Report to/Rapport au:
Environment Committee/
Comité d’environnement
January 17, 2012 / le 17 janvier 2012
and Council / et au
Conseil
Submitted by/Soumis par:
Steve Kanellakos, Deputy City Manager/Directeur
municipal adjoint, City Operations/Opérations municipales
Rick O’Connor, City Clerk and
Solicitor/Greffier municipal et Chef du contentieux
Contact Person/Personne
ressource : John Manconi,
General Manager
Public Works/Travaux publics
(613) 580-2424 x 21110,
John.Manconi@ottawa.ca
|
Ref N°: ACS2012-COS-PWS-0001 |
SUBJECT:
|
AMENDMENT TO THE MUNICiPAL TREES AND NATURAL AREAS
PROTECTION BY-LAW 2006-279 |
|
|
|
OBJET :
|
MODIFICATION
au règlement 2006-279 sur la protection des arbres et des espaces
naturels municipaux |
REPORT RECOMMENDATIONS
That the Environment Committee
recommend that City Council amend the Municipal Trees and Natural Areas
Protection By-law (By-law No. 2006-279, as amended), by:
1.
Adding a new
subsection 11(c), substantially in the form that follows, to allow the removal
of City trees that are or are likely to cause serious damage to private
property:
“(c)
a tree that is causing, or likely to cause in the
future, serious damage to private property where other mitigation measures are
unlikely to prevent future damage”; and
2.
Replacing the
definition of “Director” with the current position title of the General
Manager, Public Works.
RECOMMANDATIONS DU
RAPPORT
Que le Comité de l’environnement recommande au Conseil de modifier le
Règlement sur la protection des arbres et des espaces naturels municipaux (Règlement no 2006-279, modifié)
en :
1.
ajoutant un nouveau paragraphe 11(c), essentiellement
dans la forme qui suit, afin de permettre l’enlèvement d’arbres de la Ville qui
causent ou sont susceptible de causer des dommages graves aux propriétés
privées :
« (c) un
arbre qui cause, ou est susceptible de causer à l’avenir, de graves dommages à
une propriété privée quand d’autres mesures ne permettront pas d’empêcher des
dommages futurs » ;
2.
remplaçant la définition de « Directeur » et
le titre par le titre actuel de directeur général, Travaux publics.
At its meeting of May 10th, 2010, the Planning and
Environment Committee passed the following motion:
THEREFORE BE IT RESOLVED THAT
the Planning and Environment Committee direct the City Forester and City Clerk
and Solicitor, jointly and in consultation with the City’s Forest and
Greenspace Advisory Committee, to conduct a comprehensive review of By-Law
2006-279 to ensure that it strikes the appropriate balance between promoting
the environmental stewardship values reflected in the City’s Forest Strategy
while respecting the rights of other property owners and to report back to the
Committee by the end of May 2011 with any recommended by-law amendments.
The motion followed City Council’s direction on April 14th,
2010, that the City Clerk and Solicitor abandon the appeal of the Ontario
Superior Court ruling in Guinan v. City
of Ottawa. That case was the first to be decided after Council’s enactment
of the Municipal Trees and Natural Areas
Protection By-law, which emphasized the protection of the City’s trees and
limited staff’s discretion to remove trees thought to be causing foundation and
other types of property damage. A more detailed review of the decision is set
out later in this report.
In accordance with the Committee’s direction, staff has reviewed the Municipal Trees and Natural Areas Protection
By-law 2006-279 in light of the court decision in Guinan. This report outlines
the rationale for the proposed amendment of the By-law to provide greater
flexibility to staff to undertake the removal of a City tree that is causing
serious damage to private property.
Municipal Trees and Natural
Areas Protection By-law 2006-279
At amalgamation, the City of Ottawa’s policy regarding the cutting of
City trees provided a fairly broad discretion to staff to remove a tree thought
to be causing damage to private property. This was a continuance of a policy of the
former City of Ottawa, which was put in place in 1997. In keeping with that policy, staff was
permitted to remove a City tree that was causing foundation damage to an
adjoining property, even if the tree was otherwise healthy.
