[CANUFNET] Municipal Tree Risk Assessment Policies

[Julian Dunster]

In very general terms what is being discussed is 'what is a person 
supposed to do once they have been notified of an issue?'

In legal parlance this would be the concept of  "knew or ought to have 
known."  Providing a person notification is 'actual notice' as opposed 
to 'constructive notice.' How any one person responds after receiving 
actual notice is variable and up to that person.

Outside of Quebec, common law in Canada provides local and provincial 
governments with an opportunity to use a policy or Anns defence so it is 
incorrect to assume that they must always do something. They do what 
they can within the scope of the applicable policy or bylaws.

It is all described in detail in the book Trees and the Law in Canada. 
www.treelaw.info


Yours sincerely,
On Behalf of Dunster and Associates Environmental Consultants Ltd.

  

  

Dr. Julian A Dunster R.P.F., R.P.P.., M.C.I.P., ISA Certified Arborist,
ASCA Registered Consulting Arborist # 378,
ISA Tree Risk Assessment Qualified
Honourary Life Member ISA + PNWISA

www.dunster.ca		www.treelaw.info		North American distributor for Rinntechwww.rinntech.info

  

On Wed/10/19/2022 1:39 PM, Jack Radecki via CANUFNET wrote:
>
> 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=04%7C01%7Cmy.tremblay%40laval.ca%7Cec3b888e0037403d339708d8cf70014d%7C15ebd2ebb8cf40dd8e2bb2e67abb40ef%7C0%7C0%7C637487427315023800%7CUnknown%7CTWFpbGZsb3d8eyJWIjoiMC4wLjAwMDAiLCJQIjoiV2luMzIiLCJBTiI6Ik1haWwiLCJXVCI6Mn0%3D%7C1000&sdata=YGbFwWfkPV1mwBIXvoyFz0MKfMe2vw0sbrYL09bU5n0%3D&reserved=0>
>
> logo_laval_couleur
>
> *De :*CANUFNET [mailto:canufnet-bounces at list.web.net 
> <mailto: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 
> <olm://message-contents/AQACAAAAyQAAAAAAAAAAyAkBAAAAAAAA1AAAAAAAAQJDAAAAAAABCcgAAAAAAAECQwIAAIABAAAAMnBldGVyLnNoaWVsZHMxQGhvdG1haWwuY29tX0FjdGl2ZVN5bmNNaWNyb3NvZnRfSHhT/www.shieldstree.com>
> (705) 500-4860 <tel:+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
>
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