HomeMy WebLinkAboutBy-law No. 2015-068 BY-LAW NUMBER 2015-068
OF
THE CORPORATION OF THE MUNICIPALITY OF BAYHAM
BEING A BY-LAW TO REGULATE ENCROACHMENTS ON
PUBLIC LANDS
WHEREAS the Municipal Act, 2001 S.O. 2001, c.25, as amended, provides that a municipality
may pass by-laws within the following spheres of jurisdiction: Highways, including parking and
traffic on highways at Section 11(3) 1; Culture, parks, recreation and heritage at Section 11(3) 5
and Structures, including fences and signs at Section 11(3) 7;
AND WHEREAS Section 8 of the Municipal Act, 2001 S.O. 2001, c.25, as amended, provides
that a municipality has the capacity, rights, powers and privileges of a natural person for the
purpose of exercising its authority under the Municipal Act, 2001 S.O. 2001, c.25, as amended;
AND WHEREAS Section 9(1)of the Municipal Act, 2001 S.O. 2001, c.25, as amended, provides
that Section 8 and Section 11 shall be interpreted broadly so as to confer broad authority on
municipalities to enable them to govern their affairs as they consider appropriate and enhance
their ability to respond to municipal issues;
AND WHEREAS Section 391(c) of the Municipal Act, 2001 S.O. 2001, c.25, as amended,
provides that a municipality may pass by-laws imposing fees or charges on any class of persons
for the use of its property including property under its control;
AND WHEREAS Section 446(1)of the Municipal Act, 2001 S.O. 2001, c.25, as amended,
provides that a municipality may proceed to do things at a person's expense which that person is
otherwise required to do under a By-law or otherwise but has failed to do;
AND WHEREAS Section 446(3)of the Municipal Act, 2001 5.0. 2001, c.25, as amended,
provides that the costs incurred by a municipality in doing a thing or matter under Section 446(1)
may be recovered by adding the costs to the tax roll and collecting them in the same manner as
taxes;
NOW THEREFORE THE COUNCIL OF THE CORPORATION OF THE MUNICIPALITY OF
BAYHAM ENACTS A BY-LAW AS FOLLOWS:
SHORT TITLE
This By-law shall be known and may be cited as the "Encroachment By-law",
Section 1-Definitions
For the purpose of this By-law:
1.1 "Applicant" shall include an owner seeking an Encroachment Agreement, or renewal of
an Encroachment Agreement.
1.2 "Clerk" shall mean the Clerk of the Corporation of the Municipality of Bayham.
1.3 "Council" shall mean the Council of the Corporation of the Municipality of Bayham.
1.4 "Easement" shall mean an interest in land owned by another person, consisting in the
right to use or control the land, or an area above or below it, for a specific limited
purpose, but does not include an interest created by a licence agreement.
1.5 "Encroachment" shall mean any type of vegetation, man-made object or item of personal
property of a person which exists wholly upon, or extends from a person's premises onto,
public lands and shall include any aerial, surface or subsurface encroachments:
(a) "aerial encroachment" shall mean an encroachment that is located at least thirty
(30) centimeters above the surface of public lands;
(b) "surface encroachment" shall mean an encroachment that is located anywhere
between the following: the surface of public lands to a height less than thirty(30)
centimetres and beneath the surface of public lands to a depth of not more than
three (3) centimetres;
(c) "sub-surface encroachment" shall mean an encroachment that is located beneath
the surface of public lands to a depth exceeding three (3) centimetres.
1.6 "Encroachment Agreement" shall mean an agreement prepared by the Municipality for
execution by the Municipality and an owner granted authorization to erect, place or
maintain an encroachment.
1.7 "Expense" shall mean any and all sums of money actually spent or required to be spent
by the Municipality, and shall include but not be limited to all charges, costs, a twenty five
percent(25%) administrative fee, taxes, outlays, legal fees and losses.
1.8 "Highway" shall mean a highway within the meaning of The Municipal Act, 2001 S.O.
2001, c.25, as amended.
1.9 "Municipality" shall mean the Corporation of the Municipality of Bayham.
