Public Tree Maintenance By-Law

1. Short Title

1.1 This By-law shall be known and may be cited as the "Public Tree Maintenance By-law"

2. Definitions

In this By-law:

2.1 "Arborist" means a person with a diploma or degree involving arboriculture from an accredited college or university, a registered professional forester, an accredited certified arborist under the International Society of Arboriculture, or with a demonstrated history of tree preservation experience or a registered consulting arborist with the American Society of Consulting Arborists.

2.2 "Boundary Tree" means any Tree where its Trunk is located on both Public Property and an adjacent property.

2.3 "County" means the Corporation of Norfolk County, the General Manager of Operations or their delegate, or an Officer.

2.4 "Council" means the Council for the Corporation of Norfolk County and includes its successor.

2.5 "DBH" or "Diameter at Breast Height" means the Diameter of the stem or trunk of a Tree measured at a point that is 1.37 metres from the ground.

2.6 "Deface" includes but is not limited to the painting or carving of words, figures, symbols or any other markings on a Tree.

2.7 "Destroy" includes any action which causes or results in the death of a Tree, not limited to but including acts of cutting, burning, knocking over the Tree, and "Destruction" shall have a corresponding meaning.

2.8 "Dripline" means the outer boundary of an area on the surface of the ground directly below and which corresponds with the outer edge of the crown of a Tree.

2.9 "Emergency Work" means work necessary to terminate an immediate danger to life or property as determined by the General Manager of Operations, and includes but is not limited to work associated with water main repairs, utility repairs, and structural repairs to a building.

2.10 "Good Arboriculture Practice" means the proper implementation of removal, renewal, and maintenance activities known to be appropriate for the individual Trees in and around urban areas and includes Pruning of Trees to remove dead limbs, maintain structural stability and balance, or to encourage their natural form, provided that such pruning is limited to the appropriate removal of not more than one-third of the live branches or limbs of a tree, is done with proper pruning cuts, and does not result in any unsafe condition.

2.11 "Highway" shall include the entire right-of-way of a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle under the jurisdiction of Norfolk County.

2.12 "Injure" or "Injury" means any action that causes physical, biological, or chemical damage to a Tree, including any lasting damage which has the effect of inhibiting or terminating its growth, which may result by accident or design, and includes but is not limited to changing of grades around a Tree that results in exposing roots or burying the trunk or branches, compacting soil over root areas, severing or damaging roots, and improper pruning or removal of bark.

2.13 "Maintain" or "Maintenance" includes all operations of watering, spraying, injecting, fertilizing, treating, cabling, bracing, and any other like activity to assist with the health and protection of the tree, but does not include cutting, pruning, or injuring the Tree.

2.14 "Officer" means a Municipal Law Enforcement Officer or other person appointed by Council for the administration and enforcement of this By-law.

2.15 "Permit" means written authorization, in a form approved by the County, issued by the County pursuant to this By-law.

2.16 "Person" means and includes an individual, an association, a chartered organization, a firm, a partnership, or a corporation, and their respective heirs, executors, administrators, or duly appointed representatives.

2.17 "Pest" means any organism, including but not limited to such things as insects or diseases, whether viral, fungal, or bacterial, which directly or indirectly cause irreversible damage to the long-term health, vitality, longevity, and integrity of a Tree.

2.18 "Private Property" means any land other than Public Property.

2.19 "Private Tree" means any Tree that is located entirely on Private Property.

2.20 "Prune" or "Pruned" or "Pruning" means the cutting away of parts of a Tree.

2.21 "Public Property" means any land or property owned by Norfolk County.

2.22 "Public Tree" means any Tree that is located entirely on Public Property.

2.23 "Remove" or "Removal" or "Removed" means the elimination, in whole or in part, of a Tree.

2.24 "Tree" means a plant of any species of woody perennial, including its root system, which has reached or can reach a height of at least 4.5 meters at physiological maturity.

2.25 "Tree Protection Zone" or "TPZ" means a restricted area, enclosed by fencing or other barrier, around a Tree which serves to protect the Tree and its root zone.

2.26 "Trunk" means the part of a Tree from its point of growth away from its roots, the root collar, up to where it branches out to limbs and foliage.

