Site Alteration By-law No. 19-286 (Consolidation, May 2023)
Hamilton, Ontario
· adopted 2019-11-28
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CITY OF HAMILTON
By-law No. 19-286
To Repeal and Replace By-law No. 03-126, Being a By-law for Prohibiting and
Regulating the Alteration of Property Grades, the Placing or Dumping of Fill, and
The Removal of Topsoil
OFFICE CONSOLIDATION
This By-law is a consolidated version and includes amendments made by the amending by-
laws listed on the following page. This consolidation is prepared for purposes of
convenience only and is not the official or legal version of the By-law. For accurate
reference to the By-law, certified copies should be obtained through the City Clerk's Office.
To Repeal and Replace By-law No. 03-126, Being a By-law for Prohibiting and
Regulating the Alteration of Property Grades, the Placing or Dumping of Fill, and
the Removal of Topsoil
Consolidated By-law No. 19-286
Incorporating amendments made by:
By-law No.
Effective Date:
23-068
April 26, 2023
Update to Section 3, 5, 8, 9, 14, 15, 25, 29
To Consolidate and Update By-laws for Prohibiting and Regulating the Alteration
of Property Grades, the Placing or Dumping of Fill, and the Removal of Topsoil in
the City of Hamilton
WHEREAS the Municipal Act, 2001, particularly section 142, authorizes the City of
Hamilton to pass by-laws respecting these matters;
AND WHEREAS Council deems it necessary to enact this by-law for the purposes set out
in section 2 of this by-law;
AND WHEREAS the municipal Council of the City of Hamilton enacted By-law 19-286 on
November 28, 2019 to prohibit and regulate the placing or dumping of fill, the removal of
topsoil, and the alteration of the grade of lands within the municipality;
AND WHEREAS Council of the City of Hamilton deems it necessary to enact a By-law to
make technical amendments and improvements to By-law 19-286;
NOW THEREFORE the Council of the City of Hamilton enacts as follows:
Short Title
This By-law may be cited as the Site Alteration By-law.
Purposes
The purposes of this By-law are,
(a) to control and regulate site alteration on lands within the City of Hamilton;
(b) to ensure site alteration is undertaken for necessary or beneficial
purposes, not primarily for financial gain;
(c) to minimize adverse impacts on infrastructure, environment and
community in respect of site alteration undertakings; and
(d) to promote and protect agricultural resources.
Definitions
In this By-law:
"agricultural operation" has the same meaning as under the Farming and Food Production
Protection Act, 1998, which is, for ease of reference, an agricultural, aquacultural,
horticultural or silvicultural operation that is carried on in the expectation of gain or
reward;
"building" has the same meaning as under the Building Code Act, 1992;
"City" means the City of Hamilton;
"Director" means the Director and Chief Development Engineer of the City of Hamilton or
designate;
"fill" means earth or rock fill or material of a similar nature;
"land" includes land covered by water;
"normal farm practice" has the same meaning as under the Farming and Food Production
Protection Act, 1998, which is, for ease of reference, a practice that,
(a) is conducted in a manner consistent with proper and acceptable customs and
standards as established and followed by similar agricultural operations under similar
circumstances, or
(b) makes use of innovative technology in a manner consistent with proper advanced
farm management practices;
"qualified person" has the same meaning as in section 5 of Ontario Regulation 153/04;
"Site" and "Property" are synonyms that both mean a parcel of land which can be legally
conveyed pursuant to the provisions of the Planning Act.
"Rural Area" means all lands within the City of Hamilton except those designated as
"Urban Area" on Schedule "D" to the Rural Hamilton Official Plan;
"topsoil" means those horizons in a soil profile, commonly known as the "O" and the "A"
horizons, containing organic material and includes deposits of partially decomposed
organic matter such as peat.
Application
The provisions of this By-law regarding "site alteration" apply to all land within
the City of Hamilton in respect of,
(a) excavating, depositing or stockpiling fill or topsoil,
(b) removing topsoil, and
(c) altering the grade of land.
