



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Wallster v. Erschbamer,









2011 BCCA 27




Date: 20110128

Docket: CA037767

Between:

Suzanne Marie
Wallster

Appellant

(Petitioner)

And

Miriam Erschbamer
and Robert Walker Bowe

Respondents

(Respondents)




Before:



The Honourable Madam Justice Newbury





The Honourable Mr. Justice Mackenzie





The Honourable Mr. Justice Hinkson




On appeal from: Supreme
Court of British Columbia, November 26, 2009
(
Wallster v. Erschbamer,
2009 BCSC 1619, Vancouver Registry No. S096482)




Counsel for the Appellant:



W. Kosteckyj





Counsel for the Respondents:



J.L. Straith





Place and Date of Hearing:



Vancouver, British
  Columbia

January 10, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 28, 2011









Written Reasons by:





The Honourable Madam Justice Newbury





Concurred in by:





The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice Hinkson








Reasons for Judgment of the Honourable
Madam Justice Newbury:

[1]

Ms. Wallster appeals an order of the Supreme Court of British Columbia
below which dismissed her petition for an order rescinding, varying or
cancelling a restrictive covenant and easement registered against her property in
favour of the respondents and their successors in title.  The order was made on
November 26, 2009 by Mr. Justice Masuhara for reasons indexed as 2009
BCSC 1619.

[2]

Ms. Wallster lives to the immediate east of the respondents in
North Vancouver.  She and her husband wished to build a new house that would
incorporate various energy-efficient features.  Beginning in 2008, they
prepared their plans and obtained building approval from the District of North
Vancouver, but they and their designer/contractor, Mr. Henderson, did not
review the terms of the restrictive covenant and easement until February 2009. 
These charges had been registered against title to the appellants property
since 1972 and ran with the land.

[3]

The terms of the restrictive covenant limit the height  measured from
the height of the sill of a west-facing window of the respondents house that
overlooks the appellants property  of any dwelling or structure that may be
erected on that property.  Before the owner may commence construction of any such
dwelling or structure, the covenant requires that the written approval of the Grantee
therein, i.e., the respondents, be obtained.

[4]

The house Ms. Wallster planned to build would originally have set the
height of her roof approximately four feet higher than permitted by the
covenant.  After various discussions between the neighbours, the appellant
revised her plans at least twice, such that by the time of the hearing below, the
height being proposed by the appellant would exceed the height restriction by
only 16 inches.  An alternative plan prepared by Mr. Henderson
did
comply with the restrictive covenant, but it was problematic from the
appellants point of view: it would allow little natural light into the rear
side of her house and it would be necessary for ventilation of the first floor
to be carried out by mechanical means  something Ms. Wallster finds intolerable. 
This design would also entail additional costs of approximately $100,000 for
the appellant.

[5]

The respondents refused to agree to the 16-inch modification Ms.
Wallster had proposed.  The chambers judge found that the respondents had
purchased their property because of the expansive views afforded from their
house.  In his words:

The evidence of Mr.
Bowe and Ms. Erschbamer establishes that the view from the Reference window
provides a wonderful view from their living room that covers a view of downtown
Vancouver between BC Place and Canada Place through to the southern part of
Vancouver Island and north to approximately Nanaimo. They entertain both
friends and business associates in this room. Further, their evidence is
supported by that of Mr. Krahn, a residential designer consulted by the
respondents, who supported the aesthetic value of a long distance view. He also
reinforced the conventional wisdom that a vista of an extensive nature has
financial value and that diminishing the view with a portion of a roof would
serve to impair that value. He says that the height of the house in the revised
design would diminish the view from the Reference window.  [At para. 19.]

[6]

The easement granted a corridor almost seven feet wide along the east
side of the appellants property, running its length between the two subject
lots, approximately 109 feet long.  It provided to the Grantee (again, the
respondents in this case) a free and uninterrupted right and easement, for
persons, animals and vehicles, through, along and over the appellants
property and the right to pass and re-pass over the said right and easement
for the purposes of ingress and egress to and from the said right and
easement.  The Grantor (now the appellant) covenanted to build and fence
and/or a wall to the satisfaction and discretion of the Grantee on the
easement, to clear the easement of any trees, growth or obstructions that might
interfere with the passing or repassing ... for the purpose of ingress and
egress to and from the said easement, and to use the easement for gardening
or planting of shrubs [or] trees that the Grantee might wish to have planted
on the easement.

