(Report dated March 19, 1998, addressed to Toronto Community Council, from Toronto Community Council Solicitor.)

Subject:Delegation of Fence Approval Process - Legal Issues

Purpose:

To report on the following as requested by the Toronto Community Council at its meeting on February 18, 1998:

(1)Whether the issue of the Fence By-law can be delegated to a Fence By-law process or to the Committee of Adjustment;

(2)How to achieve this; and

(3)The desirability of doing so.

Funding Sources, Financial Implications and Impact Statement:

Not Applicable.

Recommendations:

That this report be received by the Toronto Community Council for information.

Council Reference/Background/History:

The Toronto Community Council (the "TCC"), at its meeting of February 18, 1998, requested that the appropriate officials report to its meeting of April 1, 1998 on various issues with respect to the delegation of approvals for fences to be located on City boulevards. After discussion with the Commissioner of Works and Emergency Services, it was decided that it would be appropriate that I report back on the issue of the potential delegation of Fence By-law approvals and the process or body which might undertake such approvals.

The Commissioner shall be preparing a separate report with respect to by-law amendments requested by the TCC to prohibit privacy fences or screening fences on corner properties over and above a height of 42 inches.

At the present time, fences erected on boulevards on City streets within the boundaries of the former City of Toronto are dealt with as encroachments under Municipal Code Chapter 313, Streets and Sidewalks. Section 313-33 of Chapter 313 delegates to the Commissioner the ability to approve the issuance of a permit with respect to a fence provided that it complies with certain criteria. Where the application does not comply with these criteria, the Commissioner is presently required to report to TCC for its consideration and recommendations to City Council.

I have been asked to discuss whether this approval authority may be delegated to a fence by-law process or the Committee of Adjustment.

Comments and Discussion:

Authority to Delegate: As a general matter, the Council of a municipality may delegate only those powers which can be said to be of an "administrative" or "ministerial" nature. It cannot delegate powers which are of a legislative or discretionary nature. The type of delegation presently contained in ' 313-33 of Municipal Code Ch. 313 is "administrative " in that the Commissioner is given the authority to approve and issue permits provided that certain criteria previously established by City Council are met. Where these criteria are not satisfied, the Commissioner must refuse the application and the applicant may appeal this refusal to City Council for its consideration.

It is my opinion that Council cannot legally delegate to an official or some other body, with the possible exception of the Committee of Adjustment (discussed below), the ability to exercise discretion (i.e. the granting of exemptions) with respect to the issuance of permits.

Council may therefore wish to consider whether the criteria for fence encroachments need to be reviewed again or adjusted (e.g. to increase or remove the restriction on the height of fences) so as to allow the Commissioner to issue a permit in more cases, with fewer appeals necessary to Council.

Creation of an Arbitration Process: I assume that the "fence by-law process" referred to in the report request is the arbitration process established for dealing with division fences (i.e. boundary fences) between private property within the former City of Toronto. This process is specifically authorized by provincial statute (i.e. City of Toronto Act, 1972 (No. 2)) and allows for the formation of a Board of Arbitrators to arbitrate and decide fence disputes. It is important to note that the criteria applicable to fences (heights, description, etc.) must still be complied with and the use of this process relates primarily to the apportionment of costs between owners benefitting from a fence. Legislative authority would have to be sought to establish a similar process with respect to fence encroachments on the public highway.

Use of the Committee of Adjustment: Minor variances from the height restrictions for fences on private property as contained in Municipal Code Ch. 182, Fences, may be granted by the Committee of Adjustment on an application under the Planning Act.

Subsection 45(3) of the Planning Act allows Council to empower the Committee of Adjustment to grant variances from a by-law which "implements an official plan". In the case of division fences separating private property, a provision was therefore added to the Official Plan of the former City of Toronto as follows:

"It is the policy of Council to prescribe by by-law the height and description of lawful fences."

Although NOT recommended, Council could in a similar fashion empower the Committee of Adjustment to grant minor variances from a by-law prescribing the height and description of fences on the public highway on the basis that such a by-law also operates to implement the above Official Plan policy.

There are a number of concerns associated with such a proposal:

(a)The minor variance process was created to deal with regulations applicable to private property and contains a right of appeal to the Ontario Municipal Board. One must ask whether it is appropriate to expect the Committee of Adjustment and the OMB to deal with the matter of encroachments upon City property, which are traditionally the concern of City Council.

(b)Unlike the City, the Committee and the OMB do not have a vested interest in the impact which such applications may have upon City policies with respect to the use of the public highway which are designed to protect public safety and the utility of the public highway. Therefore, applications to the Committee are likely to contain proposals for variances greater than those which might be proposed to City staff.

(c)Section 45 of the Planning Act contemplates an application by the "owner" of the land which is affected by the minor variance being sought. In the case of a minor variance from restrictions applicable to the public highway, it would likely be necessary that Council authorize the owner of adjacent property to make the application as an agent for the City of Toronto. The implications of this are as follows:

(i)The application would in effect be an application by the City of Toronto, through its agent.

(ii)In the event that the City was not satisfied with a variance granted by the Committee of Adjustment to an applicant (agent), it would clearly be extremely awkward, if not impossible, for City Council to authorize City staff to appear on an appeal to the OMB with respect to an application by an authorized "agent" of the City,

(d)An application granted by the Committee of Adjustment could establish a precedent which would allow similar minor variances to be obtained by other owners in the area, thus removing the effectiveness of the initial regulations established by the by-law from which the minor variance was sought. City Council could therefore lose control over the use of its own property.

(e)There is little benefit in delegating authority to the Committee unless Council is prepared to turn over its decision-making authority to the Committee of Adjustment and grant every owner the right to apply. Any attempt to control the making of applications by granting the authority to make applications on a case-by-case basis or rescinding such authority once given would likely result in Council being forced to review and "approve" applications made to the Committee.

Conclusions:

Legal authority would need to be obtained for City Council to completely delegate to an official or other body its responsibility to approve fence applications which do not meet specified criteria. While the Committee of Adjustment could in theory be authorized to deal with such applications on a "minor variance" basis, this approach would not be desirable for the reasons stated above. I would therefore recommend that this report be received by the Toronto Community Council for information.

Contact Name:

Edward Earle,

Legal Services

392-7226

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