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The Corporation
of the Town of
New Tecumseth
By- law
Number 2022- 063
Tree By- law"
A By- law to regulate the removal and injury of protected trees
Whereas
section
135 of the Municipal Act, 2001, S. O. 2001, c. 25 authorizes
a municipality to prohibit or regulate the destruction or injuring of trees;
And Whereas
section 62 of the Municipal Act, 2001 authorizes
a
municipality, at reasonable times, to enter upon land lying along any of its highways
to inspect trees, conduct tests on trees, and to remove or have removed decayed,
damaged, or dangerous trees or branches of trees if, in the opinion of the
municipality, the trees or branches pose a danger to the health or safety of any
person using the highway;
And Whereas section 425 of the Municipal Act, 2001, S. O. 2001, c.25,
provides for a municipality to pass By- laws providing that a person who contravenes
a By- law of the municipality passed under the Act is guilty of an offence;
And Whereas
section 426 of the Municipal Act, S. O. 2001, c. 25 provides that
no person shall hinder or obstruct, or attempt to hinder or obstruct, any person who
is exercising a power or performing a duty under this Act or under a By- law passed
under this Act;
And Whereas section 429 of the Municipal Act, S.O. 2001, c.25 provides for
a municipality to establish a system of fines for offences under a By- law of the
municipality passed under this Act;
And Whereas section 436 of the Municipal Act, S. O. 2001, c.25 provides for
a municipality
to pass By- laws that authorize it to enter on land at any reasonable
time for the purpose of carrying out an inspection to determine if a By- law of the
municipality is being complied with, or to determine if an order or direction of the
municipality made under the Act or made under the By- law is complied with, and
may require information, inspect documents and take samples;
And Whereas
section 431 of the Municipal Act, 2001 authorizes, in addition
to any other remedy and to any penalty imposed by a By-law passed under section
135, the court in which a conviction
has been entered to make an order requiring the
person convicted to correct the contravention in the manner and within the period
that the court considers
appropriate;
And Whereas the Council for the Corporation of the Town of New Tecumseth
recognizes the importance of trees to the environment within the Town for the
purposes of health and welfare, beauty, safety, history, and general wellbeing;
And Whereas the Council for the Corporation of the Town of New Tecumseth
wishes to promote tree conservation, the increase, renewal, and proliferation of trees
and the tree canopy, and the protection of existing trees by providing reasonable
minimum standards
regarding the preservation, planting, protection, and
maintenance of Town trees;
And Whereas
section 4. 5. 8 of the New Tecumseth
Official Plan of August
2019 states that the Town should consider establishing
a Town Tree Cutting By- law.
Now Therefore
the Council of The Corporation
of the Town of New Tecumseth
does
hereby enact as follows:
By- law 2022- 063..................................................................................................
Page 2 of 9
1
Definitions
For this By- law, the following terms shall have the following meanings:
1.
1
dbh means acronym for tree diameter at breast height ( dbh) measured at
1. 4 meters ( 4. 6 feet) above ground ( unless otherwise noted for justified
reasons).
1. 2
Development
means the construction, erection, or placing of one or more
buildings or structures on land or the making of an addition or alteration to
a building or structure requiring approvals under the Planning Act and/ or
subject to Agreement of, and at the sole discretion with, the Town. This
includes, but is not limited to Site Plan Applications, Plan of
Subdivision/ Condominium, Property Access Permits, Road Occupancy
Permits, Site Alternation
and Fill Applications, including
lands described
in
section 4. 5. 11 of the Official Plan, wooded areas not within the EP1 and
EP2 designation.
1. 3
Director means the Director of Public Works for the Town and includes the
Director' s alternate, designate, or successor.
1. 4
Heritage Tree means a historical or culturally significant tree associated
with a historic person or event or growing on historically significant land
that is a tree designated
under Part IV of the Ontario
Heritage Act or trees
recognized
as heritage trees by the Ontario Heritage Tree Program of
Trees Ontario. This includes trees currently nominated to be a Heritage
Tree by the Town.
1. 5
Injury or Injure means to harm, damage, or impair the above or below
ground portions of a tree( s) and includes, but is not limited to, harm,
damage, or impairment caused by changing grades around trees,
compacting soil over critical root areas, severing roots, improper
application
of chemicals, improper or unapproved
pruning, or the removal
of branches and bark that would adversely affect the health or structure of
a tree, and includes the failure to protect a tree.