On February 23rd, 2005, City Council passed a motion calling
for a moratorium on the removal of any more trees until the Planning and
Environment Committee was able to receive the results of a policy review, planned
to be completed in June 2005: a copy of the motion is attached as Document No.
1. This direction was partly in response
to concerns expressed by the City’s Local Architectural Conservation Advisory
Committee which opposed the cutting down of two mature maple trees within the
Centretown Heritage Conservation District in April – May 2004.
The planned review was concluded and considered in a report entitled: “Trees and Foundation Strategy in
Areas of Sensitive Marine Clay in the City of Ottawa”: (ACS2005-PWS-SOP-0006).
This report was approved by the Planning and Environment Committee and City
Council on September 27th, 2005, and October 12th, 2005,
respectively. This Strategy included a
revised, Four Phase Assessment Process for cases of alleged foundation damage
due to the presence of City trees. In
essence, it emphasized that, even in such cases, “the trees will be
retained in recognition of the significance of the City’s urban forest and its
contribution to the quality of life in the City of Ottawa and the City will
implement [the] arboriculture mitigation measures” outlined in the report. A
copy of the full report is set out in Document No. 2.
On June 13th, 2006, the Planning and Environment Committee considered
a staff report outlining the issues associated with the conservation of the
City’s urban forest, as well as a draft harmonized by-law for the new City: (ACS2006-PWS-SOP-0004). This
report is attached as Document No. 3.
On July 12th, 2006, City Council enacted the Municipal Trees and Natural Areas Protection
By-law, which came into effect on September 1st, 2006. In keeping with the earlier Trees and
Foundation Strategy adopted by City Council in October 2005, the new harmonized
by-law provided for a much more restrictive authority in staff to effect the
removal of City trees. Notably, Section 11 of the By-law provided only two
circumstances in which staff was authorized to cut down a City tree:
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.
As a result of this change, staff was no longer able to remove a healthy
tree thought to be causing damage to an adjoining property. In response to questions raised during the
Committee’s consideration of the item, particularly as to whether the term
“dangerous” would also encompass “a tree breaking into a foundation”, staff
indicated that this determination would be made through a process including
geotechnical surveys and assessments by independent engineers.
Guinan v. Ottawa
Following the adoption of the more restrictive removal authority, the
City faced a number of legal claims for damage allegedly caused by City trees. The Municipal
Trees and Natural Areas Protection By-law, as well as the Trees and
Foundation Strategy, themselves became the focus of litigation in the case of Guinan v. City of Ottawa. Launched in 2007, this claim alleged that a
City tree had caused serious damage to the plaintiffs’ foundation and sought a
contractor to remove the tree. However,
in light of the restrictions imposed by the By-law not to remove a healthy
tree, Legal Services was unable to conclude a settlement of the case within its
delegated authority. Therefore, during
an in camera briefing of the Planning
and Environment Committee on May 13th, 2008, staff provided its
opinion of the case and sought direction from the Committee. As such, a motion directing staff to settle
the matter by removing the tree located at the property was put forward but was
defeated. As a result of the direction given, the claim proceeded to trial in
December 2009 and July 2010.
Despite the various arguments put forward by the City with respect to
its Four Phase Assessment Process for dealing with trees and Leda clay, the
Ontario Superior Court of Justice decided on February 26th, 2010,
that the City was liable for the foundation damage and ordered that the tree be
removed. The court rejected the notion
that the City’s Municipal Trees and
Natural Areas Protection By-Law, as a clear policy decision by Council,
served to insulate the City from claims for damage caused by its trees:
The public interest in maintaining the urban
forest in general and mature City street trees is an important consideration,
but in my view given the significant defect caused by this tree the public
interest ought not to outweigh the common law rights of the Plaintiffs where
damages have been found to be an inadequate remedy. Although a mandatory order
to remove the tree is a drastic remedy not be granted without considerable
thought, in these circumstances it is warranted.
