Construction crane leaves Vancouver neighbours in fear: lawsuit

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A lawsuit filed in B.C. Supreme Court is raising the question of who owns the airspace over a building and when crossing into that space is trespassing.

David Beckow and Susannah Kellet have filed a lawsuit against StreetSide Developments, the developer of a six-storey condo project called Bailey next to their property in Vancouver’s Riley Park neighbourhood, after they failed to reach a “crane swing agreement” with the developer over when the crane could be left positioned over their adjoining property.

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“The crane has been repeatedly left in a position where it swings or is suspended for several consecutive hours” about 15 metres over their property, “posing a safety risk, causing considerable anxiety and interfering with the plaintiffs’ use and enjoyment of their home,” the lawsuit alleges.

A 2020 decision in a different case by the B.C. Supreme Court found a crane that enters the airspace of another property is trespassing and the movement of a crane over a neighbour’s in that case “gave rise to a risk of irreparable harm,” according to Fasken law firm’s commentary on the case on its website.

“The balance of convenience favoured granting an injunction against the owner who disregarded the hours it was licensed to have a construction crane pass through a neighbour’s airspace,” it said on its website.

In the 2020 case, the developer argued the restrictions were costing it extra money, but the decision stated: “The courts will not forgive a trespass to a neighbouring property’s airspace merely on the grounds that it’s convenient or saves costs.”

In the latest lawsuit, Beckow and Kellett said they repeatedly tried to contact StreetSide to discuss their safety concerns and requested in early May that the crane not be left over their property when not in use, and they proposed a crane swing agreement.

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In mid-May, StreetSide provided a draft agreement and the couple returned it the next day with revisions it “could only agree to a reciprocal easement or a fee payment for a one-way licence agreement,” according to the lawsuit.

A few days later StreetSide acknowledged it was encroaching on their property and “would continue to do so,” it said.

A week after that, the couple said it was apparent that an agreement couldn’t be reached and StreetSide would continue to operate the crane in a “dangerous manner causing nuisance and committing a trespass of the airspace above the lands.”

“The operation of the crane is not a minor temporary thing,” it said.

StreetSide has “acted in total disregard and blatant violation” of their property rights, it said, warning if the crane harmed or damaged anyone or anything, the developer would be liable for damages.

The suit seeks declaration of the trespass, an order preventing the developer from committing a nuisance, and damages for trespass and nuisance, and punitive damages.

They have “a right to enjoyment of their land without unreasonable interference by the conduct of another,” the claim said.

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The allegations have not been proven in court.

Messages left requesting comment were not returned by deadline.

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