Boulevard Tree Protection By-law - CP-22

A by-law relating to planting and preserving of
trees on boulevards in the City of London.

WHEREAS Municipal Council has determined that it is desirable to enact a By-law to prohibit the Injury and Destruction of Trees of any size located on City boulevards, to prohibit the planting of trees on City boulevards without the City’s consent, and to establish a requirement for payment of the City’s estimated costs of removing the tree and purchasing and planting new trees in the event an abutting owner wishes the City to remove a City boulevard tree with the City’s consent;

AND WHEREAS subsection 5(3) of the Municipal Act, 2001, S.O. 2001, c.25, as amended (“Municipal Act, 2001”) provides that a municipal power shall be exercised by by-law;

AND WHEREAS subsection 8(2) of the Municipal Act, 2001 provides that in the event of ambiguity in whether or not a municipality has the authority to pass a by-law under s. 10, the ambiguity shall be resolved so as to include, rather than exclude, municipal powers that existed on December 31, 2002;

AND WHEREAS subsection 8(3) of the Municipal Act, 2001 provides that a by-law under section 10 respecting a matter may regulate or prohibit respecting the matter, require persons to do things respecting the matter, provide for a system of licenses (including permits, approvals, registrations and any other type of permission) respecting the matter;

AND WHEREAS section 9 of the Municipal Act, 2001 provides that a municipality has the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority under the Municipal Act, 2001 or any other Act;

AND WHEREAS subsection 10(1) of the Municipal Act, 2001 provides that a municipality may provide any service or thing that the municipality considers necessary or desirable for the public;

AND WHEREAS subsection 10(2) of the Municipal Act, 2001 provides that a municipality may pass by-laws respecting: in paragraph 5, Economic, social and environmental well-being of the municipality, including respecting climate change; in paragraph 6, Health, safety and well-being of persons; in paragraph 7, Services and things that the municipality is authorized to provide under subsection (1); in paragraph 8, Protection of persons and property; in paragraph 9, Animals;

AND WHEREAS subsection 44(1) of the Municipal Act, 2001 provides that a municipality that has jurisdiction over a highway shall keep it in a state of repair that is reasonable in the circumstances, and in subsection 44(2) that a municipality that defaults in complying with subsection (1) is (subject to the Negligence Act) liable for all damages any person sustains because of the default; 

AND WHEREAS subsection 44(8)(b) of the Municipal Act, 2001 provides that no action shall be brought against a municipality for damages caused by any obstruction, or any siting or arrangement of any tree adjacent to or on any untraveled portion of a highway;

AND WHEREAS subsection 62(1) of the Municipal Act, 2001 provides with respect to highways that a municipality may, at any reasonable time, enter upon land lying along any of its highways, to inspect trees and conduct tests on trees, and to remove decayed, damaged or dangerous trees or branches of trees if, in the opinion of the municipality, the trees or branches pose a danger to the health or safety of any person using the highway;

AND WHEREAS subsection 62(2) of the Municipal Act, 2001 provides with respect to highways that an employee or agent of the municipality may remove a decayed, damaged or dangerous tree or branch of a tree immediately and without notice to the owner of the land upon which the tree is located if, in the opinion of the employee or agent, the tree or branch poses an immediate danger to the health or safety of any person using the highway;

AND WHEREAS subsection 62.1(1) of the Municipal Act, 2001 authorizes a municipality to apply to a judge of the Superior Court of Justice for an order requiring an owner of land lying along a highway to remove or alter any vegetation that may obstruct the vision of pedestrians or drivers of vehicles on the highway, cause the drifting or accumulation of snow or harm the highway if the municipality is unable to enter into an agreement with the owner of the land to alter or remove the vegetation;

AND WHEREAS the City of London Act, 1953, c. 118 declares that all trees growing upon highways within the City of London are the property of The Corporation of the City of London;

AND WHEREAS section 23.2 of the Municipal Act, 2001 permits a municipality to delegate certain legislative and quasi-judicial powers;

