The Rural Voice, 1999-12, Page 49Agrilaw
Compensating landfill neighbours
Construction of a landfill may
cause landfill neighbours serious
concerns about the health and safety
of their families and diminished value
of their property. Where landfill
activities adversely affect
neighbouring properties, what legal
remedies are available to compensate
neighbours for their loss?
In a recent case decided by the
British Columbia Supreme Court, a
plaintiff sued a defendant for the
adverse impacts of the defendant's
landfill operations on the
neighbouring plaintiffs trailer park
and cabin rental business. In that
case, the defendant had failed to
properly survey the boundary line
between his property and the
plaintiffs and, as a result, 8,100
square feet of the plaintiff's property
had been inundated to a depth of 28
feet with wood -waste fill from a
nearby industrial park. Due to delay
by the defendant in responding to the
plaintiff's demand that the fill be
removed and continuing landfill
activities on the defendant's property,
by the date of trial, removal of the fill
from the plaintiff's land was no
longer possible.
The Court concluded that, as a
result of his lack of care in
deterrtiining the property line, the
defendant had unlawfully trespassed
on the plaintiff's property. Because
of the risk of fire if the landfill were
opened, the only safe method of
addressing this trespass was to cap
the area of fill on the plaintiffs
property. However, the plaintiff
asserted that there would remain a
significant risk of fire and methane
migration. On the basis of the,expert
evidence provided to the Court, the
Court concluded that there k as a
possibility of
underground
combustion in
the landfill and
of methane
migration.
The Court
concluded that
the plaintiff was
entitled to
damages to
address
diminution in the
value of the land
and
compensation
for the continued presence of the
wood waste. The Court held:
' ... I am of the opinion the
Plaintiff is entitled to general
damages that reflect the
diminution of the value of the land
and some amount to compensate
the plaintiff for the defendant's
continued use of the land. The
defendant used the plaintiff's land
in the sense that the trespass
material provided support for a
larger landfill. Further, the
plaintiff is entitled to recover the
cost of capping the wood waste so
as to reduce or eliminate the risk
Landfill
neighbours
have a
legal right
to protect
themselves
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46 THE RURAL VOICE
of fire and methane migration and
any other consequential damages."
However, in addition to such
compensatory damages, the Court
determined that the plaintiff was also
entitled to punitive damages because
of the defendant's failure to remove
the wood waste at the plaintiff's
request. The Court stated:
"I have concluded that the failure
to remove the trespass material
when requested occurred because
the defendant wanted the plaintiff
to agree to fill its property, which
the defendant believed would be
mutually beneficial. However, that
was not the plaintiffs desire. The
plaintiff wished to have its land in
its natural state, with the
protection for privacy and the
view over the ("defendant's")
property that the steep slope
provided ... I think, in the
circumstances, that the
defendant's conduct became
deliberate, was reprehensible and
merits punishment: the defendant
disregarded the plaintiffs property
rights largely because he thought
that in the scheme of things those
rights were trivial."
Landfill neighbours have the legal
right to protect themselves and their
property. Where landfill activities
infringe upon this right, the courts
may award compensation to both
address financial loss and restoration
of the property, as well as to sanction
a defendant's deliberate interference
with property rights.0
Agrilaw is a syndicated column
produced by the full service London
law firm of Cohen Highley Vogel and
Dawson. Paul C. Vogel, a partner in
the firm, practices in the area of
commercial litigation and
environmental law. Agrilaw is
intended to provide information to
farmers on subjects of interest and
importance. The opinions expressed
are not intended as legal advice.
Before acting on any information
contained in Agrilaw, readers should
obtain legal advice with respect to
their own particular circumstances.
i