Until recently, neighbours to a new development had a great deal of leverage when it came to the use of their airspace for crane swings. Until the case of Janda Group Holdings Inc. v. Concost Management Inc., 2016 BCSC 1503 (“Janda”), it was unclear whether a crane entering a neighbour’s airspace during construction constitutes a trespass, which can be blocked by injunction, or a nuisance, which is properly compensable through damages. Due to this uncertainty, neighbours were negotiating large payments to avoid an injunction against construction which could cause lengthy delays and cost overruns.
In Janda, the plaintiff carried on the business of leasing, renting and managing multiple commercial units. Janda sued for an injunction against its neighbour who was swinging its crane through Janda’s airspace as part of the construction process. Janda argued that the crane was dangerous and there could be physical injuries for which Janda would be responsible – therefore it sought an injunction against the crane to prevent serious and irreparable losses and damages.
The B.C. Supreme Court reviewed the case law, including Alberta Court of Appeal decision from Mr. Justice Haddad and an Ontario construction crane case. It found that overhanging cranes are a nuisance, not a trespass, and that neighbours cannot thwart a neighbouring project. Instead, damages can be sought.
As to the quantum of damages, in obiter, the Court in Janda commented that damages should be “more than nominal and should reflect a payment by the defendants for the use of the plaintiff's airspace”. The market is currently determining what a fair measures of damages should be.