November 2005

Disclaimer: 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, practises 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.

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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 4 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 plaintiff’s 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 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 historical 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 judgment 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 unreasonable 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.