Fencing Ponds and Other Areas

General

Each year in Ontario and Canada, there are a number of drownings in farm ponds, waterways and lagoons. The danger of drownings has increased dramatically with the widespread adoption of liquid manure systems. These hazard areas pose some unique problems for landowners. The liability situation with respect to this area is unclear, with few legal precedents to offer guidance. This fact sheet deals generally with the topic of fencing or protective enclosures for these areas.

What is the Liability?

In Ontario, there is no specified body of law dealing with standing water or liquid holding systems. The hazards associated with such areas are generally dealt with in the principles of common law, which governs a landowner’s liability in a particular situation.

Generally, the degree of liability that a landowner owes to a person(s) depends on that person’s status. Persons who come on to a property can be categorized as a trespasser, licensee or invitee. Trespassers are persons who enter the land without permission. A licensee is a person, such as a guest, who enters the land with the owner’s permission. An invitee is a business visitor to the land who may have been invited or is under some type of contract to enter the land.

A landowner owes a degree of care to all three categories of entrants. Individual circumstances will determine the degree of liability. Even trespassers (particularly children) are entitled to some type of protection.

Local By-Laws

Many municipalities have sought to correct the hazardous situations posed by water hazards by enacting local by-laws which require suitable protection structures be erected around the hazard. A good example of this type of by-law is the requirement for fencing around swimming pools, required by a majority of municipalities in Ontario.

Natural Waterways, Irrigation Ponds, and Ditches

Owing to the size and proximity of natural waterways to traffic areas, it is often difficult to erect a protective structure that will be effective and at an economically reasonable cost.

Natural ponds, if they are remote to public access, will probably not require specific fencing (other than property boundary fencing). However, if a natural pond or part of the pond is near a public access area, some type of fencing should be provided. Similarly, man-made irrigation ponds and ditches, if they are near public areas should be fenced.

Warning signs describing the danger of a specific hazard and declaring it off-limits to anyone, are also a good idea. To be effective, the signs should be posted near the body of water in a number of conspicuous places. Warning signs can also be placed on perimeter boundary fences.

Liquid Manure Storage Systems

Some municipalities in Ontario have enacted by-laws requiring that protective devices be erected around liquid manure systems. The purpose of these by-laws is two-fold; to keep people away form the hazard and to control odours.

As all liquid manure systems are in proximity of traveled areas on most farms, they should be fenced or guarded in some manner. The Ontario Ministry of Agriculture and Food specifies in the agricultural Code of Practice that liquid and semi-solid manure storage safety systems have safety fences to protect humans and livestock. The type of fencing required for manure handling systems will vary according to the design of system. All liquid and semi-solid manure handling systems should be posted with suitable warning signs and all points of entry secured.

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The information and recommendations contained in this publication are believed to be reliable and representative of contemporary expert opinion on the subject material. The Farm Safety Association does not guarantee absolute accuracy or sufficiency of subject material, nor can it accept responsibility for health and safety recommendations that may have been omitted due to particular and exceptional conditions and circumstances.

Publication #: F-013

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