Trees on Private Property in Urban Areas By-law 5139-19
Niagara-on-the-Lake, Ontario
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"DBH"means the diameter of the stem or trunk of a tree
at breast height, measured
outside the bark and shall be measured
at a point 1.4 meters above the highest point of
the ground in an undisturbed state at the base of a tree, or where there are multiple
stems to a tree, means the total diameter of all stems at a point of 1.4 meters above the
highest point of the ground in an undisturbed state at the base of a tree.
DBH shall be
determined in accordance with Schedule "A"to the satisfaction of the Inspector;
"Destroy" means directly or indirectly, including through construction activities, remove,
ruin, uproot or killa tree, whether by accident or by design, and whether by cutting,
burning, girdling, interfering with its water supply, applying chemicals, puncturing, or
compacting, regrading or resurfacing within its drip line, but does not include
Maintenance Pruning, and "Destruction" has the corresponding
meaning;
"Emergency Work" means any work required to be carried out immediately in order to
prevent imminent danger to life, health or property, and includes the Destruction or
lnjuring of trees required because of the state of the trees resulting from natural events
(including lightning, wind, hail or extreme snow event) or unforeseen causes
(including
automobile accident), or to permit repairs to building structures or drains;
"Good Arboricultural Practice" means the proper implementation of maintenance,
renewal and removal activities known to be appropriate for individual trees in and
around urban areas to minimize detrimental impacts on urban forest values, and
includes Maintenance Pruning;
"Hazardous" means destabilized
or structurally compromised
to an extent that an
imminent danger of death, injury or structural damage exists;
"Heritage Tree" means a tree designated
under Part IVof the Ontario Heritage Act,
1990, c.0.18, as amended
or replaced from time to time, or included in the Town's
Municipal Register of Cultural Heritage Properties, or is part of an identified Cultural
Heritage Landscape;
"Hoarding" means a fence or similar structure used to enclose land, trees and other
vegetation
in order to protect trees or other vegetation;
"injure" means cause, directly or indirectly, whether by accident or by design, including
through construction activities, lasting damage
or harm to a tree, which has or is likely to
have the effect of inhibiting or terminating its growth, whether by cutting, burning,
girdling, interfering with its water supply, applying chemicals, puncturing, or compacting,
regrading or resurfacing within its drip line, but does not include Maintenance Pruning,
and "injuring" has the corresponding
meaning;
"|nspector" means a person designated
by the municipality to enforce this By--law;
"|nstitution"
means an Owner of land used for educational, medical, religious, retirement
or similar purposes;
"Landscaping, Replanting and Replacement
Plan" means a plan which identifies the
location, species and size of existing trees, trees to be planted or replaced and other
landscaping elements on land and provides details regarding planting methodology and
timing;
"Lot"means a parcel of land which
(i) is the whole of a lot or block on a registered plan of subdivision so long as such
registered
plan of subdivision is not deemed,
pursuant
to section 50 of the Planning
Act, R.S.O. 1990, c.P.13, as amended
or replaced from time to time, not to be a
registered plan of subdivision for subdivision control purposes;
(ii)is all land held or owned under distinct and separate
ownership from the
ownership of the fee or equity of redemption in abutting land;
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(iii)has the same description as in a deed which has been given consent pursuant to
section 53 of the said Planning Act; or
(iv) is the whole remnant remaining to an owner or owners after conveyance made
with consent
pursuant
to section 53 of the said Planning Act;
"Maintenance Pruning" means the pruning or removal of tree branches in accordance
with Good Arboricultural Practice, as specified by the International Society of
Arboriculture, including for purposes
of removing dead limbs, maintaining structural
stability and balance and encouraging
natural form, but limited to the appropriate
removal of no more than one-third of the live branches that make up the leaf-bearing
crown of the tree within a three-year pruning cycle, or as appropriate for the specific tree
species,
in order to maintain the health of the tree;
