Hanging In The Balance: Recent Application For Injunction Considers Crane Swing Trespass In Downtown Context

• Published date: 18 August 2020
• Subject Matter: Real Estate and Construction, Construction & Planning, Landlord & Tenant - Leases
• Law Firm: Lawson Lundell LLP
• Author: Mr Chad Travis

In OSED Howe Street Vancouver Leaseholds Inc. v. FS Property Inc., 2020 BCSC 1066, the BC Supreme Court issued an interim injunction to prevent an owner from swinging a construction crane over its neighbour's property outside of previously agreed upon hours.

The decision provides a useful exposé of what factors the court will consider in determining the appropriate legal remedies for unauthorized crane swings in the context of a dense urban environment.

What were the facts?

OSED Howe Street Vancouver Leaseholds Inc. (OSED) is the holder of a long term lease of 'The Exchange' building located at the northwest corner of Howe Street and West Pender Street, in downtown Vancouver. The Exchange is certified LEED Platinum, is Vancouver's first LEED Platinum Heritage Conversion and Canada's eighth largest LEED Platinum Building, and is comprised of retail, hotel, and office space.

FS Property Inc. (FSP) owns the neighbouring lot to the west of The Exchange, which it is in the process of developing for the purposes of a 13-storey hotel.

FSP requires a crane to complete construction of its hotel and in early 2020, it was determined that a portion of that crane (namely, a heavy, structural component known as the counter-jib) would encroach the air space over the fourth floor terrace area of The Exchange.

The parties entered into a written agreement, whereby OSED permitted FSP to operate and move the crane through its air space between certain prescribed hours set out in the agreement.

On March 11, 2020, FSP advised OSED that the licensed hours were too restrictive and asked for OSED to permit the operation of the crane over the terrace without restriction. One day later, FSP began operating the crane through OSED's air space without regard to the licensed hours and without OSED's consent.

OSED brought an application for an interim injunction to prevent FSP from operating the crane through its air space.

What were the legal issues?

Broadly speaking, the main questions before the Court were:

• Was the unauthorized crane swing properly characterized as a trespass or nuisance?

• If OSED put forward a meritorious case that a trespass had occurred, was it then automatically entitled to an injunction?

What was the decision, and how does it change the law?

On Question #1, the Court considered the existing case law in B.C. and in other provinces across Canada, and concluded that 'a construction crane which enters the air space of another property is trespassing upon that...