County Encroachment By-Law - By-Law No. 5990

A By-law to provide for the regulation of permanent encroachments upon, under or over highways within the County of Middlesex and to repeal By-law #5843.

          WHEREAS Part II of the Municipal Act, 2001, S.O. 2001, c.25, as amended (the “Municipal Act”) authorizes a municipality to pass By-Laws for the regulation of matters under its jurisdiction and to provide for a system of licenses, permits, approvals or registrations regarding matters that are so regulated;

          AND WHEREAS Part XII of the Municipal Act authorizes a municipality to charge fees and require security deposits under all of the municipality’s By-Laws;

          NOW THEREFORE the Council of The Corporation of the County of Middlesex enacts as follows:

1. GENERAL
   1. Short Title
      1. This By-Law, including all schedules attached hereto and forming part of this By-Law, may be cited as the “Permanent Encroachment By-Law”.
   2. Interpretation
      1. The captions and headings in this By-Law are inserted for convenience only and do not define, limit or enlarge the scope, meaning or intent of any provision.
      2. In this By-Law, words used in the present tense include the future tense, words in the masculine gender include the feminine and neuter and the singular number includes the plural and the plural the singular.
      3. In this By-Law, the word “shall” is mandatory and not discretionary.
   3. Application of Other Legislation
      Nothing in this By-Law shall relieve any person from any obligation to comply with the requirements of any other By-Law or legislation or with the requirement to obtain any license, permit, certificate, authority, approval, consent, variance or remit any fee, security deposit, letter of credit or any other security or payment otherwise required.  Without limiting the generality of the foregoing, the County Highway By-Law being By-Law No. 5648 may, in certain circumstances, regulate some of the activities governed by this By-Law.  In such event, this By-Law and the County Highway By-Law must be complied with.  In the event any section, clause or provision of this By-Law conflicts with the said County Highway By-Law, the section(s), clause(s) or provision(s) that establish(es) the higher standard shall prevail.
   4. Validity
      Should any section, clause or provision of this By-Law be held by a Court of competent jurisdiction to be invalid, in whole or in part, the validity of the remainder of that section, clause or provision and the validity of the remainder of the By-Law shall not be affected thereby. Each section, clause or provision of this By-Law are hereby deemed to be separate and distinct sections, clauses or provisions.
   5. Conflicting By-Laws
      Where any section, clause or provision of this By-Law conflicts with any section, clause or provision of any other By-Law of The Corporation of the County of Middlesex, the section(s), clause(s) or provision(s) that establish(es) the higher standard shall prevail.
   6. Change in Statutes
      Where any Act or any portion of any Act is referred to in this By-Law, such reference shall be interpreted as referring to any subsequently renumbered sections of the Act and/or changes to the date of the Act and/or amendments or revisions to the Act or re-enactments of the Act or any legislation that replaces the Act.
   7. Effective Date
      This By-Law shall come into full force and effect as of the date of passing hereof.

2. DEFINITIONS
    “Application” means an application for an Encroachment Agreement in the form set out in Schedule “A”. 

   “Application Fee” means the fee that is required by the County from any Owner to apply for an Encroachment Agreement.

   “Boulevard” means all parts of a Highway save and except any Roadway, shoulder or sidewalk.

   “County” means The Corporation of the County of Middlesex.

   “County Council” means Council for The Corporation of the County of Middlesex;

   “County of Middlesex” means the lands within the geographical boundaries of Middlesex County, in the Province of Ontario.

   “County Engineer” shall mean the person appointed by the Council of The Corporation of the County of Middlesex to the position of County Engineer and any employee of the County who acts at the direction of the County Engineer.

   “County Highway” shall mean a common and public highway, road allowance, street, avenue, lane or other public way under the jurisdiction of The Corporation of the County of Middlesex and includes any bridge, trestle, viaduct or other structure forming part of the County Highway and except as otherwise provided includes a portion of a highway and includes the entire area between the property lines thereof.

   “Encroachment” means anything man-made or naturally occurring that encroaches on a Highway whether below, at, or above the Highway surface and includes a Temporary Encroachment and a Permanent Encroachment.

   “Encroachment Agreement” means the Encroachment Agreement referred to in Section 4.4 herein.

   “Encroachment Fee” means the annual, monthly, application or any other fees that are payable by an Owner pursuant to an Encroachment Agreement.

