Todd S. Newhook First Applicant And: Chantelle MacDonald Newhook Second Applicant And: Town of Colliers First Respondent And: Ian Hutton Second Respondent, 2020 NLSC 88

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Newhook v. Colliers (Town) , 2020 NLSC 88 Date : June 16, 2020 Docket : 202001G2348 Between: Todd S. Newhook First Applicant And: Chantelle MacDonald Newhook Second Applicant And: Town of Colliers First Respondent And: Ian Hutton Second Respondent Before: Justice Daniel M. Boone Edited Transcript of Oral Reasons for Judgment Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: June 10, 2020 Date of Oral Judgment: June 16, 2020

Appearances: Todd S. Newhook Appearing on his own behalf Chantelle MacDonald Newhook, Q.C. Appearing on her own behalf Danielle S. Somerton Appearing on behalf of the First Respondent Stephen P. Orr Appearing on behalf of the Second Respondent Authorities Cited: CASES CONSIDERED: American Cyanamid Co. v. Ethicon Ltd., [1975] A.C. 396; St. Pierre v. Ontario (Minister of Transportation &Communications), (SCC), [1987] 1 S.C.R. 906; Zbarsky v. Lukashuk (1991), (BC CA), 61 B.C.L.R.(2d) 349, 8 B.C.A.C. 151; Ryan v. Victoria (City), (SCC), [1999] 1 S.C.R. 201; George v. Newfoundland andLabrador, 2016 NLCA 24; Chafe v.

Bay Bulls (Town), 2016 NLTD(G) 164; Orpen v. Roberts, (SCC), [1925] S.C.R. 364 STATUTES CONSIDERED: Urban and Rural Planning Act, 2000, S.N.L. 2000, c. U-8; Farm Practices Protection Act, S.N.L. 2001,c. F-4.1; Forestry Act, R.S.N.L. 1990, c. F-23; Municipalities Act, 1999, S.N.L. 1999, c. M-24 REASONS FOR JUDGMENT Boone, J.: INTRODUCTION [1] This is a case about competing use of neighbouring lands. [2] The Applicants own a cabin on a pond in a forested area. They bought the land and built their cabin so that they can enjoy thepeace, quiet, and beauty of nature.

The Applicants are not alone in the woods; they share the natural beauty and peace of their cabinneighbourhood with the owners of 60 or 70 other cabins (some of which have been developed into year-round residences). [3] The Respondent recently moved into the neighbourhood, but not with the same goals or purpose as the cabin owners. Heleases a large parcel of land from the Crown on which he is developing a farm. At first, he intended to create a commercial vineyard,then a Christmas tree farm, and now a berry farm. He is not the first to use this parcel in that way.

A blueberry farm operated on thissite for a number of years but ceased operation around the time that the Applicants bought their cabin. [4] The neighbourhood is not in the wilderness. It is within the municipal boundaries of the incorporated Town of Colliers. TheTown adopted a development plan that seems to allow for both the cabins and the farm. [5] Landowners do not have unrestricted dominion over their land.

There are common law, statutory, and regulatory limits thatgovern the use of land and the degree to which the competing private interests of neighbouring landowners and the broader publicinterest restrict what landowners may do on their property. In most cases of competing land use, these legal rules resist easy applicationand instead intersect, overlap, and conflict. [6] In this case, the legal principles that must be sorted are derived from the common law of nuisance; from the Urban and RuralPlanning Act, 2000, S.N.L. 2000, c. U-8; and Farm Practices Protection Act, S.N.L. 2001, c. F-4.1.

Sorting the legal principles in thiscase also requires consideration of the availability of remedies because there are arguments that resolving competing interests can beachieved through remedial considerations related to injunction at common law; to appeal and stop work orders under the Urban andRural Planning Act, and to the complaint process under the Farm Practices Protection Act. [7] The Applicants complain that the manner in which the Respondent is developing his farm is interfering with the peace, quiet,and beauty that they used to enjoy at their cabin and even with the physical integrity of their property.

They claim that the activity has

created a nuisance and ask the Court to stop the activity by granting an injunction. In the main action, they also claim against theRespondent for negligence, but they agree that the Court will generally not issue an injunction prohibiting activity simply because aplaintiff alleges that the conduct is negligent. [8] The Respondent says in defence to the Application that his activity does not constitute a nuisance in law, and even if itotherwise would, the provincial Crown has specifically permitted his actions.