[7]

A wall has been in place on the easement since before the respondents acquired
their property.  It runs north/south and extends about 13 feet back from the
southern property line, and encroaches about ten inches over the boundary of
the easement onto the appellants lot.  The respondents constructed a wall
adjoining and running perpendicular to the first wall.  The second wall blocks
access to the easement from Tamarack Road, thus (the appellant says)
restricting use of the easement to the respondents.  As the appellant states in
her petition, The Easement which is granted in favour of the Respondents is
entirely lodged and walled in such a manner that the Petitioner has no ability
to use such Lands.

[8]

Ms. Wallster brought her petition seeking cancellation or modification of
both encumbrances, pursuant to s. 35(2)(b) of the
Property Law Act
,
R.S.B.C. 1996, c. 377.  Section 35 provides:

35  (1)  A person
interested in land may apply to the Supreme Court for an order to modify or
cancel any of the following charges or interests against the land, whether
registered before or after this section comes into force:

(a)  an easement;

(b)  a land use contract;

(c)  a statutory right of way;

(d)  a statutory building or
statutory letting scheme;

(e)  a restrictive or other
covenant burdening the land or the owner;

(f)   a right to take the produce
of or part of the soil;

(g)  an
instrument by which minerals or timber or minerals and timber, being part of
the land, are granted, transferred, reserved or excepted.

(2)  The court
may make an order under subsection (1) on being satisfied that the application
is not premature in the circumstances, and that

(a)  because of
changes in the character of the land, the neighbourhood or other circumstances
the court considers material, the registered charge or interest is obsolete,

(b)
the reasonable
use of the land will be impeded, without practical benefit to others, if the
registered charge or interest is not modified or cancelled
,

(c)  the
persons who are or have been entitled to the benefit of the registered charge
or interest have expressly or impliedly agreed to it being modified or
cancelled,

(d)  modification
or cancellation will not injure the person entitled to the benefit of the
registered charge or interest, or

(e)  the registered instrument is
invalid, unenforceable or has expired, and its registration should be
cancelled.  [Emphasis added.]

[9]

The appellant submitted that her reasonable use of her property  the
construction of an energy-efficient home  will be impeded without practical
benefit to others if the modification or cancellation is not permitted.  The
chambers judge elaborated:

The essence of the petitioners
argument is that since the roof at the sought after height will obscure the
view only a minimal amount more than it would if the roof were built to the
height specified in the [restrictive covenant], there is no practical benefit
to the respondents to maintain the height restriction. In support of this
position, the petitioner relies upon the affidavits of Mr. Henderson and view
images prepared by Mr. Humney, a designer. Mr. Henderson also deposes that
alternatives to the design to bring the house within compliance of the [restrictive
covenant], have been considered, but that they would be at great expense, or in
the case of blasting bedrock to build up from a lower level, would also not be
permissible. He further deposes that the excess height is required as the
passive ventilation design requires ceiling fans on the upper floor for air
flow. In the absence of a modification of the height restriction, mechanical
ventilation equipment on the exterior of the building would be required which
would create ambient noise. Ms. Wallster says that she cannot tolerate the
effects of air conditioning. The other flaw that Mr. Henderson identifies in
the design without the height restriction being relaxed is that there would be
little light permitted into the rear of the house where the master and second
bedrooms are located. Mr. Henderson notes that this area of the house is
currently dark as there is little space between the respondents and
petitioners houses, only 14 feet.  [At para. 10.]

