AVIATION NOISE LAW
Sutherland v. Attorney General of Canada
Cite as: 2001 BCSC 1024


SUPREME COURT OF BRITISH COLUMBIA

WILFRED GARY SUTHERLAND AND OTHERS, Plaintiffs
AND
THE ATTORNEY GENERAL OF CANADA AND THE VANCOUVER INTERNATIONAL AIRPORT AUTHORITY, Defendants

Docket C971485

REASONS FOR JUDGMENT
OF THE
HONOURABLE MR. JUSTICE HOLMES

July 12, 2001


Counsel for the Plaintiffs:

Darrell W. Roberts, Q.C. and
John R. Shewfelt

Counsel for Vancouver International Airport Authority:

Allan P. Seckel and
Andrew D. Borrell

Counsel for the Attorney General of Canada:

George C. Carruthers and
Glenn Rosefeld

Date and Place of Trial:

August 28 - Sept. 1,
September 4 - 8,
September 11 - 15,
September 18 - 22,
September 25, 26,
October 2 - 6,
October 10 - 13,
October 16 - 20, and
October 23 - 27, 2000
Vancouver, B.C.

OPENING DESCRIPTION:

[1] Three property owners claim damages for nuisance including diminution of the value of their land which is alleged to arise from the operation of a new runway ["North" or "Third" runway] at the Vancouver International Airport ["YVR"] which opened November 4, 1996. The airport is owned by the federal government whose interests are represented in this action by the defendant Attorney General of Canada [the "Crown"]. The defendant Vancouver International Airport Authority ["Authority"] operates the airport under lease from the federal government granted by the Minister of Transport.

[2] The plaintiffs in this proceeding are resident landowners in the Tait Subdivision, which is within the Bridgeport area of Richmond. Their properties are located almost directly under the center line of the flight path mandated for use by aircraft landing on the north runway. The property of Mr. & Mrs. Livingstone is located near the southeast corner of the subdivision, Mrs. Page's property is more central, and the property of Mr. & Mrs. Jones is near the western boundary of the subdivision and is closest to the north runway.

[3] The claim of nuisance is grounded on allegations that the aeronautical activity of arriving and departing aircraft on the north runway creates "excessive, deafening and disturbing noise and vibrations" which has caused each of them "substantial and unreasonable interference with residential use and enjoyment" of their property.

[4] Particulars of the alleged nuisance are expressed in paragraph 16 of the statement of claim as:

- interference with normal conversations inside and outside the home;

- interference with the use of telephones, radio and television;

- interference with daily tasks;

- interference with and reduction in the quality of rest and sleep;

- creation or aggravation of hypertension;

- interference with the reasonable and comfortable use of gardens, patios, yards and recreational property;

- interference in the normal use and enjoyment of community amenities in the affected areas;

- creation of fear and apprehension; and

- expulsion of noxious fumes in the vicinity of residential homes.

[5] The plaintiffs' claim in paragraph 17 of the statement of claim that, as a result, their properties have been rendered significantly less desirable and their market values reduced.

[6] The defendants deny the nuisance and raise as two main alternative pleas: any nuisance is public and no action in private nuisance is sustainable; and, any nuisance created is authorized by statute. The defendants also raise issues as to contributory fault on the part of the plaintiffs whom they allege have failed to appropriately mitigate their damages.

[7] The addition of a third runway at YVR was a matter that had been under consideration for many years. In 1976 additional runway capacity was considered essential if the airport was to meet expected future increases in air traffic. An Environmental Assessment and Review Panel ["EARP"] was first struck in 1976 to study and report upon both the environmental and socio-economic impact of an additional runway, alternative methods that might be employed to reduce or eliminate adverse effects, and compensation for persons affected. EARP was suspended in 1978. It was reactivated in December 1981 and again suspended in 1983. It was reactivated a second time in 1989 and made its final report to the Ministers of Transport and Environment in September of 1991.

[8] The panel held public hearings, received briefs, and amassed an impressive array of information, evidence, and reports touching on all aspects of the issue. It considered the option of satellite airports or diversion of air traffic from the YVR to alternate airports. In particular, Boundary Bay, Abbotsford and Pitt Meadows received detailed attention.

[9] In its final report, the panel recommended constructing a third parallel runway at the Vancouver airport. Importantly, it recommended that persons who would be adversely impacted by noise if the runway were built be identified and compensated. The plaintiffs certainly are amongst those the panel contemplated would be adversely affected by noise. It was estimated that the cost of its compensation recommendation would approximate $43 million.

[10] EARP's mandate was only to formulate recommendations; it had no power or authority to see to their implementation.

[11] The Ministry of Transport accepted most of the recommendations of EARP. It did not, however, accept the recommendation to identify and compensate those adversely affected by noise. It chose instead to address the problem of noise in surrounding areas by requiring certain noise abatement procedures, including limiting traffic landing on the runway and placing a daily landing curfew from 10:00 p.m. to 7:00 a.m.

[12] The commencement of lawsuits was an understandable reaction to the government's decision not to negotiate compensation for those directly affected by noise attributed to the operation of aircraft on the third runway. A class action on behalf of residential owners in the Bridgeport area was commenced. Mr. Justice Smith dismissed the plaintiffs' application for certification as a class action on November 14, 1997. He found that whether a nuisance exists or existed is "quintessentially individualistic and are not suitable for trial as common issues"; other issues, including the issue of damages were "intrinsically individualistic and would inevitably reduce to discrete adjudication's for each plaintiff".

[13] Counsel met with Mr. Justice Low as a trial conference judge to consider how the plaintiffs, now approximately 300 strong, might best advance their claims. Proceeding to trial on selected issues as opposed to the complete trial of selected plaintiffs on a "test case" basis was considered. Ultimately, it was decided that the actions of the present three plaintiffs would proceed as a form of "test case" that could serve to resolve issues of defences raised that are common to all potential plaintiffs and perhaps afford some assistance in principle regarding issues that are not in common but "intrinsically individualistic."

[14] All plaintiffs not party to this action retain their right to pursue their actions separately.

NUISANCE: GENERAL PRINCIPLES

[15] Nuisance may be either a private nuisance or a public nuisance. Linden, Canadian Tort Law, 6th ed. (Toronto: Butterworths, 1997) at p. 523, defines the former as "an unreasonable interference with the use and enjoyment of land by its occupier" and the later as "an unreasonable interference with ... the use and enjoyment of a public right to use and enjoy public rights of way."

[16] Individuals are entitled to bring private actions in public nuisance only where they have sustained some special or particular damage beyond that suffered by the rest of the public. Failing that special damage, the action may only be commenced by the Attorney General: Linden, supra, at 525-30.

[17] The plaintiffs' claims are for private nuisance or alternatively public nuisance with special damages. They allege the enjoyment of their property has been interfered with by the operation of aircraft using the north runway facility of the defendant Authority which is on land owned by the defendant Crown.

[18] A concise outline of the general principles of the tort of nuisance was given by McIntyre J.A. in Royal Anne Hotel Co. Ltd. v. Ashcroft, [1979] 2 W.W.R. 462 at 465-6 (B.C.C.A.), after a review of several of the leading texts and learned articles:

As has been said in Street on Torts, at p. 212: "The essence of the tort of nuisance is interference with the enjoyment of land." That interference need not be accompanied by negligence. In nuisance one is concerned with the invasion of the interest in the land; in negligence once must consider the nature of the conduct complained of. Nuisances result frequently from intentional acts undertaken for lawful purposes. The most carefully designed industrial plant operated with the greatest care may well be or cause a nuisance, if, or example effluent, smoke, fumes or noise invade the right of enjoyment of neighbouring land owners to an unreasonable degree: see Manchester v. Farnworth, [1930] A.C. 171 (H.L.) and Walker v. McKinnon Indust. Ltd., [1949] O.R. 549, as examples.

[19] In Attorney General of British Columbia et al v. Haney Speedways Ltd. (1963), 39 D.L.R. (2nd) 48 at 52 (B.C.S.C.), a nuisance action specifically concerned with noise, the General Statements of Principle found in Halsbury's Laws of England, vol.28, 3d ed. were adopted and applied:

[175] General principles. Apart from any limit to the enjoyment of his property which may have been acquired against him by contract, grant, or prescription, every person is entitled, as against his neighbour, to the comfortable and healthful enjoyment of the premises owned or occupied by him whether for pleasure or business. In deciding whether in any particular case this right has been invaded and a nuisance thereby caused, it is necessary to determine whether the act complained of is an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions obtaining among the English people. It is also necessary to take into account the circumstances and character of the locality in which the complainant is living, and any similar annoyances which exist or previously existed there.

176. Noise and vibration. The making or causing to be made of such a noise or vibration as materially interferes with the ordinary comfort of the neighbouring inhabitants, when judged by the standard previously stated, is an actionable nuisance, and one for which an injunction will be granted, and it is no excuse to affirm that the place where it is made is situate in a noisy neighbourhood if the nuisance complained of is a material addition to the noise already existing, or to say that the best known means have been taken to prevent or reduce the noise complained of, or that the cause of the nuisance is the exercise of a trade in a reasonable and proper manner and in a reasonable place....

The question of nuisance by noise (assuming the absence of malice) is one of degree, and depends upon the circumstances of the case.

[20] In Royal Anne Hotel, supra, at 466, McIntyre J.A. found that the test for the tort of nuisance was "has the defendant's use of his land interfered with the use and enjoyment of the plaintiff's land and is that interference unreasonable?" The test is easier to apply where there is actual physical damage to the lands in question than where there is no physical injury to land but "offence by reason of smells, noise, vibration or other intangible causes" is alleged.

[21] Guidance was given at p. 467 as to what constitutes an unreasonable invasion of an interest in land:

All circumstances must, of course, be considered in answering this question. What may be reasonable at one time or place may be completely unreasonable at another. It is certainly not every smell, whiff of smoke, sound of machinery or music which will entitle the indignant plaintiff to recover. It is impossible to lay down precise and detailed standards but the invasion must be substantial and serious and of such a nature that it is clear according to the accepted concepts of the day that it should be an actionable wrong. It has been said (see McLaren, "Nuisance in Canada") that Canadian judges have adopted the words of Knight Bruce V.C. in Walter v. Selfe (1851), 4 De G. & Sm. 315, 64 E.R. 849 at 852, affirmed on other grounds 19 L.T.O.s. 308 (L.C.), to the effect that actionability will result from an interference with:

"...the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober ... notions."

These words were approved by Middleton J.A. in the Ontario High Court in Appleby v. Erie Tobacco Co. (1910), 22 O.L.R. 533 at 535-36.

In reaching a conclusion, the court must consider the nature of the act complained of and the nature of the injury suffered. Consideration must also be given to the character of the neighbourhood where the nuisance is alleged, the frequency of the occurrence of the nuisance, its duration and many other factors which could be of significance in special circumstances. While an owner of land in a quiet residential district may well expect to be protected from the operation of a boiler factory on his neighbour's land, he may not be entitled to expect to prevent the boilermaker from pursuing his lawful calling when he seeks to put his residence in an industrial area next to the factory. The conflicting interests must be weighed and considered against all the circumstances. The social utility of the conduct complained of must be weighed against the significance of the injury caused and the value of the interest sought to be protected.

[22] What is to be resolved here is whether the plaintiffs have suffered a substantial interference which affects the use or enjoyment of their property, and if so, if that interference is unreasonable in light of all the surrounding circumstances.

[23] The severity of the interference must therefore be viewed with regard to its nature, duration and effect. Not any interference with property will give rise to a finding of nuisance. The interference must be "substantial and serious and of such a nature that it is clear according to accepted concepts of the day that it should be an actionable wrong": Royal Anne Hotel Co., supra, at 467.

[24] The plaintiffs' subjective complaints must be viewed in the context of the objective standard of the average reasonable area resident. This objectivity guards against those with abnormal sensitivity or unreasonable expectations: Linden, supra, p. 538; Mandrake Management Consultants Ltd. v. Toronto Transit Commission (1993), 102 D.L.R. (4th) 12 at 22-3 (Ont. C.A.).

[25] In Halsey v. Esso Petroleum Co. Ltd., [1961] 2 All E.R. 145 at 151-2 (Q.B.D.) that standard was explored:

It is the standard of the ordinary man, and the ordinary man, who may well like peace and quiet, will not complain for instance of the noise of traffic if he chooses to live on a main street in an urban centre, nor of the reasonable noises of industry, if he chooses to live along side a factory.

[26] To assess the reasonableness of the defendants use of their land consideration is to be given the character of the neighbourhood and the utility of the impugned conduct: Royal Anne Hotel, supra, p. 467-8; Mandrake Management Consultants Ltd., supra, at 18-9; Tock v. St. Johns Metropolitan Area Board, [1989] 2 S.C.R. 1181 at 1191.

[27] Nuisance is to be determined within context, and what might be a nuisance in one locale cannot be assumed a nuisance in another: Halsey, supra, at 151; St. Helen's Smelting Co. v. Tipping (1865), 11 L.R.H.L. Cas. 642 at 650]

[28] Utility of an impugned activity alone is not a defence to actionable nuisance but it is a relevant surrounding circumstance which factors into assessment of whether an alleged interference is an unreasonable one. This factor was specifically noted in respect of nuisance alleged against a public transportation facility in Mandrake Management Consultants Ltd., supra, at 19:

while private rights cannot be trampled upon in the name of the public good, where an essential public service is involved the factor of the utility of the defendant's conduct must not be disregarded. Indeed, I think it must be given substantial weight.

See also St. Pierre v. Canada (Min. Of Transportation and Communications), [1987] 1 S.C.R. 906 at 916.

