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Injurious affection in the absence of a taking:
a historical analysis in the Canadian (B.C.) context
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Robert S. Cosburn
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PART 2: DEFINITION - INJURIOUS AFFECTION IN THE ABSENCE OF A TAKING |
| 18. |
The first logical step in assessing the cases and statutory provisions with respect to the issue of injurious affection in the absence of a taking is to consider what is in fact meant by that term. Challies, at page 131 of The Law of Expropriation defines injurious affection as follows:
Compensation is recoverable not only for the value of land taken, but for consequential damage to other property. Such consequential damage is termed 'injurious affection' in England and the Common Law provinces of Canada.
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| 19. |
From Challies' definition and as well that of the Supreme Court of Canada in the case of
British Pacific Properties Ltd. v. British Columbia (Minister of Highways)
[1960] EXLAW 3:
...where a statute requires compensation to be paid for lands compulsorily taken, one element
to be included, in determining the compensation for the lands taken, is in respect of damage
sustained by the owner, by reason of injurious affection to his adjoining lands, because of
the severance
it is apparent that the general understanding of the concept of injurious affection is based
upon the reduction in the value of remaining lands resulting from an expropriation or taking
- the removal and use by an expropriating authority of certain lands from the whole parcel
reducing the value of the remainder. Injurious affection in the strict sense, it may
comfortably be argued, can exist only when there is a taking. There is in fact no satisfactory
definition of injurious affection in a situation in which there has not been a taking that
distinguishes it from common law concept of nuisance. It has been argued that to reduce the
market value of a property without taking from it effects an expropriation of value, but it is
clear that almost any activity in a neighbourhood will have some adverse impact on value. The
task still remains to determine what sorts of reductions in value are compensable and what are not.
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| 20. |
In a no-taking situation the loss of value suffered by a property owner does not, by definition result from either the loss of land (referred to as "severance damage" by Eric C. E. Todd in his excellent text The Law of Expropriation and Compensation in Canada) or the construction of works on land taken from the owner ("pure injurious affection" - Todd).
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| 21. |
The conclusion reached in this paper that the awarding of compensation for
injurious affection where there is no taking results from a creative judicial
interpretation of Sections 63 and 68 of the U.K. Lands Clauses Consolidation Act
(1845) is bolstered by the fact that the phrase "injurious affection in the
absence of a taking" is both not amenable to precise definition, and is
internally inconsistent. We have seen that an accepted definition of injurious
affection, paraphrased, is the loss in value to the remaining land of the landowner
arising out of a taking from those lands. Loss in value to the remaining land of
the landowner in the absence of a taking is simply the same kind of loss in value
that would result from an act of nuisance - for instance the unreasonable use of
property by a neighbour that causes loss of value to an owner. For the purposes of
clarity in this paper and to be consistent with the authorities, however, the term
"injurious affection in the absence of a taking" will be used.
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