Acts and Regulations

N-5.11 - New Brunswick Highway Corporation Act

Section 10.1
Disposition versions

Full text
Use of Highway
10.1(1)In this section
“exemption” means an exemption referred to in paragraph 38(1)(c.1) or (d.1);(exemption)
“person” means the Province, a provincial Crown corporation, an agent of the Crown, the Corporation, a public utility, another corporation, a partnership, a society or an individual;(personne)
“usage agreement” means a written contract, agreement or other document in existence on the commencement of this subsection, to which the Crown in right of the Province or the Corporation is a party and in which the Corporation or the Crown in right of the Province gives a person any right to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing, to excavate, mine or quarry under, across, through or along a highway, to use any portion of a highway for recreational purposes or to gain access to, to pass over or under or to operate any form of transportation or carry out any other activity on, over, under, across or along, a highway, but does not include any permit, licence or permission issued or granted under this Act, the Highway Act, the Motor Vehicle Act, the Off-Road Vehicle Act or the regulations under any of them, other than permission granted under section 41 of the Highway Act or consent given under section 42 of the Highway Act by the Minister of Transportation and Infrastructure before the commencement of this subsection.(accord d’usage)
10.1(2)Subject to subsection 6(4) and sections 10 and 38.1, if a conflict exists between this section or a regulation made in relation to it, and any other provision of this Act, or another Act of the Legislature, whether public or private, or any order, regulation, contract, agreement or usage agreement made under this or any other Act, this section and the regulations made in relation to it prevail.
10.1(3)Subject to subsection 6(4) and sections 10 and 38.1, the Corporation has the exclusive right to determine what, if any, use may be made of any highway or the land on, under or over which a highway is situated and may, by regulation, establish fees payable for any right to use such land or any highway.
10.1(4)Every usage agreement shall, on the commencement of this subsection, be deemed
(a) to contain a term requiring the parties to the agreement to pay any fee established by regulation in relation to any right respecting a highway that is given to the party in the agreement, and
(b) in all other respects to be affirmed.
10.1(4.1)The Crown in right of the Province may assign to the Corporation or a project company the Crown's powers, authority and rights under a usage agreement.
10.1(4.2)The Corporation may assign to a project company its powers, authority and rights under a usage agreement.
10.1(4.3)Where a project company is an assignee under subsection (4.1) or (4.2), it shall have all of the powers, authority, rights, duties and responsibilities of the Corporation under this section and this section applies to that project company, with the necessary modifications, as if it were the Corporation or the Crown in right of the Province, as the case may be, subject to any limitations, terms, conditions and requirements set out in the assignment.
10.1(5)Land shall be deemed not to be injuriously affected by reason only that a highway to which subsection (3) or (4) applies is situated on, under or over it and no compensation of any kind shall be paid or given to any person who has the benefit of or is a party to a contract, agreement or usage agreement in relation to land or a highway, or who has any other interest in land or a highway, by reason only that
(a) the land or any portion of it is, or is adjacent to, land where such a highway is situated, or
(b) immediately before the date of the commencement of this subsection, the person was the owner of land, or had the benefit of or was a party to a contract, agreement or usage agreement in relation to a highway, and is affected in any manner by the operation of subsection (3) or (4).
10.1(6)No action, application or other proceeding lies or shall be instituted against the Corporation, the Minister of Transportation and Infrastructure or the Crown in right of the Province as a result of the enactment of this section or the regulations made in relation to it.
10.1(7)No contractual or other claim, grounds, remedy or defence shall be available to or exercised by a party to a usage agreement, other than the Corporation, the Minister of Transportation and Infrastructure or the Crown in right of the Province, as a result of the enactment of this section or the regulations made in relation to it.
10.1(8)No court or person shall construe, claim or deem a usage agreement to be terminated, rescinded, repudiated, frustrated or amended as a result of the enactment of this section or the regulations made in relation to it, other than as deemed amended to contain a term under subsection (4).
10.1(9)The Corporation may, in accordance with the regulations and in its discretion, issue highway usage permits, permitting the holder and persons acting under the authority of the permit
(a) to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing or to excavate, mine or quarry under, across, through or alongside a highway,
(b) to use, repair and maintain any portion of a highway for recreational purposes, or
(c) to use a highway for any other purpose established in the regulations.
10.1(10)The Corporation may, in its discretion
(a) amend, transfer, suspend, cancel, renew and reinstate highway usage permits in accordance with the regulations, and
(b) at any time and in accordance with any applicable regulations that may have been made, impose any terms and conditions in relation to the issuance, amendment, transfer, suspension, cancellation, renewal or reinstatement of, highway usage permits that the Corporation considers appropriate.
10.1(11)No compensation shall be paid to any person by the Corporation in relation to
(a) the refusal to issue, amend, transfer, renew or reinstate a highway usage permit or an exemption, or
(b) the suspension or cancellation of any highway usage permit or exemption.
10.1(12)No person required under the regulations to hold or be acting under the authority of a highway usage permit in order to use a highway or the land on, under or over a highway shall use the highway or land unless doing so under and in accordance with the required highway usage permit.
10.1(13)No person shall use a highway or the land on, under or over a highway in contravention of this Act, the regulations, or the terms and conditions imposed in, by or in relation to any contract, agreement, usage agreement, highway usage permit or exemption.
10.1(14)The Corporation may refuse use of any highway or the land on, under or over a highway to any person who is in contravention of subsection (12) or (13).
