Frequently Asked Questions about
and Construction Sites
If you have any questions or concerns, please send them in an email. Thank you for your interest, and thank you for your involvement.
For legal advice about development, contact Lawyer Referral at 1.800.661.1095 and ask to speak to administrative law practitioners.
Nothing on the C4RD website constitutes legal advice.
Zoning Bylaw Variances
You can find Edmonton’s Zoning Bylaw (Bylaw 12800) at this link: http://webdocs.edmonton.ca/InfraPlan/zoningbylaw/bylaw_12800.htm
Q: Is there a limit to how a Development Officer can vary the Zoning Bylaw?
The Zoning Bylaw only allows the Development Officer to vary the rules if there is something so different about the property that the developer can’t build what other people could build in the same zone.
The Bylaw states that “a variance shall be considered only in cases of unnecessary hardship or practical difficulties peculiar to the Use, character, or situation of land…which are not generally common to other land in the same Zone:” Zoning Bylaw 12800, s.11.3(1)(a).
Even then, the Development Officer can only vary the rules if the development would not “unduly interfere with the amenities of the neighbourhood; or materially interfere with or affect the use, enjoyment or value of neighbouring properties,” and conforms to the required use of the land: Zoning Bylaw 12800, s.11.2.
Regardless, the Development Officer cannot vary a General Purpose; maximum height, density, or Floor Area Ratio (how many times bigger the development is than the buildable property) unless otherwise permitted in the Bylaw; or site width for new Single Detached Housing in the RF1, RF2, RF3, and RF4 Zones on lots subdivided after June 12, 2017: Zoning Bylaw 12800, s.11.3(1)(b-d).
Basically, the Development Officer is to refuse variances that are impermissible or cannot be justified by proof of hardship or practical difficulties peculiar to the land in question. Then the developer can either choose to develop within the rules, or appeal the refusal. This shifts the cost of appeal to the developer, where it belongs.
Neighbours should not be forced to go to the trouble and expense of appealing variances that cannot be justified in accordance with the Zoning Bylaw. By the same token, neighbours should not be forced to live with the results of unjustifiable variances they don’t know about until it’s too late.
However, variances have been permitted that are not related to hardship or practical difficulties. As one example: Rooftop patios are common now, especially on skinny houses. The Zoning Bylaw stipulates that rooftop patios be surrounded by privacy screening set back one to two metres from the building’s edge. A deck railing does not count as privacy screening. (See the Zoning Bylaw, sections 49, 61, and 84.) The setback is meant to prevent the building from becoming massive, and the screening is meant to prevent loss of privacy to neighbouring properties. However, setbacks have been reduced to zero. Side screening has been provided by a solid wall, causing the building to loom over neighbouring properties. Front screening has been provided by a low, see-through deck railing, allowing anyone on the rooftop to look over neighbouring properties.
Q: Do neighbours find out about variances before a permit is issued?
A: Only if the variances change the Mature Neighbourhood Overlay.
The Mature Neighbourhood Overlay (MNO) is Section 814 of the Zoning Bylaw. It applies to sites in older neighbourhoods (shown on a map in the Zoning Bylaw), if they are zoned RF1, RF2, RF3, RF4, or RF5.
When the MNO applies, it prevails over all other regulations.
The General Purpose of the MNO is as follows: “The purpose of this Overlay is to regulate residential development in Edmonton’s mature residential neighbourhoods, while responding to the context of surrounding development, maintaining the pedestrian-oriented design of the streetscape, and to provide an opportunity for consultation by gathering input from affected parties on the impact of a proposed variance to the Overlay regulations:” Zoning Bylaw 12800, s.814.1.
Subsection 814.5 sets out who is to be consulted, depending on the type of variance.
The Development Officer cannot waive the consultation requirements. The Court of Appeal has confirmed that the MNO is meant to provide procedural fairness, a principle of fundamental justice that cannot be altered by an administrative decision-maker such as a Development Officer. This means that the Development Officer must consult about variances even if the officer cannot allow them (such as to height).
If the officer denies the permit (which the officer must do if the variances are prohibited), the applicant may then appeal to the Subdivision and Development Appeal Board. If the officer issues the permit, neighbours or community groups must appeal.
Q: How do neighbours know when developers want to vary non-MNO rules?
A: They must contact the Development Officer for details.
Unfortunately, the Zoning Bylaw does not require notice to residents about non-MNO variances.
However, the Daily List of Development Applications provides information about development permits:
Permit applications are at Maps/Development Applications. Put in the date range, neighbourhood, street or avenue, and type of permit (default is ALL TYPES).