The fact that the City took reasonable steps
to minimize the damage through its ongoing watering and pruning program is not
a defence. Nor is it a defence that the Plaintiffs built their home knowing the
silver maple was in front of their property.
In light of the significance of the decision, the City Clerk and
Solicitor filed a Notice of Appeal so as to preserve the City’s right to ask
the Ontario Court of Appeal to review the trial decision and to provide
guidance for future cases. However, on
April 14th, 2010, City Council received an in camera briefing from Legal Services staff and then directed that
the appeal be abandoned in open session.
In light of the April 2010 direction, and recognizing the cost of
litigating property damage claims stemming from City trees, it is appropriate
that the City move away from the more restrictive policy approach adopted in
2005 and 2006. Given the City’s
inability to guarantee that mitigation efforts will be 100% effective in preventing
a City tree from causing further damage to property where a claim has arisen, a
greater discretion in staff to effect the removal of such a tree may help to
limit the necessity of litigating damage claims, particularly where adjoining
property owners are seeking orders for the removal of a City tree.
In order to strike an appropriate balance, consideration must also be
given to the City’s overall forest strategy.
City’s Forest
Strategy
The City’s Forest Strategy is
well described in the “Trees and Foundation
Strategy in Areas of Sensitive Marine Clay in the City of Ottawa” cited above
and attached as Document No. 2. Most
notably, the Strategy recognizes the social and environmental importance of
trees to the City landscape, as well as Ottawa’s uniquely characteristic blend
of urban, suburban and rural areas. Given their importance, the City’s Forest
Strategy emphasizes that removal of a tree thought to be causing property
damage is a measure of last resort, with a clear preference for comprehensive mitigation
measures to limit the impact of mature trees on adjoining properties. As noted
in the 2005 report, these mitigation efforts can include: lifecycle pruning;
root pruning and barriers; and, watering programs.
The Forest Strategy’s emphasis on preserving the City’s urban, suburban
and rural forests must be recognized as part of a revised approach to dealing
with property damage claims arising out of the presence of City trees.
Further to the Planning and Environment Committee’s May 2010 direction,
staff of the Forestry Services Branch, in consultation with the City Clerk and
Solicitor Department, conducted a review of By-Law 2006-279, being the Municipal Trees and Natural Areas Protection
By-Law. The review took into account
the Ontario Superior Court ruling in the Guinan
as well as the guidance offered by the judge in that case. Ultimately, staff
concluded the need to strike an appropriate balance between promoting the
environmental values reflected in the City’s Forest Strategy and the common law
rights of adjacent property owners.
While municipalities in Ontario have the statutory right to enact
policies and/or by-laws prohibiting or regulating the destruction and
preservation of trees, such authority does not shield a municipality from the
potential liability in the event that a tree creates a nuisance to an
individual’s property. Therefore, based
on the ruling of the Ontario Superior Court that the existing by-law does not
insulate the City from damage claims, and in view of other recent claims for
compensation based on foundation damage, it is apparent that the City needs to
adopt a more flexible approach to the investigation and resolution of instances
where City trees may be causing serious damage to adjoining property.
The limitation on staff’s discretion to effect the removal of a healthy
tree causing damage to an adjoining property had the effect of pitting the City
against residents in litigation, increasing the City’s legal costs and exposing
the City to greater liability. The
existing restrictions in the By-law, which permit the removal of trees where
there are “dead” or “diseased” limit the City’s ability to mitigate the damage
that may be caused to a nearby home by a healthy tree. As a result, the City is potentially faced
with significant damage claims which can only be resolved through court
proceedings. Therefore, City staff is proposing
a revised approach that would allow the General Manager of Public Works, in
consultation with the City Clerk and Solicitor, to remove or permit the removal
of an otherwise healthy tree that is causing damage to a nearby home or
building, or is likely to do so in the future.
