Consolidated Tree Protection By-law

A by-law to regulate the Injuring and Destruction of Trees and to encourage preservation and planting of Trees throughout the City of London.

WHEREAS Municipal Council has determined that it is desirable to enact a By-law to generally prohibit the Injury and Destruction of Trees within the Urban Growth Boundary that have a diameter of at least 50 cm, and all trees located within Tree Protection Areas, and to allow for the Injury and Destruction of such Trees in limited circumstances with a Permit, and to encourage preservation and planting of Trees throughout the City of London;

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 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 pursuant to subsection 135(1) of the Municipal Act, 2001, without limiting sections 9 and 10, a municipality may prohibit or regulate the destruction or injuring of trees;

AND WHEREAS pursuant to subsection 135(7) of the Municipal Act, 2001, without limiting sections 9 and 10, a municipality may require that a permit be obtained to injure or destroy trees, and impose conditions to a permit, including conditions relating to the manner in which destruction occurs and the qualifications of persons authorized to injure or destroy trees;

AND WHEREAS subsections 151(1) to (4) of the Municipal Act, 2001 apply with necessary modifications to a system of licences with respect to any activity, matter or thing for which a by-law may be passed under sections 9 and 10 as if it were a system of licences with respect to a business;

AND WHEREAS subsection 1(1) of the Municipal Act, 2001 defines “licence” to include a permit;

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 City Engineer and the Hearings Officer including without limitation the power to issue, revoke, suspend and impose conditions on the permit and 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 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;

NOW THEREFORE the Council of the Corporation of the City of London hereby enacts as follows:

Part 1             SHORT TITLE

1.1      This By-law may be cited as the "Tree Protection By-law".

Part 2             DEFINITIONS

2.1       For the purpose of this By-law:

"Applicant" means the Landowner or the Landowner’s authorized representative who, pursuant to this By-law, applies for a Permit;

“Arborist” means an arborist qualified by the Ontario Ministry of Training, Colleges and Universities; a certified arborist with the International Society of Arboriculture; a consulting arborist registered with the American Society of Consulting Arborists; or a Registered Professional Forester;

“Arborist Opinion (Dead Distinctive Tree)” means a written opinion by an Arborist that contains the following:

(a)       the Arborist’s opinion that the Tree is a Dead Distinctive Tree as that term is defined;

(b)       correct identification of the location, species and size of the Dead Distinctive Tree;

(c)        a photograph or video of the Tree; and

(d)       the professional accreditation of the Arborist (e.g. International Society of Arboriculture (ISA) Certification Number);

“Arborist Report” means a written report by an Arborist that contains the following: 

(a)       correct identification of the location, species, size and condition of Trees;

(b)       states the Arborist’s opinion why a Tree should be Injured or Destroyed , and whether it represents Good Arboricultural Practices or Good Forestry Practices;

(c)        describes how the Tree is proposed to be Injured or Destroyed;

(d)       an analysis and description of any reasonable alternatives to the Tree Injury or Destruction or an analysis and description as to why there are no reasonable alternatives to the Tree Injury or Destruction;

(e)       calculation of the number of Replacement Trees based on Schedule A, and suggest the species and location, and if in a Tree Protection Area, the Trees that may be planted or established through appropriate natural regeneration, the number of Replacement Trees that can be planted on the Site; 

(f)        if Trees are to be Injured but not Destroyed, description of maintenance strategies and protection measures to be implemented;

(g)       if requested by the City Engineer, further information such as Tree or Trees on adjacent properties that may be affected, and an aerial map representation showing the Critical Root Zone of those Trees; and

(h)       the professional accreditation of the Arborist (e.g. International Society of Arboriculture (ISA) Certification Number);

"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;

“Building Permit” means a building permit issued under the Building Code Act, 1992, S.O. 1992, c. 23, or successor legislation;

"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;

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

"Conservation Authority" has the same meaning as defined in the Conservation Authorities Act, R.S.O. 1990 c.C.27;

"Critical Root Zone" means the area of land within a radius of ten (10) cm from the trunk of a tree for every one (1) cm of trunk diameter;

“Dead Distinctive Tree” means a Distinctive Tree that, as a result of natural causes, is dead or, as a result of natural causes, is in advanced and irreversible decline in health or condition;

“Dead Distinctive Tree Permit” means a permit issued by the City Engineer to permit the Injury or Destruction of a Dead Distinctive Tree;

"Declared Emergency" means a situation or impending situation that has been declared an emergency under the Emergency Management and Civil Protection Act , R.S.O. 1990 c.E.9 or successor legislation;

"Designate" means any person acting with express authority conferred in writing by the City Engineer and may include but is not limited to City employees or Qualified Persons hired by the City;

"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 disturbance of any part of its Critical Root Zone is such that it is likely to die or be killed, excepting where a Tree and/or its roots are killed by natural causes.  The terms "Destroyed" and "Destruction" shall have a corresponding meaning;