He also says that the Farm Practices Protection Actrequires the Applicants to pursue a statutory complaint process instead of, or at least as a precondition to, asking the Court for relief. [9] The Applicants also say that the Respondent has not complied with the Urban and Rural Planning Act and the Towndevelopment plan. They petitioned the Town to stop the Respondent from proceeding. The position of the Town has been inconsistent. The Town did not take any step regarding the Respondent’s farm until it had been operating for over a year.

Then it made a decision thatthe operation required a development permit and issued a stop work order. The Respondent then applied for a development permit. TheTown granted the permit and accordingly rescinded its stop work order. [10] The Applicants disagree with the Town decision to grant the permit and rescind its stop work order. They exercised a right ofappeal that the Urban and Rural Planning Act provides to persons aggrieved by municipal decision. Under

section 45 of that Act, filingan appeal results in an automatic stop work order intended to put a hold on contested development pending the outcome of the appeal. [11] The Respondent has not stopped work, notwithstanding that stop work order. The Town says that it thinks the Respondent’soperation should be allowed to proceed because it is a permitted use under the Town plan and the Respondent has complied withdevelopment regulations. Nevertheless, the Town thinks that the Respondent should stop work under the

Section 45 Order pending theappeal; however, it does not have the resources to force him to stop. The Applicants ask that the Court issue an injunction ordering theRespondent comply with the

Section 45 Order. [12] The Respondent says that he originally thought he did not have to stop work under the

Section 45 Order because he haspermission from the provincial Crown to continue his operation. He has recently reached the view that this is not the case. He isconcerned that, due to ordinary constraints compounded by the COVID-19 pandemic, the appeal might not be heard for some time. Heis now considering asking either the Court or the Urban and Rural Planning Appeals Board for an early hearing date or for relief fromthe

Section 45 Order. [13] I have decided that the Farm Practices Protection Act bars the Applicants from seeking the remedy they ask from this Court,with the exception of the relief they seek due to the activity of the Respondent that interferes with use of a public footpath over hisproperty. I have also decided that the Applicants do not have the right to ask the Court for an injunctive order requiring the Respondentto comply with the

Section 45 Order. ISSUES [14] These are the issues that I have to decide: 1. Does the Farm Practices Protection Act preclude the Applicants’ claim in nuisance and their claim for an injunction prohibitingactivity of the Respondent? 2. Should an interlocutory injunction issue prohibiting the Respondent from interfering with public rights of way? 3. Can the Applicants ask the Court to order an injunction requiring that the Respondent comply with the Town plan and the Urbanand Rural Planning Act?

ANALYSIS Does the Farm Practices Protection Act preclude the Applicants’ claim in nuisance and their claim for an injunction prohibitingsuch a nuisance? [15] I note that I have to determine this question in the context of an application for an interlocutory injunction. The principles forconsideration by the Court in determining whether to grant such a remedy stem from the House of Lords decision in American CyanamidCo. v. Ethicon Ltd., [1975] A.C. 396 adopted by the Supreme Court of Canada in RJR - MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311, and in this jurisdiction summarized by Green, J. (as he then was) in Hurley v. SlateVentures Inc. (1996), (NL SC), 136 Nfld. & P.E.I.R. 341, 423 A.P.R. 341 (Nfld. S.C.(T.D.)), at paragraph 25.

Inaccordance with those principles as summarized by Green, J., I first have to decide whether the Applicant’s case presents “a serious issueto be tried, in the sense that it is not frivolous or vexatious.” [16] A statutory prohibition that clearly precludes the Plaintiffs’ action and their claim for an interlocutory injunction would renderthe issues raised in the action and application as frivolous or vexatious within the meaning of that term in this context. [17] The Plaintiffs allege that the following conduct on the part of the Respondent constitutes a nuisance at law: • Cutting trees in a manner that eliminates a windbreak for trees on their property, eliminates a reasonable buffer between theRespondent’s operation and each of their property and the public access road through the area and creates a risk of water runoff onto theirproperty; • Piling and burning slash and grubbing in a manner that creates a risk of forest fire; • Conducting the Respondent’s operation too close to their well and thus creating a risk of contamination;

• Creating excessive noise through the use of heavy equipment and chainsaws; • Operating trucks and equipment on the public access road in a manner that damages the road and creates excessive dust; • Blocking the public path through the Respondent’s property by the use of signs, physical blockade, and intimidation. [ 18 ] It is common ground that the Respondent’s operation is a farm to which the Farm Practices Protection Act applies. [ 19 ] The common law of nuisance is judge-made law first developed in England as a means of resolving disputes in cases where a landowner claimed that their neighbour’s use of property interfered with the peaceful enjoyment of their own.

