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

A feature shall not include a driveway apron which shall instead be governed by the Driveway Permit Procedure or a boulevard garden which shall instead be governed by the Boulevard Garden Procedure. A structure, shall not include a newspaper/media box, which shall instead be governed by the Newspaper/Media Box Permit procedure.

This procedure does not apply to commercial patio permits which shall instead be governed by the Seasonal Commercial Patio Program.

Procedure

Upon receipt of an application, the Director may issue a permit, refuse a permit or refer the matter to Council for its consideration.  

1. Application for an agreement/licence/permit

1.1 Applications for encroachment agreement permits must be submitted to the Director not less than eight weeks in advance of the proposed installation/alteration date and shall include information that the Director may request, from time to time, including any or all of the following:

1. a completed application in the form prescribed by the Director;
2. the applicable permit fee(s) as set out in the town’s current rates and fees schedule;
3. a signed letter of application making request for an encroachment permit to the Right of Way Management section of the Department of Transportation and Engineering
4.  a detailed scalable plan showing:
   1.  the existing and/or proposed encroachment location(s);
   2. the existing topographical features and property boundary lines for the municipal road allowance;
   3. the street name, municipal address(es) and an arrow depicting true north;
   4. 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; and
   5. utility locations;
5. 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;
6. 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;
7.  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;
8.  Copies of any additional permits that may be required from other town departments
9. A certificate of general liability insurance covering bodily injury and property damage with the town named as additional insured or co-insured as per the town’s general liability insurance requirement procedure, and must be maintained until the expiry of the permit 
10. 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
11.  A copy of all utility clearance certificates to which the location data (where utilities exist) will be transcribed by the applicant onto the sketch
12. 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.
13. The applicant may be required to provide public notice in accordance with the town’s notice policy or where deemed necessary by the Director.  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.
14. Where excavation within a municipal right of way is required to install or alter the feature or structure, the applicant must obtain an excavation permit as described in the Municipal Right of Way By-law 2024-002, as amended, and the Excavation Permit Procedure prior to the commencement of any excavation within the municipal right of way.
15. Where the permit work within the municipal right of way requires temporary close of vehicular or pedestrian access on a local road, the applicant must obtain a temporary street occupation permit as describe in the Municipal Right of Way By-law 2024-002, as amended, and the Temporary Street Occupancy Permit Procedure prior to the commencement of any work within the municipal right of way.
16. Should additional approvals be required on an application, the agreement permit may be delayed.

2. Agreement/licence/permit regulations

2.1 No person shall encroach on a municipal right of way without obtaining the necessary permit and comply with all applicable by-laws, policies, procedure and regulations.

2.2 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.

2.3 Where the Director determines that an encroachment agreement is required, the agreement execution authority is as per the town’s Execution of Documents By-law, as amended.

2.4 Encroachment agreement/licence/permit holders shall:

1. complete all activities within the time frame outlined in the encroachment agreement / license / permit;
2. only begin work within the municipal right of way when every public/private utility has marked (within the permitted work zone) the location of their service(s);
3. keep the encroachment agreement or licence on-site and available for review at all times when work is actively underway;
4. notify the Right of Way Management Section of the Transportation and Engineering Department a minimum of seven business days prior to commencing any permitted work;
5. keep the work site clean and safe at all times;
6. employ dust control measures to minimize the creation and/or migration of dust emanating from the permitted work.  The Director may direct the permit holder to improve the level of dust control as deemed necessary; and
7. be responsible for the maintenance of the feature or structure encroaching on the municipal right of way to the satisfaction of the Director.

2.5 The 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 encroachment agreement or licence. 

2.6 The encroachment agreement or licence is not transferable without the written notification to the Director and only where ownership of the encroaching feature or structure is contemplated.  Where the Director receives the notification of the transfer, the new owner of the feature or structure shall complete a new encroachment agreement or licence application, pay the associated fees, and obtain the required insurance policies.

2.7 All risk, responsibility and expense associated with any feature or structure encroaching on the municipal right of way is the responsibility of the encroachment agreement or licence holder and the owner if the owner is not the permit holder or the owner if no encroachment agreement or licence is obtained.

2.8 The Director may impose additional conditions on the permit restricting the work as deemed necessary.

2.9 The applicant is responsible for ensuring that the work complies with the permit conditions and all other applicable by-laws, regulations and legislation.

2.10 Permit fees are non-refundable in whole or in part upon receipt of permit application by the town. 

2.11 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.

2.12 Where 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) refuses or fails to comply with the conditions of the permit, the Director shall give verbal notice to the permit holder, specifying actions to be taken, which 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) must perform.  

1. 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.
2. If the permit holder does not act within the time prescribed in the written notice, the Director may order the work to be done at the permit holder’s expense.  All costs incurred by the town shall be invoiced to the permit holder (or owner) with a 50% 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.

2.13 Notwithstanding the above subsections of Section 2, 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

3. Encroachment for a commercial use

3.1 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 encroachment agreement or licence or 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 encroachment agreement or licence or permit.

4. Sidewalk retail permits  

4.1 The period of occupation is as determined by the Director, but shall not be outside the hours of 7 a.m. to 11 p.m.

4.2 A sidewalk retail permit may be issued for up to 12 months of the calendar year and shall allow for annual renewals.

4.3 Permit holders shall:

1. place merchandise, tables, chairs, barbeques and other items outside of a business:
   1. so that the width of any sidewalk is not less than 1.5 metres; and 
   2. only on the frontage of the permit holder’s licensed business address;
2. provide garbage receptacles when applicable;
3. keep the occupied area clean and free of grease (or like materials), garbage, and/or debris;
4. not place any garbage and/or debris collected from the occupied area in any public garbage container(s);
5. not permit the storage of any materials outside the hours prescribed in the permit;
6. restore the occupied area to its former condition or better when the permit expires;
7. not authorize the loading or off-loading of vehicles or materials on any portion of the municipal right of way.

5. Removal or alteration of encroachment 

5.1 The Director of Transportation and Engineering or the Director of Roads & Works at their sole discretion, may require that any existing encroachments that have been installed without the necessary permit be removed from the municipal right of way.

5.2 The Director of Municipal Enforcement Services or an Officer may order the removal or alteration of any feature or structure encroaching within the municipal right of way: 

1. that was installed without an encroachment agreement, licence or sidewalk retail permit; or
2. that was not installed or is not maintained in accordance with the encroachment agreement or licence or permit, or this procedure, or any other relevant regulations and by-laws; or
3. where the encroachment agreement or licence or permit has expired.

5.3 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 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 removal work shall be invoiced to the permit holder (or owner) with a 50% 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.

Definitions

For the purpose of this procedure,

Agreement/License, used for long term occupation/use of the municipal right of way, may or may not consist of an easement, and may be registered on title to the applicable property adjoining the municipal right of way.

Director, means the Director of the Transportation and Engineering Department of the Town of Oakville or their designate.

Permit, used for short term temporary occupation/use of the municipal right of way, for retail purposes for a specified duration, time of day and the conditions outlined in Section 4.0 of this procedure.

Responsibilities

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