Clearing The Air Around Air Space Rights

A recent B.C. case has addressed the legal issues surrounding tower cranes and their infringement upon neighboring land. If followed, the case may significantly redefine the discussions between developers and adjacent owners over airspace rights.

The law in Canada is that a property owner owns only so much of the air space that can be reasonably occupied or used in connection with the land below. Practically speaking that means a landowner has no remedy at law for the occasional use of the airspace over the landowner's property by planes, drones, or helicopters using the airspace fleetingly and far above the property. However, with respect to the interference caused by overhanging tower cranes, and in particular the swinging of crane booms through adjacent landowner's airspace, there have traditionally been two legal remedies for impacted landowners – an action for trespass and an action for nuisance.