"Municipality"means the Corporation of the Town of Niagara-on--the-Lake;
"Nuisance Tree" means a tree listed in Schedule "D";
"Owner" means an individual or corporation having any right, title, interest or equity in
the land where a tree is located; a boundary tree may have multiple Owners;
"Permit" means a permit to destroy or injure a tree, issued pursuant
to this bylaw;
"Regulated Tree" means a specimen of any species of deciduous or coniferous growing
woody perennial plant, supported
by a single root system, which has reached, could
reach or could have reached a height of at least 4.5 metres from the ground at
physiological maturity and has a DBH of at least 12.5 cm;
"Replacement Tree" means a tree that is required under this By--|awto replace an
existing tree that is approved for removal;
"Replacement Tree Planting Fund" means the fund set aside for the purpose of planting
trees in locations within the Town other than the lot where a tree has been injured,
destroyed or removed;
"Town" means the Corporation of the Town of Niagara-on--the-Lake;
"Tree Management
Plan" means a plan prepared by an Arborist in accordance with
Good Arboricultural Practice, which, at a minimum, itemizes the existing number,
species,
location and condition of all trees on the Lot and which includes a management
schedule related to Destruction or Injuring intentions for a period of not less than two
years;
"Weed Tree" means a tree listed in Schedule "D";
"Woodland" or "Woodlands" means as defined in the Niagara Region Tree By--|aw30-
2008, namely: land on one or more properties with a density of at least: 1,000 trees, of
any size, per hectare; 750 trees, measuring over five (5) centimetres in diameter at
DBH, per hectare; 500 trees, measuring over twelve (12) centimetres,
in diameter at
DBH, per hectare; or 250 trees, measuring over twenty (20) centimetres, in diameter at
DBH, per hectare; but does not include: a cultivated fruit or nut orchard; a plantation
established for the purpose of producing Christmas trees and which is being actively
managed and harvested for the purposes for which itwas planted, except that this does
not refer to plantations that have ceased
being managed
or harvested
for their intended
purpose for a period of 15 years or more; or a bona fide tree nursery that is being
actively managed
and harvested for the purposes for which itwas planted.
Part II - Scope
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2. This By-law applies to all private property in the urban areas
of the Town as
illustrated on Schedule
but does not apply to trees in woodlands that are
governed
by Niagara Region Tree By-law 30-2008.
Part III
-- Protection of Regulated Trees
3. (1) Except as provided in this By-law, no person shall, within the geographic
limits of
the urban boundaries of the town, Destroy or lnjure, or cause or permit the
Destruction or lnjuring of any Regulated Tree.
(2) Notwithstanding subsection (1) of this section 3, a person may Destroy or lnjure,
or cause or permit the Destruction or lnjuring of a Regulated Tree in compliance with
a Permit.
(3) if there is doubt as to whether a specific tree is a Regulated Tree or not, the
Owner of the tree may request a determination from an Inspector. The Inspector may
provide a written determination
as to whether, on the date of the determination, the
tree is a Regulated Tree or not.
(4) In a case where a tree has been Destroyed or Injured and part or all of the
remaining stump or stumps is or are too short for the DBH to be measured, the
relevant DBH shall be extrapolated from the remaining trunk or trunks.
Part IV
-- Statutory Non-application of the By-law
4. This By-law does not apply where there is a conflict with Provincial or Federal
legislation. Therefore this By-law does not apply:
(a) to the activities or matters or the Destruction or lnjuring of trees described
in
subsection
135(12) of the Municipal Act;
(b) to restrict the Destruction and injuring of trees which constitute a normal farm
practice carried on as part of an agricultural operation, as so determined by the
Normal Farm Practices Protection Board, pursuant to the Farming and Food
Production Protection Act, 1998, S.O. 1998, c. 1, as amended
or replaced from time
to time; or
(c) to the Destruction or lnjuring of trees pursuant to a forestry development
agreement
pursuant to, or deemed to be pursuant to, the Forestry Act, R.S.O. 1990,
c.F.26, as amended or replaced from time to time, or measures
to prevent, retard,
suppress, eradicate or destroy an infestation by a forest tree pest, taken by an officer
pursuant to the said Forestry Act.