   “Highway” means a common and public highway, road allowance, street, avenue, lane or other public way and includes any bridge, trestle, viaduct or other structure forming part of the highway and except as otherwise provided includes a portion of a highway and includes the entire area between the property lines thereof.

   “Municipality” means any one of the lower tier municipalities which comprise the County of Middlesex.

   “Municipal Engineer” means the person appointed by a Municipality to the position of Municipal Engineer and any employee of a Municipality who acts at the direction of the Municipal Engineer.

   “Owner” means any person who is a registered owner, owner under agreement, lessee, or occupier of real property.

   “Permanent Encroachment” means a new or existing Encroachment on a Highway whether below, at or above the Highway surface, and includes, but is not limited to, a bay window, a wall, foundation, porch, steps, entrance shelter, fire escape, chimney, fence, hedge, tree, ornamental rock garden or flower bed, community gate or sign, tunnel, vault, pipe, storage tank or duct or any other thing or object that encroaches upon a Highway and is not a Temporary Encroachment.

   “Public Utility” means a board, commission or corporation that provides a public work or public utility.

   “Roadway” shall mean the travelled portion of a Highway which is improved for the travel of Vehicles and includes the shoulder of the Highway.

   “Road Works” shall mean the physical improvements which have been made to a Highway including pavement, curbs (if applicable), signs, gutters, ditches, trees, culverts, treed and graded surfaces, swales, utility apparatus, utility infrastructure and gravelled surfaces.

   “Temporary Encroachment” means a new or existing Encroachment on a Highway whether at or above the Highway surface that is used on a temporary basis for no more than six (6) months for purposes including, but not limited to, decorations, planters, canopies, outdoor patios, patios, courier drop boxes, refuse containers, sales  kiosks, equipment, equipment for the construction, repair, renovation, alteration, maintenance or demolition of a building and also includes any other Encroachment of a temporary nature.

   “Vehicle” includes a motor vehicle, trailer, traction engine, farm tractor, road building machine, bicycle and any Vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle. 

3. EXEMPTIONS
   1. The provisions of this By-Law do not apply to:
      1. Signs authorized by the County Sign By-Law being By-Law No. 4364;
      2. Works, equipment, assets and infrastructure of the County, an agent of the County or a Public Utility; or
      3. Works and equipment of any person performing construction or maintenance operations on a County Highway, but only to the extent that such works and equipment are lawfully authorized by any agreement with, permit of or a By-Law of the County, failing which the exemption in this Section 3.1.c shall not apply; or
      4. Lands where an Encroachment Agreement for a temporary Encroachment has been entered into between the owner, the County and the applicable lower tier municipality pursuant to By-Law #5844 in respect of the subject encroachment.
4. PERMANENT ENCROACHMENTS
   1. Requirement of Encroachment Agreement
      1. Subject to the exemptions listed in Section 3 herein, no person shall allow, permit, excavate for, construct, erect, use, alter or maintain any Permanent Encroachment below, upon or over a County Highway unless such person has first entered into an Encroachment Agreement with the County in accordance with Section 4.4.  
      2. An Encroachment Agreement shall not be approved by the County under this By-Law for a Temporary Encroachment upon or over a County Highway.
   2. Authority of the County Engineer
      1. Subject to Section 4.1.b, the County Engineer may submit an Application for the consideration of County Council or reject an Application in his sole and absolute discretion.   Without in any way limiting the discretion of the County Engineer and solely for the purpose of assisting any Owner in submitting an Application , the County Engineer will consider the following issues when evaluating an Application:
         1. Whether the Encroachment was in existence on the date of the passing of this By-Law;
         2. Whether the Application gives rise to any safety concerns;
         3. Whether the Encroachment may cause  detrimental impact on the environment;
         4. Whether the Encroachment has the potential to impact traffic flow,  Highway maintenance or future development;
         5. Any possible interference with future Highway improvements including, but not limited to, sidewalk or utility construction and road widenings;
         6. Whether the Permanent Encroachment is solely for the construction of a porch or steps;
         7. Possible interference, present and/or future, with public uses including, but not limited to, interference with utilities, sidewalks and pedestrian use;
         8. The size of the Permanent Encroachment and whether it is reasonable in the circumstances; 
         9. Compliance with policies established by County Council;
         10. Whether the Encroachment is a Permanent Encroachment or a Temporary Encroachment; 
         11. The term of any requested Encroachment Agreement for the Permanent Encroachment; 
         12. For manure pipelines, compliance with the Standards for Manure Pipelines on County Roads which are annexed hereto as Schedule “B”; or
         13. Compliance with all By-Laws of the County and the applicable Municipality; and
         14. Any other reason that, in the sole discretion of the County Engineer or County Council is relevant or applicable.
      2. Approval by County Council
         If the County Engineer has recommended that an Application be considered by County Council, County Council may accept or reject the Application in its sole and absolute discretion.  County Council may also impose such conditions as County Council deems necessary in its sole and absolute discretion.  Without in any way limiting the discretion of County Council, County council may consider the issues set out in Section 4.2.1 herein when deciding to accept or reject the application.
      3. Procedure for Application
         1. Applications shall be made by the Owner or a representative of the Owner in the form specified in Schedule A and shall include: 
            1. a sketch showing the location and dimensions of the Permanent Encroachment;
            2. information as to the materials out of which the Permanent Encroachment has been or will be constructed; 
            3. the method and extent of its illumination, if applicable; and
            4. the non-refundable Application Fee as determined by County Council from time to time
         2. If the Permanent Encroachment proposed in the Application is approved by County Council, the Owner or representative of the Owner shall then file with the County Engineer:
            1. Three copies of a plan, certified by an Ontario Land Surveyor showing the location and dimensions of the Permanent Encroachment and the adjacent part of the premises to which it is or will be appurtenant, and the location of the lot line, except in the case of a permanent canopy that does not require a building permit and is deemed by the County Engineer not to constitute a material alteration to the structure; an

