[CANUFNET] Municipal tree ownership/responsibility

Fri Dec 23 12:03:14 EST 2011

When The Town crafted the Private tree Bylaw 41-07 or 1015, we had to 
revised the Street Tree Bylaw 821 which was passed as 40-07 to make sure 
there was clarity  on application of the Private tree bylaw. This was 
enacted under the 2006 Municipal  Act.

http://code.municipalworld.com/richmondhill/821.pdf                Street 
Tree Bylaw

http://code.municipalworld.com/richmondhill/1015.pdf           Private 
Tree Bylaw

Both Bylaws were reviewed by the Town's Legal Section.   There have to 
date been several Court cases related to the Private Tree Bylaw, however 
the Street Tree Bylaw is yet to be tested.
In short the By-law was vetted by our Legal Section staff at the time. 

In my understanding at some time there were Municipal Bylaws passed under 
the Forestry Act or the Municipal Act. 
I suspect not all Provinces have the wording crafted the same  for their 
Forestry or Municipal Acts, therefore jurisdictional variation may occur..

However, it becomes a little muddled when you start taking on issues 
related to Civil legal action outside of the bylaws related to trees where 
precedent setting cases set the tone.

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:     "'Canadian Urban Forest Network'" <canufnet at list.web.net>
Date:   12/23/2011 09:08 AM
Subject:        Re: [CANUFNET] Municipal tree ownership/responsibility
Sent by:        canufnet-bounces at list.web.net

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

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" <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 

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 
Sent: Tuesday, December 20, 2011 10:48 AM 
To: '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 
asatel at ufis.ca 
http://www.urbanforestinnovations.com 

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.  (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)  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)  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 
http://www.urbanforestinnovations.com 

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