Encroachments upon County Lands

Purpose

Section 270(1) 1. of the Municipal Act, 2001, S.O. 2001, c. 25, as amended, provides that municipalities shall adopt and maintain policies with respect to the sale and other disposition of land.

The purpose of Policy AD-014 Encroachments Upon County Lands, is to formalize and clarify the procedure for granting Encroachments on County Lands. This Policy will set out guidelines for a consistent approach in processing applications, enforcing the Policy, and protecting the County’s rights and obligations. The aim is to mitigate the County’s exposure to risk and liability and to indemnify the County wherever Encroachments 
have been identified.

Where it is generally the Policy of the County not to permit Encroachments on County Lands, it is recognized there are occasions where consideration may be given to recognize an Encroachment, having regard to the guidelines set out herein including the entry into a Consent Letter or Encroachment Agreement.

Scope

This Policy is not exhaustive. The intent is to consider each Encroachment application on a case-by-case basis, while having regard to the guidelines set out herein and the unique features of individual Encroachments. These guidelines apply to all Encroachments on County Lands. Exemptions to this Policy are:

• The activities, infrastructure and equipment of the County and its agents,
• The activities of the Canada Post Corporation and its agents with respect to the placement of receptacles or devices upon highways for the collection, delivery or storage of mail,
• The activities, infrastructure and equipment of companies and agencies that provide public utilities, electricity and telecommunication services upon highways which are carried out in compliance with any by-laws and policies applicable to the installation or maintenance of such infrastructure,
• Every private entrance upon a highway that complies with the requirements of the applicable by-law regulating private entrances,
• Every rural mailbox upon a highway that is erected and maintained in compliance with the requirements of the Mail Receptacles Regulations under the Canada Post Corporation Act, R.S.C., 1985, c. C-10, is exempt from the provisions of this Policy.

Definitions

For the purpose of this Policy:

Applicant means any party who has encroached onto lands in which the County holds an interest or is subject to the direction, control, and management of the County.

Authorized Encroachment means an encroachment that is authorized by a valid Consent Letter or Encroachment Agreement.

Council means the Council of The Corporation of Norfolk County.

County means The Corporation of Norfolk County.

County Clerk means the County Clerk, and or his or her designate for The Corporation of Norfolk County.

County Lands means any lands owned by the County, and shall include, but not be limited to, any public highway, road, street, avenue, parkway, lane, alley, square, place, viaduct or trestle, water, thoroughfare, way or bridge, park, woodland, greenbelt, stormwater management facility, open space, cemetery, and all parts thereof, including any surface, grassed area, boulevard, ditch, gutter, and sidewalk.

Consent Letter means the County’s standard form of letter, as amended from time to time, for situations in which the General Manager, Public Works and/or the General Manager, Community and Development Services, and or their designate(s), determines, at their sole discretion, that an Encroachment is minor in nature, such that an Encroachment Agreement is not required.

Encroachment means anything, constructed or erected with a fixed location on the ground or attached to something having a fixed location on the ground that extends on, over or under County lands.

Encroachment Agreement means a legal and binding agreement between the County and the Property Owner(s) being granted permission to occupy County Lands.

Encroachment, Minor means an Encroachment that is minor in nature and may include, but is not limited to the following: 

• Projections from buildings (eaves, cantilevers, etc.)
• Sheds 10m/sq or smaller
• Shrubs, trees or other natural landscape materials
• Hard landscaping (including asphalt, concrete, brick sidewalks and walkways, curbs, parking pads, aprons or driveways) 

Encroachment, Major means an encroachment that is large in scale, difficult to move, secured by a footing and may include, but is not limited to the following: 

• Buildings (including dwellings, garages, sheds larger than 10m/sq)
• Structures (including retaining walls, decks, stairs and patios)
• Fences
• Seasonal patios of a permanent nature.

Existing Encroachment means any type of Encroachment proved to be in existence prior to September 10, 2002.

Mayor means the Mayor of The Corporation of Norfolk County.

New Encroachment means any type of Encroachment put in place after September 10, 2002.

Property Owner(s) means the registered owner(s) of land abutting County Lands.

Surveyor means a member of the Association of Ontario Land Surveyors, who is authorized under the Surveyors Act, R.S.O. 1990, to engage in the practice of professional land surveying in the Province of Ontario.

User Fee By-Law means the County’s current Encroachment User Fee, as revised on an 
annual basis.