Part V
-- Permit Exemptions
5. The Destruction or injury of a Regulated Tree is exempt from the requirement for a
Permit ifthe Regulated Tree is:
(a) A tree having no living tissue, having 70% or more of its crown dead, or being
infected by a lethal pathogen, fungus or insect (including the Emerald Ash Borer or
the Asian Long horned Beetle), and where required, a certificate issued by an
Arborist, confirming this justification for Destruction or injuring, has been submitted to
an Inspector;
(b) A tree which is Hazardous, and where required, a certificate issued by an
Arborist, confirming this justification for Destruction or injuring, has been submitted to
an Inspector;
(c) A tree that is Destroyed or Injured as part of Emergency Work, subject to the
emergency notification requirement contained in this By-law;
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(d) A tree certified by a building inspector or engineer as causing structural damage
to a drain, load-bearing structure or roof structure;
(e) A tree located on a rooftop or elevated podium, or in an interior courtyard or
solarium, and likelyto cause damage;
(f) A tree growing in contaminated soil and, by its presence,
preventing remediation
of the contaminated soil, provided that proof of remediation efforts in the form of an
approved Ontario Ministry of the Environment, Conservationand Parks remediation
plan;
(g) Required under a Property Standards By-law order;
(h) Pruning that is necessary to maintain the health and condition of the tree and is
carried out in accordance with good arboricultural practices;
(i)A nuisance or weed tree;
(j)A fruit tree that is capable of producing fruit for human consumption; or
(k) A tree which is part of:
(i) a tree nursery business where trees are planted, cultivated and harvested for the
purpose of live tree sales;
(ii) a Christmas tree plantation business where coniferous trees are planted,
cultivated, maintained and harvested for Christmas celebration purposes; or
(iii)a cultivated orchard business where fruit or nut trees are grown and maintained
specifically for the harvesting of their fruit or nuts.
Part VI
-- Emergency Notification
6. Where emergency tree removal is required, where the likelihood of tree failure is
imminent and a tree or part of a tree poses an extreme risk in which there is a high
likelihood of severe consequences,
the Owner shall notify the Town as soon as may be
practicable with documentation including but not limited to an arborist report, if
available, and photographs of the size/height of the tree and distance to building.
Part VII - Application for Permit
7. (1) Ifan Owner wishes to Destroy or lnjure one or more of the Owner's Regulated
Trees or wishes to undertake an activity which might Destroy or lnjure one or more of
the Owner's Regulated Trees, and if none of the exemptions set out in this By-law are
applicable, then the Owner shall submit to an Inspector the Application and an
Application containing the following information in respect of each such Regulated Tree:
(a) the address of the land where the Regulated Tree to be Destroyed or Injured is
located;
(b) the name and contact information of the Applicant;
(c) the names and contact information, and written permission, of all Owners;
(d) a plan (or plan of survey) and photograph, showing the location, species, size and
condition of each Regulated Tree to be Destroyed or Injured;
(e) the purpose for which the Permit is sought and the nature of the proposed or
possible Destruction or Injuring;
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(f) where there is a discrepancy
in the health assessment
of the Regulated
Tree to be
Destroyed or Injured, and where the Inspector so requires, a written evaluation by an
Arborist of the condition of the Regulated Tree;
(g) where trees are proposed to be retained, and where the Inspector so requires, a
tree protection plan identifying the location, species and size of trees on the land and
tree protection measures,
including barriers and Hoarding, to be implemented to
avoid Destruction or lnjuring of, and protect, the trees that are to be retained; and
(h) where three or more trees are proposed for Destruction or lnjuring, and where the
Inspector so requires, a Landscaping,
Replanting and Replacement
Plan.
(2) No person shall provide false or misleading information on or in support of an
Application.
(3) Submission of an Application shall constitute the granting of permission for the
Town, or its designate(s),
to enter on the Applicant's land for purposes
of this By--law
(4) Where the trunk of the tree straddles the boundary of one or more properties, in
addition to the requirements
listed above, the applicant must provide the written consent
of the other owner or owners to the application.
