Report to/Rapport au :

Planning and Environment Committee

Comité de l’urbanisme et de l’environnement

and/et

Agriculture and Rural Affairs Committee

Comité de l'agriculture et des questions rurales

and Council / et au Conseil

23 May 2006/ le 23 mai 2006

Submitted by/Soumis par : R.G. Hewitt,

Acting Deputy City Manager/Directeur municipal adjoint par intérim,

Public Works and Services/Services et Travaux publics

Contact Persons/Personnes-ressources :

John Manconi, Director/Directeur, Surface Operations/Opérations de surface

(613) 580-2424, ext. 21110, John.Manconi@ottawa.ca

City Wide Ref N°: ACS2006-PWS-SOP-0004

SUBJECT:	HARMONIZATION - MUNICIPAL TREES AND NATURAL AREAS PROTECTION BY-LAW

OBJET :	HARMONISATION – RÈGLEMENT SUR LA PROTECTION DES ARBRES ET DES AIRES NATURELLES DE LA VILLE

REPORT RECOMMENDATION

That Planning and Environment Committee and the Agriculture and Rural Affairs Committee recommend to Council that the proposed Municipal Trees and Natural Areas Protection By-law, attached as Document 1, be approved with an effective date of 1 September 2006.

RECOMMENDATION DU RAPPORT

Que le Comité de l’urbanisme et de l’environnement et le Comité de l’agriculture et des questions rurales recommandent au Conseil d’approuver le projet de Règlement sur la protection des arbres et des aires naturelles de la ville, joint au document 1, et que celui-ci prenne effet le 1^er septembre 2006.

BACKGROUND

The Ontario Municipal Act, 2001 provides municipalities with the legislative authority to pass by-laws that prohibit or regulate the destruction or injuring of trees and to control tree cutting on municipal property. The Act also provides for exemptions to these by-laws as well as penalties for violations.

Prior to amalgamation, five (5) former municipalities – Nepean, Ottawa, Region of Ottawa- Carleton, Rideau Township and Rockcliffe Park – had enacted by-laws that were designed to protect existing trees and regulate the planting of trees on municipal property, which included both highways and parks. These by-laws also outlined the conditions under which tree removal would be approved as well as general tree protection measures such as the prohibition of affixing signs or excavating in proximity to trees. The aforementioned by-laws continue to be in effect until otherwise amended, replaced or repealed by City Council.

Although by-laws did not exist in all of the former eleven (11) municipalities, the policies governing the care and protection of municipally owned trees and the planting of trees were standard across the pre-amalgamated City of Ottawa. Since amalgamation, Forestry Services in the Surface Operations Branch of the Public Works and Services Department has had the responsibility for the management of the City’s municipally owned trees and forests inventories. Forestry Services has protected trees and municipal natural areas, including city-owned community forests, through the use of this standard policy, as well as the existing by-laws. Responsibility for enforcement of the existing by-laws rests with the By-law Services Branch of the Community and Protective Services Department. The enactment of this by-law will harmonize the existing by-laws and policies into one citywide tree protection and maintenance approach.

DISCUSSION

Regulations that apply to the City’s tree inventory exist elsewhere in several by-laws previously enacted by City Council. The Road Activity By-law 2003-445 regulates tree protection and compensation in the event trees are authorized for removal when work is undertaken within the road allowance; the Parks and Facilities By-law 2004-276 protects trees in city parks; and, the Encroachment By-law 2003-446 addresses issues of hedge planting as an encroachment on a road allowance that may impact traffic safety by blocking sightlines.

The harmonized Municipal Trees and Natural Areas Protection By-law will mirror the tree protection measures in the above-mentioned by-laws and will enhance the City’s ability to protect its trees and municipal natural areas on other City owned lands that are beyond the scope of the aforementioned by-laws.

TREES ON HIGHWAYS AND MUNICIPAL PROPERTY

Part II of the proposed by-law addresses tree protection, tree removal and tree planting on highways and municipal property, including parks and municipal natural areas. This part includes the following provisions and/or requirements:

Tree Planting

· May be permitted on city property if approved by the Director, Surface Operations Branch.

Tree Protection

· Required during construction in the vicinity of city owned trees;

· Prevents residents from affixing signs or posters to a tree or removing branches or altering of a tree;

· A series of set fines will also be included to cover non-compliance such as failure to erect protective fencing around city trees during construction.

