HomeMy WebLinkAboutLEG 04-20-6-4
DICKERING
Report to Council
Report Number: LEG 04-20
Date: July 27, 2020
From: Paul Bigioni
Director, Corporate Services & City Solicitor
Subject: Right of Entry By-law
- File: L-2100-002-20
Recommendation:
1. That Report LEG 04-20 regarding the attached Right of Entry By-law be received;
2. That Corporate Services staff be directed work with Corporate Communications staff to
conduct a public consultation, including posting on social media, to seek public and
stakeholder input regarding the attached Right of Entry By-law;
3. That the attached Right of Entry By-law be presented to Council at its October meeting
together with the results of the public consultation; and
4. That the appropriate City of Pickering officials be authorized to take the necessary actions as
indicated in this Report.
Executive Summary: Staff have prepared a draft by-law (Attachment No. 1) to authorize an
owner or occupant of land to enter adjoining land for the purpose of making repairs or alterations
to any building, fence or other structures on the land of the owner or occupant.
Financial Implications: Adopting a permitting system and by-law that is administered and
enforced by the City will require staffing resources ranging from simple administrative costs to
process a basic low -impact application, to extensive officer costs to inspect, monitor, and enforce
high -impact work of a contentious nature. Staff do not anticipate a significant volume of Right of
Entry permit applications. Based on this, it is not possible to establish a cost to administer the
program. Administrative costs and basic inspection fees will be recoverable through the
implementation of application and renewal permit fees as follows:
Permit Type
Fee Amount
High -impact work, right of entry permit application
$1000.00
High -impact work, right of entry permit renewal
$500.00
Low -impact work, right of entry permit application
$100.00
Low -impact work, right of entry permit renewal
$50.00
LEG 04-20 July 27, 2020
Subject: Right of Entry By-law Page 2
The above costs and fees, however, do not include any allowance associated with enforcement
related to non-compliance, including potential prosecution. These costs would include both officer
time and legal costs.
If implemented, the Manager, Municipal Law Enforcement Services will report back through the
2021 Budget process on any additional costs required to administer and enforce a permitting
system based on actual volumes experienced in 2020. Any additional costs would be fully offset
by volume -based increased revenues.
Discussion: Pursuant to Resolution 357/20 dated July 6, 2020, Council directed the
City Solicitor to draft a Right of Entry By-law based on examples in Toronto, Ottawa and Windsor.
The draft by-law is Attachment No. 1 to this report.
In urban areas where houses are built close together and close to the property line, some
homeowners may need to pass through or temporarily occupy a portion of a neighbouring
property in order to make repairs or alterations to their own property. When these situations arise,
it is necessary for the property owner to gain permission from their neighbour to enter the
adjoining property. Without this permission, the property owner could be subject to allegations of
trespass. The property owner can approach their neighbour and negotiate an agreement, either in
writing or verbally, to gain entry. If the neighbour gives their consent, the property owner may
enter and undertake the necessary work without any requirement for municipal involvement.
The proposed Right of Entry By-law provides a mechanism by which entry can be gained by
seeking authority to enter from the City in situations when property owners requiring access are
unsuccessful at negotiating authorization with adjoining property owners.
Authority to enact the proposed Right of Entry By-law derives from Section 132 of the Municipal
Act, 2001, which authorizes the City to pass a by-law that grants the owner or occupant of land to
enter adjoining land, at any reasonable time, for the purpose of making repairs or alterations to
any building, fence or other structures on the land of the owner or occupant, but only to the extent
necessary to carry out the repairs or alterations.
The proposed Right of Entry By-law outlines a formal permit process to be handled through
Municipal Law Enforcement Services and will require a completed application form to be
submitted along with confirmation of insurance and a security deposit. The permit will indicate the
period and times during which the right of entry may be exercised and proper notification to be
given to the adjoining property owner. A permit issued by the City under the proposed Right of
Entry By-law only authorizes access to adjoining lands to undertake repairs or alterations to
buildings, fences or other structures. The by-law cannot be used to gain entry to a neighbouring
property to undertake new construction, and cannot be used to gain access to the interior of a
neighbouring building.
The conditions under which right of entry must be exercised are that it must be done at a
reasonable time, with reasonable notice, for the purpose of making repairs and alterations to
buildings, fences or other structures, and only to the extent necessary to carry out the repairs or
alterations. In addition, the person exercising the right to enter the adjoining land must restore the
LEG 04-20 July 27, 2020
Subject: Right of Entry By-law Page 3
land to its original condition, provide compensation for any damages caused by the entry, and
provide a security deposit.