As the law of nuisance developed it recognized that a landowner’s right to peace and the physical integrity of property could not be allowed to be absolute in any civil society; property rights must be limited not only by physical boundaries of property but also by bounds of reason. Over time, considerations such as the social utility of activities and the dynamic nature of neighbourhood development also became considerations in the determination of reasonable limits. [ 20 ] Because the law of nuisance is judge-made law, it is always subject to the priority of the legislative branch of government.

The legislature can make choices regarding property use that supersede or supplant the choices that might otherwise be made by judges. In this jurisdiction, the legislature made such a choice in enacting the Farm Practices Protection Act , and the following provisions in particular: 3.

Nuisance action barred 3(1) A person who carries on a farm operation according to acceptable farm practices is not liable in an action in nuisance to a person for an odour, noise, dust, vibration, light, smoke or other disturbance resulting from a farm operation and shall not be prevented by injunction or other order of a court from carrying on a farm operation because it causes or creates an odour, noise, vibration, dust, light, smoke or other disturbance that would otherwise constitute grounds for an action in nuisance. 3(2) Subsection (1) does not exempt a person from compliance with

an Act of the province or of Canada or a regulation made under an Act of the province or of Canada. 3(3) Notwithstanding subsection (1) or (2), or another Act or regulation, a person does not contravene a municipal by-law with respect to nuisance if he or she conducts his or her farming operation according to acceptable farm practices. 10.

Complaint 10(1) A person who is aggrieved by an odour, noise, dust, vibration, light, smoke or other disturbance resulting from a farm operation may make an application in writing to the board for a determination as to whether the disturbance results from an acceptable farm practice. 11. Application for determination required A person shall not, with respect to a farm practice, a farm operation or a farmer, (

a) commence an action in nuisance for an odour, noise, dust, vibration, light, smoke or other disturbance resulting from a farm operation; or (

b) apply for an injunction or other order of the court preventing or restricting the carrying on of the farm operation because it causes or creates an odour, noise, dust, vibration, light, smoke, or other disturbance that would otherwise constitute a nuisance, unless the person has applied to the board under this Act for a determination as to whether the disturbance results from an acceptable farm practice and the farmer has not complied with an order of the board under

section 15 with respect to that application. 15. Disposition of complaint 15(1) At the conclusion of a hearing, the board shall

(

a) dismiss the complaint if the board determines that the farm operation is being carried out according to acceptable farm practices; (

b) order the farmer to cease the practice that is the subject of the complaint if the board determines it is not an acceptable farm practice; or (

c) order the farmer to modify the farm operation in the manner set out in the order to make it consistent with acceptable farm practices. 15(2) In making a determination under subsection (1), the board shall follow the applicable farm practices guidelines. 15(3) The board may call those experts it considers necessary to determine if an operation is being conducted according to acceptable farm practices under subsection (1). [ 21 ] The provincial legislature has therefore considered the social utility of farming activity and accorded it special consideration in questions about the reasonableness of land use. In

summary, those choices are: • A farmer is not liable in nuisance so long as farming activities are conducted in accordance with acceptable farm practices; • Therefore, neighbouring landowners must accept interference with the enjoyment of their property resulting from acceptable farm practices; • A neighbouring landowner can complain about farm activity to a specialist tribunal; • The question whether activity is conducted in accordance with acceptable farm practices will be decided by that specialist tribunal with the aid of experts and government-published guidelines; • The neighbours of a farm cannot go to Court to sue a farmer in nuisance or seek an injunction to stop farming activity unless the specialist tribunal has decided that the activity is being conducted in an unacceptable manner. [ 22 ] The Farm Practices Protection Act also defines what is included in the activity of a farming operation: 2.

