Tree not interfering with current use of land but was interfering with planned enhancement of land

Torts - Nuisance - Factors Giving Rise to Right of Action

Boundary tree. Parties owned adjacent homes and shared large mature maple which straddled boundary line, 2/3 on applicants' property and 1/3 on respondents'. Applicants brought application to authorize destruction of tree as part of their home renovation and expansion. Application dismissed. Tree belonged to both property owners. Tree pre-dated applicants' arrival eighteen years prior, was one of defining characteristics of neighbouring properties, and only became nuisance to them once they decided to add addition to their house. Tree was not interfering with applicants' current use and enjoyment of their land, but rather was interfering with their planned enhancement of their land. Destruction of tree was not trivial. Applicants failed to demonstrate that there was no reasonable alternative to removing tree, as record contained no alternative design explored by them.

Allen v. MacDougall (2019), 2019 CarswellOnt 4789, 2019 ONSC 1939, E.M. Morgan J. (Ont. S.C.J.).

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