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Town of Whitby
By-law # 8228-25
Fence By-law
Being a By-law to prescribe the height and description of lawful fences in the Town of
Whitby and to require the owners of privately owned outdoor swimming pools to erect
and maintain fences and gates around such swimming pools;
Whereas the Municipal Act, 2001, S.O. 2001, c.25, as amended, allows a municipality to
pass by-laws with regard to structures, including fences and signs;
And Whereas the Ontario Heritage Act, R.S.O. 1990. c.O. 18, as amended, authorizes
Council to pass a by-law prescribing minimum standards for the maintenance of
heritage attributes of designated property or properties situated in a heritage
conservation district;
Now therefore, the Council of The Corporation of the Town of Whitby hereby enacts as
follows:
1.
Definitions
In this By-law:
1.1.
"Council" means the Council for The Corporation of the Town of Whitby.
1.2.
"CLOCA" means The Central Lake Ontario Conservation Authority.
1.3.
"Commissioner" means the Commissioner of Legal and Enforcement
Services/Town Solicitor, or such delegate as they may appoint from time to
time.
1.4.
"Corner lot" means a lot situated at the intersection of and abutting upon
two or more streets or two portions of the same street, provided that the
angle of intersection of such streets, or the bend in such street, is not
more than 135 degrees.
1.5.
"Division fence" means a fence marking the boundary between adjoining
parcels of land.
1.6.
"Electrical fence" means a fence through which electricity passes.
1.7.
"Enclosed" means when the property is enclosed in a way that can be
relied on to prevent entry of the general public.
1.8.
"Erect" means to alter, construct, place, locate, install or relocate.
1.9.
"Expense" means the cost of carrying out the work to be done, together
with an administrative charge equal to 25 percent of the total costs, to a
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By-law # 8228-25
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maximum of $5,000, from the owner or occupant by legal action or by
adding the costs and administration charge to the tax roll and collecting
them in the same manner as property taxes.
1.10. "Fence" means and includes but is not limited to a guard, line of posts,
wire, gate, boards or other similar items, used to enclose or divide in
whole or in part a yard or other land or to establish a property boundary,
but does not include a privacy screen.
1.11. "Fence height" means the vertical distance between the finished grade of
the ground and the top of the fence. The height of the fence shall be
measured from the higher adjacent grade where there is a grade
difference on each side of the fence.
1.12. "Front lot line" means the lot line that divides the lot from the street,
provided that, in the case of a corner lot, the shorter lot line that abuts a
street shall be deemed to be the front lot line; On a through lot, the lot line
abutting the wider street right of way shall be deemed the front lot line.
1.13. "Hazardous condition" means a condition that is subject to the provisions
of this By-law which exists on a property and is identified by a Municipal
Law Enforcement Officer as posing an immediate threat to the safety or
health of persons or animals and includes, but is not limited to, conditions
identified by a Municipal Law Enforcement Officer as negatively impacting
neighbouring properties.
1.14. "Heritage attributes" means the attributes of a property and the buildings
and structures on the property that contribute to the cultural heritage value
and the elements, features or building components that support or protect
the heritage attributes that are described in,
(i)
a by-law designating a property passed under the Ontario
Heritage Act, that identifies the heritage attributes, values
and reasons for designation; or
(ii)
a Minister's Order made under the Ontario Heritage Act, that
identifies the heritage attributes, values and reasons for
designation; or
(iii)
a by-law designating a heritage conservation district passed
pursuant to the Ontario Heritage Act, that identifies the
heritage attributes, values and reasons for designation; or
(iv)
a property subject to a Heritage Easement Agreement that
outlines the protected heritage attributes.
1.15. "Heritage permit" means an authorization or permit issued by the
Municipality as per Section 33(1) or 42(1) of the Ontario Heritage Act that
provides permission to alter or demolish a designated heritage property.
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1.16. "Highway" means a common and public highway, whether assumed or
unassumed, and includes a bridge, trestle, viaduct, or other structure
forming part of the highway which is under the jurisdiction of the Town or
the Regional Municipality of Durham.
1.17. "Grade" means the surface of the ground below a fence at each location
where a structural support is imbedded in the ground.
1.18. "Industrial zone" means an industrial or employment zoned property as
per the Town of Whitby zoning by-laws.
1.19. "Invisible safety nets" means a black, dark green, or white net made of
knotted monofilament nylon mesh or other similar materials, with a 90% or
greater porosity, with a spacing between the mesh not to exceed 20mm
and a minimum thickness of 1.7mm, primarily used to absorb the impact of
a golf ball. The netting shall be constructed in a way to have minimal
intrusive visual impact.
1.20. "Non-climbable" means a 1.2 m vertical face presented to the exterior of a
swimming pool enclosure. For an enclosure of chain link construction,
means a mesh which is no greater than 38mm square for a minimum of
1.2m vertically. For all other enclosures, means that there is no horizontal
opening or step greater than 38mm in width for 1.2m vertically, or where
horizontal components are a minimum of 1.2m apart there shall be no
opening greater than 100mm.
1.21. "Lot" means a parcel or contiguous parcels of land in one ownership which
is capable of being legally conveyed in accordance with the Planning Act,
as amended or replaced or is described in accordance with a registered
Plan of Condominium and includes a Parcel of Tied Land (POTL).
1.22. "Municipal Licensing and Standards Committee" means the committee
that Council has delegated its powers and authorities to for the purposes
of the by-law.
1.23. "Municipal Law Enforcement Officer" means a Municipal Law Enforcement
Officer appointed by the Town of Whitby, and includes an Enforcement
Services Officer.
1.24. "Ontario Heritage Act" means the Ontario Heritage Act, R.S.O 1990,
Chapter 0.18, as amended.