Statutory Exemptions - Interpretations
This By-law is not intended nor shall it apply to any activities or matters
identified in the Municipal Act from time to time as matters to which a By-law
passed under section 142 of the Municipal Act does not apply. For ease of
reference, as of the date of the passage of this By-law, this By-law therefore does
not apply to any of the activities or matters described in section 142(5)(a) through
(g) of the Municipal Act and, subject to subsection 142(7) of the Municipal Act, this
By-law does not apply to any of the activities or matters described in section 142(6)
of the Municipal Act.
Stockpiling for Agricultural or Commercial Operations
(1) Despite subsection 11(1), this By-law does not prohibit or require a site
alteration permit for the stockpiling of fill or topsoil on land for sale or exchange or
use as an incidental part of an agricultural or commercial operation undertaken as
a permitted use of the land, provided that any such stockpiles,
(a) are used, depleted and refreshed on a continuous basis during periods
when the stockpiles are actively in use in the agricultural or commercial
operation;
(b) are removed and the existing grade restored while the agricultural or
commercial operation is suspended or during periods when the stockpiles
are not actively in use in the agricultural or commercial operation; and
(c) no stockpile remains substantially unchanged for longer than 6 months.
Existing Commercial Stockpiles
(2) Subsection (1) applies to stockpiles existing on the date this By-law comes into
force that were exempt from the requirement for a permit pursuant to section 3.14
of By-law No. 03-126.
Exceptions from Permit Requirement
(1) Despite subsection 11(1), no permit is required for site alteration
undertaken,
(a) for the purposes of lawn maintenance, landscaping or gardening, provided
that:
(i) the depth of fill deposited on the site does not exceed 15 centimetres
at any location;
(ii) there is no change in the location, direction or rate of drainage to
neighbouring properties; and
(iii) there is no change or blockage of any swale.
(b) for the installation of a pool where a permit has been issued pursuant to
By-law No. 16-184, provided that:
(i) any previously approved grading plan is maintained or if there is no
previously approved grading plan applicable to the property, a
minimum 60-centimetre strip of undisturbed ground remains along the
rear and side property lines within the rear yard; and
(ii) any retaining walls are limited to 0.5 metres in height, measured from
existing ground elevations.
(c) incidental to the construction of a building for which a building permit has
been issued by the Chief Building Official, provided that the accompanying
application provides sufficient information for the Chief Building Official to
determine that such site alteration conforms with this By-law.
Rural Area Exceptions from Permit Requirement
(2) Despite subsection 11(1), no permit is required for site alteration undertaken in
the Rural Area,
(a) for the purposes of improving site drainage or soil quality provided that:
(i) the site alteration involves a maximum of 500 cubic metres of fill or
topsoil, which may include imported fill or topsoil only from within the
City of Hamilton;
(ii) the Director is notified of the intended site alteration at least 48 hours
in advance of commencing site alteration; and
(iii) this exception may be used only once with respect to a property, and
otherwise a permit is required.
(b) for the purposes of dredging existing ponds provided that:
(i) the surface area of the existing pond is not increased;
(ii) the depth of the existing pond is not increased beyond its original
depth; and
(iii) where possible, dredged fill is deposited on the same property without
altering existing drainage patterns, and piles or berms of dredged fill
are not created adjacent to the pond.
(c) for the purpose of maintaining existing granular driveways, roads, farm
field access roads, or parking areas with appropriate imported granular
material including native granular, recycled aggregate, recycled asphalt or
recycled concrete provided that previously existing grades are being re-
instated and provided the material is obtained from a commercial supplier.
No permit to be issued where certain Planning Act Applications are
Pending
(1) No site alteration permit shall be issued for a site which is the subject of or
included within any pending application to the City for the approval of any of the
following Planning Act approvals: a Site Plan, a Plan of Subdivision, a Consent, or
a Development Permit.
(2) For purposes of subsection (1), a pending application is an application that has
been submitted to the City but on which:
(a)
a decision has not been made;
(b)
a decision has been made but that decision has been appealed
and a decision on the appeal has not yet been rendered; or,
(c)
a decision has been made but any applicable appeal period has not
yet expired.
(3) Subsection (1) shall not prohibit the issuance of a site alteration permit for a site
on which there is a pending application for a Plan of Subdivision if the Site is within
an area having any of the Employment Area designations shown on Schedule E-
1 of the Urban Hamilton Official Plan, as amended.
