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3058 To prescribe the height and: description of lawful fences in the Town of TillsonburgTOWN OF TILLSONBURG BY-LAW NUMBER 3058 A BY-LAW TO PRESCRIBE THE HEIGHT AND DESCRIPTION OF LAWFUL FENCES IN THE TOWN OF TILLSONBURG A BY-LAW for prescribing the height and description of lawful fences in the Town of Tillsonburg, and for requiring the owners of privately owned outdoor swimming pools to erect and maintain fences and gates around such swimming pools. WHEREAS Section 11 of the Municipal Act, 2001, S.O. 2001,c.25 permits a lower tier municipality to pass by-laws respecting structures including fences and signs. NOW, THEREFORE, THE COUNCIL OF THE CORPORATION OF THE TOWN OF TILLSONBURG HEREBY ENACTS AS FOLLOWS: SECTION 1 TITLE 1.1 This By-law may be referred to as the Fence By-law. SECTION 2 DEFINITIONS In this by-law: 2.1 ACCESS AREA means a driveway which connects any one or more of the following to a publicly owned street or alley: an outdoor storage yard, building or other structure or parking area. 2.2 Chief Building Official means the Chief Building Official of The Corporation of the Town of Tillsonburg or his designate. 2.3 CONSTRUCT means to build and/or to permit to build or erect, alter, relocate or provide any material alteration and without limiting the generality of the foregoing shall be taken to include any work in preparation to construct, and CONSTRUCTED has a corresponding meaning. 2.4 EFFECTIVE GRADE LEVEL means the highest level of ground at a fence location taking into consideration the surrounding ground level for a horizontal distance of 0.5 m (1.6 ft.) either side of its respective location. 2.5 ENTRANCE includes a door, doorway, window, gate, or any other structure or opening providing for a means of entry or exit or both. 2.6 EXTERIOR means the outside surface of a fence, swimming pool enclosure, deck or ramp which does not face toward a swimming pool or swimming pool area, or towards the contained portion of the property that it is intended to delineate. 2.7 FENCE means a barrier, guard, railing, or enclosure of any type constructed, used, or intended to enclose or delineate property and may include a screening fence as defined in this By-law. Structures designated by any by-law or municipal authority or agreement as sound barriers, or sound barrier walls, or any other structure governed under the Ontario Building Code are not deemed to be fences. Earth berms or other natural or manmade similar topographic features are not deemed to be fences. -2- 2.8 INTERIOR means the inside surface of a fence, swimming pool enclosure, deck or ramp which surface faces towards the swimming pool or swimming pool area. 2.9 OUTDOOR STORAGE YARD means a yard, which has a minimum area of ten (10) square metres (107.6sq.ft.) and is used for storage of anything. 2.10 OWNER - includes a mortgagee, lessee, tenant, or a person entitled to a limited estate or interest in land, a trustee in which land is vested, a committee of the estate of a mentally incompetent person, an executor, an administrator, a guardian, and also includes a person in the actual occupation of land under an agreement with the owner for the purchase of it, or sold by the Director in accordance with the Veterans' Land Act (Canada). 2.11 SCREENING FENCE means a barrier or fence designed and used to visually separate uses and to block off views and which is continuous or effectively continuous throughout its entire length. 2.12 SERVICE ENTRANCE means the entrance into a building which is normally used by persons delivering goods or rendering maintenance service as opposed to the main or principal entrance. For the purposes of this By-law any building entrance other than the principal entrance may be considered to be a service entrance. 2.13 SWIMMING POOL means any body of water located outdoors above or below finished grade on privately owned property, contained in part or in whole by artificial means in which the depth of water at any point can exceed 610 mm (24in.) and with more than 2.0 m2 (21.5 sq. ft.) in potential liquid surface area and which may or may not be used or capable of being used for swimming or diving purposes, or both. Not included in this definition is any swimming pool owned by a public or government body, agency or authority, or any vessel designed or intended for therapeutic or bathing purposes which does not exceed 2.0 m2 (21.5 sq. ft.) in potential liquid surface area. 2.14 SWIMMING POOL AREA means the area of the swimming pool plus any surrounding platforms, walkways, play areas and landscaped areas adjacent thereto and used or intended or capable of being used in conjunction with the swimming pool within the swimming pool enclosure. 