Interim Woodland Preservation Bylaw

Whereas:

The City is a single-tier municipality incorporated pursuant to an order made under section 25.2 of the Municipal Act, R.S.O. 1990, c. M.45.

The powers of a municipality must be exercised by its council (Municipal Act, 2001, S.O. 2001, c. 25 (the "Municipal Act, 2001"), s. 5 (1)).

A municipal power must be exercised by bylaw unless the municipality is specifically authorized to do otherwise (Municipal Act, 2001, s. 5 (3)).

A bylaw under the Municipal Act, 2001 respecting a matter may:

1. regulate or prohibit respecting the matter; and
2. require persons to do things respecting the matter (Municipal Act, 2001, s. 8 (3)).

A municipality may prohibit or regulate the destruction or injuring of trees, and may require that a permit be obtained to injure or destroy trees and impose conditions to a permit, including conditions relating to the manner in which destruction occurs and the qualifications of persons authorized to injure or destroy trees (Municipal Act, 2001, ss. 135 (1), 135 (7)).

A municipality may delegate its powers and duties under the Municipal Act, 2001 to a person or body subject to the restrictions set out in Part II of the Municipal Act, 2001 (Municipal Act, 2001, s. 23.2 (1)).

A municipality may prohibit and regulate with respect to public nuisances, including matters that, in the opinion of council, are or could become or cause public nuisances (Municipal Act, 2001, s. 128 (1)).

A municipality may make an order requiring a person who contravened a bylaw or who caused or permitted the contravention or the owner or occupier of the land on which the contravention occurred to discontinue the contravening activity (Municipal Act, 2001, s. 444 (1)).

A municipality may make an order requiring a person who contravened a bylaw or who caused or permitted the contravention or the owner or occupier of the land on which the contravention occurred to do work to correct the contravention (Municipal Act, 2001, s. 445 (1)).

On December 19, 2017, council for the City (council) enacted the Tree Bylaw.

Extensive tree clearing activity is actively occurring in the City, resulting in the rapid loss of significant tree canopy.

The protection and preservation of woodlands in the City of Kingston contributes significantly to environmental sustainability, biodiversity, climate change mitigation and adaptation, erosion control, flood prevention, air and water quality, and the health, safety and well-being of residents.

The City is currently undertaking a comprehensive review of the City's planning framework through the preparation of the new official plan that will include updated policy direction respecting the City’s natural heritage system that will inform future amendments to the Tree Bylaw.

Council considers it necessary and desirable for the public to take interim measures to prevent the irreversible loss of tree canopy cover and associated ecological functions, including impacts to biodiversity, soil stability, and stormwater management.

Therefore, council enacts:

This bylaw may be cited as the Interim Woodland Preservation Bylaw. 1.1

1.2 In this bylaw:

Administrative penalty means an administrative penalty administered pursuant to the Administrative Penalty Process Bylaw;

Administrative Penalty Process Bylaw means City of Kingston Bylaw Number 2020-69, "A Bylaw to Establish a Process for Administrative Penalties";

City means The Corporation of the City of Kingston;

Clear cut(ting) means the removal or destruction of trees within a woodland that results in the reduction of more than 50% of the tree canopy cover within any contiguous area of 0.1 hectares, measured immediately prior to the removal or destruction, whether occurring as a single operation or a series of operations within any 12-month period;

Contiguous area means an area of land containing trees that are adjacent to one another or separated only by minor natural or artificial breaks, including trails, drainage features, or clearings, and includes areas that are ecologically or spatially connected such that they function as a single wooded area;

Council means the council of the City;

Director means the City’s director of the Planning Services Department, the director’s designate, or, in the event of organizational changes, the director of the successor division or department responsible for the administration of this bylaw;

Law means all applicable Acts of Parliament, Acts enacted by the Legislature, and bylaws enacted by council, and any regulations, codes, directions, licences, orders, permits or rules made under any of them;

Municipal Act, 2001 means the Municipal Act, 2001, S.O. 2001, c.25;

New official plan means the comprehensive official plan for the City intended to replace the City’s existing official plan, as adopted by council after the coming into force of this bylaw and approved by the Minister of Municipal Affairs and Housing;

Penalty notice means a notice given pursuant to subsections 2.2 and 2.4 of the Administrative Penalty Process Bylaw;

Person includes an individual, a corporation, a partnership, and an association;

Planning Act means the Planning Act, R.S.O. 1990, c. P.13;

Provincial Offences Act means the Provincial Offences Act, R.S.O. 1990, c. P.33;

Provincial offences officer has the meaning given to it in the Provincial Offences Act;

Tree means any species of woody perennial plant, including its root system, which has reached or can reach a height of at least 4.5 metres at physiological maturity;

Tree canopy cover means the area of ground covered by the crown of trees, as determined by aerial imagery, field measurement, or a combination of both, using methods that are consistent with generally accepted arboricultural or forestry practices and satisfactory to the director;

Tree Bylaw means City of Kingston Bylaw Number 2018-15, "A Bylaw to Prohibit and Regulate the Destruction or Injuring of Trees in the City of Kingston, and to Repeal and Replace Bylaw Number 2007-170, as amended"; and

Woodland(s) means a woodland identified on Schedule "A" of this bylaw.