EVIDENCE:

[29] Noise is unwanted or unwelcomed sound. The noise at issue here is the sound of overhead aircraft which is a combination of combustion and mechanical engine noise, together with the noise generated by the dynamic of wind resistance to the aircraft structure. It is intermittent in occurrence. The frequency, intensity, and duration of the objectionable noise occurrences are basic factors relevant to a consideration of whether a nuisance is shown.

[30] The reaction to sound is subjective. One person's music is noise to another.

SOUND MEASUREMENT AND NOISE METRICS:

[31] Sound is a pressure transmitted in the atmosphere from a source which can be perceived at the eardrum. The perception of sound is subjective but scientific standards have been developed to assist in providing some objectivity or standardization. The standards for measurement of sound are complex and not readily understood because they are based on logarithmic scale rather than usual linear scales of measurement.

[32] A great volume of evidence concerning recorded noise data was presented in evidence during the trial. The Authority maintains a number of noise monitoring towers ("NMT's) on Sea Island, Richmond, and in the South Vancouver area for the purpose of tracking and recording the noise from aircraft approaching and departing YVR. It is a sophisticated system that can be correlated with detailed flight information to produce computer printouts showing date, time, aircraft identification and recorded noise levels.

[33] Recorded noise data can be arithmetically processed to formats and standards which provide an ability for differing types of objective comparative analysis.

[34] The basic unit of measurement of sound is the decibel ("dB") which is a pressure measurement. A decibel is a logarithmic measure equal to ten times the logarithm of the ratio of the sound pressure of interest divided by a reference sound pressure.

[35] The A-weighted decibel is the commonly used sound measure that more closely approximates subjective judgment on loudness by a de-emphasis of both low and high frequency sounds.

[36] "Maximum Sound Pressure Level" ("Lmax") is the maximum sound pressure recorded during a sound event.

[37] "Sound Exposure Level" or "Single Event Level" ("SEL") is a function of the duration and intensity of sound over a short time period. It is the compression of the acoustic energy of a noise event into a standard time period. It is a useful measure of the sound from the pass of a single aircraft.

[38] "Equivalent Sound Level" ("Leq") is a continuous steady level of sound over a given period of time which equals the acoustic energy of a number of SELs inclusive of background noise. It is the average measured noise level at a given location and for comparative purposes is usually measured over a day, week, month or year.

[39] "L90" is a measure of the noise level exceeded 90% of the time during a measurement interval. It is a measurement that gives an indication of background noise at a location.

[40] "Day-Night Noise Level" ("Ldn") is an average of Leq's for each hour of a 24-hour period that contains a penalty weighting to compensate for the increased annoyance of noise which occurs at night.

[41] "Noise Exposure Forecast" ("NEF") is a summation of noise in a 24-hour period weighted for its annoyance level rather than loudness.

[42] The noise metrics derived, processed and constructed from collected raw sound recording data have a useful function in noise comparison between different areas and to predict the general effect of changes to the mix of sound-producing activity, but lose significant relevance in application to specific locations at specific times.

[43] The human perception of sound has been found not to be proportionate to increases of either sound energy or sound pressure levels. Generally a tenfold increase in sound energy (a 10 dB increase in sound level pressure) is perceived as only a doubling, or twofold increase, in loudness; therefore, a 100 times increase in sound energy (20 dB increase of sound pressure) equates to a fourfold increase, and progressively in like fashion.

COURT VIEW:

[44] The Court conducted views of the plaintiffs' properties during the course of the trial. The property of each of the plaintiffs was visited and sound measurements were recorded on those visits both inside their homes and outside on their property.

[45] In addition, views were held and noise recordings taken at Oldin Park in Richmond, which is on the path of the south (main) airport runway; at Burkville on Sea Island, a small residential enclave next to the south runway and physically bordering the airport; and at the airport control tower to view the process of guiding and controlling arriving and departing aircraft.

[46] The views were helpful to an understanding of the evidence of the many witnesses. An ability to hear overhead aircraft and simultaneously see the recorded sound levels provided a better ability to understand and relate to the mass of evidence of sound recordings and noise metrics.

[47] It is of importance to note that the purpose of the views were to better understand and correlate the evidence and not for the purpose of subjectively determining if the noise events observed amounted at law to a nuisance.

EFFECT OF NOISE EVIDENCE:

[48] Royal Anne Hotel Co. Ltd., supra, at 467, mandates a consideration of "the frequency of the occurrence of the nuisance, its duration and many other factors which could be of significance in special circumstances."

[49] That translates in this action to the frequency, intensity and duration of aircraft noise events over the plaintiffs' properties.

[50] At present aircraft landings from the east over Bridgeport occur when the wind is from the west which generally correlates with good weather; mainly in spring, summer and fall. There is respite in Bridgeport when winds are from the east which correlates to days of inclement weather, rain, stormy and winter weather. On those days, arriving aircraft will land from the west on approach over the ocean.

[51] For practical purposes, it appears the north runway is used for landings from the east roughly one-half of the days of the year. Whether it will be used on any given day is as unpredictable as the weather.

[52] It is anticipated that, commencing in the summer of 2001, the third runway will also be used for aircraft takeoffs to the east over Bridgeport. This will have the effect of aircraft being overhead the plaintiffs' residences everyday. An important added factor is that generally the noise generated during an aircraft takeoff exceeds that of an equivalent aircraft when landing.

[53] The evidence provides statistics of the number of aircraft that overfly the plaintiffs' homes annually (Ex. 1, Tab 23). Some measure of the frequency and intensity of single aircraft noise events were reported by the defendants' sound engineer Clair Wakefield [Ex. 14] and in the data compiled by the defendant Authority [Ex. 1, Tabs 14-21].

[54] Long-term noise metrics are effective tools for the large picture of ongoing noise monitoring by the defendant Authority. They assist in historical comparison, regional comparisons, trends and future planning. I am of the view, however, that SEL data and SEL histograms provide the most relevant and useful tool for analysing the change in the noise environment in issue here at the plaintiffs' residential properties.

[55] A difficulty that can occur when using metrics was illustrated when it was observed that the Leq at NMT #5 for 1995, with no third runway operations, and 18,400 SELs was the same (62) as the 1998 Leq when there were 43,195 third runway movements and a total of 73,062 noise events. The best guess given by Mr. Haboly, an aeronautical noise analyst with YVR, for the "anomaly" was the possibility of nearby construction noise.

[56] Use of the third runway began slowly in late 1996 and grew rapidly thereafter. The third runway in 1999 was used for 47,826 landings and 2196 takeoffs, all of which would be overhead of the plaintiffs' homes in the Tait subdivision area in Bridgeport.

[57] There is no doubt a dramatic change occurred in the Bridgeport area starting in November 1996 and it has had a sustained and continued growth.

[58] The SEL data for various periods compiled in histograms found in Ex. 1, Tabs 3, 4, 5, 6, 7, and 8 serves to quantify how dramatic the change was after the third runway opened. The number of recorded SELs in the lower portion of the 75 to 100 dB range doubled and occurrences within the upper reaches of that range tripled and more.

[59] Measured Leq at NMT #11 (Bridgeport) in 1995 are suspect due to the "anomalous spike" that occurred in that year's statistic. The 1996 Leq includes both pre-opening aircraft operations to test and calibrate the instrument landing system [ILS], and the operation activity after the November 4, 1996 opening of the new runway. A computer modelled Ldn for Bridgeport was constructed showing 54 dB in 1994; 52.9 in 1995; and 61 dB for 1997 and 1999. [Haboly, Ex. 98, para. 16-17, and Tab 6]

[60] This analysis indicates a 7 to 8 dB rise attributable to aircraft operations on the third runway. Transport Canada's 1990 "Environmental Impact Statement" explained the significance of incremental changes in long-term cumulative noise:

It takes a doubling of the number of noise events to cause a 3 dB increase in cumulative noise. One nighttime event is weighted as though it were 10 daytime events in the Ldn metric and 16 daytime events in the NEF metric. In such systems a 3 dB change may represent a significant increase in noise exposure. The FAA uses a 1.5 Ldn threshold as a change in noise level which would trigger the need for a project to do a detailed noise study as part of the environmental approval process (Section 5.2.5.1. -- U.S.A. regulations). For the purpose of this assessment a 1.5 dB change in Ldn or NEF is used to define the difference between a negligible and a minor noise impact and a 3dB change in Ldn or NEF is used to define the difference between a minor and major impact. (underlining in original)

[61] On this standard a 7 to 8 dB change in the noise level of Bridgeport area residents would mean a change of 2.5 times what would be considered a "major noise impact".

[62] Mr. Wakefield testified that the Ministry of Transportation and Highways' policy indicated a threshold of 5 dB change in noise level was required to justify "the considerable expense associated with noise mitigation works": Revised Policy for Mitigating the Effects of Traffic Noise from Freeways and Expressways [Ex. 29, Tab 1, p.3]

[63] Although the province will not spend money unless a "significant" reduction in Leq can be achieved, circumstances may permit expenditures on mitigation where pre and post Leq's are not as high as 5 dB: Ex. 29 Tab 1, figure 2.1, Ministry of Transportation and Highways Noise Policy; see also Ex.'s 31 & 32.

[64] I do not consider highway noise is fairly comparable to aircraft generated noise in character or quality. Highway noise tends to be more constant background rumble, whereas aircraft noise tends to shorter bursts of higher pitched sound which is more harsh and intrusive to the human ear.

[65] Although relevant in a general consideration of surrounding circumstances, no standard adopted by a government or regulatory agency to trigger investigation or mitigation has been shown to be determinative of whether the noise of aircraft in issue here constitutes a nuisance at law.

[66] The conclusion of the EARP that the third runway would create noise interfering with the use and enjoyment of property and recommending compensation for that interference does not equate to proof of a nuisance at law, but it is also a circumstance for consideration.

[67] None of the scientific noise metrics evidence derived from the compilation and manipulation of recorded dB data from the NMTs, survey, nor scientific literature review can singularly achieve a status of objectivity that overrides the subjective evidence of noise and its effect by the plaintiffs, residents, and others familiar with the residential area of concern here. Both forms of evidence are appropriate in consideration of whether nuisance has been established.

[68] All the various forms of relevant evidence must be considered and weighed to determine if the aircraft noise in issue "is an inconvenience materially interfering with the ordinary physical comfort of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions" as outlined in Halsbury's Laws of England, supra, and cited with approval in Attorney-General of British Columbia et al v. Haney Speedways Ltd., supra, at 52; Royal Anne Hotel Co., supra, at 467.

EVIDENCE OF THE PARTIES:

HELEN PAGE

[69] Helen Page owns her home located at 2340 McLellan Road. It is in the original Tait subdivision in Bridgeport. Her property is large and may legally be subdivided to create another building lot.

[70] In 1945 the Tait subdivision was created from rural farmland. There were no trees, the roads were of mud, and from her home she could view the Fraser River to the north. The subdivision was comprised of 90, one-acre parcels and purchasers could not subdivide for 10 years.

[71] After the 10-year moratorium on subdivision expired many Tait subdivision owners did subdivide their properties. Trees and shrubs were planted and proliferated. Over the years much new "infill" housing was built and in this manner the subdivision assumed the more traditional and mature detail of modern single family residential subdivisions.

[72] Mrs. Page and her husband, a returning veteran, purchased a one-acre parcel under the provisions of the Veterans Land Act. Mrs. Page, twice widowed, lived on her property continuously since 1945 and raised a family of three.

[73] Mrs. Page's second husband died in 1985. In 1987 she subdivided, sold half of her original property and had a new architect-designed home built on the remaining property. The new house is set back significantly from McLellan Road, in part to reduce any traffic noise. It had custom features to provide her a comfortable and enjoyable home in retirement years. The home has 2 bedrooms, a living room, dining room, kitchen, solarium and patio, deck and large garden, and landscaped yard area.

[74] Mrs. Page acknowledged that over the years traffic increased on McLellan Road, and that there was heavy truck traffic on Shell Road, River Road and Bridgeport Road. Bridgeport Road became a busy east-west arterial road. Mrs. Page never experienced the use or enjoyment of her property adversely affected by noise from any of these sources.

[75] In the 1940s, there was a military airport on Sea Island; however, the residents of Tait subdivision had no problems with aircraft noise at that time.

[76] Prior to the activation of the north runway in 1996, Mrs. Page could hear the sound of aircraft approaching the south runway to the east for landing but these sounds were neither loud nor bothersome. The sound of aircraft departing the south runway to the east was louder but not of a frequency or intensity that ever caused concern.

[77] The opening of the north runway brought significant changes to Mrs. Page's property. Mrs. Page testified that at times more than 30 planes an hour passed overhead of her home to land on the north runway. In her evidence regarding the noise generated by planes accessing the north runway as they approach and fly over her home, she commented that it could be "unbearable", "very very noisy", and "irritating and frightening".

[78] Mrs. Page testified that from her house or yard, she could look to the east at night and see the lights of a long line of aircraft approaching toward her home on the landing path for the north runway. Flight frequency seemed busiest around noon and dinnertime.

[79] Mrs. Page testified that when exposed to the noise of the landing aircraft over her home she becomes irritated, frustrated and gets headaches. On many occasions she simply has to escape the noise and goes for a drive, to a mall, or to visit someone.

[80] Prior to the opening of the north runway, Mrs. Page enjoyed working in her garden regularly. The noise from aircraft overhead now causes her distress and mars the pleasure she previously derived from her garden. As a result, she has cut back significantly on the scope of her garden and gardening activity.

[81] Prior to 1996, Mrs. Page used her outdoor patio extensively. It was a quiet, pleasant place for her to sit and read, relax, talk on the phone, and to informally entertain company at lunch. She testified the noise of aircraft approaching for landing on the north runway has destroyed the peaceful ambience of the patio area and destroyed its utility as a place for relaxation and entertainment.

