Maintenance of a Brick Wall - 2 Drumsnab Road (Midtown)

The Toronto Community Council recommends the adoption of the following report (November 30, 1998) from the Manager of Right of Way Management, Transportation Services, Works and Emergency Services:

Purpose:

To report on the homeowner's request to maintain a 2.0 m high brick wall within the City's right-of-way on Drumsnab Road which is not permitted under the former Metro By-law No. 211-74. As this is a request for a variance from the by-law, it is scheduled as a deputation item.

Funding Sources, Financial Implications and Impact Statement:

Not applicable.

Recommendations:

It is recommended that:

(1)City Council approve the maintenance of the 2.0 m high brick wall within the City's right-of-way, provided that the owner enters into an encroachment agreement with the City of Toronto; and

(2)the agreement be prepared in accordance with procedures established by the former City of Toronto and in accordance with Municipal Code Chapter 313, Streets and Sidewalks;

Background:

At its meeting of July 29, 1997, the former Metro Planning and Transportation Committee received a communication from Councillor Bossons in support of a request from Mr. J. Layton, the owner of 2 Drumsnab Road, to install a 2.0 m high brick wall encroaching approximately 1.5 m onto the abutting former Metro road right-of-way. The Committee referred the matter to the former Commissioner of Transportation for a report to be submitted to the next meeting of the Planning and Transportation Committee.

In a report dated August 20, 1997, the former Commissioner of Transportation indicated that because of the permanency of a brick wall, in lieu of the brick wall proposed that a temporary wood fence could be permitted. The report therefore recommended that authority be granted for a temporary wooden fence subject to the owner entering into an agreement for the maintenance of the fence.

At its meeting of September 24 and 25, 1997, the former Council of the Municipality of Metropolitan Toronto adopted the August 20, 1997 report and requested the former Commissioner of Transportation to submit a report to the appropriate Standing Committee of the new City of Toronto Council on the feasibility of permitting the owner of 2 Drumsnab Road to purchase the Metro property which would be enclosed by the temporary fence.

Comments:

Mr. Jeff Layton, owner of 2 Drumsnab Road, Toronto, Ontario M4W 3A5 requested permission to construct and maintain a 2.0m high brick wall within the City's right-of-way to enhance privacy of his property and minimize some of the noise which carries from the nearby Bayview Avenue extension. The applicant felt that a brick wall would be more effective in minimizing the noise than a wooden fence. After further consideration, it was determined that the brick wall could be permitted.

Mr. Layton was informed of the regulations pertaining to the construction of the brick wall including the requirement that the owner must enter into an agreement for the maintenance of the brick wall within the City's right-of-way. At his request, he was provided with a copy of the standard form of agreement for his review. In reviewing the agreement, Mr. Layton expressed concern about Clause 9 of the standard agreement which indicates as follows:

"If, due to presence of the Encroachment, the City or any public utility company or system incurs any additional costs in the repair, maintenance or construction of its facilities or services, the Licensee shall pay all such additional costs to the appropriate party, immediately upon demand. The decision of the Commissioner as to the amount of such additional costs, if any, shall be final and binding."

In our letter of July 10, 1998, Mr. Layton was advised that this clause is a standard requirement in the agreement to protect the City's interests.

Subsequently, a permit was issued for the construction of a 2.0m high brick wall within the City's right-of-way in front of 2 Drumsnab Road with the condition that the owner enters into an agreement for the maintenance of the wall, which was signed by Mr. Layton on August 21, 1998.

As indicated above, the brick wall has been constructed in accordance with the conditions set out in the construction permit with the exception of Mr. Layton signing an encroachment agreement. In a letter dated October 4, 1998, Mr. Layton requested that clause 9 of the standard form of agreement be deleted. The subject clause requires that the owner be responsible for any additional costs that may be incurred by the City or any public utility company or system in the repair, maintenance or construction of its facilities or services due to the presence of the encroachment. Mr. Layton is concerned that this clause could result in unfair or unreasonable costs.

This clause is a standard provision that all owners are required to agree to if they wish to maintain an encroachment on a public highway. The basis of this requirement is that neither the City nor utility company which maintain existing utilities within the public highway should be required to bear additional expenses in maintaining and servicing their facilities because an owner has constructed an encroachment on, over or near those public utilities.

Conclusions:

As the brick wall does not adversely impact the City's right-of-way, approval could be granted for it to remain, subject to the owner entering into the standard form encroachment agreement.

Contact Name and Telephone Number:

Fani Lauzon, 392-7894