Encroachment Agreement Permits Procedure

Purpose statement

This procedure outlines the Encroachment Agreement Permit process and shall address public safety, traffic egress and ingress and the availability of the proposed location in conjunction with other approved Town activities and other uses of the municipal right of way.

Scope

This procedure applies to features or structures encroaching within the municipal right of way under the jurisdiction of the Town of Oakville.

Procedure

Permits for any installation or alteration of a feature or other structure encroaching within the municipal right of way are mandatory and shall comply with all applicable by-laws, policies and regulations. Upon receipt of an application, the Director, Engineering and Construction or his/her designate may issue a permit, refuse a permit or refer the matter to Council for its consideration. The terms of the permit may be formalized in an agreement between the Town and the applicant which may be registered on title to the applicable property adjoining the municipal right of way.

Requests for encroachment permits must be made not less than 8 weeks in advance of the proposed installation/alteration date.  All permit applications shall include the following:

• Payment of all applicable fees and required deposits
• A signed letter of application making request for an encroachment permit to the appropriate staff within the Road Corridor section of the Department of Engineering & Construction
• Two copies of a sketch illustrating the encroachment location(s) existing and/or proposed.  The plan shall show all topographical features, the property boundary lines for the municipal road allowance and shall identify the street name and municipal address(es).  The sketch shall depict a north arrow and show the dimensions of the existing and/or proposed feature or structure and its location relative to the property line for the road allowance, so that such proposed installation or alteration work can easily be determined in the field
• Two prints of a plan of survey reference plan by an Ontario Land Surveyor illustrating the specific area of the encroachment on the municipal road allowance.  The survey reference plan shall be to the satisfaction of the Director of Engineering & Construction.
• The Director of Engineering & Construction may deem necessary a letter from a licensed member of the Professional Engineers of Ontario to certify the feature or structure is erected in such a manner to not fail and cause harm to the public.
• The Director of Engineering & Construction may deem necessary a letter from a licensed member of the Professional Engineers of Ontario to certify the feature or structure is wired in keeping with safe practice and will not fail and cause harm to the public.
• Copies of any additional permits that may be required from other Town Departments
• A certificate of general liability insurance with coverage limits as determined by the Director of Engineering and Construction
• A save harmless letter stating that the applicant (and the property owner when not the applicant) agrees to indemnify fully and save harmless the Town of Oakville, its officers, agents and employees from and against any and all actions, claims, demands, damage, loss or expense whatsoever arising from or incidental to the issuing of such permission, the installation or alteration of the feature or structure, or the erection, continuance, want of repair or inadequacy in any respect whatsoever of any feature or structure erected, or purported to be erected pursuant to the such permission
• A copy of all utility clearance certificates to which the location data (where utilities exist) will be transcribed by the applicant onto the sketch
• Where the applicant is not the owner of the property, a copy of the lease or other agreement giving the applicant an interest in the property and the consent of the owner to the applicant making the application

Should additional approvals be required on an application, the application may be delayed.

Encroachment permit conditions

1. All activities must be completed within the time frame outlined on the approved permit.
2. Required insurance policies must be effective prior to the commencement of any work within the municipal right of way and must be maintained until the expiry of the permit.
3. The permit is not transferable without the express written consent of the Town and only where ownership of the encroaching feature or structure is contemplated.  Where the Town consents to the transfer, new owner of the feature or structure shall complete a new Encroachment Permit application and associated fees.
4. Permit fees are non-refundable in whole or in part.
5. Work within the municipal right of way shall not begin until every public/private utility has marked (within the permitted work zone) the location of their service.
6. The permit must be available on-site and available for review at all times when work is actively underway.
7. The Director of Engineering and Construction may impose additional conditions on the permit restricting the work as deemed necessary.
8. The applicant is responsible for ensuring that the work complies with the permit conditions and all other applicable by-laws, regulations and legislation.
9. Every permit holder shall notify the Road Corridor Division of the Engineering and Construction Department, a minimum of 7 business days prior to commencing any permitted work.
10. The applicant may be required to provide public notice in accordance with the Town’s Notice policy or where deemed necessary by the Director of Engineering and Construction.  Such compliance with the notice period may affect the planned commencement date of the permitted work however the Town will not be responsible for any such delays in complying with any public notice requirement.
11. The work site shall be kept clean and safe at all times.
12. The applicant is required to employ dust control measures to minimize the creation and/or migration of dust emanating from the permitted work.  The Director of Engineering and Construction may direct the permit holder to improve the level of dust control as deemed necessary.
13. The permit holder and contractor shall comply with and be bound by the provisions of the Occupational Health and Safety Act, R.S.O 1990, c. O. 1, as amended.
14. Where excavation within a municipal right of way is required to install or alter the feature or structure, then the applicant must obtain an Excavation and Temporary Occupation permit under Procedure MS-PER-004-001 prior to the commencement of any excavation within the municipal right of way.
15. The permit holder will be responsible for the maintenance of the feature or structure encroaching on the municipal right of way to the satisfaction of the Director of Engineering and Construction.
16. Where the permit holder fails to comply with the conditions of the permit, the Director of Engineering and Construction shall give verbal notice to the permit holder, specifying actions to be taken, which the permit holder must perform.  The verbal notice shall be confirmed in writing and served on the permit holder by registered mail to the permit holder’s address as stated in the application form or personally by hand.  If the permit holder does not act within the time prescribed in the written notice, the Director of Engineering and Construction may order the work to be done at the permit holder’s expense.  All costs incurred by the Town shall be paid by the permit holder forthwith on demand, failing which the costs shall be invoiced to the permit holder with a 20% administrative fee. Where such amount is not paid, the Town may add the costs to the tax roll and collect them in the same manner as property taxes.
17. Where the encroachment is for a commercial use or for the financial benefit of the applicant, a leasing rate or licensing fee for the usage of the Town’s land will apply to the permit as determined by the Manager of Realty Services.  This fee may take the form of a monthly charge, an annual payment, a single lump sum payment or any other form of payment included within the terms and conditions of the permit.
18. The Director of Engineering and Construction may direct the removal or alteration of any feature or structure encroaching within the municipal right of way which has not been:
    a. permitted;
    b. installed in accordance with the permit issued; or
    c. maintained in accordance with the procedure or any other relevant regulations and by-laws.
19. In the event the permit holder and owner (or the owner of a feature or structure encroaching on the municipal right of way where no permit is obtained) refuse or fail to remove or properly remediate an improperly installed feature or structure as directed, the Director of Engineering and Construction is hereby authorized to remove the feature or structure and/or perform the remediation works as deemed necessary.  All costs incurred by the Town in performing any such work shall be invoiced to the permit holder (or owner) with a 20% administrative fee.  Where such amount is not paid, the Town may add the costs to the tax roll and collect them in the same manner as property taxes.
20. Notwithstanding the above, all risk, responsibility and expense associated with any feature or structure encroaching on the municipal right of way is the responsibility of the permit holder and owner if not the permit holder or the owner if no permit is obtained.

Definitions

For the purpose of this procedure, a structure shall not include a newspaper box, which shall instead be governed by the Newspaper Box Permit procedure (MS-PER-004-004) and a feature shall not include a boulevard garden or a driveway which shall instead be governed by the Boulevard Gardening Permit procedure (MS-PER-004-002) and the Driveway Permit procedure (MS-PER-004-003) respectively.

Responsibilities

The Road Corridor section of the Department of Engineering and Construction is responsible for ensuring compliance, maintenance, interpretation of the procedure and associated policy.