Report to/Rapport au :
Comité de l'urbanisme
and Council / et au Conseil
Contact Person/Personne-ressource : Richard Kilstrom, Manager/Gestionnaire,
Policy Development and Urban Design/Élaboration de la politique et conception urbaine, Planning and Growth Management/Urbanisme et Gestion de la croissance Élaboration de la politique et conception urbaine
(613) 580-2424 x22653, Richard.Kilstrom@ottawa.ca
Two Year Review of the urban Tree conservation by‑law
Examen du Règlement municipal sur la conservation des arbres urbains deux ans après son adoption
On June 24, 2009, Council enacted the Urban Tree Conservation By-law 2009-200 which regulates tree cutting on private property within the urban area of Ottawa. The Urban Tree Conservation By‑law (UTCB) requires a City-approved Tree Conservation Report (TCR) to remove trees 10 centimeters in diameter or greater on properties greater than one hectare in size.
On properties one hectare or less, it requires a tree permit to remove distinctive trees, which are trees 50 centimeters in diameter or greater.
The by-law was enacted to apply to all species of trees on all privately-owned properties within the urban area of the city, as defined by the Official Plan. It also includes a small part of Ottawa’s rural area in the City’s east end between the urban boundary and Ted Kelly Lane, known as Schedule R 37 or Area 11 in the recent discussions on urban expansion. The decision to apply the by-law to this part of the rural area was moved and approved on the floor of Council at the passing of this by-law. It was raised in response to concerns about tree clearing in urban expansion areas.
On October 12, 2011, Council approved an amendment to the UTCB extending the application of the by-law to the parcels of land recommended by staff to be added to the urban area under OPA 76. As such, the UTCB now applies not only to the urban area of Ottawa but also to the staff-proposed urban expansion areas.
The Planning and Growth Management Department implements Part II of the UTCB pertaining to properties greater than one hectare in size through the development review process; it came into effect upon enactment on June 24, 2009. The City’s Forestry Services Branch implements Part III of the UTCB pertaining to distinctive trees on properties one hectare or less; it came into effect on September 1, 2009.
In the staff report on the UTCB tabled at Council in June 2009, staff indicated that, at the time, no additional staff resources were required to implement the by-law, but that the demand for service would be assessed through implementation, and that staff would report back to Committee/Council as necessary with respect to any resource issues.
The June 2009 staff report on the UTCB included the requirement for a $50 distinctive tree permit fee. The decision to include a $50 fee was deferred through a motion at the Council meeting because there was concern that a permit fee may discourage property owners from complying with the intent of the by-law. The deferral motion directed staff to report back by the end of Q1 in 2012 on how well the by-law is working and to include an analysis of the requirement for a permit fee at that time.
At the Council meeting on June 24, 2009, in the motion directing staff to apply the provisions of the UTCB to the above-mentioned portion of the rural area, staff was also directed to report to Agriculture and Rural Affairs Committee (ARAC) in fall 2009 on extending the provisions of the by-law to include lands within one kilometer of the urban boundary. Staff prepared a preliminary report in late 2009 on this topic, but it was deferred based on other more pressing priorities at the time and has not been revived since.
This report will:
1. Explain how the by-law has been working over the last two years, including an assessment of resource issues and a proposal for further changes to the by-law.;
2. Provide an assessment of the $50 distinctive tree permit application fee requirement; and
3. Address the idea of applying the provisions of the by-law to the area within one kilometre of the urban boundary.
Properties Greater than one hectare
Part II of the by-law, pertaining to properties greater than one hectare in size, is implemented by the Forester in the Planning and Growth Management Department. For new developments, the by-law is implemented through the review and approval of Tree TCR submitted with Site Plan Control applications or applications for Plans of Subdivision as part of the City’s development review process. The majority of these require a Tree Permit signed by the General Manager before any tree removal can occur on site. For properties that are already developed but that are greater than one hectare in size (i.e. condominiums, commercial, and institutional properties), the by-law is implemented through the review of scoped TCRs that are submitted directly to the Planning Forester for approval. Since the by-law came into effect just over two years ago, the Planning Forester has reviewed TCRs for 119 new development applications and 96 developed properties (condominiums, commercial, and institutional). So far in 2011, 65 reports have been reviewed and there are 14 more outstanding applications for review. The Planning Forester receives between 170 and 210 calls each month related to the UTCB.
