IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Watson v. Charlton,

 

2016 BCSC 664

Date: 20160415

Docket: S154432

Registry:
New Westminster

Between:

David Watson

Plaintiff

And

Geoffrey Taylor
Charlton and

Sheila Bartlett

Defendants

 

Before:
The Honourable Mr. Justice Armstrong

 

Reasons for Judgment

Counsel for the Plaintiff:

D. Magnus

B. Wu

Counsel for the Defendants:

A. Shee

Place and Date of Trial:

New Westminster, B.C.

January 13-16, 2015;

May 4-6, 2015; June
26, 29, 2015;

July 2, 2015

August 13, 14, 2015;

November 2 and 3,
2015

Place and Date of Judgment:

New Westminster, B.C.

April 15, 2016



 

[1]            
This action concerns a dispute between neighbouring property owners in North
Vancouver over encroachments resulting from a stairway, deck and septic tank
attached to the plaintiff’s house but built on the defendants’ land. The plaintiff’s
septic tank encroaches by .75 m over the defendant Bartlett’s land. The
plaintiff’s stairway and deck area to the side of his house encroached about
three feet on the defendant Bartlett’s property.

[2]            
On February 7, 2013, the defendant Charlton removed portions of the
plaintiff’s deck and stairway from the east side of the plaintiff’s house. He
believed encroached on to Ms. Bartlett’s property. He cut these structures
back almost to the actual property line. His demolition resulted in significant
damage to the plaintiff’s property.

Orders Sought

[3]            
The plaintiff seeks an order adjusting the property line between the
plaintiff’s property at 5469 Indian River Drive, North Vancouver, BC (“5469”)
and Ms. Bartlett’s property at 5495 Indian River Drive (“5495” or the
“Bartlett property”) by 9.7 ft. in width and 40.55 ft. in length, starting six
ft. to the North of the plaintiff’s residence running parallel to the
plaintiff’s residence. This order would result in a conveyance of title or an
easement over a 393.335 sq. ft. portion of the Bartlett property to the
plaintiff and would put the plaintiff’s structures in compliance with the District
of North Vancouver’s (“DNV”) requirement of a minimum 1.83 metre setback from
the Bartlett property. It would also bring the septic tank into compliance with
the DNV bylaws and Vancouver Coastal Health (“VCH”) regulations.

[4]            
In the alternative, the plaintiff seeks an easement over the same area
that would allow re-construction of the stairs and deck and to accommodate the current
servicing and regular maintenance of the septic tank.

[5]            
This plaintiff also claims damages for trespass, loss of enjoyment of
his property, damages to his septic tank, and other personal injury claims. Finally,
he seeks judgment for aggravated and punitive damages based on the defendants’
callous, high-handed, and vexatious conduct in destroying that portion of his deck
and stairs encroaching on the Bartlett property.

[6]            
The defendant Bartlett counterclaims for damages for trespass, nuisance
and damages pursuant to Rylands v. Fletcher (1866), L.R. 1 Ex. 265. She also
seeks an order that the plaintiff’s septic tank be removed or relocated such
that it does not encroach on her property.

Background

[7]            
The plaintiff has owned and lived at 5469 since 2006.

[8]            
5469 is steep sloped property running north-south off of Indian River
Drive.

[9]            
At all times material to this claim, the defendants Charlton and Bartlett
lived together. They owned 5469 in 1986 and built the house standing on that
land today. They sold the property to John and Beverly Ford in 1989 and they owned
5469 until 2001.

[10]        
The plaintiff’s house is currently composed of three levels descending
37 feet to the south from the front. His house (not including outside stairs,
deck or septic tank) runs 44.33 feet east west. Ms. Bartlett’s house is
located north and east of the property line separating 5469 and 5495. The 5495
lot is approximately 100 feet running east-west and 240 feet running north/south.
It occupies approximately 0.57 acres.

[11]        
Ms. Bartlett’s house is approximately 50 feet from the Watson house
and 45 feet from the septic tank adjacent to the plaintiff’s house.

[12]        
In October 1990, the Fords added a five foot extension to the east
side of their house after obtaining permission for the alteration from the DNV.
In the course of those renovations, Ms. Ford also obtained permission from
North Shore Health to move the sewage system further east of the house. In
1991, the DNV inspected the house and ordered the installation of permanent
stairs and handrails. Sometime between 1992 and 1994 Ms. Ford built a
flight of stairs on the exterior side of their house connecting the main
entrance level and the mid-level. The stairs were approximately three feet
wide. She also constructed a landing deck at the mid-level which was four feet
wide. The deck on the main entrance level then extended seven feet east of the
outer wall of Ms. Ford’s addition. There was further a three foot walkway
over the septic tank that was situated between one and two feet from the house.

[13]        
The septic tank was placed on a new concrete base that was approximately
one to 2 feet from the east wall of the house.

[14]        
In 1998, the Ford’s were contemplating further renovations to the house.
In anticipation of an application to the DNV Board of Variance for renovations
and additions, the Fords commissioned a survey from Bennett Land Surveying Ltd.
and obtained a set of plans dated February 10, 1999, and April 20, 2000. The
April 20, 2000, plan was impressed with the words “wood landing over 1.9 feet”.

[15]        
The 1999 Board of Variance minutes noted that the non-compliant location
of the septic tank in accordance with the plans submitted.

[16]        
The Fords’ second renovation was never started. Instead, in 2001, the
Fords sold their house and Ms. Ford gave copies of all the plans then in
her possession to the subsequent purchaser.

[17]        
Subsequently, the plaintiff purchased 5469 in 2006 from a woman named Linden
Cormack, who did not testify at the trial. The plaintiff acknowledged receiving
copies of Ms. Ford’s plans when he purchased the property.

[18]        
Between 2006 and 2010 Malcolm Cooper, a reclusive gentleman, was the
owner of 5495.

[19]        
At some time between 2007 and 2010, the plaintiff employed a contractor
to rebuild the stairway on the east side of his house from the top level to the
mid-level deck. As part of that renovation, the contractor also rebuilt the
deck itself and extended it eastward several feet. When these renovations
started the stairs and septic tank extended beyond the eastern property line
with 5495.

[20]        
In 2009 the plaintiff also constructed a deck on the south side of the
house; that deck is not an issue in this proceeding.

[21]        
In November 2011, after the previous owner, Mr. Cooper passed away,
Ms. Bartlett purchased 5495. At the time, she lived with the defendant
Charlton but they resided elsewhere. They began occupying the property at 5495 in
August 2012.

[22]        
In late November 2012, the defendant Charlton spoke to the plaintiff and
indicated there was an issue with regard to the location of the plaintiff’s
deck and septic tank.

[23]        
In mid-January 2013, the defendant Charlton approached the plaintiff and
informed him that he had obtained a survey of the property and that the
plaintiff’s property was encroaching on the Bartlett property. The plaintiff
told the defendant Charlton that he would look into the allegation of an
encroachment and respond in due course.

[24]        
There is some controversy between the evidence of the plaintiff and the
defendant Charlton on this point. The plaintiff said that he was not allowed to
see the defendant’s survey whereas the defendant said the plaintiff took a
picture of the survey. On this point, it is not material to determine when the
plaintiff was first allowed to examine the defendant’s survey plan.

[25]        
On February 7, 2013, about two weeks after this discussion and while no
one was home at the Watson property, the defendant Charlton sawed through the
deck, removed siding, removed the stairs, and removed and replaced the
handrails on the plaintiff’s house. He also re-established the footings for the
deck.

[26]        
The defendant Charlton used a skill-saw, hammer, nails, bar, chainsaw
and other tools to complete this chore. He also used a backhoe to remove
footings.

[27]        
In the course of performing this removal, the defendant Charlton blocked
the plaintiff’s septic tank with pieces of wood that rested on the septic tank
and supported the deck above. He installed boards, wood posts, wires and screws
that prevented the plaintiff from accessing the tank. These efforts prevented
the plaintiff from accessing and servicing the tank.  The plaintiff removed
these impediments to the tank several times; the defendant Charlton would
replace the impediments in a constant effort to prevent further access.

[28]        
All of these actions fostered bad-blood between the parties. After some
involvement by the RCMP, the Bartlett’s complained to the DNV about the
location of the plaintiff’s deck and septic tank. In response, the DNV inspected
the plaintiff’s house and the state of the deck and stairs after the
defendant’s removal work. The DNV issued orders requiring the plaintiff to
remove the structures not complying with DNV set-back requirement.
Subsequently, VCH inspected the plaintiff’s septic tank and made further orders
against him concerning the discharge of domestic sewage and the resulting
health hazard.

[29]        
There are outstanding orders by DNV and VCH that have been suspended
pending the outcome of this proceeding.

[30]        
After the events of February 2013, Ms. Bartlett and Mr. Charlton
moved to a new residence and listed 5495 for sale.

The Witnesses

Beverly Ford

[31]        
Beverly Ford and her husband purchased 5469 from the defendant in 1989,
and lived there until selling their home 2001. When Ms. Ford purchased the
property, the septic tank was located to the east side of the house against the
wall.

[32]        
Between 1990 and 1994 the Fords renovated their house, extending the
east side of their house by five feet. They established a side door to the east
side of their house but stairs were not installed at that time.

[33]        
 As part of their renovations they received permission from what was
then known as North Shore Health to relocate the septic tank further east of
the house. Before moving it, the Fords had measured the distance from the house
with reference to prior surveys. They created a new concrete base for the
septic tank, which she recalled would place the tank three feet from the house.
When the renovations were completed, a portion of the tank protruded from under
the deck. She did not believe the tank encroached on the defendants’ property
at that time.

[34]        
With reference to contemporary pictures of the property, Ms. Ford said
the tank had not been moved after her 1990 renovation was completed and at that
time she believed that the tank did not encroach on defendants property. The DNV
inspected the house and on May 5, 1991, required the installation of exterior
stairs and handrails for the upper and lower stairs. They required permanent
stairs outside the exterior door.

[35]        
In or about 1992 or 1993 when the Fords added these stairs, the upper
deck at the top level where the plaintiff entered his house extended
approximately seven feet from the home, the stairs to the mid-deck extended three
feet from the house and the landing four feet from the wall of the house.

[36]        
Ms. Ford testified that she measured the distance from the house to
what she perceived was the property line with a tape measure before proceeding
with that construction. She did not, however, obtain a building permit or
otherwise confirm her measurements with the DNV.

[37]        
In and around 1999, Ms. Ford and her husband made plans for further
renovations. Plans and drawings were prepared and approval from the Board of Variance
was obtained to make alterations adding 1000 sq. feet to their structure. The
location of the septic tank was apparently non-compliant.

[38]        
The 1999 plans specified a wood landing was 1.9 feet over (presumably
across the property line with 5495). At the time of receiving these plans, Ms. Ford
made no inquiry about the significance of this remark. Her evidence was she did
not address any issues concerning the deck or septic tank through this process;
her dealings with the DNV were focused on the addition and construction she had
planned.

[39]        
In the end, Ms. Ford decided not to proceed with those renovations.
She ultimately sold the house in 2001 to the plaintiff.

[40]        
When Ms. Ford left the residence, the septic tank remained
partially covered by the deck, the stairs did not go down from the mid-level to
the ground level. She said that the current location of the septic tank has not
changed since 2001 based on photographs of the east side of 5469, taken after Mr. Charlton’s
demolition of the deck and stairs.

David Watson

[41]        
David Watson purchased 5469 in 2006 and lives there with his fiancée,
Carmen Turner, and their three-year-old son. The residence sits on a steep terrain
sloping north-south over large areas of bedrock. The house is composed of three
sections at three different levels. The entrance to the house is off a driveway
and pathway at the top portion.

[42]        
Before addressing the events at issue in this case, it is necessary to
review Mr. Watson’s view of the property as it existed at the time of
purchase when he undertook subsequent renovations.

[43]        
When the plaintiff purchased 5469 he obtained an inspection of the
building, but no survey or property line inquiry was conducted. He did not know
where the property line was, but thought the structure was entirely on his
property. He could not remember a fence along the east side of the property and
did not see anything identifying the boundary, although he viewed the property
before making his purchase. He recalled the area immediately north and east of 5469
was heavily treed and covered with vegetation.

[44]        
Before the February 7 incident there were stairs down the outer east
side of the house to a middle deck and further steps down to a lower deck. The
middle deck and stairs had been built before the plaintiff purchased 5469 in
2006, but he had the stairway rebuilt sometime between 2007 in 2010 because it
had begun to rot.

