Ontario’s new Provincial Policy Statement will legalize a broad range of on-farm businesses
On April 30, 2014, Ontario’s new Provincial Policy Statement [PPS] will come into effect. With it will come countless business opportunities previously prohibited in Agriculture zoned areas.
The importance and effect of the PPS is generally underappreciated from a municipal law and land use perspective. It is common to discover municipal officials being totally unaware of its contents – especially as it relates to agriculture.
Simply put, the PPS has great importance and effect. Section 3(5) of the Planning Act compels municipalities to make decision and enact bylaws which are consistent with the PPS. In other words, municipalities have no choice but to follow the PPS.
Both the new and previous PPS expressly states that permitted uses in prime agricultural areas include: (1) agricultural uses, (2) agriculture-related uses and (3) on-farm diversified uses (previously described as “secondary uses”). In other words, business operations that fall into one of these three categories are deemed legal uses on lands zoned Agriculture. A municipality cannot prohibit such uses.
So, what types of businesses fall into these categories? As usual, the devil is in the details (which, in legal terms, can be found in the definitions section).
The most significant change featured in the new PPS involves the definition of “agriculture-related uses”. This change will effectively legalize many types of farm-based businesses that were previously not permitted in agriculture zones.
The 2005 PPS defined agriculture-related uses as: “farm-related commercial and farm-related industrial uses that are small scale and directly related to the farm operation and are required in close proximity to the farm operation”.
The 2014 PPS defines agriculture-related uses as: “farm-related commercial and farm-related industrial uses that are directly related to farm operations in the area, support agriculture, benefit from being in close proximity to farm operations, and provide direct products and/or services to farm operations as a primary activity”.
As you can see, the new definition is far broader, allows larger businesses and, perhaps most significantly, uncouples business ventures from necessarily being tied to the farm operation located on the same property. Finally, agriculture-related uses need only be related to farm operations in the area. Agriculture-related uses no longer need to exist as an island in the community, and this change will undoubtedly encourage more collaborative business ventures amongst farm-operators in agricultural areas.
I always felt that the old PPS shamefully, and seemingly purposely, discouraged entrepreneurism and business initiatives in rural areas – areas which often desperately need more diversified employment opportunities. Sadly, municipalities have also been too happy to oblige – charging such entrepreneurs with zoning by-law offences and shutting down their business operations.
Upon reflection of the new PPS, I cannot help but think back to one of my first cases which happened to involve zoning by-law charges and a family farm-based business (the business served soil-mixing needs of local greenhouses and nurseries). We lost at trial and, while I thought we still had a good crack at an appeal, the clients understandably elected to cut their losses and simply close down the business. I still fume at the thought of our governments seeing some sort of merit in closing down a family’s business, as well as turning away the inevitable tax revenues. I have to assume that, if the new PPS was in effect back then, we would have certainly won and the family’s business would still be in operation.
Does the new PPS finally mark a change in attitude toward better promoting business initiatives in rural areas? I certainly hope so. While I assume that new farm-based businesses will eventually emerge in the wake of these changes, I also expect that it will take time for the changes to sink in.
Nevertheless, I believe the new PPS is a step in the right direction. No doubt there will be some municipalities still living in the past after April 30; however, if they continue to say “no, you can’t do that”, entrepreneurs should at least have greater legal recourse to protect their ag-business ventures.