The majority of new developments require the removal of trees to make way for the proposed development and therefore most of these 119 reviews resulted in the issuance of a tree permit to remove trees. However, for these new developments, the City was presented with the opportunity to comment on and discuss tree retention in advance of the trees being cleared. In almost all cases, more trees were retained in these new developments than would have been prior to the enactment of the UTCB. Staff are seeing an increase in tree retention in new developments on school blocks, within parks, within the rear yards of properties that back on to natural features, and generally along the edges of new developments.
Most applications require considerable negotiations and discussion prior to a tree permit being issued. Site Plan approvals can take more than three or four months in total and applications for Subdivisions can be active for a year or more. As a result, the Planning Forester may have 40+ files active at any given time. There are over 25 development review Planners, four Parks Planners, and close to 20 engineers responsible for the review of the same files. Currently, the turnaround time for comments from the Planning Forester on an application or a revised application is approximately four to six weeks due to the high workload. With the appropriate level of resources, this would ideally be two to three weeks. The increased time to receive tree-related comments can cause a delay in the development approvals process, hence compromising service excellence within the Planning and Growth Management Department. Many developers have indicated frustration with the turnaround time for tree-related comments.
The Planning Forester’s workload makes it difficult to conduct site visits, meaning that there is an increased reliance on the information provided by the consultant and on the assessment of aerial photographs. There have been several situations where it has been discovered too late in the process that the information provided by the consultant within the TCR was not entirely accurate, and opportunities for tree retention have been lost as a result. Another implication of the high workload is that it is increasingly difficult to investigate tree cutting incidents in a timely or complete manner. This means that some tree cutting incidents have the potential to pass under the radar with no charges or discussion of required compensation.
For developed properties, particularly for condominium properties, the TCRs outline required tree maintenance activities, for example the removal of dead, dying and diseased trees. It is clear that the UTCB is having little to no impact on the number of trees that are being retained and/or removed on condominium properties. Each TCR reviewed for condominium properties results in the issuance of a tree permit. The review of these TCRs is relatively quick in comparison with the review of TCRs associated with new developments. On average, application review and tree permit issuance for developed properties is 30 minutes to an hour. The majority of the staff time spent on TCR review and Tree Permit issuance for developed properties is administrative in nature; making files, preparing the permit, faxing and mailing the permit, phoning the applicant, and processing the permit fee.
Distinctive Tree Permits
Part III of the by-law, pertaining to Distinctive Trees on properties one hectare or less that are not subject to a development application, is implemented by a Forestry Inspector in the City’s Forestry Services Branch through the review of arborist reports and the issuance of Distinctive Tree Permits. The majority of the tree permit applications received under this part of the by-law are for residential properties. Since the by-law came into effect Forestry Services has received 2150 inquiries related to Distinctive Trees and has issued 732 permits; approximately one third of the calls received result in the issuance of a Distinctive Tree Permit. This part of the by-law has played an important role in educating the public on the importance of trees in our urban environment through either tree retention, tree protection during construction and/or tree replacement.
Issues Encountered and Proposed Solutions
In the first two years of implementing the UTCB, two main issues have been encountered: 1) overly demanding requirements for tree permits on condominium properties greater than one hectare, and 2) a lack of adequate staff resources to review TCRs within a timely manner.
Most condominium properties in Ottawa are generally on sites larger than one hectare in size and, as such, the provisions of Part II of the UTCB apply, despite the fact that they are residential properties. Condominium managers are required to submit a TCR for the removal of any tree on their property and given the increased level of tree cover on condo properties, this is an onerous task for what is essentially the general and required maintenance of these properties.
Since the intention of the by-law was to regulate the cutting of distinctive trees within existing neighbourhoods, staff proposes a by-law amendment to exempt registered condominium properties from the provisions of Part II of the by-law and instead apply the provisions of Part III to these properties. Over the past two years, staff has concluded that the majority of condominium properties share the objective of maintaining their existing tree canopy and tree removals are generally only done because of tree decline or public safety considerations. The proposed by-law change ensures that the original intention of the UTCB is met by requiring a permit to remove distinctive trees on these properties, rather than requiring a full TCR for the removal of any tree. In addition, this change will result in a slight reduction in the workload for the Forester in the Planning and Growth Management Department by removing the review of 40 to 50 smaller files each year. It will download a portion of that UTCB workflow to the Forestry Services Department that implements the distinctive tree portion of the by-law. However, the workload would be reduced because permits would be required for distinctive trees only, rather than all trees, and there are generally fewer large sized than smaller trees across the city. Document 1 of this report outlines the proposed amendment to the UTCB. When this report is approved, the by-law will be amended and included within the by-law list of Council’s agenda in the near future.
