Biddington v. Tri-Gil Paving and Construction Ltd. and Gillcash, (1986) 71 N.B.R.(2d) 399 (TD)

• Judge: Miller, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: April 10, 1986
• Jurisdiction: New Brunswick
• Citations: (1986), 71 N.B.R.(2d) 399 (TD)

Biddington v. Tri-Gil Paving (1986), 71 N.B.R.(2d) 399 (TD);

    71 R.N.-B.(2e) 399; 182 A.P.R. 399

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Biddington v. Tri-Gil Paving and Construction Ltd. and Gillcash

(M/M/69/86)

Indexed As: Biddington v. Tri-Gil Paving and Construction Ltd. and Gillcash

Répertorié: Biddington v. Tri-Gil Paving and Construction Ltd. and Gillcash

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Miller, J.

April 10, 1986.

Summary:

Résumé:

Gillcash operated a paving business which required crushed rock. Gillcash bought the only property in the area containing suitable rock for his purposes that was not owned by his competitors. The property was in an agricultural use district and the zoning regulations did not permit the use of the land for the operation of a rock quarry and rock crushing plant. Biddington, a person designated for the purpose by the Minister of Municipal Affairs, sought an order restraining Gillcash from operating a rock quarry and crushing operation. Gillcash claimed that no new development had taken place and that there was merely a continuation of a non-conforming use.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the application. The court found that Gillcash had failed to establish that the land had been used previously in the manner now intended.

Land Regulation - Topic 2801

Land use control - Exemptions - Use not conforming with zoning by law - A paving contractor bought a property for the purpose of operating a rock quarry and crushing operation - The property was in an agricultural district and zoning regulations did not permit such use of the land - An order was sought to restrain the contractor from using the property in this manner - Previous owners of the property had sold loads of rock and topsoil - The contractor claimed that he was exempt from the planning regulations because of a pre-existing nonconforming use - The New Brunswick Court of Queen's Bench, Trial Division, found that the contractor had not established that the land had been previously used in the manner now intended - See paragraphs 14 and 15.

Land Regulation - Topic 2801

Land use control - Exemptions - Use not conforming with zoning by law - Evidence - Burden of proof - The New Brunswick Court of Queen's Bench, Trial Division, stated that the onus was on the party claiming exemption to show that by non-conforming use he was exempt from the provisions of the legislation - See paragraph 12.

Statutes Noticed:

Community Planning Act, R.S.N.B. 1973, c. C-12, sect. 1 [para. 10].

Counsel:

C. Clyde Spinney, for the applicant;

David A. Smith and Michael LeBlanc, for the respondents.

This application was heard before Miller, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Moncton, who delivered the following judgment on April 10, 1986.