Fence Bylaw

Whereas subsections 9(3) and 11(1) of Municipal Act, 2001 authorize municipalities to pass bylaws with respect to "structures, including fences and signs", including bylaws to regulate or prohibit respecting such matters, to require persons to do things, to provide for a system of permits and to impose conditions as a requirement of obtaining a permit;

Therefore the Council of The Corporation of the City of Kingston enacts as

For the purposes of this Bylaw:

Above ground pool fence - means a pool fence with a minimum height of 0.3 metres (1 foot) that is securely mounted to the upper edge of the wall of an above ground pool."

Agricultural property - means a property that is zoned for agricultural use in the zoning bylaw that applies to the property;

Appeals Committee and Committee - mean the committee established by the Council Procedure Bylaw (No. 98-1, as amended) and includes any successor committee designated by City Council to carry out the committee’s responsibilities under this bylaw;

Change to a fence - includes the alteration, reconstruction and replacement of an existing fence, but does not include normal maintenance and repair;

City and City of Kingston - mean The Corporation of the City of Kingston, as incorporated on January 1, 1998;

Construct a fence - means to construct, erect, build, install, alter, reconstruct or replace a fence, or to cause or permit another person to do so, and "construct a pool fence" has a corresponding meaning;

Construct a pool - means to excavate for, construct, build or erect a pool, or to cause or permit another person to excavate for, construct, build or erect a pool;

Council and City Council - mean the Council of the City of Kingston;

Fence - means a structure or partition made of wood, metal or other substance that is constructed for any purpose, such as marking the boundary of a property, enclosing a property, providing privacy, preventing access by people or animals, or dividing a property into sections, and includes every door, gate and other closure that forms part of a fence;

Finished grade - means the elevation of the finished surface of the ground where it abuts a fence or other structure;

Height - means the distance between the finished grade and the top of the fence measured from the exterior face, using the average height between support posts where the fence is constructed on a sloping finished grade.

Highway - includes all land between the lateral boundaries of every provincial and municipal highway within the City;

Industrial property - means a property that is zoned for industrial use in the zoning bylaw that applies to the property;

Manager - means the Manager, Building Services, his or her designate or, in the event of organizational changes, another employee designated by Council;

Multi-unit dwelling - means a building containing 4 or more dwelling units."

Non-residential property - means a property that is zoned for a use other than residential in the zoning bylaw that applies to the property;

Owner - means the individual, firm or corporation that is the registered owner of a property, and includes a lessee, tenant, mortgagee in possession, and the person or persons in charge of the land;

Person - has the same meaning as in the Interpretation Act and includes a corporation;

Pool - means a privately-owned outdoor body of water, whether above or below the finished grade, used by persons for the purpose of swimming, that is contained in part or in whole by artificial means and in which the depth of water can exceed 60 centimetres (24 inches) at any point, and includes every structure known as a hot tub, whirlpool and spa, but does not include any naturally occurring body of water;

Pool area - means a pool and any surrounding platforms, walkways, play areas and landscaped areas within a pool fence;

Pool fence - means a fence that encloses or results in the enclosure of a pool;

Property - means a parcel of land and any buildings or other structures on the land;

Public property - includes any property to which the public is customarily admitted;

Residential property - means a property that is zoned for residential use in the zoning bylaw that applies to the property;

Sight triangle - has the same meaning as in the zoning bylaw that applies to the property; and

Zoning bylaw - means a bylaw under section 34 of the Planning Act that restricts the use of land.

2.1 The requirements of this bylaw apply to all properties within the geographic limits of the City of Kingston, except where otherwise provided.

2.2 If there is a conflict between a fencing requirement established by another bylaw of the City and a fencing requirement of this bylaw, the requirement that establishes the higher standard in terms of protecting the health, safety and well-being of the inhabitants of the City prevails to the extent of the conflict.

3.1 The Manager is responsible for the administration and enforcement of this bylaw.

3.2 An application for a permit to construct a pool fence around a pool shall be submitted to the Manager, together with the permit fee and plans showing the location of the pool in relation to the property boundary lines and to the adjacent buildings, and the application shall provide full details of all required structures.