(4) Section 31(2) shall not apply to a site alteration permit issued pursuant to
subsection (3).
Prohibitions and Permit Requirements
Consent of Owner
No person shall undertake site alteration or cause site alteration to be
undertaken except with the consent of the owner of the site.
Permit Required
(1) No person shall undertake site alteration or cause site alteration to be
undertaken unless a site alteration permit has been issued to undertake such site
alteration.
Permit Application
(2) An owner of a site, or a person with the consent of an owner of a site, may
apply to the Director for a site alteration permit to undertake site alteration on the
site in accordance with section 14 or 15.
Issuance of Permits
(3) The Director shall not issue a site alteration permit unless,
(a) the application is complete;
(b) the applicant, and any other required parties, have entered into a site
alteration agreement required by section 19;
(c) the applicant has paid all fees required by section 20;
(d) the applicant has provided security required by section 21; and
(e) the Director is satisfied the proposed site alteration will be undertaken in
accordance with this By-law.
Criteria
(4) In considering whether to issue a site alteration permit, the Director shall have
regard to,
(a) whether the primary use of the site is the depositing of fill on the site;
(b) whether the proposed site alteration is necessary for the purpose identified
in the application;
(c) whether the proposed site alteration is part of a normal farm practice;
(d) whether the proposed site alteration is likely to be completed within the
term of the site alteration permit;
(e) any effects on ground and surface water resources;
(f)
any effects on drainage;
(g) if the use of the site is residential, whether the proposed site alteration
complies with the City's Lot Grading Policy, Criteria and Standards;
(h) any effects on agricultural resources;
(i)
any effects on the environment;
(j)
any planning and land use considerations;
(k) any effects on nearby communities;
(l)
any comments provided by external bodies or agencies;
(m) the suitability of the proposed erosion and sediment control measures;
(n) the suitability of the proposed construction site control and security
measures;
(o) the final grading and rehabilitation plans for the site;
(p) the main haulage routes and proposed truck traffic to and from the site;
(q) the quality of the fill proposed to be transported to the site from any other
source site or moved from one area of the site to another;
(r)
the applicant's history of compliance with this By-law or similar By-laws of
other municipalities or similar Acts; and
(s) such other matters as are considered appropriate.
Reasons
(5) If an application is refused, the Director shall provide written reasons for the
refusal.
Revocation
(6) The Director may revoke a site alteration permit if,
(a) it was issued on false or incorrect information;
(b) it was issued in error; or
(c) a provision of this By-law has not been complied with.
Notice of Change
(7) No person shall make or cause a material change to be made to a plan,
specification, document or other information on the basis of which a permit was
issued without notifying, filing details with and obtaining the authorization of the
Director.
Prohibition
(8) No person shall undertake site alteration or cause site alteration to be
undertaken except in accordance with the plans, specifications, documents and
any other information on the basis of which a permit was issued or any changes to
them authorized by the Director.
Commenting Agencies
The Director may circulate an application for comment by such external bodies
or agencies as the Director determines to be necessary.
Compliance with Other Law
The issuance of a site alteration permit or an exception from the permit
requirements pursuant to this By-law does not relieve a person from compliance
with any other applicable legislation, regulations or permit requirements, including
the requirements of the Niagara Escarpment Commission or a conservation
authority.
Site Alteration Permit Applications
Minor Agricultural Application Requirements
(1) This section applies to an application for a site alteration permit for a site
alteration proposal involving a maximum of 500 cubic metres of fill or topsoil for a
site where an agricultural operation is carried on and the proposed site alteration
is part of a normal farm practice.