Part VIII- Issuance
of Permits
8. In deciding whether or not to issue a Permit in respect of a Regulated Tree, an
Inspector shall consider the following criteria:
(a) the species of each Regulated Tree, and particularly whether it is native to the
area, is considered
regionally or locally significant or is an endangered
species or
threatened species as defined in the Endangered Species Act, 2007, S.O. 2007, c. 6,
as amended
or replaced from time to time, or in the Species at Risk Act, S.C. 2002,
c. 29, as amended
or replaced from time to time;
(b) the condition of the Regulated Tree;
(c) the location of the Regulated Tree;
(d) the reason or reasons for the proposed Destruction or lnjuring of the Regulated
Tree;
(e) whether the Regulated Tree is a Heritage Tree;
(f)the presence,
within the Regulated Tree, of breeding birds as contemplated in the
Migratory Birds Convention Act, 1994, S.C. 1994, c. 22, as amended
or replaced
from time to time;
(g) the protection and preservation of ecological systems and their functions,
including the protection and preservation of native flora and fauna;
(h) erosion, flood control and sedimentation
of watercourses;
(i) the submissions
of such persons or agencies as the Inspector may consider
necessary to confer with for the proper review of the Application; and
(j) any other legislation that may apply or approvals that may be required.
9. In issuing a Permit, the Inspector may make the Permit subject to such conditions as
the Inspector may consider necessary,
including (but not restricted to) any one or more
of the following requirements:
(a) that the Destruction or lnjuring occurs in a specified manner;
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b) the requirement for planting of replacement tree(s) in accordance
with Schedule
"C"or as may othenlvise be determined appropriate
by the Inspector having regard
for the existing canopy coverage on the subject site and/or the submission of a
Landscaping,
Replanting and Replacement
Plan to the satisfaction of the Inspector.
(c) that ifthe land is not subject to an application filed under the Planning Act, the
Applicant provides a written undertaking, release and security to ensure that
replacement
planting is carried out and maintained in accordance
with Landscaping,
Replanting and Replacement
Plans approved by the Inspector;
(d) that the Destruction or Injuring only be carried out by or under the supervision of
an Arborist;
(e) that the tree or trees to be retained be protected
in accordance with Good
Arboricultural Practice during the Destruction or Injuring or other related activities;
and
(f) that specified measures
be implemented to mitigate the direct and indirect effects
of the Destruction or injuring on other nearby trees, land, water bodies or natural
areas.
(10) Where the planting of replacement tree(s) has been imposed as a condition of tree
removal, the Inspector may require that:
(a) the replacement tree(s) be located on the same lot in a location and species to
the satisfaction of the Inspector;
(b) the minimum tree replacement size is a thirty (30) millimetre caliper deciduous
tree, or a one hundred and fifty(150) centimetre height coniferous tree in a five (5)
gallon container or balled and burlapped or in a wire basket;
(c) where replacement tree(s) are not physically possible to properly grow on the site,
the replacement tree(s) be located at another suitable location to the satisfaction of
the Inspector;
(d) a Landscaping,
Replanting and Replacement
Plan be filed to the satisfaction of
the Inspector;
(e) a written undertaking by the Owner to carry out the replacement planting;
(f) cash security or a letter of credit in a form satisfactory to the Inspector be delivered
to the Town to cover the costs of the replacement tree(s), and the maintenance of the
tree(s) for a period of up to two (2) years;
(g) if replacement
planting is not achievable
on the subject land, it shall be
substituted
by a payment of cash in lieu in the amount of $250 for Owners who are
individuals and $500 for Owners who are corporations per tree Destroyed or Injured
(h) payment for each replacement tree not replanted in accordance with this
subsection be made into the Town's Replacement
Tree Planting Fund.
(11) The Inspector may refuse to issue a permit to remove a tree where any one or
more of the following applies:
(a) the permit application has not been submitted in full and is considered
incomplete, or where an arborist report is required or requested
by the Inspector in
support of the permit application and the report has not been provided;
(b) any tree with a diameter greater than twenty--four(24) centimetres,
or the
second tree or more with a diameter between twelve and a half (12.5) to tvventy-four
(24) centimetres, that has been applied for removal within a twelve month
consecutive
period;
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(c) an application for rezoning, a consent, a minor variance, a plan of subdivision, a
plan of condominium or a site plan to the land on which the tree is located has been
submitted to the Town or Region, but has not received final approval;
(d) the tree is an endangered,
threatened,
or at risk tree species,
as defined in the
provincial Endangered
Species Act, 2007, S.O. 2007, c. 6, or any tree classified as
an endangered
or threatened
tree species, or a tree species of special concern, as
defined in the federal Species
at Risk Act, 2002, S.C. 2002, c. 29;
(e) the tree is relevant to the heritage designation of the lot as determined
by
the Town's Director of Community and Development Services; or
(f) the tree is required to be retained or planted as a condition of an approved
Site Plan.