"Distinctive Tree" means a Tree that has a Trunk Diameter of 50cm or greater, and that is located on a property within the Urban Growth Boundary, excluding a Tree Protection Area;

“Distinctive Tree Permit” means a permit issued by the City Engineer to permit the Injury or Destruction of a Distinctive Tree or Trees;

"Emergency Services" means the fire, police, or ambulance services when responding to an emergency event;

“Good Arboricultural Practices” means the implementation of the most recent techniques or methods of Tree management as recommended by the International Society of Arboriculture or their successor;

“Good Forestry Practices” has the same meaning as defined in the Forestry Act R.S.O. 1990 c. F.26;

“Hearings Officer” means a Hearings Officer appointed under the City’s Hearings Officer By-law A. 6653-121, as amended, or any successor by-law;

“Injure” means to harm, damage or impair the natural function or form of a Tree, including its roots within the Critical Root Zone, by any means excepting injury by natural causes, and includes but is not limited to carving, drilling, injection, exploding, shattering, improper Pruning that fails to meet Good Arboricultural Practices, removal of bark, deliberate introduction of decay fungi , 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;

“Landowner” means a person having title in the land on which the Tree(s) are situated;

“Natural Ground Level” means the unaltered and original level of the soil around the base of a Tree that is supporting or did support the Tree during its early growth and establishment phase; where the ground level varies around the Tree, it shall be measured from the highest part of the soil;

“Normal Farm Practice” means a normal farm practice defined in the Farming and Food Production Protection Act 1998, S.O. 1998, c.1.

“Order” means an Order to Discontinue Activity or a Work Order, as the context requires;

“Permit” means a Tree Protection Area Permit or a Distinctive Tree Permit, or a Dead Distinctive Tree Permit, as the context requires;

“Permit Holder” means the Landowner to whom a Permit has been issued;

“Pest” means any thing that is injurious or potentially injurious, whether directly or indirectly, to a Tree, and includes any species that is invasive or new to Canada where the potential for harm is yet unknown or unpredictable;

“Pruning” means the removal of live or dead branches from a standing Tree. The terms “Prune” and “Pruned” shall have a corresponding meaning;

“Qualified Person” means a person who, in the opinion of the City Engineer, has satisfactory qualification, experience, education or knowledge to be an expert in the matter;

“Registered Professional Forester” means a person who is a registered and full member in good standing of the Ontario Professional Foresters Association and has the right to use the designation ‘Registered Professional Forester’ under the Professional Foresters Act, 2000, S.O. 2000, C. 18 or successor legislation;

“Replacement Tree” means a tree of a size and type determined by the City Engineer that is required to be planted to replace a tree Destroyed pursuant to a Permit;

“Security” means an agreement between the City and an Applicant where the Applicant arranges an irrevocable letter of credit from a financial institution to specify and lodge a sum of money as determined by the City Engineer as a condition of a Permit;

“Silvicultural Prescription” means an operational plan prepared by a Registered Professional Forester or Qualified Person that describes the existing conditions and the sustainable management objectives for Trees on a Site, and that prescribes the practice of controlling Tree establishment and the composition, growth and quality of Trees to achieve the objectives of management, the methods for managing the Trees and a series of silvicultural treatments and Good Arboricultural Practices that will be carried out to perpetuate Tree cover and establish a free-growing state for Trees that accommodates other resource, environmental and social values as may be identified;

“Site” means the general area where activities subject to this By-law are planned or executed, and in the case of a tract of land that extends over multiple landholdings, each separate landholding is a separate “Site”;

“Swimming Pool Fence Permit” means a swimming pool fence permit issued under the City’s Swimming Pool Fence By-law PS-5, or successor legislation;

“Tree” means a woody perennial plant, whether alive or dead, healthy or unhealthy, including saplings or seedlings 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;

“Tree Management Plan” means a written plan that sets out the scope, rationale and management intentions for managing an inventory of a Tree or Trees for a year or more. Other names for a Tree Management Plan include ‘Landscape Management Plan’, ‘Tree Protection Plan’, ‘Tree Planting Plan’, ‘Woodland Management Plan’ and ‘Forest Management Plan’;

“Tree Protection Area” means any geographic area of the City that appears as a Tree Protection Area on Schedule B of this By-law;

“Tree Protection Area Permit” means a permit issued by the City Engineer to permit the Injury or Destruction of a Tree or Trees within a Tree Protection Area;

“Trunk Diameter” means the diameter of the trunk of a Tree measured 1.4m above the Natural Ground Level;

“Urban Growth Boundary” means the Urban Growth Boundary as defined in the City’s Official Plan.

2.2.     In this by-law, words importing the singular number include the plural and vice versa, unless the context requires otherwise.

