(File photo)

By Sheldon Spackman

Case Dismissed

Ponoka County wins court battle over CFO regulations

Apr 24, 2020 | 2:56 PM

A Court of Queen’s Bench judge in Edmonton has ruled against a farm advocacy group and its claims of unfair restrictions towards new confined feeding operations (CFOs) in Ponoka County.

Following a hearing held on Feb. 20, the Honourable James T. Neilson ruled on Apr. 20 that he was unable to conclude that Ponoka County’s enactment of its Area Structure Plan (ASP) Bylaw, and the amendments to its Municipal Development Plan (MDP) in October, 2018, were patently unreasonable.

The County’s ASP is said to address the problem of conflicting land uses in part of Ponoka County lying northwest of the town of Ponoka, where increasing the number of CFOs may be incompatible with other existing, and future land uses.

The area in question covers about 88,000 acres bounded by Highway 2 to the east, Highway 53 to the south, Highway 792 to the west, and Highway 611 to the north.

However, members of the Ponoka Right to Farm Society comprising of farmers, landowners and businesses located in Ponoka County, and the town of Ponoka, took issue with the plan and launched a judicial review.

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In their application, members claimed the County erred when it decided to approve the ASP Bylaw, saying the “CFO exclusion zones” outlined in the North West Ponoka Area Structure Plan (NWPASP) would be harmful to livestock operations in the long run.

Society members felt the bylaw was unnecessary because modern livestock operations are already regulated by the Natural Resources Conservation Board (NRCB), and Alberta Environment.

Prior to February’s hearing however, County officials noted the aim of the NWPASP is to maintain a balanced land use in the area.

Ponoka County CAO Charlie Cutforth noted at the time, “When the NRCB assumed responsibility and authority for regulating CFOs, I know that there was no appreciation for the concentration that potentially could happen with these operations,” he explained. “Ponoka County is a farm community and certainly we’re proud to be. These CFO operators run excellent operations and we just want them to spread out a little.”

Cutforth added that it was important to make clear the County does not want to restrict any CFO from expanding its existing operations, or farming practice in any way.

“Part of the concern is that if municipalities become involved in regulating, as well as the NRCB, it puts unfair and undue pressure on the industry and I understand that concern,” he told rdnewsNOW. “It’s purely a matter of trying to address the other residents in the area’s concerns, and maintain the balance that currently exists.”

John Hulsman, board member and spokesperson for the Ponoka Right to Farm Society, says they are disappointed with the ruling to uphold the Area Structure Plan, but respect the decision of the court.

“We are hopeful that our Society has set a precedent to stand up for the right to farm and will continue to advocate for agriculture,” says Hulsman.

However, while respectful of the Courts ruling, Hulsman still feels the North-West Area Structure plan will have negative repercussions on agriculture in Ponoka County.

“We have no intention to appeal the decision,” he admits. “This does not mean we will sit idle on restrictions against farming. Our society believes in protecting the right to farm and we will continue to do so.”

Hulsman says agriculture is a way of life, and warns less families are choosing to carry on in the critical process of food production.

“Most who remain will continue to grow and expand to sustain a viable business,” suggests Hulsman. “Rural Alberta must be protected and remain an area where this can happen. The area around Ponoka has high quality soils, good growing conditions, and close to services and labor that we rely on. We wish to protect agriculture not only now, but future generations.”

With respect to CFOs, Ponoka County’s ASP recommends all existing CFOs can continue, and expand under Agricultural Operations Practices Act (AOPA) rules.

This means a number of large operations which are not yet recognized by the NRCB can also continue, resume operations if they have temporarily ceased, and expand under AOPA rules. Additionally, smaller intensive animal operations which are not now defined as CFOs, will be allowed to expand and become CFOs subject only to AOPA rules.

These existing and expanded CFOs will be protected by the County’s land use bylaw, which does not allow new third party residences which are situated closer to a CFO, intensive livestock operation, or manure storage facility, than the minimum distance separation established in AOPA, or would materially interfere in an existing agricultural operation or its proposed expansion.

Finally, the ASP is considered consistent with the province’s Municipal Government Act (MGA), which requires area structure plans to set out the expected population density and major transportation routes in the plan area.

Justice Neilson concluded in his ruling that the Society’s application is dismissed, and awarded costs payable to Ponoka County.