B.C. court ruling throws curve into air rights for crane booms

Saul Chernos
October 11, 2017
By Saul Chernos

Court decisions pertaining to construction cranes and air rights are few and far between in Canada. Developers wanting to swing over-top a neighbour’s property generally reach an agreement with them.

However, negotiations don’t always succeed. Sometimes crane swing disputes end up before a judge.

Legal eagles are scrutinizing a British Columbia Supreme Court ruling last year that appears to toss a curve into the generally held view that trespass laws tend to apply in such cases.

In 2016, Concost Management was constructing a four-storey building on 120th Street in Surrey, B.C. However, as happens frequently in crowded areas, the builder wanted to swing its crane over an adjacent two-storey shopping plaza and its parking lot.

Negotiations stalled, injunction sought

According to court documents, negotiations between Concost and Janda Group Holdings, the plaza owner, appeared to have stalled.

The court’s decision to deny Janda’s request for an injunction — www.courts.gov.bc.ca/jdb-txt/sc/16/15/2016BCSC1503.htm — indicates a proposed reciprocal agreement would have offered Janda similar swing rights should it, too, wish to redevelop.

However, the situation escalated and Janda sought a court injunction to halt the crane. Asserting that Concost was swinging its crane over the plaza property at a height of about 40 feet, Janda described the actions as both a nuisance and a trespass into its airspace.

In his ruling, Justice Robert Crawford agreed the crane was indeed entering Janda's airspace. But he disagreed with Janda’s claims the intrusions presented a danger.

“The proposed agreement called for a 50‑foot clearance,” Justice Crawford ruled. “It is further said there are no materials going over the plaintiff’s property. The pictures indeed show that exactly. It is simply the boom that swings that is going over their property and not anything heavy.”

Justice Crawford cited a 1990 Ontario case, Kingsbridge Development Ltd. v. Hanson Needler, which found nuisance rather than trespass the key determinant.

“I have great difficulty in this modern age, where construction cranes are all around the Lower Mainland, that the suggestion would be that an unsafe crane would be erected and would put out loads outside the property they are working on,” Justice Crawford ruled. “The defendants are entering the plaintiff’s airspace, but that is no longer, in my view, an automatic pass to finding trespass and the right to injunction.”

The ruling caught the attention of David Allman, a partner and commercial real estate lawyer with Edwards, Kenny & Bray LLP, and Larissa Dziubenko, an articling student at the time who is now an associate with the Vancouver firm. Together, they published an analysis of the decision — www.ekb.com/no-crane-no-gain-recent-changes-in-the-law-of-airspace-rights-may-bring-benefit-for-developers.

“Janda Group likely expected to be successful in their claim because, until Janda, the courts in B.C. considered a crane’s entry into airspace a trespass,” Allman and Dziubenko wrote. “However, the court in Janda held that Concost’s crane was a nuisance.”

Allman and Dziubenko described the distinction as important because harm from trespass does not need to be demonstrated whereas a claim for nuisance does require harm be proven, making an injunction more difficult to obtain.

“It’s of interest from a legal perspective because it adopts a view that has not been widely adopted previously,” Allman told Crane & Hoist Canada.

Dziubenko, who also participated in the interview, did the lion’s share of the research for the analysis and said there have been few air rights cases in Canada dealing with intrusions of a temporary nature, so there’s simply not much recent precedent to go by.

Decision’s effect uncertain

While courts have generally viewed airspace intrusions as a trespass, the Kingsbridge ruling bucked this trend and found nuisance the deciding factor. The Janda-Concost decision, while also validating nuisance, makes it even more challenging to predict where future decisions might go.

“The effect, if any, of the decision is uncertain,” Allman said. “This decision might be useful [for a developer] trying to negotiate a price. But beyond that it’s really difficult to say what the significance of the case will be.”

With air rights themselves somewhat up in the air, any party wanting to swing even partly over an adjoining property needs to achieve certainty as soon as possible by negotiating an airspace rights agreement.

“An absence of those rights might be of issue to lenders, or in terms of getting building permits,” Allman said. “The risk of an injunction that prevents a crane from operating, even if very remote, would still be something you’d want to cover off.”

Often, air rights can be included in agreements addressing other construction-related needs such as shoring and underpinning rights. “They often go hand-in-hand,” Allman said. “These involve driving anchor bolts into the neighbour’s property, so that’s also something that’s not permitted without a neighbour’s consent.”

Property rights ignored

Meanwhile, Bob Aaron, a real estate lawyer with Aaron & Aaron in Toronto, says the focus on nuisance rather than trespass ignores the property rights of the neighbouring owner.

“With great respect for the Court, I think the decision is wrong,” Aaron said. “The judge says it’s the boom that swings over their property, not anything heavy, but I beg to differ. And it’s not as if we’ve never had a crane fall over — he has difficulty understanding the risks and danger the plaintiffs are talking about.”

Aaron said the court should have taken a different tack. “A crane doesn’t have to swing 360 degrees. It can swing at 319 degrees or 280 degrees. It can go back and forth — it doesn’t have to go over [the Janda property].”

B.C.’s highest court denied Janda leave to appeal the decision to deny the injunction. However, other judges in B.C. and courts in other Canadian jurisdictions aren’t bound by the decision.

While David Allman said each case would depend on its own unique facts, Bob Aaron said a case based on even relatively similar facts could prompt an entirely different decision from another judge or court.

Nevertheless, Aaron urges parties to negotiate. “My advice is to make sure you deal with the neighbours and make them a fair and reasonable offer for air rights and a crane swing agreement,” Aaron said.

Aaron said he has helped many clients negotiate swing agreements and has never needed to go to court.

“There comes a point where the neighbours say they want more and the builder says they’re not going to pay more,” Aaron said. “The parties decide they’re going to have to settle, and it all works out — everybody’s happy.”

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