The proposed Right of Entry By-law is intended primarily to address urban areas of the City where
structures are built close to lot lines, making repairs or alterations difficult without encroaching
onto a neighbouring property. The Right of Entry By-law only permits entry onto adjoining lands for
repairs or alterations when necessary, and if no other access is available. The proposed by-law
will not affect areas where property owners can repair or alter buildings, fences or other structures
while remaining on their property.
The draft Right of Entry By-law represents a reasonable intrusion on the private property rights of
Pickering homeowners. Because of its impact on property rights, City staff recommend that the
attached draft by-law be submitted to public and stakeholder consultation before it is brought back
to Council for enactment.
Attachments:
1. Draft Right of Entry By-law
Prepared By:
Candace Tashos, B.A. (Hons.), M.A., J.D.
Assistant Solicitor
Approved/Endorsed By:
Paul Bi•
Director, Corporate Services & City Solicitor
PB:ks
Approved/Endorsed By:
Kimberly Thompson, CMM III, CPSO
Manager, Municipal Law Enforcement Services
Recommended for the consideration
of Pickering City Council
Marisa Carpino, M.A.
Interim Chief Administrative Officer
Attachment 1 to Report LEG 04-20
The Corporation of the City of Pickering
By-law No.XXX
Being a by-law authorizing entry upon
adjoining lands for the purpose of making
repairs or alterations to buildings, fences or
other structures.
Whereas under section 132 of the Municipal Act, 2001, S.O. 2001, c.25 (the "Act"), the
Council of a local municipality may pass a by-law to authorize the owner or occupant of
land to enter adjoining land for the purpose of making repairs or alterations to any
building, fence or other structures on the land of the owner or occupant but only to the
extent necessary to carry out the repairs or alterations.
Now therefore the Council of The Corporation of the City of Pickering hereby enacts as
follows:
1. Definitions
In this By-law:
Vitba
(a) "alteration" includes, but is not limited to, a structural change to the
exterior or interior of an existing building, fence or other structure, but
does not include a total replacement of an existing building, fence or other
structure;
(b) "applicant" means the owner or occupant of land who applies for a permit,
or any person authorized by the owner or occupant to apply for a permit
on the owner's or occupant's behalf;
(c) "building" means any structure used or intended for supporting or
sheltering any use or occupancy;
(d) "By-law Manager" means the City's Manager, Municipal Law Enforcement
Services or their designate;
(e) "City" means the municipal corporation of the City of Pickering or the
geographic area of the City of Pickering as the context requires;
(f)
(g)
"high -impact work" means a repair or alteration that requires entry on the
adjoining land for the erection of temporary structures, such as
scaffolding; the placement of, or access for, any type of heavy equipment;
or the distressing of the adjoining land, including the removal of a structure
or fence, or the excavation or removal of any landscaping or paving;
"land" includes buildings, fences and structures;
By -Law No. Page 2
(h) "low -impact work" means a repair or alteration that requires entry on the
adjoining land to carry out work that does not include the erection of
temporary structures, such as scaffolding; the placement of, or access for,
any type of heavy equipment; and the distressing of the adjoining land,
including the removal of a structure or fence, or the excavation or removal
of any landscaping or paving;
(i) "occupant" means any person or persons over the age of 18 years in
possession of the land;
(j) "officer" means a municipal law enforcement officer employed by the City
to enforce municipal by-laws;
(k) "owner" means the registered owner of the land or a person authorized in
writing by the registered owner of the land to act on the owner's behalf for
the purpose of filing an application under this By-law;
(I) "permit" means a permit issued under this By-law that authorizes right of
entry on adjoining lands;
(m) "permit holder" means the owner or occupant to whom a permit has been
issued under this By-law;
(n) "repair" includes:
(i) maintenance and upkeep; and
(ii) the provision of facilities, the making of additions or alterations or
the taking of any other action that may be required to ensure that a
building, fence or other structure conforms with the standards
established in a by-law or the Act; and
(o) "structure" means anything installed, constructed or erected with a fixed
location on the ground, but does not include an inground swimming pool.