Permit applications have a job number attached. You can email the job number to city staff to ask about variances and other information.
Other Daily List Applications:
Zoning applications are at Maps/Land Applications.
Subdivision applications: City of Edmonton staff have been asked many times over the past year to post Subdivision Applications, because of the large number of lots being split across the city. However, staff have refused to post subdivision information.
Q: Is there an appeal process for variances?
A: Yes – the Subdivision and Development Appeal Board (SDAB).
Information about the SDAB can be found here: http://edmontontribunals.ca/sdab.aspx
Permits that need variances are called Class B permits.
If a Development Officer denies a Class B permit, the applicant can appeal to the SDAB. If an Officer issues a Class B permit, any affected person can appeal.
The SDAB is a provincial quasi-judicial tribunal created by the Municipal Government Act (MGA): https://www.canlii.org/en/ab/laws/stat/rsa-2000-c-m-26/latest/rsa-2000-c-m-26.html#Division_10_Subdivision_and_Development_Appeals_1392295
The SDAB is bound by the MGA, not the Edmonton Zoning Bylaw. Different rules apply. The SDAB can vary any part of the Zoning Bylaw – including rules the Development Officer is not allowed to vary – if, in the SDAB’s opinion, the variance does not “unduly interfere with the amenities of the neighbourhood; or materially interfere with or affect the use, enjoyment or value of neighbouring properties.”
However, the SDAB must form an opinion on facts, not personal feelings. The SDAB is authorized to exercise administrative discretion. This involves a technical review of whether the applicant for variances has provided evidence from which the SDAB can draw findings of fact to explain their reasons for an opinion about the impacts of the proposed development. The SDAB must give written reasons that state findings of fact, identify evidence for them, and explain why the SDAB tribunal reached a conclusion about each disputed point. The word ‘opinion’ has an unusual meaning for the SDAB.
Q: Can a neighbour appeal a permit that didn’t need any variances?
A: Yes, if the Development Officer relaxed, varied, or misinterpreted the
Permits that don’t need variances are called Class A permits. Sometimes Class A permits “unduly interfere with the amenities of the neighbourhood; or materially interfere with or affect the use, enjoyment or value of neighbouring properties.” If so, affected persons can appeal to the SDAB as if the Class A permit was Class B. The appeal must be filed within the ordinary time limit, which starts to run when the appellant receives notice of the permit.
Construction Site Practices
Q: Can advertising signs be on vacant properties and construction sites?
Sign regulations are in the Zoning Bylaw.
Construction sites must post two signs: (1) A city-approved sign with demolition permit information, and (2) A city-approved sign with construction permit information.
City-approved signs are white with blue writing, about 2 feet square, and show the permit number and contact information.
If the developer does not have these signs, it means the city has not issued a permit.
Construction sites must not post any other signs without a separate permit.
However, some signs can never receive a permit, such as signs that advertise a construction business in a residential area.
Q: Are construction excavations supposed to be shored?
The Occupational Health and Safety Act requires construction excavations to be sloped or shored to protect the safety of workers on site.
Occupational Health and Safety Officers are very willing to visit construction sites where workers are in unsafe excavations.
The Alberta Building Code requires construction excavations to be protected to prevent soil movement and loss by water that can cause building damage and public hazards.
Q: Who enforces the Alberta Building Code?
A: Authorized Building Codes Officers, hired by an Accredited Municipality.
The Ministry of Municipal Affairs is ultimately responsible for the Building Code.
The Ministry delegates enforcement to the Safety Codes Council.
The Safety Codes Council is responsible for training and accrediting Safety Codes Officers, who are hired to enforce the Code.
Municipalities can be accredited to hire Officers to enforce the Code within the municipal boundaries.
There are strict formalities around training, accreditation, hiring, and enforcement: http://www.safetycodes.ab.ca
Owners and contractors bear the final responsibility for complying with the Code. However, Safety Codes Officers have powers of oversight at all stages of construction, including before work begins:
2.2.2. Information Required for Proposed Work
184.108.40.206. General Information Required
1) Sufficient information shall be provided to show that the proposed work will conform to this Code and whether or not it may affect adjacent property.
Q: Is it acceptable for construction excavations to slump and collapse?
Construction excavations should never slump or collapse.
The Building Code contains clear provisions to prevent soil movement and loss by water.
The goals are to prevent building damage and public hazards.
Tangentially, enforcing the Code has the effect of preventing damage to fences, sidewalks, and private land.
Q: Can anyone look up the Building Code?
A: No, so here it is.
