The Protection of Trees: The Vast & Unwieldy Topic of Bylaws

Issue: 
Sept-Oct 2012

 

The Municipal Act (2001, s.135) is the current provincial statute that allows lower tier municipalities to create tree bylaws, including those governing the protection of individual trees. The province apparently no longer cares about individual trees unless they’re of an endangered species. Often there are two municipal bylaws, one each for public and private trees.

In 2010, I had the honour of temporarily serving as Oakville’s tree protection inspector. It was hugely interesting to me to work “on the other side,” since most of my experience with these bylaws, both before and since that Oakville gig, has been as the consultant who delivers various arborist reports to a given municipality. As someone who has now delved into both sides of a tree bylaw’s implementation, I have had lots of opportunity to ruminate about these bylaws, their intent, their application, their effectiveness, and some of the ongoing unresolved real-world issues that surround them.

In prepping this article, I interviewed urban forestry and communication staff from three municipalities, as well as a couple of fellow consulting arborists. I won’t name the individuals, but I would like to thank and acknowledge them for sharing their time and their comments. There’s no shortage of controversies here, so pour yourself a cold one, sit back, and let’s see if we can clearly define and, maybe, offer some solutions to the current state of things.

1) BYLAW ISSUES
My first idea for this article was to create a massive spreadsheet that summarized the essential stipulations of a tree bylaw for each municipality that had such a law. I figured I would just visit a bunch of municipal websites, download or read the bylaw, and pull out the data that I figured was most relevant to us arborists. In the end, mainly because of time constraints, I was forced to settle on a sampling of eight cities (pdf of table). The issues below are based on that sample and my interviews. Decide for yourself which issue is the most ridiculous.

Spotty Communication. Online information about a tree bylaw was often incomplete, hard to find, or simply unavailable. Phone calls always ended with voicemail or being forwarded to another person. To their credit, I did eventually get return calls from staff in three municipalities. One person returned my call only to tell me that, even though they were tree bylaw enforcement staff, they weren’t allowed to answer my questions and that I needed to contact communications staff. Silly me ... I thought effectively communicating a bylaw would be one of the main responsibilities of the person(s) enforcing it.

Shared Trees. Almost no one had a policy on this perennial source of grief and conflict. A couple municipalities go so far as requiring the affected neighbour to be “notified.” It strikes me as a little weird that a municipality involves itself in the private properties of its citizens by creating a bylaw for private trees, then basically insists on remaining uninvolved when a neighbourly dispute arises over a tree that straddles two private properties. Alas, property rights can be a delicate matter. More on that later.

Codominant Trees. Only half of the sample offered a clear guideline for how they wanted codominant stems to be measured and reported. Not offering a guideline here will only result in inconsistent reporting by consultants.

DBH Measurement. If you thought diameter at breast height (DBH) and minimum tree size were a straight-forward standard, think again. This was by far the most inconsistent criterion in my sample, and its just one of those little things that happens when jurisdictional responsibility gets relegated to a municipal level. Unfortunately, as the summary table shows, where and when to measure DBH is not the only thing that municipal tree bylaws are inconsistent about.

Exemptions. Giving a permit exemption to the first four trees per year is bogus. If you waited until almost the end of the year, you could remove eight trees within a couple of days. I don’t see how this helps achieve long-term goals for tree density (i.e. canopy cover) and it smacks of capitulation to property rights zealots. Imagine if every private property owner in Oakville and Mississauga actually indulged that bylaw-enshrined right this coming December 31.

Chronic Understaffing. There’s no point in having any sort of law if it can’t be adequately enforced. In some cities, a generic bylaw officer is all they’ve got. This person will write a parking ticket, then turn around and measure a TPZ (tree protection zone). Lack of dedicated tree bylaw staff is certainly a concern, but so is not having enough inspectors to properly administer and enforce the bylaw. If your city has one tree protection inspector, millions of trees and 1,000+ tree and site alteration permit applications per year, there is no way one person is going to be able to effectively deal with all the inspections, phone calls, site meetings, emails, arborist reports, investigations, charges and court appearances. Lack of money is the usual excuse, but that’s a red herring since its permit fees, not taxes, that cover the costs of employing inspectors. Pretty much everyone I spoke with agreed that the number of permit applications is increasing annually.