12. (1) in issuing a Permit, the inspector shall issue the Permit to the Applicant and
provide copies of the Permit to any other Owners.
(2) The Permit shall identify the tree or trees to be Destroyed or injured and the reason
or reasons for the Destruction or injuring.
(3) Following issuance
of a Permit, the Applicant shall immediately post a copy of it in a
conspicuous place on the land where the Regulated Tree is located so that it is visible
and legible to passers-by.
The permit shall be posted at least five (5) days prior to the
Destruction or injuring, and shall ensure that it remains so posted until the Destruction,
injuring or other related activities are complete.
A copy of all Permits shall also be
posted on the Town's website.
(4) A Permit is and remains the property of the Town and may not be transferred except
with the approval of an inspector.
(5) An inspector shall revoke a Permit ifitwas issued based on false or misleading
information or ifthe Applicant fails to comply with any condition attached to the Permit
or any provision of this By-law.
(6) A Permit shall expire ninety (90) days after its issuance, unless, at least thirty (30)
days before that expiry, the Applicant applies to the inspector and before that expiry the
inspector grants a onetime extension of ninety (90) days.
13. (1) if an inspector refuses to issue a Permit, or ifan Applicant objects to a condition
attached to a Permit by an inspector, the Applicant may appeal to the Committee. Such
appeal shall be made by written notice received by the Inspector within seven (7) days
after the date of the refusal or the issuance of the conditional Permit, as the case may
be.
(2) Upon considering the appeal, the Committee may recommend that the Inspector
refuse the Permit, issue the Permit or issue the Permit upon such conditions as the
Committee considers appropriate. Council shall consider the Committee's
recommendation and make the final decision on the appeal.
Part IX - Orders and Remedial Actions
14. if an inspector con?rms, after making an inspection, that there has been a
contravention of this By-law (including of an order or a condition of a Permit made
pursuant to this By-law) then he or she may make an order requiring the person who
contravened the By-law (including the Owner, an Applicant or, ifapplicable, a contractor
of the Owner or to discontinue the activity and/or to do work to correct the contravention
at the Owner's expense.
15. (1) ifa person is required, under an order pursuant to this By--|aw,_
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 an Inspector.
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(2)The Town
may recover the costs of doing the matter or thing under subsection (1) of
this section 15, 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.
(3) The amount of the costs mentioned in subsection (2) of this section 15 including
interest, shall constitute a lien on the subject land upon the registration,
in the proper
Land Registry Office, of a notice of lien.
(4) The lien mentioned in subsection (3) of this section 15 shall be in respect of all costs
that are payable at the time the notice is registered plus interest accrued to the date
payment is made.
16. (1) An order under this By-law may be served:
(a) personally, in which case it shall be deemed to have been served on the date of
that personal service;
(b) by email, in which case it shall be deemed to have been served on the date of
that email;
(c) by facsimile transmission, in which case it shall be deemed to have been served
on the date of that facsimile transmission; or
(d) by sending it by prepaid ordinary mail to the last known address
of the person
being served, in which case it shall be deemed to have been served on the fifth day
after the date it was mailed.
(2) An order shall be served upon the and upon, if known, any other person or persons
responsible for the Destruction or Injury of the Regulated Tree or Trees.
Part X
-- Enforcement
17. (1) Any person who directly or indirectly contravenes
or who causes
or permits a
contravention of any provision of this By--law,an order issued under this By--lawor a
condition of a Permit, is guilty of an offence.
(2) Any director or officer of a corporation who concurs in the contravention
of this By-
law by the corporation is guilty of an offence.
(3) Ifa contravention of any provision of this By--law,an order issued under this By--law
or a condition of a Permit occurs, the contravention may be presumed to have been
committed by the Owner of the land on which the contravention occurred.
18. (1) Allcontraventions of any provision of this By--law,any order issued under this By
-
law or any condition of a Pennit are designated as multiple offences and continuing
offences, pursuant to subsection 429(2) of the Municipal Act. A multiple offence is an
offence in respect of two (2) or more acts or omissions each of which separately
constitutes an offence and is a contravention of the same provision of this By--lawand,
for greater certainty, when multiple trees are destroyed or injured, the destruction or
injury of each tree is a separate
offence.
