Does a Defendant's use of its property comply with all municipal and regulatory requirements?

Accordingly, just because the Defendant’s use of its property complies with all municipal and regulatory requirements does not, by itself, resolve the issue. The determination is made, as stated in Smith v. Inco, by asking whether, in all the circumstances, the harm caused or the interference done to one person’s property by the other person’s use of his or her property is unreasonable.

As confirmed in Smith v. Inco at para 43, while all nuisance is a tort against land predicated on an indirect interference with property rights, that interference may take two different forms, firstly, in the nature of “physical injury to land”, and secondly, “substantial interference with the plaintiff’s use or enjoyment of his or her land”, called an “amenity nuisance.” The courts have taken a somewhat different approach to the two types of nuisance claims. In Smith v. Inco, at para. 45, it is stated that “where amenity nuisance is alleged, the reasonableness of the interference with the plaintiff’s property is measured by balancing certain competing factors, including the nature of the interference and the character of the locale in which that interference occurred.”