2. Interpretation
When reading and interpreting this By-law:
(a) unless otherwise specified, references in this By-law to parts, sections,
subsections, clauses and schedules are references to parts, sections,
subsections, clauses and schedules in this By-law;
(b) references in this By-law to any statute or statutory provision include
references to that statute or statutory provision as it may from time to time
be amended, extended or re-enacted;
By -Law No. Page 3
(c) this By-law shall be read with all changes in gender or number as the
context requires;
(d) references in this By-law to items in the plural include the singular, and
references to the singular include the plural, as applicable; and
(e) the words "include", "includes" or "including" are not to be read or
interpreted as limiting the words, phrases or descriptions that follow them.
3. Right of Entry on Consent or by Permit
(1) The owner or occupant of land may enter adjoining land, at any
reasonable time, for the purpose of making repairs or alterations to any
building, fence or other structures on the land of the owner or occupant
but only to the extent necessary to carry out the repairs or alterations:
(a) if the owner of the adjoining land has given prior consent to this
entry; or
(b) if the By-law Manager has issued a permit for this entry and the
entry occurs during the period specified in the permit.
(2) The power of entry under section 3(1)(b) is subject to compliance with the
following conditions:
(a) the power of entry may only be exercised by a permit holder or his
or her employees or agents and only if they comply with all of the
conditions of the permit and the provisions of this By-law;
a person exercising the power of entry must display or, on request,
roduce proper identification;
ermit holder shall provide reasonable notice of the proposed
the occupant of the adjoining land, as described in section
);
it holder, his or her employees or agents, shall not create
ards or allow any hazards to exist on the adjoining land;
(e) - permit holder shall, in so far as is practicable, restore the
adjoining land to its original condition and shall provide
compensation for any damages caused by the entry or by anything
done on the adjoining land; and
(f)
without limiting the generality of (e) above, restoring the adjoining
land to its original condition includes removing any equipment or
materials left on the adjoining land as a result of the entry.
By -Law No. Page 4
(3)
The power of entry under section 3(1)(b) does not authorize:
(a) entry into a building on the adjoining land;
(b) the use of the adjoining land for any other work or activity other
than that described on the permit;
(c) the storage of materials or equipment, or the parking of vehicles, on
the adjoining land; and
(d) an exemption to any person from complying with other City by-laws.
(4) In the case of entry under the consent of the owner of the adjoining land
under section 3(1)(a), the conditions and limitations in sections 3(2) and
3(3) apply to the power of entry, with necessary modifications, unless the
owner granting the consent and the owner or occupant exercising the right
of entry agree otherwise.
(5)
No person shall fail to permit a right of entry being exercised in
accordance with a permit issued under this By-law.
(6) Any permit issued under this By-law is not transferable.
4. Permit Application
(1) To obtain a permit, the owner shall file a complete application with the By-
law Manager on a form prescribed by the City.
(2) An application for a permit must include the following:
the name, address, and telephone number of all contractors that
I carry out the proposed work for which entry is required on the
ing land;
icipal business licence number of every contractor or trade
quired to be licensed by the City;
(d)
rance type and number of every contractor or trade that is
ed to be insured in accordance with municipal or provincial
ulations;
the nature of the proposed work that requires use of the adjoining
land and the proposed use of the adjoining land, including what
equipment will be used, if and how the adjoining land will be
distressed, and whether any nuisances will result from the
proposed use of the adjoining land (for example, dust fumes, noise,
or restricted access);
By -Law No. Page 5
(e) the proposed attenuating measures to control each of the
nuisances identified under (d) above;
(f) an estimate of the time that the proposed work will require use of
the adjoining land, as described in (d) above is expected to take;
(g) the days and times that entry will be required;
(h) the proposed remediation measures required to bring the adjoining
land, in so far as practicable, to its original condition;
(1) an estimate of the time required to do the remediation work
described in (h) above;
(j) a signed form acknowledging the permit holder's obligation to:
(i)
use the adjoining land only to the extent necessary to carry
out the work on the adjoining land as outlined in the permit;
(ii) not use the adjoining land for any other purpose, including
for the storage of materials or equipment and the parking of
vehicles;
(iii) provide a security deposit and agree to its forfeiture if
deemed necessary by the By-law Manager to comply with
the permit holder's obligations to restore the adjoining land
and provide compensation for damages;
(iv) provide at least 24 hours' notice in writing to the occupant of
the adjoining land before any contractor enters the adjoining
land;
systematically mitigate all nuisances with respect to the use
of the adjoining land to the extent practicable;
store the adjoining land to its original condition and provide
mpensation for any damages caused by the entry or by
nything done on the adjoining land to the satisfaction of the
By-law Manager; and
without limiting (iv) above, to hold the owner of the adjoining
land harmless in the event of any damages to people or
property as a result of anything done on the adjoining land to
the extent allowable by law;
By -Law No. Page 6
(3)
(k) proof that the owner of the adjoining land has been included as a
named insured in the liability insurance of the owner for the period
covering the estimated time of the proposed work on the adjoining
land; and
(1)
the permit application fee set out in the City's current General
Municipal Fees By-law.
