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The Law of Nuisance

January 17, 2022

British Columbia

,

Canada

Issue

What are the necessary elements of the torts of nuisance and trespass and how do they differ from each other?

Conclusion

Nuisance

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. Determining whether something is a nuisance always involves balancing the interests between the parties. A nuisance claim arises from 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. (Milne v. Saltspring Island Rod and Gun Club)

In nuisance claims, 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. (Milne v. Saltspring Island Rod and Gun Club)

In attempting to fix the general standard of tolerance the vague maxim sic utere tuo ut alienum non laedas [use your property, but without injuring another] 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. (Milne v. Saltspring Island Rod and Gun Club)

The character of the neighbourhood is an important consideration. 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. (Milne v. Saltspring Island Rod and Gun Club)

The essence of the tort of nuisance is interference with the enjoyment of land. That interference need not be accompanied by negligence. In nuisance one is concerned with the invasion of the interest in the land, in negligence one must consider the nature of the conduct complained of. Nuisances result frequently from intentional acts undertaken for lawful purposes. The most carefully designed industrial plant operated with the greatest care may well be or cause a nuisance, if for example effluent, smoke, fumes or noise invade the right of enjoyment of neighbouring land owners to an unreasonable degree. A person may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable. (Royal Anne Hotel Co. v. Ashcroft)

All circumstances must be considered in answering the question of what constitutes an unreasonable invasion of an interest in land. What may be reasonable at one time or place may be completely unreasonable at another. It is certainly not every smell, whiff of smoke, sound of machinery or music which will entitle the indignant plaintiff to recover. It is impossible to lay down precise and detailed standards but the invasion must be substantial and serious and of such a nature that it is clear according to the accepted concepts of the day that it should be an actionable wrong. Actionability will result from an interference with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions. (Royal Anne Hotel Co. v. Ashcroft)

In reaching a conclusion, the Court must consider the nature of the act complained of and the nature of the injury suffered. Consideration must also be given to the character of the neighbourhood where the nuisance is alleged, the frequency of the occurrence of the nuisance, its duration, and many other factors which could be of significance in special circumstances. While an owner of land in a quiet residential district may well expect to be protected from the operation of a boiler factory on his neighbour's land, he may not be entitled to expect to prevent the boilermaker from pursuing his lawful calling when he seeks to put his residence in an industrial area next to the factory. The conflicting interests must be weighed and considered against all the circumstances. 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. (Royal Anne Hotel Co. v. Ashcroft)

At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct. Nuisance is defined as unreasonable interference with the use of land. Whether the interference results from intentional, negligent or non-faulty conduct is of no consequence provided that the harm can be characterized as a nuisance. The interference must be intolerable to an ordinary person. This is assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the plaintiff's use and the utility of the activity. The interference must be substantial, which means that compensation will not be awarded for trivial annoyances. (St. Lawrence Cement Inc. v. Barrette)

Dust they are, and unto dust they shall return, yet human beings have difficulty resigning themselves to living in dust. (St. Lawrence Cement Inc. v. Barrette)

A nuisance may be created even where the activity complained of is otherwise lawful. In particular, compliance with local municipal bylaws does not mean that the activity complained of cannot be a nuisance. The invasion complained of must be substantial and serious, and it must be clearly unacceptable according to accepted concepts of the day. Negligence is not required to make out the tort of nuisance. The converse is also true: the existence of due care will afford no defence if the other ingredients of the tort are present. (Suzuki v. Munroe)

Trespass

Construction equipment, such as cranes, hoists and building materials, overhanging a neighbour’s property are properly considered a nuisance or a trespass. A construction crane which enters the air space of another property is trespassing upon that air space. (OSED Howe Street Vancouver Leaseholds Inc. v FS Property Inc.)