10.1(15)If a person has erected or placed or is erecting or placing any object or thing on, over, under, across or along a highway, has repaired or maintained or is repairing or maintaining such an object or thing, has excavated, mined or quarried or is excavating, mining or quarrying under, across, through or along a highway or has used or is otherwise using a highway, in contravention of subsection (12) or (13), the Corporation may by order direct that any such object or thing be disassembled, demolished, modified, relocated or removed and that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the Corporation directs.
10.1(16)Subsections 39(4) to (8) of the Highway Act apply with the necessary modifications to an order made under subsection (15) and the Corporation shall have the power, authority and duties of the Minister of Transportation and Infrastructure under those provisions in relation to the order.
10.1(17)If a person served with an order under subsection (15) fails to comply fully with the order, the Corporation may apply by way of notice of application to a judge of The Court of King’s Bench of New Brunswick for one or more of the following orders:
(a) an order prohibiting the erecting, placing, repairing, maintaining, excavating, mining, quarrying or other use;
(b) an order directing the disassembly, demolition, modification, relocation or removal of the object or thing by and at the expense of the person to whom the order relates;
(c) an order directing that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the judge directs, by and at the expense of the person to whom the order relates; and
(d) such other order as is considered necessary in order to enforce the provisions of this section.
10.1(18)Where an offence under subsection (12) or (13) continues for more than one day,
(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and
(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.
10.1(19)The Crown in right of the Province is bound by the provisions of this section and the regulations made in relation to it.
10.1(20)Subsections (9) to (12) do not apply to
(a) the granting of a lease or licence under subsection 6(6), to persons acting under such a lease or licence or to the lands in relation to which such a lease or licence is granted,
(b) the use of a toll highway by the public, or
(c) subsection 6(4) and section 10, the designation, control or use of, the restriction in relation to, or the charging of tolls on a toll highway by the Corporation, a project company or a person acting under the authority of an agreement made between the Corporation and a project company.
1996, c.42, s.3; 1997, c.50, s.10; 1997, c.64, s.8; 2003, c.7, s.38; 2010, c.31, s.96; 2012, c.16, s.3; 2019, c.12, s.25; 2023, c.17, s.171
Use of Highway
10.1(1)In this section
“exemption” means an exemption referred to in paragraph 38(1)(c.1) or (d.1);(exemption)
“person” means the Province, a provincial Crown corporation, an agent of the Crown, the Corporation, a public utility, another corporation, a partnership, a society or an individual;(personne)
“usage agreement” means a written contract, agreement or other document in existence on the commencement of this subsection, to which Her Majesty in right of the Province or the Corporation is a party and in which the Corporation or Her Majesty in right of the Province gives a person any right to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing, to excavate, mine or quarry under, across, through or along a highway, to use any portion of a highway for recreational purposes or to gain access to, to pass over or under or to operate any form of transportation or carry out any other activity on, over, under, across or along, a highway, but does not include any permit, licence or permission issued or granted under this Act, the Highway Act, the Motor Vehicle Act, the Off-Road Vehicle Act or the regulations under any of them, other than permission granted under section 41 of the Highway Act or consent given under section 42 of the Highway Act by the Minister of Transportation and Infrastructure before the commencement of this subsection.(accord d’usage)
10.1(2)Subject to subsection 6(4) and sections 10 and 38.1, if a conflict exists between this section or a regulation made in relation to it, and any other provision of this Act, or another Act of the Legislature, whether public or private, or any order, regulation, contract, agreement or usage agreement made under this or any other Act, this section and the regulations made in relation to it prevail.
10.1(3)Subject to subsection 6(4) and sections 10 and 38.1, the Corporation has the exclusive right to determine what, if any, use may be made of any highway or the land on, under or over which a highway is situated and may, by regulation, establish fees payable for any right to use such land or any highway.
10.1(4)Every usage agreement shall, on the commencement of this subsection, be deemed
(a) to contain a term requiring the parties to the agreement to pay any fee established by regulation in relation to any right respecting a highway that is given to the party in the agreement, and
(b) in all other respects to be affirmed.
10.1(4.1)Her Majesty in right of the Province may assign to the Corporation or a project company Her Majesty’s powers, authority and rights under a usage agreement.
10.1(4.2)The Corporation may assign to a project company its powers, authority and rights under a usage agreement.
10.1(4.3)Where a project company is an assignee under subsection (4.1) or (4.2), it shall have all of the powers, authority, rights, duties and responsibilities of the Corporation under this section and this section applies to that project company, with the necessary modifications, as if it were the Corporation or Her Majesty in right of the Province, as the case may be, subject to any limitations, terms, conditions and requirements set out in the assignment.
10.1(5)Land shall be deemed not to be injuriously affected by reason only that a highway to which subsection (3) or (4) applies is situated on, under or over it and no compensation of any kind shall be paid or given to any person who has the benefit of or is a party to a contract, agreement or usage agreement in relation to land or a highway, or who has any other interest in land or a highway, by reason only that
(a) the land or any portion of it is, or is adjacent to, land where such a highway is situated, or
(b) immediately before the date of the commencement of this subsection, the person was the owner of land, or had the benefit of or was a party to a contract, agreement or usage agreement in relation to a highway, and is affected in any manner by the operation of subsection (3) or (4).
10.1(6)No action, application or other proceeding lies or shall be instituted against the Corporation, the Minister of Transportation and Infrastructure or Her Majesty in right of the Province as a result of the enactment of this section or the regulations made in relation to it.
10.1(7)No contractual or other claim, grounds, remedy or defence shall be available to or exercised by a party to a usage agreement, other than the Corporation, the Minister of Transportation and Infrastructure or Her Majesty in right of the Province, as a result of the enactment of this section or the regulations made in relation to it.
