Does the conduct of your neighbour adversely affect the use and
enjoyment of your property? Is your neighbour immune to
reasonable requests to moderate his behaviour to lessen that
impact? Are the local authorities unwilling to assist you in
resolving the problems? This can be very frustrating and
detrimental to the welfare of you and your family. If the
matter is of little monetary value, it is often uneconomic to
pursue, but it can nonetheless be a constant aggravation.
This type of conduct is not supposed to happen in a civilized
country and, if it does, the rule of law should prevent it.
Sadly, it often is not for one reason or another.
However, there is an answer in the law of nuisance. Where
a nuisance is proven, the courts will help prevent unlawful
conduct, even if the local authorities will not. A recent example of the court providing such
assistance involved a couple taking their neighbour to court
over the nuisance he was creating on their property. It is a
good lesson in both the law of nuisance and in the ability of
individuals to seek justice. The neighbour was by most
reports a vindictive man. For years, he insisted on burning
wood and garbage in his fireplace for the purpose of having the
smoke drift onto his neighbours' property and causing them
great discomfort. The wood being burned was of all sorts,
including waste and painted wood which created an acrid
smoke. This prevented many nearby owners from being able to
go into their yards. Entreaties to stop or to burn clean wood
Creating this smoke was a violation of the Greater Vancouver
Regional District Air Quality Management Bylaw Number 1082.
Despite this, neither the police, nor the municipal and provincial
environmental authorities with jurisdiction would do anything.
There was nothing but for the long-suffering homeowners to take
the case to court themselves. They relied on the law of
nuisance to seek a court order that their neighbour cease burning
wood on his property and causing smoke to permeate the
neighbourhood to the detriment of everyone else.
Nuisance is the unreasonable interference with a person's
enjoyment of his or her land or physical damage to that land.
It exists when a person is unlawfully annoyed, prejudiced or
disturbed in the enjoyment of land. It often occurs in the
context of conflicting activities conducted in close proximity to
one another. It is a question of degree: as early English
case authority noted, "what would be a nuisance in
Belgrave Square would not necessarily be so in
Bermondsey". Whether a particular act or
omission constitutes a "nuisance" in the legal sense
depends on assessment of four factors:
i) the character of the
ii) the severity of interference;
iii) the utility of the
defendant's conduct; and
iv) whether the plaintiff displayed
On the facts of this particular case, the court found the
neighbourhood to be a residential one; a place where people are
entitled to enjoy the use of their yards without being unlawfully
annoyed, prejudiced or disturbed. The smoke being dissipated
was unlawful as illustrated by its contravention of the relevant
bylaws. The severity of this conduct was very high. The
strong noxious smell of the smoke interfered with the health of the
residents and the enjoyment of private property. Against
this, there was no utility in burning wood in all seasons and when
other less intrusive means of heating the defendant's home were
available (i.e., electric or gas heat). Indeed, the evidence
suggested this conduct was done primarily to target the plaintiffs,
not for any other real purpose. As a result, the court found
the defendant was "causing . . . a significant nuisance to his
neighbours and must be restrained." The court issued an
injunction preventing the defendant from using his fireplace at
all. He was also ordered not to collect material in his yard,
including scavenged wood, garbage and building materials.
Lastly, he was prevented from using any commercial style power
tools outside authorized hours.
If you are the subject of similar conduct by a neighbour, this
case illustrates that you can seek assistance from the courts, even
where other law enforcement officials are not prepared to act.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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