Tree Removal

· Addresses the removal of a tree as a result of accidental or deliberate injury.

Exemptions

· There are provisions authorizing the removal of a tree if it is in a location that denies an owner of a property inadequate access to their property in accordance with the City’s zoning by-law;

· The enclosed by-law includes all the statutory exemptions in S.135 of the Municipal Act.

Compensation

· With any unapproved injury or removal of a city tree, compensation for the tree will be in the form of the cost of removal of the injured tree, the cash value of the injured tree and the cash value of a replacement tree.

PROTECTION OF MUNICIPAL NATURAL AREAS

Part III of the proposed by-law addresses specific trees and forest management issues that arise and are unique to the City’s Municipal Natural Areas which are defined as municipal conservation forests such as the Marlborough, Torbolton and Cumberland Forests, municipal conservation lands such as Bilberry and Graham Creeks and community woodlands in urban areas such as Pleasant Park Woods and McKay Lake.

This part of the proposed by-law will regulate the use and protection of these municipal natural areas giving priority to environmental protection of these lands and ensuring public safety while allowing public access and enjoyment of the City’s Municipal Natural Areas.

Asset protection

Under the proposed by-law, the following actions and/or activities would be prohibited in a Municipal Natural Area:

· Injure or destroy any plant;

· Leaving litter or other waste, except in a waste receptacle;

· Washing, servicing, etc. a motorized vehicle;

· Enter an area where it is signed to prohibit access;

· Plant any hedge, tree, shrub or garden;

· Construct any fence, building or other structure;

· Keep a composting receptacle;

· Place any string, wire, chain or rope.

Permit process

Access to some municipal natural areas is restricted during certain times of the year to adequately protect against the possibility of wildfire or illegal dumping. The proposed by-law includes a provision for the issuance of consent to enter permits to these areas of the forest for short-term activities such as scientific research. Forestry Services, as the forest managers, will administer the permitting process. Longer-term leases with organizations such as snowmobile associations will continue to be issued and managed by Real Property and Asset Management in consultation with Forestry Services staff.

Encroachment

Encroachment onto municipal natural areas prohibits planting, the construction of any structure and littering or dumping. Some of these activities, such as tree planting, may be permitted with the approval of the Director, Surface Operations Branch.

RURAL IMPLICATIONS

The care and protection of municipally owned trees and the planting of trees on city property have been managed under a standardized policy since amalgamation in both the urban and rural areas. Forestry Services staff will continue to manage the trimming of municipally owned trees on rural property as well as the removal of all dead or dangerous trees.

CONSULTATION

The City is exercising its authority to protect municipal assets and, as such, there is no statutory requirement to provide public notice. However, a notice advertising the date and time of the meetings at which the Planning and Environment Committee and Agriculture and Rural Affairs Committee would consider the proposed harmonized Trees and Municipal Natural Areas Protection By-law did appear in the Citizen, Le Droit and the Sun five (5) business days in advance of the meetings, in accordance with City policy.

Community and Protective Services (By-law Services Branch), Corporate Services (Real Property Asset Management Branch and Legal Services Branch), Public Works and Services, (Infrastructure Services Branch), Planning and Growth Management Services (Planning, Environment, Infrastructure and Policy Branch) and the Ottawa Forests and Greenspace Advisory Committee participated in the development of the proposed by-law and their comments, both from an urban and rural perspective, have been incorporated into the report and by-law.

FINANCIAL IMPLICATIONS

There are no direct financial implications associated with the recommendation. Implementation of the by-law would apply the protocol currently in place, whereby Forestry Services staff investigate Service Requests and utilize By-law Services staff to lay charges, as necessary. Should the number of Service Requests increase from the current level a review of staff resources would be required.

DISPOSITION

Legal Services Branch, in consultation with Community and Protective Services will process the by-law, as approved, to Council for enactment. Community and Protective Services will make application to the Province for the applicable set fines. The Public Works and Services and Community and Protective Services Departments will implement the by-law.

ATTACHMENTS

Document 1 – Draft Municipal Trees and Natural Areas Protection By-law

DOCUMENT 1

BY-LAW NO. 2006 -

A by-law of the City of Ottawa respecting the protection and maintenance of trees and natural areas on municipal property.