10.1(8)No court or person shall construe, claim or deem a usage agreement to be terminated, rescinded, repudiated, frustrated or amended as a result of the enactment of this section or the regulations made in relation to it, other than as deemed amended to contain a term under subsection (4).
10.1(9)The Corporation may, in accordance with the regulations and in its discretion, issue highway usage permits, permitting the holder and persons acting under the authority of the permit
(a) to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing or to excavate, mine or quarry under, across, through or alongside a highway,
(b) to use, repair and maintain any portion of a highway for recreational purposes, or
(c) to use a highway for any other purpose established in the regulations.
10.1(10)The Corporation may, in its discretion
(a) amend, transfer, suspend, cancel, renew and reinstate highway usage permits in accordance with the regulations, and
(b) at any time and in accordance with any applicable regulations that may have been made, impose any terms and conditions in relation to the issuance, amendment, transfer, suspension, cancellation, renewal or reinstatement of, highway usage permits that the Corporation considers appropriate.
10.1(11)No compensation shall be paid to any person by the Corporation in relation to
(a) the refusal to issue, amend, transfer, renew or reinstate a highway usage permit or an exemption, or
(b) the suspension or cancellation of any highway usage permit or exemption.
10.1(12)No person required under the regulations to hold or be acting under the authority of a highway usage permit in order to use a highway or the land on, under or over a highway shall use the highway or land unless doing so under and in accordance with the required highway usage permit.
10.1(13)No person shall use a highway or the land on, under or over a highway in contravention of this Act, the regulations, or the terms and conditions imposed in, by or in relation to any contract, agreement, usage agreement, highway usage permit or exemption.
10.1(14)The Corporation may refuse use of any highway or the land on, under or over a highway to any person who is in contravention of subsection (12) or (13).
10.1(15)If a person has erected or placed or is erecting or placing any object or thing on, over, under, across or along a highway, has repaired or maintained or is repairing or maintaining such an object or thing, has excavated, mined or quarried or is excavating, mining or quarrying under, across, through or along a highway or has used or is otherwise using a highway, in contravention of subsection (12) or (13), the Corporation may by order direct that any such object or thing be disassembled, demolished, modified, relocated or removed and that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the Corporation directs.
10.1(16)Subsections 39(4) to (8) of the Highway Act apply with the necessary modifications to an order made under subsection (15) and the Corporation shall have the power, authority and duties of the Minister of Transportation and Infrastructure under those provisions in relation to the order.
10.1(17)If a person served with an order under subsection (15) fails to comply fully with the order, the Corporation may apply by way of notice of application to a judge of The Court of Queen’s Bench of New Brunswick for one or more of the following orders:
(a) an order prohibiting the erecting, placing, repairing, maintaining, excavating, mining, quarrying or other use;
(b) an order directing the disassembly, demolition, modification, relocation or removal of the object or thing by and at the expense of the person to whom the order relates;
(c) an order directing that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the judge directs, by and at the expense of the person to whom the order relates; and
(d) such other order as is considered necessary in order to enforce the provisions of this section.
10.1(18)Where an offence under subsection (12) or (13) continues for more than one day,
(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and
(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.
10.1(19)Her Majesty in right of the Province is bound by the provisions of this section and the regulations made in relation to it.
10.1(20)Subsections (9) to (12) do not apply to
(a) the granting of a lease or licence under subsection 6(6), to persons acting under such a lease or licence or to the lands in relation to which such a lease or licence is granted,
(b) the use of a toll highway by the public, or
(c) subsection 6(4) and section 10, the designation, control or use of, the restriction in relation to, or the charging of tolls on a toll highway by the Corporation, a project company or a person acting under the authority of an agreement made between the Corporation and a project company.
1996, c.42, s.3; 1997, c.50, s.10; 1997, c.64, s.8; 2003, c.7, s.38; 2010, c.31, s.96; 2012, c.16, s.3; 2019, c.12, s.25
Use of Highway
10.1(1)In this section
“exemption” means an exemption referred to in paragraph 38(1)(c.1) or (d.1);(exemption)
“person” means the Province, a provincial Crown corporation, an agent of the Crown, the Corporation, a public utility, another corporation, a partnership, a society or an individual;(personne)
“usage agreement” means a written contract, agreement or other document in existence on the commencement of this subsection, to which Her Majesty in right of the Province or the Corporation is a party and in which the Corporation or Her Majesty in right of the Province gives a person any right to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing, to excavate, mine or quarry under, across, through or along a highway, to use any portion of a highway for recreational purposes or to gain access to, to pass over or under or to operate any form of transportation or carry out any other activity on, over, under, across or along, a highway, but does not include any permit, licence or permission issued or granted under this Act, the Highway Act, the Motor Vehicle Act, the Off-Road Vehicle Act or the regulations under any of them, other than permission granted under section 41 of the Highway Act or consent given under section 42 of the Highway Act by the Minister of Transportation and Infrastructure before the commencement of this subsection.(accord d’usage)
10.1(2)Subject to subsection 6(4) and sections 10 and 38.1, if a conflict exists between this section or a regulation made in relation to it, and any other provision of this Act, or another Act of the Legislature, whether public or private, or any order, regulation, contract, agreement or usage agreement made under this or any other Act, this section and the regulations made in relation to it prevail.
10.1(3)Subject to subsection 6(4) and sections 10 and 38.1, the Corporation has the exclusive right to determine what, if any, use may be made of any highway or the land on, under or over which a highway is situated and may, by regulation, establish fees payable for any right to use such land or any highway.
10.1(4)Every usage agreement shall, on the commencement of this subsection, be deemed
(a) to contain a term requiring the parties to the agreement to pay any fee established by regulation in relation to any right respecting a highway that is given to the party in the agreement, and
(b) in all other respects to be affirmed.