1.25. "Ornamental pond" means, but is not limited to, any body of water in or
above the ground located outdoors on privately-owned property, contained
in part or in whole by artificial means, in which the depth of the water at
any point can exceed 0.6m, and is used as a decorative feature in a yard,
and kept for its' esthetic value rather than a useful purpose;
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1.26. "Owner" means the person or persons registered as the owner of a
subject property in the most recent municipal tax records and/or in
accordance with the records of the land registry office.
1.27. "Part IV heritage property" means property, including all buildings and
structures thereon, which has been designated by the Town of Whitby
under section 29 of the Ontario Heritage Act, or which has been
designated by the Minister under section 34.5 of the Ontario Heritage Act.
1.28. "Part V heritage property " means property, including all buildings and
structures thereon, located within a heritage conservation district, which
has been designated by the Town of Whitby under section 41 of the
Ontario Heritage Act.
1.29. "Penalty Notice" means an administrative penalty issued for an alleged
contravention of a provision of this By-law, and which meets the
requirements as set out in Section 3 of the Town's Administrative Penalty
By-Law # 8056-24.
1.30. "Person" means a natural individual, and their heirs, executors,
administrators or other legal representatives, a corporation, partnership or
other form of business association or a receiver or mortgagee in
possession.
1.31. "Planning Act" means the Ontario Planning Act, R.S.O.1990. c.P13, as
amended.
1.32. "Privacy screen" means a visual barrier used to shield any part of a yard
from view from any adjacent parcel of land or any highway.
1.33. "Sight triangle" means a "sight triangle" or a "visibility triangle" as defined
in the Town's Zoning by-laws.
1.34. "Rear lot line" means the farthest lot line opposite the front lot line, or in
the case of a triangular lot, shall be that point formed by the intersection of
the side lot lines.
1.35. "Side lot line" means a lot line other than a front or rear lot line.
1.36. "Street line" means the dividing line between a lot and a street.
1.37. "Swimming pool" means any body of water in or above the ground
contained by artificial means, in which the depth of the water at any point
can exceed 0.6m and is used or is capable of being used for swimming,
wading or bathing and shall include an ornamental pond if it is capable of
containing a water depth of 0.6m, but does not include, hot tubs,
whirlpools or spas.
1.38. "Swimming pool enclosure" means a fence, wall or other structure
including doors and gates, surrounding a privately-owned outdoor
swimming pool.
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1.39. "Swimming pool enclosure permit" means a permit issued under this By-
law.
1.40. "Town" means The Corporation of the Town of Whitby.
1.41. "Yard" means an open, uncovered space on a lot appurtenant to a
building,
(i)
"Front yard" means a yard extending across the full width of
a lot between the front lot line and front walls of the nearest
building or structure on the lot.
(ii)
"Exterior side yard" means the yard of a corner lot that
extends from the front yard to the rear yard between the
exterior side lot line and the nearest part of any main
building on the lot.
(iii)
"Interior side yard" means a side yard other than an exterior
side yard, that extends from the front yard to the rear yard
between the interior side lot line and the nearest part of any
main building on the lot.
(iv)
"Rear yard" means a yard extending across the full width of
a lot between the rear lot line and the nearest wall or walls of
any main building on the lot for which the yard is required.
(v)
"Side yard" means a yard extending from the front yard to
the rear yard between the side lot line and the nearest wall
of any building or structure on the lot for which the yard is
required.
2.
Heritage Properties
2.1
No person shall erect, alter, or remove, and no owner shall permit the
erection, alteration, or removal of a fence wholly or partially on a Part IV
heritage property or a Part V heritage property unless a heritage permit
has been issued and all work is completed in accordance with the
specifications of the heritage permit, or unless the Town has waived the
requirement for a heritage permit in writing. For the purposes of this
section a fence partially on a Part IV heritage property or a Part V heritage
property includes a division fence located on the boundary between a Part
IV heritage property or a Part V heritage property and a property without a
Part IV heritage property or Part V heritage property designation.
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3.
Swimming Pool Enclosure Permits
3.1
No person shall excavate for or erect, or cause to be excavated for or
erected, a privately owned outdoor swimming pool, or ornamental pond
without first obtaining a swimming pool enclosure permit in connection
therewith from the Town.
3.2
Every application for a swimming pool enclosure permit shall be made in
the approved form.
3.3
Every application for a swimming pool enclosure permit shall be
accompanied by:
(a)
A detailed accurate site plan that illustrates the location of
and the setback measurements of the fencing, easements,
pool and all buildings;
(b)
If the property is not assumed by the Town, an approval
letter from the builder, as well as proof that deposits were
collected from the developer, must be provided;
(c)
Confirmation from the Towns planning department that the
property's zoning category allows for the installation of a
pool;
(d)
Any relevant documents required by the Municipal Law
Enforcement Officer / Town staff; and
(e)
Pool Enclosure Permit Fees in the amount described in
Schedule "D" in the Town of Whitby Fees and Charges By-
law # 7220-17, as amended.
3.4
Any lot within the CLOCA screening area must obtain CLOCA approval for
installation of the pool. Approval shall be included with application
submission.
3.5
A swimming pool enclosure permit shall not be issued by the Town, unless
the swimming pool enclosure application complies with all relevant
provisions of this By-law and all other relevant regulations.
3.6
The Town may impose any conditions it deems appropriate for the permit.
3.7
A pool enclosure permit shall be valid for 1 year after issuance.
3.8
In the event physical construction of the pool or ornamental pond has not
started within the 1-year timeframe, the pool permit application fee shall
be forfeited, and a new pool permit application with accompanied fees
shall be required.
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(a)
Visual indications that pool/pond construction has been
initiated shall be present. Such as evidence of excavation of
the area.
(b)
Any such other indications found satisfactory by the
Municipal Law Enforcement Officer.
3.9
The Senior Manager of Enforcement Services shall have the authority to
make exceptions to section 3.8.
4.
Swimming Pool Enclosures
4.1
Every owner of a privately-owned outdoor swimming pool or ornamental
pond shall erect, and maintain, or cause to be erected and maintained, a
swimming pool enclosure completely around the privately-owned outdoor
swimming pool or ornamental pond.
