Site Alteration By-law - C.P.-1591-279

By-law C.P.-1591-279

A by-law to prohibit and regulate the placing or dumping of fill, removal of topsoil and the alteration of the grade of land in the City of London

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

AND WHEREAS section 9 of the Municipal Act, 2001, S.O. 2001, C.25, as amended, provides a municipality with the capacity, rights, powers and privileges of a natural person for the purpose of exercising its authority; 

AND WHEREAS in accordance with ‘purpose provision’ in Section 2 of the Municipal Act, 2001, the specific natural environment powers conferred on municipalities by Sections 135 through 147 of the aforementioned Act supplement the powers provided under Section 10 of the same Act to provide municipalities with broad and flexible discretion to create regulations necessary for the economic, social, and environmental well-being of their respective municipalities;

AND WHEREAS Section 142 of the Municipal Act, 2001 specifically provides that by-laws may be passed by the Council of a municipality for the purposes of prohibiting and regulating the placing or dumping of fill, removal of topsoil, and the alteration of the grade of lands within its jurisdiction;

AND WHEREAS Section 425 of the Municipal Act, 2001 provides the authority or a municipal bylaw to specify that a contravention of a by-law is an offence;

AND WHEREAS Section 436 of the Municipal Act, 2001 an Officer may at all reasonable times enter and inspect any land to which this By-Law has application;

AND WHEREAS Section 429 of the Municipal Act, 2001 provides that a municipality may establish a system of fines for offences under municipal by-laws, including but not limited to establishment of a “special fine” designed to eliminate or reduce any economic advantage or gain from contravening a by-law;

AND WHEREAS Section 444 of the Municipal Act, 2001 and addition to any other fine or remedy authorized by this By-Law, if an Officer is satisfied that this By-Law has been contravened, the Officer may make an order, known as an "Order to Discontinue Activity", requiring the Person who contravened the By-Law, or who caused or permitted the contravention, or the Owner of the land on which the contravention occurred, to discontinue the contravention;

AND WHEREAS the Council for the City of London has deemed it to be in the public interest to prohibit and regulate the placing or dumping of fill, removal of topsoil, associated vegetation, and alteration of the grade of land in the municipality and to establish a system of fines for offences under this By-Law;

AND WHEREAS the Municipal Council of The Corporation of the City of London passed By-law No. C.P.-1363-381, being a “by-law to prohibit and regulate the placing or dumping of fill, removal of topsoil and the alteration of the grade of land in the City of London”, on July 2, 1996.

AND WHEREAS it is deemed expedient to repeal By-law No. C.P.-1363-381 and all its amendments and replace it with a new by-law to prohibit and regulate the placing or dumping of fill, removal of topsoil and the alteration of the grade of land in the City of London.

NOW THEREFORE the Municipal Council of The Corporation of the City of London takes the following action::

SHORT TITLE

SITE ALTERATION BY-LAW

Part 1
DEFINITIONS

In addition to terms defined elsewhere in the By-Law, the following terms have the following meanings under this By-Law, including its Schedules:

"Adverse Effect" shall mean one or more of impairment of the quality of the natural environment for any use that can be made of it, injury or damage to property, archeological resources, plant or animal life, harm or material discomfort to any Person, impairment of the safety of any Person, loss of enjoyment of normal use of property and interference with the normal conduct of a business.

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

"Council” means the Council of The Corporation of the City of London.

“Conservation Authority” means a conservation authority as defined under the Conservation Authorities Act, R.S.O. 1990, c. C.27, whichever Authority or Authorities have jurisdiction over particularized land located in the City.

“Crown Agency” shall mean as defined in the Crown Agency Act.

“Director, Planning and Development” or “Director” shall mean the person who holds the position of Director, Planning and Development for The Corporation of the City of London, or their designate.

“Drainage” shall mean the movement of water to a place of disposal, whether by way of the natural characteristics of the ground surface or by an artificial method.

“Dumping” shall mean the depositing of fill in a location other than where the fill was obtained and includes the movement and depositing of fill from one location on a property to another location. 