10.1(4.1)Her Majesty in right of the Province may assign to the Corporation or a project company Her Majesty’s powers, authority and rights under a usage agreement.
10.1(4.2)The Corporation may assign to a project company its powers, authority and rights under a usage agreement.
10.1(4.3)Where a project company is an assignee under subsection (4.1) or (4.2), it shall have all of the powers, authority, rights, duties and responsibilities of the Corporation under this section and this section applies to that project company, with the necessary modifications, as if it were the Corporation or Her Majesty in right of the Province, as the case may be, subject to any limitations, terms, conditions and requirements set out in the assignment.
10.1(5)Land shall be deemed not to be injuriously affected by reason only that a highway to which subsection (3) or (4) applies is situated on, under or over it and no compensation of any kind shall be paid or given to any person who has the benefit of or is a party to a contract, agreement or usage agreement in relation to land or a highway, or who has any other interest in land or a highway, by reason only that
(a) the land or any portion of it is, or is adjacent to, land where such a highway is situated, or
(b) immediately before the date of the commencement of this subsection, the person was the owner of land, or had the benefit of or was a party to a contract, agreement or usage agreement in relation to a highway, and is affected in any manner by the operation of subsection (3) or (4).
10.1(6)No action, application or other proceeding lies or shall be instituted against the Corporation, the Minister of Transportation and Infrastructure or Her Majesty in right of the Province as a result of the enactment of this section or the regulations made in relation to it.
10.1(7)No contractual or other claim, grounds, remedy or defence shall be available to or exercised by a party to a usage agreement, other than the Corporation, the Minister of Transportation and Infrastructure or Her Majesty in right of the Province, as a result of the enactment of this section or the regulations made in relation to it.
10.1(8)No court or person shall construe, claim or deem a usage agreement to be terminated, rescinded, repudiated, frustrated or amended as a result of the enactment of this section or the regulations made in relation to it, other than as deemed amended to contain a term under subsection (4).
10.1(9)The Corporation may, in accordance with the regulations and in its discretion, issue highway usage permits, permitting the holder and persons acting under the authority of the permit
(a) to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing or to excavate, mine or quarry under, across, through or alongside a highway,
(b) to use, repair and maintain any portion of a highway for recreational purposes, or
(c) to use a highway for any other purpose established in the regulations.
10.1(10)The Corporation may, in its discretion
(a) amend, transfer, suspend, cancel, renew and reinstate highway usage permits in accordance with the regulations, and
(b) at any time and in accordance with any applicable regulations that may have been made, impose any terms and conditions in relation to the issuance, amendment, transfer, suspension, cancellation, renewal or reinstatement of, highway usage permits that the Corporation considers appropriate.
10.1(11)No compensation shall be paid to any person by the Corporation in relation to
(a) the refusal to issue, amend, transfer, renew or reinstate a highway usage permit or an exemption, or
(b) the suspension or cancellation of any highway usage permit or exemption.
10.1(12)No person required under the regulations to hold or be acting under the authority of a highway usage permit in order to use a highway or the land on, under or over a highway shall use the highway or land unless doing so under and in accordance with the required highway usage permit.
10.1(13)No person shall use a highway or the land on, under or over a highway in contravention of this Act, the regulations, or the terms and conditions imposed in, by or in relation to any contract, agreement, usage agreement, highway usage permit or exemption.
10.1(14)The Corporation may refuse use of any highway or the land on, under or over a highway to any person who is in contravention of subsection (12) or (13).
10.1(15)If a person has erected or placed or is erecting or placing any object or thing on, over, under, across or along a highway, has repaired or maintained or is repairing or maintaining such an object or thing, has excavated, mined or quarried or is excavating, mining or quarrying under, across, through or along a highway or has used or is otherwise using a highway, in contravention of subsection (12) or (13), the Corporation may by order direct that any such object or thing be disassembled, demolished, modified, relocated or removed and that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the Corporation directs.
10.1(16)Subsections 39(4) to (8) of the Highway Act apply with the necessary modifications to an order made under subsection (15) and the Corporation shall have the power, authority and duties of the Minister of Transportation and Infrastructure under those provisions in relation to the order.
10.1(17)If a person served with an order under subsection (15) fails to comply fully with the order, the Corporation may apply by way of notice of application to a judge of The Court of Queen’s Bench of New Brunswick for one or more of the following orders:
(a) an order prohibiting the erecting, placing, repairing, maintaining, excavating, mining, quarrying or other use;
(b) an order directing the disassembly, demolition, modification, relocation or removal of the object or thing by and at the expense of the person to whom the order relates;
(c) an order directing that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the judge directs, by and at the expense of the person to whom the order relates; and
(d) such other order as is considered necessary in order to enforce the provisions of this section.
10.1(18)Where an offence under subsection (12) or (13) continues for more than one day,
(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and
(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.
10.1(19)Her Majesty in right of the Province is bound by the provisions of this section and the regulations made in relation to it.
10.1(20)Subsections (9) to (12) do not apply to
(a) the granting of a lease or licence under subsection 6(6), to persons acting under such a lease or licence or to the lands in relation to which such a lease or licence is granted,
(b) the use of a toll highway by the public, or
(c) subsection 6(4) and section 10, the designation, control or use of, the restriction in relation to, or the charging of tolls on a toll highway by the Corporation, a project company or a person acting under the authority of an agreement made between the Corporation and a project company.
