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Milne v. Saltspring Island Rod and Gun Club, ? 2014 BCSC 1088

Marc F Lalonde  | Published on Tuesday, June 17, 2014

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Milne v. Saltspring Island Rod and Gun Club,

 

2014 BCSC 1088

Date: 20140617

Docket: 11-4650

Registry: Victoria

Between:

Brian Milne and Jean Barakett

Plaintiffs

And

The Saltspring Island Rod and Gun Club

Defendant

Before: The Honourable Mr. Justice Myers

The Reasons for Judgment were corrected at
paragraphs 33 and 58 on July 9, 2014

Reasons for Judgment

Counsel for the Plaintiffs:

Gregory N. Harney
Jarrett A. Plonka

Counsel for the Defendant:

John W. Horn, Q.C.

Place and Date of Trial:

Duncan and Victoria, B.C.
July 16-19, 22-26,
October 17-18, 2013

April 9, 2014

Defendant's motion to re-open evidence

March 26, 2014

Place and Date of Judgment:

Vancouver, B.C.

June 17, 2014


 

I.                 INTRODUCTION

[1]      The plaintiffs claim for nuisance with respect to noise and alleged lead pollution and deposits emanating from the land owned by the defendant gun club on Saltspring Island.  The 22-acre property beneficially owned by the plaintiffs is adjacent to the Gun Club.

[2]      There are four firearm shooting areas: an indoor range, a trap shooting range, a rifle range, and a "cowboy action" range.  The latter three are outdoor ranges.  The cowboy action range is a mock setup where the shooter fires at western-style targets.  It is currently only used by one couple.

[3]      There is no dispute that the shooting can be heard on the plaintiffs' property.  The issue is whether the noise is unreasonable given the character of the neighbourhood.  The Gun Club says that the character of the neighbourhood must take into account that the Gun Club has been there since at least 1959 and that the plaintiffs purchased their property in 2006.

[4]      The complaint about lead is of two sorts.  The first is lead pellets on the plaintiffs' property.  The defendant does not dispute that lead pellets were deposited by the Gun Club, but says that occurred when the plaintiffs' land was owned by one of the Gun Club's founders, who consented to the deposit, and before the ranges were re-oriented to avoid any future deposits.  The second is alleged lead contamination in a stream running through the land of both parties.  The defendant denies that there are any increased lead levels in the water.  No argument was made by the plaintiffs as to a remedy for the lead issues, other than an injunction shutting down the Club.

[5]      Land use disputes are often heated issues, and this is no exception.  There is a history of complaints, discussions and failed attempts at reaching an accommodation.  The acrimony between the parties led to the trial taking longer than it should, with some evidence being adduced that was of, at best, tangential assistance.  The time required for the trial was underestimated; it therefore took place over three hearing dates.  There was also a motion to re-open the case before argument was made, but that was abandoned at the hearing of the motion.

[6]      The plaintiffs, understandably, say that the main issue for them is the continuing enjoyment of their property.  The primary remedy they seek is an injunction, with damages claimed as an alternative.  Assuming that the noise constitutes a nuisance, one of the issues will be whether the Gun Club needs to be shut down or whether there is an intermediate position that reconciles the legal interests of both parties.  The parties agree that I have the jurisdiction to grant a partial injunction, and to allow them to monitor the results and come back to the court for further orders.

[7]      Some of the evidence elicited, or sought to be elicited, by the plaintiffs was relevant to safety concerns.  As the Gun Club pointed out, safety was not pleaded as an issue and there was no application to amend.  That evidence is therefore not relevant to any issue this litigation.

[8]      The Gun Club acknowledges that the plaintiffs are the beneficial owners of their property with the status to bring this action.  For the sake of brevity I will not describe the details of the title, and refer to and treat the plaintiffs as the owners.

II.               FACTS

[9]      The Gun Club is located at 221 Long Harbour Road, Saltspring Island.  The plaintiffs' property is at 291 Long Harbour Road.  The current zoning permits "non-commercial active outdoor recreation."

