Spot the Difference

In an earlier article, I wrote about three appeals of decisions made under the Tree Protection Bylaw. You may remember one in particular. If not, here is the background: home at 537 Chester. Tree close to home. Permit for tree removal issued with the condition that two replacement trees be planted and a security deposit be provided to ensure planting and future health of the replacement trees. The homeowner appealed the requirement of the security deposit. The appeal was denied and the security deposit had to be paid.

Fast forward to the November 20, 2024 council meeting and yet another appeal of a decision made under the Bylaw. The facts seem to be the same as for the 537 Chester tree. But, as for the outcome of the appeal...

The Director of Planning presented the facts at the appeal. The homeowner wanted to remove a mature cedar tree (over 75 cm in diameter at breast height) growing in close proximity of the home. A permit was required for the removal of the tree as it is a "Protected Tree" under the Bylaw due to the circumference of its trunk. The Director approved the issuance of a permit. As a condition of the issuance of the permit, the Director required the planting of two replacement trees (or payment in cash in lieu of) and a security deposit of $700 for each replacement tree (to be held by the Town, without interest, for two years and refunded, upon request by the homeowner, provided the trees are in good health). The homeowner requested that the Director reconsider the conditions. The Director stated that he did not have the authority to vary the conditions under which a permit is issued. As a result, the homeowner appealed to Council. In his report to Council at the appeal, the Director recommended that the planting of the two replacement trees still be required but that the security deposit be waived.

The issue for Council to decide was whether the homeowner needed to provide a security deposit to ensure that the two replacement trees were planted and will be in good health in two years. Notwithstanding the apparent clarity of the issue, a considerable amount of time was spent by Council discussing the lack of options available to the homeowner in the circumstances, namely, that the tree was close to the home and had to be removed. Councillor Skipsey commented that cutting the tree was not the issue before Council; that the issue was the security deposit. Councillor Skipsey referred to previous decisions and stated that the application of the Bylaw needed to be consistent. At that point in the meeting, the CAO interjected and stated that the consistency with the Bylaw is that there is an appeal process.

Prior to reaching a decision, Council had further discussions regarding the Town's position in the event the homeowner is not required to provide a security deposit. Some options suggested by staff and Council: the homeowner could write a letter to Council promising to plant the replacement trees with a subsequent photo (presumably in two years time) showing them thriving; the town could diarize and follow up with the homeowner in two years.

At the end of the discussion, a decision was made and Council agreed to waive the security deposit.

Going back to the 537 Chester decision. Similar facts. Homeowner appealed the decision requiring payment of a security deposit. Appeal denied. Consistency? Yes, if you believe that consistency means the right to appeal a decision; consistency in the application of the Bylaw and actual decisions? I think the jury is still out on that one.

That, however, may not be the end of the story for the Chester tree as the Mayor suggested that the homeowner could reapply for the return of their security deposit. I guess that would be an appeal of an appeal.

James Noel

November 26 2024

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