Standards and Procedures

Responsibilities

The County has the authority under the provisions of the Municipal Act, 2001, S.O.2001, c.25, as amended from time to time, to deal with Encroachment(s) to minimize the risk to the County and to continue to maintain access to public property either by removing the Encroachment(s), issuing a Consent Letter, or entering into an Encroachment Agreement.

The General Manager, Community and Development Services, and or his or her designate, in consultation with operating department staff, shall have the authority to approve or decline Encroachment Applications, subject to the guidelines and circumstances as outlined herein.

All determinations as to an Encroachment, Minor or an Encroachment, Major, shall be made by the General Manager, Community and Development Services, and or his or her designate, in consultation with the General Manager, Public Works, and or his or her designate, and operating department staff that have been involved in the preliminary review of the Encroachment Application. In cases where it is uncertain as to whether an Encroachment is minor or major, or a consensus cannot be reached by department staff, the Encroachment will be deemed an Encroachment, Major.

The General Manager, Community and Development Services, and or his or her designate, shall have the delegated authority to issue and sign Consent Letters for minor Encroachments.

Council will be the final approving authority for major Encroachments requiring an Encroachment Agreement.

If Council approves an Encroachment Agreement, a by-law shall be passed by Council to authorize the entry into the Encroachment Agreement and registration of same on title. An Encroachment Agreement shall be signed by the Mayor, and or his or her designate, and the County Clerk, and or his or her designate.

General Provisions

The County must ensure that Encroachments do not adversely affect other properties, the County’s ability to maintain effective services, or restrict public access and enjoyment of County Lands.

New Encroachments of a minor or major nature shall not be permitted. No Property Owner(s) shall be permitted to build to encroach or submit plans that include Encroachments on County Lands.

All Existing Encroachments in place prior to the enactment of Norfolk County Policy CAO -13, Encroachments Upon Municipal Property, on September 10, 2002, shall not be considered new. The requirement to furnish proof that an Encroachment existed prior to September 10, 2002, is the sole responsibility of the applicant. The pre-existence of all major or minor illegal Encroachments prior to September 10, 2002, does not remove them from the requirements of this Policy.

All existing Consent Letters and Encroachment Agreements in force on the date of the passing of this Policy shall remain in force until the Encroachment is removed or until the property changes ownership. Consent Letters and Encroachment Agreements are non-transferable to a new Property Owner(s) and must be reapplied for and shall be subject to the processes set out in Policy AD-014 Encroachments Upon County Lands.

The County reserves the right to address complaints from the general public respecting illegal Encroachments on County Lands in the manner it deems appropriate. This includes the right to take no action. The County will have no comment or take any action regarding illegal Encroachments between private owners and will not mediate civil disputes of that nature.

Guidelines

An Encroachment occurs when objects are placed on, in, or under the ground space or in the air space of County Lands, either deliberately or inadvertently.

Encroachments are of concern, because they:

• May restrict or limit the use and enjoyment of County Lands, which are for the benefit of all abutting property owners, residents, tourists and visitors,
• May pose a safety hazard to the public and give rise to potential liability claims from resultant injuries,
• May damage the natural environment and undermine the County’s stewardship role in protecting natural features,
• May destabilize County Lands with resultant damage to adjacent private lands,
• May result in ratepayers absorbing costs to restore degraded County Lands,
• May interfere with existing or future County infrastructure (i.e.: drainage, highway improvements, water and/or sewer lines).

It is understood through statute law and common law that Property Owner(s) cannot claim title to or acquire any part of a County Road Allowance so encroached, by virtue of adverse possession.

Encroachments may be man-made or natural features and include, but are not limited to:

• “structural”, i.e.: construction of fences, gates, decks, buildings, pools, wells, septic systems, docks, retaining walls, parking lots and appurtenances,
• “non-structural”, i.e.: pool drainage, waste dumping, etc.,
• “vegetative”, i.e.: planting of floral or vegetable gardens, decorative landscaping including shrubs, trees, stones, etc.

New Encroachments of a major nature, established on or after August 27, 2025, shall not be permitted.

