Understanding this year's threats to big trees
By Daniel Buckles, with contributions from Heather Pearl and Debra Huron.
Intensification in Kitchissippi Ward continues to remake urban space, with consequences that remain hotly contested. The loss of big trees on streetscapes and in backyards is a visible impact, particularly for neighbours of properties redeveloped. Some have called this “an extinction event”, an accurate moniker because so few trees are being replaced due to the footprint of the new buildings and builders’ limited imaginations. That is why protecting the healthy big trees in the ward is so important to slowing the loss, and providing time for policies and awareness of the benefits of urban trees to take hold.
This year the City is reviewing the Urban Tree Conservation By-law, passed in 2009, creating an opportunity to improve its effectiveness. As it currently stands, the by-law makes it an offence to destroy or injure “distinctive trees” on private property. A “distinctive tree” means any tree with a Diameter at Breast Height (DBH) of 50 centimetres or greater. Under the by-law, a property owner must seek a permit to remove or injure a “distinctive tree”, and provide reasons.
The City also has been experimenting with regulations aimed at encouraging Infill builders to consider tree conservation earlier in the planning process. The Infill Tree Conservation Program, set up in 2017, requires that Building Permit applications, including those that go to Committee of Adjustment, provide an arborist’s report disclosing information on “distinctive trees” on the property and on affected neighbouring properties. This has created scope for the Forestry Services Branch to note risks to trees in their own reports to the Committee of Adjustment and City departments, and discuss tree protection measures with builders.
While the by-law and the program are well-intended, experience to date shows that unethical builders develop their own tactics to circumvent the letter and spirit of these efforts. Many people in the ward witnessed a long period during which the Urban Tree Conservation By-law was not enforced vigorously by the City, but rather treated as “an educational tool”. For years, many builders simply ignored the requirement, and claimed ignorance if they were caught. Forestry Services Branch staff were not empowered and trained to issue by-law infractions directly, and more often than not were limited to giving warnings and permits after the fact. Violations of the by-law were rarely prosecuted, as is clear from City reporting for the period 2009 to 2013.
As public concern over the loss of trees to infill mounted, builders developed other tactics still in use. Some promise community associations and residents they will retain trees, in exchange for support for their Minor Variance Applications. Too often, these agreements end in ‘accidental’ injury to trees during excavation, ultimately leading to a tree removal permit on safety grounds. Several incidents on the street in Champlain Park where I live, where no Minor Variances were needed, even resulted in the destabilisation and loss of trees on neighbouring properties (See comments on a failed court case here). This occurs because excavation contractors are not respecting the property line of the next door neighbours. They also dig closer to the street and further into the rear yards than is necessary for creating the foundation.
This story from CBC shows that neighbours learn the hard way that any damage to their property is considered a civil matter. They can choose to take the builder to court, with all the expense and inconvenience that this entails, or hope that the builder is honourable and repairs the damage that can be repaired. Given that trees take 30 to 40 years to grow to any size, the loss of a mature tree is one type of damage that can never be repaired.
In other cases throughout the ward, trees have been seriously injured during construction and died a few years after sale of the property (large trees can take 5 years or more to die). Most of these trees would have thrived had the builder taken reasonable care to protect them.
Real estate ads often cite mature trees as selling features. Ironically, instead of being able to enjoy the mature tree that made the property more attractive to them, some new owners are forced to bear the cost of removing it. Builders thus transfer the cost of their carelessness to new owners.
This situation continues, although clear violations of the tree permitting process now result in charges. Unfortunately, rulings typically result in nominal fines (less than $500) and only then after many postponements (at considerable cost to the court system).
Late in 2017 I became aware of a new and worrisome tactic. It involves applying pressure on the property seller to remove trees as an informal condition of sale. This happened recently in Kitchissippi Ward, although I cannot disclose details for reasons of privacy.
Here is why the new tactic works: the bother and cost of tree removal is shifted from the buyer to the seller. By having a current owner dispose of trees before sale, the builder reduces the risk of local opposition and blame for tree removal. The bother and various cost of complying with provisions of the Infill Tree Conservation Program are also eliminated (commissioning an arborist's tree disclosure information report, in addition to a report for a tree removal permit, and making a $700 tree deposit). The property is acquired as a blank slate, with no pesky trees to constrain lot-line to lot-line excavation. Sellers can get a tree permit on its own at a lower cost ($100 plus one report rather than two), and scrutiny may be less intense from neighbours and community associations. For reasons listed below, scrutiny from the City works differently for residents simply wanting to remove a tree compared to builders planning an infill.
Why blog about this tactic, and risk promoting it? First, because awareness is the first line of defence against perverse behaviours. City officials and residents should know this is happening, and builders be advised that they are being watched. Certainly, the news should put Forestry Services Branch on high alert against complacency in application of the by-law. All property owners who want to remove a “distinctive tree” should provide sound reasons and verifiable evidence justifying tree removal or damage.
Second, it flags another reason why the Urban Tree Conservation by-law and related tree protection regulations need to be improved, especially around the permitted reasons for removal and standards of evidence. Three catch-all reasons in particular stand out:
“there is no reasonable alternative to destruction or injury”;
“the applicant has undertaken to implement satisfactory landscaping, replanting or tree preservation”
“other circumstances deemed appropriate by the General Manager exist”.
What do these statements really mean? They are not transparent, precise nor observable.
Another reason listed in the by-law is that the tree “is specifically identified on plans approved by the Ontario Municipal Board, Council or a final and binding decision of the Committee of Adjustment”. In other words, completion of any other permitting process (such as a Building Permit) is sufficient reason to give a permit to destroy or injure a “distinctive tree”. The logic is circular.
The by-law is further undermined by the Committee of Adjustment's current position that they cannot consider trees when they deliberate and make decisions simply because the Planning Act and the Regulations made under the Planning Act do not specifically direct them to do so. This happens in spite of the fact that mature trees can and have in the past factored into planning arguments regarding community character, and even into a number of policies in the Provincial Policy Statement. In 2011 these arguments were used to good effect by the Champlain Park Community Association at the OMB, leading eventually to the reduction of a 4 unit proposal to a 3 unit proposal that retained a “distinctive tree” (a bur oak) ruled part of the “extant landscape fabric and features”. This is a rare occurrence, however. More typically, builders can comply with the requirement to identify “distinctive trees” on their plans knowing that this will not influence the Committee of Adjustment. Once the plans are approved a tree permit cannot be denied. This perfect Catch 22 undermines the intent of both the Urban Tree Conservation By-law and the Infill Tree Conservation Program.
To be fair, the by-law and the Infill Tree Conservation Program do allow the City to impose conditions on permits to destroy or injure trees. These have typically involved promises to protect trees during construction and plant replacement trees. Here too enforcement is a losing battle as even the most basic steps, such as protecting the critical root zone of a tree, are often treated with distain (see the "fence" in the photo above). With City staff stretched thin in Westboro's Wild West, it is often left to vigilant neighbours to alert Forestry Services Branch to by-law infractions (call or email email@example.com to flag a potential issue).
Many infill builders and new infill owners in Kitchissippi also fail to plant trees, opting for grasses, bushes and even artificial turf instead (take a walk down the north end of Roosevelt Avenue to see a particularly egregious string of desolate front yards).
It should be clear to all that too many Infill builders will simply not see the light. They have to feel the fire. Better by-laws and active enforcement will help slow the loss. To make any serious ground, however, requires relentless pressure on politicians and City senior managers to make mature trees an integral part of urban spaces.