Jellinek v. Tri-Gil Paving and Construction Ltd. and Gillcash, (1990) 108 N.B.R.(2d) 139 (TD)

• Judge: Miller, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: June 15, 1990
• Jurisdiction: New Brunswick
• Citations: (1990), 108 N.B.R.(2d) 139 (TD)

Jellinek v. Tri-Gil Paving (1990), 108 N.B.R.(2d) 139 (TD);

    108 R.N.-B.(2e) 139; 269 A.P.R. 139

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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T.J. Jellinek (applicant) v. Tri-Gil Paving and Construction Ltd. and Charles Gillcash (respondents)

(M/M/165/89)

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

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Miller, J.

June 15, 1990.

Summary:

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 nonconforming use.

The New Brunswick Court of Queen's Bench, Trial Division, in a judgment reported in 71 N.B.R.(2d) 399; 182 A.P.R. 399, allowed the application. The court found that Gillcash had failed to establish that the land had been used previously in the manner now intended. The restraining order was not enforced. Gillcash applied to rezone the land to allow the rock quarry operation. In 1986 the Town Planning Commission recommended rezoning approval subject to conditions. In 1989 approval was withdrawn. The Minister's recommendation that the land be rezoned was rejected by Cabinet. Instead, Regulation 89-28 was approved, retaining the agricultural zoning. The Provincial Planning Director, as designate of the Minister, applied for an order to restrain Gillcash from operating a rock quarry and crushing operation and from operating an asphalt plant. The Director also sought an order to require Gillcash to rehabilitate the land.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the application in part. The court held that Regulation 89-28 was valid and granted the restraining order sought. The court refused to order rehabilitation of the land absent specific evidence of the previous condition of the land.

Land Regulation - Topic 2609

Land use control - Zoning bylaws - Enactment and interpretation - Validity - Bad faith - Gillcash operated a rock quarry and crushing operation on land zoned agricultural - Gillcash sought to have the land rezoned - Cabinet rejected the Minister of Municipal Affairs' recommendation to approve rezoning; the agricultural zoning was maintained - The New Brunswick Court of Queen's Bench, Trial Division, granted an order restraining Gillcash from continuing to use the land in violation of the zoning regulation - The court rejected Gillcash's allegations of discrimination, bad faith, breach of natural justice, noncompliance with ss. 68(2)(a) and 68(5) of the Community Planning Act, excess of jurisdiction under s. 77 and that the zoning regulation was uncertain.

Land Regulation - Topic 2610

Land use control - Zoning bylaws - Enactment and interpretation - Validity - Uncertainty and discrimination - [See Land Regulation - Topic 2609].

Land Regulation - Topic 2695

Land use control - Zoning bylaws - Enforcement - Injunctions - [See Land Regulation - Topic 2609].

Land Regulation - Topic 2696

Land use control - Zoning bylaws - Enforcement - Compliance order - Restoration - Gillcash operated a rock quarry and crushing operation on land zoned agricultural - Attempts at rezoning were unsuccessful - A designate of the Minister of Municipal Affairs sought an order requiring Gillcash to rehabilitate the land by grading all faces, banks and slopes of the quarry and to cover with topsoil and grass seed all disturbed areas - The New Brunswick Court of Queen's Bench, Trial Division, stated that s. 94(2) of the Community Planning Act did not empower granting the order sought - Section 93 permitted an order to restore land, but restoration would not be ordered where, as here, there was no evidence of the previous condition of the land - See paragraphs 79 to 88.

Cases Noticed:

Dexter Construction Company Limited v. City of Saint John (1981), 35 N.B.R.(2d) 217; 88 A.P.R. 217, dist. [para. 36].

Statutes Noticed:

Community Planning Act, R.S.N.B. 1973, c. C-12, sect. 39 [para. 9]; sect. 68(2) [para. 72]; sect. 68(5) [para. 56]; sect. 77 [para. 64]; sect. 77(6)(d) [para. 9]; sect. 93 [para. 84]; sect. 94(2) [para. 81].

Greater Moncton Planning District Zoning Regulation, Reg. 79-193 [para. 16].

Greater Moncton Planning District Zoning Regulation, Reg. 89-28 [para. 24].

Rules of Court (N.B.), rule 38.09 [para. 29].

Authors and Works Noticed:

Shorter Oxford English Dictionary [para. 86].

Counsel:

C. Clyde Spinney, for the applicant;

David D. Smith, Q.C., 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 June 15, 1990.