Tri-Gil Paving and Construction Ltd. et al. v. New Brunswick, (1993) 140 N.B.R.(2d) 88 (TD)

• Judge: Savoie, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: October 19, 1993
• Jurisdiction: New Brunswick
• Citations: (1993), 140 N.B.R.(2d) 88 (TD)

Tri-Gil Paving v. N.B. (1993), 140 N.B.R.(2d) 88 (TD);

    140 R.N.-B.(2e) 88; 358 A.P.R. 88

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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In The Matter of s. 94.1 of the Community Planning Act, R.S.N.B. 1973, c. C-12.

Tri-Gil Paving and Construction Ltd., a body corporate and Charles Gillcash (plaintiffs) v. The Province of New Brunswick (defendant)

(M/C/228/91)

Indexed As: Tri-Gil Paving and Construction Ltd. et al. v. New Brunswick

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Moncton

Savoie, J.

October 19, 1993.

Summary:

Tri-Gil applied for a rezoning. The local planning authority agreed to recommend the rezoning. The Minister agreed to recommend the rezoning to cabinet subject to certain conditions. However, consideration of the application was delayed as the regulation was being amended. The province issued Tri-Gil a comfort letter which allowed it to proceed with the development of the property pending the disposition of the rezoning application. The letter noted that while the rezoning would be included in the regulation recommended to cabinet, the actual decision to approve the rezoning was with the cabinet and any development undertaken by Tri-Gil was subject to the cabinet rejecting the rezoning application. Prior to the consideration by cabinet, the local planning authority changed its position and opposed the rezoning. The Minister's submission to cabinet noted that change and also stated that the cabinet had the discretion to withhold rezoning. The cabinet declined to include rezoning when the new regulation was approved. Tri-Gil sued the province for damages on the ground, inter alia, that the Minister's recommendation should have been more favourable.

The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action.

Land Regulation - Topic 2619

Land use control, zoning bylaws - Enactment and interpretation - Rezoning application - General - Tri-Gil operated a quarry in an area zoned agricultural - The local planning authority obtained an injunction - The planning authority agreed to recommend a rezoning - The Minister agreed to recommend it to Cabinet subject to a number of conditions - However, the rezoning was delayed while the regulation was amended - The Director of Land Use Planning issued a comfort letter stating that the rezoning would be included in the regulation recommended to Cabinet - Subsequently, the local planning authority changed its position and opposed the rezoning - The Minister's recommendation was rejected by Cabinet - Tri-Gil sued the province on the ground the Minister's recommendation should have been more favourable - The New Brunswick Court of Queen's Bench, Trial Division, dismissed the action.

Counsel:

Bruce R. Phillips, for the plaintiffs;

C. Clyde Spinney, for the defendant.

This matter was heard on October 4 and 5, 1993, in Moncton, New Brunswick, by Savoie, J., of the New Brunswick Court of Queen's Bench, Trial Division, who delivered the following decision on October 19, 1993.