1996, c.42, s.3; 1997, c.50, s.10; 1997, c.64, s.8; 2003, c.7, s.38; 2010, c.31, s.96; 2012, c.16, s.3
Use of Highway
10.1(1)In this section
“exemption” means an exemption referred to in paragraph 38(1)(c.1) or (d.1);
“person” means the Province, a provincial Crown corporation, an agent of the Crown, the Corporation, a public utility, another corporation, a partnership, a society or an individual;
“usage agreement” means a written contract, agreement or other document in existence on the commencement of this subsection, to which Her Majesty in right of the Province or the Corporation is a party and in which the Corporation or Her Majesty in right of the Province gives a person any right to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing, to excavate, mine or quarry under, across, through or along a highway, to use any portion of a highway for recreational purposes or to gain access to, to pass over or under or to operate any form of transportation or carry out any other activity on, over, under, across or along, a highway, but does not include any permit, licence or permission issued or granted under this Act, the Highway Act, the Motor Vehicle Act, the Off-Road Vehicle Act or the regulations under any of them, other than permission granted under section 41 of the Highway Act or consent given under section 42 of the Highway Act by the Minister of Transportation and Infrastructure before the commencement of this subsection.
10.1(2)Subject to subsection 6(4) and sections 10 and 38.1, if a conflict exists between this section or a regulation made in relation to it, and any other provision of this Act, or another Act of the Legislature, whether public or private, or any order, regulation, contract, agreement or usage agreement made under this or any other Act, this section and the regulations made in relation to it prevail.
10.1(3)Subject to subsection 6(4) and sections 10 and 38.1, the Corporation has the exclusive right to determine what, if any, use may be made of any highway or the land on, under or over which a highway is situated and may, by regulation, establish fees payable for any right to use such land or any highway.
10.1(4)Every usage agreement shall, on the commencement of this subsection, be deemed
(a) to contain a term requiring the parties to the agreement to pay any fee established by regulation in relation to any right respecting a highway that is given to the party in the agreement, and
(b) in all other respects to be affirmed.
10.1(4.1)Her Majesty in right of the Province may assign to the Corporation or a project company Her Majesty’s powers, authority and rights under a usage agreement.
10.1(4.2)The Corporation may assign to a project company its powers, authority and rights under a usage agreement.
10.1(4.3)Where a project company is an assignee under subsection (4.1) or (4.2), it shall have all of the powers, authority, rights, duties and responsibilities of the Corporation under this section and this section applies to that project company, with the necessary modifications, as if it were the Corporation or Her Majesty in right of the Province, as the case may be, subject to any limitations, terms, conditions and requirements set out in the assignment.
10.1(5)Land shall be deemed not to be injuriously affected by reason only that a highway to which subsection (3) or (4) applies is situated on, under or over it and no compensation of any kind shall be paid or given to any person who has the benefit of or is a party to a contract, agreement or usage agreement in relation to land or a highway, or who has any other interest in land or a highway, by reason only that
(a) the land or any portion of it is, or is adjacent to, land where such a highway is situated, or
(b) immediately before the date of the commencement of this subsection, the person was the owner of land, or had the benefit of or was a party to a contract, agreement or usage agreement in relation to a highway, and is affected in any manner by the operation of subsection (3) or (4).
10.1(6)No action, application or other proceeding lies or shall be instituted against the Corporation, the Minister of Transportation and Infrastructure or Her Majesty in right of the Province as a result of the enactment of this section or the regulations made in relation to it.
10.1(7)No contractual or other claim, grounds, remedy or defence shall be available to or exercised by a party to a usage agreement, other than the Corporation, the Minister of Transportation and Infrastructure or Her Majesty in right of the Province, as a result of the enactment of this section or the regulations made in relation to it.
10.1(8)No court or person shall construe, claim or deem a usage agreement to be terminated, rescinded, repudiated, frustrated or amended as a result of the enactment of this section or the regulations made in relation to it, other than as deemed amended to contain a term under subsection (4).
10.1(9)The Corporation may, in accordance with the regulations and in its discretion, issue highway usage permits, permitting the holder and persons acting under the authority of the permit
(a) to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing or to excavate, mine or quarry under, across, through or alongside a highway,
(b) to use, repair and maintain any portion of a highway for recreational purposes, or
(c) to use a highway for any other purpose established in the regulations.
10.1(10)The Corporation may, in its discretion
(a) amend, transfer, suspend, cancel, renew and reinstate highway usage permits in accordance with the regulations, and
(b) at any time and in accordance with any applicable regulations that may have been made, impose any terms and conditions in relation to the issuance, amendment, transfer, suspension, cancellation, renewal or reinstatement of, highway usage permits that the Corporation considers appropriate.
10.1(11)No compensation shall be paid to any person by the Corporation in relation to
(a) the refusal to issue, amend, transfer, renew or reinstate a highway usage permit or an exemption, or
(b) the suspension or cancellation of any highway usage permit or exemption.
10.1(12)No person required under the regulations to hold or be acting under the authority of a highway usage permit in order to use a highway or the land on, under or over a highway shall use the highway or land unless doing so under and in accordance with the required highway usage permit.
10.1(13)No person shall use a highway or the land on, under or over a highway in contravention of this Act, the regulations, or the terms and conditions imposed in, by or in relation to any contract, agreement, usage agreement, highway usage permit or exemption.
10.1(14)The Corporation may refuse use of any highway or the land on, under or over a highway to any person who is in contravention of subsection (12) or (13).
10.1(15)If a person has erected or placed or is erecting or placing any object or thing on, over, under, across or along a highway, has repaired or maintained or is repairing or maintaining such an object or thing, has excavated, mined or quarried or is excavating, mining or quarrying under, across, through or along a highway or has used or is otherwise using a highway, in contravention of subsection (12) or (13), the Corporation may by order direct that any such object or thing be disassembled, demolished, modified, relocated or removed and that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the Corporation directs.
