Approval by Order in Council
24(7) The Lieutenant Governor in Council may, by order, approve the development plan or the amendment submitted under subsection (6). This order has the effect of enacting the development plan by-law or amending the existing development plan by-law as if it were enacted by the board or council under this Part.

A LIVESTOCK POLICY SPELLS OUT WHERE YOU CAN DEVELOP OR EXPAND LIVESTOCK OPERATIONS, DEVELOP OR EXPAND LIVESTOCK OPERATIONS UP TO A MAXIMUM SIZE AND WHERE NO LIVESTOCK OPERATIONS (OVER 10 ANIMAL UNITS) CAN BE ESTABLISHED. (PLEASE NOTE, THE POLICY DOES NOT ALLOW SPECIES SPECIFIC BANS NOR DOES IT ALLOW FOR THE DIFFERENTIATION OF PRODUCTION SYSTEMS (IE, STRAW-BASED, FREE-RANGE, CONFINED, FEEDLOTS, LIQUID MANURE, ETC).

ALSO NOTE, THAT NO-GO ZONES MEANS ANY AND ALL LIVESTOCK OPERATIONS OVER 10 ANIMAL UNITS - THIS DELINEATION WILL IMPACT ALL SMALLER FAMILY FARMS IN MANITOBA SHOULD COUNCIL WANT TO ESTABLISH NO-GO ZONES.

PLEASE NOTE THAT THE GENERAL STANDARDS FOR SETBACKS AND SITING WILL BE ESTABLISHED THROUGH AN AMENDMENT TO THE PROVINCIAL LAND USE POLICIES (PLUP) REGULATION OF THE PLANNING ACT. (THE PUBLIC CONSULTATION PROGRAM AND TIMELINES FOR AMENDING THIS REGULATION HAS NOT BEEN ANNOUNCED). THE GOVERNMENT'S INTENT IS TO SEVER THE MIMIMAL SITING AND SETBACK GUIDELINES FROM THE FARM PRACTICES GUIDELINES FOR HOG PRODUCERS IN MANITOBA (REFERENCED UNDER THE FARM PRACTICES PROTECTION ACT).

ED SAWATSKY, OF INTERGOVERNMENTAL AFFAIRS, STATED THAT, POLICY #2 OF THE PLUP REGULATION THAT DEALS SPECIFICALLY WITH AGRICULTURE WILL BE NARROWED IN ITS' APPLICATION. THE BROAD AND FLEXIBLE POLICY CRITERIA CURRENTLY AVAILABLE IN THE PLUP TO COUNCIL WHEN CONSIDERING THE ESTABLISHMENT OR EXPANSION OF LIVESTOCK OPERATIONS WILL BE LIMITED TO ONLY ISSUES DEALING WITH SITING AND SETBACKS.

ALL MUNICIPALITIES AND/OR PLANNING DISTRICTS MUST CREATE A DEVELOPMENT PLAN WITH A LIVESTOCK OPERATION POLICY.

THE INTENT OF MANDATING DEVELOPMENT PLAN BY-LAWS, ZONING BY-LAWS AND A LIVESTOCK OPERATION POLICY IS TO CREATE AN UP-FRONT TEMPLATE FOR LIVESTOCK DEVELOPMENT. THIS IS THE POINT WHERE PREDICTABILTY FOR INDUSTRY (IE, MAPLE LEAF/ELITE SWINE) MUST BE ESTABLISHED WITH THE DEVELOPMENT PLAN MAKING PROVISIONS OF SECTION 25(1) AND SECTION 25(4) OF THE PLANNING ACT. THESE SECTIONS OF THE PLANNING ACT, HOWEVER, DO NOT ALLOW A COUNCIL/PLANNING BOARD TO CONSIDER IMPLEMENTING POLICY STATEMENTS RELATING TO HEALTH, NUISANCE, PROPERTY VALUES AND IMPACTS TO THE GENERAL WELFARE OF PERSONS RESIDING IN THE AREA, INTO A DEVELOPMENT PLAN.