1.3 For the purposes of interpreting this bylaw:

1. a reference to any legislation, regulation, or bylaw or to a provision thereof includes a reference to any legislation, regulation or bylaw enacted, made or passed in substitution thereof or amendment thereof;
2. any reference to legislation includes all of the regulations made thereunder; and
3. "include", "includes" and "including" indicate that the subsequent list is not exhaustive.

1.4 This bylaw will not be interpreted as exempting any person from the requirement to comply with any other law. In the event of conflict between the provisions of this bylaw and the provisions of the Tree Bylaw, the provisions of this bylaw will prevail to the extent of the conflict. Any injury to or destruction of trees not governed by this bylaw remains subject to the Tree Bylaw.

2.1 The director is responsible for the administration of this bylaw.

2.2 Where this bylaw provides that the director may do an act, the director may, when doing the act, seek and consider information or documents from any person, and may consult with other City employees, legal counsel, or other advisors, all as the director considers necessary.

2.3 Where this bylaw provides that the director may do an act, it may be done by a person authorized by the director to do the act.

3.1 This bylaw applies to all woodlands within the geographic boundaries of the City of Kingston.

4.1 No person shall cause, permit, allow or perform any clear cutting in a woodland, except as authorized under this bylaw.

4.2 An owner of land is deemed to have knowledge of and to have permitted actions that violate this bylaw that occur on the portion of the land over which the owner has control.

5.1 This bylaw does not apply to:

1. activities or matters undertaken by the City, a local board of the City, or the entity operating as Utilities Kingston;
2. activities or matters undertaken under a licence issued under the Crown Forest Sustainability Act, 1994, S.O. 1994, c. 25;
3. the injuring or destruction of trees by a person licensed under the Surveyors Act, R.S.O. 1990, c. S.29 to engage in the practice of cadastral surveying or their agent, while making a survey;
4. the injuring or destruction of trees imposed as a condition to a development permit authorized by regulation made under section 70.2 of the Planning Act or as a requirement of an agreement entered into under the regulation;
5. the injuring or destruction of trees by a transmitter or distributor, as those terms are defined in section 2 of the Electricity Act, 1998, S.O. 1998, c. 15, Sched. A, for the purpose of constructing and maintaining a transmission system or a distribution system, as those terms are defined in that section;
6. the injuring or destruction of trees undertaken on land described in a licence for a pit or quarry or a permit for a wayside pit or wayside quarry issued under the Aggregate Resources Act, R.S.O. 1990, c. A.8;
7. the injuring or destruction of trees undertaken on land in order to lawfully establish and operate or enlarge any pit or quarry on land: (i) that has not been designated under the Aggregate Resources Act, R.S.O. 1990, c. A.8 or a predecessor of that Act, and (ii) on which a pit or quarry is a permitted land use under a bylaw passed under section 34 of the Planning Act;
8. clear cutting authorized under a valid tree permit issued under the Tree Bylaw prior to March 24, 2026, provided that the tree permit remains valid and unexpired, and the clear cutting is carried out in accordance with the terms and conditions of the tree permit;
9. clear cutting that the director considers necessary to address an immediate risk to public health or safety or that the director considers necessary to control or prevent the spread of an invasive species, pest, or disease that poses a significant risk to the health of a woodland, provided that the clear cutting is limited to the minimum extent necessary to address the risk;
10. clear cutting required to implement a forest management or ecological restoration plan prepared by a qualified professional and satisfactory to the director, provided the director is satisfied that the clear cutting will
11. not result in unnecessary loss of tree canopy cover, and further provided that the clear cutting is limited to the minimum extent necessary to address the risk;
12. clear cutting authorized under an application for site plan control approval or final plan or subdivision approval pursuant to the Planning Act which has received final approval from the director or the applicable approval authority as of the date that this bylaw comes into force, provided the clear cutting is carried out in accordance with the terms and conditions of the site plan control agreement or subdivision agreement, as the case may be;
13. clear cutting on lands outside of the urban boundary, as identified in the City of Kingston Official Plan in force as of the date this bylaw comes into effect, that is required to permit the establishment or extension of a dwelling unit, including driveways and access routes, provided: (i) the proposed use is permitted by the City of Kingston Zoning Bylaw 2022-62; (ii) there is no reasonable alternative to the clear cutting, as determined by the director; (iii) a building permit has been issued for the dwelling unit or extension; and (iv) no tree is destroyed or injured that is located more than 15 metres from the outer edges of the existing dwelling unit and the outer edges of the expanded dwelling unit; and
14. clear cutting previously authorized by council or authorized by council through an exemption to this bylaw.

6.1 This bylaw may be enforced by a provincial offences officer or other authorized employee or agent of the City.

6.2 No person shall obstruct or hinder or attempt to obstruct or hinder the director, a provincial offences officer or other authorized employee or agent of the City in the exercise of a power or the performance of a duty under this bylaw.