The true question is whether the trespass is with leave and licence. If the entry goes beyond the permission given, there is, at least to the extent of the excess, no leave and licence. The burden of proving leave and licence is on the person who asserts it. It is a good defence to an action of trespass to land for the defendant to plead and prove that he entered on the land by the leave and licence of the plaintiff. If the person in possession of land gives to another person licence to enter on the land, then, so long as the licence continues and the entry is justified by the licence, the person to whom the licence was given cannot be treated as a trespasser. (Webb v. Attewell)

If a person had proceeded to trespass on another's property in order to save himself the costs of building on his own land without the trespass he should not be entitled to bear the fruits of his deliberately wrongful act. If it were otherwise property owners would inevitably choose to trespass at the risk of paying minimal damages against the certainty of real construction costs. (Webb v. Attewell)

Trespass vs. Nuisance

To succeed in a private nuisance action, the plaintiff must establish significant and substantial interference with the use or enjoyment of his property as a result of his neighbour's activities. Unlike the tort of trespass, nuisance is not actionable without proof of material loss or damage. Actual physical injury to the property can suffice but so too in appropriate cases can intrusions such as excessive noise, odours, fumes, vibrations or similar causes of substantial discomfort. (Drager v. Lojstrup)

Law

In Milne v. Saltspring Island Rod and Gun Club, 2014 BCSC 1088 (CanLII), Myers J. discussed the doctrine of nuisance:

[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.

In Suzuki v. Munroe, 2009 BCSC 1403 (CanLII), Verhoeven J. noted that the leading authority in BC on the law of nuisance is Royal Anne Hotel Co. v. Ashcroft, 1979 CanLII 2776 (BC CA):

[33] A leading authority in British Columbia on the law of nuisance is Royal Anne Hotel Co. Ltd. v. Village of Ashcroft (1979), 1979 CanLII 2776 (BC CA), 95 D.L.R. (3d) 756. The judgment of the Court was delivered by McIntyre J.A. He noted at 759 that “The essence of the tort of nuisance is interference with the enjoyment of land. (Street, Law of Torts, at p. 212.)”. He added at 759:

That interference need not be accompanied by negligence. In nuisance one is concerned with the invasion of the interest in the land, in negligence one must consider the nature of the conduct complained of. Nuisances result frequently from intentional acts undertaken for lawful purposes. The most carefully designed industrial plant operated with the greatest care may well be or cause a nuisance, if for example effluent, smoke, fumes or noise invade the right of enjoyment of neighbouring land owners to an unreasonable degree ...

[34] McIntyre J.A. referred to the following proposition from H. Street, The Law of Torts, 4th ed. (London: Butterworths, 1968) at 215:

A person then, may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable.

[35] He added at 760-61:

What is an unreasonable invasion of an interest in land? All circumstances must, of course, be considered in answering this question. What may be reasonable at one time or place may be completely unreasonable at another. It is certainly not every smell, whiff of smoke, sound of machinery or music which will entitle the indignant plaintiff to recover. It is impossible to lay down precise and detailed standards but the invasion must be substantial and serious and of such a nature that it is clear according to the accepted concepts of the day that it should be an actionable wrong. It has been said, see McLaren, "Nuisance in Canada", supra, that Canadian Judges have adopted the words of Knight Bruce, V.-C., in Walter v. Selfe (1851), 4 De G. & Sm. 315, [at p. 322], 64 E.R. 849, to the effect that actionability will result from an interference with "the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions". These words were approved by Middleton, J., in the Ontario High Court in Appleby v. Erie Tobacco Co. (1910), 22 O.L.R. 533 at pp. 535-6. In reaching a conclusion, the Court must consider the nature of the act complained of and the nature of the injury suffered. Consideration must also be given to the character of the neighbourhood where the nuisance is alleged, the frequency of the occurrence of the nuisance, its duration, and many other factors which could be of significance in special circumstances. While an owner of land in a quiet residential district may well expect to be protected from the operation of a boiler factory on his neighbour's land, he may not be entitled to expect to prevent the boilermaker from pursuing his lawful calling when he seeks to put his residence in an industrial area next to the factory. The conflicting interests must be weighed and considered against all the circumstances. 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.

[36] The principles were also reviewed by the Supreme Court of Canada in Tock v. St. John’s Metropolitan Area Board, 1989 CanLII 15 (SCC), [1989] 2 S.C.R. 1181, at 1190 through 1192, and more recently in St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64, at para. 77. There, the Court stated as follows (references omitted):

At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct. Nuisance is defined as unreasonable interference with the use of land. Whether the interference results from intentional, negligent or non-faulty conduct is of no consequence provided that the harm can be characterized as a nuisance. The interference must be intolerable to an ordinary person. This is assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the plaintiff's use and the utility of the activity. The interference must be substantial, which means that compensation will not be awarded for trivial annoyances.