The Council of the City of Ottawa enacts as follows:

PART I

GENERAL

DEFINITIONS

1. In this by-law:

“arborist” means an expert in the care and maintenance of trees and includes an arborist qualified by the Ontario Ministry of Training, Colleges and Universities, a certified arborist with the International Society of Arboriculture, a consulting arborist registered with the American Society of Consulting Arborists, a Registered Professional Forester or a person with other similar qualifications as approved by the Director;

“By-law Officer” means a person appointed by Council of the City of Ottawa as a Municipal Law Enforcement Officer to enforce the provisions of this by-law;

“camp” means to stay overnight, erect a structure, hut or tent for the purpose of providing shelter;

“cash value” means the cash value, plus all applicable taxes, of the tree determined to be injured or destroyed or to be replaced and will be calculated by the City in accordance with the latest edition of the International Society of Arboriculture Tree Valuation Guide in effect at the time the tree is replaced, or at a value determined by the Director and in effect at the time the injury took place, based on the tree as it existed prior to being injured or destroyed;

“Chief of Police” means the Chief of Police for the City of Ottawa or authorized assistants or persons acting under his or her authority;

“City” means the municipal corporation of the City of Ottawa or the geographic area of the City of Ottawa as the context requires;

“Consent to Enter Permit” means written approval through which the Director gives permission for use of a Municipal Natural Area;

“critical root zone” means the area of land within a radius of ten (10) cm from the trunk of a tree for every one (1) cm of trunk diameter;

“Director” means the Director of Surface Operations of the Public Works and Services Department of the City of Ottawa or authorized designate, unless otherwise specified;

“destroy” means to remove, cut down or in any other way damage a plant or tree to such an extent that it is deemed necessary to remove or cut down the plant or tree;

“diameter” means the measurement of the trunk at a height of one hundred and twenty (120) cm for trees of fifteen (15) cm diameter and greater, and at a height of thirty (30) cm for trees of less than fifteen (15) cm diameter;

“highway” means a common and public highway and includes any bridge, trestle, viaduct or other structure forming part of the highway and, except as otherwise provided, includes a portion of a highway;

“injure” means any action which causes physical, biological, or chemical damage to a plant or tree;

“Licence of Occupation Agreement” means a written agreement through which the Director of Real Property and Asset Management, on behalf of the City of Ottawa gives permission to a person for use of municipal property;

“motorized vehicle” means an automobile, truck, motorcycle, snow vehicle, all terrain vehicle, or any other vehicle propelled or driven by means other than muscular power but does not include a wheelchair or motorized vehicles operating pursuant to the approval of the Director;

“municipal natural areas” means natural environment areas, urban natural features, rural natural features, significant wetlands South and East of the Canadian Shield and major open space designated as such in the City of Ottawa Official Plan and includes municipal conservation forests, municipal conservation lands and community woodlands;

“municipal property” means any City owned land or property under the jurisdiction of the City and includes, but is not limited to lands designated as municipal natural areas, parks and highways;

“park” means a playground, playing field, ball diamond, sports field, beach, recreation centre, community building, facility, square, garden, water, pedestrian walkway or any other area owned, leased or used by the City and devoted to active or passive recreation and includes any lane or walkway or public parking area leading thereto;

“person” means a corporation and the heirs, executors, administrators or other legal representatives of a person to whom the context can apply according to law;

“plant” means any specimen, whether living or dead, of any species of flower, shrub or plant and includes any seed, spore, pollen or tissue culture of any such flower, shrub or plant;

“trail” means hiking trails, walking paths, snowshoeing paths, cross country ski trails and bicycle trails;

“tree” means any species of woody perennial plant, including its root system, which has reached or can reach a minimum height of four hundred and fifty (450) cm at physiological maturity;

“tree paint” means a specialized paint that is applied to a cut surface of a tree after pruning; and

“waste” means paper, bottles, broken glass, cans, rags, garbage, any plant matter, animal carcass, rubbish, debris, or refuse.

SCOPE

2. This by-law applies only to a tree, the trunk of which is located entirely on municipal property.

INTERPRETATION

3. (1) In this by-law, a word interpreted in the singular number has a corresponding meaning when used in the plural.