(2) An application for a site alteration permit pursuant to this section shall contain:
(a) the address, legal description and registered owner of the site;
(b) the area of the site in hectares;
(c) up-to-date contact details of the owner of the site, and of the applicant, if
not the owner of the site;
(d) the past, current and intended future uses of the site;
(e) the purpose of the proposed site alteration;
(f)
the volume of soil involved in the proposed site alteration in cubic metres;
(g) intended start date and completion date for the proposed site alteration;
(h) an approximate sketch of the site showing:
(i) the property lines;
(ii) such dimensions and absolute or relative elevations as are required
to permit the Director to determine whether to issue a site alteration
permit;
(iii) buildings and other structures including retaining walls;
(iv) highways, driveways and paths;
(v) easements and rights-of-way;
(vi) above- and below-ground private, municipal or utility infrastructure
including the size and invert elevations of drainage swales, ditches,
pipes and culverts;
(vii) bodies of water and watercourses;
(viii) wetlands and floodplains;
(ix) Conservation Authority regulation boundaries;
(x) trees measuring 150 mm or greater in diameter at breast height
including species;
(xi) vegetation masses by canopy outline;
(i)
design details and specifications for any proposed retaining walls;
(j)
design details and specifications for any proposed drainage or stormwater
management systems;
(k) if required by the Director, in a form satisfactory to the Director,
(i) an excess soil management plan prepared by a qualified person,
(ii) a dust management plan,
(iii) an erosion and sediment control plan,
(iv) a groundwater management plan,
(v) a stormwater management plan,
(vi) a traffic management plan; and
(l)
any other information, plans or studies the Director requires to determine
whether the site alteration proposal complies with this By-law.
(m) the contact details of the farmer responsible for the agricultural operation;
(n) a statement of nature of the agricultural operation;
(o) the farm business registration number of the agricultural operation or proof
of membership in an accredited farm organization;
(p) a description of the normal farm practice;
(q) any plans or evidence supporting the normal farm practice that the
applicant wishes to rely upon, including the qualifications of any person
providing such plans or evidence;
(r)
if the proposed site alteration on a site involves fill being transported to the
site from any other source site, a statement from the farmer responsible
for the agricultural operation or a qualified person that the fill to be
transported to the site is suitable for use at the site; and
(s) the proposed haul routes, daily truck volume and hours of operation of
truck traffic to and from the site.
(3) If an application pursuant to this section is refused, an applicant may reapply
pursuant to the requirements of section 15.
General Application Requirements
(1) This section applies to all applications other than those to which section 14
applies.
(2) An application for a site alteration permit pursuant to this section shall contain:
(a) the address, legal description and registered owner of the site;
(b) the area of the site in hectares;
(c) up-to-date contact details of the owner of the site, and of the applicant, if
not the owner of the site;
(d) the past, current and intended future uses of the site;
(e) the purpose of the proposed site alteration;
(f)
the volume of soil involved in the proposed site alteration in cubic metres;
(g) intended start date and completion date for the proposed site alteration;
(h) a control plan of the site and the area within 30 metres of the property lines
of the site drawn to scale, prepared by a licenced surveyor, professional
engineer or professional geoscientist, showing the property lines and all
existing and proposed:
(i) elevation contours at 0.5 metre intervals or less;
(ii) spot elevations at 15 metre intervals along the property lines;
(iii) predominant native soil types;
(iv) buildings and other structures including retaining walls;
(v) highways, driveways and paths;
(vi) impermeable surfaces;
(vii) easements and rights-of-way;
(viii) above- and below-ground private, municipal or utility infrastructure
including the size and invert elevations of drainage swales, ditches,
pipes and culverts;
(ix) bodies of water and watercourses;
(x) wetlands and floodplains;
(xi) Conservation Authority regulation boundaries;
(xii) trees measuring 150 mm or greater in diameter at breast height
including species;
(xiii) vegetation masses by canopy outline;
(xiv) tree protection measures;
(xv) erosion and sediment control measures;
(xvi) construction site control and security measures;
(xvii) locations of site alteration including temporary stockpiles, specifying
the volumes, source and type of fill involved;
(xviii) final ground covering;
(i)
design details and specifications for any proposed retaining walls;
(j)
design details and specifications for any proposed drainage or stormwater
management systems;
(k) if required by the Director, in a form satisfactory to the Director,
(i) an excess soil management plan prepared by a qualified person,
(ii) a dust management plan,
(iii) an erosion and sediment control plan,
(iv) a groundwater management plan,
(v) a stormwater management plan,
(vi) a traffic management plan; and
(l)
any other information, plans or studies the Director requires to determine
whether the site alteration proposal complies with this By-law.
