[CANUFNET] Municipal tree ownership/responsibility

Thu Dec 22 12:04:02 EST 2011

It will depend upon whether or not the provincial legislation supercedes 
municipal bylaws, and whether or not the Act applies to municipal / 
private land. It may be a mistake to assume that the Provincial act does 
not apply until you know for sure. Even if it seems ridiculous, a judge 
might find s/he had no option but to accept it in some situations.

On Behalf of Dunster and Associates Environmental Consultants Ltd.

Dr. Julian A Dunster R.P.F., M.C.I.P., ISA Certified Arborist,
ASCA Registered Consulting Arborist # 378,
PNWISA Certified Tree Risk Assessor # 1.

www.dunster.ca

On 22/12/2011 8:33 AM, pwynnyczuk at richmondhill.ca wrote:
> It seems we are using to 2 different Acts to address the same issue, 
> Forestry Act and Municipal Act
> The question posed was related to co-ownership between the 
> Municipality  and the Private Land Owner.
>
> As municipalities are empowered to create Bylaws under the Municipal 
> Act,  typically this is the route chosen for tree issues.
>
> I'm not clear on how many urban municipalities would use the Forestry 
> Act to base any tree bylaws on at this point.
>
> Therefore the appropriate wording in the Bylaw, under the Municipal 
> Act,  along with a policy and agreement program sounds like the way to 
> go for co-Municipal/ Private tree ownership.  Reality being, until it 
> is tested in Court, its only a guideline in my understanding.
>
> In light of the emerging  EAB nightmare, this will become more 
> critical for all parties involved as the municipality has a tendency 
> to have greater risk for users of the roadway if tree failure at or 
> near the street line occurs.
> Therefore, where there are close or shared trees someone will have to 
> decide on the significant costs/risks and who is responsible for action.
>
> I went off  topic but still very relevant......
>
> Regards,
> Peter Wynnyczuk
>
> Urban Forestry Supervisor
> Town of Richmond Hill
> Community Services Department
> Telephone:  905 780-2930
> Fax:  905 780-2928
> Internet: pwynnyczuk at richmondhill.ca
>
>
>
>
> From: "Philip van Wassenaer" <pwassenaer1022 at rogers.com>
> To: "'Stephen Smith'" <Stephen at ufora.ca>, "'Canadian Urban Forest 
> Network'" <canufnet at list.web.net>
> Date: 12/22/2011 10:52 AM
> Subject: Re: [CANUFNET] Municipal tree ownership/responsibility
> Sent by: canufnet-bounces at list.web.net
> ------------------------------------------------------------------------
>
>
>
> What is that partial answer? To me the Forestry Act could only help 
> for a removal of a boundary tree...how do we define injury and if we 
> can, how do we define the loss to one owner when the other owner 
> commits the offending act? They both have rights to the tree.
>
> Based on Alex's comments our research and discussion we have had with 
> Dianne Saxe, the act is rarely enforced and if it is, compensation 
> never seems to amount to much. What we need is precedent setting case 
> somewhere that recognizes that "trees have standing" and upholds the 
> rights of a tree owner to not have their property destroyed by 
> something that only benefits their neighbour....
>
> Maybe you can explain a little more Stephen how you have used the act 
> in practice, or the partial answer.
>
> Cheers,
>
>
> *Philip van Wassenaer, B.SC., MFC*
> 1248 Minnewaska Trail
> Mississauga, Ontario
> Canada, L5G 3S5
> Tel:  (905) 274-1022
> Cell: (647) 221 3046
> Fax: (905) 274 2170
> UFI new logo very small
>
> _www.urbanforestinnovations.com_ <http://www.urbanforestinnovations.com/>
>
>
>
>
> *From:* canufnet-bounces at list.web.net 
> [mailto:canufnet-bounces at list.web.net] *On Behalf Of *Stephen Smith*
> Sent:* Tuesday, December 20, 2011 6:41 PM*
> To:* Canadian Urban Forest Network*
> Subject:* Re: [CANUFNET] Municipal tree ownership/responsibility
>
> But it does provide a partial answer to what to do when one owner 
> wants to butcher a tree along a property line because he doesn't want 
> anything overhanging his property and the other one wants to keep the 
> tree healthy.
>
> Stephen Smith
> Urban Forest Associates Inc.
> Urban Forestry and Ecological Restoration
> www.ufora.ca
>
> *From:* _Alex Satel_ <mailto:a.satel at utoronto.ca>
> *Sent:* Tuesday, December 20, 2011 10:48 AM
> *To:* _'Canadian Urban Forest Network'_ <mailto:canufnet at list.web.net>
> *Subject:* Re: [CANUFNET] Municipal tree ownership/responsibility
>
> Terry,
>
> Thanks for pointing this out, as it poses an interesting challenge to 
> how communities might define 'ownership' of trees.
>
> Clearly this isn't a legal analysis (as I'm not a lawyer), but it 
> seems to me that none of the by-law or policy definitions of tree 
> ownership, as defined by municipalities, are actually framed under 
> this legislation, and this appears to be the only law in Ontario that 