[82] She finds the noise of aircraft now constantly interrupts her ability to have conversation with guests on the patio. She cannot use her telephone there for the same reason. She finds the noise will even mask the sound of the phone ringing and she has missed several calls, causing friends and family concern.

[83] Mrs. Page is very proud that every July for the past 25 years she has hosted a family picnic on her patio, garden and lawn area. She does a lot of preparatory work for this annual gathering, which as many as 87 persons have attended. The many children of the family particularly look forward to this event. The noise from aircraft when the picnic falls on a day the north runway is in use has now seriously impaired the pleasure afforded by this happy occasion.

[84] The noise of aircraft is considerably attenuated within her house but can still on occasion interrupt speech, and interfere with the listening level of radio and television broadcasts requiring intermittent volume adjustments. Aircraft noise interrupts her concentration during activities like knitting and sewing.

[85] In order to further reduce the noise it is necessary to forgo fresh air ventilation and close doors and windows that would normally be left ajar. In essence, Mrs. Page retreats into and seals her house to escape the noise outside.

[86] Mrs. Page experienced the noise effects of the July 1999 temporary use of the north runway for takeoff to the east when the south runway was under repair. It was a very unpleasant period for her. She described the sound from aircraft takeoff over her home as "earth shattering". She said the noise was terrible and she couldn't stand it. Her house vibrated, hanging pictures went askew, and it felt like an earthquake.

[87] Mrs. Page denies that she was ever forewarned of the noise factor that aircraft using the planned north runway would create. She was one of many residents who had the impression that the flight path would be over the Fraser River and not their homes. Her belief was formed after attending a meeting around 1990 where airport representatives advised that planes using the proposed third runway would access it "over water" which was clarified to mean the Fraser River.

[88] This misconception on the part of Mrs. Page was apparently wide spread amongst Bridgeport residents. The evidence does not permit the origin of this error or misunderstanding to be traced. The western approach to the north runway being from the ocean may have created some of the confusion.

THE LIVINGSTONES

[89] Glen Livingstone is a 37-year-old firefighter who lives with his wife Lisa and their two children, Brett, aged 10, and Laura, aged 8, at 10740 Gilmore Crescent. The property is a quarter acre, wedge shaped, with the lot conforming to the curve of the road around the south end of property.

[90] It is at the southeast corner of the Tait subdivision. Shell Road, with some light industry and office buildings, is to the east, and Bridgeport Road lies to the south.

[91] The flight path followed by aircraft landing on the north runway passes slightly to the west of the property.

[92] The Livingstones purchased the property and 10-year-old house in 1987 for $105,000. This was about the time Mrs. Page was building her new home.

[93] The Livingstones were introduced to the area by the parents of a friend. It was a quiet residential neighbourhood with large lots and mature trees. There were a number of custom-built homes in the area, and the streets were of cul-de-sac design, making them safer for children. Mr. Livingstone appreciated the close access to three bridges that permitted him an easy commute to his work in Vancouver. Traffic within the neighbourhood was minimal. The Livingstones considered it a good area to live and to raise children.

[94] They took pride in the ownership of their home and set about cleaning up and improving the property. Mr. Livingstone remodelled and added to the house to create a pleasant family home. He estimates he has spent $50,000 to $60,000 in materials and hundreds of hours of his time in improvement work.

[95] The entire interior of the home was refurbished. The kitchen and bathroom were completely remodelled and modernized. A media centre room was created from the adjoining garage and a hot tub room with solarium was added. A computer room was built above the kitchen area with access by ladder stairs from a closet. The house was re-carpeted and re-roofed. A patio area, new shed and storage area were added. The interior and exterior of the house were painted.

[96] Mr. Livingstone has lived in Richmond his entire life and is accustomed to the aircraft sounds associated with the airport on Sea Island. They had never bothered him nor been an interference in his life. Prior to November of 1996, he said he had never paid attention to the sounds from aircraft using the south runway although they could be heard in the background if he listened.

[97] The Livingstones could hear the occasional sound of a heavy truck from Shell Road, but that had never been disturbing. They also heard the occasional sound of a train or a train whistle on the tracks to the east by Shell Road. Those noises were infrequent and never of concern.

[98] Mr. Livingstone described a dramatic change to the quiet and peaceful comfort of his home starting with opening of the north runway on November 4, 1996. He describes a constant and irritating noise from aircraft screaming overhead. He found the noise unnerving and sickening.

[99] Mr. Livingstone has become obsessed with what he views as the destruction of the quiet comfort of his home and neighbourhood by the aircraft traffic on the north runway.

[100] In his view the noise problem has been getting worse. Occasionally, the aircraft sound will cause walls to shimmer and vibrate, and the pulse of the aircraft engines will resonate through the walls, floors and window blinds of the house. The Livingstones can sometimes hear a "rumble" from the gyproc-covered wall at the head of their bed. The level of noise and vibration became intolerable during the July 1999 temporary use of the north runway when the south runway was out of service and aircraft were taking off to the east over Bridgeport. At that time, the deafening noise of night-time takeoffs would awaken him at night.

[101] Now Mr. Livingstone finds that, while playing lacrosse and soccer with his son Brett in their side yard area, the sound from overhead aircraft drowns out their conversation.

[102] Within the home the aircraft noise will interrupt discussions, television viewing and telephone conversations. He found it was "useless" to try and use the phone outside. The voices on television can be interrupted at times for periods lasting 20 to 25 seconds.

[103] He liked to keep the windows open about three inches to permit air circulation in the house and that now exacerbates the noise penetration.

[104] As a firefighter with the City of Vancouver Fire Department, Mr. Livingstone works split day and night shifts. He is not able to have an uninterrupted sleep in his home during the day when aircraft are flying overhead.

[105] Occasionally, when his inability to sleep becomes intolerable, he goes to his mother's home in Richmond. Ironically, his mother's home is located close to the end of the cross-wind runway at the airport. Mr. Livingstone reports that, despite the proximity of his mother's home to the cross-wind runway, it is not affected by aircraft noise.

[106] He also finds that, since November of 1996, he has been unable to sleep in the mornings until 10:00 or 11:00 a.m. as he had before. If the planes are flying overhead, he awakens with their 7:00 a.m. start. He testified that his children are also occasionally awakened by aircraft noise after going to bed at 8:00 or 8:30 p.m.

[107] Mr. Livingstone feels the noise problem impacts his work and that he now feels constantly tired, and as though he is never caught up.

[108] Mr. Livingstone has found he is now unable to maintain the necessary concentration to work on things at home, like the paperwork required of him as a lacrosse coach, when planes are flying overhead.

[109] Mr. Livingstone believes he has experienced anxiety attacks that awakened him at night. He attributes these attacks to the stress of overflying aircraft being constantly on his mind. He describes it as a "nightmare" constantly with him.

[110] He acknowledges that he has a fear that one of the large planes is going to crash and spread fuel over the area.

[111] Mr. Livingstone testified that on weekends he tries to just get in the car and get away somewhere. Mrs. Livingstone often would take the children away from the home during the day to escape the noise.

[112] Mr. Livingstone feels the serious effect of the noise problem on him has impacted upon his wife who tries to play the role of peacemaker and calm him down when he becomes upset.

[113] Mrs. Livingstone works part-time for two to three days per week, and on workdays is away from the home until 5:30 p.m. She confirmed how upsetting the noise problem created by the overflying aircraft has been to her husband. Personally, she describes the effect of the noise interference in their lives as a "disruptive annoyance" which makes her angry. She feels the need to stay calm for the sake of the children and she leaves it to her husband to do something about the problem.

[114] Their son, Brett, is ten years old and in grade 6 at nearby Tait Elementary School. He leaves for school at approximately 8:25 a.m., and school finishes at 3:00 p.m.

[115] Brett testified that he finds the aircraft noise at his school, both inside and out, is louder than at home. The aircraft noise can be heard in the classrooms. Noise-monitoring station #11 is located on the roof of his school.

[116] At home, the noise of larger aircraft directly overhead bothers Brett when he is doing homework. At times, he finds he had difficulty hearing his soft-spoken sister, and occasionally he must turn up the television volume to defeat the aircraft noise.

[117] Brett testified that he is getting used to the noise and it does not bother him as much as it once did. Occasionally, he is awakened by the noise at night, but not as often as in previous years. The overhead aircraft do not stop him from playing outside or doing the things he wants to do.

[118] The Livingstones have stopped trying to socialize outside on their patio and barbecue area. They no longer use the barbecue themselves. They much regret their inability to use these outdoor areas as they had previously used them to frequently entertain friends and relatives in the summer. The family in summer used to dine outside two to three nights a week.

[119] Mrs. Livingstone related her embarrassment and upset when people they were entertaining on the patio would make comments like "How can you live like this?"

[120] The Livingstones consulted a realtor about three or four months after November of 1996 but were so shocked at the listing price he suggested they were scared off because of the perceived large loss in value they felt they would suffer. They did, however, list the house in May of 2000 for $288,000, although at time of trial the realtor was suggesting the figure be lowered to a range of $225,000 to $235,000. The appraised value at the time of listing was only $215,000. The listing price was apparently based on what the Livingstones felt was the value of comparable properties in other parts of Richmond.

[121] There was some interest in response to advertising for the property but when people learned it was in the north Bridgeport area they would not follow up.

[122] I am of the view the Livingstones are sincere in their desire to move to escape aircraft noise and that they will likely do so if takeoff occurs from the north runway..

[123] When they purchased the property, Mr. Livingstone had heard some information that a third runway was planned. He said he called "the airport", inquired about a proposed new runway, and was told it "was off the books".

[124] Mr. Livingstone echoes the evidence of Mrs. Page about what residents were told by authorities prior to the opening of the north runway. He recalls attending a meeting at a hotel in Richmond sometime before 1996 where persons at the meeting were advised the third runway was just to alleviate traffic on the south runway and that access over Bridgeport would be over the Fraser River. He recalls in response to questioning at that meeting, an airport representative said that approaches and departures to the north runway "would be over water", "would be over the river".

THE JONES:

[125] Andrea Jones, a civil litigator, and her husband Robin Jones, a service representative for a large public sector union, have lived in different locations in Richmond for several years. During that time, they have both experienced aircraft noise but had never been bothered by it.

[126] Ms. and Mr. Jones currently live at 2480 No. 4 Road, in a house they purchased for $417,000 in 1994.

[127] The property had several attractive features. It had a good floor plan, a swimming pool and patio in the back, and was located on a dead-end street. The property was very private, as it was bounded on one side by a nature path and there were no houses directly across the street.

[128] The area was quiet and any occasional aircraft noise from the south runway was not disturbing in any sense. The Jones enjoyed their new home and particularly the extensive use they were able to make of the outdoor patio and swimming pool. The pool area was used for frequent large-scale entertaining of friends, associates and family.

[129] The opening of the third runway to traffic on November 4, 1996 began an immediate and upsetting change to the use and enjoyment of their home. The immediate effect was dramatic. Ms. Jones recalls receiving a call at the office from her distraught husband who said, "You won't believe what is happening". Ms. Jones also became very upset and disturbed when she realized the noise from the north runway operation was a permanent condition.

[130] The planes pass directly overhead and can be seen through skylights in the home. Their noise can be deafening. Some aircraft cause vibrations, which Mr. Jones describes as "rumbles off the walls".

[131] There is also an added component of visual disturbance at night. The Jones' family room has east facing windows, and the lights of aircraft approaching from the east on the flight path to land on the north runway penetrate the venetian blinds. The lights can be seen to the east for miles as the approaching aircraft are in line behind one another for landing a few minutes apart. The lights presage aircraft and the anticipated noise arriving. In that sense it lengthens the period of disturbance.

[132] Mr. Jones finds the noise interlude of an aircraft to be about 45 seconds. Every overhead aircraft is distracting, although the range of interference varies from deafening to requiring adjustment of volume controls.

[133] Mr. Jones testified at trial that the noise is overpowering, intrusive, and disruptive of normal functions of home life. It interferes with conversation, speaking on the telephone, listening to music or television, sleeping, and working.

[134] Prior to the opening of the north runway, Mr. Jones worked primarily from his home office, and Ms. Jones worked at home an average of one day a week and on weekends. Aircraft noise from the use of the third runway has interfered with all aspects of the work of both Mr. and Ms. Jones: their telephone conversations are interrupted, speakerphones cannot be used, dictation is overlaid and marred by the noise, and their concentration is disrupted. As a result, Mr. Jones has had to forego the convenience and flexibility of working from home and now must commute to his office.

[135] The Jones' sleeping patterns have changed because of noise from the use of the third runway. It is not possible for them to go to sleep before the 10:00 p.m. landing curfew nor sleep past the 7:00 a.m. flight commencement.

[136] The aircraft noise also interferes with Ms. Jones' ability to watch taped movies as a form of relaxation and prevents Mr. Jones from enjoying his collection of over 600 compact discs, except when listening through headphones.

[137] Ms. Jones has become upset, stressed, and agitated as a result of the effects of the third runway noise on her life.

[138] Mr. Jones is even more affected by the noise. He becomes very agitated, extremely upset, and simply cannot stay in the house. He has become short-tempered and more easily annoyed. He finds his home no longer a place of refuge that he looks forward to, and is now just a place that he has to go. He admits that many times when he was very upset he phoned the airport authorities to complain and that many times "he would just lose it."

[139] The Jones' quality time together has been significantly impacted by the noise problems at their home. They have literally abandoned their backyard swimming pool, patio and garden areas. Previously they entertained at large pool parties and barbecue dinners with up to 50 people. They used their pool a great deal, both for themselves and with guests.

