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Nuisance and the Rule of Law
Posted in Municipal Law

Does the conduct of your neighbour adversely affect the use and enjoyment of your property?  Is your neighbour immune to reasonable requests to moderate his behaviour to lessen that impact?  Are the local authorities unwilling to assist you in resolving the problems?  This can be very frustrating and detrimental to the welfare of you and your family.  If the matter is of little monetary value, it is often uneconomic to pursue, but it can nonetheless be a constant aggravation.  This type of conduct is not supposed to happen in a civilized country and, if it does, the rule of law should prevent it.  Sadly, it often is not for one reason or another.

However, there is an answer in the law of nuisance.  Where a nuisance is proven, the courts will help prevent unlawful conduct, even if the local authorities will not.  A recent example of the court providing such assistance involved a couple taking their neighbour to court over the nuisance he was creating on their property.  It is a good lesson in both the law of nuisance and in the ability of individuals to seek justice.  The neighbour was by most reports a vindictive man.  For years, he insisted on burning wood and garbage in his fireplace for the purpose of having the smoke drift onto his neighbours’ property and causing them great discomfort.  The wood being burned was of all sorts, including waste and painted wood which created an acrid smoke.  This prevented many nearby owners from being able to go into their yards.  Entreaties to stop or to burn clean wood went unheeded.

Creating this smoke was a violation of the Greater Vancouver Regional District Air Quality Management Bylaw Number 1082.  Despite this, neither the police, nor the municipal and provincial environmental authorities with jurisdiction would do anything.

There was nothing but for the long-suffering homeowners to take the case to court themselves.  They relied on the law of nuisance to seek a court order that their neighbour cease burning wood on his property and causing smoke to permeate the neighbourhood to the detriment of everyone else.

Nuisance is the unreasonable interference with a person's enjoyment of his or her land or physical damage to that land.  It exists when a person is unlawfully annoyed, prejudiced or disturbed in the enjoyment of land.  It often occurs in the context of conflicting activities conducted in close proximity to one another.  It is a question of degree: as early English case authority noted, “what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey”.  Whether a particular act or omission constitutes a “nuisance” in the legal sense depends on assessment of four factors:

i) the character of the neighbourhood;

ii) the severity of interference;

iii) the utility of the defendant’s conduct; and

iv) whether the plaintiff displayed abnormal sensitivity.

On the facts of this particular case, the court found the neighbourhood to be a residential one; a place where people are entitled to enjoy the use of their yards without being unlawfully annoyed, prejudiced or disturbed.  The smoke being dissipated was unlawful as illustrated by its contravention of the relevant bylaws.  The severity of this conduct was very high.  The strong noxious smell of the smoke interfered with the health of the residents and the enjoyment of private property.  Against this, there was no utility in burning wood in all seasons and when other less intrusive means of heating the defendant’s home were available (i.e., electric or gas heat).  Indeed, the evidence suggested this conduct was done primarily to target the plaintiffs, not for any other real purpose.  As a result, the court found the defendant was “causing . . . a significant nuisance to his neighbours and must be restrained.”  The court issued an injunction preventing the defendant from using his fireplace at all.  He was also ordered not to collect material in his yard, including scavenged wood, garbage and building materials.  Lastly, he was prevented from using any commercial style power tools outside authorized hours.

If you are the subject of similar conduct by a neighbour, this case illustrates that you can seek assistance from the courts, even where other law enforcement officials are not prepared to act.

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