THE QUEEN'S BENCH Winnipeg Centre. - and - RURAL MUNICIPALITY OF ROSSER and the SOUTH INTERLAKE PLANNING DISTRICT

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1 BETWEEN: THE QUEEN'S BENCH Winnipeg Centre File No. CI L( MANITOBA LTD. and LILYFIELD QUARRY INC. - and - RURAL MUNICIPALITY OF ROSSER and the SOUTH INTERLAKE PLANNING DISTRICT Applicants, Respondents. NOTICE OF APPLICATION OF THE APPLICANTS HEARING DATE: February 18, 2016 at 10:00 a.m. UNCONTESTED LIST FILED FEB coq. AIKINS, MacAULAY & THORVALDSON LLP Barristers & Solicitors 30th Floor, 360 Main Street Winnipeg, Manitoba R3C 4G1 Keith J. Ferbers Telephone No.: Fax No.: File No.: Solicitors for the Applicants (BOX 3)

2 THE QUEEN'S BENCH Winnipeg Centre BETWEEN: MANITOBA LTD. and LILYFIELD QUARRY INC. - and - Applicants, RURAL MUNICIPALITY OF ROSSER and the SOUTH INTERLAKE PLANNING DISTRICT Respondents. NOTICE OF APPLICATION TO THE RESPONDENT: A LEGAL PROCEEDING HAS BEEN COMMENCED by the Applicants, Manitoba Ltd. and Lilyfield Quarry Inc. The claim made by the Applicants appears on the following pages. THIS APPLICATION will come on for a hearing before a judge, on Thursday, February 18, 2016 at 10:00 a.m., at the Law Courts Building, 408 York Avenue, Winnipeg, Manitoba. IF YOU WISH TO OPPOSE THIS APPLICATION, you or a Manitoba lawyer acting for you must appear at the hearing.

3 - 2 - IF YOU WISH TO PRESENT AFFIDAVIT OR OTHER DOCUMENTARY EVIDENCE TO THE COURT OR TO EXAMINE OR CROSS-EXAMINE WITNESSES ON THE APPLICATION, you or your lawyer must serve a copy of the evidence on the applicant's lawyer or, where the applicant does not have a lawyer, serve it on the applicant, and file it, with proof of service, in the court office where the application is to be heard as soon as possible, but not later than 2:00 p.m. on the day before the hearing. IF YOU FAIL TO APPEAR AT THE HEARING, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. DATED: ca) k \, 2016 Issued by: D. CRAMPAGNE DEPUTY REGISTRAR COURT OF QUEEN'S BENCI I FOR MANITOBA Deputy Registrar 100C York Ave Winnipeg, MB R3C OP9 TO: Orvel L. Currie, of the firm D'Arcy & Deacon LLP 2200 One Lombard Place Winnipeg MB R3B 0X7 Solicitors for the Respondents, Rural Municipality of Rosser and the South Interlake Planning District

4 3 APPLICATION The Applicants makes application for: 1. an order for certiorari to quash Rural Municipality of Rosser Zoning Bylaw No. 4/85 (the "Zoning Bylaw") insofar as it purports to provide that the subject property is zoned for agricultural use and requires approval for aggregate extraction as a conditional use including an order to quash all processes and decisions related to the Applicants' application for approval as a conditional use; 2. an order for mandamus directing the Respondent to amend or replace the Zoning Bylaw so that the subject property may be used in a manner compatible with aggregate extraction in accordance with the South Interlake Planning District Development Plan (the "Development Plan"); 3. an order for mandamus directing the Respondent to issues such permits and approvals relating to removal of topsoil or other matters related to aggregate extraction including operation of a limestone quarry at the subject property; 4. an order for prohibition preventing the Respondent from applying the Zoning Bylaw to the Applicants' use of the subject property for aggregate extraction; 5. a declaration that the Applicants are entitled to use the subject property for aggregate extraction subject only to such setback controls and conditions as