The Building Code is not generally available to the public, even though it is a form of regulation under the Safety Codes Act.
In the public interest, we excerpt below the most recent Building Code Construction Excavation Regulations that apply to small-scale infill development (less than 3 storeys and 6000 square feet):
Excavation means the space created by the removal of soil, rock or fill for the purposes of construction.
OP4 Protection of Adjacent Buildings or Facilities from Structural Damage
An objective of this Code is to limit the probability that, as a result of the design, construction or demolition of the building or facility, adjacent buildings or facilities will be exposed to an unacceptable risk of structural damage.
The risks of structural damage to adjacent buildings or facilities addressed in this Code are those caused by—
OP4.1 – settlement of the medium supporting adjacent buildings or facilities
OP4.2 – collapse of the building or facility or portion thereof onto adjacent buildings or facilities
OP4.3 – impact of the building or facility on adjacent buildings or facilities
OP4.4 – collapse of the excavation
OS5 Safety at Construction and Demolition Sites
An objective of this Code is to limit the probability that, as a result of the construction or demolition of the building or facility, the public adjacent to a construction or demolition site will be exposed to an unacceptable risk of injury due to hazards.
The risks of injury due to construction and demolition hazards addressed in this Code are those caused by—
OS5.1 – objects projected onto public ways
OS5.2 – vehicular accidents on public ways
OS5.3 – damage to or obstruction of public ways
OS5.4 – water accumulated in excavations
OS5.5 – entry into the site
OS5.6 – exposure to hazardous substances and activities
OS5.7 – loads bearing on a covered way that exceed its loadbearing capacity
OS5.8 – collapse of the excavation
OS5.9 – persons being delayed in or impeded from moving to a safe place during an emergency (see Appendix A)
220.127.116.11. Fencing, Boarding or Barricades
1) When a construction or demolition activity may constitute a hazard to the
public and is located 2 m or more from a public way, a strongly constructed fence,
boarding or barricade not less than 1.8 m high shall be erected between the site and the
public way or open sides of a construction site.
2) Barricades shall have a reasonably smooth surface facing the public way and
shall be without openings, except those required for access.
3) Access openings through barricades shall be equipped with gates that shall be
- a) kept closed and locked when the site is unattended, and
- b) maintained in place until completion of the construction or demolition activity.
18.104.22.168. Water Removal
1) Excavations shall be kept reasonably clear of water.
22.214.171.124. Protection of Adjoining Property
1) If the stability of adjoining buildings may be endangered by the work of excavating, adequate underpinning, shoring and bracing shall be provided to prevent
- a) damage to, or movement of, any part of the adjoining building, and
- b) the creation of a hazard to the public.
Q: Are construction excavations supposed to be fenced?
The Building Code contains clear provisions to securely fence construction excavations to prevent public hazards (hazards to anyone not associated with the construction site, including passersby and neighbours).
Tangentially, the Code prevents construction fencing from being placed on neighbouring property. The Code cannot create a situation in which trespass must occur. Therefore, required fencing must be placed fully on the construction site at the outset, and must be kept in place until construction is complete:
8.2. Protection of the Public
126.96.36.199. Fencing, Boarding or Barricades
1) When a construction or demolition activity may constitute a hazard to the public and is located 2 m or more from a public way, a strongly constructed fence, boarding or barricade not less than 1.8 m high shall be erected between the site and the public way or open sides of a construction site.
2) Barricades shall have a reasonably smooth surface facing the public way and shall be without openings, except those required for access.
3) Access openings through barricades shall be equipped with gates that shall be
- a) kept closed and locked when the site is unattended, and
- b) maintained in place until completion of the construction or demolition activity.
NOTE: Public way means a sidewalk, street, highway, square or other open space to which the public has access, as of right or by invitation, expressed or implied.
The requirement to fence the “open sides of a construction site” mandates fencing between neighbouring property if an unsafe condition exists (neighbours count in the definition of ‘public’).
Q: Can we do anything about Edmonton’s construction excavation problems?
A: Yes. Read on.
For years, the media has reported examples of construction excavations that undermine neighbouring property, causing damage to land, sidewalks, fences, and foundations. Too often, if the sites are fenced at all, the fence sits on neighbouring property because there is insufficient soil left on the construction site. It seemed that the City of Edmonton was powerless to prevent or remedy inconvenience, hazards, or damage caused by construction excavations.
In September 2016, in the public interest, we made a formal request for the Safety Codes Council to investigate the application of the Building Code to construction excavations.
