Barriers, by-laws, and the biophilic city

2020 was a year of many things. For urban and regional planning professor Nina-Marie Lister, an internationally recognized landscape ecologist and planner, it was also the year that her garden became politicized. The garden is designed and maintained as a natural meadow, with perennial plants and shrubs native to her area. The meadow became politicized when by-law enforcement came to enforce a vague City of Toronto by-law (external link)  that restricts the height of a “lawn” to 20 cm and refers only to undefined varieties of “long grasses and weeds''.  This by-law stands in opposition to city policies and priorities supporting biodiversity (external link) .  Many local and national newspapers (external link)  joined in the debate about plant regulations and constitutionally protected private property rights, ecology and urban planning. 

Lister, through her work with the Ecological Design Lab (external link) , has been involved in developing and applying Toronto’s Pollinator Strategy (external link) , Ravine Strategy (external link)  and  (PDF file) Biodiversity Strategy. (external link)   She took those into consideration when cultivating a natural meadow in her hilltop yard. Her yard, having a 25-30% incline, is not practical or easy to mow. Instead, she followed the same  (PDF file) city guidelines (external link)  that she would use when giving landscaping or planting design advice for a public space or park. She planted natural plants and shrubs intended to both create shade and allow the soil to slowly absorb rainwater to sustain her plants with only natural fertilizers and no pesticides. They are thriving in the space. 

Author and president of the Canadian Wild Flower Association, Lorraine Johnson (external link) , was a panellist at a December panel event hosted by Lister. It also included environmental lawyer David Donnelly (external link) , expert gardener and media personality Mark Cullen (external link) , and natural environment enforcement officer for the City of Toronto Patricia Landry (external link) . Graduate student, urban planner, and Ecology Design Lab research assistant Carly Murphy, moderated the panel. The event was called Barriers, By-laws, and the Biophilic City, and a video recording can be viewed online (external link) . 

Speaking at the event, Johnson said, “Let’s be clear, the problem here isn’t with the individual by-law enforcement officers. There is a systemic problem with a by-law that is itself vague and unclear.” Johnson listed several prominent cases of gardens whose flora and foliage led to legal challenges. He described an Ontario Superior Court ruling in a constitutional rights case that upheld the rights of those with natural or native gardens to be free to express their environmental values through their gardens and choice of plants, so long as they pose no health or safety issue. “Additionally, there is a lot of practical evidence to show that natural gardens fare better in our hot, dry summers than water-thirsty green lawns.”  

While attitudes and understanding of natural plants are evolving, milkweed was once seen as a noxious weed and is now understood to be crucial to monarch butterflies’ survival.  Goldenrod is a natural plant, native to the Toronto area, whose pollinator value is beginning to be understood by more people yet often lands gardeners in situations of having to defend their gardens to the city, usually annually.  

Speaking on this panel, Donnelly described the possible $5,000 fine prescribed in the by-law in question as not only a high penalty by city standards but also one that is “unconstitutional, harassment, hypocritical and illegal.” He went on to explain, “the issue was settled in 1996 with the Sandy Bell case. In that decision, the judge said: Weed and grass by-laws are unconstitutional, arbitrary, have no standard, and are really about personal preference and restricting freedom of expression by restricting less conventional gardens.” 

Patricia Landry, of the City of Toronto, is working to educate communities on the value of biodiversity, Toronto’s Pollinator Protection Strategy (external link)  and developing new and evolving learning modules for staff, organizations, and schools.  While she points out that the city gets just under 7,000 complaints a year about gardens, most fall within the allowed exemptions (external link) . “Eighteen of 20 properties we go out to belong to people who are doing beautiful natural gardens. Green space is largely private in Toronto, and biodiversity is important. We need to cultivate a sense of stewardship in mitigating the effects of densification on biodiversity. As a city, we want to get people excited about natural gardens and plans. I can be pretty convincing about the importance of plants as pollinators.”

In Lister’s case, an exemption to the by-law was offered, but as a planner and landscape ecologist, she argues that the by-law is outdated and needs to change. She is working with the community to change it. “I’m a professor, I live in an affluent area, and I have a public platform, so it’s relatively easy for me to get an exemption. But that is not the case for others, who might not have the resources or knowledge or connections to know how to navigate the bylaw. Instead, we chose to use the media attention about the garden to ask the city to change the bylaw.  After the Toronto Star ran the story (external link) , the mayor came for a tour (external link)  and a visit to our garden. This visit helped us demystify what a natural garden looks like and why it is beneficial to ecological and human health. But what about others? The problems with this by-law go to the heart of planning, and given that I teach at the School of Urban Planning, this story was a  good opportunity to discuss the intersection of planning policy, urban nature, and biodiversity within the constraints of an outdated by-law whose time is up and needs to be changed.” Johnson added, “anyone who chooses to grow a natural garden needs an exemption to the bylaw -- and for this, their garden must be inspected, often annually. Furthermore, the addresses of approved exemptions to the bylaw are listed (external link)  on the same site where other residents can complain about them. So there are a lot of disincentives to biodiversity in the by-law.”  

Cullen agreed, saying he thinks people are prisoners of the past when they think of the colonial notion of the green lawn. “I’m shocked that there is the word “lawn” in this by-law.  People should have the choice to have many different types of plants in their yards. There is no by-law about art, but there is one about plants, and the by-law stands in the way of more progressive policies that support pollinator plants and biodiversity more broadly. Community groups can get grants from the city to put pollinator gardens in parks (external link) , yet we’ve got departments operating in silos in the city. We could be creating a pollinator corridor in the city as a homegrown national park, bigger than many national parks.”  

There is an important philosophical question, says Johnson. “Aside from the vagueness and uncertainty about weeds and grasses and arbitrary enforcement, the current legal framework creates a disincentive to biodiversity by creating and framing natural gardens as the exception in opposition to the norm, which continues to be the green lawn.” 

There are a lot of myths associated with native gardens, said Cullen. “The notion people have about wildflower gardens, native gardens and Indigenous plants, is that if you ignore your land, that’s what you get. But that’s not how it works. If you leave a plot of land alone over time, a minimum of 70% of the plants that grow there will be non-native. You have to do a lot of planting, soil amendment, fertilizing and nurturing to grow native plants. But then, once that’s understood, even on a balcony, people can contribute to the pollinator corridor that we’re trying to create.”  

Lister, Donnelly, Johnson and others are working to change the City of Toronto by-law. Lister’s research assistant, and graduate student in the urban development program, Carly Murphy, is developing a model bylaw as part of her master’s research paper in urban planning and will be sharing that with city officials in May of this year. The team will be hosting another webinar to share the results of that work this spring.  

Environmental lawyer David Donnelly summed up the challenge this way: “The bylaw amounts to an unconstitutional state sanction on those who dare to grow a natural garden. Yet we know, and the city knows, that native plants are good for nature and good for us. Indeed Mayor Tory, what kind of barbarian would mow buttercups, forget-me-nots and lambs quarters?”