A BC landowner sued his municipality over drainage runoff, seeking both damages and an injunction requiring the municipality to take "immediate and effective action to stop the flow of water onto his property." In 2002, the municipality approved the development of 68 townhomes by a developer adjacent to and north of the landowner's property. As a condition of the development, a greenway was granted to the municipality running between the properties (including a gas pipeline right of way and an asphalt walkway).
The landowner alleged that prior to the development, there was a watercourse between one and three feet deep running in the location of the greenway. The developer was permitted to fill in this watercourse resulting in the loss of the drainage route and periodic flooding on the landowner's property to the south (3.67 acres).
The municipality responded that the surface ponding of water on the landowner's property was a natural and pre-existing feature given the location of the property at the toe of a slope, its proximity to the water table, and the impermeable condition of its soils. Also, the municipality argued that any additional water flowing onto the landowner's property was so minor in volume that it did not constitute a substantial interference with the landowner's use or enjoyment of his property.
On review of the evidence, the BC Supreme Court was unable to accept the landowner's contention that water was never a problem on his property prior to the development. The Court found that the landowner exaggerated the extent of the water problems suffered since the development. Also, the water table underlying his property was high and the soil was "fairly impermeable".
The Court concluded that any water coming onto the landowner's property did not meet the test of a claim in nuisance - that it resulted in a substantial and unreasonable interference with his use or enjoyment of the property or that there was sufficient physical damage to the land. The landowner's property was a "holding property, awaiting development", and the consequences from increased water were minor. The landowner did not demonstrate that "the pooling water along the northern boundary of his property has either substantially altered the nature of his property or interfered to a non-trivial or significant extent with the actual use being made of the property." There was also no basis to find that any substantial adverse alteration of the land had been caused.
The landowner's nuisance claim was dismissed.
Read the decision at: Wood v. Langley (Township).
Storm
Showing posts with label water. Show all posts
Showing posts with label water. Show all posts
Monday, August 10, 2015
Tuesday, June 9, 2015
BC Court rules neighbours liable in nuisance for "water problem" discharges
A recent BC Supreme Court decision begins: "It has been said that water is the driving force of all nature and as such it can be very destructive. ... It is a truism that water follows the path of least resistance and flows down a landscape to find the lowest point. It has a tendency to descend and flow with great readiness. These properties of water are abundantly clear in this case which involves a now protracted dispute between neighbours."
Neighbours A alleged that Neighbours R made changes to the R property that resulted in water damage to the A property. Neighbours A sued in nuisance, negligence and trespass and sought general, aggravated and punitive damages, as well an injunction obligating Neighbours R to remedy the problems.
The most significant change to the R property was the installation of a tile drain (as part of a french drain) ending about 3 feet from the boundary between the A and R properties. This tile redirected water from the R property to the A property. Neighbours R also raised the grading of their property by a few feet, which put their property higher than the A property. Previously, the R property had been lower than the A property at the boundary in question. The increased water flows (including sludge) that resulted from these changes caused the damages to the A property alleged by the A neighbours.
As a threshold issue, the judge in this case examined the applicability of statutory limitation periods. Justice Kerr ruled that the two-year limitation period did apply. However, she also recognized that where there is continuing damage, a new cause of action arises each day (to some extent resetting the limitation period each day for any "fresh damages"). In this particular case, the effect of the limitation period was that Neighbours A could not recover for any damages sustained before November 25, 2007. The french drain had been installed in 2001, but they did not commence their action until November, 2009.
Justice Kerr concluded that Neighbours R were liable to Neighbours A in nuisance. Neighbours R had caused "a substantial and unreasonable interference" with their neighbours' use and enjoyment of the A property. And Neighbours R were not saved by any riparian rights. The evidence showed that the water problems resulted from groundwater rather than surface water and that the flow of water between the properties was not by way of a natural watercourse. Neighbours R could not say that they were not causing a nuisance for having allowed surface water to flow naturally across their land to the A property. Even if they were dealing with surface water, Justice Kerr found that the flow was the result of the significant changes made to the R property.
She awarded to Neighbours A the sum of $10,000 in non-pecuniary general damages for loss of use and enjoyment of the A property and the sum of $27,908.66 in pecuniary general damages for the cost of remediating the A property.
Read the decision at: Allison v. Radtke.
Neighbours A alleged that Neighbours R made changes to the R property that resulted in water damage to the A property. Neighbours A sued in nuisance, negligence and trespass and sought general, aggravated and punitive damages, as well an injunction obligating Neighbours R to remedy the problems.
The most significant change to the R property was the installation of a tile drain (as part of a french drain) ending about 3 feet from the boundary between the A and R properties. This tile redirected water from the R property to the A property. Neighbours R also raised the grading of their property by a few feet, which put their property higher than the A property. Previously, the R property had been lower than the A property at the boundary in question. The increased water flows (including sludge) that resulted from these changes caused the damages to the A property alleged by the A neighbours.
As a threshold issue, the judge in this case examined the applicability of statutory limitation periods. Justice Kerr ruled that the two-year limitation period did apply. However, she also recognized that where there is continuing damage, a new cause of action arises each day (to some extent resetting the limitation period each day for any "fresh damages"). In this particular case, the effect of the limitation period was that Neighbours A could not recover for any damages sustained before November 25, 2007. The french drain had been installed in 2001, but they did not commence their action until November, 2009.
Justice Kerr concluded that Neighbours R were liable to Neighbours A in nuisance. Neighbours R had caused "a substantial and unreasonable interference" with their neighbours' use and enjoyment of the A property. And Neighbours R were not saved by any riparian rights. The evidence showed that the water problems resulted from groundwater rather than surface water and that the flow of water between the properties was not by way of a natural watercourse. Neighbours R could not say that they were not causing a nuisance for having allowed surface water to flow naturally across their land to the A property. Even if they were dealing with surface water, Justice Kerr found that the flow was the result of the significant changes made to the R property.
She awarded to Neighbours A the sum of $10,000 in non-pecuniary general damages for loss of use and enjoyment of the A property and the sum of $27,908.66 in pecuniary general damages for the cost of remediating the A property.
Read the decision at: Allison v. Radtke.
Monday, June 11, 2012
Plains Midstream complains that some media using images from 2011 spill, not the latest spill
Plains Midstream Canada cautions the public on its website that, "You may have seen some shocking images circulating over the last couple days. While we appreciate that images are an important part of telling a story, some of them are incorrect. We have seen images online, on t.v. and in the news that are not related to the Rangeland pipeline incident at all, such as images that depict oil saturated wetlands and oil slicks. Some of the images depict the Rainbow pipeline spill from 2011 ... We have contracted both photographers and videographers to create a visual portrait of the release site."A spill of light sour crude oil into a tributary of the Red Deer River near Sundre, Alberta was discovered on June 7. Preliminary estimates suggested a release of between 1,000 and 3,000 barrels of oil into the environment. Plains Midstream is warning residents that "water drawn directly from the Red Deer River north of Sundre to the Gleniffer Reservoir should not be used for human or animal consumption". Plains Midstream is still cleaning up from last year's 4.5 million-litre oil leak in a remote area northeast of Peace River.
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