[45]        
These renovations were completed by, Steven Lange, a contractor who
the plaintiff instructed to rebuild the deck and stairs according to blueprints
he obtained from Ms. Ford. The total cost of this expansion, according to
invoices from Mr. Lange, was $21,000. The plaintiff testified that the
deck was constructed in the same place as the previous deck; if the deck was
extended beyond the position of the old deck, this was a result of Mr. Lange’s
standalone decision. Under cross-examination the plaintiff conceded that the
deck was different than before Mr. Lange’s work began; the deck originally
covered approximately one-half of the septic tank and after the work covered
the septic tank fully. Further, before the renovation the deck was in an
L-shape, but was squared off by Mr. Lange.

[46]        
In several places, the plaintiff’s testimony frequently began with
assertions of fact which he resiled from under cross-examination.

[47]        
Although the plaintiff gave Mr. Lange the blueprints he received
when he purchased the house, neither he nor Mr. Lange seem to have noticed
the warning that the wood landing was already 1.9 feet over the property line.

[48]        
Mr. Lange said that he rebuilt the plaintiff’s deck and used the
same fashion and form of the old deck.

[49]        
The plaintiff testified he had spoken to the previous neighbour, Mr. Cooper,
in 2007, advising him about changes to the middle deck. Mr. Cooper
apparently liked the final alteration.

[50]        
The plaintiff was not convincing concerning the date these renovations
were done. Although he claimed that the work was done in 2007/2008, he changed his
evidence to say the work may have been done in 2009, when he said the lower
deck on the south end of the house was built.

[51]        
Further, he could not recall having told a Mr. Harrington at Metro
Testing Laboratories Ltd., that the deck had been built in or about 2011 or
2012. He likewise could not recall making a similar suggestion to another
official who recorded the plaintiff saying that the deck had been built in 2011
or 2012. On the whole, I find the plaintiff’s evidence concerning the timing of
the renovation to the deck and stairs to be unreliable. I am not able to say
with confidence when the plaintiff renovated the east side deck and stairs; I do,
however, accept that the work was done when Mr. Cooper was alive.

[52]        
The plaintiff was cross-examined on an earlier affidavit in which he
swore that the defendant had planted sapling trees on 5469. He resiled from
that assertion when he recognized that the saplings were on the defendants
property; he explained the error by saying he did not know how to read the
survey prepared by Mr. McDonald and containing a clear description of the
property line.

[53]        
The plaintiff said the septic tank was not moved after he purchased the
property. At the time of trial the septic tank was located under the middle
deck. The plans prepared for Ms. Ford in August 1990 and photographs of
the properties provided to the Court, with particular emphasis on those photos
at Tabs 3, 5, and 7, support this assertion.

[54]        
As addressed above, the matter of the plaintiff’s encroachment onto 5495
was raised by Mr. Charlton in November 2012. The plaintiff recalled this
first conversation, and recalled stating the structures were unchanged from the
time he bought the house.

[55]        
Sometime in late December the defendant Charlton spoke with the
plaintiff and Mr. Charlton informed him he had obtained a survey. Mr. Watson
alleges Mr. Charlton refused to allow the plaintiff to examine it; Mr. Charlton
states he showed it to him and Mr. Watson took photos of it.

[56]        
Later, the plaintiff accessed the 1999 plans by taking pictures of those
plans at the DNV office. The matter was not raised again.

[57]        
On February 7, 2013, the plaintiff and Ms. Turner were away from
the house throughout the day. Though the plaintiff returned that evening, it
was not until the following morning Mr. Watson observed the stairs and
deck to have been substantially removed and the remaining portions and the
ground underneath the deck were covered with sawdust and debris. The defendant
Charlton had used a chainsaw and other pieces of equipment to cut back the dissenting
staircase and deck to a point just east of the property line.

[58]        
The photographs in evidence graphically illustrated the damage to the
plaintiff’s deck and stairs. After Mr. Charlton’s demolition work, the
stairs from the upper level to the mid-deck were gone and the debris was placed
on 5469 under and around the deck area. The deck which had previously covered
the septic tank was reduced in width and covered only one half of the tank, was
reduced back to be in line with the stairs to the lower deck. There were shoeprints
in the sawdust on the deck west of the property line and at the lower level
near the rain spout.

[59]        
Mr. Watson described the state of the stairs and deck after Mr. Charlton’s
work was completed. Mr. Charlton had put down new footings for the deck
and banged together a replacement hand rail. The general state of the deck, the
area under the deck and around the septic tank, as well as the presence of
sharp tin edges and unstable railings, concerned the plaintiff. He put up
caution tape where the stairway had been located and boarded
off access to the upper level deck. Further, as there was no longer access from
the upper level deck to the mid-level deck and he placed a ladder in order to
go between the upper and mid-level deck.

[60]        
He described the reduction in tthe middle deck and relocation
of the handrail to a position in line with the second set of stairs which leads
form the mid-level deck to the lower level deck. However, the condition of the
middle deck after the removal rendered it unusable, because it was unstable,
especially toward the edge of the remaining deck. The posts supporting the
damaged deck were not securely reinstalled and as a result of whole of it
shakes if walked on; he believed that the area was in a hazardous condition.
The
plaintiff contends that the approximate cost to repair the damage to the deck
and stairway was $8,500. The plaintiff also identified a storage room adjacent
to the middle deck where he kept a freezer and stored a bicycle. It was
apparent that the defendant Charlton removed some siding and moved those two items
further inside the room to allow him to complete the demolition of the stairs
and deck.

[61]        
The plaintiff did not examine his septic tank until April when contacted
by his wastewater service company to report that the tank could not be accessed.
Wood had been placed over the tank and there was a 2 x 4 wired over the tank
itself. The defendant had also drilled large screws into the lid of the septic
tank, making it difficult to remove. The plaintiff identified a photograph
showing wood blocks between the deck and the tank with screws attached to the
joists. The plaintiff removed these obstructions, but over the course of time
the defendant replaced them three times.

[62]        
One of these incidents was in late June 2013, when the plaintiff found
his septic tank obstructed by a piece of wood. After he removed it, he later observed
the defendant Charlton standing on the edge of the tank reinstalling the impediment.
The defendant said he was sealing the tank and refused the plaintiff’s request
to leave the tank free. The plaintiff said that the defendant Charlton accused him
(the plaintiff) of having moved the tank, after which Mr. Charlton then
banged on the tank with a hammer.

[63]        
The plaintiff said that the defendant Charlton threatened to cut his
septic tank in half. On another occasion he received a letter from a company
threatening to remove his septic tank.

[64]        
In the aftermath of the deconstruction of the plaintiff’s east stairs
and deck, problems were observed with leaks in the septic tank system.  The plaintiff
maintained an ongoing retainer with Pacific Wastewater Ltd. to maintain his
sewer/septic system. After Mr. Charlton blocked the lids to the septic tanks,
Pacific Wastewater was unable to perform some of its service and maintenance
duties.

[65]        
The plaintiff speculated the leaks may have been caused by the defendant
Charlton’s actions, including throwing debris underneath the deck and on the septic
tank.

[66]        
A further incident after the removal of the deck, after Mr. Charlton
had planted sapling trees on what Mr. Watson believed, was his property. Mr. Watson
asked Mr. Charlton to remove them and alleges that Mr. Charlton swung
a rake at him causing him to duck. He said he was afraid that Mr. Charlton
would hurt him.

[67]        
Later the plaintiff delivered a letter objecting to Mr. Charlton
planting trees in an area close to his house. The plaintiff thought the
defendant Charlton had planted on his property. In fact, the trees were not on
the plaintiff’s property at the time. He explained his error by saying he did
not know how to read a survey prepared by Mr. McDonald containing a clear
representation of the property line.

[68]        
The plaintiff expressed fear and unease about the defendant Charlton’s
presence on or near his property. He believed the rake incident was a
threatening gesture and was concerned for the safety of his family given the
dangers resulting from Mr. Charlton’s demolition work. The plaintiff was
emotional and concerned about the impact of these incidents on him and his
family.

Carmen Turner

[69]        
Ms. Turner described her experience in the aftermath of Mr. Charlton’s
demolition of part of the east side of 5469. She said she was frightened by the
defendant Charlton’s dismantling of the stairs and deck without warning. She
acknowledged there had been a flag attached to part of the deck, suggesting the
encroachment, but the family received no notice of Mr. Charlton’s
intention to take such drastic action.

[70]        
Ms. Turner observed that the freezer in the room on the middle
level of their house had been moved. There was a bicycle placed on top of the
freezer and a makeshift door left in place.

[71]        
She testified that the removal of the deck made her feel vulnerable. She
and Mr. Watson attended some relationship counselling because of the
impact of these events.

[72]        
She said that the removal of the deck and part of the stairs left that
side of the house unsafe and she will not let her son out on the lower deck. She
feels now that she must pay extra care and attention to her son so that he was
not too close to the east side of the house; and that her son is deprived of
play space. In cross-examination she admitted that she would not have let him
out in any event due to the danger the deck and stairs posed.

[73]        
As a result of the unsafe condition of the deck, she has stopped using
her bike, because she normally stored her bike in the workshop lower level;
there is no longer between the middle level and upper level and she cannot
readily move her bike to the top level and the roadway. She now stores her bike
at her parent’s house.

[74]        
In addition, as a result of the compromised deck, Ms. Turner
indicated that she stopped having company over her property for concern and
fear of lack of emergency exit or emergency plan should a situation require emergency
exit through the side door.

Neil Bennett

[75]        
Mr. Bennett was accepted as an expert in surveying
and determining property boundaries. He provided two opinions concerning 5469
and 5495; one
dated October 20, 2014, and his rebuttal report was dated
December 2, 2014.

[76]        
Mr. Bennett explained that the topographic
survey attached in his first expert report was conducted and produced in or
about March 1998 when the Fords owned 5469. The survey sets out the boundary
line of the property, the location of the house, the exterior structures such
as the decks, wood landing and enclosed balcony and a notation by the east side
of the property which reads “Wood Landing Over 1.9”.

[77]        
Mr. Bennett explained that in a topographic
survey, a property’s boundary is not usually re-surveyed or re-posted, and as
such, the property boundary would not be definitive. This was the case with the
topographic survey of March 1998, which contained a disclaimer noting that the
property line in the survey should not be used to define boundaries. The
property boundaries contained in the topographic survey were made with
reference to older surveys. Similarly, as the survey is concerned about the
topography, the septic tank was not referenced nor measured.

[78]        
Mr. Bennett confirmed the following points
depicted within the December 2, 2014 survey plan:

·      
The darkened line labeled “Property Line”
depicts the property line between the two properties, namely the Watson
Property and the Bartlett Property.

·      
At the top right hand corner, a notation of “deck
0.05 over PL”, means that the deck is over the property line by 0.05 metre.

·      
“Joist 0.08 over PL” was referenced in the
drawing. Mr. Bennett clarified that the joist measured on the deck were
the horizontal beams that extends out the most and not the decking.

·      
“Fence (Tin) 0.05 over PL” was referenced in the
drawing.

·      
The crosshatched area depicts the area where the
deck is located.

·      
The house is 1.43 metres from the property line
on the north end.

·      
Railing to the south of the notation “End of Cut
Railing 0.05 over PL” would be railings that were not cut off and remained
intact.

·      
“Deck 0.05 clear of PL” means that the deck is
0.05 metre within the property line.

·      
The septic tank is represented by a rectangular
box. It is 0.75 metre over the property line at the north end and it is 0.59 or
0.66 metre over the property at the south end. The two measurements for the
south end measurement represents the difference of encroachment by the tank
itself at 0.59 metre and encroachment of the septic tank concrete base at 0.66 metre.

[79]        
Mr. Bennett created an easement plan depicting the area necessary
to accommodate the septic tank in its current location that would also
accommodate the reconstruction of the deck in its condition before Mr. Charlton’s
demolition. He confirmed that the septic tank was required to be one metre from
the property line.

[80]        
He was unable to confirm if VCH will require a one metre setback between
septic tanks and property lines.

[81]        
Finally, he was questioned as to why the Rankine survey demonstrated an
encroachment of 3.7 feet of 3.45 feet whereas his report revealed a 1.9 foot
encroachment. He said this may have occurred because that firm might have used a
different benchmark to ascertain the property line.

