[CANUFNET] Municipal tree ownership/responsibility
Philip van Wassenaer
pwassenaer1022 at rogers.com
Fri Dec 23 09:04:57 EST 2011
My thoughts exactly. That is what we have been hearing when talking to
municipal lawyers about this.
Peter have you had a discussion with Richmond Hill legal minds about this?
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 Julian Dunster
Sent: Thursday, December 22, 2011 12:04 PM
To: Canadian Urban Forest Network
Subject: Re: [CANUFNET] Municipal tree ownership/responsibility
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" <mailto:pwassenaer1022 at rogers.com>
<pwassenaer1022 at rogers.com>
To: "'Stephen Smith'" <mailto:Stephen at ufora.ca> <Stephen at ufora.ca>,
"'Canadian Urban Forest Network'" <mailto:canufnet at list.web.net>
<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
<http://www.urbanforestinnovations.com/> www.urbanforestinnovations.com
From: canufnet-bounces at list.web.net [ <mailto: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: <mailto:a.satel at utoronto.ca> Alex Satel
Sent: Tuesday, December 20, 2011 10:48 AM
To: <mailto:canufnet at list.web.net> 'Canadian Urban Forest Network'
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
<mailto:asatel at ufis.ca> 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>
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
<http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90f26_f.htm
#s10s1> 10.
<http://www.e-laws.gov.on.ca/html/statutes/french/elaws_statutes_90f26_f.htm
#s10s1> (1) 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>
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
<mailto:asatel at ufis.ca> asatel at ufis.ca
<http://www.urbanforestinnovations.com/>
http://www.urbanforestinnovations.com
UFI new logo
very small
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