The BC Supreme Court has dismissed a lawsuit by neighbours of the Vancouver Island Motorsport Circuit in their efforts to put an immediate stop to what they claim is excessive noise from its operations.
But the six neighbours donB次元官网网址檛 see the loss as the final chapter of their ongoing efforts to reduce the noise levels from the car track facility.
The VIMC opened in June 2016, on a 46-acre parcel of land on the Cowichan Valley Highway, and the levels of noise from the facility have led to complaints from neighbours since the beginning of its operations.
The neighbours filed the lawsuit against the VIMC and the Municipality of North Cowichan last year.
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According to their statement of claim, filed in June, 2017, the neighbours said the track is operating illegally with respect to the zoning bylaws of North Cowichan, which are not being enforced.
The neighbours were looking for the court to order that the municipalityB次元官网网址檚 bylaws be enforced so that it would lead to the noise levels from the facility decreasing.
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But, on Oct. 12, Justice George Macintosh ruled that the plaintiffs, as a matter of law, canB次元官网网址檛 seek to compel the enforcement of a municipal bylaw, absent an allegation of bad faith, B次元官网网址渨hich is not made hereB次元官网网址�.
B次元官网网址淭he decisions of how and when to enforce municipal bylaws are within the sole province of the enacting municipality,B次元官网网址� Macintosh said in his ruling.
Macintosh said the requests for the court to order that North CowichanB次元官网网址檚 land-use and noise bylaws be enforced constitute an B次元官网网址渁buse of process in the limited, but relevant, sense that they constitute a collateral attack on the municipalityB次元官网网址檚 application of its bylaws, which could only be brought by way of a judicial review.B次元官网网址�
Macintosh also awarded some court costs to the defendants in the case.
But Macintosh didnB次元官网网址檛 strike the whole submission from the neighbours, leaving in sections that contend the VIMC is a nuisance property.
Another lawsuit filed by the neighbours, which is not expected to be before the courts until next year, alleges that the provincial nuisance law prohibits anyone from B次元官网网址渟ubstantial and unreasonable interference with the use and enjoyment of propertyB次元官网网址�.
Macintosh said that, in his view, the sections of the submission that he left in may be relevant to the plaintiffsB次元官网网址� claim in the nuisance court case.
B次元官网网址淭he plaintiffs, as part of their nuisance claim, are entitled to show, if they can, that any applicable bylaw noise limits are being violated by the VIMC,B次元官网网址� Macintosh said.
B次元官网网址淭he court in the nuisance trial is permitted to take that information into account when determining whether nuisance has occurred.B次元官网网址�
Mariah Wallener, a director with the Sahtlam Neighbourhood Association, which was also a plaintiff in the case until it dropped out of the lawsuit in February, said the lawsuit was seen as just an attempt at a B次元官网网址渢emporary fixB次元官网网址� to the neighboursB次元官网网址� issues until a more permanent solution can found.
B次元官网网址淭his is not a big loss,B次元官网网址� she said.
B次元官网网址淥ur nuisance case is still on and weB次元官网网址檙e hoping to be successful there. A lot of people are saying we are trying to shut down the VIMC and that isnB次元官网网址檛 true. We just want to stop the excessive noise until the permitted land-use issues can be addressed.B次元官网网址�
Paul Rossmo, general manager of the VIMC, said he was B次元官网网址渧ery happyB次元官网网址� with the judgeB次元官网网址檚 ruling.
B次元官网网址淚t went the way we expected and weB次元官网网址檙e pleased with that,B次元官网网址� he said.
B次元官网网址淏ut it doesnB次元官网网址檛 diminish our commitment to address these concerns and minimize the noise coming from the VIMC. ItB次元官网网址檚 an ongoing process that weB次元官网网址檙e focusing on every day. My commitment is to always do a good job and be a good neighbour.B次元官网网址�
robert.barron@cowichanvalleycitizen.com
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