3.3 A permit will not be issued unless the permit fee, as set out in section 4.1 of Schedule A, has been paid in full.

3.4 Any person may seek an exemption from the requirements of this bylaw by applying to the Appeals Committee for a minor variance.

3.5 The Committee may grant a minor variance if, in its opinion, the general intent and purpose of the bylaw are maintained or if the Committee is satisfied, after allowing input from the applicant and property owners within 30 metres (100 feet), that the variance is appropriate.

3.6 The Committee may attach terms and conditions to the minor variance, including the dates for which it is to be in effect.

3.7 A minor variance shall be invalid if these terms and conditions are contravened.

3.8 Where notice is to be provided by the City under this bylaw, it will be given by prepaid registered mail or personal service to the last known address of the owner of the property on which the fence is located.

4.1 Except in the case of a pool fence, no permit is required for the construction of a fence.

4.2 No person shall construct a fence that does not comply with the requirements of this bylaw, except as provided in Part 5 - Exemptions.

4.3 Every person who constructs a fence that does not comply with the requirements of this bylaw shall take such action as is necessary to make the fence comply with its requirements by the date specified in the notice given by the City.

4.4 If a person who is given notice under section 4.3 fails to take action by the date specified in the notice, the City may do the necessary work at the person’s expense by adding the costs incurred by the City in doing the work to the tax roll and collecting them in the same manner as taxes.

Height and Description of Lawful Fences

4.5 No person shall construct a fence that is greater than 1.8 metres (6 feet) in height on or around a property within the urban boundary as set out on the Map in Schedule C of this bylaw.

4.5.1 No person shall construct a fence that is greater than 2.4 metres (8 feet) in height on or around a property that is outside the urban boundary as set out on the Map in Schedule C of this bylaw.

4.5.2 Despite section 4.5, where any single family dwelling, semi-detached dwelling, duplex, triplex or row house within the urban boundary as set out on the Map in Schedule C of this bylaw is adjacent to a multi-unit dwelling or to property zoned Commercial, Industrial or Institutional, a 2.4 metre (8 feet) high fence shall be permitted.

4.5.3 Despite section 4.5, lattice of up to 0.3 metres (1 foot) in height shall be permitted to be constructed on top of a fence of up to 1.8 metres (6 feet) in height allowing a total of 2.1 metres (7 feet) in height.

4.6 Despite section 4.5, no person shall construct a fence that is greater than 2.4 metres (8 feet) in height along the rear or exterior side of a property where the rear or exterior side of the property abuts on a highway that is designated as a freeway, expressway or arterial road in the official plan that applies to the area.

4.7 Despite section 4.5, no person shall construct a fence that is greater than 2.7 metres (9 feet) in height on or around an industrial property, a public utility, an installation for the generation and distribution of electricity, a pipeline valve, a storage site for chemicals and explosives, a sludge pit or a property used for a similar or related purpose.

4.8 A fence of chain link construction under section 4.7 shall comprise chain link with diamond mesh of not greater than 38 millimetres (1.5 inches), consisting of 12 gauge galvanized steel wire or 14 gauge galvanized steel wire covered with vinyl or another coating that is acceptable to the Manager, which forms a total thickness equivalent to 12 gauge galvanized steel wire.

Sight Triangles

4.9 Despite sections 4.5 to 4.7, no person shall construct a fence on his or her property within a sight triangle that is greater than 1.0 metre (3.3 feet) in height above the centre line of the adjacent streets.

Barbed Wire

4.10 No person shall construct a fence consisting wholly or partly of barbed wire or other barbed material on a residential property or on a non-residential property that adjoins a residential property, highway or public property.

4.11 Despite section 4.10, a person may construct a fence consisting wholly or partly of barbed wire or other barbed material on a non-residential property that adjoins a residential property, highway or public property, provided that the barbed wire or other barbed material on the side of the fence next to the adjoining residential property, highway or public property shall be masked or covered with wooden slats or laths of a sufficient thickness and breadth to provide protection against injury to persons and animals.

4.12 Despite section 4.10, a person may construct a fence consisting wholly or partly of barbed wire or other barbed material on or around an agricultural property, industrial property, public utility, installation for the generation and distribution of electricity, pipeline valve, storage site for chemicals and explosives, sludge pit or other property used for a similar or related purpose, regardless of the use of the adjoining properties.