“Erosion and sediment controls” shall mean temporary or permanent measures implemented to prevent soil erosion and manage sediment in areas of land disturbance required as conditions for the approval of a Site Alteration Permit. 

“Excess Soil” shall mean as defined in the Ontario Regulation 406/19 On-Site and Excess Soil Management made under the Environmental Protection Act.

“Fill” shall mean any type of material deposited or placed on lands and includes soil, stone, rock, concrete, asphalt, sod or turf, refuse and waste materials.

"Finished Grade" means the approved elevation of ground surface of lands upon which Fill has been Placed or Dumped, the Grade altered or Topsoil Removed, in accordance with this By-Law.

“Officer” shall mean an employee, officer or agent of the City whose duties include conducting inspections and/or enforcing the City’s by-laws, or a police officer with London Police Services.

“Order to Discontinue Activity” shall mean an order made pursuant to Section 7 of this Bylaw.

“Owner” shall mean the registered owner of land, or their agent, or anyone acting under the direction of the owner and their agent.

“Permit” shall mean a permit issued by the City pursuant to the provisions of this By-Law.

“Qualified Individual” shall mean an individual who has the ability to assume responsibility for the design and review of works carried out under this By-Law which shall include professionals who through the rights and privileges of their professional regulatory body have the ability to assume responsibility for the assessment and design of the Site Alteration works.

“Road Authority” shall mean as defined in the Public Service Works on Highways Act, R.S.O. 1990, c. P.49.

“Residential Lots” shall mean any parcel of land which includes residential zoning designation under the City’s Zoning By-Law No. Z.-1, as amended.

“Site” shall mean the lands within the City of London which are the subject lands of an application for a Permit pursuant to this By-Law.

"Site Alteration" shall mean the physical changing of site conditions through the placement or Dumping of Fill, the excavation, alteration of soil, and/or alteration of the grade which may include but is not limited to: the removal of vegetative cover, including trees outside of Tree Protection Areas that are not addressed by the City’s Tree Protection Bylaw ; the compaction of soil; the obstruction of drainage facilities; the modification of watercourses, such servicing work required to support the site alteration activities; or any combination of the aforementioned activities.

“Site Alteration Agreement” shall mean an agreement entered into between the City and Owner as a condition of a Permit. 

“Soil” shall mean material commonly known as earth, topsoil, loam, subsoil, clay, sand, gravel, silt, rock or fill.

“Topsoil” shall have the same meaning as the definition of “topsoil” under section 142(1) of the Municipal Act.

“Watercourse” shall mean a natural or constructed channel having a bed and banks or sides, in which a flow of water regularly or continuously occurs

Part 2
EXEMPTIONS

2.1 By-law – provisions not applicable – various

The provisions of this By-Law do not apply to the following:

1. Site Alteration of a Municipality, Road Authority, or Crown Agency. 
2. Any placing or dumping of fill, removal of soil, or alteration of the grade of land exempted pursuant to section 142 (5) of the Municipal Act, 2001.
3. Site alteration as an incidental part of a normal agricultural practice including such removal as an incidental part of sod-farming, greenhouse operations and nurseries for horticultural products, but not including the removal of topsoil for sale, exchange or other disposition.
4. Residential Lots under 0.5 ha in size (see Note 1 below).
5. Routine maintenance activities within established golf courses.
6. Emergency repair work performed in consultation with the City, subject to any requirement from the Director, Planning and Development to obtain a permit for the continuation of such work. 
7. Site Alteration authorized as a condition of approval for a site plan, plan of subdivision or consent or as a requirement of an executed development agreement, subdivision agreement or consent agreement pursuant to sections 41, 51 or 53 of the Planning Act, as amended.

Note 1:  Exemption (d) shall not apply where site alteration is proposed on any lands within, adjacent to, or within the trigger distance requiring environmental study and area of adjacent lands of the natural heritage system. This is identified in the City’s Official Plan, The London Plan, unless the lots have undergone a planning process that established appropriate and approved buffers from these areas. In such cases, site alterations may proceed in accordance with the approved buffers. However, if any encroachment into these buffers occurs, a Site Alteration Permit shall be required, and enforcement under this by-law shall apply.