(2) It is declared that if any section, subsection, or part or parts thereof be declared by any Court of Law to be bad, illegal or ultra vires, such section, subsection or part or parts shall be deemed to be severable and all parts hereof are declared to be separate and independent and enacted as such.

(3) In this by-law, the word “centimeter” shall be represented by the abbreviation “cm”, and the word “hectare” shall be represented by the abbreviation “ha”.

EXEMPTIONS

4. The provisions of this by-law do not apply to:

(a) activities or matters undertaken by a municipality or a local board of a municipality;

(b) activities or matters undertaken under a licence issued under the Crown Forest Sustainability Act, 1994;

(a)

(c) the injury or destruction of trees by a person licensed under the Surveyors Act to engage in the practice of cadastral surveying or his or her agent, while making a survey;

(d) the injuring or destruction of trees imposed after December 31, 2002 as a condition to the approval of a site plan, a plan of subdivision or a consent under section 41, 51 or 53, respectively, of the Planning Act or as a requirement of a site plan agreement or subdivision agreement entered into under those sections;

(e) the injuring or destruction of trees imposed after December 31, 2002 as a condition to a development permit authorized by regulation made under section 70.2 of the Planning Act or as a requirement of an agreement entered into under the regulation;

(f) the injuring or destruction of trees by a transmitter or distributor, as those terms are defined in Section 2 of the Electricity Act, 1998, for the purpose of constructing and maintaining a transmission system or a distribution system, as those terms are defined in that Section;

(g) the injuring or destruction of trees undertaken on land described in a licence for a pit or quarry or a permit for a wayside pit or wayside quarry issued under the Aggregate Resources Act;

(h) the injuring or destruction of trees undertaken on land in order to lawfully establish and operate or enlarge any pit or quarry on land,

(i) that has not been designated under the Aggregate Resources Act or a predecessor of that Act; and

(ii) on which a pit or quarry is a permitted land use under a by-law passed under section 34 of the Planning Act.

PART II

TREES ON MUNICIPAL PROPERTY

TREE PLANTING

5. (1) The Director may approve the planting of a tree on municipal property.

(2) No person shall plant a tree on municipal property without the written approval of the Director.

(3) Where a tree is to be planted on municipal property in a hard surfaced area, no person shall plant a tree unless,

(a) the tree is installed in a hard surface tree well;

(b) the proposed installation of the hard surface tree well is in accordance with the Hard Surface Tree Well Design Standards, as approved by the City;

(c) the person agrees to plant and maintain the tree in accordance with the Planting and Maintenance Quality Standards, as approved by the City; and,

(d) written approval of the Director for the installation of the hard surface tree well and the tree planting has been obtained.

(4) The Director may refuse to permit the planting of a tree, or the planting of any one or more species of trees, on municipal property where, by reason of the nature of the total municipal property needs, the planting of any tree or a particular species of tree is inappropriate or impracticable.

TREE PROTECTION

6. No person shall:

(a) injure or destroy the trunk of a tree,

(b) affix a poster, notice or sign to a tree,

(d) utilize a tree paint, or

(e) remove branches, trim or alter any tree.

7. (1) No person shall carry out work within the critical root zone of a tree whether the work is on municipal property or private property unless the written approval of the Director has been obtained prior to commencing any work.

(2) In making a request for approval pursuant to subsection (1), the following information shall be provided:

(a) the nature of the work to be carried out,

(b) the location of the work

(d) the proposed method of carrying out the work, and

(e) any additional information as requested by the Director.

8. Approval of the Director is subject to the person who has requested approval agreeing in writing to the following conditions prior to commencing the work:

(a) in the event of injury to any tree as determined by the Director, to reimburse the City for the cost of treatment for the tree or cause the tree to be repaired by a qualified arborist and bear the cost of repairs and labour;

(b) in the event that the tree is irreparably injured as determined by the Director, the person who has irreparably injured the tree shall reimburse the City for the cost of removal and replacement of the tree and pay the City the cash value of the injured tree and the cash value of a replacement tree;

(d) to protect the tree by placing protective fencing around the tree at a distance not closer than the critical root zone or at a location as approved by the Director to ensure minimal damage to the tree;

(e) not to use a vehicle or place or store any construction-related materials of any kind within the critical root zone of the tree;

(f) not to install or extend a hard surface further into the critical root zone unless approved by the Director;

(g) not to lower or raise the existing grade around the tree unless approved by the Director; and

(h) such other conditions deemed appropriate by the Director to protect the tree.