The notice required under section 4(2)(j)(iv) may be served personally on
the person to whom it is directed or by registered mail to the last known
address of that person, in which case it shall be deemed to have been
given on the third day after it is mailed.
(4) The permit application fee is non-refundable.
5. Notice to Adjoining Land Owner
6.
(1) After receiving a completed application, the By-law Manager shall notify
the owner of the adjoining land in writing that a permit has been requested
to enter the adjoining land, and the notice shall provide all of the relevant
information, set out in section 4(2), as determined by the By-law Manager.
(2) The owner of the adjoining land may, within 10 business days of the date
specified in the notice, make a submission to the By-law Manager to
provide details of any circumstances that may be considered by the By-
law Manager in establishing the conditions of the permit.
(3)
The By-law Manager may extend the submission time under (2) above for
not more than 10 business days.
law Manager shall provide the owner of the adjoining land with a
permit or renewal of a permit that applies to the adjoining
newal / Refusal / Revocation
(1) - securi posit required under section 7 shall be submitted before a
p- is -d
(2) A per issued under this By-law shall indicate the period and times
during which the right of entry may be exercised, and this period shall not
commence earlier than five business days from the date of issuance.
(3) The permit shall also set out any additional conditions, as determined by
the By-law Manager that reasonably relate to the right of entry (for
example, the protection of a particular plant).
By -Law No. Page 7
The permit holder or owner, if not the permit holder, may apply to the By-
law Manager for a renewal of the permit before the expiry date of the right
of entry under the current permit.
A permit renewal application shall include all the information and other
documents required under section 4(2).
After a complete permit renewal application is received, the By-law
Manager shall notify the owner of the adjoining land in writing that a permit
renewal application has been requested by the applicant.
The owner of the adjoining land may, within 10 business days from the
date specified in the notice, make a submission to the By-law Manager
providing details of any circumstances that may be considered by the By-
law Manager in reviewing the permit application renewal.
(8) If a renewal is granted, it shall deem the existing permit to continue for the
period specified in the approval and may provide that the right of entry is
subject to any existing conditions or additional conditions as established
by the By-law Manager.
(9)
The By-law Manager may revoke a permit or deny the renewal of a permit
if there is non-compliance with the permit conditions.
(10) If a permit is revoked or is not renewed, the permit holder shall, in so far
as is practicable, restore the adjoining land to its original condition and
provide compensation for any damages caused by the entry or by
anything done on the adjoining land, to the satisfaction of the By-law
Manager.
(11) Where the By-law Manager refuses to issue a permit, the applicant shall
be informed of this decision in writing and the reasons for the refusal.
7. Security Deposit
(1) The security deposit for a permit for low -impact work is $500.00.
(2) The minimum security deposit for a permit for high -impact work is
$2,000.00.
(3)
The By-law Manager shall determine the amount of the security deposit
required for a permit for high -impact work above the minimum amount set
out in (2) above and shall base this amount on the information in the
permit application, the inspection by officers, any submissions by the
owner of the adjoining land, and any other information deemed reasonable
by the By-law Manager for this purpose.
By -Law No. Page 8
(4) If in his or her submission, under section 5(2), the owner of the adjoining
land requests a review of the amount of the security deposit established
by the By-law Manager, the submission shall include a detailed estimate in
a form acceptable to the By-law Manager.
(5)
The security deposit amount established by the By-law Manager after any
review of a submission under section 5(2) shall be deemed final.
(6) The security deposit for a permit shall be in the form of a certified cheque
made payable to the 'City of Pickering'.
(7)
In the case of low -impact work, the City may hold the security deposit for
no more than 60 days after the completion of the work requiring entry on
the adjoining land, the completion of any remediation work on the
adjoining land, and the expiry of the right of entry under the permit,
whichever is later, to ensure compliance with the permit holder's
obligations under section 3(2)(e).