4.2
The enclosure shall extend to a height, measured from the outside of the
enclosure, of not less than 1.2 metres.
(a)
Have every support post securely imbedded in the ground
and be structurally adequate for the intended use.
4.3
The enclosure shall be constructed of;
(a)
Chain-link not greater than 38 millimetres diamond mesh,
and galvanized steel wire not less than 12 gauge;
(i)
galvanized steel supporting posts spaced at no
more than 3 metres intervals
(ii)
end posts and corner posts at least 48
millimetres in diameter
(iii)
intermediate posts at least 38 millimetres in
diameter; and
(iv)
top and bottom rails made of galvanized steel
pipe having a minimum diameter of 32
millimetres , however a 5 millimetre galvanized
steel tension rod may be substituted for the
bottom rail; or
(b)
Vertical wood or composite board on board spaced not more
than 38 millimetres apart where horizontal rails are spaced
less than 1.2 metres apart; or
(i)
Spaced not more than 100 millimetres apart
where horizontal rails are spaced 1.2 metres
apart or more and;
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(ii)
Attached to horizontal rails that are supported
on substantial posts that are at least 89
millimetres by 89 millimetres, spaced not more
than 2.4 metres apart, securely fastened to the
ground and structurally sound.
(c)
Horizontal wood or composite boards shall be:
(i)
at least 19 millimetres by 89 millimetres
lumber;
(ii)
Spaced not more than 20 millimetres apart;
(iii)
Offset or protruding not more 15 millimetres
from the board immediately above or below;
and
(iv)
not more than 2.4 metres in length.
(d)
Wrought iron fencing with at least 1.2 metres between
horizontal members and with no greater than 100 millimetres
of spacing between vertical bars;
(i)
Horizontal rails shall be supported on
substantial posts that are spaced not more
than 2.4 metres apart, securely fastened to the
ground and structurally sound.
(e)
Any glass panel fence that is used in or as part of a
Swimming Pool Enclosure shall be constructed as follows:
(i)
glass panels shall be located so there is no
opening of more than 38 millimetres between
the panel and the post where horizontal
elements are spaced less than 1.2 metres
apart, and not more than 100 millimetres apart
where horizontal elements are spaced more
than 1.2 metres apart.
(ii)
horizontal elements shall be supported on
posts that are spaced not more than 2.4
metres apart, securely fastened to the ground
and structurally sound; and
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(iii)
glass panels used in Swimming Pool
Enclosures shall be:
(a) safety glass of the laminated or tempered
type
conforming to CAN/CGSB-12.1-M
"Tempered or Laminated Safety Glass"; or
(b) wired glass conforming to CAN/CGSB-12.1-
M "Wired Safety Glass".1
(f)
All pool fence enclosures shall be constructed in a
professional manner.
(g)
Any combination thereof as provided in this By-law or such
other material design or construction as will provide an
equivalent or greater degree of safety and which is approved
in writing by the Senior Manager of Enforcement Services
4.4
May incorporate all or a portion of the wall of a building, but no entrances
to the pool area shall be permitted through such wall unless the entrance
is set back a minimum distance of 1 metre from the water's edge of the
swimming pool.
4.5
No Swimming Pool Enclosure shall have any unprotected openings larger
than 100 millimetres.
4.6
No person shall place water in or cause water to be placed in a privately-
owned outdoor swimming pool or ornamental pond, or allow water to
remain therein, until such time as the swimming pool enclosure as
prescribed by this By-law has been erected completely around the
swimming pool or ornamental pond and the enclosure has been signed off
by a Municipal Law Enforcement Officer.
4.7
Pool enclosure design shall be non-climbable from outside of the
enclosure.
4.8
Despite the provisions of Subsection 4.6 of this By-law, whereby reason of
the nature of construction of a privately-owned outdoor swimming pool it is
necessary to fill the swimming pool with water during the construction of
the swimming pool, the owner, in lieu of a swimming pool enclosure
prescribed herein, shall erect and maintain, or cause to be erected and
maintained, a temporary fence in accordance with section 7.1.
4.9
The means of entry within the Swimming Pool Enclosure shall be kept
secured when the pool is not in use.
4.10 The use of private property pools is at the risk of the property owner, not
the Town.
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4.11
The Commissioner shall have the authority to apply any conditions they
deem appropriate to a swimming pool enclosure permit.
5.
Above Ground Pool Enclosures
5.1
For an above-ground swimming pool, the exterior side of the above-
ground swimming pool structure and any rail or Guard attached thereto
may constitute a swimming pool Enclosure and the provisions of this By-
law shall apply to such sides of the Swimming Pool.
5.2
Notwithstanding any other provisions of this By-law, the combined height
of the exterior sides of the Swimming pool structure and any rail or guard
attached thereto shall be a minimum of 1.2 metres and may be a
maximum of 2.6 metres in height above the adjacent grade; and
5.3
The outside of the swimming pool structure and any guard shall not be
climbable.
5.4
Where the means of entry to the Swimming Pool is with a ladder, such
ladder shall be removable from the vicinity of the pool or be designed to
be lifted and locked or be designed to have a lockable cover when the
pool is not in use.
5.5
The pool, platform and/or deck shall be setback from the lot lines in
accordance with the Town's Zoning By-law
(a)
and if required a building permit shall be obtained.
6.
Swimming Pool Enclosure Gates
6.1
May incorporate one or more gates of equivalent material and construction
as the swimming pool enclosure, and every such gate shall not be less
than 1.2 metres in height, measured from the outside of the gate, be
supported on substantial hinges, be self-closing and equipped with self-
latching devices placed on the inside of the gate and contain a locking
mechanism.
(a)
Such gates shall be closed and locked by a padlock or
equivalent lock at all times when the pool is not in use.
(b)
Any gate opening/closing mechanism located on the exterior
of the pool enclosure shall be located a minimum of
1.2metres above grade and shall not contain any element
that can cause the gate to open within the 1.2metres. Such
as a pull cord or latch.