[140] Their entertaining has now dwindled to occasional dinners with relatives. The backyard they were so proud of and that in nice weather they virtually used to live in, has not been used for three years. They cannot believe anyone would want to use it, as persons cannot hear one another because the noise of the low flying aircraft overhead is deafening.

[141] Their experience in July 1999 when the north runway was used for takeoff was even more horrendous. The noise was considerably louder and Mr. Jones could literally feel the planes taking off.

[142] Mr. and Ms. Jones have argued a great deal over the issue of selling the house and getting away. Mr. Jones said that he spends more time away from the house and avoids being at home if he can. He now usually stays out until after 10:00 p.m. when the aircraft have stopped flying before returning home.

[143] Mr. Jones said he was aware a new runway was being planned for the airport and he was aware there had been expropriations of property on Sea Island in the 1970s in anticipation of airport expansion. He said he had a belief, the origin of which he could not recall, that the approach for the new runway would be over the water.

[144] When considering the purchase of the property he said he had made inquiries of both the planning department in Richmond and of airport administration. His belief that aircraft approach to the new runway would be over water did not change as a result of anything learned in the inquiries.

[145] There is certainly an element to his upset in this matter caused by feeling that he was in some manner "misled" about runway expansion.

[146] Mr. Jones' tolerance for the noise of aircraft appears lower than others'. It has affected him more than it has his wife. He admits that it is a combination of the different phenomena from the overhead flights that fuel his rather intense reaction. There is a fear of the close proximity of the aircraft overhead. The shadows they cast and their lights at night bother him.

[147] The Jones do not appear to be persons normally hyper- sensitive to noise. They could hear aircraft noise in the distance, and at times some road noise from Bridgeport or No. 4 Road but it never bothered them and was never considered intrusive.

[148] There was a significant difference initially between Mr. and Ms. Jones as to what they should do about the aircraft noise problem. Ms. Jones did not wish to sell or move, and was adamant she did not want to lose any money on a sale. She was of the view matters would get better. They got worse.

[149] Mr. Jones was of the view from the inception of the north runway that he could not continue to live in the house with the noise problem. He wanted to sell as fast as possible regardless of incurring a loss.

[150] In the result, Ms. Jones' views in regard to sale prevailed and, although the property was listed, the listing prices were likely above a realistic market value. It appears the property was first listed in July 1997 and has been continuously on the market since. It was first listed for $409,000 and at the time of trial had been reduced to $339,000, with a current appraisal at $330,000. A further reduction in the listing price was to be considered on the next listing renewal.

[151] The property has been on the market a long time, but no offer to purchase has ever been received, and the number of persons viewing the property has dwindled. The listing prices have been continually reduced but seemingly with little effect. The Jones have not maintained the property to a high level, and its poor viewing qualities may also have impacted its saleability.

NOISE EVIDENCE:

[152] The plaintiffs' homes share the common feature of being almost directly under the center line of the landing approach to the north runway. Readings taken during views by the Court at the plaintiffs' properties indicate the noise exposure from landing aircraft is close to the SELs recorded at NMT # 11, the Bridgeport monitoring station. The noise elevates slightly from the Livingstone property to Mrs. Page's property, and is at its highest at the Jones' property. This is likely a function of the aircraft altitude being highest over the Livingstones' and lowest over the Jones', as approaching aircraft descend on a three degree slope.

[153] I found the evidence of other persons living within the Tait subdivision gave general credence to the tenor of the evidence of the plaintiffs that the aircraft noise substantially impacts the use and enjoyment of the outdoor portions of their property and, to a lesser extent, also effects persons inside their homes.

[154] The development of the properties, the usage of property amenities, the amount of time persons occupy the property, and even the location within the Tait subdivision gives rise to variation.

[155] The evidence of persons living outside the Tait subdivision in Bridgeport or adjacent areas indicates that the effects of the noise in issue may be quite different dependant upon height of the aircraft above and the distance from the flight path in comparison to the plaintiffs' properties.

[156] I found of particular assistance the evidence of Mr. Quinlan, a commercial pilot, who retired in 1996 from Canadian Airlines after 30 years service.

[157] Mr. Quinlan, whose wife is a stewardess, lives in the Tait subdivision roughly between Mrs. Page and the Jones' properties under the north runway flight path. Mr. Quinlan is a man well acquainted with aircraft noise.

[158] The Quinlans own two adjacent properties. The first is their home, the second a rental property purchased in 1988.

[159] Mr. Quinlan describes the aircraft noise outside his home as very loud, penetrating, horrendous, and intolerable. Inside his home the noise is less but it interferes with conversations and T.V. volume for seconds at a time.

[160] He has found the once peaceful ambience of the outdoor areas of his property have been totally destroyed by the aircraft noise. The noise has affected him to the point that he, like the other plaintiffs who have testified, will on occasion leave his property to get away from the noise.

[161] Mr. Quinlan from his experience in landing aircraft on the north runway estimates that landing aircraft overhead his property would be just above 700 feet in altitude.

INDOOR ATTENUATION:

[162] Attenuation of aircraft noise within the plaintiffs' homes varied significantly from levels reported by Mr. Wakefield in pre-trial tests and indoor measurements taken during Court views.

[163] Mr. Wakefield in pre-trial testing placed the indoor attenuation levels between 15 and 20 dB whereas testing during Court views indicated a higher range of attenuation of 27 to 30 dB.

[164] I accept the differences are likely caused by the measurements being taken at different points within the houses and that the Wakefield measurements were taken with some windows opened for ventilation.

[165] The plaintiffs cannot be expected to completely seal their homes to attenuate sound to the exclusion of permitting fresh air ventilation. They do not live in air conditioned houses.

[166] I conclude that indoor attenuated sound levels taking account of reasonable and realistic window openings and room configurations can interfere with speech, listening levels for radio, television or stereos, and cause interference with the concentration required in many tasks. Sleep patterns of occupants are also disrupted.

CHARACTER OF THE TAIT SUBDIVISION AREA:

[167] In deciding whether a nuisance exists "consideration must also be given to the character of the neighbourhood where the nuisance is alleged." [Royal Anne Hotel Co. Ltd., supra, at 467]

[168] Mordin J. summed it well in Walker v. Pioneer Construction (1967) Ltd. (1975), 8 O.R. (2d) 35 at 39 (H.C.J.):

The law makes it clear that the character of the locality in question is of importance in determining the standard of comfort which may reasonably be claimed by an occupier of land. "What would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey": Sturges v. Bridgman (1879), 11 Ch.D. 852 at p. 865.

[169] The Tait subdivision is a residential enclave within Bridgeport bounded by industrial and commercial use lands. There is some noisy truck and road traffic that uses three of the perimeter roads.

[170] I found little evidence of any significant noise generated from particular industrial or commercial activity nearby. The area traffic noise appears sporadic, and of a frequency, tonal quality and character not considered intrusive by residents. The Livingstone property received occasional noise from traffic on nearby Shell Road. It appears River Road perhaps had heavier truck usage but that did not appear to affect any of the plaintiffs' properties. I accept the evidence of all plaintiffs that they were never concerned with traffic noise and that it had never interfered with the enjoyment of their property.

AERONAUTICAL NOISE IN THE TAIT SUBDIVISION:

[171] Aeronautical noise in the Bridgeport area has existed for many years, as indeed it has generally in Richmond. The aeronautical noise levels varied dependant primarily on their proximity to the south, or main airport runway. The increasing use of the south runway and advent of noisier jet aircraft increased over time and the Tait subdivision shared in that incremental increase.

[172] The noise from operations on the south runway can still be heard in the Tait subdivision. The plaintiffs have never complained of it, and in spite of it, they considered the Tait subdivision to be an acceptably quiet residential area.

[173] The basis of the plaintiffs' allegation of nuisance is not that aircraft noise is being heard for the first time, rather it is that aircraft noise of unprecedented frequency and intensity was suddenly introduced to their neighbourhood. The objective data as recorded at NMT #11 indicates that the noise from aircraft landing on the north runway is generally two and a half times louder than noise from landings in the past on the south runway, and in some instances, landing noise levels of 95 to 97 dB occur, which is four times louder.

NOISIER RICHMOND NEIGHBOURHOODS:

[174] There are at least two Richmond neighbourhoods with more aircraft noise than now exists in the Tait subdivision. Burkeville is adjacent to the airport and south runway, and the Odlin Park area lies in the path of the south runway.

[175] The fact these areas are noisier is of little comfort to the plaintiffs. I would assume, given the length of the time the south runway has existed, that most residents who now live within close proximity of it were well aware of the noise factor of living under the path of a runway and the purchase price for their property reflected that reality. The noise levels were incremental in nature and not as sudden as has occurred here.

[176] Counsel for the plaintiff points out that the defendant Authority sought and obtained statutory rights of way on the Odlinwood residential subdivision development which is in an area underlying the south runway approach. That could be an indication of concern that there was a prima facie aircraft noise nuisance at some locations adjacent to the airport.

[177] I see little utility in evidence that several areas in Vancouver have average noise levels exceeding those experienced in the Tait subdivision. Some examples introduced into evidence by the defendant Authority were the Kitsilano Point area adjacent to the Burrard Bridge ramps, Knight Street south of 49th Ave which is the major truck route in the city, and at the Wedgewood Hotel in central downtown Vancouver.

[178] There is no doubt there are noisier neighbourhoods than the Tait subdivision in Richmond and Vancouver. These plaintiffs would never locate their residences in neighbourhoods that noisy. There is no evidence that noise levels changed so abruptly and dramatically in these other areas as occurred in the Tait subdivision.

[179] It is the change in noise levels to the neighbourhood that is in issue here. It is untenable to suggest that the neighbourhood has simply experienced some incremental increase in aircraft noise and because some aeronautical noise previously existed the increase should not be considered unreasonable.

[180] The issue here is whether the change in noise is material, not whether the increase of noise is of the same source. 340909 Ontario Ltd. v. Huron Steel Products (Windsor) Ltd. (1990), 73 O.R. (2d) 641 (H.C.J.) aff'd (1992), 9 O.R. (3d) 305 (C.A.)]. In Huron Steel, the Court relied upon the decision in Rushmer v. Polsue & Afieri Ltd., [1906] 1 Ch. 234 (C.A.); aff'd [1907] A.C. 121 (H.L.), in which Cozens-Hardy L.J. at p. 250 wrote:

A resident in such a neighbourhood must put up with a certain amount of noise. The standard of comfort differs according to the situation of the property and the class of people who inhabit it ....But whatever the standard of comfort in a particular district may be, I think the addition of a fresh noise caused by the defendant's works may be so substantial as to create a legal nuisance. It does not follow that because I live, say, in the manufacturing part of Sheffield I cannot complain if a steam-hammer is introduced next door, and so worked as to render sleep at night almost impossible, although previously to its introduction my house was a reasonably comfortable abode, having regard to the local standard; and it would be no answer to say that the steam-hammer is of the most modern approved pattern and is reasonably worked. In short ... it is no answer to say that the neighbourhood is noisy, and that the defendant's machinery is of first-class character. [underlining added]

[181] The noise of south runway traffic heard in the Tait subdivision differs in character to the noise of the overhead aircraft landing on the north runway. The sound is muted and fades with effect of wind, temperature and humidity. In general, neither south runway takeoffs or landings are as loud as north runway landings. Takeoff noise is generally greater than the noise of a landing aircraft. The south runway is used for landside takeoff (to the east) which coincides with inclement weather. This places most residents inside their homes rather than in their yards, and hence the indoor attenuation factor is of some help in reducing the noise interference.

WORSENING OF THE NUISANCE:

[182] The overhead aircraft noise in the Tait subdivision is almost certainly destined to worsen. The north runway will soon be utilized for departures as well as arrivals. That will create an increase in noise level. Over time the north runway will likely have a rough balance of departure and arrival operations. Aircraft operations will occur daily rather than present limited operations.

[183] The use of the north runway for takeoffs in July 1999 when the south runway was under repair is a harbinger of the future. The Ldn at NMT #11 during departures from the north runway in July 1999 was 67.4 compared to 62.5 in July 1998 for landings only. Measurements by Mr. Wakefield taken on two days in July 1999 (July 20 and 21) calculated a two-day Ldn at the Page residence of 69.5 and the Livingstone residence of 68.

[184] The number of aircraft movements at the airport will increase over the ensuing years. A ten year forecast used by the Authority for strategic planning estimates an annual increase of 2.3% in the ten years 1997 to 2007 [Ex. 6, Tab. 67, p. 66]

[185] There will be some balance in the overall noise levels because aircraft are being designed, and regulated to require, quieter operation. The number of noise events however will increase.

NOTICE DEFENCES:

[186] It is argued by the defendants that, at the times the plaintiffs acquired their properties, they were aware that the airport was likely to expand in the future, including by adding runways and in purchasing, they accepted any further detrimental effect of airport expansion when it in fact occurred.

[187] It is also implied the purchase price would have reflected and taken account of the foreseeable changes to occur. Conversely, if the plaintiffs were not aware they ought to have been because of publicity, zoning, and zoning regulations eventually registered against title.

[188] I find that this type of notice defence either in answer to the entirety of the claim or in mitigation by contribution is inappropriate.

[189] Fleming, The Law of Torts, 9th ed., (Toronto: Carswell, 1998) addresses the issue at p. 491-2:

"Coming to a nuisance". It seems to have been supposed at one time that a person who chose to acquire property with knowledge that it was exposed to a nuisance, was precluded from complaining of it on the ground of volenti non fit injuria or contributory negligence, but this view has long been exploded. In the absence of a prescriptive right, a purchaser or lessee is entitled to the reasonable use and enjoyment of his land to the same extent as any other occupier, since a defendant would otherwise be able, by his wrongful conduct, to diminish the value of neighbouring land without compensation.

