A New Brunswick court has refused to declare that two landowners have a vehicle right of way across a planned street occupied by a temporary playground, finding that the requested order would not resolve the underlying dispute over who must pay to build the road.
Justice Kathryn A. Gregory dismissed the application in Corey v Town of Grand Bay-Westfield, 2026 NBKB 196, decided October 2, 2026, in the Court of King's Bench of New Brunswick.
The judge did not decide whether the claimed easement exists, whether the playground is legally placed or whether the landowners must finance street construction. The ruling concerned whether a declaration was an appropriate remedy before the municipal planning process had been engaged.
A playground on a future street
Isaac and Naomi Corey bought 21 hectares of undeveloped, forested land in September 2023. Its access history stretches back to a 1988 right-of-way agreement and later subdivisions. A 1990 subdivision plan designated land as a future street; one portion eventually became the public street Ridge Way, while another remained undeveloped beside what became the Coreys' property.
In 2000, the town installed a small playground on that remaining strip. The council resolution allowed the structure to remain until the adjoining owner applied to develop or subdivide the land. The playground effectively blocks vehicles, leaving access to the Coreys' land essentially on foot.
The town offered to remove the playground at its own expense when the Coreys filed a development plan. But it also took the position that development could require them to pay to turn the future street into a public road.
No development or subdivision application had been filed when the court decided the case. Instead, the Coreys sought a declaration that they already had a right of way by necessity, conveyance or both, followed by an order requiring the town to give effect to it. That would require removing the playground without first submitting a development plan.
Why a declaration would not settle the dispute
A declaration states the parties' legal rights, but granting one is discretionary. The court must consider whether it has jurisdiction, whether the dispute is real rather than theoretical and whether both sides have a genuine interest in the outcome. Practical usefulness also matters: courts generally avoid declarations about premature or hypothetical disputes.
Gregory accepted that the Coreys felt caught at an impasse. But she concluded that the requested declaration would not practically resolve the problem presented by the record.
The central issue, in her view, was financial responsibility for turning the undeveloped strip into a public street connected to Ridge Way. Ordering the playground removed would not answer that question. A declaration in advance of the planning process could instead make the later dispute more complicated.
The judge said a concrete municipal decision assigning street-construction costs after a development application might be subject to court review. She expressly offered no view on the merits of such a challenge.
Although the parties had argued about the playground's legality, that question was not directly put before the court for determination. Nor did the dismissal establish that the town's position on development costs was correct.
Application dismissed with costs
The court dismissed the requested declaration and consequential relief, ordering the Coreys to pay the town $2,000 in costs, plus HST and reasonable disbursements.
The decision illustrates a limit on using declarations to resolve anticipated planning disputes: a court may decline to answer a property-law question when doing so would not settle the practical conflict. It does not determine the Coreys' eventual access rights or road-cost obligations.