(c)
Have no element or attachment between 100 millimetres and
1.2 metres above grade that may facilitate climbing the
outside of the enclosure;
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(d)
Shall be constructed in such a manner that a space of not
more than 100 millimetres shall be permitted at any point
between the bottom of the gate and the ground.
(e)
Shall not contain any openings greater then 100 millimetres.
6.2
Double swing gates shall;
(a)
Have one gate that is self-closing and equipped with a
lockable, self-latching device located on the of the gate.
(b)
Have one gate that is equipped with a lockable drop bolt that
extends down securely into concrete, asphalt, or paving
stones.
(i)
Lockable drop bolt shall be kept in the down
position and secured at all times, except when
the enclosed area is in use.
(c)
Both gates shall comply with section 6.1
7.
Temporary Pool Enclosure
7.1
Where by reason of the nature of construction of a privately-owned
swimming pool it is necessary to fill the swimming pool with water during
construction, the owner in lieu of the prescribed enclosure, shall erect and
maintain, or cause to be erected and maintained a temporary fence
completely around the swimming pool until construction is complete, and
upon completion of such construction the owner shall immediately replace
or cause to be replaced the temporary fence with a swimming pool
enclosure prescribed in this By-law. A temporary Swimming Pool
Enclosure shall:
(a)
consist of plastic mesh not greater than 38 millimetres.
(b)
not be less than 1.2 metres in height.
(c)
be supported by steel T-bar posts spaced at no more than 3
metre intervals.
(d) have 9 gauge galvanized steel wire secured along the top
and bottom of the fence.
(e) Not have any members or attachments that would facilitate
climbing on the exterior face of the enclosure
7.2
Temporary fencing shall be erected in a professional manner.
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7.3
Notwithstanding section 7.1(a) Temporary Pool Enclosure may be
constructed in a manner that in the opinion of the Senior Manger of
Enforcement Services will provide a satisfactory degree of safety, provided
such is approved by the Senior Manager of Enforcement Services in
writing prior to its construction.
8.
Hot tubs, Whirlpools, and Spas
8.1
The fencing provisions of this By-law relating to privately-owned outdoor
swimming pools shall not apply to a privately-owned outdoor hot tub,
whirlpool or spa provided the owner of the hot tub, whirlpool or spa, has
equipped the hot tub, whirlpool or spa with a secure, locking cover.
8.2
Every owner of a privately-owned outdoor hot tub, whirlpool or spa shall
have the outdoor hot tub, whirlpool or spa covered and locked at all times
when not in use.
9.
Fences on Residential Property
9.1
No person shall erect or cause to be erected in a side yard or rear yard on
any residential property a fence which is higher than 2 metres above
grade.
9.2
Any fence post or decorative fence post feature may project a maximum of
200 millimetres above the maximum fence height.
(a)
The fence gate shall not exceed the maximum permitted
height of the fence, and any decorative gate feature located
above the gate may project a maximum of 500 millimetres
above the maximum fence gate height.
(b)
The decorative feature may not be solid and shall contain
openings to allow for the passage of light.
9.3
No person shall erect or cause to be erected a fence that uses or wholly or
partially consists of materials not usually intended for use in permanent
fencing, including, without limitation, adhesive tape, cloth, textile,
cardboard, plywood, corrugated metal, metal sheets, and paper, unless
specifically permitted by this by-law or another by-law.
9.4
No person shall erect or cause to be erected in a front yard on any
residential property a fence which is higher than 1 metre above grade.
(a)
Any fence within 2.4 metres of any driveway shall be of open
construction for at least 2.4 metres from the lot line at which
the driveway begins so as not to obstruct the view of the
boulevard, sidewalk or highway.
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(b)
No vegetation shall be permitted to grow or object permitted
to be placed in such a way as to obstruct the view through a
fence under subsection "a".
9.5
Section 9 shall not apply where the fence is;
(a)
Erected and used to enclose or delineate an area required
for and lawfully used as a tennis court, provided the fence is
of chain link construction.
(b)
A noise control barrier erected by or as a requirement of a
government agency acting pursuant to statutory authority.
(c)
Located on land abutting land used for industrial or
commercial purposes, railway right of way or utility
installations when the abutting owner is responsible for the
construction and/or maintenance of the fence; or
(d)
an invisible safety net, as approved in writing by the Town to
determine structural stability, solely located on the owner's
property, on any property abutting or located within 25
metres of a golf course, constructed for the purposes of the
personal protection of persons and/or property.
9.6
Where a rear yard of a lot is adjacent to the front yard of another lot,
Section 9.1 shall apply
9.7
Where the front yard depths of two abutting residentially zoned properties
vary, the front yard shall be determined by the abutting property with the
lesser front yard depth, for the purpose of establishing the maximum
permitted fence height in accordance with sections 9.4.
9.8
In the case of a corner lot where the larger usable yard is located in the
interior side yard rather than the rear yard, as defined herein, a fence on
that portion of the front yard adjacent to the interior side yard may be 2
metres above grade in height.
9.9
In circumstances where a property abuts an arterial road as defined in
either the Town of Whitby or Region of Durham Official Plan, the maximum
fence height shall be 2.5 metres for the portion of the fence that abuts the
arterial road.
9.10 Snow fencing may be used on private property between November 15 to
April 15th and shall be of plastic mesh and installed and maintained in a
good and acceptable quality.
9.11
No residential fence shall contain a gate which grants access onto Town of
Whitby property, unless a permit has been granted.
9.12 No person shall construct a fence that creates an unsafe condition.
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9.13 Notwithstanding other provisions of this By-law, any other fencing that is
approved in writing by the Senior Manager of Enforcement Services may
be permitted.
10.
Privacy Screens
10.1 No person shall erect, or cause to be erected, a privacy screen in a front
yard.