Transportation of Excess Soil
(3) Subject to section 25, if the proposed site alteration on a site involves fill being
transported to the site from any other source site, the application shall contain:
(a) the address and legal description of each source site;
(b) a statement of the nature of the project on each source site that is
generating the fill to be transported to the site;
(c) the volume of fill to be transported to the site from each source site;
(d) the contact details for the person responsible for the project on each
source site;
(e) the past uses of each source site;
(f)
a copy of the detailed sampling and analysis plan for all fill excavated from
each source site, and confirmation from a qualified person retained by the
registered owner of the source site stating that the fill to be transported to
the site is suitable for use at the site;
(g) a letter from the registered owner of the source site confirming (a) to (f);
(h) the contact details of a person from the source site, which is located in the
City of Hamilton, who has knowledge of any past uses of the source site
and who is able to provide information with respect to Records of Site
Condition of the source site; and
(i)
the proposed haul routes, daily truck volume and hours of operation of
truck traffic to and from the site.
Site Alteration as Normal Farm Practice
(4) If an application for a site alteration permit is made for a site where an
agricultural operation is carried on or is intended to be carried on and the proposed
site alteration is part of a normal farm practice, the application shall contain:
(a) the contact details of the farmer responsible for the agricultural operation;
(b) a statement of nature of the agricultural operation;
(c) the farm business registration number of the agricultural operation;
(d) a description of the normal farm practice; and
(e) any plans or evidence supporting the normal farm practice, including the
qualifications of any person providing such plans or evidence.
Waiver of Application Requirements
Despite section 15, the Director may waive any application requirement the
Director determines to be unnecessary in the circumstances of the proposed site
alteration.
Application Form
An application shall be made in such form as may be determined by the Director
from time to time.
Appeal for Normal Farm Practices
(1) Where section 14 or subsection 15(4) applies, if the Director refuses to
issue a site alteration permit, the applicant may appeal the refusal to the Planning
Committee or any successor Committee by requesting an appeal in writing to the
Clerk within 30 days of being notified of the refusal.
(2) Upon receipt of a written request for an appeal, the Clerk shall:
(a) schedule a hearing of the appeal before the Committee;
(b) give the applicant notice of the appeal date at least 7 days prior to the
hearing date; and
(c) give notice of the request for an appeal to the Director, who shall forward
the complete application and reasons for refusal to the Clerk for
distribution to the Committee.
(3) If the applicant does not attend the appointed time and place for the appeal,
the appeal may proceed in the absence of the applicant and the applicant shall not
be entitled to further notice in the proceeding.
(4) On an appeal, the Committee has all the powers and duties of the Director in
considering whether to issue a site alteration permit to the applicant.
(5) The applicant shall not be entitled to a further hearing on the matter before
Council.
(6) The decision of the Committee, once confirmed by Council, is final and binding.
Fee, Security and Agreement
Site Alteration Agreement
Prior to the issuance of a site alteration permit, the Director may require the
applicant, registered owner of the site, and such other persons as the Director
deems appropriate to enter into a site alteration agreement with the City, which
may be registered on title to the site, which agreement may address any of the
matters relevant to this By-law, including indemnification of the City and insurance,
and the Director is authorized to enter such agreement.
Application Fee
(1) The Director shall determine the application fee to be paid by the applicant
in accordance with Schedule "A".
Fee Where Contravention
(2) Where an applicant applies for a site alteration permit for a site where site
alteration has occurred in contravention of this By-law, the application fee to be
paid by the applicant shall be twice the amount otherwise payable, subject to the
discretion of the Director.
Security
(1) An applicant shall provide financial security to the City to ensure compliance
with this By-law, including to ensure:
(a) maintenance of construction site control and security measures;
(b) remediate fouling or damage to municipal roads and other infrastructure;
and
(c) rehabilitation and restoration of the site to a condition consistent with this
By-law.
Amount of Security
(2) The Director shall determine the amount of the security to be provided to the
City by the applicant, being:
(a) fifty percent of the value of the earthworks involved in the proposed site
alteration; plus
(b) one hundred percent of the estimated cost to restore lands and
infrastructure affected by the earthworks
Form of Security
(3) Security shall be provided in cash or an irrevocable letter of credit issued by a
financial institution or equivalent in a form satisfactory to the City Solicitor.
Drawing Upon Security
(4) The City may draw upon the security to remedy any breach of this By-law,
including a breach of the terms of an issued site alteration permit or a site alteration
agreement with the City, and the for payment of any costs set out in section 36.
