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The following is the written judgement in the case of Elite Swine Inc.
vs. the RM of Moosomin. Moosomin is located in southeastern Saskatchewan.
The company was appealing a lower court decision that upheld the RM's
decision not to approve an ILO, which is a discretionary use. The appeal
was dismissed, so the ILO is not approved.
ELITE
SWINE INC. V. MOOSOMIN (RURAL MUNICIPALITY NO. 121)
CA07038
Date of Judgment:
March 15, 2007
(orally)
THE COURT OF APPEAL FOR SASKATCHEWAN
Citation: 2007 SKCA 38 Date: 20070315
Between: Docket: 1337
Elite Swine Inc., Gateway Farms Inc. and Lorne Crosson
Appellants
- and -
The Rural Municipality of Moosomin No. 121
Respondent
Coram:
Cameron, Sherstobitoff & Lane JJ.A.
Counsel:
Diana Lee for the Appellants
Robert Leurer, Q.C. for the Respondent
Appeal:
From: 2006 SKQB 314
Heard:
March 15, 2007
Disposition: Dismissed (orally)
Written Reasons:
April 2, 2007
By: The Honourable Mr. Justice Sherstobitoff
In Concurrence: The Honourable Mr. Justice Cameron
The Honourable Mr. Justice Lane
SHERSTOBITOFF J.A.
[1] This appeal was dismissed from the bench with brief written reasons to
follow. These are the reasons.
[2] The issue in this appeal is whether the respondent municipality, in
refusing to grant a permit to the appellants to establish an intensive
livestock operation (ILO) in the municipality, denied the appellants
procedural fairness. In an application for judicial review the appellants
alleged that they had a reasonable apprehension of bias on the part of
some members of the council of the municipality. They further alleged that
adequate reasons for the decision of council were not given, and if the
reasons were adequate, the decision was patently unreasonable. The
application for judicial review was dismissed and the appeal is from that
order of dismissal.
[3] In 2003, the appellants applied for a development permit allowing them
to establish an intensive swine operation in the municipality. In
Saskatchewan
, three separate regulatory bodies
must approve such applications before an ILO may be established. Land use
approval must be obtained from the municipality in which the ILO is to be
situated. Environmental approval must be obtained from Saskatchewan
Agriculture and Food (SAF), a department of the government of
Saskatchewan
. Water use approval must be
obtained from the Saskatchewan Watershed Authority (SWA), a body created
by statute.
[4] The Planning and Development Act, 1983, S.S. 1983-4, c. P-13.1 governs
the development of land. Under the authority of s. 42, the respondent
municipality adopted a basic planning statement setting out the objectives
for the future development of the municipality, and a statement of
objectives to be accomplished by a zoning by-law implementing those goals.
It also passed a zoning by-law implementing those objectives.
[5] The following is an excerpt from the planning statement:
3.3.3. Intensive Agriculture
(1) In general, Council will support the development of intensive
agricultural and livestock operations unless specific locational conflicts
would be created.
(2) Intensive agricultural operations and intensive livestock operations (ILOS)
will be discretionary uses ...
(5) In order to minimize conflict between intensive livestock operations
and surrounding development, Council will consider applications for
development of an I.L.O. and apply the following criteria:
...
b) The applicant has demonstrated to the satisfaction of Council that the
water supply is sufficient for the development and the supply for
neighbouring developments will not be adversely affected by the proposed
operation. [Emphasis added]
[6] Section 5.2 of the zoning bylaw also states that intensive livestock
operations are discretionary uses.
[7] Section 74(2) of The Planning and Development Act, 1983 sets out the
authority of a municipal council when dealing with a discretionary use
application.
74(2) On receipt of an application for a discretionary use or
discretionary form of development, the council may, by resolution or
bylaw:
(a) reject the application;
(b) approve the application where the facts presented establish that the
proposed use or form of development:
(i) 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;
and
(ii) complies with the applicable provisions of the zoning bylaw and will
not be contrary to the development plan or the basic planning statement.
...