[190] In Miller v. Jackson, [1977] 3 All E.R. 338 at 349 (C.A.) a like issue raised was answered:

it is no answer to a claim in nuisance for the defendant to show that the plaintiff brought the trouble on his own head by building or coming to live in a house so close to the defendant's premises that he would inevitably be affected by the defendant's activities, where no one had been affected previously.

[191] Logic dictates that a person creating a nuisance cannot claim as a defence that he gave notice of that intention. Not only is it not a defence, a quia timet action is often available to restrain a provable future nuisance. [Shuttleworth v. Vancouver General Hospital, [1927] 2 D.L.R. 573 (B.C.S.C.); B.C. Hydro v. Marathon Realty (1988), 30 C.L.R. 196 (B.C.S.C.)]

[192] On the evidence before me, I am unable to find that the plaintiffs or residents of the Tait subdivision received any form of notice that over 40,000 aircraft a year would be descending directly over their homes at low altitude and a high noise level. Indeed the evidence of the plaintiffs is that even upon close inquiry the answers they received led them to believe that the north runway approach paths would be over water and not over their homes.

NOISE SURVEYS:

[193] Social scientists have attempted to determine empirically the annoyance resulting from noise. Social surveys are undertaken in which respondents are questioned as to whether during a given time period they were "slightly", "moderately", "very", or "extremely" annoyed by aircraft noise. The higher reported levels of annoyance are considered of significance.

[194] The U.S. Federal Intraagency Committee on Noise ("FICON") amassed data from many studies and developed a graphed plot ["FICON curve"] to help predict the percentage of a residential population highly annoyed from values of long term, time-weighted average measure of noise exposure.

[195] The data from social surveys conducted under the guidance of Dr. Sandford Fiddel, an Experimental Psychologist, specializing in psychoacoustic research and aircraft noise consulting, before and after the opening of the north runway when applied to the FICON curve indicate that the complaints and noise annoyance expressed by Bridgeport residents grossly exceeded what was reasonably to be expected.

[196] The study preceding the opening of the north runway by Dr. Fiddel's firm BBN Technologies is Exhibit 1, Tab 28, and the 1998 post opening survey is Ex. 1, Tab 29. In addition Dr. Fiddel gave evidence in support of a comprehensive report containing his opinion on the noise exposure levels in Bridgeport, the effects of noise on people, and the policies of American Regulatory agencies on the compatibility of residential and airport land uses [Ex. 108].

[197] Dr. Lawrence Ward, a Professor of Psychology at the University of British Columbia, who authored a report titled "Psychological Effects of Aircraft Noise in the Bridgeport Area of Richmond B.C." [Exhibit 104] gave his opinion the unpredicted excessive response of Bridgeport residents to aircraft noise was likely accounted for by the inclusion of non-acoustical factors and an abnormal sensitivity to the noise source by area residents.

[198] The plaintiffs in proof of their claims of nuisance from aeronautical noise as a result of the operation of the north runway include factors that Dr. Ward considers non-acoustical. They include:

-Fear of danger from the noise source,

-Awareness of non-noise impacts of the source,

-General noise sensitivity,

-Belief that the noise source can control the noise.

[199] In the present circumstances factors including unpredictable frequency, fear of crashes, visual disturbances, vibration, proximity induced fear, and feelings of helplessness, although non-acoustical, are in my view constituent or closely related components of aircraft noise annoyance for purposes of considering whether a nuisance has been proven.

[200] I do accept however there has been a degree of non-acoustical based factors involved in the complaints of aircraft noise by the defendants not relevant to the nuisance claims. It appears many people are unhappy with their dealings with the defendants, believe they were misled as to what was going to occur, and are perhaps resentful of the non acceptance of the EARP recommendation that would have provided compensation without proof of nuisance or necessity of litigation.

[201] This litigation continues for Bridgeport residents as a non-acoustical factor in regard to noise complaints and as an annoyance factor.

[202] I do not accept however that there is reason to believe any of the three plaintiffs to this proceeding is deliberately exaggerating or advancing an unreasonable complaint. I accept, and have made allowance in weighing the evidence, the unusual degree of reaction by Mr. Jones and Mr. Livingstone for what I believe are non-accoustical factors contributing to or exacerbating their upset which are not appropriate to resolution in this action. Their claims for nuisance however do remain reasonably based on relevant aircraft noise related components.

THE UTILITY OF THE IMPUGNED CONDUCT:

[203] There is no doubt the airport is of immense utility to the public at large. It provides the necessary facility and complex infrastructure that allows airlines to provide air transportation for millions of regional, national, and international arriving and departing passengers. It also is the base of a large domestic and international air cargo business.

[204] The airport is more than a utility providing a needed service to a local community. It is a business, in competition with other westcoast airports, in an international market. As a business it seeks not only to fill existing demand but also to create new demands.

[205] The location of the airport on Sea Island makes it easily accessible to the Greater Vancouver population base and to the business community. The utility of the airport facility however has little direct benefit to the plaintiffs. They are not business operators who benefit from the airport proximity nor are they persons who derive a benefit from being close to air transport.

[206] The operation of the north runway which will substantially enhance the utility of the airport to the public at large is certainly a factor to be considered in the assessment of whether the interference it has caused certain neighbouring residents is unreasonable in all the circumstances.

[207] In Mandrake Management Consultants v. T.C.C., Galligan J.A. supra, page 24, observed:

...while private rights cannot be trampled upon in the name of the public good, where an essential public service is involved the factor of the utility of the defendant's conduct must not be disregarded. Indeed, I think it must be given substantial weight.

[208] In my view the nature of the burden imposed upon certain of the property owners underlying the north runway flight path far exceeds that reasonable degree of tolerance expected of residential property owners to facilitate airport expansion.

[209] In my view the rights of the three plaintiffs in this action have been trampled upon. I find the degree of interference here is beyond the level where it can reasonably be expected a few unfortunate residents bear a disproportionate burden to facilitate the greater public good. The burden of damages arising from interference with their private property rights must be more equally shared by all that benefit. In this instance it is a cost to the defendants who are responsible for the unreasonable interference their expanded operations created.

CONCLUSION ON CLAIM FOR NUISANCE:

[210] Following consideration and weighing of the many relevant factors, I conclude that the plaintiffs have succeeded in proof of their claim that the defendants have created a nuisance from aircraft noise that effects the use and enjoyment of their properties in the Tait subdivision.

[211] Certainly, each of the plaintiffs has suffered a substantial interference with the enjoyment of their land. I find in the context of all the relevant surrounding circumstances that interference is unreasonable.

[212] The plaintiffs have in common the substantial loss of amenity in respect of their outside patios, gardens, and grounds. All plaintiffs spent a good deal of time in the use and enjoyment of the outdoor amenities of their property. All enjoyed the recreational aspect of their properties. All plaintiffs entertained friends and family in outdoor settings. The effect of the frequency of flights, the noise levels and proximity of the noise source directly overhead has now effectively destroyed the pleasurable outdoor use of their property in good weather.

[213] I am satisfied the noise levels experienced when one is outside the plaintiffs' houses can interfere with speech. The frequency of flights make the interference more than nominal and has the effect upon reasonable persons of making them highly annoyed and frustrated that their normal conversation is so often interrupted.

[214] In my view it is deceptive and unhelpful to consider the noise of aircraft overhead that interferes with speech in an accumulative sense occupying, in sum, but a few minutes of each hour. One cannot isolate and collect the few seconds for which each passing aircraft produces noise at a level that causes interference and then control it so large uninterrupted segments of time can be preserved for uninterrupted speech.

[215] The most significant interference has been caused by the impact of aircraft noise occurring outside the plaintiffs' homes. The landings, however, have been occurring mainly at times corresponding to good weather. Therefore, almost the total time the plaintiffs have to enjoy the outside amenities of their property is lost to the nuisance.

[216] There is no question the nuisance sound is attenuated inside the plaintiffs' houses. The attenuation varies in degree because of physical factors like insulation, building materials, areas of glass, and any openings in the structure. What is of great importance is the use and function the plaintiffs make of their homes.

[217] Each of the plaintiffs here spend a significant amount of time in their homes. Mrs. Page is retired, at home both day and night. Mr. Livingstone, a fire fighter, is a shift worker who needs to sleep at home during the day several times a month.

[218] Mr. Jones spent a good deal of time working from his home. Ms. Jones, a lawyer, also spent significant time at home working.

[219] All plaintiffs engaged in activities at home requiring concentration with which the frequent and repetitive noise of aircraft interfered to a degree transcending annoyance. All plaintiffs, to varying degree, listened to music, radio, television or watched movies for relaxation. I accept that all plaintiffs experienced interference within their homes in respect of listening volume for radio, television, and stereo. Speakerphones could not be used. Aircraft noise interfered with sleep patterns.

STATUS OF NON-OWNERS IN THE SUIT:

[220] The two minor Livingstone children Brett, aged 10, and Laura, aged 8, were added as plaintiffs in this action. They are not owners of their home, and their claim is limited to non-pecuniary damages for the loss of enjoyment of the family home caused by the alleged nuisance.

[221] I have outlined the evidence given by Brett. Laura did not testify, but Mr. and Mrs. Livingstone in the their evidence told of some effects upon her, including her inability to sleep, or being awakened, because of aircraft noise, which could occur until the 10:00 p.m. landing curfew.

[222] The issue is whether in law the children have a right of occupation sufficient to support an action for damages for any unreasonable and substantial interference with their lawful use or enjoyment of the family residence.

[223] The law is unclear on this issue. The issue has not been directly addressed in this province but the appellate courts of two Canadian provinces have held that non-owner family members could sue in nuisance. Motherwell v. Motherwell, [1976] 6 W.W.R. 550 (Alta. C.A.) and Devon Lumber Co. v. MacNeill (1987), 45 D.L.R. (4th) 300 (N.B.C.A.). More recently the House of Lords came to the contrary conclusion in Hunter v. Canary Wharf Ltd., [1997] 2 W.L.R. 684.

[224] In Motherwell and Devon Lumber there was diminution of the value of the property involved. Motherwell concerned a claim in nuisance for breach of privacy occasioned by the defendant's harassment in making telephone calls. Clement J.A. reviewed at p.567 the English authorities, and quoted from Sir Gorell Barnes' reasons in Malone v. Laskey, [1907] 2 K.B. 141 at 151 that maintained "a person who has no interest in property, no right of occupation in the proper sense of the term, [cannot] maintain an action for nuisance" Clement J.A. cited at p.568 Foster v. Warblington Urban Council, [1906] 1 K.B. 648 as authority "that a claim in nuisance is not necessarily restricted to an occupier who has some demonstrable and enforceable right of occupation." He inferred in Motherwell that while the brother of the defendant was the owner of the premises being constantly telephoned, his wife and children and sister-in-law also occupied the residence and could claim in nuisance.

[225] He held at p. 569 that, as the wife had a right to live in the matrimonial home with her husband and children, it would be "absurd to say her occupancy of the matrimonial home is insufficient to found an action in nuisance."

[226] In Devon, supra, the plaintiffs Mr. and Mrs. McNeill were joint owners of their property where they lived with their children. Stratton C.J., for the majority, followed Motherwell and, at p.302, adopted the remedy suggested by Professor Fleming in his text The Law of Torts, 6th edition (1983) at p. 393-4:

A licensee without possession, such as a lodger, cannot maintain an action for nuisance. This disqualification has been applied even against a tenant's wife and family residing with him, thereby denying them protection against many forms of discomfort and, in case of personal injury; the benefits of potentially stricter liability for nuisance compared with negligence. This senseless discrimination can be avoided by recognizing that they have a "right of occupation" just like the official tenant.

Stratton C.J. for the court wrote at p.303:

I would respectfully agree with Professor Fleming that it would be "senseless discrimination" against the MacNeill children to deprive them of a right of action in nuisance. I would accordingly conclude and hold that even though the children lacked any legal title to the property they had a right of occupation sufficient to support an action on their behalf for damages for any unreasonable and substantial interference with their lawful use of enjoyment of the family residence.

[227] In Hunter v. Canary Wharf Ltd., supra, the House of Lords considered in depth the issue of whether a person without an interest in the land could sue in private nuisance in respect of acts affecting the enjoyment of rights over the land. The case concerned an action in nuisance relating to interference with television signals and from the generation of dust from road construction. The plaintiffs were not restricted to householders with the exclusive right to possess the places they lived, whether as freeholders or tenants, or even licensees. They included the person with whom the householders shared their homes such as spouses, children and relatives.

[228] At trial, Harvey J. held that such a wide class did not have the right to sue in private nuisance. Pill L.J. for the Court of Appeal held that:

A substantial link between the person enjoying the use and the land on which he or she is enjoying it is essential but, in my judgement, occupation of property, as a home, does confer upon the occupant a capacity to sue in private nuisance.

The House of Lords (Lord Cooke of Thorndon dissenting) found Motherwell was based upon a misconception of the Court of Appeal decision in Foster v. Warblington Urban District Council and was explained as an exception based upon de facto exclusive occupation of the land although there was defect or question as to the legal title. The dissent of Rice J.A. was preferred to the decision of the majority in Foster Warblington Urban District Council.

[229] Lord Goff of Chieveley noted the need for an identifiable person with whom arrangements concerning a temporary or permanent resolution of nuisance issues between neighbours could be negotiated. He noted at p.696: "If anybody who lived in the relevant property as a home had the right to sue, sensible arrangements such as these might in some cases no longer be practicable."

[230] He also noted at p. 696 the substantial difficulty created by "departure from established law on this subject, such as adopted by the Court of Appeal in the present case, focus the problem of defining the category of persons who would have the right to sue."