(8) Notwithstanding (7) above and to ensure compliance with the permit
holder's obligations under section 3(2)(e), including unseen damages, in
the case of high -impact work, the security deposit shall be held for one
year after the completion of the work requiring entry on the adjoining land
and the completion of any remediation work on the adjoining land,
whichever is later.
(9)
If within the period in (7) above, or after the period in (8) above, the By-law
Manager determines that the permit holder has not complied with the
requirements to restore the land and pay compensation for damages as
required under section 3(2)(e), the City may provide the owner of the
adjoininglandwith all or part of the security deposit and return any
remainder to the permit holder.
(10) The owner of the adjoining land and the permit holder may on consent
authorize the City to provide the owner of the adjoining land with all or part
of the security deposit at a date earlier than provided under (7) and (8)
above.
8. Emergency Exception
(1) If a building, fence or other structure on the land poses an immediate
danger to the health or safety of any person, the owner or occupant of the
land or his or her employee or agent may enter the adjoining land without
a permit or prior consent, but only to the extent necessary to terminate the
emergency.
By -Law No. Page 9
The owner or occupant of the land shall, to the extent possible, notify the
owner of the adjoining land of the emergency and the need to enter the
adjoining land before entering the adjoining land.
All work necessary to terminate the emergency and that requires entry on
the adjoining land shall be carried out as if a permit had been granted
under this By-law and is subject to compliance with the conditions in
section 3(2), other than notice, and to any other permit conditions
retroactively imposed by the By-law Manager.
(4) Unless the owner of the adjoining land waives this requirement, the owner
or occupant undertaking the work on the adjoining land shall apply for a
permit retroactively for the work performed to terminate the emergency as
well as for any other work that will require entry on the adjoining land.
9. Inspection
(1) An officer, other employee, or agent of the City may enter on lands at any
reasonable time for the purpose of carrying out an inspection to determine
whether or not this By-law or a condition of a permit issued under this By-
law are being complied with.
(2) A person carrying out an inspection under (1) above, may:
(a) require the production for inspection of documents or things
relevant to the inspection;
(b) inspect and remove documents or things relevant to the inspection
for the purpose of making copies or extracts;
equire information from any person concerning a matter related to
inspection; and
(d) alo e, or in conjunction with a person possessing special or expert
knowledge, make examinations or take tests, samples or
photographs necessary for the purpose of the inspection.
10. Enforce
(1) This b .w may be enforced by an officer.
(2) No person shall make a false or intentionally misleading statement of fact,
statutory declaration, application or other document required by this By-
law.
(3)
No person shall prevent, hinder or obstruct or attempt to prevent, hinder or
obstruct an officer in the enforcement of this By-law.
By -Law No. Page 10
(4) Where an officer has reasonable grounds to believe that an offence has
been committed by a person, the officer may require the name, address,
and proof of identity of that person, and no person shall fail to provide the
requested information.
11. Orders to Comply
(1) An officer who finds a contravention of this By-law may make one or more
orders requiring discontinuance of the contravening activity or to do work
to correct the contravention.
(2) The order may be served personally on the person to whom it is directed
or by registered mail to the last known address of that person, in which
case it shall be deemed to have been given on the third day after it is
mailed.
(3) If there is evidence that the occupant of the land is not the registered
owner, the notice shall be served on both the registered owner and the
occupant of the land.
(4) If the address of the owner is unknown or the City is unable to effect
service on the owner or occupant under (3) above, a placard stating the
terms of the order and placed in a conspicuous place upon land on or near
the land shall be deemed to be sufficient notice to the owner.
(5)
If the delay necessary to give an order under the preceding subsections
would result in an immediate danger to the health or safety of any person,
the order may be served personally on the person to whom it is directed or
by a placard stating the terms of the order and placed in a conspicuous
place uponland on or near the land.
12. Offences and Penalties
(1) Every person who contravenes any provision of this By-law, and every
director or officer of a corporation who concurs in such contravention by
the corporation, is guilty of an offence and, subject to (2), upon conviction
is liable to a fine not exceeding $25,000.00.
(2) Where a corporation is convicted of an offence under (1), the maximum
penalty that may be imposed on the corporation is $100,000.00.
13. Short Title
This By-law may be cited as the "Right of Entry By-law".
14. Force and Effect
This By-law shall come into force and effect on the date it is passed.
By -Law No. Page 11
ENACTED AND PASSED this day of , 2020.
Kevin Ashe, Deputy Mayor
Susan Cassel, City Clerk