One tree, two neighbours – and a changed legal landscape
JUSTIN GIOVANNETTI, TORONTO
The Globe and Mail, Published Wednesday, Jun. 19 2013, 11:22 PM EDT, Last updated Wednesday, Jun. 19 2013, 11:22 PM EDT
Katherine Hartley used to spend a lot of time under the sweeping maple tree in her midtown Toronto backyard, practising yoga and praying to her ancestors.
But the giant, unassuming tree she once revered slowly began to frighten her. Worried it would fall as she meditated, Ms. Hartley sought and received a permit from the city and notified her next-door neighbour in June, 2012, that she planned to cut down the maple.
That kicked off a year-long battle between the residents of 168 and 170 Humewood Dr. – one that would be fought loudly in their driveways and in court, culminating in a recent legal decision that stands to reshape the yards of residents across Ontario.
The Ontario Superior Court verdict in May, which went unnoticed by most anyone not involved in Hartley v. Scharper, not only saved the maple but created some of the most stringent and detailed law on tree preservation in Canada. Cutting down a shared tree or chopping at wayward branches without a neighbour’s approval could now be a criminal act, punishable under the provincial Forestry Act.
Many of the province’s tree-protection bylaws may need to be rewritten.
The Hartley v. Scharper ruling redefined the technical question of what constitutes a tree’s trunk, giving neighbours equal ownership over trunks that stray over property lines both above and below ground.
“There are a huge number of boundary disputes and this adds clarity,” said Clayton Ruby, a lawyer who argued for the new rules. “This decision means that a lot less trees will be cut down because it now requires the consent of both neighbours.”
With the base of the tree only three centimetres from her backyard, Hilary Scharper sought to stop Ms. Hartley from cutting down the giant. Learning of her neighbour’s plan, Ms. Scharper sat a statue of St. Francis of Assisi, the patron saint of the environment, beside the maple’s trunk.
“We were stunned,” said her husband, Stephen Scharper. “It’s a perfectly healthy tree.”
Legal documents filed by Ms. Hartley’s lawyer describe the moving of the statue under the tree. The Scharpers also posted a notice to any would-be lumberjacks that the tree’s ownership was in dispute.
Under Toronto’s Private Tree bylaw, owners are entitled to remove sick trees. Presenting a report that the tree was healthy and its removal unnecessary, the Scharpers offered to install a system of cables to secure the maple to the ground. Ms. Hartley rejected the offer.
Because the large tree sprawls over much of the Scharpers’ backyard, Ms. Hartley sued her neighbours to establish her right to cut down the tree and enter their backyard to do so.
On May 17, Justice J. Patrick Moore ruled that a shared tree under the provincial Forestry Act starts from where its roots join the trunk up to where the trunk branches out. Justice Moore dismissed the idea of defining a trunk at ground level alone as “arbitrary.”
The ruling gave the neighbours on Humewood Drive common ownership of the tree under provincial law.
“This could impact 60 per cent of Toronto’s trees,” Ms. Scharper said.
Phillip van Wassenaer, an arborist who examined the tree, in the Hartley v. Scharper case, was supportive of the ruling. “It’s more in line with how trees grow and what nature gives us,” he said.
The maple of Humewood Drive is uneven and knotted at its base. Because of surveying required by the case, the ground around the tree has been excavated and orange surveyors marks have been driven into the bark where the trunk strays into the Scharpers’ yard.
Looking to appeal the ruling, Ms. Hartley declined comment.
“A tree can now become common property simply because it grows too large,” said John Howlett, Ms. Hartley’s lawyer. “At the same time, the rights of a landowner to cut the branches or roots of a neighbour’s tree that cross over the boundary line face new restrictions.”
According to Mr. Howlett, many of Ontario’s municipal tree-protection bylaws might have to be rewritten due to the ruling.
“Maybe good things come out of nasty neighbour disputes,” Ms. Scharper said.