Part 3             SCOPE

3.1       This By-law applies to private property in the City of London:

(a)       to Trees having a trunk diameter of 50cm or greater measured 1.4m above Natural Ground Level, within the Urban Growth Boundary; and

(b)       to Trees of any size within a Tree Protection Area.

Part 4             ADMINISTRATION

4.1      The administration of this By-law shall be performed by the City Engineer who shall generally perform all of the administrative functions conferred upon them by this By-law.

Part 5             EXEMPTIONS FROM BY-LAW

Exemptions from By-law

5.1      This By-law does not apply to:

(a)     activities or matters undertaken by a municipality or a local board of a municipality;

(b)     activities or matters undertaken under a licence issued under the Crown Forest Sustainability Act, 1994;

(c)     the Injuring or Destruction of Trees by a person licensed under the Surveyors Act, to engage in the practice of cadastral surveying or their agent, while making a survey;

(d)     the Injuring or Destruction of Trees imposed after December 31, 2002, as a condition to the approval of a site plan, a plan of subdivision or a consent under section 41, 51 or 53, respectively, of the Planning Act, or as a requirement of a site plan agreement or subdivision agreement entered into under those sections;

(e)     the Injuring or Destruction of Trees imposed after December 31, 2002, as a condition to a development permit or community planning permit authorized by regulation made under the Planning Act or as a requirement of an agreement entered into under the regulation;

(f)      the Injuring or Destruction of Trees by a transmitter or distributor, as those terms are defined in section 2 of the Electricity Act, 1998, for the purpose of constructing and maintaining a transmission system or a distribution system, as those terms are defined in that section;

(g)     the Injuring or Destruction of Trees undertaken on land described in a licence for a pit or quarry or a permit for a wayside pit or wayside quarry issued under the Aggregate Resources Act;

(h)      the Injuring or Destruction of Trees undertaken on land in order to lawfully establish and operate or enlarge any pit or quarry on land, 

            (i)       that has not been designated under the Aggregate Resources Act or a predecessor of that Act, and

           (ii)      on which a pit or quarry is a permitted land use under a By-law passed under section 34 of the Planning Act;

(i)     the Injuring or Destruction of Trees that are a noxious weed as defined in the Weed Control Act, R.S.O. 1990, c. W.5 if the Injury or Destruction is being controlled by an appropriate method under the oversight or direction of a Qualified Person and no Trees other than a noxious weed are being Injured or Destroyed;

(j)     the Injuring or Destruction of Trees undertaken by a Conservation Authority on its own lands or in response to a Declared Emergency;

(k)    the Injuring or Destruction of Trees at the direction of Emergency Services;

(l)     Pruning that is necessary to maintain the health and condition of the Tree and is carried out in accordance with Good Arboricultural Practices;

(m)   Injury or Destruction of a Tree that is not a Distinctive Tree and is not located within a Tree Protection Area;

(n)     Injury or Destruction of a Tree that is located within a building, a solarium, a rooftop garden or an interior courtyard;

(o)     Injury or Destruction of a Tree located within an actively managed cultivated orchard, tree farm or plant nursery;

(p)     Injury or Destruction of a Tree that is an immediate threat to health or safety;

(q)     Injury or Destruction of the Tree that is required by a Property Standards Order issued under the Building Code Act;

(r)      Injury or Destruction that is a Normal Farm Practice as defined in the Farming and Food Production Protection Act, 1998, S.O. 1998, c.1.;

(s)     Injury or Destruction of a Tree that is located within a cemetery; or

(t)     Injury or Destruction of a Tree that is located within an actively managed golf course.

Part 6             PROHIBITIONS

Injure or Destroy Tree – Tree Protection Area

6.1       Subject to section 5.1 and Part 8, and except under authority of a Permit, no person shall Injure or Destroy a Tree or cause or permit the Injury or Destruction of a Tree in a Tree Protection Area. 

Injure or Destroy Tree – Distinctive Tree

6.2       Subject to section 5.1 and Part 8, and except under authority of a Permit, no person shall Injure or Destroy a Distinctive Tree or cause or permit the Injury or f a Distinctive Tree. This section 6.2 shall not apply to a Tree located in a Tree Protection Area and section 6.1 shall apply instead.

Injure or Destroy Tree – Not in Accordance with Permit Conditions

6.3       No Permit Holder or person acting under authority of a Permit shall Injure or Destroy a Tree or cause or permit the Injury or Destruction of a Tree unless the Injury or Destruction is carried out in accordance with all conditions of the Permit.

Fail to Protect Tree in Accordance with Permit Conditions

6.4       No Permit Holder or person acting under authority of a Permit shall fail to protect a Tree in accordance with all conditions of a Permit.

Fail to Comply with Conditions of Permit

6.5       No Permit Holder or person acting under authority of a Permit shall fail to comply with all conditions of a Permit.

Fail to Comply with Order to Discontinue Activity or Work Order

6.6       No person who has been issued an Order to Discontinue Activity or a Work Order shall fail to comply with the Order.

