Prosser v. Fredericton (City), (1999) 222 N.B.R.(2d) 278 (TD)

• Judge: Garnett, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: March 08, 1999
• Jurisdiction: New Brunswick
• Citations: (1999), 222 N.B.R.(2d) 278 (TD)

Prosser v. Fredericton (1999), 222 N.B.R.(2d) 278 (TD);

    222 R.N.-B.(2e) 278; 570 A.P.R. 278

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[French language version follows English language version]

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

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Temp. Cite: [1999] N.B.R.(2d) TBEd. DE.067

In The Matter Of an Application for Judicial Review pursuant to rule 69 of the New Brunswick Rules of Court

Shane Prosser and Catherine Prosser (applicants) v. City of Fredericton (respondent)

(F/M/116/98)

Indexed As: Prosser v. Fredericton (City)

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Fredericton

Garnett, J.

December 10, 1999.

Summary:

A developer purchased city land which included an abandoned railway right-of-way. The developer requested that the city rezone the land to permit development of townhouse units. Apart from the notice requirements of the Community Planning Act, the city's Municipal Plan required the city to ensure that the use of abandoned railway land was sensitive to adjacent land uses and under­taken only after public con­sultation. Adjacent landowners claimed they had not received the required statutory notice and that the resolution rezoning the property to permit the development was a nullity as being inconsistent with the Municipal Plan and therefore contrary to ss. 27 and 27.1 of the Community Planning Act.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the appli­cation. The city complied with, and in fact exceeded, the minimum statutory notice requirements. It was not fatal that the adja­cent landowners did not have actual notice. The rezoning was not incompatible with current adjacent land uses or the type of development encouraged for this area in the Municipal Plan.

Land Regulation - Topic 2160

Land use control - Municipal plan - En­forcement - General - A developer pur­chased city land which included an aban­doned railway right-of-way - The devel­oper requested that the city rezone the land to permit development of 24-25 town­house units - The Municipal Plan encour­aged low and medium density resi­dential develop­ment in the area - The Plan also directed that "council shall undertake measures to ensure that the use of aban­doned railway rights-of-way is sensitive to adjacent land uses and is undertaken only after public consultation" - Adjacent landowners oppos­ing the development claimed that the reso­lution rezoning the property was a nullity as being inconsistent with the Municipal Plan and therefore contrary to ss. 27 and 27.1 of the Com­munity Planning Act - The New Bruns­wick Court of Queen's Bench, Trial Divi­sion, held that the rezoning was not in­compatible with current adjacent land uses or the type of development encour­aged for this area in the Municipal Plan.

Land Regulation - Topic 2608

Land use control - Zoning bylaws - En­actment and interpretation - Validity of zoning bylaw - Notice requirement - A developer purchased city land which in­cluded an abandoned railway right-of-way - The developer requested that the city rezone the land to permit development of townhouse units - Apart from the notice requirements of the Community Planning Act, the city's Municipal Plan required the city to ensure that the use of abandoned railway land was sensitive to adjacent land uses and undertaken only after public consultation - Adjacent land­owners claimed they had not received the required statutory notice - The New Brunswick Court of Queen's Bench, Trial Division, held that the city complied with, and in fact ex­ceeded, the minimum statu­tory notice requirements - It was not fatal that the adjacent landowners did not have actual notice.

Land Regulation - Topic 2620.1

Land use control - Zoning bylaws - Enact­ment and interpretation - Rezoning ap­plication - Pro­cedure - [See Land Regu­lation - Topic 2608 ].

Cases Noticed:

Fredericton Heritage Trust Inc. et al. v. Fredericton (City) (1988), 88 N.B.R.(2d) 238; 224 A.P.R. 238 (C.A.), dist. [para. 27].

Fairweather et al. v. Saint John (City) et al. (1988), 88 N.B.R.(2d) 360; 224 A.P.R. 360 (T.D.), dist. [para. 28].

Statutes Noticed:

Community Planning Act, R.S.N.B. 1973, c. C-12, sect. 1(a) [para. 24]; sect. 27, sect. 27.1 [para. 22]; sect. 68(1), sect. 68(2), sect. 68(3), sect. 68(4) [para. 18].

Counsel:

Jamie C. Eddy, for the applicants;

Bruce A. Noble, for the respondent.

This application was heard on March 8, 1999, before Garnett, J., of the New Bruns­wick Court of Queen's Bench, Trial Divi­sion, Judicial District of Fredericton, who delivered the following judgment on De­cember 10, 1999.