5 - 4 - contemplated by the Development Plan as well as declarations that the existing Zoning Bylaw is generally inconsistent with the Development Plan insofar as it relates to the extraction of aggregate on the subject property, is inconsistent with the Provincial Land Use Policy and that the Zoning Bylaw is invalid, of no effect and fails to comply with the requirements of The Planning Act, C.C.S.M. c.p80 insofar as it applies to the subject property; 6. costs; and 7. such further and other relief as this Honourable Court may deem just. The grounds for the Application are as follows: 1 the Applicant, Lilyfield Quary Inc., owns land and minerals located in the Rural Municipality of Rosser on which it intends to develop and operate a limestone quarry (the "subject property"). The Applicant, Manitoba Ltd. is an operating company associated with Lilyfield Quarry Inc. The Applicants are owned and controlled by Colleen Munro. 2. the Respondent, the Rural Municipality of Rosser, is a municipality as that term is used in The Municipal Act, C.C.S.M. c. M225 and The Planning Act, C.C.S.M. c. P80 (the "Municipality"). The Respondent, the South Interlake Planning District is a planning district as that tem' is used in The Planning Act (the "Planning District"). As a creature of statute, the Municipality must govern within its statutory jurisdiction. To the extent it fails to comply with its governing legislation, any related bylaws, decisions and other actions are of no force and effect to the extent of the inconsistency.

6 -5-3. The Municipal Act relates generally to the formation and governance of municipalities addressing such issues as members of council, elections, committees, officers, enactment of bylaws, enforcement and duties. All municipalities must comply with The Planning Act which establishes provincial land use policies including the creation of development plans which must be adhered to in establishing and maintaining zoning bylaws. 4. The Municipality's Zoning Bylaw was passed in It designates the subject property as an agricultural zone which requires conditional use approval for sand, gravel pits and mining operations. If valid and enforceable, the Applicants would require conditional use approval to operate the subject property as a limestone quarry. The Applicants applied for conditional use approval, however, the application was denied on or about December 10, The Municipality is a member of the Planning District. In accordance with The Planning Act, the Planning District is responsible for creating a development plan for its geographic area which is consistent with provincial land use policies. The Province is to be consulted on the teims of the development plan with the Act providing a statutory process whereby the Province has a means to amend a development plan if not satisfied with the final version brought forward by the planning district. The Planning District followed the statutory process and passed the South Interlake Planning District Development Plan Bylaw No. 03/10 effective July 26, Sections 68 and 202 of The Planning Act provide that each member municipality must adopt a zoning bylaw or amend its existing zoning bylaw

7 - 6 - so that it is generally consistent with the development plan passed by the planning district. In the case of the Municipality, the statutory deadline for doing so was July 26, 2012 being one year from final approval of the Development Plan. A process is to be followed by the Municipality in passing a new zoning bylaw or bringing the existing zoning bylaw into compliance. The process involves public hearings and the opportunity for parties to make objections (including the Province and the Planning District). 7. The Development Plan, consistent with the Provincial Land Use Policies, refers to the importance of the high quality deposits of aggregate within the Planning District, particularly crushed limestone, which are critical to supplying building material to the capital region. Areas capable of supporting high and medium quality aggregate extraction are to be protected. Orderly development of new quarries is to be encouraged. The subject property is specifically designated as a medium quality aggregate extraction area. As such, deposits are to be protected from conflicting land uses and land uses incompatible with quarry mineral extraction may only be permitted following review and approval by the Board of the Planning District and the Province. 8. The Zoning Bylaw, insofar as it zones the subject property as agricultural, as opposed to zoning it for aggregate extraction, is generally inconsistent with the Development Plan and, accordingly, is unlawful, in breach of The Planning Act, invalid, in excess of the jurisdiction of the Municipality, and of no force and effect with respect to the Applicants' use of the subject property for aggregate extraction as a limestone quarry.

8 7 9. The Applicants plead and rely upon The Planning Act including sections 1, 2, 4, 14, 40, 41, 62, 68, 201, 202 and The Applicants plead and rely upon The Municipal Act including sections 230, 231, 382 and The Applicants plead and rely upon South Interlake Planning District Bylaw No. 03/10, Provincial Planning Regulation No. 81/2011 (Provincial Land Use Policies), the Rural Municipality of Rosser Zoning Bylaw No. 4/85, and Rural Municipality of Rosser Resolution No. 15/505 and 15/ The Applicants and rely upon Queens Bench Rules and 38 and section 34 of The Court of Queen's Bench Act, C.C.S.M. c. C280. The following documentary evidence will be used at the hearing of the Application: 1. the Affidavit of Colleen Munro, the principal of the Applicants, sworn February 10, 2016; and 2. such further and other material as counsel may advise and this Honourable Court may permit. February, 2016 Keith J. Ferbers of the firm AIKINS, MacAULAY & THORVALDSON LLP Barristers & Solicitors 30th Floor Main Street Winnipeg, MB R3C 4G1 Phone No.: Facsimile No.: Solicitors for the Applicants