The BC Supreme Court has dismissed a lawsuit brought by neighbours against the Vancouver Island Motorsport Circuit and the Municipality of North Cowichan. File photo)

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 don’t 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 municipality’s 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, can’t seek to compel the enforcement of a municipal bylaw, absent an allegation of bad faith, “which is not made here”.

“The decisions of how and when to enforce municipal bylaws are within the sole province of the enacting municipality,” Macintosh said in his ruling.

Macintosh said the requests for the court to order that North Cowichan’s land-use and noise bylaws be enforced constitute an “abuse of process in the limited, but relevant, sense that they constitute a collateral attack on the municipality’s application of its bylaws, which could only be brought by way of a judicial review.”

Macintosh also awarded some court costs to the defendants in the case.

But Macintosh didn’t 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 “substantial and unreasonable interference with the use and enjoyment of property”.

Macintosh said that, in his view, the sections of the submission that he left in may be relevant to the plaintiffs’ claim in the nuisance court case.

“The 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,” Macintosh said.

“The court in the nuisance trial is permitted to take that information into account when determining whether nuisance has occurred.”

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 “temporary fix” to the neighbours’ issues until a more permanent solution can found.

“This is not a big loss,” she said.

“Our nuisance case is still on and we’re hoping to be successful there. A lot of people are saying we are trying to shut down the VIMC and that isn’t true. We just want to stop the excessive noise until the permitted land-use issues can be addressed.”

Paul Rossmo, general manager of the VIMC, said he was “very happy” with the judge’s ruling.

“It went the way we expected and we’re pleased with that,” he said.

“But it doesn’t diminish our commitment to address these concerns and minimize the noise coming from the VIMC. It’s an ongoing process that we’re focusing on every day. My commitment is to always do a good job and be a good neighbour.”



robert.barron@cowichanvalleycitizen.com

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