9. For the purposes of clause (b) of Section 8, a replacement tree shall have a minimum diameter of seven (7) cm measured at thirty (30) cm above ground level and be of a species approved by the Director, and the value of the tree to be replaced will be determined by the Director in accordance with the latest edition of the International Society of Arboriculture Tree Valuation Guide, or at a value determined by the Director and in effect at the time the injury took place.

10. No person shall fail to comply with the conditions of an approval issued by the Director pursuant to Section 8.

TREE REMOVAL BY CITY

11. The Director may approve the removal by the City of,

(a) a dead tree; or,

(b) a dangerous, diseased, dying, decayed or broken tree from municipal property.

TREE REMOVAL BY OTHER PERSONS

12. (1) No person shall destroy a tree unless the person has obtained approval from the Director.

(2) Despite subsection (1) where a tree is injured as a result of a motor vehicle accident or other occurrence and must be replaced, as determined by the Director, the person who caused such injury shall reimburse the City for the cost of removal and replacement of the tree and pay the City the cash value of the injured tree and the cash value of a replacement tree.

(3) The Director may approve the removal of a tree from municipal property for the purpose of construction of public services including drainage works or by public utilities at the expense of the person requesting its removal, provided that the person requesting its removal:

(a) obtains a road cut permit issued pursuant to the Road Activity By-law if required;

(b) agrees in writing to bear the cost of the removal of the tree determined to be injured;

(c) agrees in writing to pay the City the cash value of the tree that was removed and the cash value of a replacement tree, prior to the road cut permit being issued.

(4) The Director may approve the removal of a tree from a highway which by its very existence denies an owner of a property abutting a highway proper access to the property provided that the owner of the property abutting the highway has requested the removal of the tree and has provided evidence to the Director that no practical or economical option for proper access is possible, and has agreed to pay the City the cash value of the tree that was removed and the cash value of a replacement tree.

(5) For the purposes of subsections (2), (3), and (4), a replacement tree shall have a minimum diameter of seven (7) cm measured at a point thirty (30) cm above ground level and be of a species approved by the Director, and the value of the tree to be replaced will be determined by the Director in accordance with the latest edition of the International Society of Arboriculture Tree Valuation Guide, or at values determined by the Director and in effect at the time the destruction took place.

(6) Any tree planted or growing on municipal property contrary to the provisions hereof or contrary to access rights provided by any other municipal by-law may be removed by the Director without notice or recompense.

PART III

PROTECTION OF MUNICIPAL NATURAL AREAS

ASSET PROTECTION

13. No person shall, in a municipal natural area;

(a) injure or destroy any plant;

(b) leave or deposit any waste, except in a receptacle provided for that purpose;

(d) enter onto a municipal natural area where it is signed to prohibit or restrict admission to the public;

(e) plant any hedge, tree, shrub or garden;

(f) construct or place any fence, building, retaining wall or other structure of any kind;

(g) keep any composting receptacle or compost pile;

(h) place any string, wire, chain, rope or similar material.

CONSENT TO ENTER PERMITS

14. No person shall, in a municipal natural area;

(a) camp or erect any tent or other structure;

(b) set or maintain any open air fire as provided for in the Open Air Fire By-law;

(d) play any game, sport or activity, with the exception of lawful hunting or fishing activities;

(e) discharge, dump or leave any construction material, earth, dirt, rock, snow, stone, or other material;

(f) drive any motorized vehicle in an area designated as a trail; or

(g) undertake any maintenance activities or alter existing grounds or facilities; unless a valid Consent to Enter Permit has been issued by the Director.

APPLICATION FOR A CONSENT TO ENTER PERMIT

15. (1) A written application for a Consent to Enter Permit may be made by any person provided that person is eighteen (18) years of age or older and the application is made at least fifteen (15) days prior to entry.

(2) The Consent to Enter application shall include:

(a) the name, address and phone number of the applicant;

(b) the purpose of entry onto a municipal natural area;

(d) the time frame, including the commencement date and end date;

(e) such other information as may be required by the Director.

