Division Fence By-law 2013-06

In this By-law,

1.1 "act" or "Act" means the Line Fences Act, R.S.O. 1990, C.L 17, as amended;

1.2 "Actual Cost" means the total cost of the construction or maintenance of a Division Fence, and includes taxes, the value of the material used, and the value of the labour performed to complete the work.

1.3 "Adjoining Owner" means the person(s) who owns the land adjacent to the land of another land owner seeking to construct or maintain a division fence.

1.4 "Basic Agricultural Fence" means a fence along a boundary line of any agriculturally zoned land, and shall consist of 8 strand page wire fencing 106.7cm (42 inches) tall.

1.5 "Basic Cost" means the total cost of construction or maintenance of:
      1.5.1 a Basic Agricultural Fence; or     

      1.5.2 a Basic Residential Fence

1.6 "Division Fence" means a fence marking the boundary between adjoining parcels of land, and located on the actual property line.

1.7 "Maintain" means to construct, repair, replace or maintain a division fence, as applicable, and "Construct" has a corresponding meaning.

1.8 "Owner" means the registered owner of the land and includes the person managing or receiving the rent for the land or premises, and the person who wishes to construct or maintain a fence.

1.9 "Public Highway" means lands owned by the Town and designated as a common and public highway, including any street, bridge, trestle, viaduct or other structure forming part of the highway and, except as otherwise provided, includes a portion of a highway.

1.10 "Public Authority" means the federal or provincial government, crown agents, school boards and regional municipalities, to whom the context can apply but specifically excludes the Town.

1.11 "Residential Fence" means a four (4) foot high (1.2 metre), 1 % inch mesh, steel chain link fence.

1.12 "Unopened road allowance" means lands owned by the Town but have yet to be assumed by the Town by the enactment of a by-law.

1.13 "Town" means The Corporation of the Town of Bradford West Gwillimbury

2.1 From and after the date this By-law is enacted, the provisions of the Act, except for Section 20 thereof, shall no longer apply in the Town.

     2.2 The provisions of this By-law do not apply:

     2.2.1 to any lands forming part of a Public Highway, to lands abutting a Public Highway that are held as a
     reserve by the Town or any Public Authority, or to lands that are being held by a Town or other Public
     Authority as an unopened road allowance or for future Public Highway purposes;

     2.2.2 where an Owner has initiated proceedings under the Act prior to the date this By-law is enacted;

     2.2.3 to fences that have already been constructed, except that this By-law may apply to an Owner that
     wishes to maintain an already constructed Division Fence; or

     2.2.4 to fences that are not located on the actual property line.

3.1 An Owner may construct or maintain a Division Fence, subject to compliance with the provisions of this By-law, any other By-law that related to fences, including the Town's Comprehensive Zoning By-law and Fence By-law, as amended or any By-law passed in substitution thereof.

3.2 Where the Owners of adjoining lands are in agreement or are able to reach an agreement on the details of construction or maintenance of the said Division Fence, each of them shall construct or maintain a reasonable portion of a Division Fence, or shall bear such proportion of the cost of any work required in connection with the construction or maintenance thereof, as is provided for in the agreement reached between the Owners, regardless of any provision to the contrary in this By-law.

3.3 Where the Owners of adjoining lands cannot agree or reach an agreement an Owner desiring to construct or maintain a Division Fence may do so subject to complying with the following requirements:

     3.3.1 the Owner must deliver a "Notice of Intent" to the Adjoining Owner by registered mail, advising of his
     intent to construct or maintain the Division Fence, a sample of which is attached to this By-law as Schedule
     "A";

     3.3.2 the Notice of Intent must contain, at a minimum, the following information:

          i. a copy of three (3) written quotes for the Actual Cost and at least one (1) written quotes for the Basic
          Cost for the fencing work to be undertaken;

          ii. a paragraph stating that the construction or maintenance of the Division Fence will commence
          fourteen (14) business days after the date of mailing of this "Notice of Intent" and the Owner may seek
          a contributory payment for the work to the Division Fence from the Adjoining Owner in accordance with
          this By-law;

          iii. a further paragraph stating that the Adjoining Owner may obtain three (3) additional quotes for
          presentation to the Owner not later than ten (10) business days from the date of mailing of the "Notice
          of Intent"; and

          iv. a complete copy of this By-law must be attached to the "Notice of Intent".

3.4 In cases where the cost of construction or maintenance of a Division Fence is in dispute, the cost shall be apportioned as follows:

     3.4.1 the Adjoining Owner shall pay fifty percent (50%) of the Basic Cost or fifty percent (50%) of the
     Actual Cost, whichever is the lesser, having considered all the fencing quotes exchanged; and

     3.4.2 the Owner desiring to construct or replace the Division Fence shall pay the balance of the Actual Cost.