Our goal was to develop an effective enforcement mechanism for the Code by the start of the next construction season.
By February 2017, the Safety Codes Council had not begun an investigation, so we met them to ask to expedite the investigation. We followed up with regular correspondence over the next months.
In April 2017, the Safety Codes Council decided that it could undertake an inquiry and assigned the file to a very competent investigator.
By August 2017 nothing had been resolved. Another construction season had passed, more damage was done, and the Building Code remained unenforced.
In September 2017 we submitted a Continuing Freedom of Information Request to the province to disclose Safety Codes Council records to us every three months for two years, to get an idea of why Edmonton has apparently not been compelled to enforce the Building Code in relation to construction excavations.
In November 2017 we received a report from the Safety Codes Council, stating that:
The City’s enforcement of the Act in relation to infill excavation is based on its interpretation that the Code does not regulate construction excavation for infills beyond the property line. The City believes that the application of the Code is limited to the protection of the public and managing water accumulation in the excavation….However, this interpretation does not, or does not appear to, factor in relevant requirements contained in Division C. Division C, Part 2, Section 2.2, Subsection 2.2.14 contains provisions related to responsibility for safety during, and damage resulting from, construction….Most importantly, article 188.8.131.52 says that an owner must ensure that work undertaken under the Code “does not damage or create a hazard to adjacent properties.” These articles imply that the Code applies and extends beyond the property line. Combined with the other sections of the Code, it is my opinion that safety codes officers do have the jurisdiction and authority to enforce the Code on to an adjacent property where damage has resulted from an infill excavation. The objective-based format of the Code requires that it must be read in its entirety. Its requirements cannot be used selectively, or interpreted in isolation. In this way, it is my opinion that neglecting the requirements contained in Division C was an oversight on the part of the City….[T]he outcome of this investigation does suggest the need for the City to revisit its position on excavations during infill construction to ensure that it includes all relevant sections of the Code. In particular, those articles contained in Division C, Part 2. Consequently, I am asking the City to review and re-evaluate their stated position on the application of the Code to infill excavations. This will include providing me with a formal response as to the outcome of their review, and whether they will be making any changes. I am also asking them to contact the Chief Building Administrator, Mr. Paul Chang, at Alberta Municipal Affairs to seek advice, guidance, and clarity on the application of the Code with respect to infill excavations. A copy of this closure letter will be placed on the City of Edmonton’s accreditation file.
Mr. Chang has advised that, in October 2017, he and city Safety Codes Officers met to review the sections of the Code that apply to infill construction excavations, so the Officers would be aware of their authority to act.
From now on, Safety Codes Officers should be informed of all problems with construction excavations. The Building Code provides authority to prevent and remedy inconvenience, hazards, and damage.
Serious trespass problems plague construction sites across the city. It is the norm for excavators to reach across property lines, causing damage, and for construction crews to regularly traverse neighbouring property, causing damage and public hazards, and causing intense conflict and grief.
The Petty Trespass Act contemplates these situations.
Q: Who is authorized to enforce the Petty Trespass Act?
A: Provincial Peace Officers in Alberta’s municipalities – except for Edmonton.
The Petty Trespass Act is in a list of provincial laws other municipalities’ Peace Officers are authorized to enforce. The Act is very useful in construction trespass situations for four reasons:
- The Act can be enforced with or without property damage.
- The threat to the Peace Officer is very low (usually the homeowner has already confronted the construction crew), so it allows Peace Officers to attend at a site to prevent crews from walking on neighbouring property.
- It contains a section that addresses trespass by machinery, including excavator damage occurs over a property line.
- The Act can be paired with the Provincial Offences Procedure Act to allow a Peace Officer to issue a notice to attend court, where a property owner has the opportunity to prove up to $25,000 in damages.
With this pair of laws, the Legislature has deliberately bypassed the need for property owners to sue for damages.
Q: Why doesn’t Edmonton enforce the Petty Trespass Act?
A: Edmonton claims not to have the resources to enforce the Act at infill construction sites, even though the Infill Compliance Team consists of Peace Officers who attend at construction sites to enforce rules intended to protect neighbouring properties.
When we discovered that Edmonton does not enforce the Petty Trespass Act despite being authorized to do so, we notified successive city officials through to the City Manager, and finally to Council. Nothing changed.
Finally, in January 2017, in the public interest, we made a formal request to the Director of Law Enforcement (responsible for Peace Officer enforcement).
Following that, the Director advised that Edmonton asked for permission to stop enforcing the Act and for the Edmonton Police Service to enforce it instead.
