AgriLaw: Compensating Nuisance – Substantial and Unreasonable

November 2016

Landowners implementing measures to improve their own property may adversely impact their neighbour’s use and enjoyment of their adjoining property. When will such landowners be liable for their neighbour’s financial losses resulting from this interference?

In a recent decision of the British Columbia Supreme Court, the plaintiff landowners asserted a claim in nuisance against the defendant neighbouring landowners alleging that the defendants’ installation of a drain and importing of fill onto their property had resulted in a significant increase in water flow interfering with the plaintiffs’ use and enjoyment of their property. In the trial judgement, the court provided the following summary of the plaintiffs’ claim:

 “The Plaintiffs assert that between 2001 and 2009, the Defendants made significant modifications to the [defendants’] property that caused and continues to cause water to flow from the [defendants’] property to the [plaintiffs’] property which, at times, contained orange coloured sediment and septic effluent. The Plaintiffs call this the ‘Water Problem’ ”.

The trial evidence established that the defendants had in fact installed drainage and added fill to their property which resulted in a substantial increase in groundwater flow onto the plaintiffs’ property which interfered with the plaintiffs’ property use. The Court determined:

“ … The Water Problem has substantially altered the nature of the [plaintiffs’] property. Before the onset of the Water Problem, groundwater was not an issue that affected the [plaintiffs’] property in any notable way.  After the onset of the Water Problem, however, groundwater often affects the [plaintiffs’] property.  The evidence also demonstrates that the Water Problem significantly interfered with the use made of the [plaintiffs’] property by the Plaintiffs.  The Plaintiffs paint a compelling ‘before and after’ picture of how the [plaintiffs’] property was used for various recreational activities on a frequent basis before the onset of the Water Problem and how, following its onset, these recreational activities became less frequent or ceased to occur.  One example of a significant interference wrought by the Water Problem is the fact that the Plaintiffs can no longer keep horses on their property given the constant presence of water and mud on a significant portion of their property.  I find that the Water Problem cannot be characterized as a slight annoyance or a trifling interference.  Rather, the Water Problem is of such a nature that it significantly interferes with the actual use and enjoyment of the [plaintiffs’] property and substantially alters the nature of the Plaintiffs’ property.”

In considering the relative utility of the Defendant’s conduct in improving their property, the Court commented:

“Even if I were to accept that the French Drain was necessary to facilitate to removal of water from the [defendants’] property, the gravity of the harm caused to the [plaintiffs’] property by the installation of the French Drain – that is, the Water Problem – outweighs the utility of such conduct. Compounding matters and intensifying the Water Problem was the addition of a tremendous amount of fill to the [defendants’] property.  While this was done, no doubt, to improve the [defendants’] property by levelling it, raising the elevation, installing another building thereby improving the aesthetic appearance, utility and value, it appears to have been done without regard to the impact that the changes would have on the flow of groundwater from the [defendants’] property.  Home and landscaping improvements are obviously permissible, so long as they do not negatively affect the use and enjoyment of the adjoining property owners’ premises.  Balancing all of the circumstances in this case, the Defendant’s interference with the [plaintiffs’] property was unreasonable.”

Having determined the defendants’ liability to the plaintiffs for nuisance, the Court granted judgement to the plaintiffs for both general non-pecuniary damages for loss of use and enjoyment of their property and the remedial costs for the plaintiffs to install the required drainage on their property to intercept and redirect the water flow from the defendants’ property.  Landowners undertaking property improvements may incur liability where such improvements interfere with their neighbour’s use and enjoyment of an adjoining property.  Such liability may result where this interference is both substantial and unreasonable.

Author

Paul practises mainly in the areas of environmental law, energy law, and commercial litigation. He is author of "Civil Procedure in Practice" and a regular contributor of articles to various journals. Paul is certified by the Law Society as a Specialist in Civil Litigation. More →