No Crane, No Gain? Recent Changes in the Law of Airspace Rights May Bring Benefit for Developers

The recently decided case of Janda Group Holdings Inc v Concost Management Inc, 2016 BCSC 1503 (“Janda”), if followed, has the potential to significantly impact negotiations to acquire airspace rights from adjacent owners for the purpose of operating construction cranes.

Cranes are frequently used in construction projects, and their operation often requires that the crane boom enter airspace belonging to adjacent landowners. To enter this airspace lawfully developers must obtain permission from neighbouring property owners, usually in the form of a grant of a crane swing easement. Obtaining these rights may entail lengthy negotiations and not insignificant costs to developers.

The issue in Janda arose when negotiations over such an easement agreement stalled between Janda Group Holdings Inc (“Janda Group”) and Concost Management Inc (“Concost”). Concost erected and operated a crane despite not having obtained a right of use for Janda Group’s airspace. This prompted Janda Group to sue for an injunction prohibiting further use of the crane over its property, essentially asserting that Concost was trespassing on their airspace.

Janda Group likely expected to be successful in their claim because, until Janda, the courts in BC considered a crane’s entry into airspace a trespass. However, the court in Janda held that Concost’s crane was 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. Indeed, the court determined that damages were the appropriate remedy, and that such damages should reflect payment from Concost for their use of Janda Group’s airspace.

The court acknowledged that the decision was a departure from the prior law in BC, but stated that given the modern reality in the Lower Mainland that building cranes are abundant, the strict penalties imposed by older cases are no longer appropriate. Janda follows the Ontario case of Kingsbridge Development Inc v Hanson Needler Corp [1990], OJ No 1070 (“Kingsbridge”), which similarly found a crane to be a nuisance rather than a trespass. Janda and Kingsbridge both build on the 1988 Alberta Court of Appeal decision in Didow et al v Alberta Power Limited, 1988 ABCA 257, which suggested that the law had changed and that a transitory intrusion such as the operation of a crane may no longer amount to trespass.

The court in Janda referred to a number of factors in support of its finding that damages were an appropriate remedy for the nuisance, including that:

  • the crane was operated by reputable contractors pursuant to all regulatory requirements;
  • the crane was operated at a height of 90 feet, which made it minimally intrusive;
  • the crane had not caused any damage;
  • the crane was unlikely to cause any damage or reasonable apprehension of danger as it never carried a load over the adjacent property; and
  • the intrusion was not permanent and the crane spent no more than an hour each day in the adjacent airspace.

The decision in Janda is significant not only for its re-characterization of a crane’s intrusion into airspace as a nuisance rather than a trespass. Before Janda, a developer who failed to obtain permission to erect a crane faced a real risk of an injunction, which could halt construction. This enabled adjacent landowners to demand potentially exorbitant payment in return for airspace rights. After Janda it may be that a developer merely risks paying damages to compensate for use of the neighbouring airspace. If followed, Janda may make it necessary for landowners adjacent to a development site to temper their demands for compensation. The practical effect of Janda could be to make negotiations for airspace rights between developers and neighbouring landowners for the use of a crane simpler and less costly and time consuming. It should be noted though that negotiations to acquire such airspace rights often occur concurrently with negotiations to acquire underpinning and shoring rights; Janda does not appear to impact the relative negotiating positions of the parties in the underpinning or shoring rights context.

Janda Group appealed the decision against them on October 24, 2016. Their motion for leave to appeal was denied on other grounds in unreported oral reasons.

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