Definitions (c) " farm operation " means an agricultural activity conducted by a farmer for gain or reward or with the expectation of gain or reward and includes (

i) growing, producing, raising or keeping animals or plants or the primary products of those animals or plants, (ii) composting, (iii) clearing, draining, burning, irrigating or cultivating land, (iv) using farm machinery, including vehicles on public roads, equipment, devices, materials and structures, (

v) applying fertilizers, manure, pesticides or biological control agents, (vi) operating farm produce stands or agricultural tourist operations, including U-Pick farms or roadside stands, and (vii) preparing farm products for distribution for wholesale or retail consumption including the cleaning, grading or packaging of those products; [ 23 ] All of the activity of which the Plaintiffs complain, with the exception of the actions interfering with the use of the public footpath and the failure to retain a buffer zone, are farming activities as defined in the Act . Therefore, the Act bars the Plaintiffs from

suing the Defendant in nuisance in respect of those activities. Because the Plaintiffs have not sought a determination from the specialisttribunal as to whether the Respondent’s activities are acceptable farm practices, the Act also provides that they cannot apply to this Courtfor an injunction or other order prohibiting the Respondent’s farming activity. [24] As a result, the Applicant’s case related to the farming activity does not present a serious issue for trial, and their application foran injunction based on alleged nuisance restraining the farming activities of the Respondent cannot succeed.

Buffer Zones [25] The Applicants complain that the Respondent is cutting right to the edge of the boundaries of his property. They say that this iscontrary to the conditions of his cutting permit, which prohibits cutting within 100 metres of the centre line of the access road, and to theTown development regulations, which includes a provision for a buffer between non-residential and residential development. [26] The Farm Practices Protection Act does not aid the Respondent in respect of his failure to maintain a buffer.

Although thecutting of timber and clearing of land fall within the definition of farming operations under that Act, the Respondent did not offer anyevidence or law that would demonstrate that farming practice required clearing to the limits of farm boundaries. The Act expressly doesnot exempt a farm operation from compliance with other statutes or regulations. The Respondent is required to comply with any legalrequirement to maintain a buffer. [27] However, the Respondent’s failure to maintain a buffer with the Applicant’s property does not constitute a nuisance in law.

TheApplicants claim that the loss of the buffer destroys both their view and the windbreak previously provided by the trees on theRespondent’s parcel. The law of nuisance does not protect a right to a view: St. Pierre v. Ontario (Minister of Transportation &Communications), (SCC), [1987] 1 S.C.R. 906. And there is no right in law to require a neighbour to provide ormaintain protection from elements of the weather, such as wind: Zbarsky v.

Lukashuk (1991), (BC CA), 61 B.C.L.R.(2d) 349, 8 B.C.A.C. 151. [28] The Applicants say that the prohibition against cutting near a roadway, set out in the Respondent’s cutting permit from theDepartment of Fisheries and Land Resources, is the same as a negative covenant in an agreement with the Respondent’s neighbours thatis enforceable at their suit. I reject that submission, for which no support was offered. The prohibition against cutting close to a roadwayis a permit, statutory and regulatory requirement that is enforceable by penalties and rectification orders under the Forestry Act, R.S.N.L.1990, c. F-23.

The Forestry Act does not provide private rights of action or remedies. [29] The Town Development Regulations provides the Town with a discretion to require the Respondent to provide and maintain abuffer. However, for reasons explained later in this decision, the Applicants do not have the right to ask that the Court either require theTown to order and enforce a buffer, or to enjoin the Respondent from developing in a manner contrary to the Development Regulations. [30] Therefore, the Applicants’ case in nuisance in respect of the loss of buffer zones does not present a serious issue to be tried.

Public Footpath [31] This same reasoning does not apply to the Applicants’ complaint that the Respondent has intentionally interfered with their useof a public footpath. The Farm Practices Protection Act includes the traffic of vehicles over public roads within the definition ofprotected farm activities; it says nothing about publicly reserved footpaths over farms. [32] The evidence shows that the Crown lease issued to the Respondent is subject to a public right of way over a path through theleased parcel.

The evidence, in the narrative attested to in the First Applicant’s Affidavit and in photographs, clearly shows that theRespondent has blocked the use of this path through various means. The Respondent does not assert that blocking the path is necessaryfor his farming operation nor that he has any right to block this path. Indeed, he says that he intends to apply to the Crown for a revisionof his lease removing this public right of way. [33] Ordinarily, only the Attorney General can sue to protect public rights.

However, a private litigant can sue for public nuisanceand ask for relief against interference with a public right of way if that litigant can show special or unique damage that the pubic as awhole will not suffer: Ryan v. Victoria (City), (SCC), [1999] 1 S.C.R. 201; George v. Newfoundland and Labrador,2016 NLCA 24. [34] The public path through the Respondent’s leased parcel is theoretically open to use by anyone. However, I am satisfied that theevidence establishes to the sufficient standard that the Plaintiffs enjoyed use of this path more than did any other member of the public.