16. The applicant for a Consent to Enter Permit shall indemnify and save harmless the City of Ottawa from any and all claims, demands, causes of action, losses, costs or damages that the City of Ottawa may suffer, incur or be liable for resulting from the use of the natural area whether with or without negligence on the part of the applicant, the applicant’s employees, directors, contractors and agents.

CONDITIONS FOR ISSUANCE OF A CONSENT TO ENTER PERMIT

17. No person shall be issued a Consent to Enter Permit for a municipal natural area unless the person,

(a) is eighteen years of age or older;

(b) agrees to indemnify the City in accordance with the provisions of Section 16;

(d) agrees to follow the incident reporting procedures outlined in the permit in the event of an incident including contacting City staff and police, paramedic or fire services, as appropriate;

(e) agrees to enter into a License of Occupation Agreement where considered necessary by the Director;

(e) agrees to comply with any other conditions of the permit issued by the Director pursuant to Section 18.

18. The Director may attach such additional conditions to the Consent to Enter Permit as deemed necessary to ensure public safety, to protect City property or to maintain the enjoyment of the municipal natural area for the public.

19. A Consent to Enter Permit issued by the Director is valid only on the date or dates and for the specified activity shown on the Consent to Enter Permit.

20. A Consent to Enter Permit issued by the Director is not transferable.

21. No holder of a Consent to Enter Permit shall fail to comply with all applicable federal and provincial legislation and regulations and all applicable municipal by-laws.

22. No holder of a Consent to Enter Permit shall fail to comply with the conditions of issuance of the Consent to Enter Permit.

23. The provisions of this Part shall not apply to the City of Ottawa or its agents, employees or contractors during the course of performing their duties in relation to construction or maintenance activities or other necessary activities in a municipal natural area.

PART IV

AMINISTRATION AND ENFORCEMENT

OFFENCES AND PENALTIES

24. (1) Every person who contravenes any of the provisions of this by-law is guilty of an offence.

(2) Any person who is convicted of an offence under this by-law is liable,

(a) on first conviction, to a fine of not more than $10,000 or $1,000 per tree, whichever is greater;

(b) on any subsequent conviction, to a fine of not more than $25,000 or $2,500 per tree, whichever is greater;

(i) the maximum fines in clause (a) are $50,000 or $5,000 per tree, whichever is greater, and

(ii) the maximum fines in clause (b) are $100,000 or $10,000 per tree, whichever is greater.

(3) If a person is convicted of an offence for contravening this by-law, the court in which the conviction has been entered, and any court of competent jurisdiction thereafter, may order the person to rehabilitate the land or to plant or replant trees in such a manner and within such period as the court considers appropriate, including any silvicultural treatment necessary to re-establish the trees.

ENFORCEMENT

25. (1) This by-law shall be enforced by the Chief of Police or by the By-law Officers of the City.

(2) No person shall obstruct or interfere with a By-law Officer in the discharge of his or her duties under this by-law.

REPEAL

26. The following by-laws or portions of by-laws of the former municipalities are repealed:

(a) Chapter 7 of the Regional Regulatory Code, being By-law No 252 of 1992 of the former Regional Municipality of Ottawa-Carleton entitled "Trees", as amended; and,

(b) By-law No. 55-93 of the former Corporation of the City of Ottawa entitled “A by-law respecting the protection, maintenance and control of trees on highways and property of the Corporation within the City of Ottawa”, as amended; and,

(c) By-law No. 93-15 of the former Corporation of the Village of Rockcliffe Park entitled “A by-law of the Corporation of the Village of Rockcliffe Park to regulate the planting of shade or ornamental trees upon any highway and prohibiting the removal, cutting, down or injuring of any tree growing upon a highway”, as amended; and,

(d) Part 3 of By-law Number 79-89 of the former Corporation of Rideau entitled “Planting, Removal and Maintenance of Trees” as amended; and,

(e) Part 4 of By-Law No 93-64 of the former Corporation of the Township of Nepean entitled “Care of Streets By-law”, as amended.

SHORT TITLE

27. This by-law may be referred to as the “Municipal Trees and Natural Areas Protection By-law”.

EFFECTIVE DATE

28. This by-law shall come into effect on the day of , 2006.

ENACTED AND PASSED this day of , 2006.

CITY CLERK MAYOR