Additional Resources Required
The original intention for the Planning Forester position was that the workload be balanced between development review and other policy work. Given the unexpectedly high workload associated with implementing Part II of the UTCB, this has not been possible. Examples of work that cannot be currently completed include: development of a Forest Strategy; forest/community management plans for the City’s Urban Natural Features and Natural Environment Areas; a wrap up of the City’s South March Highlands Conservation Forest Management Plan; input into Community Development Plans; the review of Official Plan amendments, Zoning By-law amendments, and Committee of Adjustment applications with tree-related issues; and other relevant policy work. In addition, it has been necessary to temporarily allocate 25 per cent of the time of two full-time employees in Natural Systems to assist with the implementation of the UTCB. This puts a strain on other important policy initiatives the Natural Systems group is trying to complete and may compromise the timelines of other projects.
One additional full-time employee to assist in the review of the TCRs for properties greater than one hectare in size will;
It was difficult to assess the staff resources required to implement the UTCB when it was first proposed in June 2009. Now, after two years of implementation, it is clear that one staff member is not sufficient to implement the Part II of the by-law for properties greater than one hectare in size. In order to meet service delivery timelines for the development review process and other Forester responsibilities, one additional full-time employee is required to assist in the implementation of the UTCB within Planning and Growth Management. A request for an additional Forester position is included in the 2012 budget.
The presence of the emerald ash borer (EAB) in Ottawa has resulted in an increase in requests for Tree Permits to remove infected ash trees on both large and small properties within the urban area. It is expected that this increase in Tree Permit requests will continue as the EAB expands across the city and will level off once the high density ash areas have been affected. If the structural integrity of a tree has been compromised as a result of an EAB infestation, it would be considered a hazardous tree and be exempt from the UTCB as per Section 25(f) which exempts trees that are an immediate threat to public health and safety.
Distinctive Tree Permit Application Fee
In the 2009 staff report outlining the need for an UTCB, the staff-proposed by-law included a $50 fee for the Distinctive Tree Permit. The decision to include a $50 permit fee was deferred through a motion at Council because there was concern that a permit fee may discourage property owners from complying with the intent of the by-law. The fee was originally proposed because most of the municipalities in Ontario that have tree by-laws for private property have included a permit fee and in most cases the permit fee is significantly higher than $50. Given the anticipated public reaction to the by-law in general in Ottawa, it was felt that a higher fee would garner increased negative attention, in turn creating unnecessary backlash against the by-law in the form of reduced compliance. The by-law does cost the property owners as they are required to hire an arborist to complete and arborist report which can cost anywhere from $50 to $125. In addition, a fee that would provide cost recovery to implement the Distinctive Tree portion of the by-law would have to be upwards of $300 or more. Currently, compliance with the provisions of the by-law is good and the climate surrounding increased regulations on private land has not changed in Ottawa. Therefore, staff does not recommend the introduction of a Distinctive Tree Permit fee at this time. Staff will continue to assess the need for a permit fee and will report back to Council, if necessary, with a request to impose such a fee.
Addressing Tree Clearing Related to Urban Expansion
As a result of concern for tree clearing in areas where urban expansion is anticipated, Council passed a motion in June 2009 directing staff to report to ARAC that fall on extending the provisions of the by-law to include lands within one kilometer of the urban boundary that have environmental designations in the Official Plan. Staff prepared an information report for ARAC on the topic in late 2009, but it was deferred and never tabled because of other priorities at the time. This fall Council approved an amendment to the UTCB to extend the application of the provisions of the by-law to the parcels of land recommended by staff to be added to the urban area in regards to the appeal of OPA 76. Possible urban expansion areas are considered to be at highest risk for pre-development tree clearing. Now that the UTCB applies to these areas in the interim, prior to the required Official Plan amendment, the risk of tree clearing has been mitigated.
There has always been and still is very little appetite within the rural area for increased regulations on private land, particularly associated to tree cutting. It is staff’s position that since the areas on the urban fringe that are at highest risk for tree clearing are now covered by the UTCB, the further extension of the UTCB into the rural area should not be pursued at this time. Staff will continue to assess the need for extension of the provisions of the UTCB into the rural area and will report back as required with any proposed amendments to the by-law.