The Four Phases Assessment Process approved in 2006 will continue to be
an appropriate and effective tool to evaluate the site in question. This assessment process provides staff with
detailed information related to the properties of the soil, which can
facilitate the evaluation of the specific contribution of the tree to any
claimed damage. Any decision to remove
the tree would be based on the results of a complete analysis of the file and
in consultation with the Office of the City Clerk and Solicitor with respect to
any legal implications. This greater
flexibility will permit staff to address claims in a more balanced way, giving
them an ability to mitigate the damage being caused by a City tree. Such an approach should serve to minimize the
value of claims against the City and reduce the need to incur legal and other related
expenses in respect of tree claims.
The City’s trees form an important and distinctive feature of its
landscape. They provide many benefits to
daily lives and they contribute to the social, cultural, environmental,
economic and aesthetic well being of the community. Given those benefits, it is understood that
the removal of a healthy tree is a measure of last resort and will be used as a
mitigation strategy only in cases of serious damage. Forestry
Services staff will also continue to educate the public on the issue
surrounding sensitive marine clay (Leda clay) and how it interacts with
buildings and structures, how all the factors interact with one another and how
they can take steps themselves, such as watering their tree or engineering
solutions to avoid future problems.
RURAL IMPLICATIONS
CONSULTATION
Forestry Services staff has consulted with the Ottawa Forest and
Greenspace Advisory Committee through the regular monthly meetings. To date, the Committee has provided a written
submission and comments on how to modify the development in new areas, and a
review of different species that could be planted in Ottawa for consideration. These items are being reviewed by Planning and
Growth Management Department as part of a further study of future development
lands and the impact sensitive soils have on the design of the community.
COMMENTS BY THE WARD COUNCILLOR(S)
LEGAL IMPLICATIONS
The implementation of changes to
the Municipal
Trees and Natural Areas Protection By-Law which would allow for the removal of trees causing serious damage to
adjoining properties should serve to limit the number of claims made against
the City, as well as the legal costs associated with litigating these claims in
the courts. Though no amendment is
likely to eliminate these altogether, a more flexible approach provides a
greater possibility that claims can be resolved earlier in the process, which
is in keeping with the City’s preference for negotiated settlements over
protracted litigation.
RISK MANAGEMENT IMPLICATION
The risk implications have been
identified and explained in the report and are being managed by the appropriate
City staff.
CITY STRATEGIC PLAN
The
importance of protecting and increasing the City's forest cover, protecting our
urban and rural natural heritage and the concept of sustainability and
environmental protection outlined in the City's Official Plan form Forestry
Services' mandate. These objectives are further achieved through the
Environmental Stewardship Strategic Priorities (ES2 - Enhance and protect
natural systems) as approved as part of the term of Council Strategic
Priorities, as well as the City's Strategic Plan under a Sustainable, Healthy
and Active City Priority (Objective 3:
Expand the amount of City-owned green space in Ottawa).
The
proposed amendment to the by-law has minimal impact on these goals. To mitigate
the impact of the potential loss of trees as part of the review process, trees
will be replanted through one of the City's Tree Planting programs.
TECHNICAL IMPLICATIONS
There are no technical implications to implementing the recommendations
in this report.
FINANCIAL IMPLICATIONS
Any tree removals undertaken as a result of this By-Law would be covered by the existing Forestry Services Operating Budget.
ACCESSIBILITY IMPLICATIONS
There are no direct implications associated with the implementation of the report recommendation.
Document 1 - February 23, 2005 City
Council Motion
Document 2 - Trees and Foundations
Strategy in Areas of Sensitive Marine Clay in the City of
Ottawa ACS2005-PWS-SOP-0006
Document 3 - Harmonization – Municipal Trees and Natural Areas Protection By-Law
ACS2006-PWS-SOP-0004
DISPOSITION
Upon approval, the Public Works Department, Forestry Services Branch, together with the City Clerk and Solicitor Department, will prepare and process the required amending by-law for enactment by Council.