Naturalised Gardens and Municipal Standards By-Laws
An Ontario appeal court has found that wild gardens are a form of freedom of expression protected by the Constitution of Canada.
City of Toronto by-law 73-68 stated that “All parts of a dwelling, including the yards appurtenant thereto, shall be kept clean and free from … excessive growths of weeds and grass …”. Sandra Bell of that city was charged in 1993 by a city building inspector as being in violation of this by-law, due to the appearance of her front yard which she described as “an environmentally sound wild garden”. She was found guilty by a Justice of the Peace and fined $50.
Her appeal of this conviction was heard in 1996 (O.J. No. 3146 DRS 96-18852). Expert witnesses at the appeal included Harry Merrens, a York University geography professor, who testified that current domestic gardens express an urge to dominate or control nature. People who are part of the naturalistic gardening movement are generally motivated by a philosophy with ecological, economic and spiritual goals that seek a more harmonious and restorative relationship with nature. Such gardens still involve some degree of control, but they eliminate the need for chemical pesticides and power tools to control plants, and reduce the use of water. James Hodgins, the editor of Wildflower Magazine, testified that about 90% of native plant species grow naturally higher than the 1′ height cited by the building inspector, and that the term ‘weed’ is a subjective term that has no scientific standing. He noted that Toronto City Hall featured ‘ornamental’ grasses over a metre high, and that two City parks (High and Yorkville) featured extensive naturalised sections designed by City staff.
The appeal was allowed. The appeal court found that the bylaw did not exceed the authority of the City under its authority to pass by-laws “fixing a standard of fitness for human habitation to which all dwellings must conform”. It also, regrettably, rejected the notion that ‘weed’ was an unacceptable legal description for this purpose. But, it held, for a number of reasons, that the Toronto by-law’s primary purpose was an aesthetic one not related to safety, human health, or environmental nuisance, and was therefore void on that ground.
However, perhaps in view of the fact that Bell’s front yard was clearly not a shining example of a natural garden, the court went further. It quoted the Supreme Court of Canada that, “the purpose [of the Canadian Charter of Rights and Freedoms] is to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being.” It found that the primary purpose of the by-law was “to impose on all property owners the conventional landscaping practices considered by most people to be desirable” and, as such, infringed Ms. Bell’s freedom of expression. It also found that “as between a total restriction of naturalistic gardens and causing some offence to those people who consider them ugly … some offence must be tolerated.”
The Bell case applied to privately-owned property. In 2002, a further ruling in the case of Douglas Counter (2002 CanLII 26796 (ON S.C.)) extended Charter rights of expression to the city-owned boulevard in front of his home which he was required to maintain.
So, you really are entitled to your back yard meadow in Ontario as long as you believe in it. However, you may well have to fight for it.
On 21 August 2007 the City of Toronto’s bylaws department declared open war on natural areas in the City: the 12-year-old natural garden of Deborah Dale, the past president of the North American Native Plant Society (NANPS), was demolished by City staff.
In defiance of the court rulings, and despite the absence of any such provisions in the relevant section of the Toronto Municipal Code, the City manager of licensing and standards is quoted as insisting, “It has to be a maintained natural garden … an exemption permit is required.” The city not only destroyed flowering plants and plants that were setting seed for use by NANPS in their fundraising efforts, they also removed shrubs, a red oak tree, and even the sign indicating that it was a natural, pesticide-free garden. Although Dale is receiving support from other areas of city government, she has had to go to court to deal with the bylaws department. The City has so far responded by attempting to bankrupt her through expensive pretrial and delay procedures.
The situation is worse in the City of Ottawa. The 2005 Property Standards Bylaw states that yards (all of them, not just those visible to the public) must be trimmed lawns or must be “landscaped or maintained” using “ornamental grasses or flowers”. The standard of judgement: consistent with the surrounding environment, i.e. the neighbours. The same judgmental criteria is used for road verges. There’s no room here for a natural space, only for neighbourhood zealots.