6.3 The director, a provincial offences officer or other authorized employee or agent of the City may, in accordance with the provisions of the Municipal Act, 2001, enter on land at any reasonable time for the purpose of carrying out an inspection to determine whether this bylaw is being complied with.

6.4 For the purposes of an inspection, the director, a provincial offences officer or other authorized employee or agent of the City may:

1. require the production for inspection of documents or things relevant to the inspection;
2. inspect and remove documents or things relevant to the inspection for the purpose of making copies or extracts;
3. require information from any person concerning a matter related to the inspection;
4. alone or in conjunction with a person possessing special or expert knowledge, make examinations or take tests or photographs necessary for the purposes of the inspection; and
5. if the inspection is reasonably necessary because the director, a provincial offences officer or other authorized employee or agent of the City has been prevented or is likely to be prevented from doing anything set out in clauses (a) to (d), undertake an inspection pursuant to an order under section 438 of the Municipal Act, 2001.

6.5 No person shall neglect or refuse to produce any information or thing or to provide any information required by the director, a provincial offences officer or other authorized employee or agent of the City acting pursuant to an order under section 438 of the Municipal Act, 2001.

6.6 If the director is satisfied that a contravention of this bylaw has occurred, the director may make an order requiring the person who contravened this bylaw or who caused or permitted the contravention or the owner or occupier of the land on which the contravention occurred to:

1. discontinue the contravening activity;
2. do work to correct the contravention;
3. cease all site alteration activities on the land;
4. preserve all trees, stumps, and soil conditions in their existing state; or
5. any of the above.

6.7 An order under subsection 6.6 must set out:

1. reasonable particulars of the contravention adequate to identify the contravention and the location of the land on which the contravention occurred;
2. the work to be done, if any; and
3. the date by which there must be compliance with the order.

7.1 Any person who:

1. contravenes any provision of this bylaw;
2. contravenes an order under subsection 6.6;
3. hinders, obstructs or interferes with the director or a provincial offences officer in the exercise of the director’s or the provincial offences officer’s powers or duties; or
4. hinders, obstructs or interferes with a person authorized by the director to do an act in the exercise of that person’s authority to do the act;

is guilty of an offence as provided for in the Provincial Offences Act.

7.2 Every officer or director of a corporation who knowingly concurs in the contravention of any provision of this bylaw is guilty of an offence as provided for in the Provincial Offences Act.

7.3 If the director, a provincial offences officer or other authorized employee or agent of the City is satisfied that a person has failed to comply with this bylaw, the director, a provincial offences officer or other authorized employee or agent of the City may require the person to pay an administrative penalty by issuing a penalty notice to the person, and the Administrative Process Penalty Bylaw applies to each administrative penalty issued pursuant to this bylaw.

7.4 If a person is required to pay an administrative penalty under subsection 7.3 in respect of a contravention of this bylaw, the person will not be charged with an offence in respect of the same contravention.

7.5 Every person who is convicted of an offence under this bylaw is liable to a minimum fine of $500 and to a maximum fine of $100,000, pursuant to subsections 429 (1) and (3) of the Municipal Act, 2001.

7.6 Each offence in this bylaw is designated as a continuing offence. A person who is convicted of an offence under this bylaw is liable, for each day or part of a day that the offence continues, to a minimum fine of $500 and a maximum fine of $10,000, and the total of all daily fines for the offence is not limited to $100,000 as provided for in section 429 of the Municipal Act, 2001.

7.7 When a person has been convicted of an offence under this bylaw, the Ontario Court of Justice or any court of competent jurisdiction may, in addition to any other penalty imposed on the person convicted, make an order:

1. prohibiting the continuation or repetition of the offence by the person convicted; and
2. requiring the person convicted to correct the contravention in the manner and within the period that the Court considers appropriate.

8.1 If a corporation:

1. is convicted of an offence under this bylaw; or
2. receives two or more penalty notices under this bylaw that are not cancelled pursuant to the Administrative Penalty Process Bylaw, the director may publish, cause to be published, or otherwise make available to the general public the name of the corporation, a description of the offence or penalty notice, the date of the conviction or penalty notice and the corporation’s sentence or the amount of the administrative penalty. The authority to publish under this subsection 8.1 includes authority to publish on the Internet, including on a website or in a report to council.

8.2 If a court of competent jurisdiction declares any provision, or any part of a provision, of this bylaw to be invalid, or to be of no force and effect, it is the intention of council in enacting this bylaw that each and every provision of this bylaw authorized by law be applied and enforced in accordance with its terms to the extent possible according to law.

8.3 This bylaw will come into force and take effect on the date it is passed.

8.4 Subject to subsection 8.5, this bylaw will expire on the date that the new official plan comes into force, in whole or in part.

8.5 Despite the expiry of this bylaw pursuant to subsection 8.4, all prosecutions and other enforcement processes commenced under this bylaw, including all orders issued pursuant to this bylaw, which have not been completed on the day this bylaw expires shall be completed under this bylaw as if it had not expired.