Spallumcheen developer loses speedway appeal

Spallumcheen developer loses speedway appeal

Courts dismiss appeal from developer of Lawrence Heights

The B.C. Court of Appeal has dismissed an appeal from the developer of a Spallumcheen manufactured home park.

The developer of Lawrence Heights and four residents initiated legal action in 2016 claiming noise from the neighbouring Motoplex Speedway and Event Park negatively impacted their lives, and were seeking $100,000 in damages from the track’s owners, Okanagan Aggregates Ltd.

That sum was to compensate the developer for the “net rental income stream and profit on house placements that it would have realized on lots on the upper terrace (of the development) prior to the trial, but which it did not earn owing to a delay of development of the upper terrace cause by (noise) nuisance.”

Supreme Court Justice Peter Rogers awarded three of the residents $7,500 in damages, while the fourth was awarded $5,000. Rogers also issued an order to Okanagan Aggregates to pay the developer $100,000, and issued an injunction that they would be “enjoined from using that land for any purpose that will cause a level of noise exceeding 80 decibels averaged over a five-minute period at the point on the perimeter of the land most closely proximate to Lawrence Heights.”

The developer appealed the decision, submitting the judge erred in factual findings, made inordinately low damages award and erred in refusing to add supplemental terms to the injunction.

Three B.C. Court of Appeal Justices disagreed on all counts.

“(The developer) bore the onus of establishing that it had the ability to develop the remaining lots by the end of 2007,” wrote Madam Justice Newbury in her decision, which was agreed with by Justice Lowry and Madam Justice Dickson.

“Its failure to discharge this burden at trial cannot now be offered as a basis for appellate intervention. No clear error has been shown in the trial judge’s conclusion on the (factual) question of causation that would cause us to interfere.”

The Justice also disagreed that Rogers erred in failing to consider all the evidence regarding the effect of noise on the development, was not persuaded that the $100,000 amount for damages was inordinately low and that Rogers had legitimate reasons to be concerned about amending the injunction.

The developer was seeking more than $6 million in lost revenue.

No events have been held at the speedway since June 2015.

A Facebook page called Save the Motoplex Speedway has more than 3,100 members.