2.27 "Vehicle" shall include a motor vehicle, trailer, traction engine, farm tractor, road-building machine and a vehicle drawn, propelled or driven by any kind of power, including a motorized snow vehicle.

3. Interpretation

3.1 In this By-law, the singular tense and plural tense are deemed to be interchangeable.

3.2 Where a provision of this By-law conflicts with the provisions of another By-law in force in the County, the provision that establishes the higher standard to protect health, safety and welfare of the general public shall prevail.

4. Applicability

4.1 This By-law applies to all Public Trees, Boundary Trees and any Trees which pose an immediate danger to the health and safety of any person using a Highway, within Norfolk County.

5. Exemptions

This By-law does not apply to:

5.1 Activities or matters undertaken by the County or a local board of the County;

5.2 Activities or matters under a licence issued under the Crown Forest Sustainability Act, 1994;

5.3 The Injuring or Destruction of Trees by a person licensed under the Surveyors Act to engage in the practice of cadastral surveying or their agent, while making a survey;

5.4 The Injuring or Destruction of Trees imposed after December 31, 2002 as a condition of 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;

5.5 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;

5.6 The Injuring or Destruction of Trees by a transmitter or a 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;

5.7 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;

5.8 The Injuring or Destruction of Trees undertaken on land in order to lawfully establish and operate or enlarge any pit or quarry on land,

1. that has not been designated under the Aggregate Resources Act or a predecessor of the Act; and,
2. on which a pit or quarry is a permitted land use under a by-law passed under section 34 of the Planning Act.

5.9 The Pruning of branches from a Public Tree or Boundary Tree, provided that the branches being Pruned are located on or over Private Property and will not result in the Injury of the Tree.

5.10 The Pruning and Removal of a Public Tree or Boundary Tree required for Emergency Work that has been approved by General Manager of Operations or their designate.

6. Authority for planting, maintenance and removal of public trees

6.1 The General Manager of Operations is hereby authorized to plan, regulate, supervise, and carry out or cause to be carried out the planting, Maintenance, Pruning, protection, preservation, and Removal of all Public Trees.

6.2 The General Manager of Operations may delegate any authority and responsibilities that are conferred to them under this By-law to an employee of the County.

6.3 Without limiting the generality of Section 6.1 and 6.2, the County may take or cause the following action:

1. plant Trees on Public Property;
2. designate the species of Trees which are prohibited on Public Property;
3. Maintain, Prune, and Remove any Public Tree;
4. remove without notice or compensation to any Person, any object or thing that adversely affects a Public Tree;
5. enter upon land adjacent to a Highway to inspect Trees and conduct tests on Trees;
6. implement all necessary treatments for Pest problems associated with Public Trees;
7. stop any work or action that is causing Injury or Destruction to a Public Tree.

6.4 The General Manager of Operations or their delegate shall have the power to issue a Permit, refuse to issue a Permit, revoke a Permit, suspend a Permit, and impose terms or conditions on a Permit.

7. Boundary Trees

7.1 Without limiting the generality of Section 6.1 and 6.2, the County is hereby authorized to take or cause the following action:

1. enter upon land to Maintain, Prune, and Remove any Boundary Tree or part of a Boundary Tree, without notice or compensation to any Person if, in the opinion of the County, the Tree or part thereof poses an immediate danger to the health or safety of any Person using a Highway;
2. stop any work or action that is causing Injury or Destruction to a Boundary Tree without proper authorization.

7.2 The General Manager of Operations or their delegate may authorize the Pruning, Injury, or removal of a Boundary Tree on behalf of the County.

7.3 The cost for the Maintenance, Pruning, Removal, and replacement of a Boundary Tree may be shared between any or all owners of the Boundary Tree only through prior written agreement.

8. Private Trees

8.1 Any Tree located entirely on Private Property, whether planted by the County or by any other Person, is the property of the landowner and is the owner's sole responsibility.