New or Existing Encroachments will also not be permitted in the following circumstances:

• The Encroachment creates an unsafe condition or poses a danger to the public, such as, but not limited to, impedes or restricts sight lines, impedes normal access, obstructs vision of traffic or pedestrians, creates operational conflicts, or creates hazards during the winter season when snow covers the ground, such as rocks, boulders, wires, lines, etc.,
• The Encroachment is over any portion of an open, travelled and maintained street or road allowance,
• The Encroachment diminishes the public’s right of usage, such as but not limited to, impedes the public’s passage and/or access along a travelled portion of a street or road allowance, or interferes or obstructs normal pedestrian/bicycle use,
• The applicant is unable to reasonably demonstrate a need for the Encroachment,
• The Encroachment interferes with the County’s intent and purpose in holding the County Lands,
• The construction of the Encroachment commenced prior to the issuance of a required Building Permit or required approval from the County,
• The Encroachment enlarges an existing Encroachment,
• Fencing to delineate an area of County Lands,
• The Encroachment adversely affects County operations, work, plans, efforts or initiatives of the County to maintain County Lands or undertake capital works projects,
• The Encroachment interferes with any utility or other similar installation located on County Lands, including underground infrastructure,
• The Encroachment creates a situation that is contrary to any County By-law, County Policy or Resolution, or any Provincial or Federal Legislation or Regulation.

Encroachments are required to be removed unless authorized by a Consent Letter or an Encroachment Agreement by the County.

In the event of the required removal of an Encroachment, the County shall provide the Property Owner(s) with written notice to remove the Encroachment; or to make mutually agreed upon arrangements for removal, by a specified date and failing which the County will be at liberty to enter upon the Property Owner’s lands, where necessary, to undertake the removal of the Encroachment in accordance with the Municipal Act, 2001, S.O. 2001, c.25, as amended from time to time. Such date shall be a minimum of thirty 
(30) days notice from the date of mailing of the notice and maybe for such a longer period as deemed appropriate based upon weather conditions, the scope of the work to be undertaken, and whether the Property Owner(s) is a seasonal resident.

Where the removal of an Encroachment is required and is not removed within the specified time, in addition to any other remedies available to it by law, the County may, upon reasonable notice to the Property Owner(s), enter upon the Property Owner’s lands where necessary, and through its agents, employees, contractors or otherwise, remove the Encroachment without any liability. Failure to pay said removal costs will result in collection efforts being pursued as per Norfolk County Policy GP-027 Accounts Receivable Collection Policy, and or, same being added to the municipal tax roll of the Applicant, to be collected in the same manner and the same priorities as municipal taxes pursuant to Section 446(3) of the Municipal Act, 2001, c.25, S.O. 2001, as amended. The Property Owner(s) shall not be entitled to any compensation of any kind for the removal of the Encroachment.

Notwithstanding the foregoing, the provisions of the Municipal Act, 2001, S.O. 2001, c.25, as amended from time to time, shall always govern.

Application for Encroachment(s)

There may be some situations that warrant the County’s consideration to authorize private Encroachments on County Lands. The following information must be submitted to commence the Encroachment Application process:

• Submission of an online services request for an Application For An Encroachment Agreement,
• Payment in full of the Encroachment Application Fee, as set out in the current year’s User Fee By-Law, adjusted on an annual basis,
• A drawing or sketch illustrating the Encroachment abutting the Property Owner’s lands,
• A copy of any previously registered Encroachment Agreement(s),
• All pertinent history of the Encroachment, i.e. how long it has been in place, purpose, need to extend, etc.

The application will be submitted to Realty Service and circulated to the appropriate operating departments for review, comment and recommendation for approval or denial.

If the application is denied, the process will stop, and the Encroachment Application Fee will not be reimbursed, in whole or in part, to the Applicant.

Guidelines for Review of Encroachment Applications

Staff will apply the following guidelines when considering Encroachments on all County Lands:

• Determine whether that part of the County Lands so encroached upon is required for County purposes.
• Determine whether the Encroachment:
  • Has been constructed inadvertently,
  • Has existed for a long period of time,
  • Is maintained and in good repair, used, or abandoned,
  • Poses a safety hazard to the public and gives rise to potential liability from resultant injuries,
  • Destabilizes County Lands with resultant damage to adjacent private lands,
  • Damages the natural environment and undermines the County’s stewardship role in protecting natural features,
  • Is a natural feature which should be preserved or protected – i.e.: mature trees and sensitive flora or fauna,
  • Conflicts with the County’s Official Plan, Zoning By-law or other applicable By-laws or Legislation,
  • Interferes with any existing, planned or proposed or possible future County improvements,
  • Compromises drainage or interferes with existing or proposed drainage works,
  • Is minor or major in nature,
  • Takes into consideration the surrounding neighbourhood.
• In the case of a structure, determine also whether the Encroachment:
  • Is constructed on a permanent foundation,
  • Is being maintained in good condition,
• Notwithstanding anything contained in this Policy to the contrary:
  • Mature trees, which do not hinder or discourage public access to or on County Lands, shall be deemed permitted Encroachments. Encroachment Agreements shall not be required for such mature trees.
  • Notwithstanding the section above, the General Manager, Public Works, and or his or her designate, may, at his or her sole discretion, require the removal of such mature trees to facilitate the completion of present or future municipal works or improvements, on or to, County Lands.