Graham Rankine

[82]        
Mr. Rankine was qualified to give opinion
evidence in the field of topographical land surveys, including the assessment
of slopes and the measurement of forms situated on land.

[83]        
Mr. Rankine reported on the relative slope
of the septic tank on the 5469. He said that given the shape of the septic tank,
he identified the horizontal seam line or lip that goes around the tank and
used the lip as a reference point in taking measurements at the four corners of
the tank. He concluded that the tank was sloping down the hill toward the south
by 4.4%; and the tank itself was sloping east-west away from 5469 by
three-quarters of an inch.

[84]        
He confirmed that the measurements he took would have
been of the slope from the lip and not of the actual tank and that the
measurement of the lip was based on an assumption that the lip had the same
slope as did the bottom of the tank. No measurement was made of the bottom of
the tank.

Steven Lange

[85]        
Mr. Lange was a building manager who performed some carpentry work
for the plaintiff beginning in 2008. The plaintiff employed him to rebuild the
staircase to the landing on the east side of the house and to rebuild the deck.
He said he used the same fashion and form as the old deck but made it larger
and safer. He reconstructed the stairs in the same position they had been
before construction.

[86]        
He said he stayed within the same parameters as the plans he was given
and used the same footprint and the same footings. He also added some footings
by the septic tank to support the stairs.

[87]        
He admitted the original walkway at the middle deck did not extend over
the entire septic tank; when his work was finished the septic tank was fully
covered by the deck.

[88]        
Although he had seen the plan indicating “wood landing over 1.9 feet” it
did not occur to him that his addition to the mid-level deck encroached on the
neighbour’s property.

[89]        
Mr. Lange was somewhat vague concerning the timing of the
renovations he performed. He testified that the side deck cost $21,000 to complete.
He identified invoices from May and June 2008 which he reported to be for the
plaintiff’s deck reconstruction, but testified throughout that the work was
done in 2009.

[90]        
Regarding any future repairs to the deck and stairway, Mr. Lange
stated there is not enough room to place the stairs from the top level to the
mid-level of the house without using some space to the east.

Brent Dennis

[91]        
Mr. Dennis was accepted as an expert in on-site wastewater design
and wastewater management systems including compliance with health standards
and regulations for those systems outside municipal water systems.

[92]        
Mr. Dennis provided a written opinion that included a site investigation
and document review to develop a feasibility study report and budget cost
estimate for the relocation of the existing treatment plant, including any
regulatory requirements that may apply. He opined that for a relocation of the
treatment plant, additional equipment would be required and that such work would
constitute a “significant” change to the system under the current regulations.
As such, he said that a reconfigured system would require upgrading of the
entire system, including the dispersal field necessary to accommodate the
sewage system. The estimated cost of this work was $28,000 plus or minus 20%.

[93]        
In cross-examination he was challenged on the conclusion that moving the
plaintiff’s sewage system to a new location would constitute an” significant”
change thus requiring significant upgrading to the system. He did not resile
from his opinion.

[94]        
He commented on the steep grade of the property at the south end and
concluded that the current system is working well and expects many more years
of service from the system. He believed that relocating the plant to an area
above the house would present greater risk in the event of a spill. He believed
that the two alternate locations where the system might be located presented
concerns because there is insufficient depth to bury the tank and odour would
be harder to control. He recommended that the plaintiff’s current system remain
in its present location until there is evidence of a dispersal field failure,
which will not occur without many months of warning.

Mathew Jensen

[95]        
Matthew Jensen is a general contractor with 27 years of building
experience. The plaintiff consulted him with respect to reconstruction of the
portions of the deck removed by Mr. Charlton in 2014. Mr. Jensen had
visited at 5469 about six to seven years prior when he applied shotcrete to the
septic tank for preventative purposes. He identified the pictures of the septic
tank taken more recently as pictures of the tank he worked on. He also observed
that the deck on the plaintiff’s property was in place but he did not recall whether
the handrails were fitted with barriers.

[96]        
He attended the plaintiff’s property with a view to estimating the cost
to remove the existing stairs and decking and construct a new structure. The
focus of his work would be to replace the stair access from the upper level and
the deck and stairs to the lower level. Mr. Jensen recalled the condition
of the plaintiff’s deck at time of the site visit after February 2013. He said that
from the landing at the top-level deck to the middle level deck there is a 12
foot drop. Further, the outside beam, which had supported the mid-level deck
from the deck’s underside, had been removed and there were joist hangers on the
underside of that deck that held nothing. Mr. Jensen indicated that the
lack of support for the mid-level deck means that the deck can collapse if used.
It is not a safe structure.

[97]        
Mr. Jensen explained the necessary reconstruction work procedure to
Mr. Watson. The reconstruction would involve demolishing what remains of
the deck and stairs on the eastside of 5469 and a total reconstruction of the
deck with additional footing and structural supports.

[98]        
Mr. Jensen indicated that the deck would run along the length of
the house for approximately 24 feet. The width of the deck, from the edge of
the house to the railing, would be approximately eight feet, which is made up
of the width of a four foot stairway and the width of a four foot deck.

[99]        
Mr. Jensen provided an estimate for the reconstruction in or about
June 2014. The cost estimate totaled $7,726.48. Mr. Jensen indicated that
the estimate of material costs were taken from standard building supply
material list.

[100]     Mr. Jensen
also indicated that his estimate from June 2014 was not final, and he gave the
plaintiff an updated estimate dated October 16, 2014 of costs at $8,499,
testifying this amount is accurate with a 15% – 20% variance.

Allan Robertson

[101]     Mr. Robertson
is a property use and business license coordinator for the DNV. He processes
business license applications and deals with property use complaints. He had a
previous history of by-law enforcement and animal control responsibilities.

[102]     Mr. Robertson
was assigned to deal with complaints concerning the plaintiff’s property in
November 2013. As a result of his attendance, he formed the opinion that the
plaintiff’s deck and stairway had not been constructed within the setback
limits of 1.83 metres as required by the DNV bylaw. He also concluded that the
plaintiff had constructed a deck on the south side of the property and a
cantilevered deck without building permits, a temporary carport structure
located partly on DNV property and a retaining wall encroaching on DNV
property.

[103]     The DNV wrote
to the plaintiff on November 22, 2013, informing the plaintiff that on or
before December 31, 2013, he was required to do the following:

a.     Completely
remove the decking, stairway and associated construction from the east side of
the property that was within 1.83 metre setback from the defendant Bartlett’s
lot;

b.     With
regard to the deck on the south side and in the area under his cantilevered
deck, to review his plans to ensure that any construction met the DNV and
provincial codes and requirements; and,

c.     Remove the
temporary carport structure located on DNV property.

[104]     He said
that some building permits had been issued by DNV for work done on the
plaintiff’s house, but no records indicated building permits had been issued
for the deck and stair construction. He was aware of the previous owners’
application to the Board of Variance and documents noting a 1.9 foot
encroachment, though nothing indicated it had come to the DNV’s attention
before the defendants’ complaints.

[105]     In April
2014 the plaintiff was again warned about the building and by-law contraventions
posed by the deck and stairs.

[106]     Mr. Robertson
acknowledged that the plaintiff’s goal of this litigation is to obtain an
easement or title to a part of Ms. Bartlett’s land and has thus held off
enforcement of its order to remove the east deck.

[107]     Mr. Robertson
said that the large deck had been built without permits but the plaintiff has
since supplied documents. Due to the steep slope in that area, a building
proposal would have to be approved by the environmental department before it
can be approved by the building department and because the new deck and stairs
were in the setback area, the plaintiff was refused a building permit.

Phillip Muirhead

[108]     Mr. Muirhead
is an environmental health officer for VCH. VCH’s role is to maintain public
health and safety by ensuring drinking water is unaffected by sewage treatment
systems; they do so by investigating complaints and issuing orders concerning
sewage systems that pose a risk to public health.

[109]     Owners of sewage
systems are required to submit documents concerning their installation and
repair. Currently VCH does not approve sewage systems; rather it accepts
filings from Registered Wastewater Practitioners (“ROWP”) or engineers detailing
system plans. They do not do ongoing inspections but ensure that constructions
of new systems conform to the ROWP’s designs.

[110]     Mr. Muirhead
first attended the plaintiff’s home in August 2013 on a two-part complaint from
the defendant Bartlett. She was concerned that the plaintiff’s septic tank
straddled the property line and that it was leaking. On attendance he found
moisture on the concrete base of the plaintiff’s septic tank and that it was
located in a place that precluded proper servicing. On August 20, 2013, Mr. Muirhead
issued three orders requiring the plaintiff to take the following steps:

a.     to
relocate his sewage system treatment plant to a place on his property and in
compliance with a one metre setback from the property line and the building;

b.     to engage
an ROWP to relocate his sewage treatment plant and provide a letter certifying
the relocation of the plant within 30 days from the completion of the plant;
and,

c.     to retain
the services of an ROWP maintenance provider to inspect the operations of his
plant and report to VCH that it operates as designed and is not leaking effluent.
This report was to be submitted to VCH within 30 days of completion of the new
installation.

[111]     The
plaintiff remediated the damage observed and hired a company to produce a
report on the functionality of the tank. However, additional concerns about
leaks from the plaintiff’s sewage system arose in October 2013. Mr. Muirhead
attended and observed a cracked pipe and leakage. He did not think the leakage
was caused by any damage to the pipes. Mr. Muirhead issued new orders
directing the plaintiff correct the leak and spread lime on his property in the
area where effluent may have escaped.

[112]     He was not
aware that the defendant Charlton had threatened to cut the plaintiff’s septic
tank in half but he would object if such steps are taken. He also said he would
not recommend resting a structure, for example the plaintiff’s deck, on the top
of the septic tank.

[113]     He
testified that VCH’s concern about the location of the septic tank was that the
system cannot be serviced if it is not on the owner’s property or its
serviceability depends on the generosity of a neighbour to permit access.

[114]     Mr. Muirhead
said that while the one metre setback of tanks from buildings is no longer
required, the plaintiff’s tank’s location otherwise remain non-compliant.
However, Mr. Muirhead has granted a delay in compliance with this final
requirement pending the outcome of this trial. He confirmed that in order to
relax the standards the VCH would require a restrictive covenant concerning the
encroachment onto the defendant Bartlett’s property or an easement that would
be in the name of VCH and the parties.

Geoffrey Charlton

[115]     Mr. Charlton
built the plaintiff’s house in 1986 – 1987. He installed, among other things,
the plumbing, the wiring, and the sewage system. He had built or renovated as
many as nine houses at that time.

[116]     He said
the Watson house was originally 34 feet wide, with five feet from the west
property line to the house and 11 feet from the east side to the property line.
The septic tank was three feet from the house and three feet from the property
line.

[117]     He
described building a ramp down to a concrete pad that was located next to the
house where he installed and plumbed the tank. He knew that 5469 had marginal
conditions for a septic disposal system.

[118]     When he
built 5469, there was a four foot wide deck outside of the door on the east
wall that led to a stairway up the east side of the house to the entrance area
from the road. He said the stairs were three feet wide Mr. Charlton
clarified that the staircase on the east side of 5469 took up three feet of the
11 feet distance between the east side wall to the property line and that the staircase
connects from the front door to the second level from the outside. Further
there was a door to the east side of the house, which leads to the outside. The
septic tank was in front of the deck and can be accessed from the end of the
staircase. Mr. Charlton and Ms. Bartlett sold 5469 to the Fords in
1989.

[119]     In 2011, Ms. Bartlett
purchased 5495. Mr. Charlton recalled she made two visits before making an
offer to purchase. The 5495 property is composed of three lots which are
cumulatively 100 feet wide. The north side of the lot is flat and the south
half has a significant drop in elevation to the south end. The length of the
property is approximately 240 feet. There are three rocky terraces on
descending levels to the south that run north-east. He said there is a three
foot wide path that run north-south along the property line against the Watson
lot. He said there was a retaining wall and fence that runs along the property
line but no other visible markers except a corner pen which is established at
the north end.

[120]     The
previous owner of 5495, Mr. Cooper, was known to Mr. Charlton as a
“hoarder”. The house was in rough shape when Ms. Bartlett purchased it.

[121]     Before
purchasing 5495 the defendants did not obtain a survey of the property nor did
they walk the perimeter of the property, in part because of the vegetation
growing along the west side of their lot. Mr. Charlton indicated that much
of 5495 was not easily accessible. .