1.10 "Officer" shall mean a Municipal Law Enforcement Officer appointed by Municipality of
Bayham By-law, a Police Officer.
1.11 "Owner" shall mean the registered owner of a parcel of property as such person is
described in the most current assessment roll.
1.12 "Person" shall include an individual, a sole proprietorship, a partnership, an
unincorporated association, a trust, a body corporate or a natural person.
'1.13 "Personal Property" means any object or item of property other than real property.
1.14 "Planning Coordinator/Deputy Clerk" shall mean the Planning Coordinator/Deputy Clerk
of the Corporation of the Municipality of Bayham.
1.15 "Premises" means a parcel of real property under registered ownership and includes all
buildings and structures thereon.
1.16 "Public Lands" means lands owned by, leased, licensed to or under the management of
the Municipality, and shall include but not be limited to any public highway, road, street,
avenue, parkway, lane, alley, square, place, viaduct or trestle, water, thoroughfare, way
or bridge, park, woodland, greenbelt, storm water management facility, open space,
cemetery, and all parts thereof, including any surface, grassed area, boulevard, ditch,
curb, gutter and sidewalk.
1 17 "Right-of-Way" shall mean a person's legal right, established by usage, deed or by
contract, to pass through grounds or private property which affords access to abutting
lots and does not include a highway.
1.18 "Sign" shall mean any structure or device, intended for identification or advertisement,
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visible to the general public.
1.19 "Unauthorized Encroachment" shall mean any encroachment not authorized by this By-
law.
Section 2-General Prohibitions
2.1 No person shall erect, place or maintain, or cause to be erected, placed or maintained,
an encroachment of any kind on public lands, or on any right-of-way or easement in
favour of the Municipality, except where permitted to do so in accordance with this By-
law.
2.2 Notwithstanding Section 2.1 of this By-law, the provisions of this By-law do not apply to
the following classes of encroachments:
(a) Signs and Advertising Devices, as authorized by the Municipal Sign By-law;
(b) Encroachments permitted as a result of a written and signed agreement with the
Municipality, other than an Encroachment Agreement;
Section 3-Request for Encroachment
ENCROACHMENT AGREEMENT APPLICATION FEES
3.1 All Encroachment Agreement application fees are for administrative purposes and are,
therefore, non-refundable if the application is refused for any reason or is withdrawn by
the Applicant prior to the issuance of an Encroachment Agreement.
3.2 The Encroachment Agreement application fee shall be as set out in Schedule 'A' to this
By-law, and shall be reflected in the Municipal Fees By-law.
ENCROACHMENT AGREEMENT APPLICATION-FULL INFORMATION REQUIRED
3.3 Every Applicant shall provide in full a complete application, at the time the application is
submitted or the Planning Coordinator/Deputy Clerk shall not accept the application.
3.4 Every Applicant shall provide in full a complete application, at the time the application is
submitted, all of the information required on the application and shall provide:
(a) payment of the prescribed Encroachment Agreement Application fee set out in
Schedule 'A' of this By-law;
(b) any other document or information as may be required in any other Section of this
By-law;
(c) any other affidavit, document or information as may be requested by the Planning
Coordinator/Deputy Clerk at any time during the term of the Encroachment
Agreement.
(d) proof that the need for the encroachment is reasonable, feasible and no
alternative option exists. in addition the encroachment must not jeopardize the
health or safety of the public and must be in the public's best interest and must be
minor in nature.
ENCROACHMENT AGREEMENT APPLICATION-SUBJECT TO APPROVAL
3.5 Every Encroachment Agreement application will be subject to investigations by and
comments or recommendations from such municipal or provincial departments or
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agencies as the Planning Coordinator/Deputy Clerk deems necessary, or as directed by
Council, including but not limited to:
(a) Ontario Provincial Police,
(b) Health Department,
(c) Fire Department,
INCOMPLETE APPLICATION
3.6 Any Encroachment Agreement application that does not comply with the provisions of
Section 3.4 of this By-law, shall be deemed incomplete and shall be returned by
registered mail to the applicant pursuant to Section 3.10 of this By-law.
