Is a rural municipality ever responsible for damages to a taxpayer for allowing the expansion of an intensive livestock facility?
What if the expansion exceeds limits imposed by municipal bylaws on such operations? What if the operation was in place before any limiting bylaw?
These were some of the questions that a recent Saskatchewan case, Collins vs. the Rural Municipality of Corman Park, answered. In late 2001, Collins started a small claims action against the RM for damages of $5,000 resulting from odours coming from two operations: a poultry barn and a dairy operation. He alleged the odours were causing him breathing problems and that he needed to install a costly air purification system to deal with his problems. He sued the municipality because he claimed it allowed these operations to expand in contravention of its own development plan and bylaws.
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He was unable to sue the operations themselves, because the province’s Agricultural Operations Act provides that no one can sue an agricultural operation for a nuisance such as odours unless the Agricultural Operations Review Board first determines the operation was not using normally accepted farming techniques. There is similar legislation in most other provinces.
Both the dairy and poultry farm were in business before the municipal development plan was approved. Among other things, the plan specified the distance between animal operations and a town. The municipality granted both operations permits to expand and, as a result of the expansion, both fell outside the required separation distance. Both operations appeared to have complied with all provincial regulations dealing with intensive livestock operations.
Saskatchewan’s Planning and Development Act, like similar legislation in most provinces, allows a nonconforming use to continue if it was in existence before the plan and bylaws came into force. However, the nonconforming use cannot be enlarged or expanded.
In September 2002, the small claims judge dismissed Collins’ claim, stating that he should make his claim to the Agricultural Operations Review Board. Further, the judge noted that “it’s a political issue, not a legal issue, and I can’t deal with political issues.”
On appeal, a Queen’s Bench judge came to a slightly different conclusion. He ruled that by allowing expansion of the dairy and poultry operations, the municipality was breaching both its plan and the provincial Planning and Development Act. However, while the municipality was in breach of the law, this did not entitle the complainant to damages. The law in Canada, the judge said, is that the complainant must show that the law imposes a duty on the municipality for his benefit before he can succeed. In this case, the court said the benefit was to the general public. Further, the court said the avenue of appeal from the granting of such permits was to the development appeals board and the provincial planning appeals board.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
