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Legal Notes: Construction cranes trespassing overhead cast a legal shadow

John Bleasby
Legal Notes: Construction cranes trespassing overhead cast a legal shadow

Construction news in Toronto this past summer was highlighted by a pair of crane collapses at sites in the downtown core. Fortunately, personal injuries were minor, although some property damage was reported.

Cranes can be problematic in congested urban areas. It’s simply not possible to erect buildings in tight quarters without trespassing on a neighbouring property’s airspace. However, doing so without prior agreement can lead to legal problems, even if no mechanical failures occur.

Two cases in Vancouver highlight the importance of incorporating agreements outlining construction crane air space requirements into the planning process.

In one case, the owner of the project under construction (FS Property Inc.) had indeed reached an agreement with the lessee of a neighbouring property (OSED Howe Street Vancouver Leaseholds), allowing the jib of FSP’s crane to pass overhead the terraces of the occupied building. However, operation was restricted to eight hours each weekday and one day each weekend. Further permission in advance would be required should more hours of operation be needed.

FSP later concluded that the agreed hours were, in fact, too restrictive and inconvenient to be economical. They requested that crane operations be extended without any restriction. However, prior to receiving agreement from OSED, FSP began operating the crane outside of the previously agreed times. OSED applied to the court for an injunction.

The British Columbia Supreme Court granted the injunction. It found that FSP’s crane was, in fact, trespassing on OSED’s air space, and that such movement of the crane overhead presented the risk of irreparable harm.

The court also rejected FSP’s arguments regarding costs, overtime and claims of public interest to complete construction quickly. The court felt that, given the challenges of construction in an urban setting, the original agreement made between the two parties was a reasonable balance of convenience. By operating outside of the agreed hours, however, FSP violated OSED’s retained rights to its air space and was acting solely in its own interests.

However, not every court decision swings that way.

In a 2016 dispute between Janda Group Holdings and Concost Management Inc., also in British Columbia, the court determined that although a construction crane was entering a neighbouring property’s airspace, it did not constitute a danger. The ruling took a different position than in the FSP v OSED dispute. Here, Justice Robert Crawford concluded that there was a 50-foot overhead clearance and that only the boom was passing over the adjacent property, not anything heavy.

“I have great difficulty in this modern age, where construction cranes are all around the Lower Mainland, that the suggestion would be that an unsafe crane would be erected and would put out loads outside the property they are working on,” Justice Crawford ruled. “The defendants are entering the plaintiff’s airspace, but that is no longer, in my view, an automatic pass to finding trespass and the right to injunction.”

Commenting on the Janda v Concost case, David Allman and Larissa Dziubenko of Vancouver law firm EKB, note there is a difference between overhead crane operations being a trespass or a nuisance.

“This is an important distinction, because to obtain a remedy from the court in trespass, harm does not need to be demonstrated. However, a claim for nuisance requires that harm be proved, making it more difficult to obtain an injunction.”

If there are lessons to be learned from these two cases, it’s that neither the party responsible for operating the crane nor the adjacent property owner should assume their airspace rights are automatic.

“Parties using construction cranes in urban areas should ensure that they have necessary air space rights, and properly negotiate any crane swing easement agreements that may be required prior to undertaking work,” writes Canadian-based international law firm Fasken. “The courts will not forgive a trespass to a neighbouring property’s air space merely on the grounds that it convenient or saves costs.”

 

John Bleasby is a Coldwater, Ont.-based freelance writer. Send comments and Legal Notes column ideas to editor@dailycommercialnews.com.

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