[231] At p. 696, Lord Goff warned that to allow expansion of the category of potential claimants in an action for nuisance:

would transform it from a tort to the land into a tort to the person, in which damages could be recovered in respect of something less serious than personal injury and the criteria for liability were founded not upon negligence but upon striking a balance between the interests of neighbours in the use of their land. This is, in my opinion, not an acceptable way in which to develop the law.

[232] Lord Hoffman observed at p. 709 that the tort of nuisance, whether based on direct physical injury to the land or for personal discomfort, was directed at remedying the diminished utility of the land, not the discomfort itself:

Once it is understood that nuisances "productive of sensible personal discomfort..." do not constitute a separate tort of causing discomfort to people but are merely a part of a single tort of causing injury to land, the rule that the plaintiff must have an interest in land falls into place as logical and, indeed, inevitable.

He noted at p.709 that:

inconvenience, annoyance or even illness suffered by persons upon land as a result of smells or dust are not damage consequential upon the injury to the land. It is rather the other way about: the injury to the amenity of the land consists in the fact that the persons upon it are liable to suffer inconvenience, annoyance or illness.

It follows that damages for nuisance recoverable by the possessor or occupier may be affected by the size, commodiousness and value of his property but cannot be increased merely because more people are in occupation and therefore suffer greater collective discomfort. If more than one person has an interest in the property, the damages will have to be divided among them ... as Cotton L.J. said in Rust v. Victoria Graving Dock Co. (1887) 36 Ch. D. 113, 130:

"... where there are divided interests in land the amount of damages to be paid by the defendants must not be increased in consequence of that subdivision of interests."

Lord Hope of Craighead summarized the issue at p.725:

So where it is the tort of nuisance which is being relied upon to provide the remedy -- and I believe that the same rules should apply whether the remedy sought is that of an injunction or in damages -- the plaintiff must show that he has an interest in the land that has been affected by the nuisance of which he complains. Mere presence on the land will not do. He must have a right to the land, for example as owner or reversioner, or be in exclusive possession or occupation of it as tenant or under a licence to occupy. It may then be said that there is an unlawful interference with his use or enjoyment of the land or of his right over or in connection with it: see Newcastle-under Lyme Corporation v. Wolstanton Ltd., [1947] Ch. 92, 107, per Evershed J. Exceptionally, as in Foster v. Warblington Urban Council, [1906] 1 K.B. 648, his actual occupation of the land will be enough to demonstrate that he has a sufficient interest for a right of action in nuisance to exist. For the purposes of the present case however the important point to notice is that which Lord Wright made in Sedleigh-Denfield v. O'Callaghan [1940] A.C. 880, 902-903: "With possibly certain anomalous exceptions, not here material, possession or occupation is still the test."

[233] I prefer the reasoning of the majority of the House of Lords in Hunter v. Canary Wharf Ltd., supra, as being consistent with the nature and the origin of claims in nuisance and providing cogent reason against extension of those claims. I conclude the infant plaintiff's Brett and Laura Livingstone do not have a valid claim in private nuisance.

DEFENCE OF STATUTORY AUTHORITY:

[234] Despite the creation of a nuisance, the defendants will not be liable if they can demonstrate that the nuisance is the inevitable result of an undertaking authorized by statute.

[235] The doctrine of statutory authority was considered by the Supreme Court of Canada in Tock v. St. John's Metropolitan Area Board, [1989] 2 S.C.R. 1181 and Ryan v. City of Victoria, [1999] 1 S.C.R. 201.

[236] These decisions reflect the current state of the law in Canada and provide the framework for consideration of statutory defences that could relieve the defendants from liability for the nuisance created in the building and operation of the north runway.

[237] In Tock, the court was divided with no clear majority opinion. In Ryan, Major J. for the Court adopted the judgement of Sopinka J. in Tock.

[238] In Tock, supra, at p. 1224, Sopinka J. restated the traditional law as applied in Canada, which was based on Viscount Dunedin's judgement in City of Manchester v. Farnworth, [1930] A.C. 171 at 183:

When Parliament has authorized a certain thing to be made or done in a certain place, there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized. The onus of proving that the result is inevitable is on those who wish to escape liability for nuisance, but the criterion of inevitability is not what is theoretically possible but what is possible according to the state of scientific knowledge at the time, having also in view a certain common sense appreciation, which cannot be rigidly defined, of practical feasibility in view of situation and of expense.

[239] Sopinka J. found that the defence of statutory authority was closely circumscribed, but rejected LaForest J.'s reasoning that the defence should be abolished and Wilson J.'s assertion that it should be available only where the legislative intent is expressed. In addressing their criticisms at p. 1225, he stated:

The criticism of the present state of the law which is the springboard for the desire to change it is largely based on the fact that the term "inevitable consequences" is too vague and uncertain. That term is the expression of the factual conclusion that the necessary causal connection exists between the work authorized and the nuisance.

[240] The onus of proof is clearly upon the party advancing the defence. Sopinka J. cautioned at p. 1226 that:

The courts strain against a conclusion that private rights are intended to be sacrificed for the common good. The defendant must negative that there are alternative methods of carrying out the work. The mere fact that one is considerably less expensive will not avail. If only one method is practically feasible, it must be established that it was practically impossible to avoid the nuisance. It is insufficient for the defendant to negative negligence. The standard is a higher one. While the defence gives rise to some factual difficulties, in view of the allocation of the burden of proof they will be resolved against the defendant.

[241] For the defence of statutory authority to apply in this case, the defendants must show: firstly, that constructing and operating the north runway was an undertaking authorized by statute, and secondly, that the nuisance created for the plaintiffs is the "inevitable result" of the exercise of that authority.

Undertaking Authorized by Statute

[242] In considering whether an undertaking is authorized by statute, Sopinka J. provides the following analysis at p. 1225 of Tock, supra:

... if the legislature expressly or implicitly says that a work can be carried out which can only be done by causing a nuisance, then the legislation has authorized an infringement of private rights.... There is no question that legislation may expressly authorize an interference with private rights by so providing in explicit language. Where the only reasonable inference from the legislation is that such interference is authorized, then the same result obtains by implication.

...

A work is authorized by statute whether the statute is mandatory or permissive, if the work is carried out in accordance with the statute. The distinction between mandatory and permissive ... has not been accepted in Canada or, apparently, in England....

[243] Where immunity from liability cannot be found explicitly in the applicable legislation, the court must examine the governing legislation in the context of the broader regulatory scheme, which may involve permits, licencing or related legislation: Solloway v. Okanagan Builders Land Development Ltd. (1976), 71 D.L.R. (3d) 102 (B.C.S.C.); O'Sullivan v. Belleville (City), [1991] O.J. 2717 (QL) (Gen. Div.).

[244] The present circumstances involve a complex and comprehensive web of legislative, regulatory and governmental action involved in the planning, construction and operation of the north runway at the Vancouver International Airport.

[245] The issue requires consideration of the effect and interaction of the Aeronautics Act and Regulations (Canadian Aviation Regulations, SOR/96-433 ("CARs")), Orders in Council, zoning powers, lease agreements, the airport certification process and air traffic control regulations.

[246] The basis for the defence of statutory authority arises from the power of the Minister of Transport to promote aviation. Section 4.2 of the Aeronautics Act, R.S.C. 1985, c.A-2 makes the Minister responsible for the development and regulation of aeronautics and supervision of all connected matters. In discharge of his responsibilities, the Minister may construct, maintain and operate aerodromes and undertake such other activities relating to aeronautics as he considers appropriate.

[247] Sections 4.2 and 6.71 of the Aeronautics Act provide power to regulate aviation in the public interest. It is the defendants' case that, pursuant to this power, the Minister made the decision to construct the north runway and then arranged its implementation through the defendant Authority.

[248] The Minister designated the defendant an Airport Authority, entered into agreements with it that transferred the operation of YVR, and granted a lease of underlying Crown lands structured so that the Authority would honour the Minister's commitments regarding the north runway.

[249] The zoning of lands in the vicinity of the airport, which limited building heights in airspace over projected runway flight paths, and the use of expropriation powers to acquire the lands necessary for runway expansion, were powers exercised over time with a long range view to facilitating runway expansion at YVR.

[250] Aircraft movement under general aviation Regulations and Air Traffic Control Regulations in controlled air space is subject to extremely detailed and precise control.

[251] Since assuming operation of YVR in 1962, the Minister of Transport has had the power and responsibility, pursuant to the Aeronautics Act, to operate the airport, which includes expansion planning for future needs.

[252] The evidence is clear that YVR demonstrated the need in the Vancouver region for expanded runway capacity, particularly runways with Instrument Flight Rules ("IFR") capacity. A number of alternatives to obtain the needed capacity were examined but the Minister was the one to ultimately decide on approval of any additional runway construction.

[253] The decision of the Minister to expand YVR runway capacity on Sea Island by constructing a north runway parallel to the existing runway and situate it within the existing dykes, involved studies, reports, and hearings over many years.

[254] Aeronautical zoning which would protect airspace from building encroachment in the projected flight path for a new north parallel runway on Sea Island was first enacted in the 1960s and reaffirmed following public hearings in 1980. It served to keep open the options for a north parallel runway. It was not a commitment to construct it.

[255] As the identified capacity needs for YVR became more acute over time the Minister revived the long-standing proposal for the construction of a north parallel runway on Sea Island. The proposal was submitted to the required EARP process. That process was detailed and impressively thorough. The Minister considered and accepted nearly all the EARP recommendations and made the final decision approving construction of the north runway in its present location. Concurrently, the Minister provided for certain conditions on the operation of the runway to be contractually assured in the transfer to the Authority.

[256] I accept that the Minister had the power under the Aeronautics Act, Regulations, and ancillary legislation to make the necessary cumulative decisions and the final decision to construct the north runway.

[257] It was the Authority, however, that actually constructed and now operates the runway. The plaintiffs argue in these circumstances neither the Crown nor the defendant Authority is entitled to the protection of a defence of statutory authority.

[258] The defence of statutory authority may be available to non-governmental bodies and private entities. The construction of railroads in the 19th century affords many historical examples; more modern applications occurred in Jagtoo v. 407 ETR Concession Co. [1999] O.J. No. 4944 (Sup. Ct.); Allen v. Gulf Oil Refining Ltd., [1981] 1 All E.R. 353 (H.L.) and Solloway, supra.

[259] Any private individual without prior legislative authority may construct aerodrome facilities in Canada. Aerodromes may be registered or unregistered. A registered one must meet the minimum safety standards in s. 301 of the CARs and be published as a registered aerodrome in the Canadian Flight Supplement or the Water Aerodrome Supplement.

[260] An Order-in-Council of March 19, 1992 authorized the Minister of Transport, on behalf of the Crown, to enter into an agreement for the transfer of management, operation and maintenance of YVR to the Authority.

[261] An Agreement to Transfer followed on April 3, 1992 between the Minister of Transport on behalf of the Crown and the Authority. Section 9.03.01 of that Agreement negatives the existence of any form of agency relationship between the Crown and the Authority:

Her Majesty and the LAA expressly disclaim any intention to create a partnership, joint venture or joint enterprise. It is understood, acknowledged and agreed that nothing contained in this Agreement nor any acts of Her Majesty or the LAA shall constitute or be deemed to constitute Her Majesty and the LAA as partners, joint venturers or principal and agent in any way or for any purpose. The LAA shall not represent or hold itself out to be an agent of Her Majesty. No party hereto shall have any authority to act for or to assume any obligations or responsibility on behalf of the other party hereto.

[262] An Order-in-Council of June 18, 1992 authorized the Minister of Transport on behalf of the Crown to enter into a lease with the Authority. A ground lease was then entered into June 30, 1992. Section 30.01.01 of the lease expressly negatives a partnership, joint venture or agency relationship between the parties.

[263] The ground lease contains an express acknowledgement by the Authority that the rent under the lease was structured on the basis the tenant shall "plan, design, and construct the Third Runway" and make "Capital Asset Expenditures in an amount not less than (...$101,795,000) by no later than December 31, 1997."

[264] Section 4.10.13 provides if the tenant fails to make the required Capital Asset Expenditures then additional, specified, penalty rent is incurred.

[265] The ground lease in s. 3.08.01 provides that the runway would become a fixture to the lands and revert to the landlord on the termination of the lease, but during currency of the lease would be deemed the separate property of the tenant Authority.

[266] Section 8.02.02 obligates the Authority to provide all capital improvements necessary to accommodate airport capacity demand in accordance with the lease. Section 46.01.01 and 46.01.02 provides by way of inducement for performance by the tenant a covenant of the Crown not to construct and operate an International Airport within 75 kilometres (except Victoria airport) or to operate the Abbotsford airport as an international airport.

[267] In summary the ground lease between the Crown and the Authority:

1. negatives any relationship of agency between the Crown and the Authority,

2. gives the Authority discretion whether to build the third runway or not,

3. makes the third runway the separate property of the Authority during the currency of the lease, and

4. provides the Authority manage, operate, and maintain YVR entirely on its own behalf.

The north runway was therefore neither constructed nor operated by the Minister nor on behalf of the Minister, under s.4.2 of the Aeronautics Act, and the Authority has no basis for a statutory defence.

[268] The Aeronautics Act did not mandate the construction of a third runway as located, constructed and operated. The statute appears targeted at the Minister and not intended to extend to private facilities operated by private contractors. The wording of the lease, the Authority's interest in the improvements, and the essential independent operation of YVR all indicate this is more than the Minister contracting with others to fulfil his duties. The Authority remains a separate and distinct entity from the Minister and does not have his jurisdiction under the Act.

[269] I conclude there is no factual connection between the construction and operation of the north runway and the Minister's power under s. 4.2 or power of delegation pursuant to s. 4.3 of the Aeronautics Act.