[10]

Masuhara J. noted, correctly, that the appellant had the burden of
establishing that there was no practical benefit to others in keeping the
height restriction in place, and that both subjective and objective factors
could be taken into account in considering the question of practical benefit to
others.  (See
Gubbels v. Anderson
(C.A. Vic. Reg., #V02171, June
16, 1995) at paras. 23-5.)  After noting the aesthetic and financial value of
the respondents view (see para. 19 quoted above), he rejected the appellants contention
that the roof height she sought would impede the view only slightly and that
there were better views from other places in the respondents home.  In his
analysis, the focus of the restrictive covenant was on the window specified
therein and the practical benefits derived
at that location
.  The chambers
judge found no merit in the argument that the sought after roof height would
only impede slightly the view from a roof built to the height permitted [by the
restrictive covenant], given that a practical benefit exists.  (Para. 20.)

[11]

The chambers judge went on to observe that the additional height sought
by Ms. Wallster was not necessary to meet building code

requirements,
although there was evidence from Mr. Henderson that it was most desirable. 
The judge continued:

... The driver of the roof height
is the petitioners desire for passive ventilation in the house, and that
ceiling fans to permit this are required and apparently necessitate the greater
height. It would also provide for additional natural light from glass panels
which would be installed at the top of the walls. However, Mr. Henderson has
acknowledged that mechanical ventilation could be used to achieve the
ventilation requirements without increasing the roof height. It is only the
petitioners preference for passive ventilation that necessitates the higher
roof level. While Mr. Henderson deposes that the alternative of digging out the
foundation and having the structure built up from a lower level is not feasible
because this would require blasting, which in his view would not be permitted
because of the proximity to the respondents foundation and that, in any event,
such a task would require the total demolition of the existing structure and
re-servicing of the lot at great expense,
this is not a factor that is
relevant to the issue of a practical benefit
.  [Para. 21; emphasis added.]

In all the circumstances, he concluded that the
appellant had failed to demonstrate [the] absence of a practical benefit to
others arising from the restrictive covenant.  He also found that none of the
other paras. of s. 35(2) was applicable.

[12]

The chambers judge noted that the parties dispute concerning the
easement was secondary to the dispute over the height restriction.  However,
he found that the easement also provided a practical benefit to the respondents
with respect to light, air and access; that the construction of the wall along
the easement had been expressly contemplated by its terms; that the easement
facilitated the need for light and air in terms of space; and that if any
change were to be considered in terms of the removal of either wall or part
thereof, municipal or other public approvals would be required under
s. 35(4)(a) of the Act.  Such approvals had not been sought.

[13]

In the result, although the Court acknowledged that it was unfortunate
that the appellant and her husband found themselves in a difficult position
regarding their home redesign, the petition was dismissed.

On
Appeal

[14]

In this court, Ms. Wallster asserts that the chambers judge erred
in failing to find that the reasonable use of her property would be impeded
without practical benefit to others if the restrictive covenant and easement
were not modified.  In essence, it is said that in referring to what was
necessary to meet building code requirements and for ventilation purposes, the
chambers judge required the appellant to demonstrate necessity or unreasonable
hardship proving that her proposal constituted a reasonable use of her
property.  In insisting on a reasonable alternative that would not require
the modification of the restrictive covenant, it is said the Court raised the
hurdle well above what was required by the statute and case law.

[15]

In the appellants submission, the chambers judge should instead have
asked only whether the sought-after modification constituted a reasonable use
of land  a question that could only be answered in the affirmative.  Then, it
is said, he should have asked himself whether, if the modification were not
permitted, the appellants use of her land would have been impeded without
practical benefit to others.  On this view, the appellant submits, the
question was not whether the restrictive covenant provided a practical benefit
to Ms. Erschbamer and Mr. Bowe, but rather
whether a denial of the
16-inch modification
provided a practical benefit to them.  (My emphasis.) 
Since the respondents view was going to be impeded, at least on the horizontal
plane, in any event by the construction of the appellants house, she contends
that a roof design that would exceed the restriction by only 16 inches would
affect the respondents only minimally, and that there was no practical
benefit in
denying a 16 inch modification
given that the current view
would be lost in any event.