They assert that the path is appurtenant to the benefits that they enjoy at their country cabin as they can walk out their cabin door ontothis path for a walk with their family and their pets. [35] As to the other requirements for the issuance of an interlocutory injunction prohibiting the blocking of this path, I find asfollows: • The balance of convenience favours issuing an interlocutory injunction. The Plaintiffs’ loss of enjoyment is occurring with everyblockade of the path.

The Respondent has not shown any possible damage that will result to him if he respects the Crown leasereservation of the path. • The Respondent has not demonstrated any damage that may occur to him if he allows the public to traverse the footpath and Idecline to require an undertaking as to damages from the Plaintiffs who have, after all, taken this action to enforce a right they share withall of the public. Can the Applicants ask the Court to order an injunction requiring that the Respondent comply with the town plan and the Urbanand Rural Planning Act?

[36] The Applicants say that their claim for an injunction is not based solely on their underlying action for nuisance, but also on theUrban and Rural Planning Act, which they say takes precedence over the Farm Practices Protection Act and its qualified immunity forfarmers. [37] The Applicants filed their appeal on May 11, 2020. The Urban and Rural Planning Act,

section 45 provides: 45. Development may not proceed 45(1) Where an appeal is made under

section 42, the development with respect to the appeal, work related to that development or anorder that is under appeal shall not proceed or be carried out, pending a decision of the board. [38] Although the requirement to cease development under

section 45 arises automatically on the appeal being filed, the Town alsoissued a stop work order that said: IT IS HEREBY ORDERED under the Authority of the Development Regulations and

Section 45 of the URPA that the propertydevelopers stop the development upon service of the Order and no further development, that is no continuation of cutting takeplace until such time as the appeal has been decided. [original emphasis] [39] The Respondent has not stopped work. [40] The Municipalities Act, 1999, S.N.L. 1999, c. M-24, provides that each day of noncompliance with a municipal order constitutesa separate offence, and

section 420 of that Act provides for penalties of fines and imprisonment for violation of the Act or an order madeunder it. [41] The Town says that it has never faced a situation where a developer has refused to comply with a stop work order. It is a townof 650 residents with limited resources and it cannot afford to take any steps to force compliance on the part of the Respondent. [42] The decision by the Town whether to enforce compliance with

section 45 or the stop work order is a discretionary decision withwhich the Court will not interfere through an order of mandamus against the Town: Municipalities Act,

section 421; Chafe v. Bay Bulls(Town), 2016 NLTD(G) 164. [43] The question raised on this Application is a different one: can the Applicants ask the Court to enforce compliance with section45 and the stop work order? [44] That question was answered in Canadian law almost 100 years ago, and the answer has been consistently the same since. Theanswer is no. In Orpen v.

Roberts, (SCC), [1925] S.C.R. 364, the Supreme Court of Canada decided that a private citizenhas no right to bring an action seeking damages or an injunction against another private citizen to enforce a contravention of a planningby-law unless the by-law expressly confers such a right. This is so even where the private party bringing the action alleges specificdamage resulting to that party from the contravention of the by-law. Planning and development legislation and regulation is for thebenefit of all within the Town.

Therefore, the municipality has the discretion to bring an action to enforce compliance, and privatecitizens do not have the power to enforce legislation or regulation. [45] That is not to say that a breach of a by-law or continuing non-compliance is not a factor to be taken into account in the contextof private actions. For instance, in Chafe, Paquette, J. considered the Defendant’s non-compliance with stop work orders as a factor inordering an interlocutory injunction to restrain the Defendant’s activities.

However, in that case, unlike this one before me, Paquette, J.also determined that the Plaintiff had established a serious case to be tried in nuisance and that was the basis for the injunction. [46] The Applicants do not have the right to ask this Court to issue an injunction requiring the Respondent to comply with themunicipal stop work order or with

section 45 of the Urban and Rural Planning Act. CONCLUSION and DISPOSITION [47] The Application for an interlocutory injunction restraining the Respondent from continuing operations on the parcel in Colliersthat he has leased from the Crown is dismissed. [48] The Application for an interlocutory order restraining and enjoining the Respondent from blocking access by the Applicants andany other members of the public to the public path shown on the survey attached to Crown Lease 147045 is allowed. [49] The Applicants brought this Application because the Respondent failed to comply with

section 45 of the Urban and RuralPlanning Act and with the stop work order issued by the Town on May 11, 2020. In the circumstances, the parties shall bear their owncosts of this Application. _____________________________ Daniel M. Boone Justice