Part 3
PROHIBITIONS

3.1 Site Alteration – permit required

Unless otherwise exempt under Part 2 of this By-Law, no person shall undertake, cause or permit Site Alteration on a Site without having first obtained a Permit issued by the Director, Planning and Development.

3.2 Site Alteration – in accordance with permit

Where a Permit has been issued pursuant to this By-Law, no person shall undertake Site Alteration except in accordance with the plans, conditions and any other information on the basis of which a Permit was issued.

3.3 Site Alteration – failure to comply 

No person shall fail to comply with an Order to Discontinue Activity or a Work Order made under this By-Law.

Part 4
REQUIREMENTS FOR AN APPLICATION

4.1 Application requirements – permit

A person applying for a Permit shall submit the following to the Director, Planning and Development or designate: 

1. A completed Permit application.
2. The permit fee, if applicable, which shall be calculated in accordance with the Fees and Charges By-Law No. A-59, as amended, and submitted in a form acceptable to the City.
3. Site Alteration drawings prepared in accordance the City’s Design and Specifications and Requirements Manual, as amended and all requirements of this By-Law.
4. Confirmation through the submission of the appropriate archaeological assessments that a licenced archaeologist consultant has carried out the appropriate archaeological assessments in accordance with all applicable provincial standards, to the satisfaction of the City.
5. If works are proposed within the distances established by Table 13 from a component of the Natural Heritage System as identified by Map 5 of The London Plan, studies or reports may be required to confirm that the Site Alteration doesn’t have Adverse Effect on the Natural Heritage System. Such additional reports or studies are to be completed as prescribed in the City’s Design Specifications and Requirements Manual to the satisfaction of the City.

4.2 Application - approved form

Applications shall be made on the form approved by the Director, Planning and Development.

4.3 Application - general requirements

Every Permit that is issued is subject to the General Requirements as outlined in Schedule 'A' of this By-Law.

Part 5
REQUIRMENTS FOR ISSUANCE OF A PERMIT

5.1 Permit – requirements

The Director, Planning and Development shall issue a Permit where:

1. The Owner has fulfilled all requirements pursuant to this By-Law.
2. Site Alteration drawings have been accepted by the City.
3. Security is provided in a form and amount to be determined by the Director, Planning and Development in accordance with the City’s Policies and By-Law’s (as amended from time to time) to secure performance of the work for which the Permit was obtained and compliance with any conditions of granting the Permit.
4. Proof is provided of any other permit that may be required from the City or any external agency or person for the completion of work associated with the Site Alteration.

5.2 Permit – standard conditions

Every Permit issued under this By-Law is subject to the conditions outlined in Schedule 'A' of the Permit. The Director, Planning and Development may, in their sole discretion, waive one or more conditions after taking into consideration the proposed Site Alteration, anticipated impacts to the Site and the potential for Adverse Effects. 

5.3 Permit – special conditions

The Director, Planning and Development may impose special conditions on a Permit that are reasonable, including requiring the Owner to enter into a Site Alteration Agreement with the City, to ensure that the proposed Site Alteration is consistent with the provisions of this By-Law and to minimize any Adverse Effect.

5.4 Permit – accepted site alteration drawings

Drawings accepted pursuant to the issuance of a Permit shall form part of said Permit.

5.5 Permit - validity

A Permit issued pursuant to this By-Law shall remain valid from the date specified on the Permit by the Director, Planning and Development, and shall automatically be extended annually from that date unless expressly stated otherwise on the face of the Permit or revoked by the City. 

A Permit shall be closed upon either of the following: 

1. The following conditions are met to the satisfaction of the Director:
   1. All Site Alteration works have been complete; 
   2. the conditions of the Permit have been fully complied with; and 
   3. all outstanding orders are resolved; or
2. The Owner enters into a Subdivision, Consent or Development Agreement under the Planning Act with the City, which has been registered against the Lands and addresses the Site Alteration works.