AND WHEREAS the Municipal Council for The Corporation of the City of London is of the opinion that the delegation of legislative powers under this by-law to the Deputy City Manager, including the power to prescribe operational standards such as the format and content of forms or documents, are powers of a minor nature having regard to the number of people, the size of geographic area and the time period affected by the exercise of the power in accordance with subsection 23.2(4) of the Municipal Act, 2001;

AND WHEREAS section 132.1 of the Municipal Act, 2001 authorizes a municipality to enter on land adjoining land owned or occupied by the municipality, at any reasonable time, for the purpose of maintaining or making repairs or alterations to the land owned or occupied by the municipality but only to the extent necessary to carry out the maintenance, repairs or alterations;

AND WHEREAS subsection 391(1) of the Municipal Act, 2001 provides that a municipality may impose fees and charges on persons;

AND WHEREAS sections 429, 431, 444 and 445 of the Municipal Act, 2001 provide for a system of fines and other enforcement orders;

AND WHEREAS subsection 40(4) of the Electricity Act, 1998 provides that a transmitter or distributor may enter any land for the purpose of cutting down or removing trees, branches or other obstructions if, in the opinion of the transmitter or distributor, it is necessary to do so to maintain the safe and reliable operation of its transmission or distribution system;

NOW THEREFORE the Municipal Council of The Corporation of the City of

London enacts as follows:

Part 1
SHORT TITLE

Short Title

1.1 The short title of this by-law is the Boulevard Tree Protection By-law.

Part 2
DEFINITIONS

Definitions

2.1 For the purposes of this By-law:

“Boulevard” means that portion of every City road allowance within the geographic area of the City of London which is not used as a sidewalk, driveway, travelled roadway of shoulder, and specifically excludes unassumed lanes;

"Boundary Tree" means a tree having any part of its trunk located on the boundary between adjoining lands. For the purposes of this definition, ‘trunk’ means that part of the tree from its point of growth away from its roots up to where it branches out to limbs and foliage;

"By-Law Enforcement Officer" means a person appointed pursuant to the Police Services Act, or any successor legislation, as a Municipal Law Enforcement Officer to enforce the provisions of this By-law;

“City” means The Corporation of the City of London;

“Deputy City Manager” means the Deputy City Manager, Environment and Infrastructure or their written designate;

"Destroy" means to cut down, remove, uproot, unearth, topple, burn, bury, shatter, poison, or in any way cause a Tree to die or be killed, or where the extent of injury caused to a live Tree or its roots is such that it is likely to die or be killed. The terms "Destroyed" and "Destruction" shall have a corresponding meaning;

“Injure” means to harm, damage or impair the natural function or form of a Tree, including its roots, by any means, and includes but is not limited to cutting, carving, drilling, injecting, exploding, shattering, pruning, removal of bark, deliberate inoculation of decay fungi, pest or disease, inserting or driving foreign objects into or through the Tree or its roots, soil compaction, root excavation, suffocation, drowning, burying or poisoning. The terms “Injury”, “Injuring” and “Injured” shall have a corresponding meaning;

“Tree” means a woody perennial plant and including the root system, where the plant has reached, could reach, or could have reached a height of at least 4.5 metres (15 feet) at physiological maturity. The term “Trees” shall have a corresponding meaning.

Part 3
SCOPE

3.1 This By-law applies to City Boulevards within the City of London.

Part 4
ADMINISTRATION

4.1 The administration of this by-law shall be performed by the Deputy City Manager.

Part 5
PROHIBITIONS

Plant tree without permission

5.1 No person shall plant or cause to be planted a Tree on a Boulevard without written permission of the Deputy City Manager.

Injure Tree – Destroy Tree - prohibited

5.2 No person shall Injure or Destroy a Tree located on a Boulevard without written permission of the Deputy City Manager.

Attaching objects prohibited without permission

5.3 No person shall attach any object or thing to a Tree upon a Boulevard without written permission of the Deputy City Manager.

Undertaking work - Injure Tree

5.4 No person shall undertake any work over, upon or under a Boulevard so as to Injure a Tree, without written permission of the Deputy City Manager.