[10]    The Gun Club has been at its present home since 1959, when Club members began clearing and using land owned by Mr. Vic Jackson, himself a member, for shooting.  There were no zoning bylaws in place at the time.  In 1961, the Gun Club was incorporated as a registered society and it completed the purchase of both the cleared property and an adjoining parcel of land.  An indoor pistol and rifle range and a clubhouse were built.  An outdoor rifle and pistol range and a trap shooting range were laid out.  The cowboy action range was added more recently.

[11]    The Club currently has approximately 190 members.  In addition, it allows the RCMP to make use of the Club's facilities for training purposes.

[12]    When Mr. Jackson sold the property to the Gun Club, he retained an adjoining lot.  This is the land that the plaintiffs now own, having bought it from intermediate owners, the Kriegers.

[13]    Both outdoor ranges were originally aligned to shoot toward the lot that Mr. Jackson had retained.  Although a berm was erected as a backstop, there was no natural feature, other than trees, to prevent shot from landing on Mr. Jackson's property, especially from the trap range.  He permitted the Club to shoot in that manner and participated in that shooting.

[14]    After the Jackson property was purchased by Mr. and Mrs. Krieger in January 1986, Mr. Krieger complained to the Club about shotgun pellets falling on his property and, by January 1987, the two outdoor ranges had been realigned to avoid further deposits.  This is the basis for the Gun Club's argument that any lead on the plaintiffs' property was deposited with the consent of the former owner before the range was realigned.

[15]    The Club's shooting ranges were inspected, and range operating permits were issued, first by the Provincial Firearms Officer and later by the Federal Chief Firearms Officer for British Columbia.  As I mention later, the Gun Club is not in compliance with its permit.

[16]    The plaintiffs are husband and wife.  Mr. Milne is a retired or semi-retired businessman, having sold his companies, which were involved in the animal nutrition and animal pharmaceutical industries.  After he sold his companies he wanted to retire to a tranquil location and raise purebred sheep.

[17]    In 2006, when living in Vancouver, Mr. Milne saw an advertisement in a newspaper for the property.  As I stated above, it was owned by Mr. and Mrs. Krieger, who had bought it from Mr. Jackson.  The advertisement and materials sent to them by the real estate agent described the property as pristine and did not mention the adjacent Gun Club.  Each of the plaintiffs visited the property separately and they purchased it in 2006 for $4,000,000.  In 2008 they purchased an adjacent lot and have purchased other property on Saltspring.

[18]    The plaintiffs say that when they purchased the property they did not know the Gun Club adjoined it, and did not learn of it until 2010.  At the time they purchased the property, there was a sign at the entrance to the Club, but they plaintiffs say they did not see it.  The real estate agent for the transaction knew of the Club's existence, but did not mention it to the plaintiffs.

[19]    The plaintiffs do not reside on the property, and have never done so.  After the purchase, the Kriegers stayed in the main home on the property for some time and then the plaintiffs leased the home to the Child Honouring Society.  In 2011, Mr. Rokeby-Thomas leased the home and was residing in it at the time of trial.

[20]    The plaintiffs use the property as a farm and keep animals on it.  They now have 30 ewes and have also raised turkeys and hens.

[21]    The farm is mostly tended to by Mr. Milne; Ms. Barakett says she has not gone back to the property since the first loud gunshot she heard.  She said that when they first bought the property she tended to the animals and heard what she described as the "tap-tapping of gunfire".  Mr. Krieger happened to be visiting and he told her that there was a gun club next door.  On September 17, 2011, she heard a very loud gun shot – she said the words to describe it were not in her vocabulary.  Her dog "shot" into the car and the sheep "scurried" about.

[22]    Mr. Milne estimated that he is on the property six or seven times per week, and hears shooting from the Gun Club approximately twice per week in the morning and three times in the afternoon.  He described the sound of the shooting as "almost like an explosion" and painful to the ears despite his hearing problems (he wears a hearing aid).  He says that the volume of the shooting frequently startles his sheep, although a video put into evidence showed them more sauntering than running to the barn.  He says the noise has caused his turkeys to pile up and suffocate, resulting in the death of fifteen of them on one occasion.