[122]     The
vegetation on the west edge of 5495 that obscured the view of 5469. There was brush,
blackberries, bamboo and cherry trees, which Mr. Charlton began clearing
in November 2011 and was substantially finished within four to five months. Clearing
the brush allowed Mr. Charlton to see that the Watson house was configured
differently than from when he built it. He said the location of the septic tank
had been moved to the east side of the home and the house had been extended five
feet to the east. He suspected at that time the deck and septic tank were
encroaching onto the Bartlett property.

[123]     Sometime
after noticing the encroachment, Mr. Charlton measured the width of the
property from the eastern edge to the western edge with the knowledge that it
should have been 100 feet. It was not.

[124]     Mr. Charlton
said he did not see the plaintiff for the first eight to nine months after he
and the defendant Bartlett had purchased the property. The plaintiff being elusive
and Mr. Charlton marked on the deck the points where the Watson house
encroached on his property by putting nails into the plaintiff’s deck with pink
flags at the top and bottom.

[125]     Eventually
he spoke to Mr. Watson about the apparent encroachment. Mr. Charlton
said that the plaintiff believed that his hand rail may have been three or four
inches over the property line; Mr. Charlton told him it was three or four
feet. Approximately an hour later, the plaintiff returned to speak with Mr. Charlton,
and informed him the arrangement was “grandfathered”.

[126]     Afterward,
Mr. Charlton received a survey from Rankine Land Surveying Ltd., completed
on or about October 25, 2012, which confirmed the extent of this encroachment. He
approached Mr. Watson with this information and asked him to remove the
encroachment. Mr. Watson said he would speak to him again within two
weeks, apparently to advise what position he might take.

[127]     Mr. Watson
did not speak to Mr. Charlton within the two weeks. After that time
lapsed, Mr. Charlton proceeded to cut Mr. Watson’s deck off using a
chain saw, skill saw, and various other tools. Using the survey marks he placed,
he drew a string line from north to south and cut down it, taking the railings
off, removing siding, moving a freezer from his side of the line to the Watson
side of the property, picking a bicycle up and placing it on top of the freezer,
and dismantling the staircase. He leaned a ladder against the deck and the
unpainted wall of the home to cut back the deck. After he was done, Mr. Charlton
boarded up the free room containing the freezer and put a hand rail on the edge
of what remained of the deck and stairs.  His efforts reduced the deck
approximately 3.5 feet.

[128]     In doing
so, Mr. Charlton conceded he may have stepped onto 5469 while he was
building the new supports for the deck, both at his December 4, 2014
examination for discovery and at trial.

[129]     Mr. Charlton
said that he had used a ladder when he cut off the deck. He leaned the ladder
against the deck but was unclear on where the ladder was against the deck. On
cross examination he said he used a step ladder and said he removed the deck
using a chain saw and made 3.5 feet cuts to the deck. He said he reached overhead
and removed the first staircase while standing on the deck. He had cut and
removed the stairs in segments from the north end to the south end.

[130]     He said he
had marked out the property line on the deck and removed a piece of the siding
on the north side of the storage room to see what was in the storage room. He 
removed the outer walls to the storage room. From there, he went on top of the upper
deck to remove some stones. He removed the eastern wall to the storage room and
slid the plaintiff’s freezer over against a wall and cut the deck from the
north end to the south end.

[131]     He crossed
over the property line onto the Watson property and went onto 5495 when he was
reconstructing support for the deck. He said that he was about one metre over the
property line but that he did not enter the plaintiff’s home.

[132]     Mr. Charlton’s
examination for discovery on December 4, 2014 was read in:

832 Q: So you put that new beam under?

A: Correct.

833 Q: And that beam was on Mr. Watson’s property;
correct?

A: Correct.

834 Q: So, obviously, you went onto Mr. Watson’s
property to do that; correct?

A: Portions of my body would have been over the line, yes.

835 Q: All of your body would have been over the line, to be
honest; correct?

A: Correct.

[133]     Mr. Charlton
also said that after the removal of the deck and stairs he had disposed of or threw
deck materials and various debris underneath the lower deck and the remaining
east side deck.

[134]     Mr. Charlton
said the removal and reconstruction took approximately eight hours to complete.

[135]     In
justifying his actions, Mr. Charlton said that he removed the deck because
it was unsafe. He said that aside from the encroachment issue, he was concerned
about the safety of the deck because, he claimed, the handrail on the deck was
not up to code. As the deck was on the Bartlett Property, he stated it was a
liability to them if anyone fell off the deck.

[136]      Mr. Charlton
admitted to obstructing access to it and re-obstructing access each time the
plaintiff removed his work. When he installed the 4X4 beams on top of the tank
to keep the lids closed he understood that it would prevent Mr. Watson’s
professionals from servicing the tank. He indicated that he wanted Mr. Watson
to contact him and ask him to remove the blockage.

[137]     With
respect to possibly damaging the tank, Mr. Charlton admitted he hit the
tank with the hammer as a result of falling from it on one of the occasions he
barricaded the tank. He further agreed the tank lids were used to support the deck
as the original supports were compromised during the process of removal.

[138]     Mr. Charlton
also admitted using the tank lids to support the deck as the original supports
were compromised during the process of removal. Mr. Charlton’s examination
for discovery on December 4, 2014 was put to him:

861 Q: So the septic tank was being used as a structural
feature of the deck?

A: To some degree, yes.

862 Q: And those blocks were put there to prevent opening of
the deck, the septic

tank?

A: Put there in order to hold the
lids down, yes.

[139]     Mr. Charlton’s
primary complaint with the septic tank as it lies is that it impedes access to
the terraces down the path to the south of their house. Unlike the remainder of
5495, this pathway has a gentle slope of about 30 degrees. Mr. Charlton
testified that the encroachment onto this pathway, prevents some vehicles,
including track wheelbarrows, from getting down to the south portion of the
Bartlett Property. He estimated he would need a clearance of three feet to
bring such vehicles onto the pathway.

[140]     Concerning
the counterclaim, Mr. Charlton said that when the septic tank leaked, some
of its contents flowed onto 5495. He believes the tank leaked three or four
times on different occasions. He referred to a photograph showing a clump of
hair in water located on the property line, but acknowledged that he had never
done any soil testing to determine if this was in fact sewage.

[141]     He said
that this dispute had affected his interest in living in the house at 5495. The
property is currently listed for sale and he does not envision moving back into
it.

Sheila Bartlett

[142]     Ms. Bartlett was a realtor and is the registered owner of 5495.
 The land is flat where the house is located and the ground slopes to the south;
the grade is steeper on the east side than on the west side.

[143]     Ms. Bartlett was well-informed about 5469 and 5495 prior to the
purchasing 5495 because she lived at 5469 from 1986 until 2001.
She was also
acted as the Fords’ realtor when they listed the property for sale in or about
2000 or 2001.

[144]     When acting as the Fords’ realtor she visited 5469 on the evening she
listed the property for sale. She visited when it was dark and did not walk
around the property, other than accessing the outside staircase and workshop
area from the mid-level entrance.

[145]     She had no knowledge of what happened to 5469 after she moved away.

[146]     In the fall of 2011, she and Mr. Charlton became interested in
purchasing 5495.
Prior to purchase, she saw the property on one occasion
and observed it was overgrown. She had walked to the east side of the property,
but was unable to go more than a couple of yards south-east of the house because
of the overgrowth.

[147]     In or about summer of 2012 they discovered the terraces on 5495
after the bushes on the west side of the property were cleared. She started
gardening on the terraces during the summer months on 2012 and 2013.

[148]     She said that the 5495 residence is approximately 40 feet away from
the plaintiff’s residence, and about 75 feet to the septic tank.

[149]     Ms. Bartlett did not ask for Mr. Watson’s permission to go
onto 5469 nor did she ask Mr. Watson’s permission to cut off the deck or
stairs. .
Ms. Bartlett was not present when
Mr. Charlton removed the deck. She said it was after they removed the deck
that they became aware of the septic tank’s encroachment.

[150]     Ms. Bartlett said that the septic tank impacted her use of 5495
because the encroachment makes it harder for her to get down to the terraces. Otherwise,
Ms. Bartlett claimed that that the tank was unsightly and that she was
concerned about the tank’s safety and functionality because it is only encased
on the bottom half. Further, she felt wetness on the tank when she placed her
hand on it on one occasion. Upon feeling wetness and reported the septic tank
to the VCH, fearing that the tank was leaking.

[151]     In addressing her counterclaims, Ms. Bartlett said she had not
suffered any damages or loss with respect to the trespass or nuisance claims,
but that the deck and septic tank remained irritations to her. As a result, she
decided to sell 5495 and listed it for sale on June 10, 2013. The property was not
actively marketed that summer, and they received no offer under that listing.

[152]     Ms. Bartlett listed their house a second time in the spring of
2014. They received an offer of $915,000, under a contract of purchase and sale
dated April 9, 2014, which provided a sale price of $915,000;  Ms. Bartlett’s
signatures were found on the subject clause page of that agreement. She testified
they would have-counter offered at $950,000 and agreed with the prospective
purchaser to wait until after June 2014, at which time a summary trial was
scheduled to take place.  It appears, however, that she has since received an
offer to purchase for $1,050,000.

[153]     Regarding other evidence as to the value of the property, Ms. Bartlett
challenged the 2014 property assessment, saying the improvement value on the
property was not accurate and that she appealed the taxes on the 5495 twice. Ms. Bartlett
indicated that the 2015 tax assessment is similar to the 2014 tax assessment.

[154]     In summary, Ms. Bartlett does not want to live next to Mr. Watson
since she did not get along with Mr. Watson.

Findings

[155]     After considering
of all the evidence I have concluded as follows:

a.     the
defendants built the residence on 5469 in the mid-1980s and located a sewer
treatment tank and stairway on the east side of the residence;

b.     Beverly
Ford purchased 5469 from the defendants in 1989;

c.     in approximately
1990 the Ford’s extended the east side of the house adding five feet of additional
living space. They also moved the septic tank with the approval of the health
authority responsible for sewage disposal. The tank was moved east, at which
point it was enclosed in a concrete base, where it has since remained;

d.     when the
Ford’s replaced the stairs from the top level to the mid-level  they did not
obtain approval from DNV;

e.      the 1999/2000
plans from James Martin 2015 survey by Bennett Land Surveying Ltd. and the
MacDonald survey reveal the following:

                                                                 
I.         
the east side of the plaintiff’s house was 1.5 metres from the property
line;

                                                               
II.         
the north edge of the septic tank extends 0.75 to 0.77 metres east of
the property line;

                                                             
III.         
the south end of the septic tank extends 0.59 to .61 metres east of the
property line;

                                                             
IV.         
the stairs from the upper level to mid-level of the house extended 0.634
metres east of the property line (also encroaching);

f.      in 1999-2000
the Fords applied to the Board of Variance to make additions to the house. At
that time there was a comment concerning the encroachment of the septic tank
but there was no permission or variance granted by the board permitting the
Fords to maintain the tank in that location;

g.     in
November 2013 the DNV side yard setback was 1.83 metres. The February 1999
plans indicate the side yard setback was 1.5 metres at that time;

h.      Ms. Bartlett
was the realtor acting on behalf of the Ford’s in the sale of 5469. She
attended the house and walked throughout but did not walk the exterior of the
land or make any observations concerning the location of the septic tank;

i.       Ms. Ford
sold 5469 in 2001 and there was no evidence to inform the court on what if any improvements
were made to 5469 between 2001 and 2006;

j.       in
2006 the plaintiff purchased 5469 and received copies of plans commissioned by
the Fords;

k.     when the
plaintiff purchased 5469, he honestly believed that the septic tank and the
stairs were located within the boundary of 5469 but he made no effort to
ascertain the true boundaries of 5469;

l.       the
plaintiff was negligent in failing to recognize the encroachment of the septic
tank, the stairs and the deck on 5495 before he directed Mr. Lange’s work
on the deck and stairs. Further, he was negligent in failing to obtain a survey
before making alterations to the stairs and deck and in failing to obtain a
building permit from DNV for that work;

