Report to/Rapport
au :
Emergency
and Protective Services Committee
Comité des services de protection et d'urgence
Submitted by/Soumis par : Deputy
City Manager,
Community and Protective Services / Directeur municipal
adjoint,
Services communautaires et de protection
Contact/Personne-ressource : Susan Jones,
Director, By-law Services / Directrice,
Règlements municipaux
580-2424, ext/poste 25536, Susan.Jones@ottawa.ca
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SUBJECT: |
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OBJET
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SERVICES
DES RÈGLEMENTS MUNICIPAUX – RÈGLEMENT SUR LA NOMINATION D’INSPECTEURS DE
CLÔTURES |
REPORT
RECOMMENDATION
That the Emergency and
Protective Services Committee recommend Council approve an Appointment to Fence
Viewers By-law, attached as Document 1, with an effective date of July 1st,
2004.
RECOMMENDATION DU RAPPORT
Que
le Comité des services de protection et d’urgence recommande au Conseil
d’approuver un règlement sur la nomination des inspecteurs de clôtures,
ci-annexé en tant que Document 1, qui prendra effet le 1er juillet
2004.
EXECUTIVE
SUMMARY
Assumptions and Analysis:
The
Appointment of Fence Viewers By-law includes the following:
§
Establishes a cost recovery administrative charge of $350,
§
Establishes times and dates for which fence viewers will not attend
disputes (winter months), and
§
Establishes areas within the City of Ottawa for which fence viewers
will arbitrate disputes.
Financial Implications:
The Line Fences Act
permits a municipality to affix a reasonable administrative fee in order to
recover costs in relation to proceedings under the Act. The proposed fee
within the draft By-law is $350 [payable at the time the application for fence
viewers is submitted].
Public Consultation/Input:
A notice advertising the
proposed report, date and time of the Emergency and Protective Services
Committee meeting appeared in the Citizen and Le Droit on May 20th
and 27th, 2004.
RÉSUMÉ
Hypothèses
et analyse :
Le règlement sur la
nomination des inspecteurs de clôtures aura notamment pour objet :
§
d’établir des frais administratifs de
recouvrement des coûts de 350 $
§
d’établir un calendrier indiquant les
dates/heures auxquelles les inspecteurs de clôtures ne seront pas tenus
d’arbitrer les différends (mois d’hiver), et
§
de définir les secteurs dans la ville d’Ottawa
où les inspecteurs de clôtures seront habilités à arbitrer les différends.
Répercussions
financières :
En
vertu de la Loi sur les clôtures de bornage, une municipalité peut
imposer des frais administratifs raisonnables aux fins de recouvrement des
coûts découlant de poursuites aux termes de la Loi. Les frais proposés dans le
projet de règlement est de 350 $ (payable au moment de la présentation de
la demande d’inspection).
Consultation
publique / commentaires :
Un
avis faisant état du projet de rapport, de la date et de l’heure de la réunion
du Comité des services de protection et d’urgence a été publié dans les
quotidiens The Citizen et Le Droit, éditions du 20 et du 27 mai 2004.
BACKGROUND
The City of Ottawa has
inherited, from former municipalities, various Appointment of Fence Viewer
By-laws. Currently, there are a total of eight (8) former municipal By-laws
which relate to the appointment of fence viewers. By-laws passed by the
Councils of old municipalities remain in effect and continue to be enforced
within the respective boundaries in which they were enacted until they are
repealed, amended or replaced by City Council.
The Line Fences Act applies to virtually all privately owned lands within Ontario. The Act does not apply to lands owned by the Government of Canada and its agencies, or to lands owned by railway companies. The City of Ottawa is required under the Line Fences Act to appoint fence viewers to carry out the provisions of the Act.
Any resident requesting a
fence viewing under the Act is entitled to the service. When one
property owner wants to construct, repair or maintain a fence on a common
boundary, but is unable to reach an agreement with an abutting property owner
on the type of fence to be erected, the sharing of costs of the fence to be
constructed, or both, the Act provides a procedure for arbitrating a
disagreement between the affected parties. The City’s appointed fence viewers
are required to look at the fence line and arbitrate as to what portion each
owner shall, at his or her own costs, construct, reconstruct, repair, or
maintain the fence.