8.2 The County is hereby authorized to take or cause the following action:

1. enter upon land to Maintain, Prune, and Remove, without notice or compensation to any person, a Private Tree, if in the opinion of the County, the Tree or part thereof poses an immediate danger to the health or safety of any Person using a Highway

9. Prohibitions

9.1 Unless otherwise exempt from this By-law, no Person shall:

1. Prune, Injure, Remove, Deface, or alter in any way a Public Tree without a Permit;
2. Prune, Injure, or Remove a Boundary Tree without prior written authorization from the General Manager of Operations or their delegate;
3. plant, or cause or permit to be planted, a Tree on Public Property without prior written authorization from the General Manager of Operations or their delegate;
4. fasten or attach any sign, bill, notice, wire, rope, nail, or other object to, around, on, or through any Public Tree without prior written authorization from the General Manager of Operations;
5. climb, or permit any Person under their care or control to climb, any Public Tree without prior written authorization from the General Manager of Operations;
6. interfere with fences, structures, or barriers delineating a Tree Protection Zone, or associated signage, or other protective devices around any Public Tree or Boundary Tree;

9.2 No Person shall contravene the terms or conditions of a Permit issued under this By-law.

9.3 No Person shall fail to comply with an order issued under this By-law.

9.4 No Person shall remove or deface an order that has been posted pursuant to this By-law.

9.5 No Person shall hinder or obstruct an Officer or attempt to hinder or obstruct an Officer who is performing a duty in accordance with this Bylaw.

10. Permit application

10.1 A Person seeking to Prune, Injure, or Remove a Public Tree shall apply to the County for a Permit.

10.2 The County shall receive, process and review all Permit applications.

10.3 An application for a Permit shall include the following information:

1. the applicant's name, mailing address, and other contact information as
   may be required;
2. details of the location, size, species, and health of the particular Tree;
3. a description of the proposed Pruning, Injuring, or Removal and reason for which the Permit is required;
4. information for the Person or company who will be conducting the Pruning, Injuring, or Removal of the Public Tree.
5. any additional information as may be required by the County.

11. Issuance of a permit

11.1 If an application for a Permit is made in accordance with Section 1 O of this By-law, and the applicant meets all of the requirements of this By-law, the County may issue a Permit.

11.2 Every Permit issued is valid for a period of one year from the date of issuance and is non-transferable.  The Permit may be renewed or extended for a period of one year at the discretion of the County.

12. Permit conditions

12.1 The County may impose any of the following conditions when issuing a Permit:

1. specify the standards and timelines for which the work is to be performed;
2. require that the work be carried out in accordance with Good Arboricultural Practices;
3. require that the work be carried out by a competent Arborist;
4. require Tree Protection Zones to be installed to the specifications and satisfaction of the County;
5. require fees to be paid to cover the costs for the replacement of the Public Tree;
6. any other condition as may be required by the General Manager of Operations

12.2 Fees relating to the replacement of a Public tree will be calculated using the fees prescribed in Norfolk County's User Fee By-law and will be based on the planting of, at minimum, one 50mm caliper tree for every 10 centimeters of DBH of Public Tree that is Injured or Removed.

13. Security deposit

13.1 In addition to Section 12, the General Manager of Operations may require an applicant to provide a security deposit as a condition of issuing a Permit.

13.2 The security deposit shall be in the amount that would cover the costs of replacing a Public Tree and for any potential maintenance work related to any Trees that need to be replaced for a period of up to two (2) years.

13.3 Where a Permit holder has provided a security deposit to the County as a condition of a Permit, the Permit holder shall notify the County when the work for which the Permit was issued is complete. The County will complete an inspection of the work and upon completion of an inspection the County shall:

1. immediately return the security deposit to the Permit holder if it is determined that the work has been carried out in accordance with the Permit and no remedial action is required; or
2. call upon the security deposit or a portion of the security deposit if it is determined by the County (in their sole discretion) that any or all of the security deposit is required to replace, Maintain, Prune, or Remove a Public Tree as a result of the work carried out by the Permit holder; or
3. retain the security deposit for a period of two (2) years from the date of the inspection if the County is unable to conclude during the inspection if the Public Tree is Injured. For greater clarity, the County shall comply with Sections 13.3 (a) and (b) once they are able to conclude that the Tree has been Injured or not and shall return the security deposit at the expiration of the two (2) year period if no Injury is observed.