5.6 Permit issuance – no exemption from other requirement

A Permit issued pursuant to this By-Law does not preclude the Owner’s responsibility to obtain all other approvals which may be required by any level of government and /or agencies thereof.

 5.7 Permit transfer – requirements

If the Site for which a Permit has been issued are transferred while the Permit remains in effect, the new owner of the lands shall either:

1. provide the City with an undertaking to comply with all the conditions under which the existing Permit was issued; or
2. apply for and obtain a new Permit in accordance with the provisions of this By-Law.

5.8 Director, Planning and Development – refer application – comment

The Director, Planning and Development, may refer any application, associated plans and information to municipal staff, public agency, advisory body and/or a Qualified Individual for comment prior to making a decision.

5.9 Permit issuance – revocation

The Director, Planning and Development, may, at their discretion, provide notice to modify or revoke the Permit for any of the following reasons:

1. the Permit was obtained based on mistaken, false, incorrect information, or issued in error; 
2. the Permit Holder has failed to comply with Permit conditions; 
3. the Permit Holder is in non-compliance of an order issued under this By-Law; 
4. ownership of the Site has changed, and the new Owner has complied with section 5.7 of this By-Law;
5. to protect the safety, health, and well-being of the community; and/or 
6. to minimize any financial impact to the City.

Part 6
POWERS OF THE DIRECTOR

In addition to any power, duty or function prescribed in this By-Law, the Director, or designate, is authorized and has the delegated authority to: 

1. Approve and issue Permits;
2. Amend or waive permit conditions or other requirements under this By-Law;
3. Refuse a Permit application or revoke an existing Permit. A refusal or revocation shall be accompanied by written reasons by the Director. 
4. Approve and execute Site Alteration Agreements as a condition of Permit approval.

Part 7
ENFORCEMENT ORDERS

7.1 Power to Make Orders 

This By-Law may be enforced by an Officer and/or as delegated by the Director, Planning and Development. 

7.2 Order to Discontinue Activity

If an Officer is satisfied that this By-Law has been contravened, the Officer may make an order, known as an Order to Discontinue Activity, requiring the person who contravened the By-Law, or who caused or permitted the contravention, or the owner or occupier of the land on which the contravention occurred, to discontinue the contravention. No person shall contravene an Order to Discontinue Activity. 

An Order to Discontinue Activity may include, but is not limited to, the following:

1. immediately desist from the activity constituting or contributing to the contravention; 
2. leave the Site and cease the contravening activity immediately.

7.3 Work Order

If an Officer is satisfied that this By-Law has been contravened, the Officer may make an order, known as Work Order, requiring the person who contravened the By-Law, or who caused or permitted the contravention, or the owner or occupier of the land on which the contravention occurred, to do work to correct the contravention. No person shall contravene a Work Order. 

A Work Order may include, but is not limited to, the following:

1. take immediate action to mitigate and/or remediate the impacts of the activity.

7.4 Order to Discontinue Activity or Work Order - particulars

An Order to Discontinue Activity and/or a Work Order shall set out:

1. the municipal address of the property on which the contravention occurred;
2. the date of the contravention;
3. the reasonable particulars of the contravention of the By-Law; and
4. the date by which there must be compliance with the order.

7.5 Order to Discontinue Activity or Work Order - service

The Order to Discontinue Activity and/or Work Order may be served personally on the person to whom it is directed or by regular mail to the last known address of that person, in which case it shall be deemed to have been given on the third day after it is mailed. Service on a corporation can be effected by registered mail to the corporate mailing address.

7.6 Work Order - remedial action by the City

If an owner is required, under a Work Order under this By-Law, to do a matter or thing, then in default of it being done by the owner so required to do it, the matter or thing may be done at the owner’s expense under the direction of an Officer and/or as delegated by the Director, Planning and Development. 

