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.

CourtLangleyLangley Township

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

A Fort Langley letter writer lays out why he disagrees with the Township’s suggestion to withhold permissive tax exemptions for churches that defy Provincial Health Orders (file photo)
LETTER: Township church tax move feels punitive, Langley man argues

Township looking at whether to give permissive tax exemption to churches holding in-person services.

Abbotsford football star Chase Claypool has signed an endorsement deal with Nike’s Jordan brand. (Air Jordan website)
Langley’s Chase Claypool signs with Nike’s Jordan brand

Abbotsford Senior Secondary School grad had to settle for knock-off shoes when he was a student

Someone bought a lottery ticket worth $4.2 million in Aldergrove (file)
Lottery ticket worth $4.2 million purchased in Aldergrove

Lotto 6/49 numbers were drawn Saturday

Police tape is shown in Toronto Tuesday, May 2, 2017. (Graeme Roy/The Canadian Press)
CRIME STOPPERS: ‘Most wanted’ for the week of Jan. 24

Crime Stoppers’ weekly list based on information provided by police investigators

Terrance Josephson of the Princeton Posse, at left, and Tyson Conroy of the Summerland Steam clash during a Junior B hockey game at the Summerland Arena in the early spring of 2020. (John Arendt - Summerland Review)
QUIZ: How much do you know about hockey?

Test your knowledge of Canada’s national winter sport

A woman injects herself with crack cocaine at a supervised consumption site Friday, Jan. 22, 2021 in Ottawa. THE CANADIAN PRESS/Adrian Wyld
Drug users at greater risk of dying as services scale back in second wave of COVID-19

It pins the blame largely on a lack of supports, a corrupted drug supply

Wet’suwet’en supporters and Coastal GasLink opponents continue to protest outside the B.C. Legislature in Victoria, B.C., on Thursday, February 27, 2020. THE CANADIAN PRESS/Chad Hipolito
‘We’re still in it’: Wet’suwet’en push forward on rights recognition

The 670-km Coastal GasLink pipeline was approved by B.C. and 20 elected First Nations councils on its path

Jennifer Cochrane, a Public Health Nurse with Prairie Mountain Health in Virden, administers the COVID-19 vaccine to Robert Farquhar with Westman Regional Laboratory, during the first day of immunizations at the Brandon COVID-19 vaccination supersite in Brandon, Man., on Monday, January 18, 2021. THE CANADIAN PRESS/Tim Smith - POOL
Top doctor urges Canadians to keep up with COVID measures, even as vaccines roll out

More than 776,606 vaccines have been administered so far

Cannabis bought in British Columbia (Ashley Wadhwani/Black Press Media)
Is it time to start thinking about greener ways to package cannabis?

Packaging suppliers are still figuring eco-friendly and affordable packaging options that fit the mandates of Cannabis Regulations

From the left: Midway RCMP Csts. Jonathan Stermscheg and Chris Hansen, Public Servant Leanne Mclaren and Cpl. Phil Peters. Pictured in the front are Mclaren’s dog, Lincoln and Peters’ dog, Angel. Photo courtesy of BC RCMP
B.C. Mounties commended for bringing firewood to elderly woman

Cpl. Phil Peters said he and detachment members acted after the woman’s husband went to hospital

Dr. Jerome Leis and Dr. Lynfa Stroud are pictured at Sunnybrook Hospital in Toronto on Thursday, January 21, 2021.THE CANADIAN PRESS/Frank Gunn
‘It wasn’t called COVID at the time:’ One year since Canada’s first COVID-19 case

The 56-year-old man was admitted to Toronto’s Sunnybrook Health Sciences Centre

An Uber driver’s vehicle is seen after the company launched service, in Vancouver, Friday, Jan. 24, 2020. Several taxi companies have lost a court bid to run Uber and Lyft off the road in British Columbia. THE CANADIAN PRESS/Darryl Dyck
Taxi companies lose court bid to quash Uber, Lyft approvals in British Columbia

Uber said in a statement that the ruling of the justice is clear and speaks for itself

sd
VIDEO: Mission drag racer scores 1st career win, sets world record, makes history in 2020

Justin Bond, founder and owner of JBS Equipment Mission, has break-out year

Most Read