Electrified Wire

4.13 No person shall construct a fence consisting wholly or partly of electrified wire material on or around a residential property or on or around a non-residential property that adjoins a residential property, highway or public property.

4.14 Despite section 4.13, a person may construct a fence consisting wholly or partly of electrified wire material on or around an agricultural property, regardless of the use of the adjoining properties.

Requirements for Pool Fences

4.15 The requirements of this bylaw with respect to pool fences apply equally to both in ground pools and to above ground pools.

4.16 The requirements of this bylaw with respect to pool fences do not apply to structures known as hot tubs, whirlpools and spas.

4.17 The owner of every structure known as a hot tub, whirlpool or spa shall keep a secure cover of rigid material locked in place over the opening at all times when the structure is not occupied, and no person shall leave a hot tub, whirlpool or spa without first locking the cover in place to prevent access when the structure is not occupied.

4.18 No person shall construct a pool fence or shall construct a pool unless he or she has obtained a pool fence permit in accordance with section 3.2.

4.19 Every person, before constructing a pool, shall enclose the area with a fence that complies with the standards for a temporary pool fence set out in Schedule A of this bylaw.

4.20 Section 4.19 does not apply to a person who has constructed a fence that complies with the standards for a permanent pool fence set out in Schedule A of this bylaw.

4.21 No person shall place, cause or permit water to be placed or to remain in a pool unless the person has constructed a fence that complies with the standards for a permanent pool fence set out in Schedule A of this bylaw, and unless the person maintains the fence in a good state of repair.

4.22 The owner of every pool shall be responsible for ensuring that the requirements of this bylaw with respect to pool fences are complied with.

5.1 A requirement of this bylaw does not apply to a fence that has been exempted from that requirement by a minor variance granted by the Appeals Committee under section 3.5, and such fence shall be deemed to be in compliance with this bylaw as long as the minor variance remains valid.

5.2 The exemption provided by a minor variance is limited to the specific requirement or requirements from which a fence is exempted by the minor variance, and is subject to any attached terms and conditions.

5.3 The requirements of this bylaw do not apply to a fence which is required and approved as a condition of the development or redevelopment of land, and such fence shall be deemed to be in compliance with this bylaw.

5.4 The requirements of this bylaw with respect to pool fences do not apply to a pool that is owned by a government or other public agency.

5.5 The requirements of this bylaw with respect to pool fences do not apply to a pool that was constructed lawfully at a time when no pool fence was required.

5.6 The requirements of this bylaw do not apply to a fence that was constructed lawfully prior to the day on which this bylaw came into force.

5.7 Despite section 5.6, the requirements of this bylaw become applicable when any change to a fence is made after the day on which this bylaw came into force.

5.8 Despite section 5.6, the requirements of this bylaw with respect to pool fences apply to a fence whose purpose changes as a result of a pool being constructed after the day on which this bylaw came into force and which now acts as a pool fence.

5.9 The requirements of this bylaw with respect to the height of fences do not apply to a fence on an agricultural property that is necessary for the raising of certain types of animals or for another agricultural purpose.

5.10 The requirements of this bylaw with respect to the height of fences do not apply to a chain link fence surrounding a sports or recreational facility that was constructed lawfully.

6.1 The following schedules are attached to and form part of this bylaw:

Schedule A: Standards for Pool Fences
Schedule B: Diagrams
Schedule C: Map

7.1 Any person who contravenes the provisions of this bylaw is guilty of an offence and, upon conviction, is subject to a fine as provided in the Provincial Offences Act and to any other applicable penalties.

7.2 If this bylaw is contravened and a conviction entered, the court in which the conviction has been entered and any court of competent jurisdiction thereafter may, in addition to any other remedy and to any penalty that is imposed, make an order prohibiting the continuation or repetition of the offence by the person convicted.

8.1 If a court of competent jurisdiction declares any provision, or any part of a provision, of this bylaw to be invalid, or to be of no force and effect, it is the intention of Council in enacting this bylaw that each and every provision of this bylaw authorized by law be applied and enforced in accordance with its terms to the extent possible according to law.

9.1 This bylaw comes into force on the day on which it receives third reading and is passed.