7.7 Work Order – cost recovery

The City may recover the costs of doing a matter or thing under section 7.6 from the owner required to do it, by adding the costs to the tax roll for the subject land and collecting them in the same manner as property taxes.

7.8 Work Order – Lien

The amount of the costs under section 7.6, including interest, constitutes a lien on the land upon the registration in the proper land registry office of a notice of lien.

7.9 Hinder or Obstruct

No person shall hinder or obstruct, or attempt to hinder or obstruct, any person who is exercising a power or performing a duty under this By-Law, including carrying out an inspection.

7.10 Authority to Inspect

An Officer and/or the Director may enter onto a Site at any time for the purpose of carrying out and directing inspections that are reasonably required to determine compliance with this By-Law. 

Part 8
PENALTY AND OFFENCES

8.1 Offences

1. Any person who contravenes any provision of this By-Law is guilty of an offence.
2. A director or officer of a corporation who knowingly concurs in the contravention of this By-Law is guilty of an offence.

8.2 Fines - person

Any person convicted under this By-Law is liable:

1. upon a first conviction, to a minimum fine of $500.00 and a maximum fine of $25,000.00; and
2. upon a subsequent conviction, to a minimum fine of $500.00 and a maximum fine of $50,000.00.

8.3 Fines - corporation

Despite section 8.2, where the person convicted is a corporation, the corporation is liable,

1. upon a first conviction, to a minimum fine of $5,000.00 and a maximum fine of not more than $50,000.00; and
2. upon any subsequent conviction, to a minimum fine $10,000.00 and a maximum fine of not more than $100,000.00.

8.4 Conviction

If this By-Law is contravened and a conviction entered, in addition to any other remedy and to any penalty imposed by the By-Law, 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.

8.5 Special Fines

In addition to the penalties contained in Sections 8.2 and 8.3 of this By-Law, a special fine may be imposed for the purpose of eliminating or reducing any economic advantage or gain from the contravention of this By-Law, which may exceed $100,000.00. With respect to Site Alteration resulting in destruction to the Natural Heritage System destruction, the special fine will be calculated to consider the cost of feature replacement and the fair market value of the economic advantage or gain obtained from the contravention. 

8.6 Administrative Monetary Penalty

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 9
EFFECTIVE DATE

9.1 Effective date

This by-law comes into effect on the day it is passed subject to the provisions of PART VI.1 of the Municipal Act, 2001. 

PASSED in Open Council on November 26, 2024, subject to the provisions of PART VI.1 of the Municipal Act, 2001.