Certification and Regulations:

[270] Section 302.03 of the CARs provides the Minister shall issue an airport certificate "...if the proposed airport operations manual ... is approved by the Minister...." Under section 302.03(2) the Minister must approve a proposed airport operations manual if it:

(a) accurately describes the physical specifications of the aerodrome; and

(b) conforms to the requirements set out in the aerodrome standards and recommended practices publications that apply in respect of an airport operations manual.

Subsection (3) provides:

(3) Where an aerodrome does not meet a standard set out in the aerodrome standards and recommended practices publications, the Minister may specify in the airport certificate such conditions relating to the subject-matter of the standard as are necessary to ensure a level of safety equivalent to that established by the standard and as are necessary in the public interest and to ensure aviation safety.

[271] The airport certificate process has its focus on safety. I do not see that it was ever intended to confer a legislative authority to commit a nuisance as has occurred here. I agree with the comments of Robins J. in Schenck v. The Queen in Right of Ontario (1981), 131 D.L.R. (3d) 310 at 322 (Ont. H.C.):

... that the creation of the nuisance suffered by these plaintiffs cannot be treated as the inevitable result of the exercise of a statutory duty and the defence of legislative authority cannot be successfully invoked in this fact situation. As a matter of legislative intent, the statutory provisions relied on do not appear, expressly or impliedly, to authorize or contemplate a nuisance of the kind involved in these proceedings and cannot be so interpreted; ...

[272] There is a large body of federal law and regulations which impose controls on all aspects of aviation including allocation of airspace, traffic control and aircraft noise. This tight cloak of law and regulation is focused, like airport certification, on public safety.

[273] It is obvious that once the location of a runway is set the flight paths accessing it are fixed. Landings follow a prescribed 3-degree descent path. The height above ground of landing aircraft is determined accordingly. The speed of the landing aircraft on descent is controlled and the configuration of power and trim determines the noise that results.

[274] It is the orientation of the runway which predetermines the area that will experience the noise of user aircraft. As was repeatedly emphasized in evidence, once an aircraft is on approach, centred in the flight path, powered and trimmed for the prescribed descent rate, there is nothing the pilot of the aircraft can do to abate the noise that aircraft creates except to land the plane.

[35] I do not find the airport certification process nor the air traffic control regulations can be said to authorize the nuisance that has occurred. The purpose of these regulations is safety. The certification process and regulations do not expressly preclude liability for nuisance, and indirectly, although some noise is necessarily produced by compliance with them, I cannot find that the only reasonable inference from such regulations is that they were intended to authorize nuisance.

[275] In this case, no legislation has expressly authorized the nuisance that has occurred. In such circumstances, Sopinka J.'s analysis at p. 1225 of Tock, supra, limits the application of the defence of statutory authority to circumstances "[w]here the only reasonable inference from the legislation" is that interference with private rights is authorized.

[276] From the evidence, I am not satisfied that the only reasonable interpretation of the Aeronautics Act and Regulations is that they authorize nuisances like the ones experienced by the plaintiffs. As a result, the defence of statuary authority cannot apply.

Inevitable Result:

[277] In the event that I am wrong and the Airport Authority is acting with statutory authority, I have considered the second aspect of the defence; namely, the question of whether the nuisance is an inevitable result of performing statutorily authorized operations.

[32] There is wide disparity between the plaintiffs and the defendants in the interpretation to be given Viscount Dunedin's judgement in Farnworth, supra, at 183 that "...there can be no action for nuisance caused by the making or doing of that thing if the nuisance is the inevitable result of the making or doing so authorized." The plaintiffs contend that if the runway could have been built elsewhere, configured differently on Sea Island, or if built, operated in any manner that would not create a nuisance in Bridgeport, the nuisance by noise is not an inevitable result.

[278] The plaintiffs contend that the needed new capacity could have been achieved utilizing alternative airports at Boundary Bay, Abbotsford, or Pitt Meadows. They suggest the runway could have been configured differently. The runway could have been configured to extend into the ocean. The runway orientation could have been made "near parallel" rather than parallel. The length of the runway could have been extended by moving it further to the east.

[279] The plaintiffs argue that Sopinka J.'s limitations to a defence of statutory authority as expressed in Tock require the defendants negative any alternative method of carrying out the work regardless of cost. In my view, this interpretation is too extreme and simplistic. It should be balanced with the more realistic caution expressed in Farnworth, supra, that the criterion of inevitability cannot be too rigidly defined and must take into account "a certain common sense appreciation ... of practical feasibility in view of situation and of expense."

[280] In attempting to define that balance, however, the principle that "the courts strain against a conclusion that private rights are intended to be sacrificed for the common good" dominates. The use and enjoyment of their property by the present plaintiffs and some other owners of property under or adjacent to the flight path has certainly been sacrificed for the wider common good of the airport operation.

[281] The nuisance suffered by the plaintiffs has had a serious impact on the plaintiffs' use and enjoyment of their homes, for which no compensation has been paid. It is equivalent in effect to expropriation of a property interest without compensation. Transport Canada, by purchase or exercise of federal powers of expropriation, could have acquired any affected property under the flight path.

[282] The defendants could also have negotiated compensation and acquired releases from persons with property interests.

[283] Purchase, expropriation, or negotiated releases from persons with property interests would undoubtedly increase the expense in creating increased runway capacity, but it has not been shown that such an expense would be beyond the bounds of the standard the law requires when a statutory defence is raised. Expropriated property could of course be modified and resold for a different type of residential use or for purposes more compatible with the runway operation. The cost would then be much reduced to the expropriating authority. The loss attributable to any diminution in value on resale would fall upon the entity responsible for the nuisance and not the property owners. The EARP considered a fund for payment of noise compensation was an appropriate factor to consider as part of the cost of constructing the runway at issue.

[284] The Crown did acquire land on Sea Island known as the McDonald subdivision years previously in anticipation of a possible need for runway expansion by purchase and expropriation, and acquiring further properties under the flight path could be considered an extension of that process.

[285] The Aeronautics Act did not mandate the construction of a third runway as located, constructed and operated. The nuisance in issue cannot be said to be the inevitable consequence of the exercise of any specific statutory power or in response to any particular required statutory duty.

[286] The evidence confirms that the enlarged centralized YVR operation on Sea Island was an economically sound decision. It was the business decision of choice and enhances YVR's ability to operate profitably and be competitive as one of the major westcoast international airports.

[287] The decision to build the third runway and centralize airport operations on Sea Island was, however, the considered choice to the alternatives of satellite airports or more regionalized operations.

[288] The evidence shows that an airport at Boundary Bay would not permit the increased capacity required because its proximity to YVR creates unacceptable interaction between the flight paths for arriving and departing aircraft at each airport. The restricted operations caused by this interaction would result in Boundary Bay being able to supply less than one-half the capacity that could be achieved by addition of the north runway at YVR.

[289] The Abbotsford airport is constrained by mountainous terrain to the north and east. Its proximity to the Bellingham airport also creates an interaction of flight paths that restricts arrivals and departures. Departing aircraft must turn south and climb to the west, which places limitations upon aircraft approaching to land. An improved and modernized Abbotsford airport would by reason of its limitations be able to supply only slightly more than one-half the operational capacity that the north parallel runway at YVR could provide.

[290] Pitt Meadows by geographical location would have to meld its arrival and departing aircraft into the YVR traffic flow. There is little additional functional capacity that airport could provide.

[291] I accept that no other singular location for a new runway facility could operate to the capacity of the chosen location for the north parallel runway at Sea Island. However, expansion of facilities at satellite locations in combination with a new runway at YVR operated to lesser capacity were possible alternatives, although not as economical or functionally desirable.

[292] I am also not satisfied on the evidence that a third parallel runway extending west into the ocean was not a viable alternative. Such a runway likely would have avoided or lessened the nuisance in issue. It appears that a long- standing proposal to extend a runway into the ocean was abandoned because of environmental concerns.

[293] From the evidence, I am not able to find that there was no solution to those environmental concerns. It appears more likely it was the costs of remediation that led to a preference for a runway located within the confines of the existing Sea Island dykes. It raises an uneasy question in the context of this action as to whether concern for the effects of nuisance visited on some nearby residents was treated with less concern than environmental concerns.

[294] The defendant Authority called a good deal of evidence to the effect that, given the location of the north runway, it is not possible to operate it to capacity and avoid the noise nuisance of which the plaintiffs complain. The evidence supports that view. Once the runway is placed the die is cast on how aircraft must approach and depart the runway over the plaintiffs' properties.

[295] The plaintiffs suggest that it is possible for YVR to operate using the north runway for takeoff but not for landings from the east, thus creating a "no fly zone" over Bridgeport. I accept the evidence called by the defendants that it is not possible to operate in such manner and achieve the necessary capacity.

[296] Landing aircraft occupy runways for longer times than departing aircraft. Arrival capacity is therefore the key defining factor of airport capacity.

[297] Takeoff by large fully loaded wide-body aircraft (i.e. 747's) requires runway length in excess of 10,000 feet. As the north runway is less than 10,000 feet long, these aircraft must use the south runway, or face a weight penalty to operate off the north runway.

[298] Arrival capacity at YVR requires both the north and the south runway be used for arrivals during peak periods. If only the south runway were available in weather conditions requiring landings from the east, then the landing capacity of YVR is decreased. It was estimated the capacity decrease in that circumstance could approach 50%.

[299] Any extension of runway length to the east could be utilized only for aircraft departing to the west. The clearance height for the Arthur Laing Bridge restricts the commencement of runway available for aircraft approaching for landing from the east.

[300] The runways need to be parallel and separated to permit simultaneous operations. If they were not parallel, the problem of ultimate convergence in flight paths would severely restrict operational capacity.

[301] There is force to the defendants' position that many of the plaintiffs' suggestions for runway operations to eliminate noise over the Tait subdivision do not eliminate the noise factor at all, they merely move it from the plaintiffs neighbourhood to another in south Vancouver or Richmond.

[302] In my view it is only if the new runway must be located on Sea Island, in its existing location, and that it must be operated to its fullest potential capacity, that the complained of nuisance to residents of the Tait subdivision becomes inevitable. The onus has not been met.

[303] I do not accept the defendants have met the standard of the test delineated in Tock and Ryan and reached a point where the consequences may be said to be inevitable and a statutory defence available.

[304] Alternatives to locating a new runway within the dyke on Sea Island, although not as desirable or economical, did exist. The threat of the government in the lease and operating agreements to expand and operate other facilities should the Authority breach the lease is itself an indication that alternatives exist.

[305] In summary, I do not accept that the defendant Authority, that both constructed and operates the north runway, is entitled by virtue of its lease and operating agreement with the Crown to a statutory defence to the nuisance created.

[306] The defendant Authority was not required to construct the runway and could have chosen alternatives. The penalty if they did not construct the third runway ironically appears to be that they would face competition from the Minister operating satellite or de-centralized airports.

[307] Nor do I find the substantial extra expense of building or operating alternate facilities to achieve equivalent capacity to the existing new north runway alone gives rise to the nuisance at issue being an inevitable consequence of the exercise of any statutory power of the Crown.

[308] The Crown is also liable as landlord for the nuisance created by its tenant YVR. The nuisance is the result of the operation of the north runway, which the Minister of Transport clearly desired, approved, facilitated, and encouraged: Banfai v. Formula Fun Centre Inc. (1984), 51 O.R. (2d) 361 at 375 (Ont. H.C.J.)

[309] The Crown Liability and Proceedings Act, R.S.C. 1985, c.C-50; s. 3(b) provides the Crown is liable in tort for damages as if it were a person "in respect of a breach of duty attaching to the ownership, occupation, possession or control of property".

[310] The Minister was well aware from the EARP review of the proposal for location of the proposed runway on Sea Island that it would create a totally new noise level impact not previously experienced by Bridgeport residents, particularly Tait subdivision residents under the runway flight path. The Minister rejected compensating those affected by noise and purported to implement control measures. Those measures failed to effectively eliminate the defined problem as EARP predicted:

No matter how much quieter aircraft become or how well mitigation measures work, there will be a totally new noise impact under the proposed flight path on the Bridgeport neighbourhood in Richmond...[Ex. 4, Tab 45; 1991 EARP Report, p. 3]

[311] I conclude that the defendants have not met the onus upon them of establishing at law a defence of statutory authority to the noise nuisance that the operation of the north runway at YVR created for the plaintiffs in the Tait subdivision.

DAMAGES:

[312] An appropriate measure for damages where the nuisance has interfered with the use and enjoyment of land, and is not to be enjoined, is to award damages, reflecting the past and future harm, which dispose of the matter while having the effect of legalizing the continuation of the nuisance. Rombough v. Crestbrook Timber Ltd. (1966), 57 D.L.R. (2d) 49 at 68, Bull J.A. held:

In the result the equitable jurisdiction allows awards as to the future, giving compensation for permanent injury once and for all. What the Court is doing, where such damages are awarded in lieu of an injunction, is making the defendant pay for a licence to commit the wrong by in effect legalizing his act. See Mayne & McGregor on Damages, 12th ed., para. 198; Salmond on Torts, 11th ed., p. 184.

[313] In these circumstances, that measure of damage is the diminution in the market value of the plaintiffs' properties resulting from the nuisance.

[314] Appraisals of the plaintiffs' properties were prepared by Michael B. Reilly, a Professional Appraiser and member of the Appraisal Institute of Canada. He is experienced in the appraisal of residential, commercial and industrial properties to determine their market value.

[315] I accept his approach as helpful to the difficult task of determining any diminution in the market value of the subject properties attributable to noise from aircraft accessing the north runway. It is his opinion that:

the test to determine if there is a Diminution in Market Value and to quantify the Diminution in Market Value if it has in fact occurred, is to compare the selling prices of homes similar to the subject property in the Bridgeport area which are also affected by aircraft noise, with the selling prices of similar homes in other areas of Richmond which are either not affected or are less affected by aircraft noise.

