Cutting the top off of a tree in former mayor Beth Gibson’s yard against her wishes has cost her Colwood neighbour $35,150.
“Such conduct was high-handed and reprehensible,” B.C. Supreme Court Justice Robert Punnett wrote in handing down the award. “It was a marked departure from ordinary standards of conduct. … It is conduct that is deserving of punishment.”
Gibson and her husband bought a house at 3376 Haida Dr. on the east side of Triangle Mountain in 1998. Four mature Douglas fir trees provided shade and privacy at the back of the property.
Fritz Karger owned the subdivision lands above Gibson’s property. In about 2010, he transferred the land to F.K. Developments, which developed the property known as Vista Estates.
In February 2011, Karger asked Gibson for permission to top the trees in her backyard. She did not give him permission, but suggested he return in the spring to show her what he wanted to do. Karger didn’t return and, at some point before July 2012, Karger moved into the house immediately behind Gibson’s.
On Sept. 8, 2012, Karger’s lawyer went to Gibson’s home and to the neighbours on either side of her. He delivered documents advising the residents of 3374, 3376 and 3378 Haida Dr. that F.K. Developments was going to exercise its right to cut the trees under the Statutory Building Scheme registered against the properties.
At the same time, a mobile crane and falling crew were setting up their equipment above the three homes. The crew started removing the top of the tree on Gibson’s property.
Gibson pleaded with them to stop, but they continued to cut down a portion of the tree.
West Shore RCMP arrived, then Colwood’s bylaw and planning officers. By the time the crew stopped cutting, the tree was 45 per cent of its former size. Ninety-five per cent of its living branches had been removed.
Two days later, F.K. Developments appeared before Colwood council with a memorandum. The document’s preamble stated that the developer had the right to trim and cut trees. The City of Colwood refused to sign the document.
The City of Colwood did not agree to permit the continued cutting of trees. In a letter to Karger and F.K. Developments, the city said the tree cutting contravened the official community plan bylaw and that they were to stop cutting down trees.
During the trial, Gibson testified that she remained on edge and is nervous the tree cutting will resume.
Punnett awarded Gibson $10,000 in general damages for the loss of the tree. Although a single tree was removed, it has left a large gap in the trees screening her property.
The judge found the development company topped the tree to improve the view in an effort to increase the value of the property. Karger got a better view, though there is no evidence that has increased his property value, Punnett noted.
Punnett also found that Karger and the development company intended to cut down the tree knowing full well Gibson was opposed and they did it in a manner designed to inhibit her ability to interfere.
“The wording of the Statutory Building Scheme was clear that they did not have the right they professed to have to cut the tree,” Punnett said.
“I find their intention in doing so was both for profit with respect to the corporate defendant and for the personal improvement of Mr. Karger’s property view.”
In addition to $10,000 in general damages, Punnett awarded Gibson $5,150 in special damages for removal costs and the care of the surviving tree. Finally, he awarded Gibson $10,000 in punitive damages from both defendants.