10.2 No person shall erect, or cause to be erected, a privacy screen in a side or
rear yard except in accordance with the following provisions:
(a)
the privacy screen is located at least 0.6 metres from any
side or rear lot line;
(b)
the privacy screen is no more than 2.63 metres in height
above grade; and
(c)
the collective total of all the privacy screens within the
property is no more than 6 metres in length.
10.3 No person shall erect, have, permit or maintain on any residential property
a privacy screen which is not in a good state of repair or has an inferior
appearance or quality on the side of the privacy screening which faces the
adjoining property.
10.4 Privacy Screens shall be constructed of structurally sound material and
erected in a professional manner.
10.5 Where a privacy screen is constructed on a raised deck, the maximum
combined height of the deck and the privacy screen shall be no more than
3.5 metres.
10.6 No person shall construct a privacy screen that creates an unsafe
condition.
11.
Fences on non residential properties
11.1
No person shall erect, have, permit, or maintain on any non-residential
property a fence greater than 2 metres in height except for industrial
properties where the maximum fence height shall be 3 metres.
11.2
The use of barbed wire on non-residential property shall be limited to
property primarily used for industrial purposes and shall be limited to a
maximum of three strands above a chain link fence, provided that such
barbed wire does not project over any adjacent property.
11.3
The use of any device for projecting an electrical current through a fence
in a non-residential property is prohibited.
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11.4
For the purpose of determining fence height where a residential property
abuts a non-residential property, the less restrictive provision shall apply to
the common lot line.
11.5
No person shall erect, have, permit or maintain on any non-residential
property a fence located a distance closer than 3 metres to an
intersection. For purposes of this subsection, intersection shall mean the
point of intersection of two or more property lines that abut a street.
11.6
No person shall construct a fence that creates an unsafe condition.
12.
Fences on Rural Properties
12.1 No person shall erect, have, permit or maintain a fence greater than 2
metres in height on land primarily used for farming purposes.
12.2 The use of barbed wire and electrical fencing shall be permitted for
farming purposes.
12.3 No person shall erect, have, permit or maintain on any land primarily used
for farm purposes a fence located a distance closer than 3 metres to an
intersection. For purposes of this subsection, intersection shall mean the
point of intersection of two or more property lines that abut a street.
12.4 No person shall construct a fence that creates an unsafe condition.
13.
Visibility and Sight Triangles
13.1 No person shall erect or cause to be erected any fence within a visibility
triangle or sight triangle, or in any location which obstructs the vision of
motorists or pedestrians either when leaving a highway or entering a
highway from another highway or driveway or of any traffic sign or control
device or which for any other reason constitutes a hazard.
14.
Highways and Other Public Lands
14.1 A fence separating land owned by the Town, except for any land that
constitutes a public highway, including land abutting a public highway that
is held as a reserve by the Town or other public authority to separate land
from the highway, or to land that is being held by the Town or other public
authority as an unopened road allowance or for future public highway
purposes, shall be constructed in accordance with the specifications
contained in the Town of Whitby Engineering Design Criteria and Standard
Drawings Manual. (Schedule "B").
14.2 No person shall erect or maintain, or permit to be erected or maintained, a
fence wholly on any lands under the ownership of the Town, including a
highway.
By-law Name: Fence By-law
By-law # 8228-25
Page 16 of 29
14.3 A fence erected as a noise control or attenuation barrier shall be
maintained by the owner of the land on which the fence is erected and
shall be of the same construction, provided the material is available. In the
event the material is no longer available an equivalent material will be
utilized. If the barrier abuts land owned by or under the control of the
Town, the Town shall not be required to maintain the barrier or incur any
costs with respect to the maintenance of the barrier.
15.
Maintenance
15.1 The owner of the land on which a fence, swimming pool enclosure, privacy
screen or invisible safety net is erected shall maintain such fence,
swimming pool enclosure, privacy screen or invisible safety net in a good
state of repair.
15.2 For the purposes of this By-law "good state of repair" shall mean;
(a)
The fence, swimming pool enclosure, privacy screen, or
invisible safety net is complete and in a structurally sound
condition, plumb and securely anchored.
(b)
The fence, swimming pool enclosure, privacy screen, or
invisible safety net and its components are protected by
weather-resistant materials.
(c)
Fence, swimming pool enclosure, privacy screen, or invisible
safety net components are not broken, rusted, rotten or in a
hazardous condition.
(d)
All stained or painted fences, swimming pool enclosures,
privacy screens, or invisible safety net are maintained free of
peeling paint or stain; and
(e)
That the fence, swimming pool enclosure, privacy screen, or
invisible safety net does not present an unsightly
appearance, deleterious to abutting land or to the
neighbourhood.
15.3 Whenever a fence, including a noise barrier, has been required or
regulated by the Town or other public authority, through a plan of
subdivision, plan of condominium or site plan agreement, as a condition of
development or redevelopment, such features shall be maintained, without
alteration, in a good state of repair, by the owner, so as to ensure
continuous compliance with the Town's or other public authority's
requirements.
15.4 No person shall construct or caused to be constructed a fence, swimming
pool enclosure, privacy screen or invisible safety net that creates an
unsafe condition.
By-law Name: Fence By-law
By-law # 8228-25
Page 17 of 29
16.
Hazardous Fences
16.1 No person shall erect or cause to be erected a fence containing barbed
wire or razor wire or any other hazardous materials, on any lands.
16.2 No person shall erect or cause to be erected an electrical fence, except a
fence used for the containment of animals in connection with a farming
operation.
17.
Hazardous Conditions
17.1 Notwithstanding Section 17 of this By-law, a Municipal Law Enforcement
Officer who finds a hazardous condition may enter onto any property to
remove or control such hazardous condition or to limit the negative impact
on neighbouring properties without the requirement of first sending a work
order, but a work order shall be sent as soon as practical after the removal
or control of the hazardous condition or after limiting the negative impact
on neighbouring properties.