Subsections 30(4) to (6) are replaced with the following:

Minister's decision
30(4) On receiving a copy of the development plan by-law and any objections, the minister may
(a) refer the by-law to The Municipal Board; or
(b) after consultation with Executive Council,
(i)approve or reject the by-law, or
(ii) approve the by-law subject to any alteration or condition that the minister considers necessary or advisable.

Options when by-law approved
30(5) If the board or council is advised of the minister's approval of its development plan by-law under clause (4)(b), it may give third reading to the by-law, but only after making any alteration and complying with any condition, or agreeing to comply with any condition, required by the minister.

Resolution not to proceed after approval
30(6) If the board or council decides not to give third reading to the by-law under subsection (5), it must pass a resolution to that effect and send a copy of it to the minister and to each person who made a representation at the public hearing held under section 28.

Minister's options
30(13) After receiving and considering The Municipal Board report, the minister may, after consultation with Executive Council,
(a) approve the development plan by-law;
(b) approve the by-law subject to any alteration or condition that the minister considers necessary or advisable; or
(c) reject the by-law.

Board or council's option when by-law approved
30(13.1) If the board or council is advised of the minister's approval of its development plan by-law under clause (13)(a) or (b), it may give third reading to the by-law, but only after making any alteration and complying with any condition, or agreeing to comply with any condition, required by the minister.

Rejected by-law not to be enacted
30(13.2) The board or council must not give third reading to the development plan by-law if it is rejected by the minister.

MINISTERIAL DISCRETION HAS BEEN SIGNIFICANTLY EXPANDED DEALING WITH DECISIONS ON RECEIVING A DEVELOPMENT PLAN FROM A COUNCIL/PLANNING DISTRICT FOR MINISTERIAL APPROVAL. FOR EXAMPLE, THE SUBJECTIVE CLAUSES OF "SUBSTANTIVE ALTERATION" AND "CONSIDERATION OF OBJECTIONS" (FROM CITIZENS) HAS BEEN REMOVED IN THE DECISION-MAKING PROCESS FOR THE MINISTER. THIS CHANGE WILL ALSO GIVE THE MINISTER MORE LEEWAY TO CHANGE AND ALTER THE DEVELOPMENT PLAN ON HIS/HER ACCORD, AS OPPOSED TO UTILIZING THE MUNICIPAL BOARD FOR FURTHER PUBLIC INPUT.

IF THE MINISTER OF THE DAY THINKS THAT THERE SHOULD BE MORE FACTORY FARMS IN MANITOBA, THEN THE MINISTER CAN USE HIS/HER DISCRETION TO ALTER THE DEVELOPMENT PLAN (WHEN UNDER IT'S FIVE YEAR REVIEW) TO REFLECT THIS PHILOSOPHY.

NOTE - THE MINISTER HAS ALWAYS HAD THE FINAL DECISION FOR INFLUENCING A DEVELOPMENT PLAN AND THE COUNCIL/PLANNING BOARD WAS GIVEN THE OPTION TO APPROVE IT OR NOT APPROVE IT THROUGH THIRD READING. NOW THE MINISTER HAS THE FINAL DECISION ON APPROVAL OF THE PLAN, AS ALL RM'S AND PLANNING DISTRICTS MUST HAVE A DEVELOPMENT PLAN.

AS THE CASE WAS BEFORE THIS AMENDMENT, THERE IS NO TRANSPARENCY, CRITERIA AND GOVERNMENT ANSWERABILITY WHEN A MINISTER MAKES A DECISION OR ALTERS A DEVELOPMENT PLAN.

The following is added after subsection 40(4):

Siting and setback provisions in zoning by-law
40(4.1) A zoning by-law must contain provisions respecting the siting and setback of livestock operations. The minimum siting and setback requirements under the by-law must be generally consistent with the siting and setback guidelines for livestock operations set out in provincial land use policies contained in a regulation made under clause 6(2)(a).