[23]    Mr. Rokeby-Thomas testified that the noise is frequent and unpredictable.  He works outside of the home designing a turbine and says the noise interferes with his ability to concentrate.

[24]    Mr. Rokeby-Thomas said he has knowledge of firearms and the ability to distinguish between various calibers.  He described once hearing a semi-automatic firearm at the Gun Club discharging 17 to 21 consecutive shots.  Based on his knowledge, he has says he has been able to discern from the sound of gunshots that members regularly fire .50 calibre guns and shoot at metal targets.  He described the rapid firing of medium caliber pistols, and testified that it sounds comparable to a war zone.  He testified that the gunshots make the sheep and chicks run into the barn and huddle into a pile.

[25]    There is a smaller cottage on the property.  Mr. Milne says he is unable to rent it because of the shooting noise.

[26]    A number of other neighbours testified as to the noise.  They obviously reside in different locations than the plaintiffs, but their evidence does corroborate the plaintiffs' evidence of the nature of the noise emanating from the Club.  I will come back to that later.

[27]    The plaintiff provided an expert report on noise levels prepared by Duane Marriner, a mechanical engineer and consultant for Wakefield Acoustics.  He was called as a witness.  A table from his report shows the noise levels at the plaintiffs' property and that of some neighbours:

Table 1 Residential Noise Exposures from Salt Spring Island Rod & Gun Club

Date

Start Time

Stop Time

Address

Location

LAI (dBAI)

August 20, 2011

10:38

11:00

173 Churchill Road

40 m from residential facade

70-87

June 17, 2012

10:10

12:54

291 Long Harbour Road

150 m from residential facade

84-104

June 17, 2012

10:10

12:54

291 Long Harbour Road

30 m from residential façade

65-85

June 26, 2012

14:20

14:53

291 Long Harbour Road

200 m from residential façade

90-98

This noise level range has been estimated based on relative distances involved and terrain shielding. Measured levels were extrapolated to the point of reception 30 m from facade by adjusting levels downward a total of 18 dBAI (8 dBAI for the increased distance of 120 m and 10 dBAI for terrain shielding assuming that the firearm noise source is a point source).

[28]    Mr. Marriner attempted to put the sound levels in context by reference to an RCMP report he located.  His report says:

Guidelines for Residential Exposure to Firearm Noise

The document Shooting Ranges and Sound [1] has been adopted as a relevant guideline for residential exposure to the sounds of firearms.  Section 2.1.2 states "...the 'threshold for annoyance' due to impulsive noise is from 65 to 70 dBAI."  Further, references are cited that specify that the noise level range for limited community reaction to firearm sound is between 50 and 70 dBAI.

This document provides guidance on the selection of a suitable point of reception for conducting a sound level assessment of firearm noise.  Section 2.2 recommends selecting a point of reception with 30 m of a residential dwelling when located in rural surroundings.

Health Canada's National Guideline for Environmental Noise Control [2] recommends noise levels should not exceed 50 dBAI at the point of reception.

ISO R1996 [3] specifies a limit of Leq (1 hour) 40 dBA for daytime for residences in rural surrounds (see Appendix A).  This standard takes into account the background noise of the surroundings.  In addition, under ISO 1996-1:2003(E) [4], a 12 dBA penalty is to be applied to highly impulsive noise sources such as firearm noise.

(In his evidence he clarified that the reference to s 2.1.2 should be to 2.1.1.)

[29]    Mr. Marriner explained that an increase in sound from 65 to 75 decibels is perceived by the human ear as a doubling in sound.  Accordingly, an increase from 65 to 85 decibels is perceived as a quadrupling in sound.  His evidence was that the noise exceeded what CRD Bylaw 3384, discussed below, contemplated as "peace, quiet, and enjoyment."

[30]    Mr. Marriner gave evidence that some readings from the Gun Club were as high as 104 decibels, and compared that to readings from the Gabriola Gun Club, which were substantially lower.

