Loss of Amenities (Nuisance)

Gibson v F.K. Developments Ltd., 2017 BCSC 2153 (CanLII)

[47] In Glashutter et al v. Bell et al, 2001 BCSC 1581, a stand of mature evergreen and deciduous trees provided privacy to the plaintiffs’ home from the defendants’ property as well as a busy road. While the plaintiffs were on vacation the defendants had several trees topped, removed or pruned. There was no expert evidence respecting the amenity value of the trees. Justice Wedge awarded $4,000 for the removal of the four Douglas Firs, $4,216 for the cost of restoring the removed trees, $1,800 in damages for pruning the remaining trees and $7,000 in punitive damages. In doing so she accepted the plaintiffs “placed considerable value on their trees along the property line.” She noted as well that the subject of the trees had been a sensitive one as between the parties for several years. At para. 32 she commented on compensatory damages as follows:

[32] Compensatory damages in cases such as these serve a two-fold purpose. They provide a sum sufficient to pay for the remedial work that a reasonable person with sufficient resources would have implemented had the loss of the trees occurred without fault on the part of anyone. In addition, they provide an amount that will compensate fairly for the loss of use and enjoyment of the trees to the extent the remedial work does not completely replace what has been lost (Kates v. Hall (1991), 1991 CanLII 1127 (BC CA), 53 B.C.L.R. (2d) 322).

[48] The plaintiff relies on Kranz v. Shidfar, 2011 BCSC 686, where the defendant instructed a third party to cut down trees on his property, and that person then also cut down trees on the plaintiffs’ property. The plaintiffs claimed damages for the destruction of the trees claiming a loss of enjoyment of their land and a diminishment of the value of their property. The court awarded $42,000 for the restoration costs, $20,000 for loss of enjoyment and $35,000 for punitive damages. No loss of value of the property was proven. Mr. Justice Groves said this about the loss of enjoyment:

[19] That being said, the plaintiffs have proven a loss of enjoyment of land. The evidence before me suggests that the plaintiffs purchased 875 Fairmile with the intent to use it for their retirement. It was particularly appealing to Mrs. Kranz who liked the pool area and the privacy the home offered. After the cutting of the trees by way of trespass, Mrs. Kranz could no longer enjoy the privacy around the pool. This loss inflicted by the cutting of trees on the Kranzs' property by Shidfar does warrant compensation. Our Court of Appeal in Dykhuizen v. Saanich (1989), 1989 CanLII 5281 (BC CA), 63 D.L.R. (4th) 211, confirmed that damages for destruction of trees can extend to compensation for loss of amenities. In Hutton v. Morehouse, [1998] B.C.J. No. 668 (S.C.) [Hutton], McEwan J. of this Court awarded $25,000 for loss of amenities because of the sense of invasion and violation that the plaintiff suffered as a result of the defendant's actions in trespassing and logging on the plaintiffs land.

[20] I agree with counsel for the plaintiffs that the reasoning of Mr. Justice McEwan in Hutton is persuasive. Here, as in Hutton, a significant component of the plaintiffs' loss as detailed in the evidence is the loss of privacy and the sense of invasion that the Kranzs have suffered. Keeping in mind, however, that some of this loss or invasion was no doubt facilitated by the removal of trees from Shidfar's own property, I would fix an appropriate award in this area at $20,000.

[21] As such, I award damages payable by Shidfar to the Kranzs at $42,000 for remediation costs and $20,000 for loss of enjoyment of the land.

[49] In Hutton v. Morehouse (1998), 78 A.C.W.S. (3d) 846 (B.C.S.C.), McEwan J. assessed damages for loss of amenities where logging was conducted on the plaintiff’s lands as follows:

[48] Having heard the evidence of Dr. Hutton, it is clear that a very significant component of his loss is the sense of invasion or violation he suffered. He has also lost the enjoyment he derived from the trees, particularly those between his house and the Morehouse property. The trespass has also interfered with [the] plaintiff's plans to move a trailer onto the property for members of his extended family. Respecting these damages I take some guidance from Craig v. North Shore Heli Logging Ltd., 1997 CanLII 2067 (BC SC), [1997] B.C.J. No. 983, April 23, 1997, Vancouver Registry, No. C891945 (B.C.S.C.). There, Mr. Justice Smith awarded $25,000 for loss of amenities. The logging in that case was much more extensive than the logging here, but the owners were essentially absentees. While acknowledging this, Smith, J. observed, that the owners "[had] to live with the daily knowledge that their forested properties no longer existed." Here the plaintiff is confronted daily with his loss. I award the plaintiff $25,000 for loss of amenities.