If zoning by-law does not comply
40(4.2) If a zoning by-law does not comply with subsection (4.1), the council may approve an application proposing the development or expansion of a livestock operation only if it is satisfied that the proposed operation or expansion generally conforms with the siting and setback guidelines for livestock operations set out in provincial land use policies contained in a regulation made under clause 6(2)(a).

Exception
40(4.3) Subsection (4.1) does not apply if the livestock operation policy in the development plan for the municipality prohibits livestock operations throughout the municipality.

THE MINISTER THROUGH THE GOVERNMENT'S PRESS RELEASE HAS ASSURED THE PUBLIC THAT "MUNICIPALITIES WOULD BE ABLE TO SUBSTITUTE THE PROVINCIAL REGULATION (PROVINCIAL LAND USE POLICY) FOR SITING AND SETBACKS WITH STRICTER LOCATION STANDARDS". HOWEVER, THIS SECTION (40(4.1)) EXPRESSIVELY STATES THAT SITING AND SETBACKS, "MUST BE GENERALLY CONSISTENT" WITH THE LAW.

IT APPEARS THEN, THAT DEVELOPERS COULD EASILY CHALLENGE MUNICIPALITIES IN THE COURTS, IF MUNICIPALITIES ATTEMPTED TO SET MORE STRINGENT SITING AND SETBACKS FOR LIVESTOCK OPERATIONS IN THEIR ZONING BY-LAW.

NOTE, THAT PROVINCIAL STANDARDS FOR SITING AND SETBACKS ARE NOT REQUIRED FOR THOSE MUNICIPALITIES THAT PROHIBIT LIVESTOCK OPERATIONS. IT IS HIGHLY UNLIKELY THAT A MUNICIPALITY WILL PROHIBIT LIVESTOCK DEVELOPMENT, AS A LIVESTOCK OPERATION IS DEFINED AS BEING LARGER THAN 10 ANIMAL UNITS.


LIVESTOCK OPERATIONS

OPERATIONS INVOLVING 300 OR MORE ANIMAL UNITS

Sections 59.3(1) to 59.4(7) - The following sections are similar to the existing legislation. Operations greater than 300 animal units require a public meeting. Council must submit the application to the Minister, the Minister refers the application to the Technical Review Committee, and the TRC writes a report with findings and recommendations. The report is made
available for the public to read. Council must schedule a public hearing, at least 30 days after the TRC report is completed. The public must be notified at least 2 weeks before the hearing for those who own property within 3 kilometers.

MAJOR CHANGES IN THIS SECTION RELATES TO THE THRESHOLD FOR TRIGGERING A TECHNICAL REVIEW COMMITTEE. (FORMALLY 400 ANIMAL UNITS; NOW 300 ANIMAL UNITS) THIS SECTION ALSO EXTENDS THE DISTANCE IN WHICH CITIZENS MUST BE GIVEN NOTICE OF AN APPLICATION (FORMALLY 2 KMS - NOW 3 KMS). A PROPERTY OWNER WITHIN 3 KMS OF A NEIGHBORING MUNICIPALITY MUST ALSO BE NOTIFIED.

THIS SECTION ALSO REMOVES LIVESTOCK OPERATIONS FROM THE CONDITIONAL USE DESIGNATION AND CONDITIONAL USE HEARING TO A SEPARATE STANDARD REVIEW PROCESS. CONDITIONAL USE HEARINGS AND DESIGNATION IS STILL MAINTAINED IN THE PLANNING ACT FOR ANY OTHER TYPES OF DEVELOPMENT.

NO CHANGES HAVE OCCURRED TO THE ESTABLISHEMENT, ROLE AND OPERATION OF THE TECHNICAL REVIEW COMMITTEE (TRC). IT IS STILL LEGISLATIVELY UNDEFINED AS TO WHAT IS ITS' PURPOSE, WHO SITS ON THE COMMITTEE AND WHAT ISSUES ARE TO BE ADDRESSED.