m.   sometime between 2007
to 2009 the plaintiff retained Mr. Steven Lange to reconstruct the stairs
and deck that had been built by Ms. Ford. The plaintiff did not give Mr. Lange
any directions other than to replicate the pre-existing deck and stairs. He
failed to consider whether the changes incorporated by Mr. Lange simply
replicated the stairs and deck built by the Fords. The new work did not
replicate the pre-existing deck and stairs. On this point, the plaintiff’s
evidence to the contrary was not reliable;

n.     Mr. Lange
extended the deck, placed new footings, and added a new staircase to the upper
level from the mid-level. The stairs from the mid-level to upper level
replicated the stairs he replaced;

o.     the
defendants purchased 5495 without a survey and without any concern regarding
encroachments or the state of the western boundary of 5495 with 5469;

p.     in 2011,
the area of 5495 adjacent to 5469 was a jungle-like compilation of bushes and
trees;

q.     the
defendant Charlton spoke to the plaintiff in late November 2012 and alerted him
to the encroachment issue. In the third week of December 2012 the defendant
Charlton approached the plaintiff to discuss the encroachment and provided him
with a survey plan. The plaintiff left the meeting and told Charlton he would
look for his blueprints, consider the issue, and get back to him. Mr. Watson
obtained pictures of drawings from DNV but did not respond to Mr. Charlton
promptly;

r.      on February
7, 2013, the defendant Charlton took action on his own initiative to remedy the
encroachment, effectively destroying the upper stair case and significantly cutting
back the plaintiff’s deck. With reference to dos Reis v. Ring, 2012 BCSC
122, I find the stairs and deck were fixtures for the use and enjoyment of the
plaintiff’s residence;

s.     the
defendant Charlton trespassed onto the plaintiff’s side of the property line to
perform some of the demolition work. The defendant Charlton further threw the
debris from the stairway and deck deconstruction underneath the deck onto the
plaintiff’s property and around the septic tank;

t.      There
was a confrontation between the plaintiff and defendant Charlton described by
the plaintiff as the “rake swinging” incident; the plaintiff’s version of this
event was not reliable. Something transpired at that time but I am not
satisfied on the balance of probabilities that it occurred as alleged by the
plaintiff, i.e. the plaintiff was not assaulted;

u.     the
plaintiff cannot maintain the septic tank in its current location, or rebuild
his stairs, without obtaining a remedy under the Act allowing the
encroachment and sufficient access for servicing because he is required to
comply with DNV by-laws and VCH regulations;

v.     the
plaintiff cannot rebuild the deck to the dimensions existing before February 6,
2013, without a remedy either by way of easement or transfer of title to a
portion of the defendant Bartlett’s lands;

w.     the current
location of the septic tank is optimum for the utility to 5469;

x.     the cost
to rebuild the plaintiff’s steps and deck is approximately $8,500;

y.     The house
on 5495 is approximately 50 to 75 feet from the septic tank on 5469;

z.     the
defendant’s access to the lower parts of 5495 is affected by the location of
the plaintiff’s tank and would be minimally affected further by the loss of
land required by the plaintiff for access to the septic tank in 2001;

aa. The septic tank did not become an
eyesore to the defendants from 5495 until after the defendants cleared the
western boundary of their property and the deck was removed by the defendant
Charlton;

bb. the defendants decided to vacate
5495 because they did not want to continue living next to the plaintiff.

Encroachment

Law

[156]    
The Property Law Act, R.S.B.C. 1996, c. 377 (“the Act”),
governs the plaintiff’s claim for an adjusted property line or an easement and
states:

36  (2) If, on the
survey of land, it is found that a building on it encroaches on adjoining land…
the Supreme Court may on application

(a) declare that the owner of the
land has for the period the court determines and on making the compensation to
the owner of the adjoining land that the court determines, an easement on the
land encroached on …;

(b) vest title to the land
encroached on … in the owner of the land encroaching…, on making the
compensation that the court determines, or

(c) order the owner to remove the encroachment … so that it
no longer encroaches on … any part of the adjoining land.

[157]     Under
s. 8 of the Interpretation Act, R.S.B.C. 1996, c. 238, the Act
should be construed as “remedial” and be given a “fair, large and liberal
construction and interpretation as best assures the attainment of its
objectives and point”: Oyelese v. Sorenson, 2013 BCSC 940 at para. 20.

[158]     Section 36
of the Act is to be interpreted broadly; the term “building” in s. 36
of the Act is intended to refer to improvements which encroach on
adjoining land. An example of the breadth given to the Act is found in Datolo
v. Merl
o, [1998] 80 A.C.W.S. (3d) 673, B.C.J. No. 1499 (Q.L.)
(S.C. where, a sidewalk which formed an essential part of the continuing use of
a house was construed as a “building” under the Act).

[159]     I have
determined the septic tank is to be construed a building under s. 36 of
the Act. The defendants argue the septic tank is not a “building” as
contemplated by the Act; they contend that the septic tank is similar to
a septic field as decided in Banville v. White, 2001 BCSC 628. In Banville,
Mr. Justice Edwards concluded that a septic field could not be considered
a building under the Act. He said that a septic field was similar to recreational
vehicle pads, service lines for sewer, water, power and telephone lines which
have been excluded from the term. However, I am satisfied that this septic tank
is not a close parallel to a septic field; the tank is a structure affixed to
the plaintiff’s house and necessary for the use and enjoyment of the house. Similar
to the finding in Datolo, the house in this case could not be used without
the sewage disposal system as installed; it is essential to the plaintiff’s use
of the dwelling

[160]     In Vineberg
v. Rerick,
[1996] B.C.W.L.D. 159, 59 A.C.W.S. (3d) 787 (S.C.), Mr. Justice
Leggatt set out the foundation for the interpretation of s. 36 of the Act
in analyzing the equitable resolution of boundary disputes. His description of
the correct approach is:

The Balance of Convenience

19        Moving on to the heart of
this matter, the test for determining how to use s. 32 [now s. 36] is
the balance of convenience: McNutt and McNutt v. Tedder and
Tedder
(1982), 1982 CanLII 613 (BC SC),
34 B.C.L.R. 145 (B.C.S.C.).

20        Counsel has provided
several cases which illustrate how the balance of convenience has been
judicially interpreted in similar situations. From these and other cases
considering [s. 36], I have noted three predominant considerations used in
the balance of convenience analysis:

1.The comprehension of the property
lines:  Were the parties cognizant of the correct boundary line before the
encroachment became an issue?  There are three degrees of knowledge: 
honest belief, negligence or fraud. The party seeking the easement should have
an honest belief to be awarded this remedy.

2.The nature of the
encroachment:  Was the encroachment a lasting improvement?  What is
the effort and cost involved in moving the improvement?  Was is its effect
on the properties in question?  The more fixed the improvement, and the
more costly and cumbersome it would be to move it, the more these
considerations will be weighed in favour of the petitioner.

3.The size of the encroachment:  How does the
encroachment effect the properties, in terms of both their present and future
value and use?  These questions serve to balance the potential losses and
gains of the creation of an easement.

[161]     These
principles are guides to weighing the balance of convenience in the
circumstances of each case. Indeed, s. 36 of the Act creates a
discretionary remedy that should embrace the promotion of fairness and
prevention of injustice: see Taylor v. Hoskin, 2006 BCCA 39 at para. 50-51.

Analysis – Balance of Convenience

Knowledge of the Encroachment

[162]    
The first component of the test is whether the encroaching party was
aware of the location of the property lines before the encroachment became an
issue. Included in this is an assessment of the plaintiff’s knowledge,
including whether an honest belief, negligence or fraud influenced his actions.
In some circumstances, negligence will not preclude the encroaching party from
a remedy where that party had an honest belief that the improvements on their
land were with the property boundary. see: Gainer v. Widsten, 2006 BCCA
580.

[163]    
Mr. Justice Chiasson described the approach to s. 36 claims
when the claimant has been negligent:

[9]        I do not consider
that, where there is an erroneous assumption about the position of a lot line
that is attributable to neglect on the part of one who seeks relief under the
Act, the relief sought cannot be granted. Neglect is not necessarily
inconsistent with an honest belief. Conduct which might be said to have been
negligent is one of the circumstances to be considered in assessing the
equities. …

[164]     The
plaintiff argues that he had no knowledge of the location of the boundary line
between the properties and possessed good reason to believe that the structures
in place when he purchased 5469 were within the “metes and bounds” of his
property. Mr. Lange built out the deck and stairs on that basis. This
belief was only challenged when the defendant brought the encroachment to his attention.

[165]     The
respondent contends that both Ms. Ford and the plaintiff “knew or ought to
have known” where the property line was located and that the septic tank and
deck encroached on the Bartlett property. The defendants submit that Ms. Ford
built the pre-existing deck and stairs without a permit and the plaintiff
followed with an unauthorized expansion of the deck and new stairs. Further, the
Fords did not have authorization to relocate the septic tank in a place that
straddled the property line. Thus the defendants contend both owners of 5469 were
reckless in constructing the staircase and landing, and in moving the tank,
because neither took  proper steps to ensure they were built only west of the
property line.

[166]     They
contend that the Fords’ negligence is a factor in weighing against the
plaintiff’s assertion of his honest belief that he constructed the new deck and
staircase within the boundaries of 5469. They contend that the Fords negligence
compounded the plaintiff’s negligence and is even more blameworthy because they
both failed to investigate the property line and ignored the civic restrictions
when placing the encroaching structures on 5495.

[167]     Ms. Ford
erroneously believed that in 1999 the Board of Variance had approved the position
of the 1990 septic tank relocation. The defendants correctly pointed out that
the Board of Variance did not have had the authority to authorize any
encroachment.

[168]     Further, when
he replaced the decking, the plaintiff possessed surveys from Ms. Ford impressed
with an entry indicating the wood landing was already 1.9 feet over (presumably
onto the Bartlett property) and septic tank was under the stairs. The
defendants contend that the plaintiff should have interpreted this plan as
indicating an encroachment over 5495 and, in choosing to reconstruct the deck as
he did, he should have known there would be a further encroachment onto the
Bartlett property.

[169]     Contrary
to the plaintiff’s evidence, the defendants say that the deck he constructed
was significantly larger than the pre-existing structure.  before Mr. Lange
performed the renovations, the deck covered one-half or less of the septic
tank; after his work the deck was fully covered. The fact the side deck covered
the septic tank after the renovation is a clear indication it was larger than the
deck that had existed before. Finally, there was a new enclosed room constructed
underneath the upper part of the deck and the staircase to the front of the
house that Ms. Ford said had been constructed by them.

[170]     The
defendants also reject the plaintiff’s assertion that his new deck was
constructed in 2007 or 2008 and challenge his credibility on this point in part
because invoices he tendered related to entirely different work. Further, Mr. Charlton
said the plaintiff told him that the deck had been built about two years before
2012. Thus, the deck would have been built after the previous neighbour died.
They suggest the plaintiff lied about this to hide the fact that he knew about
encroachment. Thus, they contend the plaintiff was fraudulent in his assertions
and lacked the requisite “honest belief” .

[171]     The
plaintiff said he had spoken with Mr. Cooper about changes to the deck and
steps before he died. He did not agree with suggestions that he had told others
that the deck had been worked on in 2010 or 2011. In my view, nothing
substantial turns on the exact dates Mr. Lange rebuilt the deck and stairs
for the plaintiff. The defendants contend that the plaintiff’s credibility has
been shaken on this point and I should conclude that he was being dishonest.
The evidence does not persuade me that he was dishonest on the balance of
probabilities; any confusion that exists on this point probably arises from the
passage of time and the erosion of his memory of specific dates.

[172]     The
defendants submit that, if plaintiff was not fraudulent in his assertions, his
negligence in failing to investigate the property line should disentitle him to
the remedy. He was either grossly negligent in his belief or wilfully blind to
the fact that he had purchased and was occupying a property with an already
significant encroachment.

[173]     Finally,
the defendants contend that the septic tank was moved a second time, after the
Fords had vacated the property. They argued that a 1999 survey prepared by Mr. Bennett
and plans prepared in 2000 did not reflect an encroaching septic tank. They
further sought an adverse inference be drawn against the plaintiff because he failed
to call the individual who had maintained the septic tank since he purchased
the property. The defendants contend the location of the septic tank has been
an issue in these proceedings and this person would have been able to give
evidence that the plaintiff had moved or not moved the septic tank after he
took possession of the property.