Once the municipality is in receipt of a formal written request for a fence viewing from a property owner, all applicable abutting property owners and three fence viewers are notified by way of registered mail of the date and time of the meeting for the arbitration. This notice is sent at least a full week in advance of the meeting.
At the arbitration meeting, the three fence viewers examine the premises and hear testimony from both (or more) property owners and, if applicable, any witnesses. The duties of an individual appointed as a fence viewer are as follows:
§ to examine the premise and decide the location of the fence
§ to decide the style/description of the fence to be constructed
§ to dictate the appropriate materials to be used in the construction of the fence
§ to set the date by which the construction is to be completed
§ to designate the portion/sections of the fence each property owner is to maintain
§ to designate the appropriate cost(s) to each adjoining property owner named in the dispute
The fence viewers then leave the premises to meet and determine their decision. The decision once confirmed by the fence viewers is then sent to the applicable property owners.
Should either party involved in the dispute wish to challenge the fence viewers decision, there is an appeal process outlined in the Line Fences Act.
The Line Fences Act establishes the principle that, if a landowner wants a line fence to mark the boundary between his/her land and the property of an adjoining owner, that landowner is entitled to construct a fence on the boundary line of the property. If, however, neither property owner wants a fence, one is not necessary.
The spirit and intention of the Line Fences Act, which was introduced in the 1870’s was to mediate disputes between rural property owners who required fencing to protect livestock and crops. The application of this legislation however over the past twenty years has been mainly used in urban settings to settle neighbor disputes at a significant cost to the ratepayer. As a result, the Province of Ontario amended the Municipal Act to allow any municipality to enact a by-law to opt out of all, or portions of the municipality from the Line Fences Act.
Subsequently, the former
City of Ottawa enacted a Fence Viewers By-law that stipulated that fencing
disputes would only be administered under the Line Fences Act in rural
areas. The City did not involve itself with fence line disputes that occurred
in an urban/suburban setting. Instead, disputes such as these were resolved by
the effected property owners without municipal intervention, and where
necessary pursued through the civil courts. It was deemed that all costs
associated with the dispute and resolution of fence disputes in urban/suburban
settings should be more appropriately borne by the property owners and not the
taxpayers at large.
After amalgamation, the new
City as a matter of policy continued providing fence viewing services in the
rural areas of the municipality. However, as per the requirements of the Municipal
Act, the City of Ottawa must pass a by-law that specifically states where
it will provide this service.
Due in part to the booming housing construction market, the Community and Protective Services Department has received a marked increase in requests for arbitration in fence line disputes within the urban areas of the City. Due to limited staff resources, the Department is unable to provide fence-viewing services to all areas of the City and is recommending that fence viewer services be restricted to the rural areas of the municipality, as originally intended.
The Line Fences Act also states that the Council of every municipality may by way of by-law, fix its reasonable administrative fees to be paid to the municipality in relation to proceedings under the Act. All but one Fence Viewer By-law enacted within the former municipalities had a fee associated with the service. The City of Ottawa had the most current By-law (1998) with a $250.00 fee attached for each fence viewing. The other municipal regulations stipulated a flat fee for each fence viewer (a total of three (3) fence viewers are required for each fence viewing), the fees ranging from $25 - $61 per fence viewer for each dispute resolution. However, these fees have not been reviewed for more than 10 years and no longer accurately reflect the cost associated with providing such a service.
Fence viewers can remain on-sight for several hours in order to gather the necessary information to make a fair and educated decision on the fence line dispute in question. Further time is also required to analyze all of the data collected and arrive at a unanimous consensus as to the type of fence to be installed, the timelines for when the structure is to be completed, and the division of the associated costs for the erection of the fence. There may also be a requirement to revisit the properties in questions. Because the costs connected with the preparation of documents and inspection of the property in question can be significant, Community and Protective Services proposes an administration fee of $350 in order to recover costs associated with the administration of the Line Fences Act.
The new By-law will continue the tradition of the former City of Ottawa by selecting three municipal positions to be identified as fence viewers. This decision was made for consistency purposes and also for the professional knowledge the individuals within these positions bring to the issues of fence line disputes. The department recommends that the Directors of Building and By-law Services as well as the Manager of Enforcement and Inspections be appointed as the city’s Fence Viewers.