1. 6
Municipal
Law Enforcement
Officers means a provincial
offences officer
employed
by the Town.
1. 7
Person means an individual, a corporation, a partnership, or an
association.
1. 8
Significant Tree means a tree that is recognized by the Town because of
its size, form, rarity of species, age, its association with a historical figure
or event, and/ or a tree that is distinctive
in the community, or a
combination of these criteria, but does not include a Heritage Tree.
1. 9
Protected Tree means:
a Town tree; or
a Significant
or Heritage
tree; or
a tree 20cm dbh or greater that is part of a development
in the Town.
1. 10 Technical Tree Guidelines means the Town' s document to detail
processes, procedures, and technical requirements to maintain, protect,
and enhance trees and the tree canopy (Tree Guidelines).
1. 11
Town means the Corporation of the Town of New Tecumseth.
1. 12 Town Property means lands within the Town' s boundaries that are owned
by the Town.
1. 13 Town Tree means any tree, all, or part of which is located on Town
By- law 2022- 063..................................................................................................
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property.
1. 14 Tree Protection Zone (TPZ) means the setback required to maintain
overall physiological
health of the tree and the structural
integrity of the
tree' s roots, based on generally accepted arboricultural principles and as
referenced in the Tree Guidelines.
2
Applicability
and Scope
1) This By- law applies to all properties within the boundaries of the Town.
2) If there is a conflict between government authority By- laws relating to the
regulation
or prohibition of the destruction or injuring of trees, the By- law that
is the most restrictive ( most stringent) of the destruction or injuring of trees
prevails. 2001, c. 25, s. 461. ( Municipal Act)
3) Despite any prohibitions or restrictions in this By- law, its provisions do not
apply to the injuring or destruction
of trees:
2. 1
that are regulated under the county By- law( s), in which the provisions of
the County By- law(s) conflict with this By- law;
2. 2
undertaken under a license issued under the Crown Forest Sustainability
Act, 1994, S. O. 1994, c25;
2. 3
by a person licensed under the Surveyors Act, R. S.O. 1990, Chapter S.29,
to engage
in the practice of cadastral surveying
or their agent, while
making a survey;
2. 4
as a condition to the approval of a development application, a plan of
subdivision, or a consent under section 41, 51 or 53, respectively, of the
Planning Act, R. S.O. 1990, c. PA 3, or as a requirement of a site plan
agreement or subdivision agreement entered into under those sections, or
as otherwise addressed in an executed, written agreement with the Town
subject to approval from the Town, payment for tree compensation as per
Appendix
1 in the By- law, and the Town' s Technical Tree Guidelines;
2. 5
as a condition to a development
permit authorized
by regulation
made
under section 70.2 of the Planning Act, R. S.O. 1990, c. P. 13, or as a
requirement of an agreement entered into under the regulation;
2. 6
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;
2. 7
undertaken on land described in a license for a pit or quarry or a permit for
a wayside pit or wayside quarry issued under the Aggregate Resources
Act, R. S.O. 1990, c. A.B; or
2. 8
undertaken on land to lawfully establish and operate or enlarge any pit or
quarry on land: ( i) that has not been designated
under the Aggregate
Resources Act, R. S. O. 1990, c. A.8 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, R. S. O. 1990, c. PA 3.
2. 9
undertaken
on authority of the Town including but not limited to highway
maintenance and capital works.
By- law 2022-063..................................................................................................
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3
General Provisions
3. 1
Authority for planting, maintenance, and removal of trees.
3. 2
The Director is hereby authorized to plan, regulate, supervise, and carry
out the planting, maintenance, correction, protection, preservation, and
removal of all trees located on any Town property.