            2. A registerable description of the property to which the Permanent Encroachment is or will be appurtenant.

               In the event that the materials referred to in Section 4.3.2 are not consistent with the information set out in the Application, the County Engineer shall have the authority, but not the obligation, to withdraw any approval of the said Application for the Encroachment Agreement.

      4. Encroachment Agreement
         1. If the Application is approved by County Council, the Owner of the property to which a Permanent Encroachment is appurtenant shall enter into an Encroachment Agreement with the County.  The form of Encroachment Agreement shall be substantially in the form of Schedule “C” through Schedule “F” of this By-Law, as applicable.  County Council shall have the right in its sole and absolute discretion to determine which form of Encroachment Agreement shall apply for any Application. The County shall have the right to make any amendments to the form of the Encroachment Agreement that may be required in the circumstances in its sole and absolute discretion.  For clarity, final approval of the application will not occur until a By-Law is passed by County Council authorizing the County Warden and County Clerk to sign and register the Encroachment Agreement at the Owner’s expense.
         2. The Encroachment Agreement referred to in subsection 4.4.1 shall be registered by the County against the land to which the Permanent Encroachment is appurtenant at the Owner’s expense. 
         3. The Encroachment Agreement shall require payment of an annual fee which shall be set by County Council at its discretion.
      5. Insurance
         1. The Owner of the property to which a Permanent Encroachment is appurtenant shall obtain and maintain insurance in accordance with the following requirements:
            1. Comprehensive general liability insurance, in a form satisfactory to the County Engineer, in an amount not less than Two Million Dollars ($2,000,000.00) inclusive per occurrence, or such higher amount as may be designated by the County Engineer, for bodily injury, death and damage to property, including loss of use thereof, in the joint names of the Owner and the County;
            2. To ensure that the above-mentioned insurance is not cancelled, amended or permitted to lapse, the policy shall contain an endorsement to provide all named insureds with thirty (30) days prior notice of changes to or cancellation of the policy; and
            3. A Certificate of Insurance evidencing the above insurance coverage shall be provided to the County prior to the County signing the Encroachment Agreement and thereafter a Certificate of Insurance shall be delivered promptly to the County on each subsequent insurance renewal date.
5. GENERAL REGULATIONS
   1. Term of Encroachment Agreement
      An Encroachment Agreement shall be for a period not exceeding the life of the Permanent Encroachment or the life of the appurtenant building, structure, or pipe, if applicable, whichever is shorter.
   2. Location of Encroachment
      No Permanent Encroachment shall be erected in a location that obstructs the view of an official regulatory sign or traffic control signal, or that interferes with the operation of, or the timely maintenance of, any part of the County Highway or any utility equipment, plant or infrastructure.
   3. Rebuilding and Removing the Encroachment
      If any Permanent Encroachment is rebuilt, cut down, or removed for any reason or by any means, the Permanent Encroachment cannot be rebuilt or replaced in whole or in part on the County Highway.  Such an Encroachment must be removed from the County Highway and not replaced unless the Owner enters into another Encroachment Agreement authorizing the new Permanent Encroachment.
   4. Alterations to Encroachment
      If an existing Permanent Encroachment authorized by this By-Law is altered or changed in any manner, the original Encroachment Agreement shall be null and void and a new Encroachment Agreement must be obtained pursuant to the provisions of this By-Law.
   5. Maintenance of the Encroachment