17.2 The Town may recover the costs of doing any work undertaken pursuant
to this By-law, together with an administration charge equal to twenty-five
percent (25%) of the total costs, from the owner or occupant by legal
action or by adding the costs and administration charge to the tax roll and
collecting them in the same manner as property taxes.
17.3 An order issued after the hazardous condition is remedied shall set out:
(a) that the hazardous condition has been remedied;
(b) the manner in which the hazardous condition was remedied;
(c) any other contraventions of the by-law; and,
(d) any costs payable and shall otherwise comply with the
provisions of Sections 17.
18.
Delegation of Authority for Fence By-law Exemptions
Minor Fence Height Exemptions
18.1 The Commissioner is delegated the authority to approve exemptions from
the 2-metre fence height maximum noted Sections 9.1, 9.4, and 11.1 of
this By-law subject to the following:
(i)
The height exemption being sought is no more than a
maximum 10% variance;
(ii)
The applicant provides the required information, as
determined by the Commissioner, with their application and
By-law Name: Fence By-law
By-law # 8228-25
Page 18 of 29
payment of the application fee as set out in the Town's Fees
and Charges By-law, as amended;
(iii)
The Commissioner circulates notice of the application for an
exemption to adjacent property owners directly affected by
the application to determine if there are objections to the
application;
(iv)
Upon receipt of an objection, the Commissioner shall review
the objection, and if reasonable grounds for the objection are
provided, the exemption request will be denied;
(v)
In instances where a fence that is subject to an application
for an exemption abuts or may otherwise potentially impact
Town property, the Commissioner shall circulate the
application for an exemption to relevant Town departments
for review and comment;
(vi)
Fences that are approved for exemptions to the height
maximums of the Fence By-law remain subject to the
provisions of the Division Fence By-law # 3657-95, as
amended, and the Line Fences Act, R.S.O. 1990, c. L.17, as
amended;
(vii)
The Commissioner may impose any conditions which may
be reasonable to the granting of a fence height exemption
under this Section 18.1; and,
(viii)
The Commissioner may provide for any matter that, in the
Commissioner's opinion, is necessary for the assessment
and determination of fence height exemption requests in
accordance with this By-law.
18.2 The decisions of the Commissioner under this By-law shall be considered
final and binding, and not subject to appeal or review to Town Council, a
Court or other Tribunal.
18.3 The Commissioner, in their sole discretion, may refer a request under
Section 18.1 to the Municipal Licensing and Standards Committee for its
review and approval.
Additional Fence Height Exemptions
18.4 Any property owner may make an application to the Municipal Licensing
and Standards Committee for an exemption from provisions contained in
this By-law, in accordance with the following:
(a)
Completed application shall be submitted by the owner of
the land on the prescribed form.
By-law Name: Fence By-law
By-law # 8228-25
Page 19 of 29
18.5 The application shall contain:
(a)
the name and address of the applicant, including the legal
description of the property;
(b)
a description of the fence including type of materials to be
used for construction;
(c)
written permission/authority to act on behalf of the adjoining
owner if the matter involves a divisional fence;
(d)
the reasons why the exemption is being sought; and
(e)
an application fee as set out in the Town's Fees and Charges
By-law #7220-17, as amended.
18.6 The Municipal Licencing and Standards Committee may consider, and
grant or refuse to grant, an exemption request between 2.2 metres to a
maximum of 3.0 metres (3.5 metres for an industrial property) and may
impose conditions as may be appropriate.
18.7 The Municipal Licencing and Standards Committee may grant or refuse to
grant any exemption request and may impose conditions as may be
appropriate.
18.8 The decisions of the Municipal Licensing and Standards Committee under
this By-law shall be considered final and binding, and not subject to
appeal or review to Council, a Court or other Tribunal.
18.9 Where an exemption is granted, breach of any condition of the exemption
will immediately render the exemption null and void.
18.10 When an exemption request is submitted notice shall be sent to all
property owners directly adjacent to the fence for which the exemption is
being sought.
18.11 Any request for a fence height beyond the authority set out in Section 18.1
or 18.6 of this By-law shall be considered by Council.
19.
Ornamental Ponds
19.1 Every owner of a privately owned ornamental pond must meet the same
requirements of sections 3, 4, 6, 7,15, 17 ,18, 20 and 21 for a swimming
pool enclosure.
By-law Name: Fence By-law
By-law # 8228-25
Page 20 of 29
20.
General Exemptions
20.1 The provisions of this By-law relating to fences and swimming pool
enclosures shall not apply to fences and swimming pool enclosures
lawfully erected prior to the final passing of this By-law.
20.2 The provisions of this By-law shall not apply to acoustical fences or other
similar fences which may be required by the Region of Durham from time
to time.
20.3 Any federal, provincial or municipal fencing shall be exempt from the
provisions of this By-law
20.4 If a person is required to erect a specified fence under a site plan
agreement, a subdivision agreement, another Town by-law or any law,
statute or regulation of a provincial or federal authority having jurisdiction,
the fence is exempt from the provisions of this By-law with which it does
not comply.
20.5 Any fence or swimming pool enclosure for which a fence exemption as
outlined in section 17 has been granted, is deemed to comply with this
article until it is replaced, and any replacement fence or swimming pool
enclosure shall comply with this article.
21.
Orders
21.1 If a Municipal Law Enforcement Officer is satisfied that a contravention of
this By-law has occurred, the Municipal Law Enforcement Officer may
make an order, requiring the person who contravened the By-law or who
caused or permitted the contravention or the owner or occupier of the land
on which the contravention occurred to do work to correct the
contravention.
21.2 An Order shall set out;
(a)
The location of the land where the contravention occurred;
(b)
Reasonable particulars of the contravention and the work to
be done;
(c)
The date by which the work must be done; and
(d)
Notification that if the work is not done by the deadline, the
municipality may have the work done at the expense of the
owner and the expense may be recovered by adding the
costs and any administration charge to the tax roll and
collecting in the same manner as municipal property taxes.