THE DEVELOPMENT OF A TRC REPORT CONTINUES WITH THE BAD PRACTICE OF NOT ALLOWING THE PUBLIC THE OPPORTUNITY TO HAVE INPUT INTO THE PROCESS - A RIGHT GUARANTEED FOR THE PUBLIC UNDER THE ENVIRONMENT ACT WHEN A DEVELOPMENT IS PROPOSED FOR LICENSING.

THESE DEFICIENCIES IN THE PAST HAVE LED TO THE TRC IN MAKING NUMEROUS MISTAKES AND/OR OMMISSIONS IN THEIR ANALYSIS. CITIZENS, WITH THEIR LOCAL KNOWLEDGE OF THE AREA, HAVE BEEN VIGILANT IN IDENTIFYING THESE MISTAKES AND/OR OMMISSIONS AND HAVE BEEN SUCCESSFUL IN INFLUENCING A COUNCIL'S DECISION.

Decisions on Applications

Council's decision
59.5(1) After the hearing, the council may approve an application under this Division, with or without conditions under subsection (2), only if
(a) the Technical Review Committee has determined, based on the available information, that the proposed operation or expansion will not create a risk to health, safety or the environment, or that any risk can be mitigated through the use of appropriate practices, measures and safeguards; and
(b) the council is satisfied that
(i) the proposed operation or expansion will be compatible with the general nature of the surrounding area,
(ii) the proposed operation or expansion generally conforms with the development plan by-law for the municipality,
(iii) approval of the proposed operation or expansion would be consistent with the livestock operation policy for the municipality, if the municipality's development plan by-law had a policy at the time the application was received, and
(iv) the proposed operation or expansion conforms with the applicable provisions of the municipality's zoning by-law.

THE DECISION-MAKING SECTION FOR AN APPLICATION SEVERELY RESTRICTS A COUNCIL FROM DENYING A PROPOSAL AND VIRTUALLY ELIMINATES THE ROLE THE PUBLIC CAN HAVE IN INFLUENCING A COUNCIL DECISION.

FOR EXAMPLE, IF AN AREA OF THE MUNICIPALITY IS ZONED FOR LIVESTOCK OPERATIONS AND MEETS ALL THE MINIMAL SITING AND SETBACK REQUIREMENTS OF THE PLUP REGULATION AND ZONING BY-LAW AND HAVE NO EVIDENCE TO REJECT TRC RECOMMENDATIONS, COUNCIL HAS NO OPTION, BUT TO ACCEPT THE APPLICATION, EVEN THOUGH HUNDREDS OF CITIZENS IN THE AREA MAY OBJECT TO THE DEVELOPMENT, OR, MAY HAVE IDENTIFIED FLAWS IN THE ALREADY COMPLETED TECHNICAL REVIEW REPORT.

THIS SECTION REMOVES THE BROAD DECISION-MAKING POWERS GRANTED UNDER SECTION 53(7) OF THE PLANNING ACT, WHEREBY COUNCIL CAN REJECT A PROPOSAL, IF THE PROPONENTS CANNOT PROVE THAT: "THE DEVELOPMENT, IS NECESSARY OR DESIRABLE FOR, AND COMPATIBLE WITH, THE NEIGHBORHOOD, THE COMMUNITY AND THE GENERAL ENVIRONMENT, AND THAT SUCH USE OR FEATURE, AS PROPOSED, WILL NOT BE DETRIMENTAL TO THE HEALTH, SAFETY, CONVENIENCE, OR GENERAL WELFARE OF PERSONS RESIDING OR WORKING IN THE VICINITY, OR INJURIOUS TO PROPERTY, IMPROVEMENTS OR POTENTIAL DEVELOPMENT IN THE VICINITY."

THE CHANGES TO THE DECISION-MAKING POWERS FOR COUNCIL PLACES GREATER WEIGHT ON THE TECHNICAL REVIEW COMMITTEE WHICH DOESN'T ALLOW FOR ANY PUBLIC INPUT AND AS PREVIOUSLY MENTIONED, DOES NOT PROVIDE TRANSPARENCY AND FLEXIBILITY (IE, AMONG OTHER THINGS, WIDENING THE SCOPE OF ISSUES AND CONCERNS) IN IT'S REVIEW PROCESS.