10.1(16)Subsections 39(4) to (8) of the Highway Act apply with the necessary modifications to an order made under subsection (15) and the Corporation shall have the power, authority and duties of the Minister of Transportation and Infrastructure under those provisions in relation to the order.
10.1(17)If a person served with an order under subsection (15) fails to comply fully with the order, the Corporation may apply by way of notice of application to a judge of The Court of Queen’s Bench of New Brunswick for one or more of the following orders:
(a) an order prohibiting the erecting, placing, repairing, maintaining, excavating, mining, quarrying or other use;
(b) an order directing the disassembly, demolition, modification, relocation or removal of the object or thing by and at the expense of the person to whom the order relates;
(c) an order directing that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the judge directs, by and at the expense of the person to whom the order relates; and
(d) such other order as is considered necessary in order to enforce the provisions of this section.
10.1(18)Where an offence under subsection (12) or (13) continues for more than one day,
(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and
(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.
10.1(19)Her Majesty in right of the Province is bound by the provisions of this section and the regulations made in relation to it.
10.1(20)Subsections (9) to (12) do not apply to
(a) the granting of a lease or licence under subsection 6(6), to persons acting under such a lease or licence or to the lands in relation to which such a lease or licence is granted,
(b) the use of a toll highway by the public, or
(c) subsection 6(4) and section 10, the designation, control or use of, the restriction in relation to, or the charging of tolls on a toll highway by the Corporation, a project company or a person acting under the authority of an agreement made between the Corporation and a project company.
1996, c.42, s.3; 1997, c.50, s.10; 1997, c.64, s.8; 2003, c.7, s.38; 2010, c.31, s.96; 2012, c.16, s.3
Use of Highway
10.1(1)In this section
“exemption” means an exemption referred to in paragraph 38(1)(c.1) or (d.1);
“person” means the Province, a provincial Crown corporation, an agent of the Crown, the Corporation, a public utility, another corporation, a partnership, a society or an individual;
“usage agreement” means a written contract, agreement or other document in existence on the commencement of this subsection, to which Her Majesty in right of the Province or the Corporation is a party and in which the Corporation or Her Majesty in right of the Province gives a person any right to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing, to excavate, mine or quarry under, across, through or along a highway, to use any portion of a highway for recreational purposes or to gain access to, to pass over or under or to operate any form of transportation or carry out any other activity on, over, under, across or along, a highway, but does not include any permit, licence or permission issued or granted under this Act, the Highway Act, the Motor Vehicle Act, the Off-Road Vehicle Act or the regulations under any of them, other than permission granted under section 41 of the Highway Act or consent given under section 42 of the Highway Act by the Minister of Transportation and Infrastructure before the commencement of this subsection.
10.1(2)Subject to subsection 6(4) and sections 10 and 38.1, if a conflict exists between this section or a regulation made in relation to it, and any other provision of this Act, or another Act of the Legislature, whether public or private, or any order, regulation, contract, agreement or usage agreement made under this or any other Act, this section and the regulations made in relation to it prevail.
10.1(3)Subject to subsection 6(4) and sections 10 and 38.1, the Corporation has the exclusive right to determine what, if any, use may be made of any highway or the land on, under or over which a highway is situated and may, by regulation, establish fees payable for any right to use such land or any highway.
10.1(4)Every usage agreement shall, on the commencement of this subsection, be deemed
(a) to contain a term requiring the parties to the agreement to pay any fee established by regulation in relation to any right respecting a highway that is given to the party in the agreement, and
(b) in all other respects to be affirmed.
10.1(4.1)Her Majesty in right of the Province may assign to the Corporation or a project company Her Majesty’s powers, authority and rights under a usage agreement.
10.1(4.2)The Corporation may assign to a project company its powers, authority and rights under a usage agreement.
10.1(4.3)Where a project company is an assignee under subsection (4.1) or (4.2), it shall have all of the powers, authority, rights, duties and responsibilities of the Corporation under this section and this section applies to that project company, with the necessary modifications, as if it were the Corporation or Her Majesty in right of the Province, as the case may be, subject to any limitations, terms, conditions and requirements set out in the assignment.
10.1(5)Land shall be deemed not to be injuriously affected by reason only that a highway to which subsection (3) or (4) applies is situated on, under or over it and no compensation of any kind shall be paid or given to any person who has the benefit of or is a party to a contract, agreement or usage agreement in relation to land or a highway, or who has any other interest in land or a highway, by reason only that
(a) the land or any portion of it is, or is adjacent to, land where such a highway is situated, or
(b) immediately before the date of the commencement of this subsection, the person was the owner of land, or had the benefit of or was a party to a contract, agreement or usage agreement in relation to a highway, and is affected in any manner by the operation of subsection (3) or (4).
10.1(6)No action, application or other proceeding lies or shall be instituted against the Corporation, the Minister of Transportation and Infrastructure or Her Majesty in right of the Province as a result of the enactment of this section or the regulations made in relation to it.
10.1(7)No contractual or other claim, grounds, remedy or defence shall be available to or exercised by a party to a usage agreement, other than the Corporation, the Minister of Transportation and Infrastructure or Her Majesty in right of the Province, as a result of the enactment of this section or the regulations made in relation to it.
10.1(8)No court or person shall construe, claim or deem a usage agreement to be terminated, rescinded, repudiated, frustrated or amended as a result of the enactment of this section or the regulations made in relation to it, other than as deemed amended to contain a term under subsection (4).
