Q: Can I get sued for my boulevard garden? What’s the risk?
Risk is a tricky topic. I should start by confessing that I’m a lawyer as well as a boulevard gardener. All the same, I’m driven to put disclaimers on my written comments whenever they involve legal questions, to avoid the perception that you are now my client, or that this is legal advice. So, as silly as it may sound, I am not your lawyer giving you legal advice on this website! I’m just a boulevard gardener, reflecting on basic risks associated with boulevard gardening.
Ok, on to your question. Short answer: The risk of getting sued exists, and the degree of risk depends on many factors. I think it is up to each of us as boulevard gardeners (including adjacent property owners) to assess legal risks for ourselves. We each have different risk thresholds running on a long spectrum, and we each might choose to engage in risky behaviours to different degrees. Talk to your friends and neighbours about the risks (especially those who might have some legal training), and/or talk to your home insurance adviser.
Q: Let’s say someone gets hurt in my boulevard garden. Can they sue me or not?
Assume they can sue you. For better or worse, we can each get sued for many of the things we do in our day to day lives, if they cause harm to others. Still, I am not aware of any lawsuit against the City of Victoria or a homeowner related to boulevard gardening in Victoria (and I’ve asked around), and many people have been boulevard gardening in Victoria for many years.
When I was working on the City of Victoria’s Boulevard Gardening Guidelines in mid-2014, I called the City of Vancouver to discuss their guidelines, including related risks. No one I spoke to had any knowledge of relevant lawsuits in Vancouver during the ten-plus years that boulevard gardens have been allowed in that metropolis (but note, this information may now be outdated).
All this to say, when I originally assessed the risk of a lawsuit regarding the boulevard gardens I tend, I viewed that risk as sitting at the very, very low end of my risk spectrum (and well below my “no-go threshold”).
Q: If someone did want to sue over my boulevard garden, they would just sue the City, right? Why would they sue me? After all, it’s City land!
If grounds for a lawsuit exist, you can expect the victim to sue everyone in sight (within reason). That could mean the City, and that could mean you.
In fact, section 737 of the Local Government Act aims to shift responsibility from municipalities to a third party (like a boulevard gardener) for “damages sustained by reason of an obstruction, excavation… or opening in or adjoining a street…placed, made, left or maintained” by the third party. Similarly, the Boulevard Gardening Guidelines (6.3) aim to shift responsibility to boulevard gardeners for their garden-related activities, including any harm “based on or related to your action, omission or inaction”. In short, if you take control of a chunk of City boulevard for gardening purposes, you should consider yourself to be responsible for that chunk, including its safety and upkeep. To get a clearer picture, take a close look at 6.2 and 6.3 of the Boulevard Gardening Guidelines.
Q: What if I’m the owner of the property adjacent to a boulevard garden, and my tenant (or anyone other than me) is doing the gardening?
Again, if grounds for a lawsuit exist, you can expect the victim to sue everyone in sight (within reason). That could mean the City, and the tenant, and you. Again, the Local Government Act and the Boulevard Gardening Guidelines aim to shift responsibility away from the City and onto the person who caused the harm, so I would expect any legal debate to focus on the degree to which the tenant caused any harm on the boulevard, and the degree to which the adjacent property owner caused the harm (e.g. by ignoring a hazard on the boulevard).
Cheerfully, the legal standard is not perfection. In other words, the inquiry wouldn’t be limited to the question: Did the owner/gardener cause or contribute to this harm? The bigger question should be: Did the owner/gardener contribute to this harm negligently? A legal claim would likely be rooted in negligence. Was the gardener (or adjacent property owner) careless? Did they check the garden often enough? Was the garden maintained to a reasonable standard? These are some of the crucial questions that can inform a liability debate.
As a boulevard gardener (and/or adjacent property owner), you’d be undertaking a novel activity in public space, and that activity is not risk-free. Again, from my own personal point of view, I see the risk of harm to passers-by as very, very low, but not nil. So what to do? Be careful in the garden. Don’t leave an open hole unattended, especially overnight. Don’t leave tools or other tripping hazards on the sidewalk or on the street, even if you are working nearby. You know: common sense stuff. The Boulevard Gardening Guidelines lay out these imperatives (and others) in fairly clear terms, especially in 5, 6.2 and 6.3.
Q: What about the risk of receiving a ticket under City bylaws?
Technically, boulevard gardening is still offside section 103A of the City’s Streets and Traffic Bylaw. But the City has made it clear (through the Boulevard Gardening Guidelines and other supporting moves) that the City is not interested in enforcing this Bylaw against those who garden responsibly. All the same, if a garden poses a safety or sight-line hazard, for example, the adjacent property owner might hear about it from the City. This is covered in 6.2 of the Boulevard Gardening Guidelines.
