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Second Session, Thirty-Eighth Legislature

This version is based on the printed bill that was distributed in the Legislature after First Reading.
It is not the official version.   If accuracy is critical, you can obtain a copy of the printed bill from Statutory Publications.

Bill 40

THE PLANNING AMENDMENT ACT


Explanatory Note

(Assented to                                         )

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:

C.C.S.M. c. P80 amended

1           The Planning Act is amended by this Act.

2           Section 1 is amended by adding the following definitions:

"livestock operation" means a permanent or semi-permanent facility or non-grazing area where livestock producing at least 10 animal units are kept or raised, either indoors or outdoors, and includes all associated manure collection facilities; (« exploitation de bétail »)

"livestock operation policy" means a livestock operation policy required under subsection 24(4); (« politique en matière d'exploitation de bétail »)

3           Subsection 6(2) is amended

(a) in clause (c), by striking out "subsection 24(5)" and substituting "subsection 24(8)"; and

(b) by adding the following after clause (d):

(e) defining any word or phrase used but not defined in this Act;

(f) respecting any matter necessary or advisable to carry out the purposes of this Act.

4           Section 24 is replaced with the following:

Development plan deadline

24(1)       By no later than January 1, 2007, a board or council must adopt a development plan for the planning district or municipality that is designed to

(a) achieve the objectives stated in the plan; and

(b) promote the optimum economic, social, environmental and physical condition of the area.

Extension of deadline

24(2)       If the minister is satisfied that a board or council has used its best efforts to comply with subsection (1), the minister may, by written notice to the board or council, extend the time for the board or council to adopt a development plan.

Exempt land

24(3)       A development plan is not required for land located in unorganized territory or a provincial park, or in Northern Manitoba, as that term is defined in The Northern Affairs Act.

Inclusion of livestock operation policy

24(4)       A board or council must, in accordance with subsection (5), include a livestock operation policy in its development plan that sets out

(a) by statement or through a map or series of maps, the areas of the planning district or municipality in which

(i) applications to develop or expand livestock operations may be approved,

(ii) applications to develop or expand livestock operations producing a specified maximum number of animal units may be approved, and

(iii) no applications to develop or expand livestock operations will be considered; and

(b) the general standards to be followed in the planning district or municipality respecting the siting and setback of livestock operations.

Deadline for livestock operation policy

24(5)       A board or council must ensure that its development plan includes a livestock operation policy

(a) by no later than January 1, 2007, if the board or council has not adopted a development plan as of January 1, 2005; or

(b) by the time the board or council has concluded its review of its development plan under section 26, if the board or council has adopted a development plan as of January 1, 2005.

Minister may prepare plan or amendment

24(6)       If a board or council fails to comply with subsection (1) or (4) or, if it is granted an extension under subsection (2) and fails to adopt a development plan within that time, the minister may prepare

(a) a development plan for the planning district or municipality, if the district or municipality has not adopted a development plan; or

(b) an amendment to an adopted development plan to include a livestock operation policy in the plan, if the district or municipality has adopted a development plan that does not have a livestock operation policy;

and submit the plan or amendment to the Lieutenant Governor in Council for approval.

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.

Order re airport vicinity protection area

24(8)       If the minister believes that the operation of an airport or a proposed airport may be adversely affected by the use of land or buildings or by development in an area, the minister may, after consultation with a board or council, issue a written order to the board or council to amend its adopted development plan to comply with subsection 25(5).

5           Subsection 25(5) is amended in the part before clause (a) by striking out "subsection  24(5)" and substituting "subsection 24(8)".

6           Subclauses 28(2)(c)(i) and (ii) are replaced with the following:

(i) sending a copy of the notice, at least 14 days before the hearing, to the owner of the affected property and to every owner of property located within 100 metres of the affected property, even if a property is located outside the municipality's boundaries, and

(ii) posting a copy of the notice on the affected property in accordance with subsection (3).

7(1)        Clause 30(2)(b) is amended by adding "setting out the specific nature of the person's objection" after "file an objection".

7(2)        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.

7(3)        Subsection 30(7) is amended by striking out "clause (4)(b)" and substituting "clause (4)(a)".

7(4)        Subclause 30(8)(b)(ii) is amended by striking out "whose objections to the by-law require consideration under subclause (4)(b)(i)" and substituting "who filed an objection with the minister in accordance with clause (2)(b)".

7(5)        Subsections 30(13) and (14) are replaced with the following:

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.

Third reading deadline does not apply

30(13.3)    Clause 144(a) of The Municipal Act does not apply to a development plan by-law.

Resolution not to proceed with approved by-law

30(14)      If the board or council decides not to proceed with a development plan by-law approved under clause (13)(a) or (b), 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 Municipal Board hearing held under subsection (7).

8           The following is added after subsection 32(3):

Third reading deadline does not apply

32(4)       Clause 144(a) of The Municipal Act does not apply to a zoning by-law.

