[CANUFNET] FW: Municipal Tree Risk Assessment Policies

[Andrew Almas]

Hi Jack,

This is a really fascinating discussion, so thank you for bringing it to
this forum! Here is some anecdotal fodder....
I am not a lawyer, nor am I a municipal worker, but I have had experience
with hazard trees on private property which have public targets.
Personally, I was told by my home insurance company (who I was contacting
to ask for compensation to have a hazard tree removed) that because I had
commissioned an arborist report for my tree and the tree was found to be an
imminent hazard (Douglas fir that had been topped 30 years ago right next
to public street) that if the tree were to have injured someone that they
would not cover a claim against me from that person. In my opinion the
question of negligence is really pertinent given that the tree itself
looked fairly health, but I have knowledge of arboricultural practices and
could see some alarming signs with the tree, where most homeowners would
not have. Had I not commissioned the arborist report then the insurance
company (based on photos I sent them) claimed that they WOULD have covered
a claim against my property - which is fairly backwards.

Furthermore, the city where I reside (in BC) did so much as to come out and
measure exactly where my tree was on my property because I claimed that it
appeared to sprawl over onto the public property (they measured and said
no). There was no discussion from their end about hazard/risk or liability
other than to say that anything I was going to do required a tree removal
permit.

Here is a relevant statement from Julian Dunsters website (referencing his
"Trees and the Law in Canada" book:
In broad terms, the issues will focus on Standard of Care (Chapter 2. Legal
Principles and Concepts) and Foreseeability (Chapter 6. Negligence,
Foreseeability, Tree Damage to Property and People). In Quebec, see section
8.7.4 Inevitable Accident and Issues of Foreseeability in an Injury. The
injured party will have to show that, on a balance of probabilities, the
tree was clearly defective prior to failure, and that the owner knew or
ought to have known of its condition and taken the appropriate steps to
prevent it falling down and causing injury. Each case will have its own
specific circumstances to consider and may well require special expertise
to investigate the matter. Typically, that will be a forensic investigation
of all the available evidence, a detailed review of the standard of care
expected, what actually happened, and an opinion about whether or not this
met the standard of care. Such work is almost always done by experienced
consulting arborists who have the range and depth of experience to conduct
these investigations.

Best,
Andrew

On Thu, Oct 20, 2022 at 5:36 AM Jack Radecki via CANUFNET <
canufnet at list.web.net> wrote:

>
>
> I would like to escalate this discussion to the next level. It is
> understood that at least in Ontario there is a mandate for each
> municipality to have a Tree Risk Assessment Policy. At the very minimum
> there should be a tree inspection policy.
>
> The following is my opinion and I welcome anyone to dispute this. Target
> is a main component of any Tree Risk Assessment Policy. Safety is most
> important for pedestrians using municipal right of ways. If a potential
> high to extreme risk tree is noted by a tree inspector that targets a
> municipal roadway or sidewalk then immediate due diligence must be
> undertaken. This includes city owned and private trees as noted. I refer to
> Robert’s comment in his last paragraph below. I am in complete agreement
> with him. I hope others will offer their opinions on this.
>
>
>
> Jack Radecki RCA 342
>
>
>
> *From:* Liveanu, Robert <r.liveanu at laval.ca>
> *Sent:* October 19, 2022 4:54 PM
> *To:* Jack Radecki <jackandali at sympatico.ca>
> *Subject:* RE: [CANUFNET] Municipal Tree Risk Assessment Policies
>
>
>
> In such an urgent case, we would simply ring the doorbell and have a
> conversation with the property owner. If no one answers, we’d try to find
> out their phone number. At the same time, in order to maintain a paper
> trail, we’d send by registered mail our official notice of a dangerous tree
> (so skip the first step of “avis de courtoisie”, and go directly to step
> #2), urging them to remove the hazard as soon as possible, say 2-3 weeks.
> If the owner doesn’t act by the deadline, we send out our own team and bill
> the cost to the owner.
>
>
>
> Like I said, the City’s Legal department is currently reviewing our
> process. It’s possible that they’ll modify their opinion to that if we come
> across an urgent situation, it’s the City’s duty to remove the hazard right
> away, rather than waiting on the property owner to do so.
>
>
>
> ___
>
> *Robert Liveanu, *MFC, B.Sc.
>
> *Arboriculteur certifié de l’ISA*
>
> Technicien à la foresterie
>
> Division Foresterie & Horticulture
>
> Service des travaux publics
>
> Tél. 450-978-6888 poste 4775
>
> www.laval.ca
> <https://can01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.laval.ca%2F&data=05%7C01%7Cr.liveanu%40laval.ca%7Cc3d569fbb4384f489fc708dab276eee4%7C15ebd2ebb8cf40dd8e2bb2e67abb40ef%7C0%7C0%7C638018521139479287%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=5Nb85Aev9vAO4sX%2B3cD2vBrqJfpSyATIUdzeXyDnXwE%3D&reserved=0>
>
>
>
> [image: logo_laval_couleur]
>
>
>
> *De :* Jack Radecki [mailto:jackandali at sympatico.ca
> <jackandali at sympatico.ca>]
> *Envoyé :* 19 octobre 2022 16:40
> *À :* 'Canadian Urban Forest Network' <canufnet at list.web.net>
> *Cc :* Liveanu, Robert <r.liveanu at laval.ca>
> *Objet :* RE: [CANUFNET] Municipal Tree Risk Assessment Policies
>
>
>
> Thanks for the very useful inputs Robert. I would send the picture of the
> tree if I could but cannot because of potential litigation. I can
> definitely say that a competent tree inspector would require immediate
> action for this tree. I would like comments on this in terms of extreme
> risk. (the responsibility to act if it’s aware of a potential dangerous
> situation) I could provide you with more details off list.
>
> Best Jack
>
>
>
> *From:* CANUFNET <canufnet-bounces at list.web.net> *On Behalf Of *Liveanu,
> Robert via CANUFNET
> *Sent:* October 19, 2022 11:51 AM
> *To:* Canadian Urban Forest Network <canufnet at list.web.net>
> *Cc:* Liveanu, Robert <r.liveanu at laval.ca>
> *Subject:* Re: [CANUFNET] Municipal Tree Risk Assessment Policies
>
>
>
> Hi Jack,
>
>
>
> I can give an overview of how the Forestry department handles these cases
> at the City of Laval. If we notice a dead or hazardous privately-owned
> tree, if the situation is judged to not require immediate action, the first
> step is to mail to the owners what we call an “avis de courtoisie”,
> essentially a friendly warning urging them to remove the tree (or in more
> rare cases, simply to prune the hazardous limbs). There’s a bit of
> inconsistency amongst the different technicians in our office, but we
> generally only send this letter if there’s public land (road, sidewalk,
> etc.) as a target. This letter hasn’t much legal weight, rather just a
> friendly warning advising the owners of the hazard and encouraging them to
> act accordingly.
>
>
>
> If the situation isn’t remedied within a certain timeframe (up to the
> tech’s discretion, generally 3-6 months), a second letter is sent that’s
> more of an ultimatum: act now before a set deadline, otherwise the City
> will carry out the work and bill the cost to the owner.
>
>
>
> A couple of notes: like Peter said, it’s pretty rare that a situation
> escalates up to that point. As well, I’ve heard grumblings that the City’s
> Legal department is reviewing our procedures, as they might be of the
> opinion that the City *does* have more responsibility to act if it’s
> aware of a potentially dangerous situation, rather than urging and waiting
> for the property owner to do it. Finally, and again there is some internal
> debate over our methods, but we do generally send out at least the first
> letter (the avis de courtoisie) even when the tree isn’t exactly
> “””dangerous””” per se; because owners are legally obligated to replant a
> new tree after removal, we want owners to be aware of the by-laws of
> needing to remove a dead tree and replant a new one, in the optics of
> maintaining a canopy. So whether it’s a dead 15-cm lilac or a 100-cm