3.7 Any Encroachment Agreement application that has not received approvals from all
municipal or provincial departments or agencies as the Planning Coordinator/Deputy
Clerk deems necessary within ninety(90)days from the date of the filing of the
application, due to the Applicant's inability to comply with the requirements, shall be
deemed to be incomplete.
INFORMATION HELD IS OPEN TO INSPECTION
3.8 Any application, comment, recommendation, information, document or thing in the
possession of the Planning Coordinator/Deputy Clerk pursuant to the provisions of this
By-law shall be made available by the Planning Coordinator/Deputy Clerk for an
inspection:
(a) by any Officer employed in the administration or enforcement of this By-law; and
(b) by any other person upon the consent, satisfactory to the Planning
Coordinator/Deputy Clerk, of the person, civic department, board, commission,
authority or other agency which produced or submitted the application, comment,
recommendation, information, document or thing; subject only to the limitations
imposed by the Municipal Freedom of Information and Protection of Privacy Act.
R.S.O. 1990, CHAPTER M.56, as amended.
Notice
3.9 Every Encroachment Agreement owner shall notify the Planning Coordinator/Deputy
Clerk in writing within ten (10)days of any change in his mailing address and shall be
sent to:
Municipality of Bayham
Planning Coordinator/Deputy Clerk
P.O. Box 160
9344 Plank Rd.
Straffordville, ON
NOJ 1Y0
3.10 Any notice or request made pursuant to this By-law may be given in writing by registered
mail and is effective:
(a) on the date on which a copy is hand delivered to the person to whom it is
addressed;
(b) on the fifth (5th) day after a copy is sent by registered mail to the person's last
known address.
3.11 For the purpose of Section 3.10 of this By-law, the Encroachment Agreement owner's
last known address shall be deemed to include that provided pursuant to Section 3.4 of
this By-law as they may be changed pursuant to Section 3.9 of this By-law.
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CONTRAVENTION OF OTHER LAWS PROHIBITED
3.12 The issuance or renewal of an Encroachment Agreement under this By-law is not
intended and shall not be construed as permission or consent by the Municipality for the
Encroachment Agreement owner to contravene or to fail to observe or comply with any
law of Canada or Ontario or any other By-law of the Municipality or the County of Elgin.
3.13 Where a request to erect, install or maintain an encroachment has been approved, the
Clerk shall prepare an Encroachment Agreement, and once the Applicant has been
notified in writing that the Encroachment Agreement is ready for execution, the Applicant
shall have thirty(30) calendar days to execute same.
Section 4-Registration of Agreement
4.1 Where the Planning Coordinator/Deputy Clerk deems it appropriate, an Encroachment
Agreement may be registered against title to the Encroachment Applicant's property in
the Land Registry Office and all expenses in doing so shall be paid for in advance by the
Applicant.
Section 5-Authority of the Planning Coordinator/Deputy Clerk
5.1 The Planning Coordinator/Deputy Clerk shall have delegated authority to:
(a) approve or reject any application submitted for an Encroachment Agreement; and
(b) impose such terms and conditions to any request and/or Encroachment Agreement
as the Planning Coordinator/Deputy Clerk may deem appropriate; and
(c) determine whether any Encroachment Agreement expiring on a date after the date of
enactment and passage of this By-law shall be renewed and/or extended.
Section 6-Revocation
6.1 The execution of an Encroachment Agreement in respect of an encroachment does not
create any vested right in the owner or occupant of the premises to which the
encroachment is appurtenant, or in any other person, and the Encroachment Agreement
may be revoked in accordance with the terms set out therein.
Section 7-Access to Encroachments
7.1 No person shall obstruct, hinder or interfere with the free access to any encroachment by
an employee, officer or agent of the Municipality.