The guidelines above are not exhaustive. The intent of this Policy is to consider each Encroachment on a case-by-case basis, while having regard for the guidelines set out herein and the unique features of particular Encroachments.

Determinations as to whether an Encroachment is minor or major in nature shall be made by the General Manager, Community and Development Services, and or his or her designate, in consultation with the General Manager, Public Works, and or his or her designate, and the operating department staff that have been involved in the preliminary review process.

In cases where it is uncertain whether an Encroachment is minor or major, or a consensus cannot be reached by County staff, the Encroachment will be deemed a major Encroachment.

Encroachment, Minor

A Consent Letter formally recognizes a minor Encroachment by both the County and the Property Owner(s) and clearly establishes the terms and conditions specific to the permission being granted, including but not limited to, the provisions that permission for the Encroachment is being granted until such time as it is required to be removed by the County, in its sole discretion. A Consent Letter shall be required for all permitted minor Encroachments.

As per the Application Process outlined herein, once the minor Encroachment has been approved, the Property Owner(s) shall submit a survey prepared by an Ontario Land Surveyor, satisfactory to the General Manager, Community and Development Services, and or his or her designate, clearly identifying the extent of the Encroachment, which will serve to assist in eliminating subsequent enlargements of the Encroachment without permission. The Property Owner(s) shall be responsible for all costs associated with 
the preparation of the plan of survey.

The Property Owner(s) will be responsible for all costs associated with the deletion from title of any previously registered Encroachment Agreement(s) as set out within this Policy.

The Property Owner(s) is fully responsible for the Encroachment and neither the County nor any utility company will be responsible for damage caused thereto or the complete loss of the Encroachment, regardless of how caused.

Fees to be paid:

• Encroachment Application Fee, paid at the time of the submission of the Encroachment Application, pursuant to the County’s User Fee By-Law, revised on an annual basis.
• Annual Fee, pursuant to the County’s User Fee By-Law, revised on an annual basis. Said Annual Fee to be added to the municipal tax roll of the Property Owner(s), and to be collected in the same manner and the same priorities as municipal taxes.

Encroachment, Major

An Encroachment Agreement is a legally binding document that formally recognizes a major Encroachment by both the County and the Property Owner(s) and clearly establishes the terms and conditions specific to the permission being granted, including but not limited to the provisions that permission for the Encroachment is being granted until such time as it is required to be removed by the County, in its sole discretion. 

An Encroachment Agreement shall be required for all permitted major Encroachments. The County entering into an Encroachment Agreement with the Property Owner(s) shall be approved by Council.

As per the Application Process outlined herein, the Property Owner(s) shall submit a draft Reference Plan, prepared by an Ontario Land Surveyor, satisfactory to the General Manager, Community and Development Services, and or his or her designate, clearly identifying the extent of the Encroachment, which will serve to assist in eliminating subsequent enlargements of the Encroachment without permission. The Property Owner(s) shall be responsible for all costs associated with the preparation of the draft Reference Plan.

The General Manager, Community and Development Services, and or his or her designate, will be responsible for the preparation of the Encroachment Agreement. The Property Owner(s) will execute the agreement, and the Mayor, and or his or her designate, and the County Clerk, and or his or her designate, will execute the agreement on behalf of the County.

The Reference Plan will be deposited on title, and the Encroachment Agreement will be registered on the Property Owner(s) lands as well as the affected County Lands. Registration is effective notice to subsequent Property Owner(s), and provides an enforceable, clear recourse to the County in the event of default by the Property Owner(s) of any of the provisions, including the provision of removal of the Encroachment.

The Property Owner(s) shall be responsible for all costs associated with the deposit of the Refence Plan and registration of the Encroachment Agreement on title.

The Property Owner(s) will be responsible for all costs associated with the deletion from title of any previously registered Encroachment Agreement(s) as set out within this Policy.