Hinder Deputy City Manager in duties

5.5 No person shall hinder or obstruct, or attempt to hinder or obstruct, the Deputy City Manager or any other person in the exercise of the powers and performing  the duties authorized and contained in this by-law.

Fail to Comply with Order to Discontinue Activity

5.6 No person who has been issued an Order to Discontinue Activity shall fail to comply with the Order.

Exceptions – City – Electricity Act

5.7 The prohibitions in this Part shall not apply to the City nor to a person acting under authority of the City. The prohibitions in sections 5.2 and 5.4 shall not apply to a person acting under authority of the Electricity Act, 1998 or any successor legislation.

Part 6
POWERS OF THE DEPUTY CITY MANAGER

Deputy City Manager - authority

6.1 The Deputy City Manager is authorized to plan, regulate, supervise and carry out all planting, removal, and maintenance (including pruning) with respect to Trees situated on a Boulevard in the City of London.

Branch extending over highways

6.2 The Deputy City Manager may trim any Trees on private property where the branches extend over a highway.

Trees may be removed

6.3 The Deputy City Manager may, in their sole discretion and for any reason, remove any Tree from the Boulevard.

Trees on adjacent lands – enter upon land – Trees removed - dangerous

6.4 (1) Pursuant to subsection 62(1) of the Municipal Act, 2001, or successor legislation, the Deputy City Manager may, at any reasonable time, enter upon land lying along any of its highways to:

(a) inspect Trees and conduct tests on Trees,

(b) remove decayed, damaged or dangerous Trees or branches of Trees if, in the opinion of the municipality, the Trees or branches pose a danger to the health or safety of any person using the highway.

(2) Pursuant to subsection 62(2) of the Municipal Act, 2001, or successor legislation, an employee or agent of the City may remove a decayed, damaged or dangerous Tree or branch of a Tree immediately and without notice to the owner of the land upon which the Tree is located if, in the opinion of the employee or agent, the Tree or branch poses an immediate danger to the health or safety of any person using the highway.

Abutting owner request for Boulevard Tree removal - costs - Tree replacement

6.5 (1) An owner of property that is abutting the Boulevard may submit a written request to the Deputy City Manager, in the form prescribed by the Deputy City Manager, requesting the Deputy City Manager to remove a Tree located on that part of the Boulevard that is abutting the owner’s property.

(2) Upon a request under subsection (1) above, the Deputy City Manager has the sole discretion to decide whether a Tree may be removed from the Boulevard, and the sole authority to remove such a Tree.

(3) If the Deputy City Manager determines that a Tree may be removed from the Boulevard at the request of an abutting property owner under subsection (2) above, then prior to the Tree being removed by the Deputy City Manager, the person requesting the Boulevard Tree removal is required to give to the City:

(a) payment of fees for the City’s estimated costs of removing the tree and purchasing and planting similar new trees as set out in Schedule “A” to this by-law; and

(b) a survey if required by the Deputy City Manager.

(4) Where the City removes a Tree pursuant to this section, the Deputy City Manager, at their sole discretion, may plant another Tree or Trees of a species as determined  by the Deputy City Manager, at the same or a different location as determined by the Deputy City Manager.

(5) Nothing in this section shall be construed to limit the Deputy City Manager’s authority to remove a Tree located on a Boulevard at any time and for any reason.

Boundary trees – at least 72 hours’ notice to abutting owners

6.6 If it comes to the attention of the Deputy City Manager that a Tree that is to be removed by the City under this By-law is or may be a Boundary Tree, the Deputy City Manager shall provide notice at least 72 hours prior to the removal of the Tree to all apparent abutting owners. Such notice can be effected by leaving the notice at the property (e.g. door-hanger). This requirement to provide notice shall not apply with respect to the City’s authority to remove decayed, damaged or dangerous Trees or branches if in the opinion of the municipality the Trees or branches pose a danger to the health or safety of any person using the highway.

