believe anyone would not agree with us. It was therefore unexpected.”
“My burden of proof was to prove that I had substantial nuisances only,” Ms. Rocca said. “I had read at least one prior decision where it stated it was not necessary for the applicant to prove others had nuisances as well. Regardless, one of the neighbours had absolutely no manure application at all so they would not have any odours or flies and the other one was a close friend of the respondents and his evidence should have been viewed in that light. The other nearby neighbor who had similar conditions as us and is residing on the land where I said nuisances came from was not called as a witness by the respondents and he was also the one responsible for criminal acts towards us.”
Ms. Rocca said she had known the process would be unfair. She’d seen the articles calling it the ‘Right to Farm’ legislation, but she had to do something. “There was manure being applied repeatedly less than 30 meters to my well. There was no runoff control anywhere and I had odours from the creek to Pike Lake. The cattle were also unrestricted in that creek. I am glad, however, that the MECP looked into that runoff and ultimately issued two orders and several recommendations. It supported my position that there was manure and E.coli runoff when the inspector noted an Ontario Water Resources Act violation. Also, there were no deadstock disposal records and the report warned against manure application too close to the creek and within 30 metres to a dug well. The respondents’ operation, due to its size and unless they built a new barn, had a caveat and didn’t have to follow the Nutrient Management Act or follow best management practices regarding manure.”
Ms. Rocca said they have no immediate plans to move, despite all the retaliation they have endured.
“I’m pleased with the decision,” said Doris Bayer. “I’m still not sure it’s a win on this case given what it cost mentally, physically and emotionally. We haven’t lived for the last seven years. You don’t get those years back.”
This item reprinted with permission from The Manitoulin Expositor, Little Current, Ontario