The Rural Voice, 2019-08, Page 78and the other third on the
Respondents’ (the neighbours’)
property. The Applicants planned to
expand their house with a substantial
renovation adding approximately
1,300 square feet of living space.
However, the proposed renovation
would require excavation around the
tree deep into a “tree protection zone”,
which, according to the Respondents’
expert witness, would cause the death
of the tree. The Applicants did not
dispute that conclusion.
Although the Applicants had
obtained all relevant municipal
permits required to cut down the tree,
they sought an order from the Court
because compliance with regulatory
requirements does not address the
question of the respective ownership
rights of the neighbours in the tree
(Justice Morgan suggested that the
Applicants were wise to do so as
unilaterally chopping down the tree
(the “self-help remedy”) would be an
offence under the Forestry Act). The
issue to be decided by Justice Morgan
was whether or not the boundary tree
actually constituted a nuisance. If the
tree’s interference with the
Applicants’ planned enhancement of
their property did reach the level of
nuisance, then they should be
permitted to remove the tree. If the
tree’s interference did not reach the
level of nuisance, then the Applicants
would not be entitled to remove the
tree without the permission of the
tree’s co-owners, the Respondents.
For there to be a nuisance, there
must be interference with a property
owner’s use and enjoyment of his or
her own land that is both “substantial
and unreasonable”. The “substantial
interference” part of the test is a
threshold issue; actionable nuisances
include “only those inconveniences
that materially interfere with ordinary
comfort as defined according to the
standards held by those of plain and
sober tastes”. Did the continuing
presence of the boundary tree
materially interfere with the
Applicants’ ordinary comfort? On the
reasonableness part of the test, the
Court must analyze the situation from
a “competing property rights point of
view”. Is it reasonable for the
Applicants to expect the shared tree to
be removed to the detriment of the
Respondents in order to allow for the
proposed house expansion? Or is it
Agrilaw
August 2019 75
S
2019
Sept. 6,7,
,8
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