Part 7             APPLICATION FOR PERMITS

7.1       Applicants for a Permit should refer to Part 8 of this By-law, as Permits are only issued for the grounds set out in section 8.2 (and subject to all applicable requirements in this By-law including sufficient evidence of the grounds) for the Injury or Destruction of a Tree:

Application to City Engineer

7.2       (1)       Every application for a Permit shall be made to the City Engineer in a format provided by the City Engineer.

Application – Requirements

            (2)       Every application for a Permit shall include the following:

                        (a)       the name, municipal address, email address (if available) and telephone number (if available) of the Landowner, and if not the same, the Applicant;

                        (b)       if the Applicant is not the Landowner, written confirmation that the Applicant is making the application as the Landowner’s authorized agent;

                        (c)        if the Applicant or the Landowner is a corporation, the address of its head office;

                        (d)       the municipal address and legal description of the land, upon which the Tree or Trees are to be Injured or Destroyed;

                        (e)       if known, the name, municipal address, email address, and phone number of any contractor anticipated to Injure or Destroy the Tree or Trees;

                        (f)        for a Dead Distinctive Tree Permit, an Arborist Opinion;

                       (g)       for a Distinctive Tree Permit or a Tree Protection Area Permit, an Arborist Report;

                       (h)       for a Distinctive Tree Permit or a Tree Protection Area Permit, where any of the following grounds for the proposed Tree Injury or Destruction apply:

                                  (i)    an Arborist’s written opinion that the Tree is unsafe;

                                 (ii)   an Arborist’s, Professional Engineer’s or Insurance Loss Adjuster’s written opinion that the Tree is causing or is likely to cause structural damage to load-bearing structures or roof structures;

                                (iii)  a “qualified person’s” (as defined in the Environmental Protection Act, R.S.O. 1990, c. E.19) written opinion that Tree removal is required to remediate contaminated soil;

                               (iv) a Qualified Person’s written opinion that the Tree Injury or Destruction is required to install, provide or maintain utilities, water or sanitary wastewater infrastructure required for the construction or use of a building or structure for which a Building Permit has been issued with no reasonable alternative to locating those utilities or infrastructure;

                               (v)   an Arborist’s written opinion that the Distinctive Tree Injury or Destruction represents Good Arboricultural Practices, or a Registered Professional Forester’s written opinion that the Injury or Destruction of a Tree within a Tree Protection Area represents Good Forestry Practices;

                              (vi)  a copy of the Building Permit if the Tree Injury or Destruction is required for purposes of a Building Permit;

                             (vii) a copy of the Swimming Pool Fence Permit, where one is required, or other evidence that is satisfactory to the City Engineer that a pool is to be installed, if the Tree Injury or Destruction is required for purposes of locating a swimming pool.

Application – Additional Information May be Required

             (3)       In addition to the requirements in subsection (2), the City Engineer may require the Applicant to provide one or more of the following:

                         (a)       for a Tree Protection Area Permit, an inventory, tally or estimates from sample plots of the species and size classes of all Trees to be Injured or Destroyed, including a map of the location of sample plots, to the satisfaction of the City Engineer;

                         (b)       for a Tree Protection Area Permit, a Silvicultural Prescription that complies with Good Forestry Practices and is prepared by a Registered Professional Forester;

                         (c)       a drawing of the Site showing any proposed development, construction, works, excavation or site alteration that may require the Tree Injury or Destruction, and a schedule for this proposed activity, including start and end dates;

                         (d)       confirmation of any other matters (past or present Planning applications or otherwise) affecting the land upon which the Tree or Trees are to be Injured or Destroyed;

                         (e)       a Tree Management Plan, which may be for one or more Trees, prepared by a Qualified Person;

                         (f)        affidavits in support of an application.

Application – Further Information – Supplied within 60 days

              (4)       The Applicant must provide any further information requested by the City Engineer under subsection (3) to the City Engineer within 60 days of such request.

Application – Deemed Incomplete

7.3       An application that does not contain everything required in subsection 7.2(2) within 60 days of the receipt of the application by the City, or does not contain the information as further required under subsection 7.2 (3) within 60 days of the request, shall be deemed to be incomplete and will not be processed.  The City Engineer shall notify the Applicant that the file has been closed for incompleteness.

Application – Permission for City to Inspect

7.4       By submitting an application, the Landowner shall be deemed to have granted permission for the City to enter on the Landowner’s land for purposes of this By-law.

Boundary Tree

7.5       If the Tree to be Destroyed or Injured is a Boundary Tree, all owners of the Boundary Tree or their authorized agents would need to apply for a Permit, otherwise a Permit will not be issued. In the event that the City is an owner of a Boundary Tree (not on the City Boulevard) the written approval of the City Engineer would be required but such approval is entirely at the discretion of the City Engineer.