THIS CHANGE ALSO REMOVES THE PRECAUTIONARY PRINCIPLE IN DECISION-MAKING THAT COUNCIL HAD PREVIOUSLY BEEN GRANTED UNDER SECTION 53(7) OF THE PLANNING ACT.

THIS NEW DECISION-MAKING CLAUSE WILL ALSO PERPETUATE THE NOTION THAT FACTORY FARMS DO NOT LOWER PROPERTY VALUES TO THOSE WHO LIVE CLOSE TO THEM. IT ALSO PROHIBITS A COUNCIL'S ABILITY TO REJECT A FACTORY FARM FOR REASONS THAT IT MAY CAUSE A NUISANCE OR IT MAY IMPACT THE VALUE OF A NEIGHBORS PROPERTY.

Livestock operations under 300 Animal Units

THE DECISION-MAKING PROCESS OF COUNCIL FOR LIVESTOCK OPERATIONS UNDER 300 ANIMAL UNITS IS SIMILAR TO THAT FOR OPERATIONS OVER 300 AU'S. THE EXCEPTIONS HOWEVER, ARE THAT, COUNCIL IS NOT REQUIRED TO HAVE A PUBLIC MEETING AND IF A CONDITION IS PLACED ON THE DEVELOPMENT, THE APPLICANT IS GRANTED AN APPEAL PROCESS.

Conditions of approval
59.5(2) A council may impose only the following conditions on the approval of an application and any condition must be relevant and reasonable:
(a) measures to ensure conformity with the applicable provisions of the development plan by-law and zoning by-law for the municipality;
(b) measures to implement recommendations made by the Technical Review Committee;
(c) one or both of the following measures intended to reduce odours from the livestock operation:
(i) requiring covers on manure storage facilities,
(ii) requiring shelter belts to be established;
(d) requiring an applicant to enter into a development agreement under subsection (4); and the council may revoke its approval for violation of any condition imposed by it.

No conditions re manure
59.5(3) A council may not impose any condition respecting the storage, application or use of manure from a livestock operation on its approval of an application, other than a condition permitted under clause (2)(c) or a condition to implement a recommendation made by the Technical Review Committee.

Development agreement
59.2(6) As a condition of its approval of an application, a council may require the applicant to enter into a development agreement with the municipality regarding the land on which the livestock operation is to be located, as well as any contiguous land owned or leased by the applicant, dealing with one or more of the following matters:
(a) the timing of construction of any proposed building or structure;
(b) the control of traffic;
(c) the construction and maintenance of roads, fencing, landscaping, shelter belts or site drainage works by or at the expense of the owner or applicant;
(d) the payment of a sum of money to the board or council to be used by the board or council to construct anything mentioned in clause (c).

Effect of registering agreement
59.2(7) An agreement referred to in subsection (6) may provide that it runs with the land, and when a caveat with a copy of the agreement attached is filed in the appropriate land titles office, the agreement binds the owner of the land affected by it, and the owner's heirs, executors, administrators, successors and assigns.

THIS SECTION HAS ALSO BEEN SEVERELY ALTERED. PREVIOUSLY, COUNCIL WAS ABLE TO IMPOSE ANY CONDITION WHEN APPROVING A CONDITIONAL USE, EVEN CONDITIONS BEYOND WHAT WAS CONTAINED IN THE ZONING BY-LAW AND DEVELOPMENT PLAN.

AS THIS SECTION IS CURRENTLY PROPOSED, ONLY THOSE CONDITIONS WHICH HAVE BEEN IDENTIFIED IN THE DEVELOPMENT PLAN AND ZONING BY-LAW CAN BE IMPOSED BY COUNCIL OR ANY RECOMMENDATION FROM THE TRC. THESE CONDITIONS WOULD BE IMPLEMENTED AT THE VOLUNTARY DISCRETION OF THE COUNCIL.

