Clearing the air around air space rights

A recent B.C. case has addressed the legal issues surrounding tower cranes and their infringement upon neighboring land. If followed, the case may significantly redefine the discussions between developers and adjacent owners over airspace rights.

The law in Canada is that a property owner owns only so much of the air space that can be reasonably occupied or used in connection with the land below. Practically speaking that means a landowner has no remedy at law for the occasional use of the airspace over the landowner’s property by planes, drones, or helicopters using the airspace fleetingly and far above the property. However, with respect to the interference caused by overhanging tower cranes, and in particular the swinging of crane booms through adjacent landowner’s airspace, there have traditionally been two legal remedies for impacted landowners – an action for trespass and an action for nuisance.

The recent BC case, Janda Group Holdings Inc. v. Concost Management Inc., may have the practical effect of narrowing those remedies to one – an action for nuisance. That would be a significant development in this area of the law because a cause of action in trespass can be established without requiring proof of actual damages and in the past, an adjacent landowner has been able to obtain an order enjoining the swinging of a crane boom across their land without being required to establish that the crane boom has actually caused them any damage. The decision in Janda Group indicates that this may no longer be the case.

In Janda Group, negotiations had broken down between the developer and the adjacent landowner (“Janda”) with respect to an airspace agreement which would have allowed the developer to swing a crane boom across Janda’s land. Despite the fact that the developer had not reached an agreement with Janda, the developer proceeded with construction and in particular the operation of a tower crane that began to swing through Janda’s airspace on April 21, 2016. Janda commenced an action for trespass and nuisance on April 27, and brought an application for an injunction on May 5 to enjoin the developers from using Janda’s airspace.

The Court dismissed the application and found that there had to be a more modern view of airspace rights when dealing with tower cranes and that there should not be an automatic finding of trespass particularly where, as in the case before it:

  • 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;
  • It 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 ability to obtain an order for trespass has provided adjacent landowners with some leverage when negotiating with developers over the price of an airspace agreement allowing the tower crane to swing through their airspace. If Janda is followed as the law in BC, adjacent landowners’ leverage in negotiations with developers on airspace agreements may be significantly reduced.

 

This article was co-authored by Norm Streu, President and Chief Operating Officer of the LMS Reinforcing Steel Group and is reproduced with consent from the Vancouver Regional Construction Association, publishers of Construction in Vancouver. The article was first published in Construction in Vancouver, July 2017.

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