Jellinek v. Tri-Gil Paving and Construction Ltd. and Gillcash, (1991) 112 N.B.R.(2d) 353 (CA)

• Judge: Hoyt, Rice and Ryan, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: November 15, 1990
• Jurisdiction: New Brunswick
• Citations: (1991), 112 N.B.R.(2d) 353 (CA)

Jellinek v. Tri-Gil Paving (1991), 112 N.B.R.(2d) 353 (CA);

    112 R.N.-B.(2e) 353; 281 A.P.R. 353

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/respondent) v. Tri-Gil Paving and Construction Ltd. and Gillcash (respondents/appellants)

(129/90/CA)

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

New Brunswick Court of Appeal

Hoyt, Rice and Ryan, JJ.A.

January 10, 1991.

Summary:

Gillcash operated a rock quarry and crush­ing operation. The quarry was located in an agricultural zone and was a nonconforming use. The Crown applied for a restraining order to stop the operation.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 71 N.B.R.(2d) 399; 182 A.P.R. 399, issued the restraining order. However, the order was not enforced. Later, Gillcash applied for a rezoning. The cabinet declined to approve the rezoning. Instead, Regulation 89-28, which retained the agricultural zon­ing, was approved. The Crown applied for an order restraining the quarry operation and ordering Gillcash to restore the property.

The New Brunswick Court of Queen's Bench, Trial Division, in the decision re­ported at 108 N.B.R.(2d) 139; 269 A.P.R. 139, allowed the application in part. The court held that Regulation 89-28 was valid and granted the restraining order. However, the court declined to issue the order to rehabilitate the land. Gillcash appealed and the Crown cross-appealed.

The New Brunswick Court of Appeal dismissed the appeal and cross-appeal.

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 Appeal affirmed the trial court's decision to restrain 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 - See paragraph 3.

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 Appeal affirmed the trial court's decision 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 para­graph 5.

Statutes Noticed:

Community Planning Act, R.S.N.B. 1973, c. C-12, sect. 94 [para. 1].

Greater Moncton Planning District Zoning Regulations, reg. 89-28 [para. 3].

Counsel:

David D. Smith, Q.C., and G. Scott Ellsworth, for the appellants;

C. Clyde Spinney, for the respondent.

This appeal was heard on November 15, 1990, by Hoyt, Rice and Ryan, JJ.A., of the New Brunswick Court of Appeal, in Fredericton, and the following decision of the Court of Appeal was delivered on January 10, 1991.