Boundary Tree - City Boulevard Tree

7.6       If one of the adjoining lands upon which the Boundary Tree is located is City-owned boulevard, then the City’s Boulevard Tree By-law will apply and this By-law will not apply.

Part 8             POWERS OF THE CITY ENGINEER

8.1       The power and authority to issue a Permit, refuse to issue a Permit, to cancel, revoke or suspend a Permit, to impose terms and conditions on a Permit, including special conditions, are delegated to the City Engineer.

City Engineer – When Permit Shall Issue

8.2       The City Engineer shall issue a Permit where all of the following are satisfied: 

             (1)       the application is complete; and

            (2)       the City Engineer is satisfied that there are no reasonable alternatives to the proposed Tree Injury or Destruction; and

            (3)       the City Engineer has determined, in their discretion, that there are no grounds for refusing to issue a Permit under section 8.3; and

            (4)       the City Engineer is satisfied that one or more of the following grounds for issuing a Permit apply:

                         (a)       the Tree is a Dead Distinctive Tree;

                         (b)       based on the opinion of an Arborist, it is necessary to remove unsafe Trees;

                         (c)        based on the opinion of a Professional Engineer, the Tree or Trees are causing or are likely to cause structural damage to load-bearing structures or roof structures;

                         (d)       based on the opinion of a 'qualified person’ (as defined in the Environmental Protection Act), the Tree Injury or Destruction is required to remediate contaminated soil;

                         (e)       based on the opinion of a Qualified Person, the Tree Injury or Destruction is required to install, provide or maintain utilities, water or sanitary wastewater infrastructure required for the construction or use of a building or structure for which a Building Permit has been issued with no reasonable alternative to locating those utilities or infrastructure;

                         (f)        the Tree Injury or Destruction is required for purposes of a Building Permit;

                        (g)       the Tree Injury or Destruction is required for purposes of locating a swimming pool;

                        (h)       based on the opinion of an Arborist, the Distinctive Tree Injury or Destruction represents Good Arboricultural Practices, or based on the opinion of a Registered Professional Forester, the Injury or Destruction of a Tree within a Tree Protection Area represents Good Forestry Practices.

          (5)       The City Engineer shall refuse to issue a Permit if (1), (2), (3) and (4) are not satisfied.

City Engineer – May Refuse to Issue Permit, Revoke Permit, Suspend Permit, Impose Conditions on Permit

8.3       The City Engineer at their discretion may refuse to issue, may revoke, or may suspend a Permit or impose a term or condition on a Permit on any one or more of the following grounds:

             (a)       the species of Tree is an endangered species or threatened species as defined in the Endangered Species Act, 2007, S.O. 2007, c. 6, or the Species at Risk Act, S.C. 2002, c. 29;

             (b)       the Tree is designated under Part IV of the Ontario Heritage Act, R.S.O. 1990, c. O.18;

             (c)        migratory birds are making use of the Tree, or migratory bird nests are in the Tree, as contemplated in the Migratory Birds Convention Act, 1994, S.C. 1994, c. 22;

             (d)       the protection and preservation of ecological systems and their functions, including the protection and preservation of native flora and fauna;

             (e)       erosion, flood control and sedimentation of watercourses;

             (f)        any information contained in the original application form or any other information provided to the City Engineer has ceased to be accurate and the Applicant, Landowner or Permit Holder has not provided up-to-date accurate information to allow the City Engineer to conclude that the Permit should continue;

            (g)       an Applicant or Permit Holder does not meet one or more of the requirements of this By-law or a  condition imposed on a Permit;

            (h)       the Applicant or Landowner is carrying on activities that are in contravention of this By-law;

            (i)         there are reasonable grounds to believe that an application or other documents provided to the City Engineer by or on behalf of the Applicant or Landowner contains a false statement.

City Engineer – Additional Reasons to Revoke

8.4      In addition to section 8.3 above, the City Engineer may revoke a Permit if:

           (a)       the Permit was issued in error;

           (b)       the Landowner or Permit Holder requests, in writing, that it be revoked;

           (c)        the Landowner or Permit Holder fails to comply with any condition of the Permit or this By-law;

           (d)       the Permit Holder is no longer the owner of the land while the Permit is still valid or the owner on title to the lands has changed;

           (e)       the City Engineer is satisfied that there is a material change in circumstances in connection with or on the Site and the City Engineer is satisfied that the Permit needs to be revoked to avoid further Injury or Destruction of a Tree or Trees.

City Engineer – May Impose Conditions, Special Conditions

8.5       Notwithstanding any other provision of this By-law, the City Engineer may impose terms and conditions on any Permit at issuance or at any time during the term of the Permit, including special conditions, as are necessary in the opinion of the City Engineer to give effect to this By-law.

