Case information

Property — Real property — Easements — Applicants purchasing property with easement registered on title — Easement providing neighbouring property with beach access — Owners of neighbouring property constructing stairs on easement, and municipality issuing permit for stairs — Applicants seeking judicial review of municipality’s decision to process and issue permit for stairs —Neighbouring property owners seeking declaration that stairs lawfully installed as necessarily ancillary to use and enjoyment of easement — Whether “circumstances” considered in the interpretation of private property rights include the public law landscape governing permitted use of property in question

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

In 2018, applicants Robert Douglas Armstrong and Margaret Jean Latham (hereafter, the “owners”) purchased a property which was subject to an easement. The easement was a burden on their title, as they owned the servient tenement. Their neighbours, respondents James Grier and Mary Jean Alger (hereafter, the “neighbours”) benefit from the easement as owners of the dominant tenement.

The easement runs, in part, over a steep slope. The neighbours constructed stairs on the easement without the owners’ permission or the necessary permits. The respondent municipality, District of North Saanich, granted the permits retroactively.

The owners sought to challenge the issuance of the permits by way of judicial review. The neighbours sought a declaration that the easement entitled them to build the staircase as a necessary ancillary right to the use and enjoyment of the easement. Both proceedings were heard together.

The chambers judge dismissed the petition for judicial review, and issued a declaration that the existence of the stairs on the easement was lawful as a necessary ancillary right for the use and enjoyment of the easement. The owners appealed both the easement and judicial review decisions, and sought to adduce new evidence. The Court of Appeal for British Columbia dismissed both appeals, as well as the application to adduce new evidence.