      The Owner of the property to which a Permanent Encroachment is appurtenant shall at all times maintain and keep the Permanent Encroachment and adjacent surface in proper repair at the Owner’s expense, in a proper and safe condition for the traffic thereon, and to County standards. If the Permanent Encroachment and adjacent surface is not kept in good repair, upon written notice from the County, the Owner of the property to which the Permanent Encroachment is appurtenant shall repair the Encroachment and the adjacent surface at his own expense and to the County’s specifications.  If the notice is not complied with within ten (10) days from the date that the notice is sent, or such earlier date in the event the public is endangered by the Owner’s failure to repair, the County shall have the right, but not the obligation, to repair the Permanent Encroachment and the adjacent surface at the expense of the Owner.  The County shall add the cost thereof to the tax roll of the property adjacent to the Permanent Encroachment and any other properties within the County owned by the Owner and collect same in like manner as municipal taxes.
6. GENERAL
   1. Removal of Unauthorized Encroachments
      1. The County Engineer may give notice in writing to the Owner of the property to which an unauthorized Encroachment is appurtenant to forthwith remove, fill in, or close up the Encroachment and restore the County Highway to its former condition at the Owner’s expense.  
      2. If the notice referred to in subsection 6.1.1 above is not complied with within ten (10) days from the date that notice is sent, the County shall have the right but not the obligation, to remove, fill in, or close up the Encroachment and restore the County Highway to its former condition at the Owner’s cost.  The County may add the cost thereof to the tax roll of the property adjacent to the Encroachment and any other properties within the County owned by the Owner and collect same in like manner as municipal taxes.
7. ENFORCEMENT
   1. Fine for Contravention
      Any person who contravenes any provision of this By-Law is, upon conviction, guilty of an offence and is liable to any penalty as provided in the Provincial Offences Act and Part XIV of the Municipal Act. Any person who hinders or obstructs a person lawfully carrying out the enforcement of this By-Law is guilty of an offence and is liable to any penalty as provided in the Provincial Offences Act (Ontario), as amended, and Part XIV of the Municipal Act. 
   2. Continuation - Repetition - Prohibited - By Order
      The Court in which the conviction has been entered, and any Court of competent jurisdiction thereafter, may make an order prohibiting the continuation or repetition of the offence by the person convicted, and such order shall be in addition to any other penalty imposed on the person convicted.
   3. Performance of Covenants
      If any person, firm, corporation, partnership, utility or any other entity, by any act or omission, contravenes any section, clause or provision of this By-Law, without in any way limiting the obligations of such person, firm, corporation, partnership, utility or any other entity, the County shall have the right, but not the obligation, to take such actions as may be necessary to remedy the contravention of the section, clause or provision of this By-Law.  In the event that the County takes such actions as are necessary to remedy any contravention of any section, clause or provision of this By-Law, the County shall have the right to collect any costs, disbursements or other expenses incurred in like manner as the collection of municipal taxes.
   4. Notice
      In the event that the County exercises its rights to remedy any contravention of this By-Law, before taking such action, the County shall make reasonable efforts to deliver notice to the person, firm, corporation, partnership, utility or any other entity which has contravened this By-Law.  Notice under this Section shall be effectively given when:
      1. personally delivered to the intended recipient;
      2. mailed pre-paid registered mail to the intended recipient at his last known address shown on the records of the County; or 

      3. by posting a notice on any Vehicle (licensed or unlicensed) owned by the intended recipient.

         Notice personally delivered to the intended recipient shall be deemed received on the date of delivery.  Notice given by pre-paid registered mail shall be deemed received on the second business day following the mailing thereof.  Notice posted on any vehicle owned by the intended recipient shall be deemed received the day following delivery thereof.

8. That By-law # 5843 be repealed.

BY-LAW read a first time this 8^th day of May, 2007.

BY-LAW read a second time this 8^th day of May, 2007.

BY-LAW read a third time and finally passed this 8^th day of May, 2007. 

PASSED in Council this 8^th day of May, 2007.