Release of Security
(5) The City shall not release the security until,
(a) site alteration is complete in accordance with the site alteration permit;
(b) if applicable, the permit holder has provided a certificate of compliance
prepared by the person who prepared the control plan required by clause
15(2)(h), or a person of equivalent qualifications, confirming that site
alteration has been completed in accordance with the approved control
plan; and
(c) the City has carried out a final inspection of the site, and the Director is
satisfied that the site alteration is in accordance with this By-law, the site
alteration permit and the site alteration agreement, if applicable.
Compliance Letter
Upon paying any applicable fee, a permit holder may obtain a letter from the
Director confirming that a final inspection has been carried out and the Director is
satisfied that the site alteration is in accordance with this By-law, the site alteration
permit and the site alteration agreement, if applicable.
Site Alteration Undertakings
Public Notice
(1) At least 14 days prior to commencing site alteration pursuant to an issued
site alteration permit, the permit holder shall provide written notice, at the permit
holder's expense, of the approved site alteration undertaking to neighbouring
property owners likely to be impacted by the site alteration undertaking in a form
approved by the Director.
Same
(2) Prior to commencing site alteration pursuant to an issued site alteration permit,
the permit holder shall provide certification to the Director that subsection (1) has
been complied with, including a list of the addresses or a map showing the
properties where the written notice has been delivered.
Pre-Construction Meeting for General Application
(1) No person shall undertake site alteration pursuant to a site alteration permit
to which section 15 applies without first participating in pre-construction meeting
with Growth Management Division staff and obtaining the approval of the Director
to commence site alteration.
Notification for Minor Agricultural Application
(2) No person shall undertake site alteration pursuant to site alteration permit to
which section 14 applies without first notifying the Director 48 hours in advance of
commencing site alteration
Fill From Outside Hamilton Prohibited
(1) No person shall transport fill or topsoil to a site from any other source site
that is located outside the City of Hamilton.
(2) Subsection (1) shall not apply to a Site that is within an area having any of the
Employment Area designations shown on Schedule E-1 of the Urban Hamilton
Official Plan, as amended.
General Conditions
No person shall undertake site alteration or cause site alteration to be
undertaken except in accordance with the following conditions:
(a) no fill deposited on the site shall contain garbage, asphalt, glass, plastic,
metals,
petroleum
products,
putrescible
material,
soluble
or
decomposable chemical substances, or similar materials;
(b) no fill transported to the site from any other source site or moved from one
area of the site to another shall exceed the soil quality standards
determined in accordance with section 28;
(c) topsoil shall be removed and stockpiled on the site from all areas likely to
be disturbed by any other site alteration, and shall be replaced on the site
to the extent practicable;
(d) the permit holder shall maintain such written or electronic records of fill
transported to the site from any other source site as the Director may
require;
(e) fill transported to the site from any other source site or moved from one
area of the site to another shall be finally placed in accordance with the
approved control plan within 14 days of being deposited or moved, except
as stockpiled in accordance with the approved control plan;
(f)
fill deposited on the site shall be compacted in accordance with good
engineering practices;
(g) site alteration shall not cause adverse impacts, on the site or any other
lands, on any of the following:
(i) surface water drainage;
(ii) groundwater or a water source intended for agricultural use or human
consumption;
(iii) bodies of water or watercourses;
(iv) private, municipal or utility infrastructure;
(v) buildings or other structures;
(vi) trees or vegetation;
(vii) wildlife;
(viii) agricultural production;
(h) no site alteration shall be undertaken:
(i) on any Saturday, Sunday, or statutory holiday;
(ii) using highways to transport fill to or from the site except those
highways approved as a haul route by the Director, and in accordance
with Traffic By-law No. 01-215;
(iii) in contravention of the Noise By-law No. 11-285;
(iv) at any time when a wind warning issued by Environment Canada is in
effect for the area of the site; or
(v) during or within 48 hours of the site receiving 15 mm or more of
precipitation within a 24-hour period.
Potential Contamination
(1) If, at any time, any person performing site alteration, or an employee, agent
or contractor of a person performing site alteration makes an observation of the
site or any fill being excavated, moved, transported or deposited on the site,
including any visual or olfactory observation, that the fill may be affected by
contaminants, the site alteration shall stop immediately.
