An Important Trend in the Law of Nuisance

Approval of subdivisions, issuance of building permits, administration of parks, and the ownership of land are just a few of the myriad matters that involve local government. These activities have the potential to attract liability, as do most areas of responsibility over which local government accepts authority. This is especially so when local governments, in dealing with these land issues, find that hazardous conditions amounting to nuisances are in existence.

There are well known cases involving claims that have been brought against local government for such things as land slippage. The law of nuisance is evolving in respect of the responsibility of governments to remedy or prevent hazards that constitute nuisances.

The law traditionally recognized that, in order for a claim founded in nuisance to be successful, damage from flooding, rock fall, erosion, land slippage, and similar events must have resulted from an actual event or escape of something from one person’s land to another person’s land. In other words, the landowner, whose land contained the hazard that threatened another’s land, would be responsible for damages caused by that hazard, unless the landowner had taken steps to eliminate the hazard. Furthermore, the liability would arise only after the occurrence had taken place and the damage was sustained. The claimant had to prove that he had sustained damages.

Fast forward to today and we find that the courts are now utilizing the concept of “impending harm”. This concept means that a landowner may be required to take steps to alleviate a hazard before an event or an escape occurs, on the basis that it is reasonable to do so at some point. Thus, the aggrieved party need not wait to be harmed or for damage to be sustained before bringing an action to require that the hazard constituting the impending harm be remedied or eliminated.

It is understandable that the Courts have moved to a more preventative stance from its past reactive position on the law of nuisance. On proper evidence, if the nuisance can be seen to constitute an “impending harm” to such extent and degree that a damaging event is virtually inevitable, it seems reasonable to order that steps be taken to eliminate the eventuality. This may be particularly true in cases where the hazard constituting the nuisance was created or caused by human activity. The law of nuisance traditionally dealt with the creation of man-made hazards. From a local government perspective, such hazards could include approving subdivisions, granting building permits where the geographic conditions are not appropriate, or in altering or diverting watercourses if those activities may cause flooding.

However, along with expanding the breadth of nuisance law through the concept of impending harm, our Courts appear to be moving toward the application of that principle to naturally occurring conditions or hazards, not limiting it to hazards otherwise created.

This new expansion of the law of nuisance to hazards both impending and naturally occurring should be of great concern to local government. For example, parkland and protected areas are often dedicated as such to protect their natural features. Often, local government takes ownership or responsibility for those lands primarily to preserve the green space and natural features with little or no alteration.

The law of nuisance now appears to contemplate that an owner whose land has a naturally occurring condition that may be a hazard to adjoining properties, may be responsible to take steps to eliminate that hazard, despite the harm being merely impending and the condition not being man-made.

Some courts have suggested that there may be a duty to do what is reasonable to reduce or eliminate a naturally occurring hazard with the potential to cause damage to other properties. We know of claims brought by property owners adjacent to parkland where the natural features of that park have been identified for rock fall potential. Whether such a duty will be imposed, and under what circumstances it is deemed to be “reasonable” to reduce or eliminate the hazard, is dependent upon such things as the nature of the danger, the respective financial means of the parties, and the cost to rectify the nuisance or hazard.

Local government has been granted some limited statutory protection, under certain circumstances, such as Section 56 of the Community Charter, in which geotechnical concerns can be addressed on lands prior to the issuance of building permits. However, this does not cover all of the eventualities and conditions under which hazards, including those naturally occurring, may arise or be found.

Currently, a local government faced with identified natural hazards on lands it owns or over which it may have authority has few satisfactory options. The local government’s options are to (a) attempt to remedy the problem at potentially enormous cost, (b) purchase the neighbouring or adjacent lands threatened by the nuisance, or (c) suffer the risk and expense of significant damages and liability imposed by the Courts if such a claim was brought successfully.

In addition, the remedy may result in the obliteration of natural features, which were originally considered to be worthy of preservation.

It may be time for local government to seek legislation from the Province which would provide some protection and relief from claims in nuisance which are derived from naturally occurring conditions. Without such protection, given the manner in which the law of nuisance is evolving, local government can expect to bear the burden of ever increasing liability in this area.

Robert Macquisten

This article was published in Fall 2008 and may be superseded by changes in the law at a later date. It is for general information only. Specific legal advice should be obtained from a qualified lawyer.