Section 8-Discontinuance of Encroachments
8.1 The Planning Coordinator/Deputy Clerk may revoke an Encroachment Agreement:
(a) If the owner of any premises to which an encroachment is appurtenant desires to
permanently discontinue the encroachment. The owner shall notify the Planning
Coordinator/Deputy Clerk in writing and the Planning Coordinator/Deputy Clerk
shall thereafter cause a notice to be sent to the owner by an Officer advising that
the encroachment shall be removed or filled in and closed up, and the public
lands shall be restored to their former condition by the owner at his own expense;
(b) If the Planning Coordinator/Deputy Clerk is at any time of the opinion that a
breach of the terms and conditions attached to an Encroachment Agreement has
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occurred and that the encroachment should be discontinued, or where an
Encroachment Agreement has expired, the Planning Coordinator/Deputy Clerk
shall cause a notice to be sent to the owner advising that the encroachment be
removed or filled in and closed up, and the public lands be restored to their
former condition by the owner at his own expense;
8.2 Where an owner fails to comply with the notice described in Section 8.1 of this By-law,
within a minimum of ninety-six(96) hours of receipt of same, the encroachment may be
removed or filled in and closed up by an Officer, and the public lands restored to their
former condition at the expense of the owner, such expense to be recovered in full in the
manner provided in Section 11 of this By-law, and until the encroachment is so removed
or filled in and closed up and the public lands restored to their former condition, all
expenses incurred by the Municipality in respect thereto shall continue to be paid by the
owner.
8.3 Every Person served with a Notice under Section 8.1 of this by-law shall comply with such
Notice within the time provided by such Notice.
Section 9-Emergency Situations
9.1 If an Officer deems that an emergency exists or may exist as a result of any
encroachment being or about to become a source of danger to the health and safety of
the public, the Officer may:
(a) notify in writing the owner of the premises to which the encroachment is appurtenant,
requiring the repair, removal, filling in or closing up of the encroachment and
restoration of the public lands to their former condition at the expense of the owner,
so that the encroachment is no longer deemed to be a source of danger or potential
danger to the public by the Officer, and/or
(b) take such measures on behalf of the owner, without notice to the owner, as the
Officer may deem necessary to remove the danger or potential danger created by the
encroachment.
9.2 Where the notice in Section 9.1(a)of this By-law is not complied with within ninety-six
(96) hours of the date of the notice, an Officer may, on behalf of the owner shall, remove,
fill in or close up the unauthorized encroachment and restore the public lands to their
former condition at the expense of the owner, such expense to be recovered in full in the
manner provided in Section 11 of this By-law.
9.3 Where the Officer elects to take any action under Section 9.1(b) of this By-law, the
expenses incurred by the Municipality in so doing shall be recovered in full in the manner
provided in Section 11 of this By-law.
Section 10-Removal of Unauthorized Encroachments
10.1 Where the Municipality becomes aware of an unauthorized encroachment, an Officer
shall give notice in writing to the owner of the premises to which an unauthorized
encroachment is appurtenant, to forthwith remove, fill in or close up the encroachment
and to restore the public lands to their former condition at the expense of the owner.
10.2 Where the notice in Section 10.1 of this By-law is not complied with within ninety-six(96)
hours of the date of the notice, an Officer shall, on behalf of the owner, remove, fill in or
close up the unauthorized encroachment and restore the public lands to their former
condition at the expense of the owner, such expense to be recovered in full in the
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manner provided in Section 11 of this By-law.
10.3 Any materials or structures forming part of or attached to the encroachment and removed
by an Officer shall, at the discretion of the Officer, either be deposited at the owner's
premises or be stored for a minimum of ninety-six(96) hours at the owner's expense,
such expense to be recovered in full in the manner provided in Section 11 of this By-law.
Any item so stored and not claimed by the owner within said minimum ninety-six(96)
hour period shall be disposed of by the Municipality in such manner as it deems
appropriate.
10.4 Every Person served with a Notice under Section 10.1 of this by-law shall comply with such
Notice within the time provided by such Notice.
Section 11-Recovery of Expenses
11.1 All expenses incurred by the Municipality in connection with the enforcement of this By-
law shall be paid within thirty(30) days of their billing date, and in the event of failure to
pay the entire amount due within said thirty(30) days, at the discretion of the
Municipality, the outstanding balance of the invoice may thereafter be added to the tax
roll as of the year in which the expenses were billed.
11.2 The Municipality may also recover all expenses owing under this By-law by a court action
as a debt due to the Municipality.