(2) Ifan order or Permit issued under this By--lawhas not been complied
with, the
contravention of the order or Permit shall be deemed to be a continuing
offence for each
day or part of a day that the order or Permit is not complied with.
19. (1) A person convicted of an offence under this By--lawis liable to a fine of not less
than $500.
(2) A person convicted of an offence under this By--lawis liable:
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(2) A person convicted of an offence under this By-law is liable:
(a) on a first conviction, to a fine of not more than $10,000 or $1,000 per tree to a
maximum of $100,000, whichever is greater; and
(b) on any subsequent
conviction, to a fine of not more than $25,000 or $2,500 per
tree to a maximum of $100,000, whichever is greater.
(3) Where the person convicted of an offence under this By-law is a corporation:
(a) the maximum fine in clause (2)(a) of this section 19 is $50,000 or $5,000 per tree
to a maximum of $100,000, whichever is greater; and
(b) the maximum fine in clause (2)(b) of this section 19 is $100,000 or $10,000 per
tree to a maximum of $100,000, whichever is greater.
(4) In the case of a continuing offence, 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.
(5) In the case of a multiple offence, for each offence included in the multiple offences,
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) On conviction of an offence under this By-law, a person is liable to a special fine in
accordance with paragraph
429(2)(d) of the Municipal Act. The amount of the special
fine shall be the minimum fine as provided for in subsection (1) of this section 19, to
which may be added the amount of economic advantage
or gain that the person has
obtained or can obtain from the contravention
of any provision of this By-law, any order
issued under this By-law or any condition of a Permit. Pursuant to paragraph
429(3)1 of
the Municipal Act a special fine may exceed $100,000.
20. Upon conviction for an offence under this By-law, in addition to any other remedy
and to any penalty imposed by this By-law, the court in which the conviction has been
entered and any court of competent jurisdiction there alter may make an order:
(a) prohibiting the continuation or repetition of the offence by the person convicted
and
(b) requiring the person convicted to correct the contravene
within the period that the
court considers appropriate include:
(i) the planting or replanting of any tree or trees Destroyed or Injured or the planting
of any replacement tree or trees in a specified location and within a specified period
of time;
(ii)the application of any silvicultural treatment that may be necessary to establish or
re--estab|ish
the tree or trees or replacement
tree or trees; and
(iii)in lieu of planting or replanting, payment to the municipality in accordance
with
this By-law.
Part XI - General
21. (1) Council delegates
to the Inspectors the authority to carry out their activities as
set out in this By-law.
(2) Council delegates
to the Committee the authority to carry out its activities as set out
in this By-law.
22. The Schedules
attached to this By-law shall form part of this By-law.
SCHEDULE "A"
Tree Measurement
Diameter at breast height, or DBH, is the standard for measuring trees. DBHrefers to
the tree diameter measured
at 1.4 metres (140 cm ) above the ground.
DBHcan be measured
quickly with a specially calibrated diameter tape, often referred
to as a d-tape, that displays the diameter measurement
when wrapped around the
circumference of a tree. Ifyou don't have access to a d-tape, you can find the diameter
of the tree using a string, a measuring tape, a thumb tack, and a calculator.
With the measuring tape, measure 1.4 metres (140 cm) up the trunk of the tree from the
ground. Use a thumb tack to mark the height on the tree.
Wrap your string around the tree trunk at 1.4 meters. Make sure the string is straight
and tight around the trunk, and mark or cut the circumference on the string.
Measure the length of string to get the circumference of the tree.
Convert the
circumference measurement
to diameter by dividing the circumference by pi (3.14).
As a general rule, record the smallest trunk circumference between the DBH point (1.4
meters) and the ground, but below the lowest fork. Also record the height above the
ground where measurement
was taken.
4.5'
DBH
For a tree on a slope, measure
up 1.4 meters along the axis of the trunk on both the
high and low sides; DBH point is midway between these two planes.
For a leaning tree, measure 1.4 meters along both the top and undersides of the trunk;
DBH point is midway between these two planes.
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SCHEDULE "E"
Urban Areas