Court of Appeal in Vancouver. (Black Press Media files)

Court of Appeal in Vancouver. (Black Press Media files)

Dispute over wall between nursery, neighbour back to square one after court ruling

Langley’s Aarts Nursery and a nearby property owner have been arguing over well access

A dispute over a well and a wall has gone back to square one after the B.C. Court of Appeal threw out a previous judge’s attempt at a compromise.

A three-judge panel decided that a previous ruling went beyond the bounds of the law in an attempt to forge a consensus between Aarts Nursery and a company called NBC Holdings Ltd.

The legal battle began in 2017, when NBC Holdings bought the property near Aarts and Satwinder Sidhu, a director of NBC, started building a house on the newly purchased land. As part of the construction, he built a brick and concrete wall – which crossed directly over an easement that was controlled by Aarts Nursery.

Back in 1984, the nursery, seeking more water for its operations, had arranged to dig a well on the land NBC Holdings now owned. A pipe crossed two properties and took the water to Aarts. The rules of the easement were that nothing could be built on top of it, and Aarts had to have access to the whole pipeline for maintenance.

The wall blocked that access.

But it was NBC that first took the case to the courts.

In 2019, a lawyer for NBC appeared before a judge to petition that the easement should be cancelled entirely.

One of the clauses in the contract said that it could be ended if Aarts could access municipal water for its operations. Municipal water had become available since 1984, NBC’s lawyer argued, therefore the easement should be cancelled.

Justice Catherine Murray tried to find a compromise between the disputing neighbours.

She ruled, after a great deal of back and forth in the court, that NBC Holdings should build a diversion of the pipeline itself around the wall, thus preserving access for Aarts Nursery.

“Given this mid-ground remedy that both parties agree is workable, I see no reason to go further,” Murray wrote in a 2019 ruling. “It is a happy resolution. It allows Aarts to continue their long established business and the Sidhus to move into and enjoy their home.”

But NBC Holdings, which had also been ordered to pay court costs, was not happy with the resolution, which put the matter before the Court of Appeal and Chief Justice Robert Bauman in 2020.

In a ruling written by Bauman and released on Jan. 12, the appeal judges decided that all the lawyers as well as Justice Murray had “misunderstood the scope” of the property law they were arguing over.

Murray did not have the ability to compel a compromise, such as moving the pipeline, under the section of property law that was at issue, Bauman wrote.

“It was a well-intentioned judicial compromise that exceeded the judge’s jurisdiction,” Bauman wrote.

The only thing that mattered is whether the easement contract could be cancelled, or not, Bauman ruled.

In this case, there was no evidence that Aarts had the opportunity to hook up to municipal water and use that to satisfy its business needs. Therefore, the easement stood.

The petition to cancel the easement was dismissed, Bauman wrote. He also cancelled the special costs NBC Holdings had been ordered to pay.

If the two sides can’t settle the matter, they’ll have to go back to conventional litigation, Bauman and his fellow justices ruled.

“If Aarts and NBC wish to enforce the obligations under the easement that benefit them, they must pursue a civil claim in the Supreme Court,” Bauman wrote.

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