Oley and Moffatt v. Fredericton (City), (1983) 50 N.B.R.(2d) 157 (TD)

• Judge: Stevenson, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: September 14, 1983
• Jurisdiction: New Brunswick
• Citations: (1983), 50 N.B.R.(2d) 157 (TD)

Oley v. Fredericton (1983), 50 N.B.R.(2d) 157 (TD);

    50 R.N.-B.(2e) 157; 131 A.P.R. 157

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Oley and Moffatt v. Fredericton, City of

(No. F/M/50/83)

Indexed As: Oley and Moffatt v. Fredericton (City)

Répertorié: Oley and Moffatt v. Fredericton (City)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Stevenson, J.

September 15, 1983.

Summary:

Résumé:

Two city residents applied to quash two city bylaws, and for an injunction to restrain the city from continuing work to construct a sewage lagoon on lands affected by the two bylaws.

The New Brunswick Court of Queen's Bench, Trial Division, allowed the application, and quashed a portion of one of the bylaws. The court granted the injunction to restrain the development, on the ground that it was inconsistent with the city's municipal plan and thus contrary to s. 27 of the Community Planning Act.

Land Regulation - Topic 2166

Land use control - Municipal plan - Enforcement - Injunctions - The New Brunswick Court of Queen's Bench, Trial Division, granted city residents an injunction to restrain the city from continuing with a development (the construction of a sewage lagoon) which was inconsistent with its municipal plan and thus contrary to s. 27 of the Community Planning Act - See paragraphs 31, 34 to 37.

Land Regulation - Topic 2613

Land use control - Zoning bylaws - Enactment and interpretation - Validity of zoning bylaw not conforming to master plan - A city intended to pass an amending zoning bylaw - Landowners in the affected area alleged that the bylaw was contrary to policy statements in the municipal plan and therefore illegal as being contrary to s. 27 of the Community Planning Act - S. 27 prevented the "undertaking of any development" in any manner inconsistent or at variance with municipal policy - The New Brunswick Court of Queen's Bench, Trial Division, held that because the enactment of a zoning amendment was not the "undertaking of a development" prevented by s. 27, the bylaw was not illegal - See paragraphs 26 to 28.

Municipal Law - Topic 3330

Bylaws - Notice of intention to consider - Form and content - A city published a notice of intention to consider the enactment of a bylaw which would amend the bylaw which adopted the city's municipal plan - The proposed change was in the permitted uses for institutional land - Contrary to s. 68 (2)(a) of the Community Planning Act, the notice did not describe the institutional areas affected and did not indicate that all designated institutional areas would be affected by the addition of a permitted use - The New Brunswick Court of Queen's Bench, Trial Division, quashed the section of the bylaw relating to the defective notice - See paragraphs 11 to 16.

Municipal Law - Topic 3330

Bylaws - Notice of intention to consider - Form and content - A city published a notice of intention to consider the enactment of a bylaw which would amend the existing zoning bylaw - The notice included an illustration that identified the area being rezoned; no other lands were affected - The language of the notice was adequate to indicate the reasons for the amendment - The New Brunswick Court of Queen's Bench, Trial Division, held that the notice was sufficient - See paragraph 17.

Municipal Law - Topic 3859

Bylaws - Quashing bylaws - Grounds - Conflict with statute - A city intended to pass a bylaw amending the existing zoning bylaw - Landowners in the affected area alleged that the bylaw was contrary to policy statements in the municipal plan and therefore illegal as being contrary to s. 27 of the Community Planning Act - S. 27 prevented the "undertaking of any development" in any manner inconsistent or at variance with municipal policy - The New Brunswick Court of Queen's Bench, Trial Division, held that the enactment of a zoning amendment was not the "undertaking of a development" prevented by s. 27, so the bylaw was not illegal - See paragraphs 26 to 28.

Words and Phrases

Undertaking of a development - Meaning of the phrase "undertaking of a development" as found in s. 27 of the Community Planning Act, R.S.N.B. 1973, c. C-12 - See paragraphs 26 to 28, 31 (New Brunswick Court of Queen's Bench, Trial Division).

Cases Noticed:

Martin v. City of Victoria (1980), 13 M.P.L.R. 150; 114 D.L.R.(3d) 87 (B.C.S.C.), affd. 14 M.P.L.R. 140; 126 D.L.R.(3d) 467 (B.C.C.A.), consd. [para. 15].

L'Association des Propriétaires des Jardins Taché Inc. v. Les Entreprises Dasken Inc. (1971), 26 D.L.R.(3d) 79 (S.C.C.), appld. [para. 36].

Statutes Noticed:

Community Planning Act, R.S.N.B. 1973, c. C-12, sect. 25 [paras. 12 to 13]; sect. 27 [paras. 19, 26, 28, 34]; sect. 27.1 [paras. 20, 29 to 30]; sect. 68(2) [para. 11]; sect. 74 [para. 21]; sect. 91, sect. 94 [para. 35].

Counsel:

G. Keith Allen, Patrick E. Hurley and David R. Oley, for the applicants;

Charles S. Shannon and James R. Moase, for the respondent.

This application was heard before Stevenson, J., of the New Brunswick Court of Queen's Bench, Trial Division, Judicial District of Fredericton, on September 14, 1983. The decision of Stevenson, J., was delivered orally on September 15, 1983.