3. 3
Without limiting the generality of (3. 2), the Director is hereby authorized to
take or cause the following
action:
3. 3. 1
plant trees on Town property;
3. 3. 2
care for and maintain trees located on Town property;
3. 3. 3
identify the species of trees which are permitted and prohibited in the
Town;
3. 3. 4
remove a tree located on Town property;
3. 3. 5
remove without notice or compensation to any person, any object or
material that adversely affects a tree or part of a tree located on Town
property;
3. 3. 6
implement all necessary treatments for insect and disease problems
associated with trees located on Town property;
3. 3. 7
stop any work causing injury or destruction to a protected tree that is
taking place without permission from the Town;
3. 3. 8
enter upon land adjacent to Town property to inspect and conduct
assessments
or tests on protected trees, to prune trees where the
branches may negatively impact Town infrastructure ( e.g., highway,
streetlight, etc.), and enter said property to perform a proper pruning
cut on the tree where required;
3. 3. 9
remove a decayed, damaged, or dangerous tree or tree part
immediately and without notice to the owner of the land upon which the
tree is located
if, in the opinion of the Director, the tree or tree part
poses an unacceptable risk to people, property, accessibility, or
disruption of events; or
3. 3. 10 have an order issued to the tree owner to remove
a decayed,
damaged, or dangerous tree or tree part immediately
and without
notice to the owner of the land upon which the tree is located if, in the
opinion of the Director, the tree or tree part poses an unacceptable
risk
to people, property, accessibility, or disruption of events;
3. 3. 11 protect all trees that are considered Significant or Heritage;
3. 3. 12 have issued a permit to authorize work on a town tree or to plant a tree
on Town property.
4
Prohibited Acts
No person shall:
4. 1
injure or destroy, or cause to be injured or destroyed, a protected tree;
4. 2
remove or cause to be removed
a protected tree;
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4. 3
deface, tack, paste, or otherwise attach a bill, note, any other thing, or
object to a Town tree;
4. 4
hinder or obstruct or attempt to hinder or obstruct the Director in the
exercise of the powers and performance of the duties under this By- law;
4. 5
plant or cause to be planted a tree or any part of a tree on Town property
without first having obtained the permission of the Director;
4.6
fail to comply with an order issued by the Director;
4. 7
undertake or cause any unauthorized
activities within the tree protection
zone of a protected tree which are contrary to the Town' s By- law, policy, or
guidelines or any conditions imposed and set out by the Town pertaining to
the protection of any protected tree;
4. 8
remove or have removed
protected trees within two years of a
development/demolition application.
5
Enforcement
Of By -Law
5. 1
In addition to the Director, the administration and enforcement of this By-
law will be performed by those persons designated by Council as
Municipal Law Enforcement Officers.
5. 2
Where a person has contravened
this By- law, the Director may make an
order directing the person to do any or all of the following:
5. 2. 1
Comply with any conditions required to correct the contravention to
the satisfaction of the Director; and/ or
5. 2. 2 Cease the activity which is the subject of the contravention.
5. 3
The order issued by the Director pursuant to subsection 6. 2 shall set out:
5. 3. 1
the person who contravened the By- law or caused or permitted the
contravention;
5. 3.2
reasonable particulars of the contravention and the period within
which there must be compliance with the order; and
5. 3. 3
if applicable, notice stating that if the work is not done in compliance
with the order within the period it specifies, the municipality may have
the work done at the expense of the person who contravened the By-
law and collected
in the same manner as property taxes.
5.4
Orders issued under subsection
6. 2 shall be served by email, personally,
or by registered mail to the last known address of the person to be served.
5. 5
If the Town is unable to effect service on the person who contravened the
By- law under subsection 5.4, a placard containing the terms of the order
may be placed in a conspicuous place on the land where the contravention
occurred, and the placing of the placard shall be deemed to be sufficient
service of the order.
5. 6
Where a person has failed to correct any contravention to the satisfaction
of the Director within the time specified in an order issued pursuant to this
By- law, the Town, in addition to all other remedies it may have, may take
all necessary steps to bring the lands into compliance with the By- law.
5. 7
The Town may recover all costs incurred by it under subsection 6, plus
cost recovery of up charge of 50% or interest accrued to the date payment
is made at the rate of fifteen percent ( 15%) per annum, from the person
directed or required to do it by action or by adding the costs to the tax roll
and collecting them in the same manner as taxes.
By- law 2022-063..................................................................................................
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6
Offence and Penalty
6. 1
Every person who contravenes any provision of this By- law is guilty of an
offence and, upon conviction, is liable to a fine as provided for by the
Provincial Offences Act, R.S. O., 1990 c. P. 33, as amended.
6. 2
All contraventions
of this By- law or orders issued under section 6 are
designated multiple offences and continuing offences pursuant to section
429(2) of the Municipal Act, 2001.