City Engineer – Permit Decisions – Refuse, Revoke, Suspend, Conditions

8.6       (1)       Where the City Engineer is of the opinion that:

                          (a)       an application for a Permit should be refused;

                          (b)       a Permit should be revoked;

                          (c)        a Permit should be suspended for no more than 14 days; or

                          (d)       a term or condition of a Permit should be imposed; the City Engineer shall make that decision.

City Engineer – Written Notice of Decision under ss. 8.6(1)

                         (2)       Where the City Engineer has made a decision under subsection 8.6(1) of this By-law, the City Engineer shall give written notice of that decision to the Applicant or Permit Holder by electronic mail or regular mail to the last known address of that person and shall be deemed to have been given on the third day after it is mailed.  Written notice to a corporation may be given by registered mail to the address of the corporation’s registered head office, or by electronic mail if requested by the corporation.

Contents of Written Decision – Can Appeal

                         (3)       The written notice to be given under subsection 8.6(1) shall:

                                       (a)       set out the grounds for the decision;

                                       (b)       give reasonable particulars of the grounds;

                                       (c)        be signed by the City Engineer; and

                                       (d)       state that the Applicant or Permit Holder is entitled to a hearing by the Hearings Officer if the Applicant or Permit Holder delivers a notice of appeal to the City Clerk, within thirty (30) days after the notice in subsection 8.6(1) is given, and the appeal fee as set out in the Fees and Charges By-law, as amended, and any successor by-law.

No Appeal – Decision Deemed Final

                                       (4)       Where no appeal is registered within the required time period, the decision of the City Engineer is deemed to be final. The provisions of the City's Hearings Officer By-law, as amended, and any successor by-law, apply to all hearings conducted by the Hearings Officer.

Permit Voluntarily Surrendered – Revoke – No Notice Required

                                      (5)       Despite subsection 8.6(2), where a Permit is voluntarily surrendered by the Permit Holder for revocation, the City Engineer may revoke the Permit without notice to the Permit Holder.

City Engineer – May Make Regulations – Forms, Documents

8.7       In addition to any other power, duty or function prescribed in this By-law, the City Engineer may make regulations under this By-law including prescribing the format and content of any forms or other documents required under this By-law.

Copy of Regulations to City Clerk – Available for Public Inspection

8.8       The City Engineer shall provide the City Clerk with copies of any regulations made under this By-law.  The City Clerk shall maintain a record of all such regulations.  The record of all regulations shall be available for public inspection at the office of the City Engineer and the office of the City Clerk during normal business hours.

Part 9             ISSUANCE OF PERMITS

Information on Permits

9.1       Every Permit issued under this By-law shall be in the form and manner as provided by the City Engineer and shall include on its face the following information:

            (a)       the Permit number;

            (b)       the name of the Permit Holder;

            (c)        the date the Permit was issued and the date it expires;

            (d)       the municipal address of the premises on which the Tree or Trees to be Injured or Destroyed is located;

            (e)       the Tree or Trees that are permitted to be Injured or Destroyed;

            (f)        the nature of the Injury or Destruction.

Permit – Automatic Conditions

9.2       Every Permit that is issued is subject to the following conditions of obtaining and continuing to hold a Permit, all of which shall be performed and observed by the Permit Holder and Landowner:

             (a)       the Permit Holder shall ensure that the number of living Replacement Trees as determined by the City Engineer, and the species, or choice of species, size and location of Replacement Trees as determined by the City Engineer, are planted on the same Site by the date specified on the Permit;

             (b)       where there is insufficient space on the same Site to plant all the Replacement Trees, the Permit Holder shall plant as many Replacement Trees as the City Engineer determines the Site will allow and the Permit Holder shall forthwith pay the fee as determined by the City Engineer in Schedule A with respect to the number of Replacement Trees that could not be planted due to insufficient space (Fee for Off-Site Tree Planting);

            (c)        the Permit Holder or Landowner shall pay all fees related to this By-law;

            (d)       the Permit Holder or Landowner shall pay all other fees and fines owed by the Permit Holder or Landowner to the City;

            (e)       the Permit Holder or Landowner shall allow, at any reasonable time, the City to inspect the Site;

            (f)        the use of the Site is permitted or conforms with the uses permitted under the applicable zoning by-law or is a legal non-conforming use;

            (g)       the Permit Holder or Landowner shall meet all of the requirements of this By-law;

            (h)       the Permit Holder or Landowner shall ensure that it complies with applicable law including the Migratory Birds Convention Act, 1994, and the Endangered Species Act, 2007.