10.1(9)The Corporation may, in accordance with the regulations and in its discretion, issue highway usage permits, permitting the holder and persons acting under the authority of the permit
(a) to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing or to excavate, mine or quarry under, across, through or alongside a highway,
(b) to use, repair and maintain any portion of a highway for recreational purposes, or
(c) to use a highway for any other purpose established in the regulations.
10.1(10)The Corporation may, in its discretion
(a) amend, transfer, suspend, cancel, renew and reinstate highway usage permits in accordance with the regulations, and
(b) at any time and in accordance with any applicable regulations that may have been made, impose any terms and conditions in relation to the issuance, amendment, transfer, suspension, cancellation, renewal or reinstatement of, highway usage permits that the Corporation considers appropriate.
10.1(11)No compensation shall be paid to any person by the Corporation in relation to
(a) the refusal to issue, amend, transfer, renew or reinstate a highway usage permit or an exemption, or
(b) the suspension or cancellation of any highway usage permit or exemption.
10.1(12)No person required under the regulations to hold or be acting under the authority of a highway usage permit in order to use a highway or the land on, under or over a highway shall use the highway or land unless doing so under and in accordance with the required highway usage permit.
10.1(13)No person shall use a highway or the land on, under or over a highway in contravention of this Act, the regulations, or the terms and conditions imposed in, by or in relation to any contract, agreement, usage agreement, highway usage permit or exemption.
10.1(14)The Corporation may refuse use of any highway or the land on, under or over a highway to any person who is in contravention of subsection (12) or (13).
10.1(15)If a person has erected or placed or is erecting or placing any object or thing on, over, under, across or along a highway, has repaired or maintained or is repairing or maintaining such an object or thing, has excavated, mined or quarried or is excavating, mining or quarrying under, across, through or along a highway or has used or is otherwise using a highway, in contravention of subsection (12) or (13), the Corporation may by order direct that any such object or thing be disassembled, demolished, modified, relocated or removed and that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the Corporation directs.
10.1(16)Subsections 39(4) to (8) of the Highway Act apply with the necessary modifications to an order made under subsection (15) and the Corporation shall have the power, authority and duties of the Minister of Transportation and Infrastructure under those provisions in relation to the order.
10.1(17)If a person served with an order under subsection (15) fails to comply fully with the order, the Corporation may apply by way of notice of application to a judge of The Court of Queen’s Bench of New Brunswick for one or more of the following orders:
(a) an order prohibiting the erecting, placing, repairing, maintaining, excavating, mining, quarrying or other use;
(b) an order directing the disassembly, demolition, modification, relocation or removal of the object or thing by and at the expense of the person to whom the order relates;
(c) an order directing that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the judge directs, by and at the expense of the person to whom the order relates; and
(d) such other order as is considered necessary in order to enforce the provisions of this section.
10.1(18)Where an offence under subsection (12) or (13) continues for more than one day,
(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and
(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.
10.1(19)Her Majesty in right of Canada and Her Majesty in right of the Province are bound by the provisions of this section and regulations made in relation to it.
10.1(20)Subsections (9) to (12) do not apply to
(a) the granting of a lease or licence under subsection 6(6), to persons acting under such a lease or licence or to the lands in relation to which such a lease or licence is granted,
(b) the use of a toll highway by the public, or
(c) subsection 6(4) and section 10, the designation, control or use of, the restriction in relation to, or the charging of tolls on a toll highway by the Corporation, a project company or a person acting under the authority of an agreement made between the Corporation and a project company.
1996, c.42, s.3; 1997, c.50, s.10; 1997, c.64, s.8; 2003, c.7, s.38; 2010, c.31, s.96
Use of Highway
10.1(1)In this section
“exemption” means an exemption referred to in paragraph 38(1)(c.1) or (d.1);
“person” means the Province, a provincial Crown corporation, an agent of the Crown, the Corporation, a public utility, another corporation, a partnership, a society or an individual;
“usage agreement” means a written contract, agreement or other document in existence on the commencement of this subsection, to which Her Majesty in right of the Province or the Corporation is a party and in which the Corporation or Her Majesty in right of the Province gives a person any right to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing, to excavate, mine or quarry under, across, through or along a highway, to use any portion of a highway for recreational purposes or to gain access to, to pass over or under or to operate any form of transportation or carry out any other activity on, over, under, across or along, a highway, but does not include any permit, licence or permission issued or granted under this Act, the Highway Act, the Motor Vehicle Act, the Off-Road Vehicle Act or the regulations under any of them, other than permission granted under section 41 of the Highway Act or consent given under section 42 of the Highway Act by the Minister of Transportation before the commencement of this subsection.
10.1(2)Subject to subsection 6(4) and sections 10 and 38.1, if a conflict exists between this section or a regulation made in relation to it, and any other provision of this Act, or another Act of the Legislature, whether public or private, or any order, regulation, contract, agreement or usage agreement made under this or any other Act, this section and the regulations made in relation to it prevail.
10.1(3)Subject to subsection 6(4) and sections 10 and 38.1, the Corporation has the exclusive right to determine what, if any, use may be made of any highway or the land on, under or over which a highway is situated and may, by regulation, establish fees payable for any right to use such land or any highway.
10.1(4)Every usage agreement shall, on the commencement of this subsection, be deemed
(a) to contain a term requiring the parties to the agreement to pay any fee established by regulation in relation to any right respecting a highway that is given to the party in the agreement, and
(b) in all other respects to be affirmed.
10.1(4.1)Her Majesty in right of the Province may assign to the Corporation or a project company Her Majesty’s powers, authority and rights under a usage agreement.
10.1(4.2)The Corporation may assign to a project company its powers, authority and rights under a usage agreement.