[37] As can clearly be seen from the authorities, a nuisance may be created even where the activity complained of is otherwise lawful.

[38] In particular, compliance with local municipal bylaws does not mean that the activity complained of cannot be a nuisance: Kenny v. Schuster Real Estate Co. (1992), 1992 CanLII 1941 (BC CA), 10 B.C.A.C. 126 (C.A.).

[39] The invasion complained of must be substantial and serious, and it must be clearly unacceptable according to accepted concepts of the day.

[40] Negligence is not required to make out the tort of nuisance. The converse is also true: the existence of due care will afford no defence if the other ingredients of the tort are present.

Royal Anne Hotel Co. v. Ashcroft, 1979 CanLII 2776 (BC CA), the leading BC case on nuisance, held that nuisance would result from an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable:

When then can it be said that the tort of nuisance has been committed? A helpful proposition is advanced by the learned author of Street, Law of Torts, at p. 215 in these terms: A person, then, may be said to have committed the tort of private nuisance when he is held to be responsible for an act indirectly causing physical injury to land or substantially interfering with the use or enjoyment of land or an interest in land where, in the light of all the surrounding circumstances, this injury or interference is held to be unreasonable. This proposition stated in a variety of ways has been accepted generally in the authorities. The test then is, has the defendant's use of this land interfered with the use and enjoyment of the plaintiffs' land and is that interference unreasonable? Where, as in the case at bar, actual physical damage occurs it is not difficult to decide that the interference is in fact unreasonable. Greater difficulty will be found where the interference results in lesser or no physical injury but may give offence by reason of smells, noise, vibration or other intangible causes. No finding is required regarding the exercise of care by the defendant and while its conduct may frequently be such that a finding of negligence could be made it is not necessary and the existence of due care will afford no defence if the other ingredients are present. Again this is well rooted in authority. For example see the words of Lord Simonds in Read v. J. Lyons & Co. Ltd., [1947] A.C. 156 at pp. 182-3, where the principles laid down in Rylands et al. v. Fletcher (1868), L.R. 3 H.L. 330, were under discussion:

My Lords, it was urged by counsel for the appellant that a decision against her when the plaintiff in the Rainham case, [1921] 2 A.C. 465, succeeded would show a strange lack of symmetry in the law. There is some force in the observation. But your Lordships will not fail to observe that such a decision is in harmony with the development of a strictly analogous branch of the law, the law of nuisance, in which also negligence is not a necessary ingredient in the case. For if a man commits a legal nuisance it is no answer to his injured neighbour that he took the utmost care not to commit it. There the liability is strict, and there he alone has a lawful claim who has suffered an invasion of some proprietary or other interest in land.

In my opinion the rationale for the law of nuisance in modern times, whatever its historical origins may have been, is the provision of a means of reconciling certain conflicting interests in connection with the use of land, even where the conflict does not result from negligent conduct. It protects against the unreasonable invasion of interests in land. What is an unreasonable invasion of an interest in land? All circumstances must, of course, be considered in answering this question.

