The Rural Voice, 2005-11, Page 48Paul G.
Vogel, a
partner in the
London law
firm of Cohen
Highley LLP.
Agrilaw
Nuisance Relief - Do it Now
By Paul Vogel
The increasing encroachment of
urban development into rural
communities inevitably results in
competing and incompatible land
uses. What remedies are available to
rural landowners when enjoyment of
their property is disrupted by a
neighbour's development of their
property for public recreational use?
The Ontario Superior Court of
Justice recently considered a case in
which a group of rural residents sued
an operator of a local dragway for
compensation for their loss of
reasonable use and enjoyment of their
properties as a result of the dragway's
operations and for an injunction to
restrain the dragway from continuing
operation permanently or at least until
such time as noise abatement
measures were implemented.
The landowners complained that
the dragway noise, vibrations from jet
cars, audibility of the public
announcement system,' traffic
congestion and the odour and smoke
from burning tires upset their farm
animals, prevented outdoor
socializing and family gatherings, and
interfered with Sunday relaxation and
worship services. While the dragway
had been in operation for almost four
decades prior to institution of these
court proceedings, evidence at trial
established that there had been an
increase in racing activity following
purchase of the facility by the
defendants.
In considering the plaintiffs claim,
the Court stated:
"The plaintiff's claim damages on
the basis of nuisance, namely,
interference of the beneficial use
of their respective property ...
The paramount problem in the law
of nuisance is ... to strike a
tolerable balance between
44 THE RURAL VOICE
conflicting claims of landowners,
each invoking the privilege to
exploit the resources and enjoy the
amenities of his property without
undue subordination to the
reciprocal interest of the other.
Reconciliation has to be achieved
by compromise, and the basis for
adjustment is reasonable user.
Legal intervention is warranted
only when an excessive use of
property causes inconvenience
beyond what other occupiers in the
vicinity can be expected to bear,
having regard to the prevailing
standard of comfort of the time and
place ... It is not enough to ask: is
the defendant using his property in
what would be a reasonable
manner if he had no neighbour?
The question is, is he using it
reasonably, having regard to the
fact that he has a neighbour?"
The landowners asserted that theirs
was a rural, quiet community, and that
the existence and operation of the
dragway was not in harmony with the
character of their historic village. The
defendant dragway operator argued
that, given the length of time the
dragway had operated, it formed part
of the character of the locale and that
the dragway's neighbours must
tolerate its impacts upon their
community. The court concluded:
"In the present case, the delay by
the plaintiffs in complaining about
the dragway allowed the dragway
to become part of the community
over time ...
I find that residents in a
neighbourhood that includes a
dragway must inevitably tolerate a
certain amount of noise. The
standard of comfort differs
according to the situation, but
whatever the standard of comfort
in a particular district may be, the
addition of new or fresh noise
caused by the dragway may be so
substantial as to create a legal
nuisance".
As a result, the Court granted
judgement to the landowners but
limited the relief granted to the
impacts resulting from the increased
racing activity. The Court held:
"For three decades, the plaintiffs
have watched and heard the
activities and operation of the
dragway even as it expanded in
1990 to include more racing events
and extended racing hours. During
this time, the plaintiffs made no
attempts to restrict or otherwise
deter the dragway's growth and
development.
The dragway has been in operation
for over 38 years prior to the
commencement of this litigation.
To grant an injunction as sought by
the plaintiffs, would, in all of the
factual circumstances of this case,
be irreversibly oppressive to the
defendants".
The court determined that the
speedway's operation on Sunday
mornings constituted an interruption
or annoyance for the landowners
amounting to an undue and unreason-
able interference with their enjoyment
of their property. As a result, the court
awarded each of the landowners
$1,000 per year for each year of their
residence for the disruption of their
peaceful, quiet Sunday mornings. In
addition, the court ordered that racing
on Sundays not commence before
1:00 p.m. to prevent the Sunday
morning interruption and annoyance
which the court described as "a
material, undue and unreasonable
interference with the plaintiffs'
enjoyment of their property".
Rural residents adversely impacted
by neighbouring development may
have a legal remedy to restrict such
operations and to obtain
compensation for interference with
their property use and enjoyment.
However, delay by such residents in
seeking redress may prejudice the
relief available to them.0
Agrilaw is a syndicated column
produced by the full service London
law firm of Cohen Highley LLP. Paul
G. Vogel, a partner in the firm,
practices in the area of commercial
litigation and environmental law.
Agrilaw is intended to provide
information to farm operators on
topics of interest and importance. The
opinions expressed are not intended
as legal advice. Before acting on any
information contained in this column,
readers should obtain legal advice
with respect to their own particular
circumstances and geographical area.