Sources of Authority: Common Law

• Author: Howard Epstein
• Pages: 133-164

133

CHAPTER 3

SOURCES OF AUTHORITY:

COMMONLAW

A. PRELIMINARY

Our focus in this chapter is primarily on the use of the common law

by private individuals or corporations in regards to the control of the

use of land, rather than by action of some level of government. Gov-

ernment action could be regulatory, or could involve a municipality

invoking common law remedies in an attempt to abate some nuisance,

or could extend to use of a combination of a by-law plus the remedy of

an injunction.1

The common law is of signif‌icance in la nd-use matters f‌irst, because

it continues to be a possible source of remedies in many instances of

disputes, and second, because formalized legislative regimes that deal

with land-use matters evolved from the principles of the common law

and ref‌lect its main concerns, such as respect for private property, sep-

aration of incompatible uses, and reconciliation of competing values.

Prior to the development of detailed statutory control regimes,

the common law constituted the only available remedy. Professors

Mossman and Girard note that “[e]asements and covenants have been

1 Thus, in Ramara (Township) v Mullen, 2012 ONSC 2220, the municipalit y,

empowered by provi ncial legislation to control nui sances, had adopted such a

by-law and succes sfully sought an injunction agai nst a landowner operating a n

outdoor furnace t hat was producing problematic d ark smoke. The basis of the

power to seek a remedy w as a statutory one conferred on th e local government,

not the common law.

LAND USE PLA NNING134

characterized as mechanisms of ‘private’ land-use planning.”2 These for-

mal agreements, or implied restrictions, have historically worked, and

continue to work, along with actions based in nuisance or trespass so as

to offer essentially i ndividual and private land-use regulatory re strict ions.

Before there existe d any public control over the use and development

of land, landowners were free to use land in any way they wished,

subject only to any limitations in the grant under which they held

the land and to obligations placed upon them at common law. In

essence, therefore, provided an owner acted within the limitation of

his estate or interest, and committed no nuisance or trespass against

his neighbour’s property, he was free to use his land for the pur pose

for which it was economically be st suited.3

Essentially, any notion that ownership of land implies unfettered

rights of use has never been the case; the law has always placed lim-

its on unreasonable use of land. It has always been possible to seek a

remedy (money as compensation or an injunction) from the courts for

actions that amount to nuisance. In environmental law, common law

remedies for pollution have been a traditional approach and continue

to be available. They are often referred to as “toxic torts.” Tort law and

property law are relevant also through the law relating to such matters

as trespass and easements.

The common law is not generally replaced by statutory regulation,

but issues of their interaction do arise. One important example of a

modern statute replacing common law is for the creation of new lots; it

was an entitlement of ownership at common law to be able to sell a pa rt

of one’s property, but this i s now entirely controlled by subdivision rules.

As to the common law of nuisance, it remain s in full vigour as a system

of land-use control that parallels the largely statutory regimes of the

federal, provincial, and municipal governments. Nuisance claims will,

however, take into account other regulatory schemes such as zoning.

The 1985 case of Desrosiers v Sullivan4 case illustrates the interaction of

the systems. Faced with a claim by residential neighbours about a legal

pig farm due to odour, the New Brunswick court had to decide what

standard of reasonable use applied in the community. The courts were

available to the neighbours, who found the odour objectionable, even

though the farm was not in v iolation of any zoning or agricu ltural l aws.

2 Mary Jane Mos sman & Philip Girard, Proper ty Law: Cases and Commentar y, 3d

ed (Toronto: Emond Montgomery, 2014) at 637.

3 Victor Moore, A Practical App roach to Planning Law, 10th ed (New York: Oxford

University Pre ss, 2007) at 1.

4 (1985), 66 NBR (2d) 243 (QB) [Desrosiers].

Sources of Author ity: Common Law135

The case also illustrates the interaction of the courts and legislatures,

for after the decision awarding da mages to the complaining neighbours,

the New Brunswick legislature adopted a statute designed to protect

agricultural operations from nuisance lawsuits (a “right-to-farm” law).

The political nature of land-use regulation appears quite clearly in this

dispute’s subsequent history.

For many aspects of the common law of property and tort, statu-

tory regimes have been adopted that either codify the common law, or

modify it, or supplement it. Statutory frameworks for creating conserv-

ation easements are an example.

It is of the essence of many common law actions over la nd that, even

if framed as issues over ownership, they are focused on use. This is al-

most always the core issue in right-of-way cases, as illustrated in some-

thing of a specialized case over a right-of-way involving a public beach

in Lanty v Ontario (Minister of Natural Resources),5 in which a cottager

unsuccessfully attempted to show th at she had a legal right to dr ive over

a public beach located in a provincial park so as to access her property.

Contemplating common law instruments and remedies such as

restrictive covenants and nuisance lawsuits invites comparison with

statutory regulation, as to eff‌icacy. What are the advantages of the sys-

tems? Statutory regulation, especially the various forms of land-use

planning, involves a public process with i nput from all comers; the rules

are known in advance of the investment of resources, thus reducing un-

certainty. Does thi s mean that zoning or some other land-use regulation

should be preferred to the common law? In the face of extensive statu-

tory regulation, has the common law or parts of it become superf‌luous?

B. PROPERTY

1) Land

A key aspect of property law is its def‌inition of what “land” is. Use, by

def‌inition, f‌lows from our understanding of land. Ownership normally

entails a right to harvest crops, to fell trees, to excavate, to ext ract grav-

el, and to dig for minerals. Minera l rights, however, are quite restr icted.

Flowing from the theory th at all property i s the property of the Crown,

the Crown has always withheld ownership of valued minerals. At com-

mon law, gold and silver were property of the Crown, and not the land-

owner. Statutory regulation is now the relevant set of controls, however.

5 2006 CanLII 1452 (Ont SCJ).