Notice to Director
(2) Any person who makes an observation described in subsection (1) and the
permit holder shall immediately notify the Director if there has been an observation
described in subsection (1).
Remediation
(3) The permit holder shall take steps to remove and remediate the potentially
contaminated fill to the satisfaction of the Director.
Prohibition
(4) No person shall resume site alteration until authorized by the Director.
Soil Quality Standards
The soil quality standards referred to in clause 26(b) shall be the standards set
out in Table 1 of the Soil, Ground Water and Sediment Standards, referenced in
O. Reg. 153/04, as applicable to the use of the site described in the permit
application unless the applicant submits an excess soil management plan
prepared by a qualified person and demonstrates to the satisfaction of the Director
that a less stringent standard is appropriate.
Additional Conditions
(1) In addition to the general conditions set out in Section 26, the Director may
impose such conditions to the issuance of a permit as in the Director's opinion are
reasonable to ensure compliance with this By-law.
Variance of Conditions
(2) The Director may vary any of the conditions set out in section 26 provided that
the general intent of this By-law is still met.
Restoration Upon Revocation or Incompleteness
If a permit is revoked by the Director or the permit holder is unable to or
determines not to complete the approved site alteration proposal, the permit holder
shall promptly restore the site to a condition consistent with this By-law to the
satisfaction of the Director.
Permit Expiry
(1) A site alteration permit shall be valid for a period of 2 years from the date of
issuance.
Permit Renewal
(2) A site alteration permit may be renewed for a period of 2 years upon application
within 90 days of the date of expiry.
Not Transferrable
(3) A site alteration permit is issued for a particular site and is not transferrable to
another site.
Deemed Revocation
(4) A site alteration permit shall be deemed to be revoked upon the transfer of
ownership of the site unless the new owner provides a written undertaking to
comply with all of the terms of the site alteration permit, including assuming any
agreement executed by the former owner, and the requirement to provide security.
Administration and Enforcement
Administration
This By-law shall be administered and enforced by the Director, who may
designate inspectors for the purposes of this By-law from time to time.
Experts and Consultants
The Director may engage such persons possessing special or expert
knowledge, including legal counsel, that the Director requires to
(a) evaluate or peer review a site alteration permit application;
(b) provide advice as to any matter relevant to a site alteration permit
application, site alteration permit or site alteration agreement;
(c) perform inspections, testing or sampling required to enforce this By-law;
(d) provide advice or project management with respect to work carried out by
the City pursuant to subsection 35(3)0; or
(e) otherwise enforce this By-law.
Entry on Land
(1) An inspector may enter on land at any reasonable time for the purpose of
carrying out an inspection to determine whether or not any of the following are
being complied with:
(a) this By-law;
(b) a condition of a site alteration permit;
(c) an order under the Municipal Act, 2001 or this By-law;
(d) a site alteration agreement.
Inspection Powers
(2) An inspector carrying out an inspection under subsection (1) may:
(a) require the production for inspection of documents or things relevant to the
inspection;
(b) inspect and remove documents or things relevant to the inspection for the
purpose of making copies or extracts;
(c) require information from any person concerning a matter related to the
inspection; and
(d) alone or in conjunction with a person possessing special or expert
knowledge, make examinations or take tests, samples or photographs
necessary for the purposes of the inspection.
Biosecurity Practices
(3) An inspector or other person entering upon land where an agricultural operation
occurs shall observe appropriate biosecurity practices.
Orders
(1) An inspector who is satisfied that a contravention of this By-law has
occurred may make one or more orders requiring any person who contravened the
By-law,
(a) to discontinue the contravening activity, or
(b) to do work to correct the contravention.
Immediate Effect
(2) An order under subsection (1) may take immediate effect.
Remedial Action
(3) If a person fails to comply with an order under subsection (1), the Director or
persons acting upon the Director's instructions may enter on land at any
reasonable time to do the things required by the order at the person's expense.
Recovery of Costs
The City may recover any of the following costs by action or by adding the costs
to the tax roll and collecting them in the same manner as property taxes:
(a) its actual costs plus 15% for administration and staff costs plus interest at
the rate of 15% per year to engage persons possessing special or expert
knowledge pursuant to section 33;
(b) its actual costs plus 50% for project management, administration and staff
costs plus interest at the rate of 15% per year for work performed by the
City pursuant to subsection 35(3).