By-law Name: Fence By-law
By-law # 8228-25
Page 21 of 29
21.3 An Order may be served;
(a)
personally, to whom it is directed;
(b)
by regular mail to the last known address of the person;
(c)
by registered mail to the last known address of the person;
or
(d)
by posting the Order on the property it pertains to.
21.4 If an Order is served personally or by way of posting at the property,
service is deemed to have occurred on the date of the personal service or
the date it is posted.
21.5 If an Order is served by regular or registered mail service is deemed to
have occurred three (3) business days after the day it was sent.
21.6 If a person fails to comply with an Order the Town may, with its servants or
agents enter upon the property and affect such compliance at the expense
of the defaulting person and may recover the cost, together with an
administration charge equal to twenty-five percent (25%) of the total
costs, to a maximum of $5,000, by adding the expense to the tax roll and
collecting it in the same manner as municipal taxes.
(a)
The expense in relation to a division fence shall be
determined in accordance with the Town of Whitby Division
Fence By-law.
22.
Offences
22.1 No person shall fail to comply with any provision of this By-law.
22.2 No person shall fail to comply with an Order.
22.3 No person shall prevent, hinder or interfere or attempt to prevent, hinder
or interfere with an inspection or investigation undertaken by a Municipal
Law Enforcement Officer.
23.
Enforcement and Penalties
23.1 Municipal Law Enforcement Officers shall be responsible for the
administration and enforcement of the By-law.
23.2 Any owner or any person who fails to comply with an Order is liable to a
fine or penalty for each offence, exclusive of costs as prescribed by the
Provincial Offences Act, R.S.O. 1990 c.P33.
By-law Name: Fence By-law
By-law # 8228-25
Page 22 of 29
Administrative Penalty System
23.3 Every person who contravenes or fails to comply with a provision if this
By-law is guilty of an offence and is liable to the penalty as set out in
Schedule "B" to this By-law.
23.4 Tiered and Escalating Penalties: If a person receives a Penalty Notice in
accordance with the Town's Administrative Penalty By-law for an offence,
the person shall be liable to pay to the Town a tier one (1) administrative
penalty amount for that offence as specified in Schedule "B" to this By-law.
If a person receives an additional Penalty Notice for the same offence
within ninety (90) calendar days or less from the date of the Penalty
Notice containing a tier one (1) administrative penalty amount, the person
shall be liable to pay to the Town a tier two (2) administrative penalty
amount for that offence as specified in Schedule "B" to this By-law. If the
person receives a subsequent Penalty Notice for the same offence within
ninety (90) calendar days or less of the Penalty Notice containing a tier
two (2) administrative penalty amount, the person shall be liable to pay to
the Town a tier three (3) administrative penalty amount for that offence as
specified in Schedule "B" to this By-law.
If the person receives any subsequent Penalty Notices for the same
offence within one hundred and eighty (180) calendar days or less from
the date of the Penalty Notice containing a tier three (3) administrative
penalty amount, the person shall be liable to pay to the Town a tier three
(3) administrative penalty amount for that offence as specified in Schedule
"B" to this By-law.
23.5 Where there is a conflict between this By-law and any other by-law of the
Town, the provisions of this By-law shall prevail.
24.
Severability
24.1 If a court of competent jurisdiction declares any section, or any part of any
section of this By-law to be invalid or to be of no force or effect, it is the
intention of the Town that every other provision of this By-law be applied
and enforced in accordance with its terms to the extent possible according
to law.
25.
Short Title
25.1 This By-law may be referred to as the "Fence By-law".
26.
Repeal of Existing By-law
26.1 By-law 4394-99, and any amending by-laws thereto, are hereby repealed
upon the effective date of this By-law.
By-law Name: Fence By-law
By-law # 8228-25
Page 23 of 29
27.
Effective Date
27.1 This By-law shall come into force on January 1, 2026.
By-law read and passed this 6th day of October, 2025.
Elizabeth Roy, Mayor
Christopher Harris, Town Clerk
By-law Name: Fence By-law
By-law # 8228-25
Page 24 of 29
Schedule "A" Fence By-law Exemption Process
Overview
The Municipal Act 2001 allows municipalities to pass by-laws regulating structures,
including fences. The Council of the Town of Whitby adopted Fence By-law # 8228-25,
as amended (the Fence By-law), for the purpose of prescribing the height and
description of fences.
The provisions of the Fence By-law are absolute, however there are circumstances
where flexibility from certain provisions contained in the Fence By-law are appropriate.
The purpose of this Schedule is to outline the process for seeking exemptions to the
provisions of the Fence By-law, the types of exemptions that may be granted, and to
provide an overview of the administration of the exemption process.
Responsibilities
The Municipal Licensing and Standards Committee (MLSC) shall be responsible for
considering all Fence By-law exemption applications between the height of above 2.2
metres (7 feet 2 inches) and 3.0 metres (9 feet 10 inches).
The MLSC is an independent quasi-judicial body appointed by Council. Council does
not ratify and cannot appeal a decision of the MLSC related to Fence By-law
exemptions.
The MLSC is authorized to provide the following exemptions from the provisions of the
Fence By-law:
- Exemptions from the height maximums in the Fence By-law, noting that
exemptions for minimum fence heights required for pool enclosures or other
minimum fence heights identified in other Town By-laws (e.g., salvage yard
fencing) are not eligible for exemptions; and,
- Exemptions from the setback distances of fences from an intersection in the
Fence By-law, noting that fences that create unsafe conditions, obstruct the
visibility of motorists, or obstruct traffic signs or control devices are not eligible for
exemptions.
Requests for exemptions from other provisions of the Fence By-law are not available
and shall not be considered by the MLSC.