Part 7
ENFORCEMENT

Enforced By

7.1 This By-law may be enforced by a By-law Enforcement Officer.

Part 8 
POWER TO MAKE ORDERS – TO DISCONTINUE ACTIVITY

Orders to Discontinue Activity

8.1 (1) Where a By-law Enforcement Officer is satisfied that a contravention of this By-law has occurred, the By-law Enforcement Officer may make an Order to Discontinue Activity requiring the person who contravened the By-law or a person that caused or permitted a contravention of the By-law or the owner or occupier of the land on which the contravention occurred to discontinue the contravening activity.

(2) The Order to Discontinue Activity shall set out reasonable particulars of the contravention adequate to identify the contravention, the location of the land on which the contravention occurred, and the date and time by which there must be compliance with the Order to Discontinue Activity.

Service of Order to Discontinue Activity

8.2 (1) An Order to Discontinue Activity may be served personally by the By-law Enforcement Officer, may be sent by registered mail to the person contravening the By-law, or may be posted in a conspicuous place on the property where the contravention occurred.

(2) Where an Order to Discontinue Activity under this By-law is served personally by the By-law Enforcement Officer, it shall be deemed to have been served on the date of delivery to the person or persons named.

(3) The posting of the Order to Discontinue Activity on the property where the contravention occurred shall be deemed to be sufficient service of the Order to Discontinue Activity on the person or corporation to whom the Order to Discontinue Activity is directed on the date it is posted.

(4) Where an Order to Discontinue Activity issued under the By-law is sent by registered mail, it shall be sent to the last known address of one or more of the following:

(a) the person contravening the by-law;

(b) the person or company undertaking the Injury or Destruction, and shall be deemed to have been served on the fifth day after the Order to Discontinue Activity is mailed.

Part 9
OFFENCES AND PENALTIES

Offences

9.1 Any person who contravenes any provision of this By-law is guilty of an offence.

Director or officer of corporation

9.2 A director or officer of a corporation who knowingly concurs in the contravention of this By-law is guilty of an offence

Penalties – Minimum and Maximum

9.3 A person convicted under this By-law is liable to a minimum fine of $500.00 and a maximum fine of $100,000.00.

Continuation - repetition - prohibited by order

9.4 The court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted, and such order shall be in addition to any other penalty imposed on the person convicted.

Civil remedies

9.5 The City’s enforcement remedies under this By-law are in addition to its common law or other statutory rights to damages or other compensation,  including compensation to the City for damages for the cost of treating or removing Boulevard Trees and the diminution in the value of the Boulevard calculated by reference to the cost of replacing the injured or destroyed Tree.

Administrative Monetary Penalty System

9.6 Each person who contravenes any provision of this By-law shall, upon issuance of a penalty notice in accordance with the Administrative Monetary Penalty System By-law A-54, be liable to pay the City an Administrative Monetary Penalty. 

Part 10 - MISCELLANEOUS

Repeal

10.1 By-law No. P.-69 and all amendments are repealed.

Effective date

10.2 This By-law shall come into force and effect on the day it is passed.

PASSED in Open Council on March 5, 2019.

Ed Holder, Mayor

Catharine Saunders, City Clerk

 

First Reading – March 5, 2019

Second Reading – March 5, 2019

Third Reading – March 5, 2019

Schedule A

Tree Removal, Restoration and Replanting Fees

Tree Size (DBH) Diameter at Breast Height	Fees
<10cm	$ 1,240
11cm-20cm	$ 1,890
21cm-30cm	$ 2,240
31cm-40cm	$ 2,590
41cm-50cm	$ 3,740
51cm-60cm	$ 4,090
61cm-70cm	$ 4,440
71cm-80cm	$ 5,490
81cm-90cm	$ 5,840
91cm-100cm	$ 7,190
101cm-120cm	$ 9,040
121cm-130cm	$ 9,390
131cm-140cm	$ 10,940
141cm-150cm	$ 11,290
151cm-160cm	$ 11,640
161cm-170cm	$ 11,990
171cm-180cm	$ 12,340
181cm-190cm	$ 12,690
>191cm	$ 13,040