THIS SECTION ON APPLYING CONDITIONS ALSO LIMITS COUNCILS ABILITY TO IMPOSE CONDITIONS DEALING SPECIFICALLY WITH THE STORAGE, APPLICATION OR USE OF MANURE.

FOR EXAMPLE, IF A MUNICIPALITY WANTS TO ENSURE THAT UNTREATED MANURE BE APPLIED BASED ON IT'S PHOSPHORUS CONTENT (IE, REQUIRING 2 TO 6 TIMES MORE LAND FOR SPREADING) IT WILL NOT BE ABLE TO IMPOSE THIS CONDITION. (PLEASE NOTE, QUEBEC ALREADY REGULATES MANURE BASED ON IT'S PHOSPHORUS CONTENT AND IOWA AND NORTH CAROLINA ARE SOON MOVING TO A PHOSPHORUS BASED SYSTEM).

AS ANOTHER EXAMPLE, IF A COUNCIL WANTS TO HAVE THE LIQUID MANURE TREATED BEFORE IT IS RELEASED INTO THE ENVIRONMENT (BECAUSE OF ITS IMPACTS TO PEOPLE'S HEALTH AND THE ENVIRONMENT - SIMILAR TO THE LAW IN MANITOBA FOR HUMAN SEPTAGE) THEY WILL NOT BE ABLE TO IMPOSE THIS CONDITION.

APPLICATION OF MUNICIPAL BY-LAWS TO LIVESTOCK OPERATIONS

Limited restrictions on livestock operations
59.7(1) Except as provided in a development plan by-law or provisions in a zoning by-law respecting the siting and setback of livestock operations that meet the requirements of subsection 40(4.1), a board or council may not impose any restrictions or conditions on
(a) the location of a livestock operation; or
(b) the number of animal units produced by a livestock operation.

When by-law does not apply to livestock operation
59.7(2) Notwithstanding Part 7 of The Municipal Act (By-laws: General Jurisdiction), a municipal by-law respecting nuisance odours or prohibiting or regulating the storage, application or use of manure does not apply to a livestock operation if the owner or operator of the operation is complying with
(a) all other Acts and regulations regarding the storage, application or use of manure; and
(b) the terms and conditions of any permit or license required to be held by the owner or operator under an Act or regulation.

SECTION 59.7(1) REMOVES THE ABILITY OF COUNCIL TO CONTROL THE SITING AND SIZE OF OPERATION THROUGH THE BY-LAW MAKING PROVISIONS OF THE MUNICIPAL ACT.

FOR EXAMPLE, IF A MUNICIPALITY HAD A BY-LAW UNDER THE MUNICIPAL ACT THAT REQUIRED A DEVELOPER TO GET CONSENT FROM ANY NEIGHBOR WITHIN 2 MILES OF THE PROPOSED SITE IN ORDER TO GET APPROVAL, THAT MUNICIPALITY WOULD NO LONGER BE ABLE TO IMPLEMENT THAT BY-LAW.

SECTION 59.7(2) PROHIBITS A MUNICIPALITY FROM IMPLEMENTING A BY-LAW THROUGH THE MUNICIPAL ACT, WHICH WOULD BE MORE STRINGENT THAN THE CURRENT (AND INADEQUATE) MANURE MANAGEMENT AND MORTALITY REGULATION.

AGAIN, THE MUNICIAPLITY CANNOT IMPLEMENT A BY-LAW, WHICH COULD CONSIDER A FACTORY FARM TO BE A NUISANCE. THIS CLAUSE PERPETUATES THE FALSE NOTION THAT THE BARNS THEMSELVES (NOT CURRENLTY REGULATED UNDER THE ENVIRONMENT ACT) DO NOT EMIT DANGEROUS AND HAZARDOUS POLLUTANTS INTO THE ATMOSPHERE (IE, HYDROGEN SULPHIDE AND AMMONIA) AND UTILIZE "NORMAL" FARMING PRACTICES.