Cressey trespassed and knowingly disregarded neighbour Epstein's rights while developing the Fifth Avenue

No. C884229

                                      Vancouver Registry

 

 

 

 

           IN THE SUPREME COURT OF BRITISH COLUMBIA

 

 

 

 

BETWEEN:                           )

                                  )

     LILLIAN ELIZABETH             )

     FINE EPSTEIN                  )

                                  )

          PLAINTIFF                )     REASONS FOR JUDGMENT

                                  )

AND:                               )     OF THE HONOURABLE

                                  )

     CRESSEY DEVELOPMENT           )     MR. JUSTICE A.G. MacKINNON

     CORPORATION and               )

     NORMAN EDWARD CRESSEY         )

                                  )

          DEFENDANTS               )

 

 

 

 

 

Counsel for the Plaintiff:             Darrell E. Burns, Esq.

 

Counsel for the Defendants:            John Marquardt, Esq.

 

 

DATES OF HEARING:                      June ll and l2, l990.   

 

 

 

 

 

     The Plaintiff seeks damages against the Defendants for trespass.   

 

STATEMENT OF AGREED FACTS

 

1.The Plaintiff is an elderly lady and the registered owner of the lands and premises having a civic address of 442 -446 6th Street, New Westminster (the "Epstein property").

 

2.The Epstein property measures approximately 83 feet on 6th Street (the commercial front of the property) and 99 feet on 5th Avenue.    There is a one storey building on the property rented out as shops.    At the rear of the Epstein property is a parking lot.

 

3.The Defendant, Cressey Development Corporation (the "Developer"), is the developer and general contractor of a project known as "The Fifth Avenue".    The project is on lands that abut the rear property line of the Epstein property and has a civic address of 612 - 5th Avenue, New Westminster, B.C. and is comprised of a 20 storey, ll0 apartment condominium complex (the "project").

 

4.The Defendant, Norman Edward Cressey ("Mr. Cressey") is the President of the Developer.

 

5.During the spring of l988, the Developer applied for and obtained a development permit to construct the project.

 

6.The Developer's plans included the construction of an underground parking lot and excavation up to the property line between the Epstein property and the project.

 

7.On or about May 27, l988, the Developer sought Mrs. Epstein's approval of its encroachment on the Epstein property.    At this time, the Developer's plan called for vertical shoring of the excavation.    The shoring consisted of anchor rods and shotcrete occurring at approximately 3 ft. inside the rear property line of Mrs. Epstein's property.

 

8.Mrs. Epstein declined permission for any encroachment, although the Developer offered her $5,000.00 for her execution of the proposed encroachment agreement.

 

9.The Developer revised its plans for shoring the excavation at the rear of the Epstein property with a view to avoiding encroachment on the Epstein property. The Developer designed a shoring scheme using soldier-piles, with lagging and struts.    General excavation of the site began in July, l988.

 

10.On or about July l2, l988, during the auguring for the soldier piles, it became apparent to the Developer that considerable water flows were occurring in sandy soil at a certain depth.    The Developer attempted to auger three holes for each of the piles but encountered the problem of collapsing sides of the holes and heavy water flows. The attempt to auger for the soldier piles was terminated on or about July l2, l988.

 

11.The Developer then took a different approach to install the soldier piles.    A slope was cut approaching the Epstein property line, starting from three feet on the Developer's side, and sloping downward into the development site at 4 vertical and 3 horizontal.    Then, a slot was cut into the slope at a location where a soldier pile could be installed at the back of the slot, just clear of the Epstein property line.    After the trench reached the water bearing stratum, rapid caving of the sides occurred.    Any attempt to clean the slot only resulted in further collapse.    This attempt was then terminated.    The trenches were then temporarily backfilled.

 

12.On July 26, l988, after consultation with SCS Engineering, the soils and foundation consultants, the Developer decided to return to the shotcrete and anchor-rod shoring method of supporting the walls of the excavation.    This entailed installing 25 foot rods into the subsoil of the Epstein property.

 

13.The implementation of shotcrete and anchor-rod shoring proceeded over the course of July 29, 1988 to August l2, l988.

 

14.During this time, neither the Developer nor Mr. Cressey took any steps to advise Mrs. Epstein or her agent, Mr. Ens, of the developments at the site, including the decision to insert the rods under the Epstein property. This activity was discovered by Mr. Ens on August ll, l988.    The surface of the Epstein property was not disturbed by the insertion of the rods.

 

15.Mrs. Epstein brought this action on August l5, l988.

 

16.By November 4, l988, the anchor rods were removed although there remain in place under the Epstein property holes or columns containing hardened portland cement, grout, plastic sleeves and small pieces of steel which functioned as the bottom connection for the anchor rods. This debris will not impair Mrs. Epstein's use or development of her property.

 

17.Subsequently, the Developer completed construction of the project.

 

     The undisputed evidence establishes that the Defendants (the Developer) trespassed on the Plaintiff's lands.

 

     On June 2, l988, a Mr. A. H. Ens, agent of the Plaintiff, wrote a letter to her which in part states:

 

"Cressey Development Corporation, the company who will be developing the property behind your stores in New Westminster, has presented to us an Encroachment Agreement for the purpose of entering your property to install rods and anchors into your property for their wall.    They intend to construct a 22 ft. wall into the ground for the garage of the apartment project they are developing.    Should you, or anyone, wish at a future date to develop your property to its fullest extent, the wall, which they are wanting to place on their property would act as a retaining wall for the development on your property.    The rods, which are l5 to l7 ft. long and go into the ground area of your property up to 22 ft. as a depth shown, can be removed at such a time as development of your site takes place."

 

 

 

     On June 8, the Plaintiff wrote to Mr. Ens and stated in part:

 

"Pursuant to our phone conversation on June 7, l988, and the plans you sent to me, the answer is an emphatic 'NO'. Why doesn't the developer erect less units and be within the prescribed set-back rather than to squeeze, encroach and use the property of adjacent owner - namely me?    The answer is simple - more units, more profit. I take a dim view of persons whose uppermost desire is for more profit at any cost."

 
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