STAFF REPORT

March 1, 2000

To: Planning and Transportation Committee

From: Paula M. Dill, Commissioner, Urban Development Services

Subject: Harmonization of the Division Fence By-law

Purpose:

To report on the harmonization of the division fence by-law.

Financial Implications and Impact Statement:

In 1999, the City received a total of $7,610.00 in application fees related to fence viewing. As the existing program is intended to be revenue neutral, the revenue is offset by the need to appoint fence viewers to attend and investigate the circumstances surrounding a request for arbitration.

Recommendations:

It is recommended that the attached draft division fence by-law be received and forwarded to all Community Councils for their review and comment for the next meeting of the Committee.

Background:

As part of our program to harmonize by-laws of the former municipalities, we have directed our attention to a by-law to deal with the apportionment of costs for the construction, repair and replacement of division fences on private property.

The only municipalities that adopted a by-law to deal with costs related to division fences were the former Cities of Toronto and North York.

In the case of the former City of Toronto, a by-law was adopted pursuant to the City of Toronto Act, 1972 (No.2) which provides for the resolution of fence disputes by an arbitration panel consisting of representatives of the City and both disputing parties. The provisions of the Line Fences Act apply in respect of enforcement of and appeal from an award of the panel.

The City of North York elected to enact a by-law under the provisions of paragraph 27 of section 210 of the Municipal Act. Where the property owners are not in agreement on the details of the fence to be constructed, the adjoining owner is required to pay a maximum of fifty (50) percent of the cost of a basic four (4) foot chain link fence. In order to assist owners, an information package is made available.

Scarborough, East York, Etobicoke and York all relied upon the provisions of the Line Fences Act whereby fence viewers are appointed to attend and investigate the circumstances surrounding a request for arbitration. For the most part these requests result in an award which divides the cost equally between the parties.

Comments:

We have gathered information on the number of applications considered by the former municipalities during 1998 and 1999. As you will see from the following chart, the numbers are by no means excessive.

We have been advised by the City Solicitor that only two options are presently available to the City: Either adopt a by-law pursuant to the provisions of paragraph 27 of section 210 of the Municipal Act as recommended in this report, or to appoint fence viewers pursuant to the Line Fences Act. Special legislation would be required to extend the application of the former City of Toronto by-law to the new City as a whole.

The numbers reflected in the above chart (approximately 70-120 applications a year City wide) would not in our view warrant initiating the administrative process of appointing fence viewers under the Line Fences Act.

Under the proposed by-law, an application (and applicable fee) for a fence viewer would not be required.

Conclusions:

The newly harmonized division fence by-law is designed to ensure that all property owners are treated fairly and that where there is no agreement on a fence, the adjoining owner be required to pay no more than fifty (50) percent of the cost of a basic four (4) foot chain link fence.

If, after review by Community Councils, the Committee finds it desirable to adopt the by-law, it is suggested that the City Solicitor, in consultation with the Commissioner of Urban Development Services, be authorized to prepare and introduce in Council a bill substantially in the form of the attached draft by-law.

The form of the draft by-law has been reviewed and approved by the City Solicitor.

Contact:

E. Gino Vescio

Sr. Policy & Research Officer

Municipal Licensing and Standards

Policy and Business Planning Unit

Telephone: 392-8769

Fax: 392-8805

PAULA M. DILL

Commissioner

Urban Development Services

List of Attachments:

Division Fence By-law

Authority:

Adopted by Council:

CITY OF TORONTO

BY-LAW No. -2000

For determining how the cost of division fences shall be apportioned, and for providing that any amount so apportioned shall be recoverable under the Provincial Offences Act.

WHEREAS Council has the authority under paragraph 27 of section 210 of the Municipal Act, R.S.O.1990, c.M.45, to pass this by-law;

Now therefore, the Council of the City of Toronto HEREBY ENACTS as follows:

1. General

(1) In this by-law,

(a) "Basic Cost" means the cost of installing a 1.2 metre high steel chain link fence as a division fence;

(b) "City" means the City of Toronto;

(c) "Division Fence" means a fence marking or substantially marking the boundary between adjoining parcels of land;

(d) "Owner" means the registered owner of land and includes the person for the time being managing or receiving the rent of the land or premises in connection with which the word is used, whether on his or her own account or as agent or trustee of any other person, or who would so receive the rent if such land or premises were leased, and shall include a lessee or occupant of the property who, under the terms of a lease, is required to repair and maintain the property in accordance with the standards for maintenance and occupancy of property.

2. Apportionment of Costs

(1) Subject to subsection (3), an Owner wishing to construct, repair or replace a Division Fence shall send by registered mail a written notice of his or her intention to the Owner of the adjoining lands at least fourteen (14) days prior to the commencement of any work or the execution of any contract in relation to the work to be undertaken.

(2) Where an Owner lawfully constructs, repairs or replaces a Division Fence, the Owner of adjoining lands shall be required to pay the lesser of:

(a) fifty percent (50%) of the actual cost of the work completed; and

(b) fifty percent (50%) of Basic Cost,

provided that, in the case of repair or replacement, the repair or replacement is reasonably necessary to comply with City by-laws.

(3) An Owner is not required to comply with subsection (1) before undertaking repairs to a Division Fence where the City has issued a notice or order to the Owner requiring that the repairs be carried out.

(4) Where an Owner repairs a Division Fence so as to comply with a notice or order issued by the City, the Owner of the adjoining lands shall be required to pay fifty percent (50%) of the reasonable cost of the necessary repairs.

3. Agreement between Owners of Adjoining Lands

Section 2 does not apply where the Owners of adjoining lands have entered into a written agreement with respect to the apportionment of the cost of constructing, repairing or replacing a Division Fence.

4. Enforcement

An Owner desiring to recover amounts owing under this by-law shall serve or cause to be served on the Owner of the adjoining lands a notice by registered mail requiring compliance with the By-law and if such compliance does not take place within thirty (30) days after service of the notice, the Owner serving the notice may take appropriate proceedings under the Provincial Offences Act to recover the amount owing from the Owner of the adjoining lands.

5. Public Highway

This by-law does not apply to an Owner of lands that constitute a public highway in respect of such lands.

6. Repeal and Transition

(1) The following are repealed:

(a) By-law No. 29830 of the former City of North York.

(b) Sections 182-1 through 182-12 inclusive and sections 182-16 and 182-17 of Article I of Chapter 182, Fences, of the Municipal Code of the former City of Toronto.

(3) Despite subsection (1),:

(a) By-law No. 29830 of the former City of North York continues to apply to properties affected by a notice given in accordance with section 3 of By-law No. 29830 prior to the date of enactment of this by-law until the matters in dispute have been conclusively resolved; and

(b) Sections 182-1 through 182-12 inclusive and sections 182-16 and 182-17 of Article I of Chapter 182, Fences, of the Municipal Code of the former City of Toronto continue to apply to properties affected by a notice given in accordance with section 182-8A(1) of that Chapter prior to the date of enactment of this by-law until the matters in dispute have been conclusively resolved.

ENACTED AND PASSED this day of , 2000.

Mayor Clerk