Application By The County Of Norfolk For Leave To Appeal To The Supreme Court Of Canada Declined

Municipal & Planning Law Blog

March 14, 2007

The Peacock family operated a 1,000 head intensive hog operation in the County of Norfolk, and sought to double the capacity of their facility to 2,000 hogs.  The proposed facility would contain a large reservoir for nutrient (a.k.a. pig excrement) storage.  Pursuant to theNutrient Management Actand Regulation 267/03,the Peacock family sought and obtained approval of its Nutrient Management Plan.  Regulation 267/03 required that the nutrient storage facility be located at least 100 metres from a municipal well.

The County of Norfolk, meanwhile, had passed a by-law intended to prohibit the type of operation proposed by the Peacocks within Sensitivity Areas 1 and 2.  It was the County's position that the Peacock farm was in Sensitivity Area 2; and that the Peacocks were required to comply not only with Regulation 267/03, but with the by-law as well.  The Peacocks took the position that compliance with the Regulation alone was sufficient by virtue of section 61 of theNutrient Management Act.

The Superior Court of Justice ruled in favour of the Peacocks, granting a declaration that Ontario Regulation 267/03 superceded the provisions of the by-law.  An appeal to the Ontario Court of Appeal by the County was dismissed.  The issue before the Court of Appeal was the reconciliation of the overlap between the Regulation and the by-law.  The Court held that because the Regulation and the by-law addressed the same subject-matter and had a similar objective, i.e. to protect against the contamination of municipal wells, the by-law was inoperative.  The Court of Appeal's reasons can be accessed here .

The County sought leave to appeal to the Supreme Court of Canada.  On March 8th, the County's application was dismissed without reasons.