Plan Canada Winter 2018. Canada Institute of Planners
Review by David Witty, PhD, MRAIC, FCIP, RPP.
David has combined public and private practice and teaching for much of his career. He is currently Senior Fellow Urban Design, Master of Community Planning Program, Vancouver Island University IVIU).
The topic of trees, their role in the environment, their aesthetic appeal, and their economic value can frequently morph into neighbour versus neighbour and developer versus city hall. Trees hold meaning. They are often key elements of greening the city, enhancing open space, softening urban redevelopment projects, and improving amenity packages. As planners, we are faced with the exigencies of politicians, landowners, and the general public. Often, their issues relate to what we might describe as the mundane. But, in the eyes of the beholder, emotion and personal opinion ‘gets in the way’ of rational, considered decisions. As a result, over the years there has developed significant case law that sets out precedent and direction for those involved in the jurisprudence of trees. Until now, there has not been one source, a go-to resource, that provides cogent direction for understanding the complex issues related to trees, including the legal principles and concepts that guide the courts in such matters; the importance of duty that all governments must acknowledge: and the role of unreasonable risk and associated negligence and liability that face local governments, landowners, and developers.
In Trees and the Law in Canada, Julian Dunster has written a significant and detailed assessment of the relationship between trees and the law. The foreword alone, written by the Honourable Edward Chiasson, DC, is endorsement enough of this book’s importance and its contribution to the law surrounding trees. For me, however, what merits praise is the book’s significant depth of coverage on the topic of trees and the law, along with the way that content is well-ordered and presented.
This is a subject that many would assume to have important value for arborists alone. While arborists will find the book critical to their work, our planning practice and local governments will also find particular merit in this comprehensive assessment of the implications that trees have in relation to risk, liability, and negligence. Local governments can be faced with questions about nuisance trees, loss of enjoyment versus trees as nuisance, and trees that create loss of views and potential devaluation of property value and, in the case of developers, land/unit values. Questions arise around approval and liability. What am the obligations of local government in relation to tree management and potential negligence?
Dunster provides a helpful review of the various liabilities faced by local government and the courts’ view of their merit. In the Chapter “Boundaries and Boundary Trees” he sets out a thorough review of the courts’ interpretation of boundary issues and their implications far matters related not only to trees, but also to local government. As well, his review of nuisance (a term not unfamiliar to local government) is very helpful as a framework and review of legal implications.
At some 255 pages in length with eight chapters ranging from -“Trees as Nuisance – Liability Based on Harm Suffered” to “Negligence, Foreseeability, Tree Damage to Property and People,” Trees and the Law in Canada is a very comprehensive. manageable, and well-organised book. Its legal citing is clear, helpful, and well documented. Dunster is an acknowledged expert on matters related to trees. As an arborist and registered planner, Julian walks in two worlds and is able to provide plain, clear direction for both arborists and planners alike. He has addressed the Civil Law of Quebec as well. This work is truly a remarkable and comprehensive undertaking. It speaks to Dunster’s commitment to excellence and his dual professions.
As he notes, trees are a fundamental part of the urban ecosystem, providing economic, environmental, and social benefit. As a result, the way trees are managed and the aspects of their growth have implications – many of which have an emotional element – not only upon the work of arborists, but also on urban planners and lawyers practicing in municipal law. Dunster’s book provides an important contribution to understanding the case law related to urban trees. His reference to legal principles and concepts should he required reading for all urban planners. While specific to arborists and municipal Lawyers, this book has an important place in the libraries of all local governments.
As the Honourable Edward Chiasson notes in the preface, “Julian Dunster is to be congratulated and held in awe for undertaking the monumental task of helping those who are confronted with problems involving trees to have a basic guide to the issues they face and their resolution.” Those are high words of praise from a noted legal mind.
I agree with Edward Chiasson and suggest that Dunster’s work should and will become a key reference for all local governments as they face the often emotional debates about the law of trees.