Offences and Penalties
Offence
(1) Any person other than a corporation who contravenes any provision of this
By-law or an order made under this By-law is guilty of an offence and on conviction
is liable to a maximum fine of $10,000 for a first offence, and $25,000 for a
subsequent offence.
Officers and Directors
(2) Any officer or director who knowingly concurs in the contravention of this By-
law or an order made under this By-law is guilty of an offence and on conviction is
liable to a maximum fine of $10,000 for a first offence and $25,000 for a
subsequent offence.
Corporations
(3) Any corporation which contravenes any provision of this By-law or an order
made under this By-law is guilty of an offence and on conviction is liable to a fine
of $50,000 for a first offence and $100,000 for any subsequent offence.
Economic Advantage
(4) In addition, if any person convicted of an offence under this By-law has gained
economic advantage from the contravention of the By-law, they are liable to a
special fine equal to the economic advantage gained.
Continuing Offence
Each day or a part of a day that a contravention of this By-law continues is
deemed to be a separate offence.
Administrative Penalties
In the alternative to a charge for the offences described in section 37, an
inspector may issue an administrative penalty notice for any contravention of this
By-law.
Administrative Provisions
Severability
In the event that any provision or part of a provision in this By-law is found to
be invalid or unenforceable then the particular provision or part thereof shall be
deemed to be severed from the remainder of the By-law and all other provisions
or parts thereof shall remain in full force and effect and shall be valid and
enforceable to the fullest extent permitted by law.
Administrative Penalty Table
Administrative Penalty By-law No. 17-225 is amended by adding Table 20:
TABLE 20: BY-LAW NO. 19-286 PROHIBITING AND REGULATING THE ALTERATION OF
PROPERTY GRADES, THE PLACING OR DUMPING OF FILL, AND THE REMOVAL OF
TOPSOIL
ITEM
COLUMN 1
DESIGNATED BY-
LAW & SECTION
COLUMN 2 SHORT FORM
WORDING
COLUMN 3
EARLY
PAYMENT
COLUMN 4
SET
PENALTY
1
19-286
11(1)
Site alteration without permit
$400.00
$500.00
2
19-286
25
Transporting Fill to a site
from a source site that is
located outside the City of
Hamilton
$400.00
$500.00
Transition
(1) Despite section 44, the provisions of By-law No. 03-126, as amended,
continue to apply to a permit issued pursuant to that By-law.
No Renewals
(2) The Director shall not grant any extensions or renewals of permits issued
under By-law No. 03-126.
Schedules
(1) The following Schedules are attached to and form part of this By-law:
(a) Schedule "A" - Site Alteration Permit Application Fees
(b) Schedule "B" - Financial Security
(2) Schedule "A" and any other fees arising from this By-law may be amended by
Council through the City's User Fees and Charges By-law from time to time.
(3) Schedule "B" may be revised by the Director.
Repeal
City of Hamilton By-law No. 03-126, as amended, is repealed.
Coming Into Force
This By-law comes into force on the day it is passed.
PASSED this 28th day of November, 2019.
Schedule "A" to By-law No. 19-286
Site Alteration Permit Application Fees
I.
Minor Permit Fee for Residential Applications and Minor Agricultural Applications
$696.00 (includes HST)
II.
Major Permit Fee for non-residential applications and Major Agricultural
Applications - $2770.00 (includes HST)
Schedule "B" to By-law No. 19-286
Financial Security
Security deposit to be used by the City as in accordance with Section 21 of the
Agreement, which amount is calculated to be the sum of 50% of the value
earthworks and 100% of the value of restoration of the lands affected by
earthworks.
Item
Amount
Basis
Earthworks
Cost of importing/exporting
per cubic meter (50%)
Restoration
Grade and seed (100%)
Soil Testing
As per recommendations of
Soil Management Plan (100%)
Siltation Erosion Control
Cost of implementation of
Erosion and Siltation Control
measures (100%)
Municipal Road Remediation
Remediate fouling or damage
to municipal roads and other
infrastructure