9           Subsection 39(1) is replaced with the following:

Zoning by-law to conform to development plan

39(1)       A zoning by-law must generally conform to the development plan adopted for the area.

10          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.

11          Subclauses 42(2)(c)(i) and (ii) are replaced with the following:

(i) sending a copy of the notice, at least 14 days before the hearing, to the owner of the affected property and to every owner of property located within 100 metres of the affected property, even if a property is located outside the municipality's boundaries, and

(ii) posting a copy of the notice on the affected property in accordance with subsection (3).

12(1)       Subsection 45(3) is amended by striking out "Within 30 days" and substituting "Subject to subsection (3.1), within 30 days".

12(2)       The following is added after subsection 45(3):

Delayed decision when concurrent objections

45(3.1)     If the minister is reviewing a development plan by-law or an amendment to an existing development plan by-law at the same time as objections to a zoning by-law for the same area are being considered under this section, The Municipal Board or the board may delay making an order until the minister has made his or her decision.

12(3)       Subsections 45(6) and (7) are amended

(a) in clause (a), by adding "or the minister" after "of an adjoining municipality"; and

(b) in clause (b), by striking out "government of Manitoba" and substituting "minister".

13(1)       Subsection 53(1.1) and the centred heading above it are repealed.

13(2)       Subsection 53(2) is amended in the part before clause (a) by striking out "other than an application that is subject to section 53.1 (livestock operation)".

13(3)       Subsection 53(11) is amended

(a) by replacing the section heading of the French version with "Avis de la décision"; and

(b) by adding "and" at the end of clause (a), striking out "and" at the end of clause (b) and repealing clause (c).

14          Section 53.1 and the centred heading above it are repealed.

15          The following is added after section 59:

PART V.1

LIVESTOCK OPERATIONS

DIVISION 1

APPLICATIONS FOR DEVELOPMENT OR EXPANSION

Approval of livestock operation required

59.1(1)     No person shall develop or expand a livestock operation in a municipality unless the council of that municipality has approved the development or expansion in accordance with this Part.

Application requirements

59.1(2)     An application for approval of the development or expansion of a livestock operation must be made to the council by the owner of the operation or by a person authorized in writing by the owner and must be in a form and accompanied by any material and payment of any fee required by the council.

DIVISION 2

OPERATIONS INVOLVING FEWER THAN 300 ANIMAL UNITS

No hearing required if under 300 animal units

59.2(1)     A council is not required to hold a public hearing respecting an application proposing

(a) the development of a livestock operation involving the production of fewer than 300 animal units; or

(b) the expansion of an existing livestock operation, if the expanded operation would involve the production of fewer than 300 animal units.

Approving an application

59.2(2)     A council may approve an application under this Division, with or without conditions under subsection (3), only if it is satisfied that

(a) the proposed operation or expansion will be compatible with the general nature of the surrounding area;

(b) the proposed operation or expansion generally conforms with the development plan by-law for the municipality;

(c) approval of the proposed operation or expansionwould 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

(d) the proposed operation or expansion conforms with the applicable provisions of the municipality's zoning by-law.

Conditions of approval

59.2(3)     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) 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;

(c) requiring an applicant to enter into a development agreement under subsection (6);

and the council may revoke its approval if any condition imposed by it is violated.

No conditions re manure

59.2(4)     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 (3)(b).

No conditions without applicant's input

59.2(5)     Before imposing a condition on an approval under this Division, the council must give the applicant an opportunity to make representations to council about the proposed condition.

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.

DIVISION 3

OPERATIONS INVOLVING 300 OR MORE ANIMAL UNITS

Applications

Minister to receive copy of application

59.3(1)     A council must ensure that when an application is received proposing

(a) the development of a livestock operation involving the production of 300 or more animal units; or

(b) the expansion of an existing livestock operation if the expanded operation would involve the production of 300 or more animal units;

a copy of the application and all accompanying material is immediately sent to the minister.

Technical Review Committees

Appointment of Technical Review Committees

59.3(2)     The minister may appoint a committee, to be known as the Technical Review Committee, for each region of the province.

Application referred to T.R.C.

59.3(3)     On receiving an application under this Division, the minister must refer it to the appropriate Technical Review Committee for review.

Committee may require additional material

59.3(4)     The Technical Review Committee may require the applicant to provide material in addition to the material required under subsection 59.1(2).

T.R.C. report

59.3(5)     The Technical Review Committee must prepare a report for the council of the municipality in which the livestock operation is located or is proposed to be located. The report must set out the committee's findings and recommendations respecting the application.

Report to be made available at municipal office

59.3(6)     The council must make the Technical Review Committee report available for inspection and copying at the municipal office.

Hearings

Hearing date

59.4(1)     The council must fix a date for the hearing of an application under this Division, which must be at least 30 days after it receives the Technical Review Committee report respecting the application.