Permit – Additional Conditions That May be Imposed

9.3       The City Engineer may impose other conditions on a Permit, including but not limited to:

            (a)       the Permit Holder shall ensure that the Injury or Destruction of the Tree is carried out in accordance with Good Arboricultural Practices or Good Forestry Practices;

            (b)       the Permit Holder shall ensure that the Injury or Destruction of the Tree is carried out in a particular manner or at or during a particular time;

            (c)        the Permit Holder shall ensure that the Permit is posted in a public location for a time period before, during and after the Injury or Destruction of the Tree or Trees;

            (d)       the Permit Holder shall ensure that the Injury or Destruction of the Tree is to be carried out by or under the supervision of a Qualified Person;

            (e)       the Permit Holder shall ensure that measures are to be implemented to protect any retained Trees for the period the Permit remains valid;

            (f)        the Permit Holder shall ensure that the City Engineer is informed within 48 hours of a change of Landowner;

            (g)       the Permit Holder shall ensure that a Tree Management Plan satisfactory to the City Engineer is implemented by a required date;

            (h)       the Permit Holder shall ensure posting of Security that the City may draw upon in full if the By-law is contravened or if there is a failure in the proper and complete execution of a Permit and its conditions, such that restoration of all or part of the Site has to be done by the City;

            (i)         the Permit Holder shall ensure it complies with any requirements to protect or relocate wildlife (including bees) as determined by the City Engineer;

            (j)         the Permit Holder shall ensure it implements the Silvicultural Plan or Tree Management Plan submitted with the application to the satisfaction of the City Engineer within a period of time specified by the City Engineer;

           (k)        a condition recommended by a Qualified Person that the City Engineer determines is appropriate.

Permit – Valid For Time Issued – 6 Month Maximum

9.4       A Permit issued under this By-law shall be valid only for the period of time for which it is issued.  Unless expressly stated on the face of the Permit, all Permits issued under this By-law shall expire 6 months after issuance.

Permit Issuance – Not permission to Contravene Laws

9.5       The issuance of a Permit under this By-law is not intended and shall not be construed as permission or consent by the City for the Permit Holder or Landowner to contravene or fail to observe or comply with any law of Canada, Ontario or any By-law of the City.

Permit – Owned by City – Valid only to Person and Site Named On It

9.6       Every Permit, at all times, is owned by and is the property of the City and is valid only in respect of the person and the Site named on it.

Permit – Cannot be Sold, Transferred, etc.

9.7       No Permit issued under this By-law may be sold, purchased, leased, mortgaged, charged, assigned, pledged, transferred, seized, distrained or otherwise dealt with.

Permit – Notify City Engineer if Change of Information

9.8       The Permit Holder shall notify the City Engineer of any change in their name, business, home address, Site ownership, or any other information relating to the Permit within fifteen (15) days after such change and, if the City Engineer determines it necessary, shall immediately return their Permit to the City Engineer for amendment.

Requirement to obtain all other approvals required by any level of government

9.9       A Permit issued pursuant to this By-law does not preclude the responsibility of the Applicant or Landowner or Permit Holder to obtain all other approvals which may be required by any level of government and agencies.

Part 10           APPEALS – HEARINGS BEFORE THE HEARINGS OFFICER

10.1    The power and authority to conduct hearings of appeals under this By-law are delegated to the Hearings Officer.

10.2    The provisions of the City's Hearings Officer By-law A.-6653-121, as amended, and any successor by-law, apply to all hearings conducted by the Hearings Officer.

10.3    The Hearings Officer may uphold or vary the decision of the City Engineer or make any decision that the City Engineer was entitled to make in the first instance.

10.4    The decision of the Hearings Officer is final.

Part 11           ENFORCEMENT

Enforced By

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

Powers of Entry

11.2    The provisions of the City’s Inspections By-law A-30, as amended, and any successor by-law, apply to Powers of Entry for the purpose of carrying out inspections.

Prohibition - Hinder or Obstruct By-law Enforcement Officer

11.3    No person shall hinder or obstruct or attempt to hinder or obstruct the By-law Enforcement Officer in the discharge of duties under this By-law.

Part 12           POWER TO MAKE ORDERS – REMEDIAL ACTION

Order to Discontinue Activity

12.1    (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.

Work Order

12.2    (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 a 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. 

            (2)       A Work Order shall set out reasonable particulars of the contravention adequate to identify the contravention and the location of the land on which the contravention occurred, and the work to be done and the date by which the work must be done.

Service of Order to Discontinue Activity or Work Order

12.3    (1)       An Order to Discontinue Activity or Work Order 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 or Work Order 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 or Work Order at the Site 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 or Work Order 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, as applicable:

                         (a)       the Applicant;

                         (b)       the Permit Holder;

                         (c)        the Landowner; 

                        (d)       the person contravening the By-law;

                        (e)       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 or Order is mailed.

12.4    Remedial Action

If a person 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 person so required to do it, the matter or thing may be done at the person’s expense under the direction of a By-law Enforcement Officer.

12.5    The City may recover the costs of doing a matter or thing under section 12.4 from the person 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.

12.6    The amount of the costs under section 12.4, including interest, constitutes a lien on the land upon the registration in the proper land registry office of a notice of lien.