[16]

I must say that I do not read the Courts comments regarding the
necessity, or lack of necessity, for natural ventilation or for building codes
to be complied with, as material to the question of reasonable use, the first
branch of s. 35(2)(b).  I read these observations and others regarding the
possibility of excavating further, as a recounting of the evidence given by Mr.
Henderson.  In the end, the chambers judge said, this was not relevant to the
issue of practical benefit  the second branch of s. 35(2)(b).  (See para. 21,
quoted above.)  I see no suggestion in the reasons that the appellants
proposed use of her land to build a residence would not have been a reasonable
use.

[17]

Nor do I agree that the chambers judge asked the wrong question on the
issue of reasonable use.  While s. 35(2)(b) is not worded felicitously, the
question for the court seems clear enough: if the encumbrance is not modified,
will the reasonable use of the appellants property be impeded without
practical benefit to, in this case, the respondents?  Put another way, does the
encumbrance as it now exists provide a practical benefit to the respondents? 
This is not the same as asking whether the denial of a specific modification
will provide a practical benefit, although the difference is very subtle.

[18]

The appellant further argues that the application of s. 35(2)(b) of
the
Property Law Act
entails the balancing of the impediments that
will be suffered by the petitioner if the restrictive covenant is not cancelled
or modified, against the benefits enjoyed by the respondents and others if the
status
quo
is maintained.  Counsel drew our attention to
Winmark Capital Inc.
v. Galiano Island and Local Trust Committee,
2004 BCSC 1754, where the Court
said this about s. 35(2)(b):

This subsection requires some balancing of the impediments
suffered by the petitioner against the benefits gained by the respondents and
others.  In saying this, I recognize that this is not a mere balance of
convenience test.  The petitioner must show a very substantial balance in
its favour before a covenant will be cancelled.

In the present case, I am unable
to say that there is a significant impediment to the petitioners current use
of the land as a result of the covenant ...  [At paras. 42-3.]

[19]

I am not persuaded that s. 35(2)(b) should be approached as a
balancing exercise.  As I read the provision, the petitioner (Ms. Wallster
in this case) must show that the reasonable use of the land (here, the erection
of her new house, which in my view is obviously a reasonable use) will be
impeded without practical benefit unless the petition is granted  in other
words, that the continuation of the covenant or other charge provides
no
practical benefit.  If this burden is not met, the petition should not be granted. 
It is clear that practical benefit can include subjective factors such as
neighbourhood aesthetics (see
417489 B.C. Ltd. v. Scana Holdings Ltd.
(1997)
B.C.J. No. 2408, at paras. 72-4), and to that degree s. 35(2) may involve
the exercise or some discretion by the court.  It may also be the case that a
truly minimal benefit  for example, the preservation of one inch of the
height restriction in this case  could also be disregarded on the principle of
de minimis non curat lex.
But that principle was not engaged in this
case, where there was evidence not only from the respondents but also from real
estate professionals as to the value, in both subjective and objective terms,
of preserving the respondents view as is.  Various photographs and projections
of the comparative views from the respondents house with and without the 16-inch
modification supported the chambers judges conclusion that they enjoy a
practical benefit from the height restriction.

[20]

Turning to the easement, the appellant submits that although the
original purpose thereof was to provide access to the respondents dwelling (via
a side door near the middle of the side of the house) from Tamarack Road, that
purpose had been completely frustrated by the construction of the wall perpendicular
to the easement corridor.  They suggest that the easement be reduced to a width
of about three feet and that it extend only as far as the side door, i.e., the
minimum necessary to accomplish what they say is the primary purpose of the
easement  providing ingress and egress to the respondents house.

[21]

Even if the appellant is correct as to the primary purpose of the
easement, it seems to me that any narrowing of its width or length is almost
automatically a diminution of the practical benefit it affords to the
respondents and will afford to future owners of their property.  The chambers
judge found that the easement facilitated the need for light and air as well as
access, and that the market value of the property would surely reflect the
existence of the easement and the restrictive covenant.  I see no basis on
which we could interfere with this conclusion.

[22]

I would therefore dismiss the appeal.

The
Honourable Madam Justice Newbury

I agree:

The
Honourable Mr. Justice Mackenzie

I agree:

The Honourable Mr. Justice
Hinkson