2.15 SWIMMING POOL ENCLOSURE means a fence surrounding a swimming pool as described in Section 6 of this By-law and also includes an entrance for the swimming pool area as provided for in Section 7 of this By-law. Earth berms and other similar natural or manmade topographic features are not deemed to be swimming pool enclosures. 2.16 TEMPORARY ENCLOSURE means a structure described in Section 5.4 of this By- law, used for the purposes of temporarily enclosing a swimming pool or pool excavation. 2.17 USE when used as a verb means anything done and/or permitted or allowed to be done by any person for the purpose of making use of any parcel of land, building, or structure or any part(s) thereof and includes the maintenance of anything done or erected in conjunction with those uses, lands, buildings, structures or part(s) thereof, and USED has a corresponding meaning. SECTION 3 AUTHORITY and INTERPRETATION 3.1 The Chief Building Official shall administer this By-law. 3.2 This By-law shall be enforced by the Chief Building Official and any Inspector so designated by the Chief Building Official 3.3 All imperial dimensions in this Bylaw are for convenience only. Metric dimensions shall be used for the interpretation of this Bylaw. -3 - SECTION 4 ORDERS 4.1 The Chief Building Official and any Inspector so designated by the Chief Building Official may issue Orders under this By-law, directed to an Owner: (a) if in the opinion of such issuer a fence or swimming pool enclosure is not constructed or used in accordance with any of the provisions of this By-law, or; (b) if the construction of a fence or swimming pool enclosure is, in the opinion of such issuer substantially suspended or discontinued or incomplete, or; (c) if in the opinion of such issuer a fence or swimming pool enclosure permits or presents, or causes an unsafe condition or hazard to exist. SECTION 5 SWIMMING POOL ENCLOSURE REQUIREMENTS 5.1 The owner of any lands on which a swimming pool is located or constructed or proposed to be located or erected or constructed shall construct and maintain in good repair a swimming pool enclosure around the entire swimming pool area in accordance with the applicable provisions of this By-law. 5.2 No person shall construct or cause to be constructed a swimming pool without first having installed a temporary enclosure, unless a swimming pool enclosure in compliance with this By-law shall have first been installed. 5.3 No person shall place water in or permit water to be placed in a swimming pool or allow water to remain therein unless the swimming pool enclosure prescribed by this By-law is erected and maintained in good repair. 5.4 No person shall construct a temporary enclosure unless it shall consist of a minimum 1.2 m (4 ft. )high or mesh fence having a mesh not greater than 38 mm (1.5 in), with a steel T - bar support post every 3.0 m (9.8 ft.) maximum and a 9 gauge galvanized steel wire located at the top and bottom of such fence, or unless such temporary enclosure is constructed of material that will provide an equivalent degree of safety and has been approved by the Chief Building Official. 5.5 No person shall use a swimming pool unless such swimming pool is enclosed by a swimming pool enclosure which extends from not more than 50 mm (2 in.) above the effective grade level to a minimum vertical height of 1.2 m (4 ft.) above the effective grade level. 5.6 No person shall use the wall of a building as part of the required swimming pool enclosure unless the main entrance to the building is not located within the swimming pool area and unless the service entrance if located therein, has aself-closing door equipped with a self latching device located not less than 1.5 m (4.9 ft.) above the bottom of the door. 5.7 No person shall use any members or attachments that could permit or facilitate climbing on the exterior face of a swimming pool enclosure, between 100 mm (4 in.) and 1.2 m (4 ft.) from the effective grade level. 5.8 No person shall use any swimming pool enclosure located closer than 1.0 m (3 ft. 3 in.) to any permanent physical object, growth or geographical feature or any combination thereof that permits or facilitates the climbing of such swimming pool enclosure. 5.9 No person shall use any swimming pool enclosure unless it is constructed, installed and maintained in accordance with Sections 6 and 7 of this By-law and any applicable Ontario Building Code requirements. SECTION 6 FENCES AS SWIMMING POOL ENCLOSURES 6.1 No person shall use a fence constituting a swimming pool enclosure or part thereof unless such fence shall consist of: (i) chain link construction; or (ii) vertical panel or metal picket construction; or such other materials and construction that will provide an equivalent degree of safety as shall have been pre -approved by the Chief Building Official; or (iv) a combination of (i), (ii) and (iii). 