Horse Farms vs. Urban Sprawl
Lawyer Catherine E. Willson examines the disturbing trend of residents in new housing developments in the country complaining about the "nui
By: Catherine E. Willson |
As the city creeps up on the country, complaints about horse poop, noise, and other ‘nuisances’ can threaten the stable owner.
As urban sprawl encroaches on the country life, we are faced with the unfortunate sight of lookalike subdivisions springing up in farmers’ fields. The people moving into these homes may have patted the occasional police horse, but know little of the smells, sounds, and other wonders of the barn. Odours we have come to know and love curl the nose of even the most hardened city dweller, and it is inevitable that more lawsuits will crowd our courts in the name of nuisance.
The Definition of “Nuisance”
A nuisance is created when a person repeatedly allows the escape of noxious things onto someone else’s property. Smells, sounds, insects, animals, and many other things can be nuisances if their presence interferes with the reasonable use or enjoyment of another’s property.
Everyone must put up with some discomfort caused by the lawful actions of their neighbours. Just because your neighbour has the occasional urge to mow his lawn at 7:00 a.m. on a Saturday does not make him a nuisance. If, however, his acts repeatedly result in noise that causes you to suffer inconvenience and loss of enjoyment of your property, you can start a legal action to stop him. Thus, the constant blaring of a loud stereo or the sounds of a racing stable with traffic and horses coming and going at all times of the day and night could be actionable in nuisance.
The usual remedy for an action in nuisance is the granting of an injunction. This is a court order preventing the wrongdoer from continuing the offensive action that is affecting his neighbours’ property. An injunction requiring a stable to cease creating noise after a certain hour in the day or to stop emitting offensive smells could basically shut down the business. Injunctions can be a very serious problem for stable owners and operators near suburban areas.
Cases in Point
There have been cases where unpleasant odours emanating from a farm have been classified as a nuisance, and an injunction was granted to see that the farm stop emitting such smells. In the case of Atwell v. Knights (1967), 1 O.R. 419 (Ont. H.C.J.), the defendant operated a “caged hen-laying business” that consisted of a large number of hens occupying two galvanized iron buildings near a village. The hens were well-fed and excreted accordingly. The buildings were ventilated by fans and, unfortunately, the powerful and obnoxious odour emanating from the hen-houses drifted over to the neighbours’ properties. Apparently, barbeques and picnics had to be cut short and windows closed depending on which way the wind was blowing.
The Court decided that the offensive smell was indeed a nuisance and granted an injunction against the defendant, despite the defendant’s request that an injunction be denied on the grounds that the plaintiffs could be compensated by money and that the cost of moving the hen-houses created a hardship against the defendant.
In a Nova Scotia case, O’Regan v. Bresson (1977), 3 C.C.L.T. 214 (N.S. Co. Ct.), the Court raised an interesting point regarding nuisance which still remains law in Canada. The fact that a complainant purchases property on which a nuisance is already being committed does not prevent him from pursuing a legal remedy; i.e. just because he “comes to” the nuisance does not prevent him from recovering damages. So, the fact that your stable operation was there before the subdivision was even built does you little good in a suit for nuisance.
Hope for Stable Owners
Fortunately, statutes have been enacted in Ontario that should give hope, if not to stable owners, then at least to conscientious farmers. The Farming and Food Production Protection Act, 1998, S.O. 1998, c. 1, addresses some of the issues that arise from the competing interests of agricultural operations and adjacent properties. Section 2(1) of the Act states that a farmer (defined as “the owner or operator of an agricultural operation”) is not liable in nuisance to any person for a disturbance resulting from an agricultural operation carried on as a normal farm practice (“agricultural operation” includes growing, producing, or raising livestock, including poultry and large flightless birds such as emus. Horses are often considered livestock.)
“Normal farm practice” is defined as a practice “conducted in a manner consistent with proper and acceptable customs and standards as established and followed by similar agricultural operations under similar circumstances, whether based in traditional farming techniques or assisted by the latest technology.” As a result, farmers are protected from nuisance complaints made by neighbours provided they are following normal farm practices, and no municipal by-law can be passed to restrict a normal farm practice carried on as part of an “agricultural operation.”
Other provinces have statutes that provide some protection to horse breeders. In Prince Edward Island’s Farm Practices Act, R.S.P.E.I. 1988, c. F-4.01, “agricultural operation” explicitly includes the act of “raising or keeping livestock, including poultry and horses,” when done in “the expectation of gain or reward.”