[8] Of particular importance in this case is s. 5.4.2(1) of the zoning
bylaw which refers to water requirements:
5.4.2(1) In the application for an intensive agricultural operation the
applicant shall identify the proposed supply of water for the operation
where intensive irrigation is required, which supply shall be sufficient
to meet the needs of that operation without detrimental effects on the
supply or ground water used by neighbouring properties.
[9] The appellants' application generated controversy within the
municipality, with a segment of the community vehemently opposed to the
proposed ILO (although the respondent had approved an ILO involving cattle
rather than swine.) As a result of the controversy, the appellants
proceeded to obtain the necessary SAF approval and in fact obtained it on
December 23, 2004
.
[10] As a part of the SAF review process, the council of the municipality
was asked to provide its views of the proposed development. Council
commissioned a report from a land use consultant. His report was adopted
by council. It recommended that council rely on SAF approval with respect
to environmental concerns, and rely on SWA approval respecting water
concerns, as council itself did not have the expertise to decide these
questions.
[11] The necessary SWA approval was never obtained. The evidence filed
showed that while the appellant had obtained the permission of the SWA to
drill a test well, and that the test well indicated a sufficient flow of
water for the project, the appellant had not completed the groundwater
investigations required by the SWA.
[12] In the meantime, as a result of an election, some persons who had
been publicly and implacably opposed to the ILO were elected to council,
effective
January 1, 2005
.
[13] Thereafter, council declined to grant the permit, giving the
following reasons dated
July 7, 2005
:
1. The applicant has not demonstrated to the satisfaction of council that
the water supply is sufficient for the proposed operation and that the
supply for neighbouring developments will not be adversely affected by the
proposed operation, as required by section 3.3.3(5)(b) of the Basic
Planning Statement Bylaw and clause 74(2)(b)(ii) of The Planning and
Development Act, 1983.
2. The facts presented do not establish to the satisfaction of council
that the proposed development 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 as required by clause 74(2)(b)(i) of The
Planning and Development Act, 1983.
[14] On
September 6, 2005
, lawyers for the appellant wrote
to the respondent municipality, questioning the sufficiency of the
reasons, and suggesting that if the expressed concerns respecting water
were genuine, the permit should be granted subject to the condition that
the appellants obtain the necessary approvals from the SWA. The
municipality replied on
October 11, 2005
, stating that it had a legal
opinion that it had no authority to grant conditional approvals. It also
added to its reasons for decision by adding some additional grounds that
are not germane to this appeal.
[15] The judge hearing the appellants' motion to quash and to compel the
respondent to issue the permit dismissed the applications. He found the
reasons given to be adequate, and respecting the allegations of bias,
found no evidence that members of the council of the municipality had
closed minds when they heard the application.
[16] We are all of the view that the judge decided the matter correctly.
[17] Since the appellants had not completed their water investigations or
obtained the authority of the SWA to drill the wells necessary for the
development, they cannot be said to have met the requirements of section
3.3.3(5)(b) of the planning statement, quoted above. The appellants seemed
to assume that the municipality should rely on the SWA for these
requirements, and grant the permit on condition that SWA approval be
obtained, but nothing in the planning statement or zoning bylaw required
it to do so. And, even assuming that the municipality was required to
accept any decisions of the SWA, the SWA had not granted the necessary
approvals. Thus, the application was not complete and was premature.
Accordingly, the reason given by the municipality in this respect, in
writing, was clear and unequivocal. Since the appellants had failed to
provide proof that the water requirements of the SWA, of s.3.3.3.(5)(b) of
the basic planning statement, and of s. 5.4.2(1) of the zoning bylaw, were
met, it was open to council to refuse the application. While the reasons
given were stated in the same terms used in s. 3.3.3.(5)(b), those reasons
clearly expressed to the appellants, in a fashion understandable to
anyone, the reason for dismissal of their application. The appeal cannot
succeed on these grounds
[18] As to the allegations of bias, there was evidence that some persons
elected to the council of the municipality effective
January 1, 2005
, were, prior to that date,
publicly and implacably opposed to the proposed development. However, on
the application to quash, each member of council (with one exception,
which was explained) filed affidavits as to how they approached the vote
on the application. The following excerpt from one of the affidavits was
typical:
35. I have never had a pecuniary interest in any aspect of the Application
and at no time was I required to make a declaration of pecuniary interest
as required by section 45 of The Rural Municipality Act, 1989.