6.2 No person shall use a fence of chain link construction which constitutes a swimming pool enclosure or part thereof unless such fence: (i) has a mesh not greater than 38 mm ( 1.5 in.) consisting of 13 gauge galvanized steel wire, or of 11 gauge steel wire covered with vinyl or other product which has been approved by the Chief Building Official which would yield a total thickness equivalent to 12 gauge wire; (ii) has no rails, bracing or exposed attachments on the exterior facing for a height of 1.2 m (4 ft.) above grade that could facilitate or permit climbing from the exterior; has the top and bottom rails firmly fastened to the upright posts, which rails shall consist of at least 32 mm (1.25 in.) galvanized steel pipe provided that a continuous galvanized steel tension rod of at least 5 mm (.2 in.) thickness may be substituted for the bottom rail; and (iv) if constructed of alternate products or methods, the same shall have been pre - approved by the Chief Building Official. 6.3 No person shall use or maintain a fence of vertical panel construction which constitutes a swimming pool enclosure or part thereof unless such fence: (i) has vertical members of at least 25 mm (1 in.) nominal thickness attached to a top and bottom rail in such a manner as to not facilitate or permit climbing from the exterior and which vertical members shall be spaced not more than 38 mm (1.5in.) apart in any direction; (ii) is supported by posts at least 100 mm (4 in.) x 100 mm (4 in.) nominal dimensions, spaced not more than 2.4 m (8 ft.) apart, which posts shall extend at least 0.6 m (2 ft.) into the ground for any fence having a height of 1.2m (4 ft) or less and shall extend at least 1.2 m (4 ft.) into the ground for any fence having a height greater than 12 m (4 ft.), and which posts shall be securely embedded into the soil and any portion thereof below grade consisting of wood shall be treated with an approved wood preservative or be of pressure treated wood (unless concrete encased); has top and bottom rails of at least 38 mm (1.5 in.)x 100 mm (4 in.)nominal dimensions; and (iv) if constructed of alternate products or methods, the same shall have been pre - approved by the Chief Building Official. -5 - 6.4 No person shall use a fence of metal picket or tube construction which constitutes a swimming pool enclosure or part thereof unless such fence: (i) has vertical members spaced not more than 100 mm (4 in.) apart which are attached to a supporting structure not containing any diagonal members or framework in such a manner that would not facilitate or permit climbing from the exterior; is supported by posts firmly embedded into the ground spaced not more than 2.4 m (8 ft.) apart which posts shall extend at least 0.6 m (2 ft.) into the ground for any such fence having a height of 1.2 m (4 ft.0 or less and shall extend at least 1.2 m (4ft.) into the ground for any such fence having a height greater than 1.2 m; and (iii) has minimum 30 mm (1.2 in. -x 6 mm (.25 in.) top and bottom rails permanently connected to the vertical members, such rails to maintain minimum 1.2 m (4 ft.) vertical separation at all locations. 6.5 No person shall use any fence that forms part of a swimming pool enclosure which: (i) contains barbed or razor wire, electrified wiring, sharp projections or any other unsafe or dangerous characteristics on either the exterior or interior; or is located less than 1.2 m (4 ft.) from the nearest inside wetted surface of the swimming pool wall. SECTION 7 ENTRANCES TO THE SWIMMING POOL AREA 7.1 Subject to Section 7.3, no person shall use an entrance which forms part of a swimming pool enclosure unless such entrance: (i) is of construction type and height at least equivalent to that of the required swimming pool enclosure; is supported on hinges of sufficient quantity and strength to safely and adequately support the entrance at all times; (iii) is self-closing and equipped with aself-latching device placed on the pool side of any entrance; and (iv) is equipped with an operable locking device. 7.2 No person shall construct, or use any entrance to a swimming pool area which forms part of the swimming pool enclosure, unless such entrance is kept locked at all times except when the swimming pool is in use and being supervised by a responsible adult person. 