[174]     The
principal issue in this case is whether the balance of convenience favours the
plaintiff to the extent the court should exercise its discretion to allow the
plaintiff to own or occupy land belonging to Ms. Bartlett with
compensation payable to her. The burden is on the plaintiff to show that the
balance of convenience is decidedly in his favour.

[175]     Considering
all of the above, I have concluded that, although the plaintiff did not
consciously decide to place the stairs and deck over the 5495 property line, he
was careless in his approach to the renovation of those parts of his house.
Common sense would have informed the plaintiff of the need for a building
permit and a survey. If he truly had no knowledge of the location of the
property line, his decision to expand the deck and build the stairs over the
defendant Bartlett’s property was reckless. I do not accept that he simply told
Mr. Lange to replicate the dimensions and location of the stairs and deck
and can be held faultless for where they were built. It would have been obvious
to him at a very early stage that the deck was significantly larger after Mr. Lange’s
work.

[176]     Regarding
the adverse inference argument, I do not accept that the plaintiff ought to
have known there would be an allegation that he moved the septic tank after he
took possession of 5469. Although the location of the septic tank has been an
issue in these proceedings, the allegation that the plaintiff moved the septic
tank after he purchased 5469 is not raised on the pleadings.

[177]     I conclude,
the defendant Bartlett would have been familiar with the location of the septic
tank in 2001 when she acted as realtor for the vendor. She would have been
privy to the details of purchasers of 5495 from the Fords and would have been
in a unique position to tender evidence concerning the location of the septic
tank when the plaintiff purchased the property.

[178]     Finally, I
do not accept that the evidence is established on the balance of probabilities
that the plaintiff moved the tank a second time. In my view, Ms. Ford’s
evidence on this point satisfies me that the tank was not moved after she
relocated it in 1990. Currently, the tank is very close to the eastern wall of
the house and it could not have been moved more than one to two feet in any
event. There is no evidence of, and no logic to, moving the tank such a short
distance after 1990. The defendant’s argument is mostly conjecture with little
evidence in support.

[179]     Although
the plaintiff was negligent when authorizing the work of increasing the deck’s
size and rebuilding the stairs, the reconstructed stairs did not extend the
encroachment onto 5495 more than existed when he purchased 5469. On the other
hand, the deck was increased in area but it simply covered the septic tank and
was no more of an encroachment than the septic tank at the time he purchased
5469. The plaintiff was negligent in failing to obtain a building permit for
the new stairs and new deck and failing to ascertain the location of the
property line for that work was begun but there was little, if any further
encroachment caused at that time. Although the plaintiff was negligent when he
constructed the deck and stairs, I do not consider his failure adversely
against him on the balance of convenience analysis.

[180]     In the
result, I am of the view that the plaintiff honestly believed the exterior improvements
to the east side of 5469 were within the boundaries of his lot. However, he was
careless in expanding the structures as he did. As well, His negligence in purchasing
5469 without ascertaining that the septic tank was within his property
boundaries does not defeat his right to a remedy in this case, I am not
satisfied that he was, or could have been aware of the encroachment when he
purchased 5469 or that he deliberately ignored the possibility of encroachment.
The tank was in its current location when he purchased the property. I assume
that neither Ms. Bartlett, when she acted for the Fords and the sale of the
property, or the plaintiff when he purchased 5469 from the intervening owner,
turned their mind to the prospect of the encroaching septic tank.

Nature of the Encroachment

[181]     The
plaintiff submits that the septic tank is vital to the running of the house at
5469. The tank has been located in the same place since 1990 or 1991 and is a
permanent improvement. Further, according to the report tendered by Brent
Dennis, an expert in onsite management of wastewater systems, the cost to
relocate the septic tank would be considerable and other feasible locations
would be suboptimal. He contends that any changes would involve extensive
planning and upgrading.

[182]     The
defendants argue that the Dennis report which the plaintiff relies on is
premised on the unfounded assumption that relocating the tank would be a “significant
change” and would necessitate significant upgrading. They point to the
regulations that do not suggest an upgrade would be necessary if the tank was
moved. They contend Mr. Dennis’s opinion should be contrasted with Mr. Muirhead’s
view that significant changes occur only when capacity of the septic system is
increased.

[183]     The
defendants also argued the estimated cost of $20,000-$28,000 to relocate and
upgrade the septic system is not significant in comparison to the litigation
costs incurred in this matter and in comparison to the impact of the septic
tank, including leaks, on the 5495 property.

[184]     They also
challenge Mr. Dennis’ opinion that the current location is optimal because
he did not properly consider relocating the tank to the lower level of the
property. They contend that the slope at the lower end of the property is no
less suitable for the tank than the slope at its current location.

[185]     The
defence contends that the nature of the septic tank is against the advantage of
a remedy in favour of the plaintiff to continue its current location. It is
unattractive and has had significant leaks. It is not a stationary structure
and the parts will potentially malfunction resulting in damage to 5495.

[186]     They
contend that the tank would be more suitably placed immediately adjacent to the
plaintiff’s house without any setback at the south end of their structure.

[187]     They
contend that the slope of the septic tank was an issue that would worry
subsequent owners of 5495 because of its history of leaking and should not be
imposed on any owner. They argued that the possibility of the tank leaking is a
factor against seeking a relaxation of the minimum setback and relocating the
tank closer to the house on 5469.

[188]     The
balance of convenience analysis considers the historical circumstances giving
rise to the encroachment and the consequences to the parties of retaining the status
quo
or directing a relocation of the tank. On this part of the test, I am
satisfied that the analysis favours the plaintiff with respect to the septic
tank. The plaintiff inherited the current septic tank and sewage disposal
system and the stairs when he purchased the property. I am also convinced that
the tank has been in its current location since Ms. Ford relocated it to
the current site and that the current location represents the optimum site for
the plaintiff’s septic system. Finally, although there has been some indication
of water damage and some leaks, those issues are efficiently resolved by the
plaintiff’s current inspection and maintenance system; there are no continuing
instances of leakage that will create an undue risk for 5495. Finally, the
slope of the tank is modest and there was no evidence to suggest that the
measure of that slope creates or increases any risk of spillage.

[189]     Access to
the terraces on 5495 is negatively affected by the location of the septic tank,
but I conclude this impact will be minimal. The defendant Bartlett has
listed 5495 for sale is not likely to resume living there. In my view, any
negative impact on access to the lower terraces can be measured by the
diminished value of 5495 caused by those access limitations. Thus, any
impediments caused by the necessary property line adjustments (by easement or
line change) can be quantified.

[190]      Further,
I am satisfied the encroachment of the tank is neither a visual or practical
impediment to the use and enjoyment of 5495. Even if the tank rested solely on
the plaintiff’s land, it would be visible from some parts of 5495. Likewise, if
the plaintiff is given a reasonable area around the tank on which to perform
service and maintenance. Any loss occasioned by keeping the septic tank in its
current location can be ameliorated with the making of a compensation order.

[191]     The septic
tank is a relatively permanent improvement that has been in place for more than
25 years. It is an essential feature to the residence on 5469. Although the
cost to relocate the tank would not be punishing, those costs would be
significant and the relocation of the tank suboptimal. In short, it would be a
costly and cumbersome exercise to move the tank. These considerations way
moderately in favour of the plaintiff.

[192]    
With respect to the deck and stairs, the plaintiff argued that their
location before they were cut off by the defendant Charlton was vital to the
running of the household at 5469.

[193]    
The defendants rely on Vanziffle v. Coulter, 2003 BCCA 350, where
the Court addressed the question of an encroaching shed as follows:

[4]     
   Weighing all of these, Lowry J. concluded in the case at bar that
the balance of convenience favoured the defendants, since the encroaching shed
did not represent an encroachment that was not significant; it was an
“unattractive structure” standing directly adjacent to the Coulters’ home: and
it impaired the value of their property. On the other hand, the defendants
reside on their property year round, while Ms. Vanziffle occupies it, the
Court said, only 30 days of the year; the shed did not represent a lasting
improvement; and the encroachment was “not something that is costly to remedy.”

[194]     In this
case, the defendants say that the deck was not a lasting improvement, in part because
the first landing and staircase were not constructed until three years after Ms. Ford
made her additions. Indeed, the defendants argue that access to the front of
the home can be achieved through the interior, and no evidence supports any
claim that the exterior stairway and deck are required for safety purposes.
Further, if they were, the defendants argue that the doorway on the east side
of the house could be moved to facilitate stairs coming from the upper side of
the house to the midpoint without interfering with the entry to the house on
the mid-deck level.

[195]     The
defendants also highlight the DNV has ordered the removal of the balance of the
deck and stairs and when the Ford’s owned the house, they used a step from the
door to grade (without steps) for three years. Finally, the defendants contend
that there is no cost associated with removing the encroachment because Mr. Charlton
has performed that service without any cost to Mr. Watson.

[196]      In my
view, the nature of the encroachment of the deck and staircase extend no more
than the stairs and the septic tank when the plaintiff purchased 5469. If
forced to live without a stairway connecting the upper and mid portions of the
house, the plaintiff’s use of the house would be significantly impacted. The cost
or effort at removing the stairs would be negligible because Mr. Charlton
has already accomplished that task. Nevertheless, the stairs and the deck were
fixed improvements and important in the plaintiff’s use of the house.

[197]     The deck
and stairs did not have an impact on the defendants’ property to a
significantly greater extent than existed before the plaintiff purchased 5469.
It did not impact the defendants’ use of 5469 until after they took up
occupancy and cleaned the plants and vegetation that obscured the tank and the
deck.

[198]     The
plaintiff did not provide convincing evidence that the expanded deck served a
purpose beyond fully covering the septic tank. It improved the plaintiff’s
access to the southern deck but also enhanced their recreational use as a way
to store bicycles. The real difficulty in this assessment is the fact that the
plaintiff requires an easement/new property line that will bring his property
into compliance with DNV regulations.

[199]     On
balance, I am satisfied that the stairs and deck, independent of the septic
tank, do not seriously impinge on the defendants’ use of 5495. Thus, I am
satisfied that these considerations weigh in favour of the plaintiff.

Size of the Encroachment

[200]     The size
of the encroachment is the next consideration. If the plaintiff is granted an
easement or an increase to the size of his property, the defendant Bartlett
will be deprived of the use or ownership of the corresponding portion of her
land.

[201]     Some of
the plans in evidence were scaled in feet and others in metres. I have taken
the conversion of one metre to equal 3.281 feet.

[202]     5495
covers an area of approximately 25,000 sq. feet. The defendants’ survey from
October 25, 2012, indicates that the deck encroached 3.7 feet on the north end
and 3.45 feet on the south end. The encroachment runs along 28.55 feet.

[203]     The
plaintiff contends that in order to comply with DNV setback by-laws, he would
require an additional 9.7 feet from the current property line to ensure the
location of the tank, deck and stairs are within the by-law requirements.

[204]     Should the
court grant an easement, the plaintiff relied on a sketch of the deck features
of 5469 by Mr. Bennett. Mr. Bennett outlined a proposed easement over
5495 that would be one metre wide and eight metres long. In this proposed
easement, the property line would be one metre east of the easement line. At
the north east corner of the septic tank, there would be 0.25 metres
between the tank and the proposed easement line. At the south end, there would
be 0.41 metres between the septic tank and the easement line.

[205]     Although Mr. Bennett
described this document as a proposed easement, the defendants contend it is
not accurate or sufficient to meet the plaintiff’s requirements. On the
proposed easement plan, the house is indicated as being 1.43 to1.5 metres from
the property line. Assuming that the required setback is 1.8 metres, the
plaintiff’s house, without a deck and stairs or septic tank, seems not to
comply with the by-law.

[206]     The
defendants argue that to allow the septic tank to remain in its current
location affects the defendant’s access to the lower terraces. The defendants’
evidence was that they could not move heavy machines down to landscape the
terraces with the septic tank in its current location.

[207]     They argue
that the proposed easement plan contemplated by Mr. Bennett allows for an eight
metre by one metre wide easement; this ignores the outstanding VCH order to
relocate the tank. The VCH would permit the tank to remain in its current
location if it was one metre away from an easement boundary. The defendants
contend that in that case, servicing the tank would still require access
through 5495.

[208]     Ms. Bartlett
contends, as addressed above, that if the tank remains on her property, she, or
future owners, might be liable for damage to downslope property owners from
leakage from the septic tank. The defendants contend that the plaintiff does
not propose terms for an easement that would account for such risks.