6. 3
Upon conviction of an offence under this By- law, a person is liable to a fine
as follows:
6. 3. 1
The minimum fine for an offence is $ 500 and the maximum fine for
an offence is $ 100, 000.
6. 3. 2
In the case of a continuing offence, in addition to the penalty
mentioned
in section 6. 3. 1 above, for each day or part of a day that
the offence continues, the minimum fine shall be $ 500 and the
maximum fine shall be $ 10, 000, and the total of all daily fines for the
offence is not limited to $ 100, 000.
6. 3. 3
In the case of a multiple offence, for each offence included in the
multiple
offence:
the minimum fine shall be $ 500 and,
the maximum fine shall be $ 10, 000 and,
the total of all fines for each included offence is not limited to
100, 000.
6. 3. 4 A special fine may be imposed, in addition to a fine under section 6. 3
above, in circumstances where there is an economic advantage or
gain from the contravention
of this By- law or an order under
section
5 of this By- law, and the maximum
amount of the special
fine may exceed $ 100, 000.
6. 3. 5
Failure to install and maintain required tree protection
hoarding
during demolition and/ or development, $ 500 per tree/ per day.
6. 3. 6
If a person is convicted of an offence for contravening the provisions
of this By- law, or an order issued pursuant to this By- law, the Court in
which the conviction has been entered may order the person to
correct the contravention, which may include but is not limited to:
repair, planting, or replanting
such tree( s) in such manner and within
such time period as the Court considers appropriate, such as
replacement
of a comparable species and/ or payment of the tree( s)
amenity value as determined
by the Director using the following
criteria:
6. 3.6. 1
The payment shall be two ( 2) times the value of the
compensation
based on its estimated
pre -casualty condition as
determined using the Town' s tree compensation formula found
in Appendix
1.
6. 3. 7
Any costs payable or associated with an order of the Court in
subsection ( 6. 3.6) are in addition to, and not in substitution for, the
payment of any penalty imposed by the Court for the commission of
an offence under this By- law or any other applicable legislation.
6. 3. 8
The cost to repair as determined
by the Director using the tree injury
formula in Appendix 2 where causing injury to a protected tree
including the tree's above and below ground portions.
6. 3. 9
Where a person removed or had removed a protected tree(s), as per
subsection 4. 8, an Arboricultural Consultant, approved under the sole
discretion
of the Director, shall be retained to prepare
a report to
determine
the tree compensation
required
based on ( but not limited
to) stumps, historical " Google" photo interpretation, referencing
Appendix
1 Tree Compensation
Formula. All costs, including the
report, shall be borne by that person.
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7
Severability
In the event that any provision or part of this By- law is found to be invalid or
unenforceable for any reason whatsoever, 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 shall be valid and
enforceable to the fullest extent permitted by law.
8
Supporting
Materials
8. 1
Appendix
1 -
Tree Compensation
Formula
Protected
trees that require compensation
will use the following formula:
AxB)= C=
D
A. dbh of subject tree in cm
B. Condition of subject tree ( pre -casualty), expressed as a percentage:
Excellent (90% rating) - Nearly perfect or ideal for the species, free of
defects.
Good ( 75% rating) - Normal Vigour, well developed structure, minor
asymmetries.
Fair (50% rating) - Reduced vigour, multiple moderate
defects, major
asymmetries.
Poor (25% rating) - Unhealthy
and declining, multiple significant
defects, largely asymmetric.
Very Poor ( 15% rating) - Poor vigour, dying, multiple severe defects,
visually unappealing.
Dead ( 5% rating) -- used in the health assessment, 90% declined, no
chance of recovery within next year.
High Risk Tree ( 0% rating)
C. A replacement tree will be based on 5cm ( 50mm) caliper with a value of $500
D. Number of trees to replace through replanting
on site, as cash in lieu, or a
combination
thereof
Tree Compensation Calculation Example:
2 x 120cm dbh maples ( Acer sp.) Both trees - Health is Fair; Structure is Poor;
Form is Fair
a. (
dbh x (( Health (%) + Structure (%) + Form (%)) +
3)) -- Replacement
tree size = number of trees
b. (
240 x (( 50% + 25% + 50%) -- 3)) -- 5
C. (
240 x 0. 42) - 5
d.