[31]    The Gun Club points to what it says are several deficiencies in the report, largely focussing on issues related to the character of the neighbourhood:

a.       The report attempts to answer the question of "…whether noise levels from the Gun Club's activities were higher than those considered reasonably acceptable in a rural residential area?"  The Gun Club challenges that characterisation of the neighbourhood.

b.       Mr. Marriner did not know who produced the RCMP report on "Shooting Ranges and Sound" on which he relied, or for what purpose the report was made.  The RCMP report itself states at page 8, section 1, that it "…solely reviews various guidelines, regulations and limits for shooting noise; it does not set nor recommend limits", and "This document should not be used for design purposes, as the sound levels of shooting noise are dependent on many factors, all of which must be considered in a particular situation".  The report itself does not attempt to answer the question, which should have been posed by Mr. Marriner, as to whether the sound levels were excessive for a gun club located in this particular neighbourhood.  It was not appropriate to judge the level of tolerance of an average person by a report developed for quite another purpose.

c.       In a similar vein, the RCMP Shooting Ranges and Sound Guidelines adopted by Mr. Marriner were framed as a guide to residential exposure to the sound of firearms and as a guide for determining what is an acceptable limit to humans of the impulsive noise of firearms.

d.       In relying upon three studies mentioned in the RCMP report, Mr. Marriner (at page 3) adopts the study by Smoorenburg to determine that "the threshold for annoyance due to impulsive noise is from 65 to 70 dBAI," and the study by Arntzen to determine that "limited community reaction to firearm sound is between 50 and 70 dBAI" without noting that the RCMP Report, at page 19, sections 2 and 2.11, rejects fixed criteria to describe "the annoyance of a noise", because it takes no account of difference in localities and time of day.

[32]    I will return to the noise level issue later.

[33]    As mentioned, several other neighbours testified as to the noise from the Gun Club on their properties.  The admissibility of this evidence with respect to the level of the noise (as opposed to its frequency) was a matter of contention; as the Gun Club pointed out, the neighbours were not plaintiffs and the character of the noise on their properties might be different.  Given the Gun Club's portrayal of Mr. Milne as a "neighbour from hell", a complainer and a professional litigator, I found that the effect of the noise on multiple neighbours was admissible to corroborate his evidence.  I have discussed the evidence of Mr. Rockaby-Thomas.  While not a plaintiff, he lives on the plaintiffs' property and there is no issue as to the admissibility of his evidence or its direct relevance.

[34]    The neighbours found the shooting noise as disturbing as the plaintiffs did.  Some said they could not eat outdoors in the summer.  Most said they could hear the shooting when they were indoors.  All of the witnesses said they could not enjoy their property.

[35]    I have no evidence as to what measures are taken by other gun clubs to mitigate noise, or to any standard in the "industry" for their construction or operation.  However, the Gun Club acknowledged that soundproofing and a door could be added to the indoor range.  That would obviously mitigate the noise to some extent.  Also, the side berms for the outdoor range are not in compliance with the requirements set out in the Club's permit.  While that is a safety issue, which is not something pleaded here, the Gun Club acknowledged that proper berming might mitigate noise from that range.  The Club has the wood on hand to do the work, but has not done so.

[36]    The regulating authority for Saltspring Island is the Capital Regional District.  Until 1986 there were no noise bylaws for the Island.  The 1986 CRD bylaw prohibited the making of "any objectionable noise", but exempted noise from the "discharge of firearms at outdoor rifle ranges or trap fields operated by a lawfully operated gun or rod club after nine o'clock in the forenoon and before sunset".

[37]    In 1992, a new noise bylaw was enacted that maintained the firearms exemption, but replaced the general noise restriction term with:

No person shall make, cause to be made, or continue to make any noise or sound in the Electoral Area which creates a noise that disturbs or tends to disturb the quiet, peace, rest, enjoyment, comfort or convenience of the neighbourhood or of persons at or near the source of such noise or sound.

[38]    The firearms exemption was removed in 2006, and the following added when CRD Bylaw 3384 was enacted:

No person shall discharge a firearm before 9:00 am or after sunset that disturbs other people as described in Section 2 of this Bylaw.