[316] The application of this test however is difficult. Mr. Reilly himself identified "the difficulty in this approach is that it is not possible to find identical homes." I accept his view that the only available solution to that problem, although imperfect, "is to find sales of homes which are as similar to the subject property as possible and to make the necessary adjustments to the sale prices of these homes for all the differences between these homes and the subject property."

[317] While Mr. Reilly would adjust the sale prices of homes in the Bridgeport and other neighbourhoods to account for many different factors including age, condition, house size, lot size, accommodation, number of bedrooms, and other extras, he would make "no adjustment ... for differences in location for homes in the different areas because this is the essence of what the process is about."

[318] Mr. Reilly followed his approach by collecting available sales data, reviewing it to select comparables, viewing the comparables chosen, and making the multitude of adjustments he believes appropriate to equalize the compared properties.

[319] His detailed appraisal reports for the Page, Livingstone and Jones properties are respectively Exhibits 37, 34, and 35. In the opinion of Mr. Reilly, the three plaintiffs have suffered diminution in the value of their properties as a result of the noise from aircraft accessing the north runway as follows:

Mrs. Page

$126,500

Mr. & Mrs. Livingstone

$60,000

Mr. & Mrs. Jones

$100,000

[320] Mr. Reilly had originally overlooked the fact that the Page property could be subdivided to create an additional separate building lot. His original opinion on the diminution of market value for the Page property (not considering its potential for subdivision) was $105,000 [Exhibit 36].

[321] The defendants presented the expert evidence of Geoffrey Johnston, an experienced Professional Appraiser and member of the Appraisal Institute of Canada. I found Mr. Johnston was generally more familiar with the specific residential real estate markets in Richmond than Mr. Reilly. It was Mr. Johnston who reported that Mrs. Page's property contained a subdividable lot.

[322] Mr. Johnston conducted an appraisal review of Mr. Reilly's work, but he did not himself appraise the plaintiffs' properties to determine what value they may have lost due to aircraft noise from the north runway.

[323] Mr. Johnston testified that he could not say the aircraft noise had no effect on residential property prices, but in his view, it could not be measured. He takes exception to the methodology employed by Mr. Reilly, pointing out that for it to be valid there must be control of all variables except the one to be measured.

[324] In Mr. Johnston's view there are two main reasons the methodology employed by Mr. Reilly is flawed.

[325] First, differences in value between the subject neighbourhood and other residential neighbourhoods in Richmond are attributable to more than aircraft noise. Dwellings within different neighbourhoods may be similar or identical, but each neighbourhood has its own characteristics that make one more or less desirable than another.

[326] Secondly, as the subject neighbourhood had always been subject to some aircraft noise, it is only the additional noise attributable to the north runway that is to be measured and not aircraft noise in general.

[327] The main thrust of Mr. Johnston's critique on the methodology of Mr. Reilly centers on Mr. Reilly's failure to totally adjust for location or the desirability of a residential neighbourhood in the marketplace.

[328] I accept Mr. Johnston's concern that differences in location, particularly the overall desirability and amenities of the several locations from which comparables were selected, have not been fully accounted for.

[329] I am of the view that most of the south Richmond residential neighbourhoods from which comparables were drawn by Mr. Reilly were more desirable residential locations than Bridgeport. I accept this view of Mr. Johnston after taking account of the many factors that in combination result in increased desirability of an area to potential homeowners and corresponding higher market values.

[330] I also accept the opinion of Mr. Johnston that values should be cross checked against other methods and resource data on values where that is reasonably possible.

[331] Mr. Johnston provided some data of general average price indicators that suggested a general decline in prices in the 1990s and that in general the amount of the price decline of properties in the Bridgeport area of Richmond was not significantly different from other areas of Richmond.

[332] The principal market indicators Mr. Johnston reviewed were the Mean and Median Price Trends and the Housing Price Index published by the Real Estate Board of Greater Vancouver.

[333] I conclude from the evidence however that neither of these indicators are very reliable, and are prone to error and susceptible to misinterpretation. They are of little assistance here other than suggesting a trend of a general decline in real estate values in Richmond after 1995.

[334] I find there is considerable merit to the use of a "paired sales" analysis suggested by Mr. Johnston as a useful technique to check values indicated against those resulting from the method employed by Mr. Reilly. A difficulty arises, however, with the particular "paired sales" analysis presented by Mr. Johnston because he did not ensure his pairs reflected highly similar property sales nor that appropriate adjustments were made to the properties so as to isolate the one location difference sought.

[335] The paired sales analysis, however, is highly relevant to defining and charting trends in the marketplace.

[336] The adjustments made by Mr. Reilly to the comparable properties he used in his appraisal process were the subject of vigorous cross-examination. The fact adjustments must be made is both proper and central to his assessment method.

[337] The adjustment factor itself highlights the fact that there exists a significant subjective aspect to appraisal which, as Professor Todd in The Law of Expropriation and Compensation in Canada 2nd ed. (Toronto:Carswell, 1992) noted at p.193, "may lead to genuine differences of opinion and consequential wide variances in the estimated market value of the subject property by different appraisers."

[338] The method of appraisal employed by Mr. Reilly can lead to an unwarranted attribution of a price or value decline over a given time for the wrong reason. This was illustrated in Mr. Reilly's appraisal of the Jones property. Mr. Reilly would have the Jones property maintaining its value in a falling market had there been no aircraft noise from the north runway.

[339] I conclude the evidence strongly indicates there was a decline in the market subsequent to the Jones' purchase of their property that commenced prior to aircraft operation on the north runway in issue. Mr. Reilly's appraisal failed to make a distinction consistent with that circumstance.

[340] It is exceedingly difficult to isolate and value one factor from many that influence either an increase or a decrease in the market value of property over time. At best, property appraisal is an art and not a science. The attempt by Mr. Reilly to value the effect of noise from the north runway cannot be accepted as having scientific reliability. Its limitations and frailties are well identified in the Johnston critique advanced on behalf of the defendants.

[341] The evidence must be viewed as it was intended: an aid to the Court in assessment of damages. It is obvious that the noise impact of the operation of the north runway has detrimentally impacted the value of certain properties underlying the runway flight path. Mr. Johnston's view that diminution of value cannot be isolated does not excuse the Court from making an assessment of the damages suffered by the plaintiffs on the basis of the evidence. I find cogent the summary remarks of Cumming J.A. in Bradshaw Construction Limited v. Bank of Nova Scotia (1992), 73 B.C.L.R. (2d) 212 at 229:

Valuation is not a mathematical exercise. It is a matter of assessment based on judgment: see McLachlan v. Canadian Imperial Bank of Commerce, 35 B.C.L.R. (2d) 100, [1989] 4 W.W.R. 341, 73 C.B.R. (N.S.) 48, 57 D.L.R. (4th) 687 (C.A); Cyprus Anvil Mining Corp. v. Dickson (1986), 8 B.C.L.R. (2d) 145; 33 D.L.R. (4th) 641 (C.A.) and Lewis v. Todd, [1980] 2 S.C.R. 694, 14 C.C.L.T. 294, 115 D.L.R. (3d) 257, 34 N.R. 1.

As Chief Justice Nemetz said in New Horizon Investments Ltd. v. Montroyal Estates Ltd. (1982), 26 R.P.R. 268 (B.C.S.C.) [p.276]:

...it is necessary to be conservative in assessing damages based upon timing in an uncertain market. We proceed cautiously upon a balance of probabilities (see Hornak v. Paterson (1967), 62 D.L.R. (2d) 289 (B.C.S.C.)), in the hope that, upon a consideration of all proper matters, we will arrive at an amount which represents the loss the plaintiff has probably suffered as a consequence of the breach. I stress that the function of the Court is to 'assess' damages.

[342] I assess the damages to which the plaintiffs are entitled for the nuisance created by aircraft noise from the north runway as follows:

Mrs. Page

$75,000

Mr. & Mrs. Livingstone

$40,000

Mr. & Mrs. Jones

$60,000

DAMAGES INCIDENTAL TO MOVING:

[343] The plaintiffs claim for damages incidental to the cost of moving. These costs would include real estate commissions, conveyancing and legal fees, and property transfer taxes. The parties agree as to the quantum of such costs as set forth in Exhibit 8, Tab 2(a), (b), (c) but the defendants deny any entitlement to those damages in the existing circumstances.

[344] None of the plaintiffs has sold nor moved. Mrs. Page has made no effort to sell her property, nor can I find on the evidence that she has any intention of doing so.

[345] The Livingstones did not list their property until close to the trial. The Jones did not list their property at a realistic market price for years. I am of the view that the facts do not disclose a sustained effort to move from the nuisance. Certainly, after the length of time the nuisance has been existent, it cannot be said the nuisance has compelled the plaintiffs to move.

[346] The present plaintiffs have, at a minimum, all chosen to await a determination of whether nuisance could be proven, if the defendants were protected in law from the consequences of any nuisance created, and the damages they might be awarded.

[347] I do not doubt, there are persons prepared to purchase and live in these homes. They will not be abandoned nor be derelict. The neighborhood and community will continue. The plaintiffs presumably will now have to make the decision that they have previously deferred.

[348] I relied in my finding of a nuisance being proven on an objective view of the circumstances, and in that context, discounted to some degree the rather extreme reactions exhibited by Mr. Livingstone and Mr. Jones. The objective evidence indicated a substantial interference with the use and enjoyment of property, particularly outdoors, but not of a degree that it could be said persons were forced from their homes.

[349] In the circumstances of these plaintiffs, I do not find that an appropriate basis has been shown for an award of moving expenses at this time. I have concern, however, that if and when the north runway is used consistently for aircraft takeoff to the east over the Tait subdivision, the noise levels will become intolerable to these plaintiffs and will compel them to move from their properties.

[350] I would, therefore, allow the agreed upon moving and incidental expenses to any of the plaintiffs who move within one year of the defendants permitting use of the north runway for takeoff of aircraft to the east.

PUNITIVE DAMAGES:

[351] The standard for an award of punitive damages was stated by McIntyre J. in Vorvis v. I.C.B.C., [1989] 1 S.C.R. 1085 at 1108-8:

[P]unitive damages may only be awarded in respect of conduct that is of such a nature as to be deserving of punishment because of its harsh, vindictive, reprehensible and malicious nature. I do not suggest that I have exhausted the adjectives which could describe the conduct capable of characterizing a punitive award, but in any case where such an award is made the conduct must be extreme in its nature and such that by any reasonable standard it is deserving of full condemnation and punishment.

[352] The Authority believed it was empowered in its actions by its contractual obligations to the Crown, and the Crown believed it was acting in the widest interests of the public in the decisions it made. Both believed they were entitled to a statutory defence against nuisance that might occur.

[353] The EARP recommended a compensation fund for the benefit of persons who would be effected by increased noise levels. The recommendations were not based upon a nuisance at law being proven. The recommendations were a practical and innovative solution to a problem inherent in large scale airport services being provided close to urban centers of population. It showed sensitivity to the sacrifices that some residents would endure to permit the needs of the mass of the population to be better served. I believe it intended compensation to many property owners and residents beyond those living in the Tait subdivision or Bridgeport.

[354] There is no evidence to support the view that Transport Canada ever made a promise that noise compensation would be paid.

[355] The Minister of Transport made a decision against a compensation fund and instead implemented what was described as a comprehensive noise mitigation program. There is no evidence that the Minister alleged the proposed mitigation program would eliminate noise, but it was implemented in an effort of contain and mitigate noise and to benefit the wider population of the airport environs which might be subject to an increase in noise.

[356] It cannot be said that the object and intent of the noise mitigation program was to prevent anticipated noise interference from achieving unreasonable levels.

[357] During the course of evidence, there were suggestions that deliberately misleading statements had been made at various times by personnel of the Authority or Department of Transport to residents regarding the flight path of aircraft accessing the north runway and the level of noise to be expected. I cannot find these misrepresentations proven. There is reason to believe, however, that unfortunate misunderstandings occurred which have fuelled the discontent of residents in close proximity to the airport.

[358] I have described the reaction of residents on the flight path of the north runway as understandable in the circumstances. The EARP recommended they be compensated for an inevitable increase in the noise of their neighborhood, and the plaintiffs feel betrayed because that was not done.

[359] I do not however find that the conduct of the defendants can be fairly described as harsh, vindictive, reprehensible, malicious, or anything fairly akin in nature. I decline to award punitive damages.

TEST CASE STATUS:

[360] The claims of the three plaintiffs in this action proceeded first with a view to determining some common issues, perhaps giving guidance in respect of certain matters that might arise in other pending claims, and generally to assist the parties to conclude their litigation in as timely and cost effective a manner as possible.

[361] The conclusion I have reached as to the existence of nuisance cannot be applied beyond the area of the Tait subdivision, and even within that subdivision individual evidence of claimants regarding their property and particular circumstances must be considered.

[362] The finding in respect of the Livingstone children's right to claim in nuisance I believe is likely of universal application in respect of parties without a property interest.

[363] The conclusion that the defendants are not entitled to a defence of statutory authority would seem applicable to all remaining actions.

[364] There was a mass of evidence given in this proceeding which can be taken as common in the balance of actions that may proceed without the necessity of recalling witnesses. There may be methods for dealing with evidence for the necessary assessment of damages that could be more cost effective and time saving to the parties.

[365] I do not feel it is appropriate to deal further with future matters through the vehicle of this judgement. It is intended, however, that I remain as the trial management judge in respect of the balance of remaining actions, and seized of the trial of further actions. It would be more appropriate, therefore, to deal with these and other matters of concern at an appropriate time on the request of counsel in the case management context.

"R.R. Holmes, J."
The Honourable Mr. Justice R.R. Holmes