What may be reasonable at one time or place may be 1979 CanLII 2776 (BC CA) completely unreasonable at another. It is certainly not every smell, whiff of smoke, sound of machinery or music which will entitle the indignant plaintiff to recover. It is impossible to lay down precise and detailed standards but the invasion must be substantial and serious and of such a nature that it is clear according to the accepted concepts of the day that it should be an actionable wrong. It has been said, see McLaren, "Nuisance in Canada", supra, that Canadian Judges have adopted the words of Knight Bruce, V.-C., in Walter v. Selfe (1851), 4 De G. & Sm. 315, [at p. 322], 64 E.R. 849, to the effect that actionability will result from an interference with "the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions". These words were approved by Middleton, J., in the Ontario High Court in Appleby v. Erie Tobacco Co. (1910), 22 O.L.R. 533 at pp. 535-6. In reaching a conclusion, the Court must consider the nature of the act complained of and the nature of the injury suffered. Consideration must also be given to the character of the neighbourhood where the nuisance is alleged, the frequency of the occurrence of the nuisance, its duration, and many other factors which could be of significance in special circumstances. While an owner of land in a quiet residential district may well expect to be protected from the operation of a boiler factory on his neighbour's land, he may not be entitled to expect to prevent the boilermaker from pursuing his lawful calling when he seeks to put his residence in an industrial area next to the factory. The conflicting interests must be weighed and considered against all the circumstances. 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. But where the conduct of the defendant has caused actual physical injury to the plaintiffs' land the mere fact that such conduct may be of great social utility, for example construction and maintenance of a sewer, will not attract greater licence or immunity. There is no reason why a disproportionate share of the cost of such a beneficial service should be visited upon one member of the community by leaving him uncompensated for damage caused by the existence of that which benefits the community at large. The weighing of conflicting interests in the case at bar, therefore, causes little difficulty. The interference with the plaintiffs' right of enjoyment of their land and the damage caused to their land is clearly such that the action for nuisance lies in the absence of any defence of statutory authorization.

In St. Lawrence Cement Inc. v. Barrette, 2008 SCC 64 (CanLII), the Supreme Court of Canada specifically stated, in relation to nuisance and the human condition, that "dust they are, and unto dust they shall return, yet human beings have difficulty resigning themselves to living in dust":

[1] Dust they are, and unto dust they shall return, yet human beings have difficulty resigning themselves to living in dust. Sometimes, weary of brooms and buckets of water, they are not unwilling to turn to the courts to get rid of it. This case is proof of that.

[...]

[77] At common law, nuisance is a field of liability that focuses on the harm suffered rather than on prohibited conduct (A. M. Linden and B. Feldthusen, Canadian Tort Law (8th ed. 2006), at p. 559; L. N. Klar, Tort Law (2nd ed. 1996), at p. 535). Nuisance is defined as unreasonable interference with the use of land (Linden and Feldthusen, at p. 559; Klar, at p. 535). Whether the interference results from intentional, negligent or non‑faulty conduct is of no consequence provided that the harm can be characterized as a nuisance (Linden and Feldthusen, at p. 559). The interference must be intolerable to an ordinary person (p. 568). This is assessed by considering factors such as the nature, severity and duration of the interference, the character of the neighbourhood, the sensitivity of the plaintiff’s use and the utility of the activity (p. 569). The interference must be substantial, which means that compensation will not be awarded for trivial annoyances (Linden and Feldthusen, at p. 569; Klar, at p. 536).

In OSED Howe Street Vancouver Leaseholds Inc. v FS Property Inc., 2020 BCSC 1066 (CanLII), Baker J. held that a construction crane which enters the air space of another property is trespassing upon that air space:

[21] More recently, in Maxwell, the Nova Scotia Court of Appeal considered whether construction equipment, such as cranes, hoists and building materials, which were overhanging a neighbour’s property by approximately 18 inches, were properly considered a nuisance or a trespass. The Nova Scotia Court of Appeal commented on the decision in Didow and chose not to follow the reasoning of the Alberta Court of Appeal. The court in Maxwell held as follows, with reference to the passages from Didow set out above:

[32] It is not obvious from the foregoing emphasis how airspace intrusion, characterized as a trespass, suddenly becomes a nuisance. But the practical advantage of a finding of nuisance is that damage must be proved, and an injunction is not automatic: so construction may proceed. No doubt that outcome attracted the Court in Didow and its fellow travellers.

[33] Respectfully, it is analytically inconsistent and practically unwise to compromise the cause of action to achieve a desired remedial outcome. Equitable discretion involving injunctions is exercised in relation to the relief sought, not the cause of action pleaded. Injunctions are creatures of equity and there is an obvious difference between remedying the wrong of routinely crossing someone’s garden to reach the street and constructing a commercial building next to others, accompanied by temporary airspace incursions. The case for an injunction is compelling in the first instance; it need not be in the second. That is especially so where interlocutory injunctive relief is sought to enjoin a temporary and unobtrusive trespass because of the balancing which the American Cyanamid test requires.

[...]