2) THE ROLE OF INSPECTORS
The primary roles of tree protection inspectors are ensuring compliance and enforcement. I make this distinction because, to my mind, the two are not necessarily the same thing. When ensuring compliance, an inspector is essentially helping applicants adhere to the requirements of the bylaw. Enforcement measures, typically in the form of fines or stop work orders, are the consequence of someone’s subsequent failure to comply with one or more obligations under the bylaw. Beyond this day-to-day stuff, the superordinate role of the inspector is to assist the municipality in realizing whatever long-term goals it has set with respect to overall species makeup and canopy cover.

3) THE ROLE OF CONSULTANTS
Individuals who provide arboricultural consulting services, in the context of a tree bylaw, typically see themselves as helping their clients obtain whatever permit(s) they need. It is the consultant’s right to do this kind of work in City X because she/he possesses the credential that the bylaw says makes him/her qualified. The product is almost always an arborist report, be it a condition assessment, an amenity appraisal, an inventory, a preservation plan or some combination thereof.

This is actually a blinkered view of consulting arboriculture when it comes to municipal tree bylaws. As a report-writing arborist, you will be doing your best work when you pretend that you’re the municipal staff charged with realizing the auspices of the local tree protection bylaw. 

The fact of the matter is that, when you choose to wear the hat of an arboricultural consultant, you sort of accept the privilege of being a surrogate inspector for the municipality. The municipality makes your client hire you to be its eyes for the proposed project or tree removal in question. Mess with that privilege at your own peril because it’s ultimately a matter of the municipal representative’s trust in your competence and neutrality.

4) PROPERTY RIGHTS
There’s a very good reason why cities avoid getting involved in landowner disputes over shared private trees and why some private tree protection bylaws get watered down with “freebie” removals: lots of people get downright militant when it comes to their property rights. Just ask a member of your nearest rural landowner association (or see Pat Kerr’s new bit on page 12!).

I’ll admit that, though I appreciate why a landowner might oppose a private tree bylaw, I don’t get why anyone would adamantly insist that private trees should be exempt from regulation. We could easily fill this magazine with a list of things you legally can’t do with, or on, your private property without government permission. Why get all up in arms about having the destruction of private trees added to that list?

5) A SOLUTION?
To conclude this discussion, I’ll go out on a limb (pun intended) and share my big idea for solving the catch-22 of shared trees and for generally improving tree protection at the municipal level. Bear in mind that I’m not a lawyer, so I would ask that you cut me some slack and just indulge some of my idealism. In short, I don’t actually know if this grandfathering idea would fly:

a) Create a private tree bylaw (if you haven’t yet got one).

b) Maintain and strengthen your private tree bylaw (if you’ve already got one).

c) Add a regulation or policy that all private landowners can do whatever they want with respect to any tree they plant and retain on the property while they own it. If the landowner wants to cut that tree down again, no permits, no fees, no municipal interference. This should help keep landowners who are zealous about their property rights happy.

d) All existing trees on a given property get grandfathered to the municipality in the billionth of a nanosecond between when the property in question changes ownership.

e) The new owner has the same property rights with respect to new trees as the previous landowner, but all the trees that come with the property are not theirs to do with as they please.

f) The new landowner assumes stewardship of the trees that came with the property. Those trees are now all publicly-owned, but this would not mean that the municipality assumes all liability and responsibility for them. General liability for their care can remain with the landowner. The new landowner’s relationship with these trees would be analogous to well water. It’s your water to enjoy and the government will help assess it for you, but the onus to ensure your water supply remains healthy is yours alone. You have to collect and submit the samples to your friendly neighbourhood health unit, and you pay for any treatments the water might need, but you never own the underlying aquifer.

Democratic governments at all levels, in countries around the world, invest tremendous effort in trying to balance individual rights and freedoms with the collective good. The simple fact is that, these days, the values of trees, be they public or private, are seen more and more in terms of their contribution to the collective good, hence the bylaws to protect them.  

For Further Investigation...

Fitzgibbon, J. and S. Summers. Report on Tree Conservation Bylaws in Southern Ontario. Guelph, ON. School of Rural Planning and Development, University of Guelph, 2002.

OMNR. Extension Notes - Forest Conservation Bylaws in Ontario. Toronto, ON. Queen’s Printer for Ontario, 2005.

OUFC. Securing the Future of Heritage Trees - A Protection Toolkit for Communities. Toronto, ON: Ontario Urban Forest Council, 2011.

OUFC. Tree Bylaw Information Package - Unofficial Courtesy Information. Toronto, ON. Ontario Urban Forest Council, Forest Conservation Bylaw Committee, 2011.

OntGov. The Municipal Act, 2001, s.135- s.141. e-laws website, Sept.18, 2012.

 

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