Naturally the EPS is far too busy to follow the Infill Compliance Team to construction sites to deal with trespass.
We have submitted a Freedom of Information request for details of the city’s discussions about relieving themselves of enforcing the Act. We have notified the Mayor, who last year directed staff to do a better job with infill construction trespass. We will report on the results of these actions.
Meanwhile: Edmontonians must enforce the Act themselves. This was the way the Act was enforced before the Legislature authorized Peace Officers to enforce it, knowing that police are too busy to do so.
The “power to lay an information (a charge) is found in the Criminal Code. The police have no particular power to lay a charge, but rather the same power as any other individual” (Ab.Justice, Crown Duties). The Crown Prosecutor reviews all charges before they proceed.
A citizen has the power to lay a charge under the Petty Trespass Act whether the police agree or not. The citizen has the power to ensure that the Provincial Offences Procedure Act is applied to the citizen’s satisfaction. It is not a matter for the police to investigate or to decide. It is not resource-dependent. The Crown Prosecutor reviews the charge, not the police. The duty of the police during this process is simply not to interfere with the citizen’s right to lay a charge.
If we cannot convince Edmonton’s Peace Officers to enforce the Act, the city will need to undertake training of the public, the Infill Compliance Team, and the EPS to understand this critical matter.
Construction Nuisance (Community Standards Bylaw)
Q: Does the Community Standards Bylaw apply to construction sites?
The Community Standards Bylaw prohibits:
- Messy construction sites: s.6
- Dust: s.6
- Open excavations: s.6
- Construction not completed within 5 years: s.6
- Derelict vacant buildings: ss.9 and 10
- Overflowing, uncapped waste bins: s.12
- Waste disposal on private land (includes construction waste, such as fill): s.12.1
Construction Equipment on Boulevards (Traffic Bylaw)
Q: Does the Traffic Bylaw apply to construction sites?
The Traffic Bylaw prohibits:
- Blocking sidewalks: s.4
- Blocking alleys: s.12
- Blocking highways: s.15
- Parking unattached trailers: s.20
- Placing waste materials on sidewalk or roadway: s.48
- Damaging boulevard trees: s.55
- Placing a fence on a boulevard: s.56
- Driving over sidewalk or boulevard: s.74
- Tracking material on highway: s.78
- Driving tracked vehicles on highway: s.79
Q: Are contractors allowed to drive over and damage boulevards?
The Traffic Bylaw strictly prohibits driving over curbs, boulevards, and sidewalks, except at a crossing authorized by the City.
An authorized crossing is defined as a properly permitted driveway.
This means that city staff cannot issue a permit for contractors to drive over boulevards.
However, mistakenly, staff issue free OSCAM permits to allow contractors to drive at will over curbs, boulevards, and sidewalks. OSCAM is not a permit to drive over boulevards. OSCAM stands for On Street Construction and Maintenance. It refers to work that requires temporary sidewalk and road blockages, usually for public safety:
Contractor damage to public property is staggering. In some neighbourhoods, residents have just gone through years of expensive infrastructure renewal, and city staff are allowing contractors to actively destroy it before it has even been paid for.
Curbs and sidewalks have been broken, boulevard sod has been ground to mud, and boulevard tree branches have been broken and roots compressed.
The upshot: Staff are allowing citizens to perform a prohibited activity. That illicit activity is causing public property damage. The City Manager is named as the body responsible for the enforcement of the Traffic Bylaw. Therefore, the City Manager is complicit in vandalism of public property when contractors are allowed to damage curbs, boulevards, and sidewalks.
Over the past year, we have brought this analysis to the attention of enforcement staff, management, the City Manager, and City Council.
Unfortunately, to date the City of Edmonton does not enforce the Traffic Bylaw to prevent public property damage. Nor does the City require contractors to take protective measures to prevent damage. Nor does the city require a security deposit for said damage should it occur.
Meanwhile, damage continues to occur. It is the norm to see excavators, cement trucks, dump trucks, and heavy equipment driving over and parked on boulevards and sidewalks, creating property damage and public hazards, and causing intense conflict and grief.
It is our position that the Traffic Bylaw is meant to prevent these things. Enforcing the Bylaw would go a long way toward reducing construction conflicts and increasing acceptance of infill.
We will continue to press for a proper resolution of this matter.
Extra Powers (Municipal Government Act)
Q: Does the Municipal Government Act apply to construction sites?
The Municipal Government Act allows an enforcement officer to issue an order to stop an activity, demolish a structure in contravention of a bylaw, remedy dangers (including open excavations), and improve unsightly property: ss.545, 546.