Notice of hearing date

59.4(2)     At least 14 days before the date of hearing, the council must

(a) send a notice of the hearing to the applicant;

(b) publish the notice in one issue of a newspaper or other publication with a general circulation in the municipality or, if no publication is available, post the notice in the municipal office and at least two other public places;

(c) send a copy of the notice to every owner of property located within three kilometres of the property for which the application is made, even if a property is located outside the municipality's boundaries;

(d) post the notice on the affected property in accordance with subsection 53(3); and

(e) send a notice of the hearing to any neighbouring municipality that is located within three kilometres of the property for which the application is made.

Notice of T.R.C. report

59.4(3)     The notice of hearing must include notice that the Technical Review Committee report is available for inspection and copying at the municipal office.

Proof of posting of notice

59.4(4)     Evidence that a notice was posted on two occasions at least six days apart during the 14-day period referred to in clause 53(3)(a) is proof that the notice was posted for the entire 14-day period.

Public hearing

59.4(5)     At the hearing of an application under this Division, the applicant and any member of the public may make written or oral submissions to the council.

Record of hearing

59.4(6)     The council must keep written minutes of a hearing under this Division.

Adjourning public hearing

59.4(7)     The council may adjourn a hearing under this Division to a fixed date.

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.

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

59.5(4)     Subsections 59.2(6) and (7) (development agreements) apply, with necessary changes, when an application is approved under this Division.

DIVISION 4

NOTICE OF DECISION

Notice of decision

59.6(1)     A council must provide notice of its decision on an application under this Part

(a) by serving a copy of the decision on the applicant personally or by registered or certified mail;

(b) by sending a copy of the decision by regular mail to the minister; and

(c) in the case of an application under Division 3, by sending a copy of the decision by regular mail to each person who made an oral or written submission to the council at a hearing under subsection 59.4(5).

Expiry of approval

59.6(2)     The approval of an application under this Part expires and ceases to have any effect if it is not acted upon within 12 months after the date of the decision, unless it is renewed before the expiry date, at the discretion of the council, for an additional period not exceeding 12 months.

No development until all approvals obtained

59.6(3)     No development or expansion of a livestock operation shall take place until

(a) the application is approved and the applicant complies, or agrees to comply, with any condition imposed as a condition of approval under this Part; and

(b) the applicant obtains every approval, including any permit or licence, required under an Act, regulation or by-law in respect of the proposed operation or expansion, and complies with, or agrees to comply with, any condition attached to an approval.

DIVISION 5

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 licence required to be held by the owner or operator under an Act or regulation.

Transitional: Applications received before Act in force

16(1)       If, before the coming into force of this Act, a council receives an application proposing the development or expansion of a livestock operation, the application is to be dealt with in accordance with the hearing and approval process in effect in the municipality at the time the application was received.

Transitional: If no development plan adopted

16(2)       If, after the coming into force of this Act, a council receives an application proposing the development or expansion of a livestock operation and, when the application is received, the council does not have a development plan by-law, the application is to be dealt with in accordance with the hearing and approval process set out in Part V.1 of The Planning Act, as enacted by this Act. However, the council may approve the application only if it is satisfied that approval of the proposed operation or expansion would be consistent with the provincial land use policies contained in a regulation made under clause 6(2)(a).

Transitional: If no zoning by-law

16(3)       If, after the coming into force of this Act, a council receives an application proposing the development or expansion of a livestock operation and, when the application is received, the council has a development plan by-law but has not yet adopted a zoning by-law, the application is to be dealt with in accordance with the hearing and approval process set out in Part V.1 of The Planning Act, as enacted by this Act. However, the council may approve the application only if it is satisfied that the proposed operation or expansion generally conforms with the siting and setback guidelines for livestock operations stated in provincial land use policies contained in a regulation made under clause 6(2)(a).

Coming into force

17           This Act comes into force on January 1, 2005.

Explanatory Note

This Bill makes a number of changes to The Planning Act. Many of the changes concern the way in which municipalities consider applications to develop or expand livestock operations.

A development plan is a planning framework that guides the use and development of land in a municipality or planning district.  By January 1, 2007, each municipality or planning district will be required to adopt a development plan, unless an extension is granted.  The development plan must include a livestock operation policy setting out the areas where applications to develop or expand livestock operations may be approved and areas where applications will not be considered.  A municipality must also enact a zoning by-law respecting the siting and setback of livestock operations.

The Bill establishes a uniform hearing and approval process for applications to develop or expand livestock operations.  For proposed operations involving 300 or more animal units, a public hearing and a technical review are required.  Owners of property located within three kilometres of a proposed livestock operation must receive notice of the application, even if the property is in another municipality.

The Bill restricts the conditions that municipalities may impose when approving an application involving a livestock operation.

Municipal by-laws dealing with nuisance odours and the storage and use of manure will not apply to livestock operations that are complying with provincial standards respecting the storage, application and use of manure.