A berry farm south of Nanaimo has failed in its effort to prevent the airport from installing new lights.

Earlier this year, the owners of Haslam Creek Berry Farm, Qing He Zhang and Min Yu, took the Nanaimo Airport Commission to court in an effort to prevent it from installing new navigational lighting on a small portion of their farm.

The pair acquired the property in 2011, four years after the previous owner entered an agreement in perpetuity granting the commission the "full, free and uninterrupted right" to install and maintain navigational lighting and other airport-related uses. While the owners didn't suggest that they were unaware about the agreement at the time of acquiring the property, they argued that the two navigational lights would negatively impact their "ability to grow organic crops" as well as the aesthetic of the farm.

In B.C. Supreme Court in Vancouver in October, the farmers challenged the commission with the primary argument that the easement contract is invalid because the land is zoned as provincial agricultural reserve, and the installation of the lighting would be a non-farm use. Justice Jan Brongers, who presided over the case, wasn't convinced.

The reason the commission wants the lighting is to replace its older navigational lighting system with a newer system to comply with Transport Canada鈥檚 latest standards and practices and in anticipation of upcoming amendments to Canadian aviation regulations.

Since the the airport is engaging in federally regulated activities, Brongers cited the doctrine of interjurisdictional immunity, which prevents one level of government from impairing the other鈥檚 ability to exercise authority. The judge also noted that while not determinative, the British Columbia Agricultural Land Commission appears to agree that it does not have the authority to prevent the commission from proceeding with the navigation lighting project, even if it is built on agricultural land. 

The farmers' secondary arguments included that the perpetuity agreement is obsolete, is of no practical benefit, and that its cancellation would not cause injury if it were to be eliminated. The judge, again, found the arguments to be without merit. 

"It is understandable that the [commission] wishes to upgrade the Nanaimo Airport鈥檚 lighting system in order to render it compliant with anticipated regulatory requirements," the judgment noted. "The fact that the [commission] has not exercised its rights under the easement in the past does not render the easement obsolete. To the contrary, it is apparent that the [commission] had the foresight in 2006 to contract for a perpetual easement with the previous owners of the property for the express purpose of installing and maintaining navigational lighting at some point in the future should this become necessary. That day has now arrived."

After dismissing the case, the judge ordered the farm owners to pay the airport commission's legal fees.