36. >From the time I became Reeve and therefore became a member of
Council (and in fact before then), I endeavored to, and do verily believe
I did, keep a mind open to persuasion as I listened to the submissions of
other council members individuals and groups on the issue of whether or
not Council should approve the
Application. I understood the duty placed on Council to decide the
Application in accordance with section 74(2)(a) of The Planning and
Development Act, 1983 and I based my decision on the considerations
referred to in that section, and no others.
37. When I voted on the resolution presented to the Council on July 7,
2005 to deny the Application, I took into account and weighed in my mind
all of the submissions and information presented to Council up to that
date, and I voted in accordance with what I felt to be in the best
interest of the municipality and in
accordance with section 74(2)(a) of The Planning and Development Act,
1983.
[19] The appellants did not cross-examine on any of the affidavits.
[20] Furthermore, as noted above, the reasons given by council for its
decision were plausible reasons and do not, in themselves, indicate any
bias
[21]
In these circumstances, we cannot say that the judge erred in finding that
the evidence did not support a finding of a reasonable apprehension of
bias at the time of the vote.
[22] Since this matter may reach the council of the municipality again, it
is appropriate for us to address, in a general way, the scope of the
discretion invested in the council and its members by s. 3.3.3.(2) of the
basic planning statement and s. 74(2) of the Act. In addressing
applications such as the one in question, members of council must act in
accordance with the relevant legislation, all outlined above. The basic
planning statement, s. 3.3.3.(1) requires council, in general, to support
the development of ILO's unless specific locational conflicts would be
created. From this, it is apparent that if the requirements of the SAF and
SWA were met, the discretion vested in the council of the municipality
would be a narrow one, and refusal of a permit in such circumstances would
have to be based on specific facts showing detriment or injury to the
community or its members within the meaning of s. 74(2)(b)(i) of the Act.
The legislation leaves little other scope for refusal. Those members of
council and others opposed to ILO's for any other reasons would be well
advised to work toward repeal or amendment of s. 3.3.3.(1), and related
provisions of the legislation, rather than by opposing individual
applications for permits to develop ILO's.
[23] The appeal is dismissed with costs.
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Worried
about ILOs
Letter to the Editor
March 15, 2004
Dear
Editor:
The
debate over the intensive livestock operations has been raging in this
area for quite some time now. Several letters and articles
have appeared in the paper with regard to this issue. Between this
and
the past dispute in McAuley, I became concerned with the immediate effects
that the hog barns would have
on my family and the surrounding area. As a result, I started to research
the topic to form my own
opinions and I ended up doing an essay on the topic as my Environmental
Issue Essay for my Grade 10
Science class. During my research, I found it very hard to find any
positive things on the topic. I quickly concluded that the shift in hog
production was only causing damage. The real reason I am writing this
letter is not to tell you my opinion on the issue. It is more or less a
plea for the health and safety of the nine children in my surrounding
area. At the last council meeting, an ILO application was accepted by the
RM of Moosomin to have an earthen lagoon, with no cover, placed two miles
from my house. Within a two-mile radius, eight other children—four under
the age of three— will be exposed to the contaminates of this hog barn.
This new construction is supposed to be the site of 9,600 feeder
hogs.
This
large number of hogs will generate as much waste as a small Saskatchewan
city. ILO manure has by-products of health concern. Since this manure is
typically stored in lagoons and later spread on nearby cropland, it poses
additional risks to our health. The American Public Health Moratorium
states “children suffer disproportionately from asthma; while fetuses,
infants and children are more vulnerable to adverse impacts from bacterial
and antimicrobial-resistant infections, all health impacts to which
existing science suggests that emissions from ILOs may contribute.”
This
issue not only has created problems and put a huge gap in our community,
but it is now posing a serious threat to children of my community. I
don’t think that it is too much to ask for the people to stop and think
about the consequences of their actions and think of how our lives can
seriously be affected.
We
all have a bright future ahead of us, but the contaminates from this hog
barn may alter this course considerably. Is the extra dollar in a few
men’s pockets really worth a child’s future?
KASSANDRA
SHAW
Moosomin,
Sask.
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