The UTCB has been in effect now for just over two years. It appears as though compliance with the by-law is quite high, but this is difficult to assess and measure. There have been a handful of UTCB contraventions for which City staff has been made aware. The City is currently in the midst of hearings for the first two charges under the by-law; one for tree clearing on a development property greater than one hectare in size without an approved TCR or Tree Permit and one for the removal of a Distinctive Tree without a Distinctive Tree Permit.
This report proposes changes to the UTCB 2009-200 (as outlined in Document 1) and shows the need for the addition of one full-time employee to assist in the implementation of the by-law. Both will improve the efficiency of the implementation of the UTCB, in turn improving service for the City’s development review process.
There are no immediate rural implications as a result of the recommendations of this report.
There has been no broad public consultation or notification on this matter. Notice of this report has been posted on the City’s website and people with an interest in this topic will be notified of the date and time of this meeting and their ability to provide the committee with feedback.
The information in this report was discussed at the October 24, 2011 meeting of the Ottawa Forest and Greenspace Advisory Committee (OFGAC). OFGAC is in support of the Urban Tree Conservation By-law.
Informal discussions with members of the development community, condominium managers, and arborists indicate that all these groups are in general agreement with the information outlined in this report.
Comments by the Ward Councillor(s)
There are no legal impediments to implementing the recommendation of this report. Section 135 of the Municipal Act, 2001 provides that a municipality may prohibit or regulate the destruction or injuring of trees.
RISK MANAGEMENT IMPLICATIONS
There are no risk implications.
The UTCB 2009-200 supports the conservation of trees in the urban area and has an overall positive impact on Ottawa’s air quality, water quality, energy use, stormwater retention capacities, and climate change mitigation, as well as the liveability of Ottawa’s neighbourhoods. The by-law applies to privately-owned land, which contains most of the trees in the urban area (75 per cent), and targets areas with the greatest tree coverage and the trees with the greatest environmental benefits.
About one-third of the tree cover on privately-owned land is on vacant land and land slated for future development. The first component of the by-law enables the City to consider tree conservation opportunities on these lands before development occurs. The by-law also protects large, mature trees on small lots because when trees reach maturity and their canopies are the largest, they are able to produce their greatest environmental benefits. The larger the tree, the greater its capacity to sequester and store carbon and particulate matter from the air. In new developments in Ottawa, the planting of large trees is restricted in those areas containing marine clay soil, thereby emphasizing the importance of preserving existing mature trees.
The recommendations of this report will improve the efficiency and effectiveness of the implementation of the by-law, which, in turn, will maintain high levels of compliance with the by-law while providing all the above-noted environmental benefits.
The Official Plan outlines the requirement for land to be developed in a manner that is environmentally sensitive and incorporates design with nature principles; the UTCB is one of the only tools within the urban area to implement this. In addition, the Official Plan has a target of reaching and maintaining 30 per cent forest cover for the entire city. The UTCB contributes to this target by making residents think twice before removing large trees on their property within the urban area and by ensuring that tree retention opportunities are assessed and implemented in new developments prior to the trees being removed. Without appropriate resources to implement the UTCB in a timely manner, there is a risk that compliance will lower and tree retention opportunities will be lost.
There are no technology implications.
City Strategic Plan
Planning and Growth Management – Manage growth and create sustainable communities by evaluating the impact of policy and development decisions on communities.
Document 1 Proposed Changes to the Urban Tree Conservation By-law 2009-200
Legal Services, in consultation with Planning and Growth Management, By-law and Regulatory Services and the Forestry Services Brach, will process the by-law with the changes outlined in Document 1 to Council for enactment.
Planning and Growth Management will provide for any necessary notification to the public and internally to staff.
Proposed Changes to the Urban
Tree Conservation By-law 2009-200 DOCUMENT 1
Recommended Amendment to Urban Tree Conservation By-law 2009-200
Purpose: To exempt condominium properties from the provisions of Part II of the UTCB and to instead apply the provisions of Part III.
1. Add the following to Section 4, “SCOPE”, of Part II;
4A. Despite Section 4, the provisions of this Part shall not apply to condominiums on properties greater than one hectare.
2. Change the wording of Section 14, “SCOPE”, of Part III as follows;
14. This Part applies to distinctive trees on properties one hectare or less in area and on condominium properties greater than one hectare in area within the urban area of the City.
3. Add a definition of “condominium” to Part I under DEFINITIONS as follows;
“condominium” means a corporation created upon registration of a declaration and description under the provisions of the Condominium Act, 1998.