[209]     They
suggest the balance of convenience is against the plaintiff’s contention that
the size of the required easement or property transfer would have minimal
impact on 5495.

[210]     In order
to accommodate the encroaching septic tank and an additional one metre setback
required by VCH, the plaintiff would require between 1.59 and 1.75 metres east
of the current property line. He contends that to accommodate the pre-existing
stairs and deck, he needs to acquire an area of 9.7 feet multiplied by 40.55
feet, given both the actual length of the space necessary to accommodate in the
deck and stairs and DNV setback side yard required to accommodate the structure.
This results in a total of 393.335 sq. feet, or 1.6% of the defendant
Bartlett’s land.

[211]     In my
view, an easement or redrawing of the property line resulting in 9.7 feet of
the defendant’s lands becoming the plaintiff’s lands is significant. If the
plaintiff was allowed to maintain the septic tank but not rebuild the stairs or
deck into the defendants’ property, he would only require a space that would
accommodate the encroachment and the necessary one metre setback. Thus, an
easement that is 4.39 metres long and one metre wide would be sufficient to
allow for continued use of the septic tank based on Mr. Bennett’s sketch. The
total area of this easement is, according to the plaintiffs,
106.64 sq. feet. In that space, there would be a one metre buffer
around the tank to facilitate servicing and repair without requiring the
technician to enter onto 5495.

Conclusion

[212]     The
plaintiff’s desire to rebuild his deck and stairway to facilitate access to the
lower part of his house must be balanced against the defendants’ right to
maintain her possession and use of the area at the western boundary of her property.
In my view awarding an easement or altering the property line to the extent of
the encroachment of the septic tank in addition to the required setback favours
the plaintiff. I will grant the order to require the defendant to transfer
sufficient land to the plaintiff to accommodate the existing septic tank.

[213]     Counsel
advised that the area of land necessary to accommodate the stairway and septic
tank would require moving the plaintiff’s east lot line 9.7 feet to the east.
The north and south dimension of this area would be 40.55 feet. I have taken
into account the defendants’ needs to access the southern part of the property
and the proximity of the pathway to the septic tank. However, on examination of
all of the photographs of the area, I am satisfied that the defendants can
maintain access to the southern portion of the land. Compensation will
ameliorate any loss in the sale price or restriction in access to the
defendant’s terraces that may result from this change in boundary lines. It
would seem reasonable that such compensation will take into account any costs
that might be incurred in relocating the access route from Ms. Bartlett’s
house to the terraces.

[214]     To the
extent that the plaintiff will be permitted to retain the septic tank in its
current location, he will also be able to reconstruct the deck over the tank at
substantially the same dimensions that existed before Mr. Charlton cut off
the encroachment.

[215]     The more
difficult question is whether the balance of convenience warrants a grant of
sufficient land to allow for the reconstruction of the steps.

[216]     On
balance, the stairs from the upper part to the mid-level deck would not occupy
a significant portion of usable land that is part of 5495. I do not accept that
the stairway is a crucial feature of the plaintiff’s house but it is an
important means to access the lower level and represents a safety feature. The
nature and size of the stairway encroachment does not significantly impact 5495
in the same manner caused by the location of the septic tank. It did not appear
to me that the reconstruction of the stairway will affect the defendant’s
access to the terraces. Overall, the balance of convenience favours the
readjustment of the property line to accommodate the stairway and septic tank. In
reaching this conclusion, the court recognizes that its discretion should be
restrained and not exercised lightly to allow only the honestly mistaken person
to retain the land of another. In my view, that is what has occurred in this
case and, I am satisfied that the balance of convenience favours granting a
portion of the land sufficient to keep and maintain the stairs and septic tank
at their current location.

Compensation

[217]     The
evidence of the value available at trial to measure the compensation payable by
the plaintiff is wholly inadequate. There was no appraisal evidence nor any
indication about the impact of a change in property line on the value of 5495.

[218]     The only
suggestions as to value from which to base compensation are the defendants’ most
recent purchase offers for the property. 2014 BC Assessment Aurhority
valuations were put in evidence, and although its assessment of the gross value
of the land is objective, it cannot be relied on for many reasons. It is not
proper opinion evidence, it was dated at the time of trial, and it cannot
generally be relied upon as evidence of the current fair market value.

[219]     The
property to be transferred to the plaintiff is 395.36 sq. feet. The most recent
purchase offer at $1,050,000, minus the improvements, put the value of the
25,000 sq. feet of land at $786,000. Using a linear approach to the
value of the land to be granted (no other was argued), the plaintiff’s payment would
be calculated at $31.40 per sq. foot for a total payment of $12,430.

[220]     I am not
satisfied that the defendants would be fairly compensated using that model. I
take notice that the current real estate environment appears to have resulted
in rapid and dramatic increases in property values in the Lower Mainland of
British Columbia since 2014. In my view, the plaintiff should pay the greater
of the total fair market value of the land transferred to the plaintiff and the
diminution in fair market value of 5495 resulting from the loss on land, as
established by an appraiser, of the land to be taken from the defendants. That
value should fairly compensate Ms. Bartlett for her loss.

[221]     As such, I
direct that each party obtain an evaluation of the impact of the market value
of the defendant’s land, as described above that will likely occur from this
order from a qualified real estate appraiser. If their opinions as to value are
within 10% of each other, then the amount to be paid by the plaintiff will be
the average of two amounts. If the difference is greater, the parties will have
liberty to make further submissions on the determination of market value for
the purposes of establishing the plaintiff’s obligation.

Trespass

[222]     The plaintiff
contends that when Mr. Charlton took a chainsaw and other tools and
seriously damaged the stairs and deck connected to the plaintiff’s house he
trespassed onto 5469. Those dismantled structures were fixtures to the
plaintiff’s property and were owned by him. Mr. Charlton not only damaged
the stairway and deck, he left in place the risk of further damage or injury
from his work.

[223]     After
finishing the demolition work, Mr. Charlton put the debris onto 5469
underneath the remaining portion of the deck.

Analysis

[224]     The
parties agree on the nature of trespass as defined in Glashutter v. Bell,
2001 BCSC 1581 at para. 26. The cause of action arises where one enters
onto land in the possession of another without lawful justification. In this
case, neither the plaintiff or defendant need prove actual damage to the
property.

[225]     Mr. Charlton
argued there is no evidence or authority to support a finding that the act of
removing portions of the plaintiff’s deck constituted a trespass. He contends
that the only evidence of trespass is that he may have crossed the property
line in the process of removing the encroaching portions of Mr. Watson’s
deck or placing restrictions on access to the septic tank.

[226]     Notwithstanding
his argument that he took meticulous care not to damage any of the plaintiff’s
property, it is clear that he cut through the steps rising from the middle to
upper portion of the house and threw debris underneath the deck. Clearly Mr. Charlton
did not consider that Ms. Bartlett owned the wood when he cut in the deck
and steps; in any case his act of throwing the debris under the plaintiff’s
deck would have been an act of nuisance or trespass if Ms. Bartlett had
been the owner of that wood.

[227]     On the facts,
I am satisfied that Mr. Charlton did venture on to the plaintiff’s land. I
am satisfied on the balance of probabilities that the footprints observed by
the plaintiff for the house of Mr. Charlton were evidence that he entered
onto the plaintiff’s property in order to facilitate the destruction of the
plaintiff’s stairway and deck. Mr. Charlton’s admission to moving things
into the storage area after he had removed the door; that he had propped up the
floor of the deck on top of the septic tank; and that he walked on the
plaintiff’s side of the property line to accomplish his objective satisfy me
that Mr. Watson has proved Mr. Charlton trespassed on his land.

[228]     Mr. Charlton
then contends that any trespass he committed was purely incidental to Ms. Bartlett’s
invocation of her right to a self-help remedy.

[229]    
The defendant relied on: Anderson v. Skender, [1994] 1 W.W.R.
186; 84 B.C.L.R. (2d) 135 (B.C.C.A.), leave to appeal ref’d [1993] S.C.C.A. No. 383,
for the principle that common-law recognizes self-help remedies. However, while
Anderson allows for such remedies with respect to overhanging trees, it does
not state a neighbour is entitled to engage in self-help that causes
irreparable damage to the property of the offending owner. The court declined
to rule on the latter point; they did not adopt the trial judge’s statement of
the legal principle but did not declare him to be in error on that point. . Indeed,
in Anderson Mr. Justice Taylor says:

15            The law
of nuisance is clear that an owner of land is entitled to cut branches or roots
of a neighbour’s trees which extend over the property line:  Lemmon v.
Webb
, [1894] 3 Ch. 1 (C.A.); Butler v. Standard Telephone and Cables
Ltd.
, [1940] 1 K.B. 399; McCombe v. Read, [1955] 2 Q.B. 429; Davey
v. Harrow Corporation
, [1958] 1 Q.B. 60 (C.A.); Morgan v. Khyatt,
[1964] 1 W.L.R. 478 (P.C.). 

16     
      Mr. Justice McKenzie was of the view that this
right of self-help does not extend to a cutting of stems, but we were referred
to no authority on this point. The case of Loverock v. Webb (1921), 30
B.C.R. 327 (C.A.), does not support that view. As I have said, we need not
decide whether the right of self-help extends to a cutting likely to prove
fatal to a border tree where, with the application of proper arboricultural
technique, the tree could have been saved. The point is an important one, and I
mention it again, because if the law were such that a landholder is entitled to
destroy a neighbour’s border trees at will by assaulting any wood or root
projecting over the line, many such trees could be killed with impunity by
neighbours seeking to improve their light or view, or for any other reason to
be rid of them, and much of the remaining border screening in residential areas
might in this way be destroyed.

[230]    
He continues: 

18        Since the Skenders did
not restrict their assault on the trees to that which could be sanctioned on
any view of the law of nuisance–because they went over the property line in
severing two–their liability in trespass is undeniable. It is only in respect
of the third tree that they did not trespass.

[231]     The
defendants also cited Graham v. Golden Gate Developments Inc., 2013 BCSC
1890, for the proposition that s. 36 of the Act does not restrict
the remedy of a property owner suffering an encroachment to those set out in
the Act itself. They suggest that this case and Anderson support
the right of one neighbour to dismantle an encroachment caused by his
neighbour. This decision commented on, but did not decide the issue. In that
case, the question was rendered moot because the plaintiff abandoned his claim
to ownership of the encroaching fence. The trial judge rejected the plaintiff’s
assertion that he would have removed the fence if he had known it was
encroaching.

[232]    
In my view, the defendants’ submissions on self-help
remedies do not appear supported by Anderson, except in the limited
circumstances where a party takes it upon themselves to cut overhanging tree
branches.

[233]    
Absent a contrary view expressed since Anderson, I conclude that
McKenzie J.’s comment in Anderson v. Skender, [1992] 1 W.W.R. 709,
61 B.C.L.R. (2d) 292 (S.C.), concerning damage to a tree owned in part by the
offending land owner apply in the circumstances of this case. He says:

I hold that this passage
expresses the applicable law in British Columbia. Cutting overhanging boughs is
quite a different thing from severing one of two trunks and damaging fifty
percent of the root system. One has to look at it, as it were, from the tree’s
point of view. It is an assault on the general health of the whole tree,
affecting as it does the energy creating foliage and the energy storing roots. If
the assault is carried far enough it can be fatal to the tree.

[234]     Further, I
am satisfied that such “self-help” remedies do not permit the aggrieved
property owner to destroy the whole of the thing that encroaches at least
without prior notice or warning to the party whose property encroaches, in the
absence of any urgency, or in the absence of any risk of harm by the
encroaching structure. Likewise, the act required to remove the encroachment
should be proportionate, and, in but for exceptional circumstances should be
accomplished without the destruction of the property itself. Removal is not the
same as destruction. In my view, this antisocial behaviour was not rational or
supported in law.

[235]     For the benefit of the parties, there is a helpful discussion about
self-help remedies
in Allen M. Linden and Bruce Feldthusen, Canadian
Tort Law
, 10th ed. (Toronto: LexisNexis, 2015) at 639-40:

Abatement, a “self-help” remedy, is available to an
individual victim of nuisance where speed is required to end the offending
conduct. It is permitted in situations of emergency only and has been discouraged
by the courts for obvious reasons

Abatement is not confined to cases where the offending
condition can be removed from the land of the party aggrieved (such as
encroaching trees branches or roots), but also justifies entry upon the land of
another and the use of reasonable force to accomplish the purpose. Since it is
looked upon by the courts as a privilege, it must be taken not to inflict
unnecessary damage, and the least detrimental of possible alternative methods
of abating must be adopted
.