No noise bylaw tickets were issued to the defendant until 2012.  Recently, three noise bylaw tickets issued under s. 2 were quashed on legal points not related to the merits, and three issued under s 3(6) were sent on for trial:  see Salt Spring Island Rod and Gun Club v. Capital Regional District, 2013 BCSC 1612.

[39]    The posted shooting hours at the Club are:

·       Indoor range: 10 am to 9 pm, Monday through Sunday

·       Outdoor Ranges: 10 am to 7 pm, Monday to Thursday; 10 am to 5 pm, Saturdays; closed Sunday except for archery.

The Club allows shooting outside these hours for special events, such as on Father's Day.

[40]    However, both the actual hours and days that the Club is used, as well as the intensity of use, were matters of substantial debate.  Members are required to log in.  While the Club keeps the log sheets, there were gaps in them.  The plaintiffs and some of the neighbours also kept notes of the shooting hours and challenged the accuracy of the logs, up to the end of trial.  Each side provided its own analysis of the logs (not done by experts), which did not match up.

[41]    I do not think it necessary for me to resolve this conflict in the evidence for two reasons.  The first is that I do not think the historic shooting pattern is germane:  what is relevant is whether the noise constitutes a nuisance now.  I can determine that from the evidence given by the plaintiffs and other witnesses.  Second, I accept the evidence that shooting has taken place outside of the officially-allowed hours and I do not need to determine the precise parameters of that.

III.             THE LEGAL PRINCIPLES

[42]    The legal principles of nuisance are well established and uncontroversial.  Nuisance is the unreasonable interference with a person's enjoyment of his or her land or physical damage to that land.  Some judgments and texts refer to a requirement of the interference being serious, but logically that can be subsumed in the "unreasonable" analysis.

[43]    The difficulty in nuisance cases is applying the concept of reasonableness.  Determining whether something is a nuisance always involves balancing the interests between the parties.  The principle is stated succinctly in Clerk & Lindsell on Torts, 20th ed. (London: Thomson Reuters (Legal), 2010) at para. 20–10:

Question of degree In nuisance of the third kind, "the personal inconvenience and interference with one's enjoyment, one's quiet, one's personal freedom, anything that discomposes or injuriously affects the senses or the nerves", there is no absolute standard to be applied. It is always a question of degree whether the interference with comfort or convenience is sufficiently serious to constitute a nuisance. The acts complained of as constituting the nuisance, such as noise, smells or vibration, will usually be lawful acts which only become wrongful from the circumstances under which they are performed, such as the time, place, extent or the manner of performance. In organised society everyone must put up with a certain amount of discomfort and annoyance caused by the legitimate activities of his neighbours. Ordinary domestic use of premises therefore cannot constitute a nuisance, even though interference with the enjoy­ment of neighbouring premises is caused, if that interference results solely from construction defects for which the defendant is not responsible. In attempting to fix the general standard of tolerance the vague maxim sic utere tuo ut alienum non laedas has been constantly invoked. But the maxim is of no use in deciding what is the permissible limit in inconvenience and annoyance between neigh­bours, and the courts in deciding whether an interference can amount to an actionable nuisance have to strike a balance between the right of the defendant to use his property for his own lawful enjoyment and the right of the claimant to the undisturbed enjoyment of his property. No precise or universal formula is possible, but a useful test is what is reasonable according to ordinary usages of mankind living in a particular society.

[Footnotes and quotation ommitted.]

[44]    The character of the neighbourhood is, as the Gun Club emphasizes, an important consideration.  The matter was stated in a manner that might now be regarded as somewhat quaint by Thesiger L.J. in Sturges v. Bridgman (1879), 11 Ch.D. 852 at 865 (C.A.), in which he noted that "what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey".

