Crane-Swing Caution: Self-Help is Not That Simple
By: Russell Benson and Nathan Ische
UPDATE: The case of OSED How Street Vancouver Leaseholds Inc. v. FS Property Inc. (2020 BCSC 1066) has materially changed the law in British Columbia, effectively reversing the decision of the same court in the 2016 Janda decision.
In essence, it contradicts the Janda decision by concluding that the passage of the counterweight of the crane over the neighbouring fourth floor terrace is a trespass, rather than a nuisance, and therefor an injunction is an available remedy. The judge did so on the basis that it did not appear that the judge in Janda considered the Ontario Court of Appeal’s decision in 1465152 Ontario Ltd. v. Amexon Development Inc. (2015) which came after the 1990 Ontario High Court case called Kingsbridge Development Inc. v. Hanson Needler Corp. that the Janda judge did rely on, and is higher authority. Also, there was another Nova Scotia Court of Appeal case (Maxwell Properties Ltd. v. Mosaik Property Management Ltd. (2017 NSCA 76)) that came after Janda and concluded that an overhanging construction crane boom is a nuisance trespass – in the words of the court: “A construction crane which enters the air space of another property is trespassing upon that air space.” While not binding in BC, the case is a Court of Appeal decision from another Canadian jurisdiction and, as such, does carry weight. If it is possible to overrule a decision from the same level of court, this decision comes pretty close.
As a result, it is safe to say that obtaining an agreement with a neighbour is more important because the risk is that they could get an injunction to halt the use of the crane and, thus, the project. However, the case also confirms that an injunction was not available “as of right” and the plaintiff had to show “irreparable harm” from the continued passage of the crane and that the balance of interests favour granting the injunction (including that damages would be an inadequate remedy). On the facts of the OSED case – which included the fact that a counterweight would be passing regularly over an outdoor amenity space – the court decided that an injunction would be appropriate. The judge actually drew a contrast to the facts in Janda where only the unladen boom of the crane would pass over the neighbour’s property.
Having said that, in many cases a developer is already obtaining an agreement from the neighbour because they are seeking both crane swing and underpinning rights, and there is little doubt that installing anchor rods under a neighbour’s property for shoring purposes is a trespass for which the likelihood of an injunction being issued is higher than it would be for a trespass by the boom of a construction crane.
Ownership of land generally includes ownership of the airspace above the land to the extent necessary for ordinary use and enjoyment of that land. Thus, until fairly recently, the prevailing view was that the passage of the boom of a construction crane through someone else’s airspace was a trespass. At law, and as of right, the remedy for a trespass is a court-ordered injunction to stop the trespass from continuing. That would, of course, create a huge problem if a developer had completed its excavation and set up its crane, but then had to stop work.
In Janda Group Holdings Inc. vs Concost Management Inc. (2016 BCSC 1503), the BC Supreme Court changed this presumption in British Columbia. The judge surveyed the somewhat sparse and inconsistent prior law and concluded that, on the facts of that case, the passage of the boom of the crane from time to time during construction was not a trespass, but a nuisance which is compensable with damages rather than by injunction.
In the Janda case, the defendant developer had attempted to enter into an agreement with the neighbour to grant the developer crane-swing rights over the neighbour’s property. The neighbour delayed and did not respond, so the developer went ahead and swung the boom of its construction crane through the neighbour’s airspace despite the fact that no agreement had been reached. The neighbour then commenced legal proceedings seeking an injunction.
In considering whether a nuisance or a trespass had been committed, the judge in Janda pointed out that:
- there was no evidence that the crane was being operated unsafely;
- the crane was operated by a highly experienced and reputable formworker, crane erector and operator;
- the crane was erected pursuant to all applicable safety standards and regulations;
- the crane was inspected by an engineer, Worksafe BC, and on a daily basis by the operator;
- the crane was not carrying loads over the adjacent properties; and
- no injury had been caused to anyone.
The judge, in denying the injunction, held that the developer’s conduct constituted a nuisance and noted that the appropriate remedy for the nuisance would be damages, which would be more than nominal. The amount of damages should be reasonable for the use of the airspace – however, the case gave no indication of what that amount might be.
Thus, the Janda case does not stand for the proposition that one can just “swing away” without compensating the neighbour.
Nonetheless, there is a fairly prevalent view in the development community that Janda stands for the proposition that one can simply go ahead and swing a crane over a neighbour’s property with impunity. This is not correct. Assuming there is a finding of nuisance rather than trespass, the neighbour is entitled to damages, the amount of which will be dependent on the facts of the particular situation, including the conduct of the parties.
It should also be noted that it can be significantly more difficult to establish an action in nuisance than in trespass on the same facts. Unlike nuisance, trespass does not require proof of actual damage or loss – something that may be difficult to demonstrate in a case involving overswinging. Nuisance also invokes consideration of the reasonableness of the alleged interference with the use and enjoyment of the plaintiff’s land, including its duration and extent. Moreover, in nuisance disputes courts are also concerned with balancing the competing interests of the parties. In contrast, in trespass the focus tends to be on the proprietary rights of the plaintiff rather than on the conduct of the defendant. As such, if a court were to follow Janda and conclude that the proper remedy lies in nuisance rather than trespass, the plaintiff would likely have more difficulty establishing their case.
As a result, it is best for the developer to try to obtain an agreement, or at least show that it made reasonable, good faith efforts to do so. This may help minimize the quantum of damages if the developer ultimately proceeds without an agreement and is sued (it looks good to the court to be able to show the lengths to which the developer went in order to get permission and an agreement, such as offering to pay reasonable consideration). Documenting these efforts is important for evidentiary purposes.
Things will typically start with a verbal or written overture; if verbal discussions are the first contact, they should be followed by a letter. One approach is to word the letter so that if the neighbour does not respond, it can be argued that they gave their implied consent to proceed (the old “negative option”). If the neighbour does respond, hopefully an orderly process to negotiate a simple licence agreement will follow. In the meantime, a properly drafted letter would also let the neighbour know the relevant construction timing, so the developer can later demonstrate to the court that it gave advance notice of its intention to proceed with the overswingeven if an agreement is never settled.
If the developer is not successful in obtaining an agreement, the current law suggests that it can go ahead without fear of being shut down by injunction, but it should expect to have to pay some reasonable amount for the use of the airspace sooner or later. Minimizing the impact of the overswing, ensuringthat the crane is erected and operated in accordance with all applicable safety standards and regulations and that no loads are carried over the neighbour’s property, should also help to mitigate the amount of damages to which the neighbour is entitled.