Josh Morgan, Mayor

Michael Schulthess, City Clerk

First Reading – November 26, 2024

Second Reading – November 26, 2024

Third Reading – November 26, 2024

SCHEDULE ‘A’ – General Requirements

1. The Owner shall meet all requirements of the Site Alteration By-Law.
2. The Owner agrees to complete the works proposed for Site Alteration in accordance with the plans accepted by the City of London and attached hereby to this Permit.
3. The Owner agrees to assume all risks involved in undertaking the Site Alteration, and to this end the Owner shall indemnify and save harmless the City from and against all claims arising in undertaking.
4. No Person shall perform a Site Alteration on any lands unless it is carried out at the request of or with the consent of the Owner of the Land where the Site Alteration is to occur.
5. The Owner shall obtain all necessary permits, approvals and/or certificates in conjunction with the Site Alteration activities.
6. No construction of municipal services shall commence prior to the execution of a subdivision, consent, or development agreement. 
7. No other work shall commence until all pertinent approvals are in place.
8. The Owner shall comply with all relevant legislation including but not limited to Endangered Species Act, 2007, Migratory Bird Convention Act, Fisheries Act,  Environmental Protection Act, R.S.O., 1990.
9. All imported and exported Excess Soil and Topsoil, regraded or distributed on a Site, shall be all in accordance with the requirements of the Ontario Regulation 406/19 On-Site and Excess Soil Management made under the Environmental Protection Act.
10. The Owner shall construct, monitor and maintain erosion and sediment control measures as required during construction to control overland flows from the Site to ensure that mud, silt, construction debris, etc. does not cause an Adverse Effect to abutting properties, in accordance with Chapter 10 of the City’s Design Specifications and Requirements Manual, all to the satisfaction of the City.
11. No person shall undertake any Site Alteration that may have Adverse Effect on the quality or quantity of water in a well, pond or watering hole intended for use as a source of water for agriculture or human consumption on a property with an adjoining property boundary, or any other property.
12. The existing topsoil on lands subject to Site Alterations shall be preserved by removing and stockpiling enough topsoil to provide sufficient cover to stabilize the site, as applicable. Additional topsoil may be stockpiled for future use at the discretion of the Owner.
13. The Owner agrees to protect all topsoil stockpiles within 30 days of completion of the stripping of the topsoil, or as otherwise approved by the City. 
14. All Fill shall be compacted using acceptable engineering practices, as appropriate, unless it is being stockpiled on the Site for future use in accordance with all applicable by-laws and zoning for the City, and grading plans and timelines as approved by the Director, Planning and Development.
15. Any engineered fill needed to support roads, services, houses, and driveways, shall be placed under the direction of the Owner’s Qualified Individual.
16. Upon completion of the Site Alteration and grading operations, or in any event, if applicable, prior to entering into a subdivision agreement with the City, the Owner’s Qualified Individual; shall certify that any recommendations contained in the hydrogeological report were complied with, and any recommended remedial measures to control groundwater levels were implemented. 
17. For Site Alteration on agricultural lands, a soil fertility report shall be prepared and provided, signed by a Qualified Individual, confirming that the Site Alteration will not result in a reduction in the overall soil fertility.
18. The Owner shall address and implement all archaeology requirements and the recommendations of relevant studies. If archaeological resources are discovered or identified during the Site Alteration, even after the issuance of a Permit, the Owner shall immediately cease all activity on the Site, contact the Director of Planning and Development, and take actions as defined by the City or other responsible agency to safeguard and protect the resources.
19. The Owner shall install tree protection fencing, as specified in the accepted Permit plans, prior to any Site Alteration work being undertaken on-site, to the satisfaction of the City.
20. The Owner shall ensure that where the root systems of trees to be preserved are exposed or damaged by construction work, they are neatly trimmed, and the area is backfilled with appropriate material to prevent drying and desiccation. Furthermore, the Owner shall ensure that grades around wooded areas or tree stands are not disturbed. If changes to grades around treed areas are necessary, precautions such as dry welling and root feeding may be required. Any filling and grading within the drip line of trees shall be done by hand.
21. Site Alterations shall not result in: 
    1. Interference with natural drainage processes or blockage of a watercourse.
    2. Soil erosion, slope instability or siltation that may cause an Adverse Effect on downstream lands including pollution of a watercourse. 
    3. Flooding or other impacts on the natural hydrologic cycle, including ponding that exceeds what is specified in the City's Design and Specifications Requirements Manual.
    4. A loss or Adverse Effect on the natural environment, including but not restricted to, lands designated as environmentally significant, in The London Plan or Zoning By-Law.
    5. An Adverse Effect on any fish or wildlife habitat within, or adjacent to the subject site.
    6. Drainage patterns of adjacent properties, Natural Heritage Systems or Tree Protection Areas, being adversely effected.
    7. Undue dust problems for adjacent properties. Dust suppression measures are to be implemented during construction and impacted City streets shall be maintained clear of dirt, mud, and debris.
    8. Any existing City road being fouled with dirt, mud or debris. 
    9. Any existing City road being used for construction access purposes except those routes designated for construction access by the Director, Planning and Development. 
    10. Any on site burning of materials without prior approval of the Fire Department and in accordance with the Open-Air Burning By-Law - F-9, as amended.
    11. Any negative impact on groundwater levels except those which are approved by the Director, Planning and Development.
    12. An Adverse Effect on areas of archaeological potential, artifacts, or an archaeological site.