[26] I am persuaded by the law and reasoning set out in Maxwell, 1465152 Ontario Ltd., and 778938 Ontario Limited. I find these decisions set out the correct legal analysis in relation trespass and nuisance in the context of construction cranes entering the air space of a neighbouring property. A construction crane which enters the air space of another property is trespassing upon that air space. I find the applicant has established a clear right to the air space over its terrace/patio area, and an ongoing trespass has been committed by the crane under FSP’s control.

In Drager v. Lojstrup, 2016 BCSC 1447 (CanLII), Kent J. held that trespass is actionable without proof of material loss or damage:

THE TORTS OF NUISANCE AND TRESPASS

[25] The law of nuisance is extensively and helpfully reviewed by Mr. Justice Voith in Grant v. Warman, 2009 BCSC 886 at paras. 31 to 36 of that judgment. I will not repeat the summary here but I agree with it and I adopt it in its entirety for the purposes of this case.

[26] To succeed in a private nuisance action, the plaintiff must establish significant and substantial interference with the use or enjoyment of his property as a result of his neighbour's activities. Unlike the tort of trespass, nuisance is not actionable without proof of material loss or damage. Actual physical injury to the property can suffice but so too in appropriate cases can intrusions such as excessive noise, odours, fumes, vibrations or similar causes of substantial discomfort.

In Webb v. Attewell, 1993 CanLII 6873 (BC CA), the BC Court of Appeal it cannot be allowed that persons save themselves the costs of building on their own land by trespassing on another's property:

[15] The true question is whether the trespass was with leave and licence. If the entry goes beyond the permission given, there is, at least to the extent of the excess, no leave and licence. The burden of proving leave and licence is on the person who asserts it.

[16] The matter is put thus in Halsbury's, 4th ed., para. 1406:

1406. Leave and licence. It is a good defence to an action of trespass to land for the defendant to plead and prove that he entered on the land by the leave and licence of the plaintiff. If the person in possession of land gives to another person licence to enter on the land, then, so long as the licence continues and the entry is justified by the licence, the person to whom the licence was given cannot be treated as a trespasser.

A person who has been let into possession of land by the person entitled to such possession has the right to occupy the land as a licensee until the licence is revoked by a competent authority, although he has no estate in the land …

A licence to enter land which is not coupled with the grant of an interest in the land is revocable. However, if such a licence arises by virtue of a contract between the plaintiff and the defendant it is a matter of construction of the contract whether the licence is revocable or not. In any case a licensee whose licence has been revoked has a right to a reasonable time to vacate the land after the revocation of the licence, and if the licence is to put goods on land of the licensor, the licence cannot be revoked without allowing the licensee reasonable time to remove his goods.

If the owner of land gives permission for the doing of an act on his land and that act is completed, then, generally speaking, he will be too late to complain of it and the owner's proprietary right will to that extent be extinguished. [Footnotes omitted]

[17] And see also Willcox v. Kettell, [1937] 1 All E.R. 222, also a case between warring neighbours, in which Clauson J. said at p. 224:

Accordingly, I can find no express leave and licence, and I can find no circumstances from which I can infer leave and licence. It is said that Mr. Willcox was careless, and that he ought to have seen that somebody else was digging into his property. I confess that I do not take that view. He was entitled to assume that the work would not go beyond the permission that was given, and I find that it was not made clear to Mr. Willcox as to what was proposed to be done as to these bases. I think that, if Mr. Kettell had explained it, probably there would have been no difficulty. However, I am satisfied that it was not explained, and I am satisfied that the leave and licence did not extend to this protrusion into Mr. Willcox's land.

[...]

I have no hesitation in stating that if Attewell had proceeded to trespass in the Webb property in order to save himself the costs of building on his own land without the trespass he should not be entitled to bear the fruits of his deliberately wrongful act. If it were otherwise property owners would inevitably choose to trespass at the risk of paying minimal damages against the certainty of real construction costs. But that is not the case here. I can find no evidence at all that Attewell acted in such a conscious manner. Based upon what I heard in the trial I conclude that, while Attewell engaged in an act of trespass, he acted in the honest belief that he had consent. Attewell stated that he had never even considered the alternate cost because he never believed that consent was not forthcoming. I accept his evidence on that point. The very fact that neither Attewell nor Tritan had ever costed out an alternative procedure is sufficient to satisfy me on that issue.

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