> poplar, property owners receive essentially the same letter.
>
>
>
> Hope this helps, I can provide more details on bylaws, specific cases,
> logistics, etc. if you wish.
>
>
>
> Best,
>
>
>
> ___
>
> *Robert Liveanu, *MFC, B.Sc.
>
> *Arboriculteur certifié de l’ISA*
>
> Technicien à la foresterie
>
> Division Foresterie & Horticulture
>
> Service des travaux publics
>
> Tél. 450-978-6888 poste 4775
>
> www.laval.ca
> <https://can01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fwww.laval.ca%2F&data=05%7C01%7Cr.liveanu%40laval.ca%7Cc3d569fbb4384f489fc708dab276eee4%7C15ebd2ebb8cf40dd8e2bb2e67abb40ef%7C0%7C0%7C638018521139479287%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C3000%7C%7C%7C&sdata=5Nb85Aev9vAO4sX%2B3cD2vBrqJfpSyATIUdzeXyDnXwE%3D&reserved=0>
>
>
>
> [image: logo_laval_couleur]
>
>
>
> *De :* CANUFNET [mailto:canufnet-bounces at list.web.net
> <canufnet-bounces at list.web.net>] *De la part de* Peter Shields via
> CANUFNET
> *Envoyé :* 19 octobre 2022 10:59
> *À :* Canadian Urban Forest Network <canufnet at list.web.net>
> *Cc :* Peter Shields <peter.shields1 at hotmail.com>
> *Objet :* Re: [CANUFNET] Municipal Tree Risk Assessment Policies
>
>
>
> Hello Jack,
>
>
>
> It has been my experience these details are in the actual bylaw. Some have
> a line stating they can enter adjacent lands to mitigate where a tree may
> negatively impact infrastructure.  Some have the ability to issue an order
> to a tree owner for the same. And if they do not, they can sometimes put
> the costs on their tax bill. Generally, they only manage Municipal Trees,
> not private trees.
>
>
>
> It is impossible all risks are known to the municipality. Also, extreme
> risks are very rare as they are usually dealt with immediately so I may
> suggest to exercise caution in deeming a tree as such post casualty. Tree
> owners have a duty of care, including their trees and what a reasonable
> understanding of risks may be.
>
>
>
> One last thing, municipalities generally do not assess private trees. If
> there is an obvious inherent risk, sometimes they may notify if seen. These
> would be for trees that are failing imminently or deemed an actual hazard.
> This is critically important to distinguish.
>
>
>
> It sounds like it should be provable the municipality knew about the
> extreme risk and did not do anything to mitigate.
>
>
>
> Cheers,
>
>
>
>
>
> Peter Shields
> RCA, ISA BCMA, TRAQ
> www.shieldstree.com
> (705) 500-4860 <+17055004860>
> ------------------------------
>
> *From:* CANUFNET <canufnet-bounces at list.web.net> on behalf of Naomi
> Zurcher via CANUFNET <canufnet at list.web.net>
> *Sent:* Wednesday, October 19, 2022 9:53:56 AM
> *To:* Canadian Urban Forest Network <canufnet at list.web.net>
> *Cc:* Naomi Zurcher <treerap at sprintmail.com>
> *Subject:* Re: [CANUFNET] Municipal Tree Risk Assessment Policies
>
>
>
> Does the municipality have a Right-of-Way ordinance which would have
> changed the status of the private tree to a public tree given its proximity
> to a publicly accessible roadway?
>
>
>
> Naomi Zürcher
>
>
>
> On Oct 19, 2022, at 9:02 AM, Jack Radecki via CANUFNET <
> canufnet at list.web.net> wrote:
>
>
>
> I posted this morning on the American Society of Consulting Arborists
> Listserve the post as shown below. I know that many municipal tree managers
> subscribe to CANUFNET with hopes of getting an opinion or even a
> confirmation from within the Tree Risk Assessment Policy. Anyone is welcome
> to provide their opinions here. See below.
>
>
>
> “I am looking for precedents or opinions on private trees targeting
> municipal rights of way. In this case a badly decayed willow had fallen
> across a roadway injuring a pedestrian. There was no sidewalk and the tree
> fell across the whole roadway. I have reviewed pictures showing extensive
> decay in a large open wound on the main stem easily visible from the
> roadway. This tree would easily have been labelled as an extreme risk for
> failure by a competent tree inspector. I do note that the shoot growth and
> foliage size and colour was still good despite the structural defect. As
> target is one of the 3 main components of tree risk assessment, should the
> municipality showed due diligence in inspecting this private tree targeting
> the road allowance that pedestrians frequently use? Does the responsibility
> fall to the municipality to note and take steps (action) to have the tree
> removed in terms of notice to the owners? Now that the tragedy has occured
> and litigation has begun what can be expected as a result? Remember that
> this is a private tree. I wonder how many municipal tree risk assessment
> policies include private trees? In 2005 I was retained within a coroners
> inquest sadly for a child death on an educational trail at a botanical
> garden. As a result of the decision from the inquest a mandate was
> initiated to have all Conservation Authorities, Municipalities and Private
> Institutions create and maintain a Tree Risk Assessment Policy.”
>
> Jack Radecki RCA 342 Lindsay, Ontario, Canada
>
>
>


-- 
*Andrew Almas*
Assistant Professor of Teaching
University of British Columbia
Department of Forest Resources Management
Bachelors of Urban Forestry Program
(647) 529-8867
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://list.web.net/pipermail/canufnet/attachments/20221020/621abbe1/attachment-0001.htm>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 4089 bytes
Desc: not available
URL: <http://list.web.net/pipermail/canufnet/attachments/20221020/621abbe1/attachment-0001.png>