It has been suggested that an abatement cannot be justified
unless a mandatory injunction would have issued. Thus, the privilege will
not lie where the damage caused by abating is wholly disproportionate to the
harm threatened
. Sometimes, however, abatement is permissible where there
would be no remedy in damages, such as in a case of a threat of imminent
danger, where no harm has yet occurred.

Notice to the offender is not necessarily required prior to
invoking the remedy, although it is certainly advisable. None may be necessary
where there is no need to enter upon someone else’s land, where there is an
emergency, and probably where the land belongs to the original creator of the
nuisance. However, notice is required where the nuisance was created, not by
the present occupier, but by a predecessor in title
, where the nuisance
arose from an omission, and where the abatement would necessitate the
demolition of an inhabited house
.

[Citations omitted and emphasis
added.]

[236]    
There is also some question whether there is a right
to remove trespassing objects without resort to other remedies offered by the
law: Lewis N. Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012).

[237]     These
principles concerning self-help cases were not addressed in argument and I will
not make this decision on those points.

[238]     Nonetheless,
this Court will not countenance the use of a self-help remedy in the circumstances
of this case, as to do so would approve the destruction of important features
of the plaintiff’s house without warning or need.

[239]     In my view,
the statutory remedy of s. 36 of the Act exists for the benefit of
both parties to this proceeding. It was open to Ms. Bartlett to make
application to court to remove the encroachment on her property. Conversely,
the plaintiff was entitled to apply for an alteration in the property line or
an easement. Until late 2012, neither party knew that the plaintiff’s property
encroached on the defendants’ property and there was no urgency on the
defendants’ part to eliminate the encroachment. The plaintiff had taken time to
consider his position and before his response was heard, the defendants acted
unilaterally. If the defendants had given warning of their intentions, the
plaintiff would most likely have responded with an early application under the Act.
This is the preferred option in a civil society.

[240]     Unfortunately,
the defendant Charlton took permanent and unilateral action without warning only
weeks after showing or informing the plaintiff of the survey in late December.

[241]    
Thus, I am satisfied that Mr. Charlton trespassed onto the
plaintiff’s property and caused damage to the plaintiff’s property, albeit
intending to remove that portion of the plaintiff’s structure encroaching onto Ms. Bartlett’s
property. He did not have lawful authority to enter onto the plaintiff’s land
or to damage the encroaching structures in the manner he did.

Damages

General Damages

[242]    
The plaintiff argues that the defendants caused
significant damage. He contends that his costs amount to $29,077, including
obtaining surveys ($10,178); performing repairs ($125); deck reconstruction ($8,499);
professional reports and consultation ($9,720), ROWP services ($550) and DNV
expenses ($55). He contends that if the defendants had not destroyed the steps
and removed part of the deck, he would not be faced with the expenses outlined
above.

[243]     The
defendants contend that his trespass was incidental to the process of removing
the encroachments and did not result in any significant damage to the
plaintiff’s property. Mr. Charlton claims to have been meticulous in his
work and states he moved the supports necessary to protect the deck from
collapsing. He also contends that he left portions of the stairs and deck
encroaching on 5495, presumably as insurance against an allegation that he
trespassed.

[244]     He denies
causing significant damage to the plaintiff’s septic tank, although he acknowledged
striking it with the hammer.

[245]     The defendants
thus contend that the plaintiff has not shown any actual damage as a result of
his trespass and that nominal damages would be sufficient to address the
plaintiff’s claim, citing Skrypnyk v. Crispin, 2010 BCSC 140 at para. 18.

[246]     In Skrypnyk,
the defendant unintentionally caused some minor damage to the plaintiff’s
property during a moment of carelessness in constructing a house. There, the
plaintiff’s recovered their special damages and a nominal one dollar in general
damages, reasoning as follows:

[11]     
     Halsbury’s Laws of England, 4th ed., Vol. 45(2)
(London: Butterworths, 1999) at 343, para. 526, addresses the law on
damages for trespass to land as follows:

526.   Damages. In a
claim of trespass, if the claimant proves the trespass he is entitled to
recover nominal damages, even if he has not suffered any actual loss. If the
trespass has caused the claimant actual damage, he is entitled to receive such
an amount as will compensate him for his loss. Where the defendant has made use
of the claimant’s land, the claimant is entitled to receive by way of damages
such a sum as should reasonably be paid for that use. … where the defendant
cynically disregards the rights of the claimant in the land with the object of
making a gain by his unlawful conduct, exemplary damages may be awarded. If the
trespass is accompanied by aggravating circumstances which do not allow an
award of exemplary damages, the general damages may be increased.

…

[16]     
     The quotation from Halsbury’s above provides a
logical approach to the assessment of damages in cases of trespass moving from
nominal damages to compensation for actual damage or actual use, to exemplary
damages and increased general damages arising from aggravating circumstances
not captured by exemplary damages.

[247]     Skrypnyk
is not comparable to this case. Here, the defendant trespassed onto the
plaintiff’s property for the purpose of damaging a fixture to his home,
claiming a colour of right because the structures rested on Ms. Bartlett’s
property.

[248]     In the
context of actions in trespass, compensatory damages serve to compensate the
injured party for the remedial work a reasonable person would have incurred to
address the loss and to compensate fairly for the loss of use and enjoyment of
the land to the extent that the remedial work did not fully replace the loss: see
Kates v. Hall (1991), 53 B.C.L.R. (2d) 322 at 330-32 (C.A.).

[249]    
Reasonableness considers the diminution in value of the property, as
well as the reasonable repairs required. The courts will then balance the
actual benefits to the plaintiff of meticulous reinstatement against the extra
cost to the defendant over and above any damages based on the diminution in
value of the land.

[250]     The court
will also consider the use to which the injured party has and will put the
property. It is relevant that the deck and stairs appeared to be regularly
used. The stairs and deck were encroaching on the defendant Bartlett’s property
and the trespass was incidental to Mr. Charlton’s actions, but significant
damage was inflicted on the improvements. The damage was to property owned by
the plaintiff and, he is entitled to something more than nominal damages in all
of the circumstances. I will award the plaintiff $9,000 as damages for that
trespass.

[251]     The
plaintiff claimed for recovery of other expenses including surveys, repair and
reconstruction estimates, professional reports, ROWP services, and other
incidental costs. In my view those claims relating to surveys, estimates and
record searches will be dealt with as costs in the litigation. The other costs
for repairs are not recoverable for the reasons concerning punitive damages
given below.

Aggravated and Punitive Damages

[252]     The plaintiff
seeks aggravated and punitive damages because Mr. Charlton’s actions were
harsh, vindictive, reprehensible and malicious. He argues that the defendants
were or should have been aware of the legal resources available to deal with an
alleged encroachment but took matters into their own hands and dismantled the
plaintiff’s improvements. He contends that an order of punitive damages will
address his right to retribution and to deter and denounce actions such as
those Mr. Charlton took. The plaintiff contends that the defendants’
actions fall into that category of behaviours described in Witten v. Pilot
Insurance Co
., 2002 SCC 18 at para. 29; Boucher v. Wallmart,
2014 ONCA 419 at para. 60. The punitive damages ordered must then be
sufficient to ensure those who would violate the property rights of others will
be deterred: Lee v. Hersh, 1993 CanlII 387 (B.C.S.C.)

[253]     The
plaintiff relied on Kachanoski v. Grace, 2002 BCCA 615, in which the
court upheld a punitive damage award in circumstances where the defendant
trespassed on the land of his neighbour and cut down 21 trees. In that case,
punitive damages were set at $3,000. He suggests that the defendant Charlton
had removed his deck and stairs in order to secure an increase in the property
value of 5495.

[254]     He also argues
aggravated damages should be awarded to compensate for the unsafe state created
by Mr. Charlton when he dismantled the deck and stairs. He claims the
defendant’s actions caused his family stress and emotional upset and were
otherwise malicious, reprehensible and outrageous.

[255]     The
defendant contends that his incidental trespass during the dismantling of the
stairs and deck does not amount to conduct that “offends the court’s sense of
decency”. He said that in performing the demolition of the stairs and work on
the deck he had no desire to damage the plaintiff’s personal property and
meticulously minimized his trespass.

[256]     The
defendant contends that the cases of Kachanoski and Taylor are
not parallel in any sense with the circumstances of this case. In Kachanoski,
the defendant removed a large number of trees from the plaintiff’s property; in
this case Mr. Charlton only removed the improvements to the extent they
were on 5495.

[257]     The
defendants also argue that Ms. Turner’s emotional reaction was not
consistent with her behaviour of confronting the defendants at their home after
the incident. In any event, Ms. Turner is not a party to this litigation
and cannot be awarded damages for any complaints arising from the defendant’s
conduct.

[258]     Concerning
the plaintiff’s punitive damage claim, in my view, Mr. Charlton’s actions
in unilaterally dismantling the plaintiff’s stairs and cutting back his deck
without prior notice or warning falls into the category of behaviours described
in Witten as “malicious, oppressive and high-handed”. His conduct was
antisocial and would have merited an award of punitive damages if the claim was
based on his actions before and subsequent to the renovation.

[259]     The
plaintiff has made the claim that punitive damages should be assessed because
of the defendant’s trespass on 5469. In my view, the trespass was clear and
part of Mr. Charlton’s misguided view that he was entitled to destroy the
plaintiff’s steps and damage the plaintiff’s deck because of the encroachment.
However, the connection between the trespass proved the defendant Charlton’s
behaviour is not a sufficient basis to award punitive damages. If the claim had
been advanced on a different basis, punitive damages would have been in order. Mr. Charlton’s
trespass was merely incidental to the damages he caused which most likely
occurred independent of the trespass. I am thus not satisfied that on the
balance of probabilities the plaintiff has proven a right to punitive damages
in light of the incidental nature of the trespass as part of Mr. Charlton’s
overall disregard for civil behaviour.

[260]     Mr. Watson’s
claim for distress and emotional upset arising from the destruction of the
deck, the stairs and damage to the septic tank and the unfortunate confrontations
with Mr. Charlton were not convincing or persuasive. I reject his claim
for aggravated damages.

The Injunction

[261]     The
plaintiff claimed an injunction based on perceived fears of possible erratic or
retributory actions of the defendant Charlton. The defendant does not believe
the injunction is necessary but does not unoppose continuing the current order.
The plaintiff will have it on the same terms as the temporary injunction
granted earlier in these proceedings except, if necessary to address issues
concerning the septic tank.

Counterclaim

[262]     As
addressed above, the defendant Bartlett pleads trespass, nuisance and an action
pursuant to Rylands v. Fletcher. These claims are based on the
plaintiff’s continuing encroachment and the defendants’ allegation that the
septic tank has leaked onto the Bartlett property and their displeasure in
seeing the tank from their property.

[263]     There was
one leak in August 2013 and a second in October 2014. Mr. Muirhead’s dye
test confirmed this leakage. The plaintiff admits that the leaks came from the
tank.

[264]     I accept that
some leakage occurred from the plaintiff’s septic tank which migrated to 5495.
Although the plaintiff argued that the septic tank pipes may have leaked as a
result of the defendant Charlton throwing debris underneath the deck, I am not
satisfied on balance that he was the cause of the leakage.

[265]     There is
no evidence that the defendants have incurred the costs associated with the
tank leakage.

[266]     Regarding
the nuisance of the tank itself, before the defendants purchased 5495 the area between
the homes was covered in heavy foliage and 5496 was not visible. When the deck
fully covered the septic tank, it could not be seen from the defendants’ house.
It did not become a factor in their disquiet over the encroachment until the
underbrush and deck were removed. Further, the septic tank is only slightly
over the property line; it would be visible from the defendant’s house
regardless of whether it was on the Bartlett or Watson property.

[267]     However,
and notwithstanding the minimal nature of the impact of the encroachment on the
defendant’s view and history of tank leaks, the defendants have been affected
by the encroachment. In my view it is appropriate that the plaintiff pay to the
defendant Bartlett damages in the sum of $2,000 as compensation for the
encroachment of the tank, deck and stairs and the migration of the septic tank
liquid onto her property.

Costs

[268]     The parties
will have liberty to speak to the question of costs.

“The
Honourable Mr. Justice Armstrong”