Q: I’m a tenant, and I’d like to boulevard garden adjacent to the building where I live. Can I just go ahead and do it?
According to the Boulevard Gardening Guidelines (4.1), you need the informed consent of your landlord. This is understandable, because your landlord may be concerned about liability risks, the appearance of the garden, and its maintenance if and when you move out, for example.
Over the last several years, I have helped maintain three boulevard gardens (to different degrees), and all three are adjacent to homes I don’t own. I’ve never even been a tenant in any of those homes. I’ve worked out a fairly clear understanding with each homeowner: in one case, verbally; in another, with an email exchange, and in the third case, with a signed letter. My approach was driven in part by the preferences and concerns of the homeowner. To me, any ‘deal’ should cover specific do’s and don’ts that you and the property owner have in mind; who does the watering; who pays for the water; who makes planting decisions; what happens when you move out. If the property owner wishes to include a liability waiver of some kind, you’ll want to take a hard look at it (maybe with the help of a lawyer). Turn your mind to what might go wrong (however unlikely that may be), and turn your mind to who should bear that risk.
You may wish to pause and ask yourself: Is my relationship with my landlord on solid footing, or is it already tense to some degree? Can I continue to get along with my landlord, once a garden gets going? Do my landlord and I share the same gardening sensibilities? Is the landlord imagining a highly-manicured garden, while I’m imagining a more natural look? The garden will be in front or beside the landlord’s property, and although on City land, the garden’s look-and-feel will reflect on the owner, so that person may have some strong gardening opinions. Better to understand those expectations before doing the work associated with starting a boulevard garden. You can save yourself a lot of unnecessary grief.
Q: I’m a condo owner, and I’d like to boulevard garden adjacent to the building where I live. Can I just go ahead and do it?
According to the Boulevard Gardening Guidelines (4.1), you should be approaching your strata council. Many of the same concerns that apply to the landlord-tenant relationship may apply to you as a condo owner in relation to other condo owners, further complicated by the political context of your building.
Q: What other risks should I be thinking about, before I start a boulevard garden?
In my experience, the highest risk is relationship-related. Strains on a relationship can arise, in part, because no two garden stakeholders share precisely the same garden preferences. To illustrate, if you offer two seemingly like-minded gardeners the same basket of seeds or seedlings and turn them loose in a shared space, it is easy to imagine debates or disputes cropping up. There will be limited room for plants, so there may be plenty of room to disagree about what-should-go-where, just for starters. In fact, it can be quite challenging to agree on that basket of seeds and seedlings, to begin with. Are sunflowers too tall? Is clover a weed? Do raspberries and comfrey spread themselves around too much? Is blackberry an invasive, with no place in the garden? To each of these questions, I’d answer: “Bring ’em on!” But I’ve had tense debates with reasonable people on these questions and others.
From a bigger-picture perspective, if two or more people are sharing responsibility for a garden, who makes the planting decisions? Can each person do their own thing, without consulting the other(s)? If so, how does the person doing the digging know that they are not disturbing the seeds planted by a co-gardener? If each person is entitled to do as they please, can one person move someone else’s planting from location A to B, to make room for something new? Maybe close consultations should be the rule on planting decisions? But what if a sharp disagreement raises its ugly head? Maybe each person gets a veto over the planting decisions proposed by the other? Maybe each person is just happy to have their say?
All this to say, you should take a critical look at whether your relationship with others (e.g. your landlord; your neighbours; your co-gardeners) will be strengthened or undermined by a boulevard garden, in light of shared and divergent interests. I believe, done well, boulevard gardens can help build community. Done recklessly, boulevard gardens can split people apart.
Q: With all of these risks to think about, why on Earth should I start a boulevard garden?!
This all sounds very unsettling, but boulevard gardening can be plenty of fun. I hope I haven’t turned you off the idea altogether! These questions focused on risk, so my comments have done the same. But let’s not forget the many, many positive things associated with boulevard gardens: increasing ecological diversity; adding character to neighbourhoods; increasing feelings of community pride; providing bird, butterfly and pollinator habitats; beautiful, interesting and diverse streets; fresh, local, and sustainable food sources; community building, traffic calming, and healthier living; and on and on.
And what about the risks of ornamental grass? All that gas-powered mowing and trimming and blowing is adding to our CO2 omissions, adding to our climate crisis, little by little, slowly but surely. And for what? Not for flowers, not for food; all that work for a tedious carpet-like look. The great outdoors is not indoor space, and we don’t need wall-to-wall turf to make us feel good about that space, or ourselves. I don’t expect people to limit the use of their cars to help stabilize our climate (what a crazy idea that would be), but can we get serious about climate action by sacrificing our lawns, at least to some degree? Please, hoe don’t mow!