[45]    The matter is put as follows in the seventh release of Lewis N. Klar et al., Remedies in Tort, loose-leaf (Toronto: Thomson Reuters Canada, 1987) in chapter 17 at §32:

§32      …Where material damage to the plaintiff's premises or property occurs as a result of the activities of the defendant, the plaintiff is entitled to redress, irrespective of the locality. However, where personal discomfort is at issue, the character of the locality is of importance in determining the standard of comfort that an occupier may reasonably claim, as individuals living in society must be prepared to submit to that amount of discomfort as is necessary for the legitimate and free exercise of the trade of their neighbours. The standard against which the plaintiff's discomfort is measured is that expected by the ordinary reasonable and responsible person in the particular area.  Accordingly, to establish a nuisance, the plaintiff may be required to show that he has suffered sensible discomfort and inconvenience which exceeds the standard given the nature of the locality.

[Footnotes omitted.]

[46]    The alleged lack of utility of the Gun Club's conduct is a factor emphasized by the plaintiffs; however, even if the plaintiffs' characterization of that conduct is accepted, that is a consideration to be given little weight in this case.  While 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, as per Royal Anne Hotel Co. Ltd. v. Ashcroft, [1979] 2 W.W.R. 462 at 467-68, 95 D.L.R. (3d) 756 (B.C.C.A.), the lack of social utility of a defendant's activities cannot transform an otherwise reasonable use of land into a nuisance.

[47]    Compliance with bylaws or regulations is not a defence to a claim of nuisance:  see, for example, Suzuki v. Munroe, 2009 BCSC 1403.

IV.            ANALYSIS

[48]    I will deal first with the character of the neighbourhood.

[49]    Saltspring Island is not wilderness.  The plaintiffs are not far from the town of Ganges, which is served by a floatplane service, the noise of which can be heard on the plaintiffs' property.  The plaintiffs and other neighbours can hear the noise from the bars in Ganges, and traffic from the ferry runs through the neighbourhood.

[50]    That said, the neighbourhood is not high-density urban.  It is not next to an airport like YVR.  It is not industrial.  Most of the witnesses said they moved there for the peace and quiet offered by the neighbourhood when compared to an urban environment.

[51]    Turning to the noise, I accept the evidence of the plaintiffs and the neighbours that the noise is disturbing.  It is percussive.  It is irregular in its intervals and therefore unpredictable.  It can be frightening.  That is clearly in contrast to the sound of a floatplane, no matter how loud that might be (Mr. Marriner said the sound of a Beaver floatplane at 50 feet would be about 150db).  It is also a different quality of noise than what emanates from the bars in Ganges.

[52]    Those conclusions may be reached without the aid of Mr. Marriner's report.

[53]    The Capital Regional District has allowed the establishment of small-acreage residential neighbourhoods bordering the Club.  The neighbourhood is not the same as it once was.  A landowner does not retain vested rights when a neighbourhood changes – he must comport himself in accordance with the character of the neighbourhood as it evolves.

[54]    I find that the shooting as currently practised constitutes a nuisance.

[55]    The question then becomes whether a complete injunction should be granted requiring the Gun Club to cease operations or whether a limited injunction should be given imposing restrictions on the Club's operations.  As I said earlier, both sides agreed that I have the ability to grant such an order and to leave it open to the parties to come back before me if they disagree on the effectiveness of particular provisions.  Further, counsel also agreed that if I provided some parameters they might be able to agree on the terms of a limited order.

[56]    In my view it is preferable to grant a limited injunction.  One of the difficulties in crafting an injunction in this case is the fact that, as I said above, I have no evidence as to the standards recommended for gun club construction and operation.

[57]    I leave it to the parties to attempt to come to terms on a limited injunction on the basis that the matter may be brought back before me after a trial period.

[58]    Any arrangement would have to provide for the following:

·       reduced shooting hours from what exists at present;

·       soundproofing the indoor range and adding a door or doors;

·       extending the side berms of the 100-yard outdoor range; and

·       a means to collect spent lead from the ground.

[59]    Given that only one couple uses the cowboy action range, I suggest the Gun Club consider eliminating it.

[60]    I will not deal with damages since those were sought as an alternative to an injunction.

“E.M. MYERS, J.”