Special Events and the Law
A nuisance claim is something that must be considered by every farm owner who may want to host a horse show or clinic on their land. The noises and disruptions created by an equestrian event could very well be classified as a nuisance to surrounding neighbours. If a court determines that a horse show or clinic will interfere with a neighbour’s reasonable enjoyment of their property, then an injunction could be granted to prevent the operation of such an event.
As these events would not fall into the realm of ‘normal farm practices’ afforded coverage under the Farming and Food Production Protection Act, such farmers should take steps to ensure that events on their property will not be subject to a nuisance claim.
In 2007, four week-long equestrian events took place on a farm in Halton Hills. Surrounding neighbours complained that the events created noise which interfered with the reasonable enjoyment of their respective properties. In 2008, the neighbours appealed a decision approving six equestrian events on the same property (Darcie v. Niagara Escarpment Commission, 2008 Carswell Ont 7751).
The existence of a municipal noise bylaw in Halton Hills made this case slightly more complex. As mentioned, the Common Law prevents people from creating noise which interferes with the reasonable enjoyment of another’s property. However, the bylaw is more restrictive, and prevents noise that disturbs the ‘peace, quiet, comfort, rest, and enjoyment’ of another’s property.
Despite the more restrictive noise requirements enforced by the bylaw, the appeal was still denied due to a number of noise prevention measures taken by the hosts. Although the noise created by the event caused discomfort to the neighbours, the prevention measures ensured that such discomfort could not be classified as disturbing their ‘peace, quiet, comfort, rest or enjoyment.’ Such measures included reducing the hours of the event from 8:00 a.m. to 7:00 p.m.; restricting loudspeaker announcements to the hours between 9:00 a.m. and 7:00 p.m. and limiting the amount of speaker announcements by replacing certain announcements with chalk-board directions.
In terms of granting injunctions due to unreasonable noise caused by an event, courts will consider the nuisance’s frequency, duration, and degree of impact. In considering what type of noise created by an event will likely be deemed a nuisance, it is helpful to distinguish between a few fact-specific cases.
In a 2006 case from British Columbia, Palmer v. Burnaby (City), 2006 BCSC 165, neighbouring residents of a park sought an injunction to prevent the city from holding six concerts on the land. The Court found that although the noise created by the concerts caused some discomfort to the neighbours, the frequency, duration, and degree of impact was not sufficient to justify a finding that it constituted a nuisance. In determining that the noise did not unreasonably interfere with the neighbour’s enjoyment of his property, the court referenced that the concerts only lasted from 6:00 p.m. to 10:00 p.m. and that the city offered hotel accommodations to the neighbours.
By contrast, in Van Wart v. La-Ko Enterprises Ltd., (1981), 35 N.B.R. (2d) 256 (N.B. C.A.), a New Brunswick Court ordered an injunction to prevent a restaurant from playing nightly music from 8:30 p.m. to 1:30 a.m. because it constituted a nuisance to surrounding neighbours. In Carleton Condominium Corp. No. 291 v. Weeks,  O.J. No. 1204 (Ont. S.C.J.), an Ontario Court ordered an injunction because the noise in question contained “vulgar and offensive language.”
In distinguishing cases of noise pollution, it is evident that the granting of an injunction is very context specific. Courts have continuously stated that the frequency, duration, and degree of impact will be considered when determining whether or not to grant an injunction. This is important information to consider when contemplating whether or not to host a horse show or clinic on your farm.
Check the Bylaws
If you are considering hosting an event, make sure to first check if your municipality has a noise bylaw. Any noise created by your event must comply with the bylaw requirements. Next, ensure that the noise created by your event will not cause unreasonable harm to neighbouring residents of your farm. In classifying noise as unreasonable, courts will look at the frequency, duration, and degree of impact of the noise.
As evidenced by case law, some methods to ensure that the noise created is not classified as unreasonable are as follows: restrict the noise to reasonable hours – do not play music or make announcements before 9:00 a.m. or after 7:00 p.m.; ensure that the events you’re hosting are reasonable in duration – if your farm is hosting a four-month long event, it is much more likely to be classified as a nuisance than if the event was only a couple of days. If possible, offer alternative accommodations to neighbours that will be affected by the event, and ensure the noise created by your event is tasteful.
Lastly, if a nuisance is created by a horse show or clinic, the farm owner will be liable, regardless of the measures they may have taken to ensure that a nuisance was not created. Care and caution is no defence to the creation of a nuisance.
The complaint of nuisance is an objective standard that will continue to change with society. The smells and sounds of the farm – something that was an absolute necessity 60 years ago – is now considered a nuisance and pushed out further from many of the towns and cities that once supported its existence. Perhaps we can turn the tables and push back using this tort of nuisance; industry and suburbia are annoying, too!