7.3 No person shall construct, or use an entrance to a swimming pool area through a door from a detached or attached garage unless the door complies with Section 5.6 of this By- law. SECTION S ABOVE GROUND SWIMMING POOLS, HOT TUBS, WHIRLPOOLS AND SPAS 8.1 For the purposes of this By-law above ground swimming pools are deemed to be the same as in ground swimming pools, and require the same enclosures around the entire swimming pool area in compliance to sections 4 through section 8 of this By- Law. M 8.2 No person shall construct, or use an above ground swimming pool unless all access points are fenced in accordance with Section 7 of this By-law. 8.3 No person shall construct or use a deck or ramp or part thereof serving a swimming pool area with a height greater than .6 m (2 ft.) above the effective grade level unless a continuous fence or other guard is constructed and maintained around the exterior perimeter of the deck or ramp. Such fence or guard shall have a minimum height of 1.0 m (3 ft. 3 in.) above the deck or ramp, and shall not be constructed so as to facilitate or permit climbing as per the requirements of the Ontario Building Code. 8.4 No person shall install, construct or use any structure commonly known as a "hot tub", "whirlpool", or "spa" unless any such structure is provided with a secure cover fully capable of closing the opening thereto and which cover is locked to prevent access when the structure is not in use. Otherwise, these structures must comply with the respective requirements of Sections 4 through Section 8 of this By-law. SECTION 9 OTHER FENCES 9.1 For the purposes of Section 9 only, a fence is defined as a barrier, guard, railing or enclosure of any type, used to enclose or delineate property and may be constructed of manufactured materials or be of organic origin and may include hedges, compact evergreen plantings, or other similar growth and may include a screening fence as defined in this By-law. A tree or row of trees, earth berm or similar topographical feature either natural or manmade is not deemed to be a fence for the purposes of this Section. 9.2 No person shall construct, allow or use a fence on residential property greater in height than: a) 2 m (6ft. 6 in.) from effective grade level in any side or rear yard (as defined in the applicable zoning by-law). b) lm (3 ft. 3 in.) from effective grade level in any front yard (as defined in the applicable zoning by-law). (c) 1.2m (4 ft.) from effective grade level in a front yard to facilitate enclosing a swimming pool, as per sections 5 through section 8 of this By -Law. 9.3 The height limitation in Section 9.2 of this By-law shall not apply to decorative post caps and other similar features which shall be approved by the Chief Building Official. 9.4 Notwithstanding any other provisions of this By-law, no person shall construct or use on any property located on a corner lot a fence which would restrict visibility, greater than 1 m (3 ft. 3 in.) or 1.2m. (4 ft.) in the case of a swimming pool enclosure, above the effective grade level within of 9m (29ft. 6 in.) of any roadway intersection measured from the convergence of the curb line intersections abutting the said roadways. -7- 9.5 No person shall construct or use a fence on any property used for any commercial, industrial, or institutional purpose unless: (i) such fence shall have a maximum height not exceeding 3.0 m (9 ft 9 in.) (ii) such fence shall not be electrified; (iii) such fence shall not be located within 1.0 m (3 ft. 3 in.) of the nearest portion of any wall of an adjoining residential main or principal building; (iv) such fence shall not incorporate barbed or razor type wire in its construction unless that portion of fence which is made of barbed or razor wire is located no closer than 2.15 m (7 ft.) above the effective grade level at any point. 9.6 No person shall construct, permit, or use a fence exceeding a height of 2.5 m (8.2ft.) on any property boundary abutting any publicly owned walkway as designated by a registered plan of subdivision, not adjacent to a road. 9.7 No person shall construct, use, or allow or permit to be constructed, or used a screening fence in an exterior side yard, as defined in the applicable zoning by-law, unless such screening fence is located at least 3.5m (11.5 ft.) from the nearest edge of the existing public roadway pavement where such screening fence abuts any existing public or private driveways, lanes, alleys, roadways or any other similar access area. 9.8 No person shall construct or use a screening fence unless it is designed and constructed to withstand all normally prevailing atmospheric, wind and other conditions affecting such screening fence. 