20 trees ( round only in the last stage and to the nearest whole number)
Solution:
3 x 50mm approved trees can be planted on the property, therefore 17 trees
require compensation at $ 500/ tree, $ 8, 500 cash -in -lieu will be required as
payment to the Town for the difference for trees not planted.
Note: As per section 6. 3. 6. 1, if these trees were removed without authorization,
40 trees would have been required for compensation.
8. 2
Appendix 2 -- Tree Injury Formula
Protected
trees that are injured without authorization
shall be compensated
based on the following formula, at the sole discretion of the Town:
A x B) x C) x D = injury amount
A. dbh of subject tree
B. Condition of subject tree ( pre -casualty), expressed as a percentage:
By- law 2022- 063..................................................................................................
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Excellent ( 90% rating) - Nearly perfect or ideal for the species, free of
defects.
Good (75% rating) - Normal Vigour, well developed structure, minor
asymmetries.
Fair (50% rating) - Reduced vigour, multiple moderate defects, major
asymmetries.
Poor (25% rating) - Unhealthy and declining, multiple significant
defects, largely asymmetric.
Very Poor (15% rating) - Poor vigour, dying, multiple severe defects,
visually unappealing.
Dead ( 5% rating) -- used in the health assessment, 90% declined, no
chance of recovery within next year.
High Risk Tree ( 0% rating)
C. Severity of injury, assessed in the sole discretion of the Town, expressed as a
percentage:
i.
Low Risk Factor (25% of Assessed Value):
Minimal work inside TPZ ( including grading, excavation, servicing,
etc.);
Tracked machine inside TPZ ( root zone impact < 25%).
Construction
foot traffic inside TPZ ( root zone impact < 25%).
Materials stored inside TPZ ( compaction < 25%).
ii.
Moderate
Risk Factor ( 50% of Assessed Value):
Minimal work inside TPZ (including grading, excavation, servicing,
etc.).
Hoarding not installed as per Town Standard
Tracked machine inside TPZ (root zone impact 25- 50%).
Construction foot traffic inside TPZ ( root zone impact 25- 50%).
Materials stored inside TPZ (compaction 25- 50%).
iii.
High Risk Factor ( 75% of Assessed Value):
Significant work inside TPZ ( including grading, excavation, servicing,
etc.)
Hoarding not installed as per Town Standard
Wheeled
machine
inside TPZ ( root zone impact < 25%)
Tracked
machine inside TPZ ( root zone impact 50- 75%).
Construction foot traffic inside TPZ ( root zone impact 50- 75%).
Materials stored inside TPZ (compaction 50- 75%).
Trunk damages to < 25% of circumference.
iv.
Severe Risk Factor ( 90% of Assessed Value):
Excessive work inside TPZ ( including grading, excavation, servicing,
etc.);
Hoarding shown on plan and not installed as per Town Standard
Wheeled machine inside TPZ (root zone impact >25%)
Construction foot traffic inside TPZ ( root zone impact > 75%)
Materials stored inside TPZ ( compaction > 75%)
Trunk damages to 25- 50% of the circumference (> 50% is considered
an unauthorized removal)
D. $ 50 - Where dollar value per centimetre equals new tree value ($ 500) divided
by new tree caliper size of 5cm divided in half to use a per centimetre cost of
injured tree value. ($
500 = 5) - 2 = $ 50/ cm
Example:
75cm protected sugar maple in good overall condition has around 50% of its
roots compacted by a tracked skid steer, with the hoarding removed in
sections.
Solution:
dbh x condition value x Injury Factor x dollar value/cm = injury amount
75cm
x 75%) x 90%) x $ 50 = $ 2, 531. 25
By- law 2022-063..................................................................................................
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As the hoarding was removed without authorization, as per section 6. 3. 5, an
additional set fine of $500 is applied. A total fine of $ 3, 031. 25.
2, 531. 25 will be used towards mitigating the compaction
on -site through a
third -party contractor retained and approved by the Town. The mitigation was
determined to be root invigoration using a supersonic air tool with a bio- char
additive, and subsequently
covered with woodchips.
9.
That By- law 2019- 086 is hereby repealed.
10.
That this by- law shall be cited as " Tree By- law".
11.
That this by- law shall come into force and take effect on the date of final
passing thereof.
Read a first, second and third time and finally passed this 13th day of
June, 2022.
Mayor
Clerk