14. Refusal or revocation of a permit

14.1 The General Manager of Operations may refuse to issue a Permit if they determine that:

1. the applicant does not comply with the applicable laws, including but not limited to, this By-law, other municipal by-laws, provincial or federal laws;
2. the proposed work involves the Injury or Removal of a healthy Public Tree;
3. the application relates to a Tree that is subject to a building permit, rezoning, a consent, a minor variance, a plan of subdivision, or a site plan that has been submitted to the County but has not received final approval;
4. the proposed work does not comply with the County's tree preservation and protection standards;
5. the Tree is relevant to the heritage designation of the Public Property, as determined by the County's Heritage Committee;
6. natural heritage systems, environmentally sensitive areas, ecological systems, natural landforms or hazard lands (any of which may be defined in the County's Official Plan) will not be adequately protected and/or preserved;
7. the impacted Tree is an endangered, threatened or special concern species as defined in the Endangered Species Act, 2007;
8. the impacted Tree is a species of special concern, as defined in the Species at Risk Act, 2002, S.C. 2002, c 29, as amended; or (i) a person or property will be adversely affected.
9. there are reasonable alternatives to the Injury or Removal of the Tree.

14.2 In addition to the circumstances established in Section 14.1, the General Manager of Operations may revoke a Permit if:

1. this By-law or the terms and conditions of the Permit are not complied with;
2. the Permit was issued because of mistaken, false, or incorrect information.

14.3 After a decision is made by the General Manager of Operations to refuse or revoke a Permit, written notice of that decision shall be given to the applicant or Permit holder, advising the applicant or Permit Holder of the decision.

14.4 The Permit holder of a revoked Permit shall immediately cease or ensure the immediate cessation of all the actions for which a Permit has been issued upon revocation of the Permit.

14.5 The written notice to be given under Section 14.3 shall include the reason for the decision, including reasonable particulars.

14.6 The decision made by the General Manager of Operations shall be final.

15. Enforcement

15.1 In addition to the General Manager of Operations, the administration and enforcement of this By-law may be performed by an Officer.

15.2 Where a Person has contravened this By-law, an Officer may make an order directing the Person to do any of the following:

1. comply with any conditions required to correct the contravention to the
   satisfaction of the Officer; and/or,
2. cease the activity which is subject of the contravention.

15.3 The order issued by the Officer pursuant to Section 15.2 shall set out:

1. the Person who contravened the By-law or caused or permitted the contravention;
2. reasonable particulars of the contravention, including the location of the land on which the contravention occurred, and the period within which there must be compliance with the order; and,
3. if applicable, notice stating that if the Person fails to comply with the order within the time period specified, the County may take such action as is necessary to correct the contravention of this By-law at the expense of the Person who contravened the By-law and may recover the costs of taking
   such action from the Person who contravened the By-law by adding such costs to the tax roll and collecting them in the same manner as property taxes.

15.4 An order issued pursuant to Section 15.2 of this By-law may be served:

1. personally, in which case it shall be deemed to have been served on the date of such person service; or,
2. by prepaid registered mail to the last known address of the Person to be served, in which case it shall be deemed to have been served on the fifth day after the date it was mailed.

15.5 Where a person fails to comply with an order issued pursuant to Section 15.2 of this By-law within the time period specified, the County, in addition to all other remedies it may have, may take such action as necessary to correct the contravention of this By-law.

16. Offence and penalty

16.1 Every Person who contravenes any provision of this By-Law is guilty of an offence.

16.2 All contraventions of this By-Law, or of orders issued in accordance with this By-Law, that continue for a period of several consecutive days are designated continuing offences pursuant to section 429(2) of the Municipal Act, 2001

16.3 All contraventions that consist of two or more acts or omissions, each of which separately constitutes an offence, is a contravention of the same provision of the By-Law and designated as multiple offences pursuant to section 429(2) of the Municipal Act, 2001.

16.4 For greater clarity, all contraventions that involve multiple Trees are designated as multiple offences pursuant to section 429(2) of the Municipal Act, 2001.

16.5 Upon conviction of an offence under this By-law, a Person is liable to a fine as follows:

1. A minimum fine of $200.00 and a maximum fine of $100,000.00.
2. In the case of a multiple offence, for each offence included in the multiple offence, a minimum fine of $200.00 and a maximum fine of $10,000.00, and the total of all fines for each included offence is not limited to $100,000.00.
3. A special fine may be imposed, in addition to a fine under clauses (a) and (b) above, in circumstances where the Person convicted has or may have obtained an economic advantage from the contravention of this Bylaw or an order issued pursuant to this By-law and the maximum amount of the special fine may exceed $100,000.00.