Sources of Authority: Common Law
| Author | Howard Epstein |
| Pages | 133-164 |
133
CHA PTER 3
SOURCES OF AUTHORITY:
COMMONLAW
A. PRELIMINARY
Our focus in this chapter is primari ly on the use of the common law
by private individuals or corporations in regards to the control of the
use of land, rather tha n 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 form alized legislative regimes that deal
with land-use matter s 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 th at “[e]asements and covenants have been
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 ‘pr ivate’ land-use planning.”2 These for-
mal agreements, or implied rest rictions, have historically worked, and
continue to work, along with actions based in nuis ance 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, landowner s were free to use land in a ny way they wished,
subject only to any limit ations in the grant under wh ich they held
the land and to obligat ions placed upon them at common law. In
essence, therefore, prov ided an owner acted with in the limitation of
his estate or inter est, and committed no nuis ance or trespass aga inst
his neighbour’s propert y, 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 trespas s and easements.
The common law is not generally replaced by statutory regulat ion,
but issues of their interaction do ar ise. One important example of a
modern statute replacing common law is for the creat ion 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 govern ments. Nuisance claims w ill,
however, take into account other regulatory schemes such as zoning.
The 1985 case of Desrosiers v Sullivan4 case il lustrates the interaction of
the systems. Faced with a claim by residential neighbours about a legal
pig farm due to odour, the New Brunswick court h ad to decide what
standard of reason able 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 Law 135
The case also illust rates the interaction of the courts and leg islatures,
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 thi s
dispute’s subsequent history.
For many aspects of the common law of property a nd 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 ex ample.
It is of the essence of many common law actions over la nd that, even
if framed as is sues over ownership, they are focused on use. This is al-
most always the core issue in right-of-way case s, as illustrated in some-
thing of a special ized 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 instru ments and remedies such as
restrictive covenants a nd nuisance lawsuits invites comparison with
statutory regulation, as to ef ficacy. What are the advantages of the sys-
tems? Statutory regulation, especially the various forms of la nd-use
planning, involves a public process with i nput from all comers; the rules
are known in advance of the invest ment 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. PROPE RT Y
1) Land
A key aspect of property law is it s definition of what “land” is. Use, by
definition, flows from our understanding of la nd. 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 mineral s. At com-
mon law, gold and silver were property of t he Crown, and not the land-
owner. Statutory regulation is now the relevant set of controls, however.
5 2006 CanLII 1452 (Ont SCJ).
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