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Legal Notes: Disregard for neighbouring air space and safety is a poor strategy

John Bleasby
Legal Notes: Disregard for neighbouring air space and safety is a poor strategy

Construction often calls for tall cranes with jib arms that arc through the air carrying their loads. That over-swing can create safety issues for adjacent buildings. Ploughing ahead and using a tall crane without prior agreement and in disregard to the rights and concerns of a neighbouring property is a poor strategy.

Stober Construction installed a 38-metre crane to build its multi-level condominium complex called Movala in Kelowna, B.C. As construction progressed, the crane height increased to 60 metres. Next door was an existing three-building, 30-unit rental apartment complex called Palisade, owned by Witmar Holdings Ltd.

Witmar was concerned about the 20-metre over-swing of Stober’s crane above the Palisade’s rooftop recreational area called the “Terrace,” and Witmar’s own office space and six employees located directly below.

A series of communications between Stober and Witmar began in February 2022. First, Stober submitted a draft airspace agreement it hoped Witmar might accept. However, Witmar declined. Fresh in Witmar’s mind was the 2021 crane collapse in Kelowna that resulted in the death of four construction workers and one office worker.

Stober then submitted details of restrictions and mitigation efforts it would undertake if Witmar would agree to the crane’s over-swing. These included: No live loads passing over the Palisade; free swing of the crane only outside business hours; incident insurance of $10 million; assurances regarding the use of experienced crane operators; and written notification to Palisade tenants concerning construction plans. In addition, Stober offered reciprocity should the Palisades ever wish to expand its buildings.

More back-and-forth communications ensued between the two property owners. However, Witmar ultimately declined to grant Stober airspace access.

Undaunted, Stober promised further undertakings, including “weathervaning” the crane’s jib arm to reduce wind loads on the crane structure when not in use, setting the arm’s overpass height at 140 feet, assurances regarding counterweights and loads passing overhead.

All these efforts came to naught.

In February 2023, Witmar issued a cease and desist letter to Stober, saying, “Any crane operations in its airspace were unacceptable and would cause undue stress and anxiety to the tenants living directly below the crane,” and that, “any airspace trespass above this high traffic area would therefore be highly disruptive to the residents’ use and enjoyment of the Palisade property.”

Stober then offered $10,000 for airspace use and $5,000 for legal fees.

Witmar again declined, saying, “In light of the recent tragedy of the toppled crane downtown, this would put undue stress hardship on our tenants’ enjoyment. Sorry for any inconvenience that this might impose.”

Witmar then applied for an interim injunction to prevent Stober from accessing its airspace which it regarded as a trespass.

Justice Walkem of the Supreme Court of British Columbia agreed the passage of Stober’s crane into Witmar’s airspace did amount to a trespass.

Noting the evidence presented, he continued, “When Stober could not impose the agreement it wanted, it simply proceeded unilaterally. There did not appear, on the record before me, to be a meaningful response to the safety concerns of Witmar. The fact of the matter is that Stober chose to proceed as it did without reaching an agreement with Witmar. Stober chose to erect the crane in the manner it did and to commence operations unilaterally, with full knowledge that Witmar had unresolved concerns and did not consent to the trespass of its airspace.”

Walkem also noted any harm brought to Stober by being unable to access the Palisade airspace were “primarily economic.”

“I observe that the costs Stober argues were largely incurred by itself….Though the amounts of potential damages Stober alleges are significant, they are monetary amounts.”

He concluded by saying, “Overall, I find that Witmar will suffer irreparable harm if the injunction is not granted.”

Walkem ordered a four-month injunction, leaving it up to Witmar to seek an extension if it wished. Witmar was also awarded costs.

“I would hope that a time-limited injunction will provide the parties with an incentive to reach a negotiated agreement.”

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

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