By-law Name: Fence By-law
By-law # 8228-25
Page 25 of 29
Applications
An owner may apply for an exemption from the height maximums and/or the setback
distances from an intersection in the Fence By-law by providing the following to the
Town's Legal and Enforcement Services Department:
- A Fence By-law exemption application on a form to the satisfaction of the
Commissioner, Legal and Enforcement Services/Town Solicitor, or their
designate;
- The applicable fee for an exemption application as identified in the Town of
Whitby Fees and Charges By-law, as amended, has been paid in full;
- A description of the fencing, the exemption being sought, and any circumstances,
including the grading of surrounding lands, that support the request for an
exemption;
- A drawing of the property clearly identifying the location of the fence;
- In the case of an existing fence, photographs of the fence; and,
- Any other information that, in the opinion of the Commissioner of Legal and
Enforcement Services/Town Solicitor, or their designate, is necessary for the
assessment of the exemption application.
Circulation of Applications
Upon receipt of a complete Fence By-law exemption application, the Commissioner of
Legal and Enforcement Services/Town Solicitor, or their designate shall circulate notice
of the application to adjacent property owners directly affected by the application to
determine if there are objections to the application.
In instances where a Fence By-law exemption application abuts or may otherwise
potentially impact Town property, the Commissioner of Legal and Enforcement
Services/Town Solicitor, or their designate, shall circulate the application to relevant
Town departments for review and comment.
Hearing of Applications, Guiding Principles and Limitations
When considering exemptions from the provisions of the Fence By-law, the MLSC shall:
- Review the application and any supporting documents;
- Review any related staff reports and written submissions, including any
objections;
- Meet in a public forum (in-person or virtual format) and hear presentations by
applicants and any other interested party; and,
- Make a decision based on the reports, submissions, and public presentations to
approve with or without conditions, refuse, or table the application.
By-law Name: Fence By-law
By-law # 8228-25
Page 26 of 29
Further to the section above, an exemption shall not be granted as a matter of course,
or as-of-right. In determining whether an exemption shall be granted, the MLSC shall
take the following into consideration when assessing the appropriateness of exemptions
from the provisions of the Fence By-law:
- Whether there is a need for the exemption, or whether an exemption is desirable
for the lands in question;
- Whether the exemption maintains the general intent and purpose of the Fence
By-law;
- Whether an exemption would create a negative impact on adjacent property
owners and residents; and,
- For exemptions from the height maximums, the grading of surrounding land and
the perceived height of fencing from the perspective of neighbouring properties.
When considering exemptions from the height maximums in the Fence By-law,
maximum fence heights of up to 3 metres in total height may be provided by the MLSC
where deemed appropriate, in consideration of the factors noted above. Maximum fence
heights of 3 metres shall generally be reserved for exterior side yard, interior side yard,
and rear yard fencing. Fence height exemptions above 3 metres in total height are not
available.
When considering exemptions from the setback distances from an intersection in the
Fence By-law, only open fencing located wholly on private property that provides
sufficient visibility through the fence structure to maintain pedestrian and motorist sight
lines shall be permitted.
Applicability of Other Legislation
Fences that are approved for exemptions to the Fence By-law remain subject to the
provisions of the Division Fence By-law # 3657-95 and the Line Fences Act, R.S.O.
1990, c. L.17, as amended.
Final and Binding
The decisions of the MLSC shall be considered final and binding, and not subject to
appeal or review to Town Council, a Court or other Tribunal.
By-law Name: Fence By-law
By-law # 8228-25
Page 27 of 29
By-law Name: Fence By-law
By-law # 8228-25
Page 28 of 29
Schedule "B" Administrative Penalties
Town of Whitby By-law # 8228-25
Item Description
By-law
Section
Tier 1
(one)
Tier 2
(two)
Tier 3
(three)
1.
Excavate for or erect swimming pool
without permit
3.1
$500.00
$750.00
$1000.00
2.
Alter, erect or remove a fence on a
heritage property without a heritage
permit
2.1
$500.00
$750.00
$1000.00
3.
Failure to maintain pool enclosure
4.1
$500.00
$750.00
$1000.00
4.
Place water in swimming pool without
complete pool enclosure
4.6
$500.00
$750.00
$1000.00
5.
Failure to kept pool enclosure secured
when the pool is not in use
4.9
$500.00
$750.00
$1000.00
6.
Failure to remove or lock ladder of
above ground pool when not in use
5.4
$500.00
$750.00
$1000.00
7.
Failure to lock swimming pool
enclosure gates when pool is not in
use
6.1
$500.00
$750.00
$1000.00
8.
Failure to erect or maintain temporary
fencing around swimming pool
7.1
$500.00
$750.00
$1000.00
9.
Failure to lock hot tub, whirlpool or
swim spa when not in use
8.2
$500.00
$750.00
$1000.00
10.
Have fence greater than 2 metres in
height on residential property
9.1
$500.00
$750.00
$1000.00
11.
Erect or cause to be erected a fence
of materials not usually intended for
use in permanent fencing
9.3
$500.00
$750.00
$1000.00
12.
Erect or cause to be erected a fence
in a front yard higher than 1 metre
9.4
$500.00
$750.00
$1000.00
13.
Erect or cause to be erected a fence
which obstructs the vision of motorist
of pedestrians
13.1
$500.00
$750.00
$1000.00
14.
Erect, maintain or permit a fence on
any lands under the ownership of the
Town
14.2
$500.00
$750.00
$1000.00
15.
Fail to maintain pool enclosure or
privacy screen or invisible safety net
in good state of repair
15.1
$500.00
$750.00
$1000.00
By-law Name: Fence By-law
By-law # 8228-25
Page 29 of 29
Item Description
By-law
Section
Tier 1
(one)
Tier 2
(two)
Tier 3
(three)
16.
Erect or cause to be erected a
hazardous fence
16.1
$500.00
$750.00
$1000.00
17.
Fail to comply with an Order
22.2
$500.00
$750.00
$1000.00
18.
Prevent, hinder or interfere or
attempt to prevent, hinder or
interfere with an inspection or
investigation undertaken by a
Municipal Law Enforcement Officer.
22.3
$500.00
$750.00
$1000.00