Section 12-Infractions and Penalties
12.1 Every person who contravenes any of the provisions of this by-law is guilty of an offence
and upon conviction is liable to pay a fine or penalty for each offence, exclusive of costs,
as provided for in the Provincial Offences Act, R.S.O. 1990, c.P.33, as may be amended
from time to time.
Section 13-Prohibition Order
13.1 When a person has been convicted of an offence under this By-law,
(a) the Superior Court of Justice, or
(b) any other court of competent jurisdiction, may, in addition to any other penalty
imposed on the person convicted, issue an order prohibiting the continuation or
repetition of the offence or the doing of any act or thing by the person convicted
directed toward the continuation or repetition of the offence.
Section 14-Administration
ADMINISTRATION OF BY-LAW
14.1 Unless otherwise indicated, the administration of this By-law is assigned by Council to
the Planning Coordinator/Deputy Clerk who may delegate the performance of his
functions under this By-law from time to time as occasion requires.
14.2 In this By-law, unless the contrary intention is indicated, words used in the singular shall
include the plural and words used in the male gender shall include the female gender or
vice versa, where applicable.
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Section 15 - Enforcement
ENFORCEMENT OF BY-LAW
15.1 An Officer shall be responsible for the enforcement of this By-law.
15.2 No person shall hinder or obstruct,or attempt to hinder or obstruct, any Officer or the Clerk
while exercising any power or performing any duty under this By-law.
15.3 If there is a conflict between a provision in this By-law and a provision of any other
Municipal By-law, the provision that establishes the highest standard to protect the
health, safety and welfare of the general public shall apply.
Section 16-Exceptions and Grandfathering
16.1 Notwithstanding Section 2.1 of this By-law, any encroachment authorized under an
Encroachment Agreement determined by the Clerk to be valid and binding at the date of
enactment of this By-law, shall not require further authorization pursuant to this By-law
until the Encroachment Agreement has expired or is terminated.
16.2 Subject to Section 16.1 of this By-law, this By-law shall apply to all encroachments which
existed or were created before this By-law was enacted and passed.
Section 17—Severability
17.1 In the event any section or provision of this By-law is held invalid, the remainder of the
By-law shall continue in force.
17.2 This By-law shall come into full force and effect on the date of its passing by Council.
READ a FIRST, SECOND and THIRD TIME and finally passed this le day of June, 2015.
Xj!
PAUL ENS
MAYOR
LYNDA MILLARD
CLERK
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SCHEDULE 'A'
ENCROACHMENT BY-LAW
BY-LAW 2015-068
ITEM FEE
Encroachment Agreement Application $300.00
(Non-Refundable)
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PROVINCIAL OFFENCES ACT
Part I
IT IS ORDERED pursuant to the provisions of the Provincial Offences Act
and the rules for the Ontario Court of Justice that the amount set opposite
each of the offences in the schedule of offences under the Provincial
Statutes and Regulations thereunder and Municipal By-law No. 2015-068,
of the Municipality of Bayham, attached hereto are the set fines for those
offences. This Order is to take effect March 13, 2018.
Dated at London this 13th day of March, 2018.
Stephen J. Fuerth
Regional Senior Justice
West Region
Part I Provincial Offences Act
THE CORPORATION OF THE BY-LAW NO. 2015-068 TITLE: Encroachment By-Law
MUNICIPALITY OF BAYHAM
ITEM COLUMN 1 COLUMN 2 COLUMN 3
Short Form Wording Provision Creating or Defining Set Fine
Offence
1. Erect, place, or maintain an encroachment on
public lands s. 2.1 $250.00
2. Erect, place, or maintain an encroachment on
municipal easement or right-of-way s. 2.1 $250.00
3. Permit erection, placement, or maintenance
of encroachment on public lands s. 2.1 $250.00
4. Permit erection, placement or maintenance of
encroachment on municipal easement or right-of-way s. 2.1 $250.00
5. Obstruct, hinder, or interfere with free access to
encroachment s. 15.2 $250.00
NOTE: The penalty provision(s) for the offence(s) indicated above is s. 12 of By-Law No. 2015-068, a certified copy of which by-law
has been filed.