> actually addresses how tree ownership should be determined. The 
> disconnect seems to be that a municipality can't actually claim 
> 'ownership' over a tree if any part of it is on a boundary line; by 
> definition these trees are 'common property' and I would think that 
> both owners have equal rights to the tree. In practice, I can only see 
> this becoming an issue if the tree is scheduled for removal by 
> municipal crews without the co-owner's consent. I suppose this is why 
> the City of Toronto and others request sign-off before they undertake 
> maintenance on shared trees.
>
> An interesting issue, to be sure.
>
> Thanks again to everyone for their responses. Keep 'em coming!
>
> And thanks to Andy for his continual work moderating this list.
>
> -Alex
>
>
>
> *Alex Satel, MFC*/
> ISA Certified Arborist ON-1353A/
> Urban Forest Innovations Inc.
> 1248 Minnewaska Trail
> Mississauga, ON  L5G 3S5
> T: (905) 274-1022
> C: (416) 452-8054
> _asatel at ufis.ca_ <mailto:asatel at ufis.ca>
> _http://www.urbanforestinnovations.com_ 
> <http://www.urbanforestinnovations.com/>
> UFI new logo very small
>
>
>
>
> *From:* canufnet-bounces at list.web.net 
> [mailto:canufnet-bounces at list.web.net] *On Behalf Of *Schwan, Terry (MNR)*
> Sent:* December 20, 2011 8:53 AM*
> To:* Canadian Urban Forest Network*
> Subject:* Re: [CANUFNET] Municipal tree ownership/responsibility
>
> Alex
>
> In Ontario you should consider Section 10 of the Forestry Act.
>
> *Boundary trees*
> *_10._* 
> <http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90f26_f.htm#s10s1>_ (1)_ 
> <http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90f26_f.htm#s10s1> An 
> owner of land may, with the consent of the owner of adjoining land, 
> plant trees on the boundary between the two lands. 1998, c. 18, Sched. 
> I, s. 21.
> *Trees common property*
> _(2)_ 
> <http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90f26_f.htm#s10s2> Every 
> tree whose trunk is growing on the boundary between adjoining lands is 
> the common property of the owners of the adjoining lands. 1998, c. 18, 
> Sched. I, s. 21.
> *Offence*
> _(3)_ 
> <http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90f26_f.htm#s10s3> Every 
> person who injures or destroys a tree growing on the boundary between 
> adjoining lands without the consent of the land owners is guilty of an 
> offence under this Act. 1998, c. 18, Sched. I, s. 21.
> Terry
>
> Terry Schwan, R.P.F., M. Sc.
> District Forester
> Guelph District
> Ministry of Natural Resources
> One Stone Road West
> Guelph, Ontario
> N1G 4Y2
>
> Phone: 519-826-4933
> Fax:   519-826-4929
> Email:  terry.schwan at ontario.ca
>
>
> ------------------------------------------------------------------------
>
> *From:* canufnet-bounces at list.web.net 
> [mailto:canufnet-bounces at list.web.net] *On Behalf Of *Alex Satel*
> Sent:* December 14, 2011 2:16 PM*
> To:* 'Canufnet'*
> Subject:* [CANUFNET] Municipal tree ownership/responsibility
>
> Hello all,
>
> I am interested to know how your community determines tree ownership 
> and assigns responsibility for maintenance, particularly with regard 
> to street trees.
>
> Many communities operate on the principle that if 50% or more of the 
> stem is on public property, the tree is a City asset and a municipal 
> responsibility. Does your community work differently? If so, do you 
> maintain street trees if less than 50% of the stem is on municipal 
> land, or if only if the tree is wholly on City property? Has your 
> community at any point transitioned from one approach to another, and 
> if so, did that significantly change the workload for your forestry 
> crews?
>
> Any insights into this issue would be greatly appreciated. Thanks for 
> your consideration, and best wishes for the holidays.
>
> --Alex
>
>
> *Alex Satel, MFC*/
> ISA Certified Arborist ON-1353A/
> Urban Forest Innovations Inc.
> 1248 Minnewaska Trail
> Mississauga, ON  L5G 3S5
> T: (905) 274-1022
> C: (416) 452-8054
> _asatel at ufis.ca_ <mailto:asatel at ufis.ca>
> _http://www.urbanforestinnovations.com_ 
> <http://www.urbanforestinnovations.com/>
> UFI new logo very small
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://list.web.net/pipermail/canufnet/attachments/20111222/e401b433/attachment.htm>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/jpeg
Size: 3340 bytes
Desc: not available
URL: <http://list.web.net/pipermail/canufnet/attachments/20111222/e401b433/attachment.jpeg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/jpeg
Size: 3339 bytes
Desc: not available
URL: <http://list.web.net/pipermail/canufnet/attachments/20111222/e401b433/attachment-0001.jpeg>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: image/jpeg
Size: 3340 bytes
Desc: not available
URL: <http://list.web.net/pipermail/canufnet/attachments/20111222/e401b433/attachment-0002.jpeg>