In recognition that unsuitable weather conditions in the winter months may make it impractical to conduct fence viewings, it is recommended that the by-law not address fence line arbitration matters between November 1st of one year and March 31st of the following year.
FINANCIAL IMPLICATIONS
The Line Fences Act permits a municipality to affix a reasonable administration fee in order to recover costs in relation to proceedings under the Act. Community and Protective Services recommend a cost recovery fee of $350 for each fence viewing.
ENVIRONMENTAL IMPLICATIONS
There are no environmental implications
associated with this by-law.
The proposed regulations
will continue to ensure that the Line Fences Act is applicable in the
rural areas of the City.
CONSULTATION
On May 20th and 27th, 2004, a notice advertising the proposed report, date and time of the Emergency and Protective Services Committee meeting at which the report will be discussed appeared in the Citizen and Le Droit.
DISPOSITION
Community
and Protective Services Department for implementation. Legal Services Branch to process the
proposed by-law to Council for enactment.
Document 1 – Fence Viewers By-law
DOCUMENT 1
BY-LAW NO. 2004-
A by-law of the City of
Ottawa respecting the appointment of
fence viewers.
The Council of the City
of Ottawa enacts as follows:
1. In this by-law,
“City” means the
municipal corporation of the City of Ottawa or the geographic area of the City
of Ottawa as the context requires;
“Line Fences Act”
means the Line Fences Act, R.S.O. 1990, c. L.17, as amended;
“old municipality” means the old municipalities of the City of Cumberland, the City of Gloucester, the Township of Goulbourn, the City of Kanata, the City of Nepean, the City of Ottawa, the Township of Rideau, the Township of West Carleton, Township of Osgoode, the Village of Rockcliffe Park and the City of Vanier and “Old Municipalities” has a similar meaning.
2. (1) The following individuals appointed to act as fence viewers in accordance with the powers and procedures of the Line Fences Act:
(a) the Director, By-law Services Branch of the Community and Protective Services Department;
(b) the Director, Building Services Branch of the Planning and Development Department;
(c) the Manager of Enforcement, By-law Services Branch of the Community and Protective Services Department.
(2) No arbitration or other proceeding requiring the attendance or re-attendance of a fence viewer shall be scheduled between the 1st day of November and the 31st day of March in the next following year.
3. Where an application is made under the Line Fences Act, an administrative fee of Three Hundred and Fifty Dollars ($350.00) shall be paid to the City at the time the application is submitted.
4. The provisions of this by-law shall apply only to lands in the City zoned agricultural, general rural, rural-agricultural or marginal resource in the applicable zoning by-law of the old municipality or any successor by-law thereto.
5. The following by-laws of the old municipalities are repealed:
(a) By-law Number 58-94 of the old Corporation of the City of Ottawa entitled “A by-law of The Corporation of the City of Ottawa respecting fence-viewers and fences”;
(b) By-law No. 5-92 of the old Corporation of the City of Nepean entitled “Being a by-law of The Corporation of the City of Nepean to repeal By-law 4-89 and to appoint Fenceviewers for the City of Nepean”;
(c) By-law No. 31 of 1989 of the old Corporation of the City of Gloucester entitled “A By-law to appoint fenceviewers for the City of Gloucester”;
(d) By-law No. 22 of 1991 of the old Corporation of the township of West Carleton entitled “Being a by-law to appoint fenceviewers for the Township of West Carleton, and to fix the per diem remuneration to be paid to the fenceviewers”;
(e) By-law No. 5-89 of the the old Corporation of the Township of Goulbourn entitled “Being a by-law to appoint fence viewers”;
(f) By-law 19-1989 of the old Corporation of the Township of Osgoode entitled “Being a By-law to regarding the appointment of fence viewers”;
(g) By-law No. 114-89 of the old corporation of the City of Kanata entitled “Being a By-law respecting the appointment of Fence Viewers for the City of Kanata”; and
(h) By-law Number 69-92 of the old municipality of the City of Cumberland respecting fence viewers.
ENACTED AND PASSED this day of , 2004.
CITY
CLERK MAYOR