9.9 No person shall construct or use any fence consisting of single strand wire type construction unless it is so constructed so as to be readily visible to any person at all times and does not in any way create an unsafe condition to any person. 9.10 No person shall construct any fence comprised in whole or in part of decorative building block, masonry brick, architectural stone, or any other similar type feature unless drawings have been submitted and reviewed by the Building Commissioner. 9.11 Notwithstanding section 9.1 and 9.2 of this By-law, no person shall construct or use a screening fence in any front yard of residential property as defined in the applicable Zoning By-law. Compact evergreen hedges and other similar organic barrier are permitted but remain subject to the height limitations as specified in Sections 9.2 and 9.4 of this By- law. 9.12 Notwithstanding sections 9.2 and 9.3 of this By-law, no person shall construct or use any fence or screening fence on residential property along the common boundary or property line of any commercial, industrial or institutional use in excess of the prescribed height as permitted in section 9.6 of this By-law. 9.13 Every owner shall maintain their fence or screening fence in good repair and in compliance with the applicable provisions of this By-law. SECTION 10 FENCES USED AS ENCLOSURES FOR OUTDOOR STORAGE YARDS 10.1 For the purposes of Section 10 only, a screening fence shall consist of any one (1) or more of the following: an earth berm; a dense evergreen hedge; an ornamental fence of wood, metal or similar construction and may include a chain link, mesh or other wire fence which has all of its mesh openings interwoven with suitable material in such a manner so as to permanently visually separate uses and block off views; an ornamental wall of concrete, brick or stone provided it has been approved by the Chief Building Official. W 10.2 No person shall construct or use a screening fence in conjunction with an outdoor storage yard or in conjunction with any other use required to be screened under the provisions of the applicable Zoning By-law except in compliance with the following: (i) a screening fence shall be erected around the perimeter of the outdoor storage yard and shall be located no closer than 3 metres (9 ft 10 ins.) to a property line which abuts a street. Such screening fence shall comply with the provisions of Sections 9.5 and 9.6 of this By-law; notwithstanding Section 10.2(i) of this By-law a screening fence having a minimum height of 1.8 m (6 ft.) shall be provided and maintained on the perimeter of any part of an outdoor storage yard which is visible from a street or a Residential District (as defined in the applicable Zoning By-law) except where: (a) that part of the outdoor storage yard is located a minimum of 100 m (328 ft.) from the street or the Residential Zone (as defined in the applicable Zoning By-law); (b) that part of an outdoor storage yard is used exclusively for the display of operable motor vehicles as an accessory use to the sale of the same motor vehicles on the lot; (c) the outdoor storage yard is used exclusively for the display of goods as an accessory use to a retail store or wholesale store, where such outdoor storage yard is permitted by the applicable Zoning By-law. Section 11 Variance 11.1 Any variance from this By -Law will require the approval of Council 11.2 Such variance application will require a site plan showing the location of the proposed fence and drawings showing the type and construction of the fence 11.3 The application shall be submitted to the Chief Building Official or Designate for review and forwarding for Council Consent SECTION 12 PENALTIES 12.1 Every person who contravenes any of the provisions of this By-law shall be liable upon conviction to a penalty, in accordance with the Provincial Offences Act, R. S.O. 1990, c.P.33, s.61 thereof, as may be amended from time to time. SECTION 13 REPEAL AND TRANSITION 13.1 Except as provided by section 5 hereof, By-law #2213, and all amendments thereto, are hereby repealed. 13.2 Notwithstanding section 5 hereof, the provisions of By-law #2213, as amended, shall continue to apply to any swimming pool enclosure or fence legally existing on the day of enactment of this By-law until such time as the existing enclosure or fence is replaced or requires replacement. W SECTION 14 COMMENCEMENT 14.1 This by-law shall come into force and take effect on the day following the final passing thereof. READ a First and Second Time this 12th day of May, 2003. READ a Third Time, Signed, Sealed and Numbered 3058 this 26th day of May, 2003.