The Property Owner(s) is fully responsible for the Encroachment and neither the County nor any utility company will be responsible for damage caused thereto, or the complete loss of the Encroachment, regardless of how caused.

Fees to be paid:

• Encroachment Application Fee, paid at the time of the submission of the Encroachment Application, pursuant to the County’s User Fee By-Law, revised on an annual basis.
• Annual Fee, pursuant to the County’s User Fee By-Law, revised on an annual basis. Said Annual Fee to be added to the municipal tax roll of the Property Owner(s), to be collected in the same manner and the same priorities as municipal taxes.

Costs

Where a Consent Letter is authorized by staff, or an Encroachment Agreement is authorized by Council, the Property Owner(s) shall be responsible for all associated costs, including but not limited to:

• The cost of a plan of survey (for a Consent Letter) prepared by an Ontario Land Surveyor,
• The cost of a Reference Plan (for an Encroachment Agreement) prepared and deposited on title by an Ontario Land Surveyor,
• All title search costs,
• All fees payable for the registration of the Encroachment Agreement and any other documents required to be registered on the title of the Property Owner(s) property and the County Lands,
• All external legal fees and disbursements incurred by the County, if applicable,
• Any other fees, costs, charges and taxes which the County may incur relating to the processing of the Encroachment Application,

all of which shall be in addition to the Encroachment Application Fee(s) and Annual Fee payable as set out herein.

Should an Applicant withdraw from the process at any time, for any reason, or should Council deny the Encroachment request, all outstanding fees and costs as at the time, will become due and payable by the Applicant. Failure to pay said outstanding fees and costs will result in collection efforts being pursued as per Norfolk County Policy GP-027 Accounts Receivable Collection Policy, and or, same being added to the municipal tax roll of the Applicant, to be collected in the same manner and the same priorities as municipal taxes pursuant to Section 446(3) of the Municipal Act, 2001, c.25, S.O. 2001, as amended.

Insurance and Indemnity

In cases of all approved Encroachments, both minor and major, with the County, the Property Owner(s) must provide insurance in a form satisfactory and acceptable to the Risk Manager and or his or her designate, at the time the Consent Letter is issued, or the Encroachment Agreement is signed by the Property Owner(s).

The Property Owner(s) must be capable of holding adequate insurance in perpetuity and indemnifying the County from all claims that may result by reason of the existence of the Encroachment.

The Property Owner(s) will be required to maintain property damage and general liability insurance in the amount of $2,000,000 (individual) or $5,000,000 (corporation), or such higher amount as determined by the County as a condition of approving an Encroachment, and The Corporation of Norfolk County, must be named an additional insured on such policy. Specific coverages required under such policy may be different 
for individual applicants and corporate applicants. These insurance requirements will also be reflected in the Encroachment Agreement. The onus is on the Property Owner(s) to carry the insurance in perpetuity and to provide the County with a certificate of insurance at renewal on an annual basis, or such other frequency as reasonably required by the County.

Property Owner(s) are required to give the County ten (10) days notice, in writing, in advance of the sale of their property.

Termination of Encroachment Agreements

To terminate an existing or expired Encroachment Agreement with the County, the Property Owner(s) must have their solicitor submit the appropriate draft Discharge of an Interest or Application General document, along with proof that the Encroachment no longer exists, to the General Manager, Community and Development Services, and or his or her designate. Once approved, the Property Owner(s) solicitor will register the discharging document on title and provide a copy of same to the County. The Annual Fee will not cease until proof of the registered discharge document is provided to the County. There will be no refund, in whole or in part, of the Annual Fee for discharged Encroachment Agreements. 

Any expired Encroachment Agreement, where the Encroachment still exists, will be required to be renewed through the process set forth in this Policy.

Communication

Policy AD-014 Encroachments Upon County Lands will be available to Council members, staff and members of the public. Regular communication will be maintained between Realty Services and operating departments to ensure understanding and adherence to the Policy. Staff will be in communication with Property Owner(s)/Applicant(s) throughout the process.

Evaluation

Policy AD-014 Encroachments Upon County Lands shall be reviewed by Realty Services every five (5) years.

Legislative Reporting Requirements

The Municipal Act, 2001, S.O. c. 25, as amended, - Section 270 (1) 1, which requires municipalities to have policies in place on the sale and disposition of land.

Application Form

Application can be found directly online: Request for an Encroachment Agreement. For more information, visit the Encroachment Agreements webpage.