3.5 Once a fence has been constructed, the cost of maintenance to the Division Fence shall be borne equally by the Owner and the Adjoining Owner, in accordance with Section 3.4, save and except for the following exceptions:

     3.5.1 the cost of repairs to a Division Fence shall be borne by the Owner if her or his invitees caused the
     damage necessitating the repair;

     3.5.2 the cost of repairs to a Division Fence shall be borne by the Adjoining Owner if her or his invitees
     caused the damage necessitating the repair;

     3.5.3 the cost of repairs to the Division Fence shall be borne equally by the Owner and the Adjoining Owner
     if the damage necessitating the repair was caused by natural disaster; and

     3.5.4 if a tree is thrown down by accident, carelessness, negligence, deliberate intent or otherwise, so as to
     cause damage to a Division Fence, the Owner of the land on which the tree stood shall, at his sole expense,
     forthwith remove the tree and maintain the fence.

3.6 Where the Town is the Adjoining Owner of lands, other than lands as described in Subsection 2.2, the cost of construction or maintenance of a Division Fence shall be assigned as follows:

     3.6.1 the Owner shall pay 95% of the cost of work; and

     3.6.2 the Town shall pay 5% of the cost of the work.

3.7 Where non-agricultural property abuts an agricultural property, the standard for fencing along the common boundary line between the two properties shall be the Basic Agricultural Cost. The remainder of the residential or non-agricultural property may be fenced to the Basic Residential Cost.

4.1 Any Owner desiring to enforce the provisions of this By-law shall, within 90 days after completion of the construction or maintenance of the Division Fence, serve or cause to be served on the Adjoining Owner a notice by registered mail requiring compliance with this By-law by means of payment of the Adjoining Owner's portion of the Basic Cost, and if such compliance does not take place within thirty (30) days after service of the notice, the Owner may take appropriate proceedings under Part III of the Provincial Offences Act to recover the
proportionate share of the cost of the work from the Adjoining Owner.

5.1 In this by-law, unless the context otherwise requires, words imparting the singular number shall include the plural and words imparting the masculine gender shall include the feminine. The converse of the foregoing shall also apply where the context so requires.

5.2 Notwithstanding anything herein to the contrary, the provisions of this By-law shall not be interpreted as superseding or supplanting the provisions of any other By-law heretofore or hereafter enacted by the Town establishing a maximum height for fences in any defined area and the provisions of such By-law or Bylaws shall apply to any Division Fence in accordance with the terms hereof.

5.3 Notwithstanding any section, subsections, clause, paragraph or provision of the By-law or parts thereof, may be declared by a court of competent jurisdiction to be invalid, unenforceable, illegal or beyond the powers of Council to enact, such section or sections or parts thereof shall be deemed to be severable and that all other sections or parts of this By-Law are separate and independent therefrom and enacted as such as a whole. Same shall not affect the validity or enforceability of any other provisions of this By-law or of the By-law as a whole.

5.4 Any reference to a statute, regulation , by-law or other legislation in this By-law shall include such statute, regulation, by-law or other legislation or provision thereof as amended, revised , re-enacted and/or consolidated from time to time and any successor legislation thereto.

5.5 Where there is any conflict between the provisions of this By-law and any other By-law, or legislation, the provisions of this By-law shall prevail to the extent of the conflict.

5.6 This By-law may be cited as the "Division Fence By-law".

5.7 This By-law shall come into force and take effect on the date it is enacted.

5.8 By-laws 2006-061 and 2006-062 are hereby repealed in their entirety.

5.9 Schedule A- being a sample Notice of Intent mentioned in Section 3.3.1 shall form a part of this By-law.

ENACTED THIS 15th DAY OF JANUARY, 2013.

Original signed by Rebecca Murphy, Clerk and Doug White, Mayor.

Date:

To:

Dear?

Re: Notice of Intent

Proposed Fence Between ______________________

As you are aware, it is our desire to construct a boundary (division) fence between your property and ours, as we have expressed to you on several occasions. To date, we have been unable to reach a satisfactory agreement regarding the cost share of the proposed fence.

Notwithstanding the lack of agreement, we would like to go ahead with the construction of the fence in accordance with the Town of Bradford West Gwillimbury By-law 2013-xx, a copy of which is enclosed for your information. Also enclosed are three quotes for the construction of (describe the type of fence, height, length etc.). The proposed fence complies with Town of Bradford West Gwillimbury Zoning By-law 2010-050, as
amended, and By-law 2002-123, as amended, with respect to height.

The construction of the fence, in accordance with the lowest quote received, will commence on (date - fourteen (14) business days from the date of this notice). You may also obtain three (3) further quotes and provide us with a copy of them not later than ten (10) business days from the date of this notice and we can then discuss all of the quotes before making a decision. If we do not hear from you prior to the expiration of the fourteen (14) business day period, we will go ahead with the construction of the proposed fence.

We look forward to reaching an amicable agreement.

Yours truly,