10.1(4.3)Where a project company is an assignee under subsection (4.1) or (4.2), it shall have all of the powers, authority, rights, duties and responsibilities of the Corporation under this section and this section applies to that project company, with the necessary modifications, as if it were the Corporation or Her Majesty in right of the Province, as the case may be, subject to any limitations, terms, conditions and requirements set out in the assignment.
10.1(5)Land shall be deemed not to be injuriously affected by reason only that a highway to which subsection (3) or (4) applies is situated on, under or over it and no compensation of any kind shall be paid or given to any person who has the benefit of or is a party to a contract, agreement or usage agreement in relation to land or a highway, or who has any other interest in land or a highway, by reason only that
(a) the land or any portion of it is, or is adjacent to, land where such a highway is situated, or
(b) immediately before the date of the commencement of this subsection, the person was the owner of land, or had the benefit of or was a party to a contract, agreement or usage agreement in relation to a highway, and is affected in any manner by the operation of subsection (3) or (4).
10.1(6)No action, application or other proceeding lies or shall be instituted against the Corporation, the Minister of Transportation or Her Majesty in right of the Province as a result of the enactment of this section or the regulations made in relation to it.
10.1(7)No contractual or other claim, grounds, remedy or defence shall be available to or exercised by a party to a usage agreement, other than the Corporation, the Minister of Transportation or Her Majesty in right of the Province, as a result of the enactment of this section or the regulations made in relation to it.
10.1(8)No court or person shall construe, claim or deem a usage agreement to be terminated, rescinded, repudiated, frustrated or amended as a result of the enactment of this section or the regulations made in relation to it, other than as deemed amended to contain a term under subsection (4).
10.1(9)The Corporation may, in accordance with the regulations and in its discretion, issue highway usage permits, permitting the holder and persons acting under the authority of the permit
(a) to erect or place a building, structure, wire, cable, line, pole, track, pipe, main, conduit, device, equipment or other object or thing on, over, under, across or along, a highway, to repair or maintain such an object or thing or to excavate, mine or quarry under, across, through or alongside a highway,
(b) to use, repair and maintain any portion of a highway for recreational purposes, or
(c) to use a highway for any other purpose established in the regulations.
10.1(10)The Corporation may, in its discretion
(a) amend, transfer, suspend, cancel, renew and reinstate highway usage permits in accordance with the regulations, and
(b) at any time and in accordance with any applicable regulations that may have been made, impose any terms and conditions in relation to the issuance, amendment, transfer, suspension, cancellation, renewal or reinstatement of, highway usage permits that the Corporation considers appropriate.
10.1(11)No compensation shall be paid to any person by the Corporation in relation to
(a) the refusal to issue, amend, transfer, renew or reinstate a highway usage permit or an exemption, or
(b) the suspension or cancellation of any highway usage permit or exemption.
10.1(12)No person required under the regulations to hold or be acting under the authority of a highway usage permit in order to use a highway or the land on, under or over a highway shall use the highway or land unless doing so under and in accordance with the required highway usage permit.
10.1(13)No person shall use a highway or the land on, under or over a highway in contravention of this Act, the regulations, or the terms and conditions imposed in, by or in relation to any contract, agreement, usage agreement, highway usage permit or exemption.
10.1(14)The Corporation may refuse use of any highway or the land on, under or over a highway to any person who is in contravention of subsection (12) or (13).
10.1(15)If a person has erected or placed or is erecting or placing any object or thing on, over, under, across or along a highway, has repaired or maintained or is repairing or maintaining such an object or thing, has excavated, mined or quarried or is excavating, mining or quarrying under, across, through or along a highway or has used or is otherwise using a highway, in contravention of subsection (12) or (13), the Corporation may by order direct that any such object or thing be disassembled, demolished, modified, relocated or removed and that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the Corporation directs.
10.1(16)Subsections 39(4) to (8) of the Highway Act apply with the necessary modifications to an order made under subsection (15) and the Corporation shall have the power, authority and duties of the Minister of Transportation under those provisions in relation to the order.
10.1(17)If a person served with an order under subsection (15) fails to comply fully with the order, the Corporation may apply by way of notice of application to a judge of The Court of Queen’s Bench of New Brunswick for one or more of the following orders:
(a) an order prohibiting the erecting, placing, repairing, maintaining, excavating, mining, quarrying or other use;
(b) an order directing the disassembly, demolition, modification, relocation or removal of the object or thing by and at the expense of the person to whom the order relates;
(c) an order directing that the highway and the land on, over or under which the highway is situated be restored to its original condition or to such other condition as the judge directs, by and at the expense of the person to whom the order relates; and
(d) such other order as is considered necessary in order to enforce the provisions of this section.
10.1(18)Where an offence under subsection (12) or (13) continues for more than one day,
(a) the minimum fine that may be imposed is the minimum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues, and
(b) the maximum fine that may be imposed is the maximum fine set by the Provincial Offences Procedure Act multiplied by the number of days during which the offence continues.
10.1(19)Her Majesty in right of Canada and Her Majesty in right of the Province are bound by the provisions of this section and regulations made in relation to it.
10.1(20)Subsections (9) to (12) do not apply to
(a) the granting of a lease or licence under subsection 6(6), to persons acting under such a lease or licence or to the lands in relation to which such a lease or licence is granted,
(b) the use of a toll highway by the public, or
(c) subsection 6(4) and section 10, the designation, control or use of, the restriction in relation to, or the charging of tolls on a toll highway by the Corporation, a project company or a person acting under the authority of an agreement made between the Corporation and a project company.
1996, c.42, s.3; 1997, c.50, s.10; 1997, c.64, s.8; 2003, c.7, s.38