Part 13           PESTS - INSPECTION – REMOVAL OF INFESTED TREES

Inspection for Presence of Asian Long-Horned Beetles and Other Serious Pests; Removal of Infested Trees

13.1    The City Engineer is authorized to inspect for the presence of Asian Long-Horned Beetles and other Pests that may create serious widespread economic or ecological harm, and to remove such infested trees, on all public and private property, with the consent of the property owner.

Inspection for Pests; Right to Enter Private Property – Consent Not Required

13.2    Where the City Engineer has been designated as an “inspector” by the President of the Canadian Food Inspection Agency under section 13 of the Canadian Food Inspection Agency Act, S.C. 1997, c.6 for the purposes of enforcing the Plant Protection Act, S.C. 1990, c.22, the City Engineer has the authority to inspect for the presence of Pests and to take action including the removal of trees on all public and private property, with or without the consent of the property owner, if it is in accordance with the Plant Protection Act.

Part 14           OFFENCES AND PENALTIES

Offences

14.1    Any person who contravenes any provision of this By-law, or an Order to Discontinue Activity, or a Work Order, is guilty of an offence.

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

Penalties – Minimum and Maximum

14.3    A person convicted under this By-law is liable to a minimum fine of $500.00 and a maximum fine of $100,000.00, where the fine is not a set fine.

Penalties – Continuing Offence

14.4    Contravention of an Order to Discontinue Activity or a Work Order is a continuing offence, and a person who is convicted of an offence under this By-law is liable, for each day or part of a day that the offence continues, to a minimum fine of $500 and a maximum fine of $10,000 and the total of all daily fines for the offence is not limited to $100,000.

Penalties – Special Fines

14.5    A person convicted under this By-law is liable to a special fine of maximum $200,000.00 which may be imposed in addition to the regular fine, to eliminate or reduce any economic advantage or gain from contravening the By-law.

Court Order - Additional Order to Discontinue or Remedy – s. 431 Municipal Act, 2001

14.6    Under section 431 of the Municipal Act, 2001, when 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,:

(a)       prohibiting the continuation or repetition of the offence by the person convicted; and

(b)       in the case of a by-law described in section 135 of Municipal Act, 2001, requiring the person convicted to correct the contravention in the manner and within the period that the court considers appropriate.

ADMINISTRATIVE MONETARY PENALTY SYSTEM

14.7    Each person who contravenes any provision of the 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 15           MISCELLANEOUS

Transition

15.1    Any Permit issued under the provisions of By-law C.P.-1515-228 that has not expired or been revoked as of the date of this By-law coming into force shall be deemed to have been issued under this By-law and will be valid until such Permit is revoked, surrendered or expires.

Repeal

15.2    The Tree Protection By-law C.P.-1515-228 passed on August 30, 2016 is repealed.

Coming into force

15.3    This By-law shall come into force and effect on March 1, 2021.

            Passed in Open Council on November 24, 2020.

                                                                                         Ed Holder
                                                                                         Mayor

                                                                                        Catharine Saunders
                                                                                        City Clerk

 

First Reading – November 24, 2020
Second Reading – November 24, 2020
Third Reading – November 24, 2020

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Schedule A

Calculation of Number of Distinctive Tree Replacement Trees & Calculation of Fees for Off-Site Tree Planting (insufficient space on Site to plant Replacement Trees)

1.  For the purposes of subsection 9.2(a) of this By-law with respect to a Distinctive Tree Permit, the City Engineer shall determine the number of living Replacement Trees that will be required based on the chart below.  The diameter of the Tree to be Destroyed under a Distinctive Tree Permit, as set out in Column 1, shall correspond to the number of Replacement Trees required, as set out in Column 2.

2.  For the purposes of subsection 9.2(b) of this By-law with respect to a Distinctive Tree Permit, where there is insufficient space on the same Site to plant all of the number of Replacement Trees as calculated for 9.2(a) of this By-law, the Permit Holder shall plant as many Replacement Trees as the site will allow as determined by the City Engineer, and with respect to the number of Replacement Trees that could not be planted due to insufficient space, the City Engineer shall calculate the amount of the fee by multiplying the number of Replacement Trees that could  not be planted on site due to insufficient space by $350 per tree.  The diameter of the Tree to be Destroyed under a Distinctive Tree Permit, as set out in Column 1, shall correspond to the number of Replacement Trees, as set out in Column 2.

Column 1: Trunk Diameter of Distinctive Tree Destroyed	Column 2: Number of Replacement Trees Required
50 cm	1
51-60 cm	2
61-70 cm	3
71-80 cm	4
81-90 cm	5
91-100 cm	6
101-110 cm	7
111-120 cm	8
121-130 cm	9
131-140 cm	10
>141 cm	11

*NOTE: does not apply to Dead Distinctive Tree Permit

 

Schedule B

Tree Protection Area Maps

Note:  The maps provided in this Schedule are for reference only.  The Tree Protection Area Maps for this By-law can be reviewed in the City Clerk’s offices.