Canada: Heritage Conservation Districts – Owners And Developers Should Be Wary

Ontario municipalities have a number of planning and development management tools at their disposal. One of the most powerful is their ability to designate a Heritage Conservation District ("HCD") under Part V of the Ontario Heritage Act (the "Act") and then create a corresponding Heritage Conservation District Plan ("HCD Plan").1 Developers and property owners in a proposed HCD should take note.

For property owners and developers, an HCD Plan, once in force, can be a significant obstacle for which there is no appeal or ability to amend. An HCD Plan may contain provisions which make it difficult to demolish, expand, or alter existing buildings, which inherently  limits the development potential of properties within an HCD. As municipalities expand the scope and usage of HCD Plans, it is important that owners and developers understand the HCD process and participate from the outset of the public consultation process.

The HCD Plans of the past are not the HCD Plans of the present, or the future. The first, weaker version of the Ontario Heritage Act was enacted on March 5, 1975.2 For the first two decades of its existence, HCD Plans were regarded more as flexible guidelines to be considered when granting development approvals.

That is no longer the case. The Act underwent significant changes in 2005. Bill 60 – An Act to Amend the Ontario Heritage Act, added, among other enhanced powers for municipalities, including the ability to prohibit demolition of designated buildings (in the past, they could effectively only delay demolition, not prohibit it), the following:

41.2  (1)  Despite any other general or special Act, if a heritage conservation district plan is in effect in a municipality, the council of the municipality shall not,

(a) carry out any public work in the district that is contrary to the objectives set out in the plan; or

(b) pass a by-law for any purpose that is contrary to the objectives set out in the plan.


(2)  In the event of a conflict between a heritage conservation district plan and a municipal by-law that affects the designated district, the plan prevails to the extent of the conflict, but in all other respects the by-law remains in full force.3

This section fundamentally changed the nature of an HCD Plan. An HCD Plan (which must accompany every designated HCD) is, according to the Act, paramount and will prevail over any by-law with which it conflicts.4 Effectively, this gives the municipality the upper hand in limiting or preventing development.

The existence of an HCD Plan limits the municipality's ability to pass its own by-laws should they conflict with the HCD Plan. It is also unclear as a matter of law whether council can amend an HCD Plan as doing so would require the passing of a by-law, which would inevitably be in conflict with the plan.

The scope of this authority will likely remain be the subject matter of future appeals. This will be something to monitor.

HCDs – What They Are

Part V of the Ontario Heritage Act gives municipalities the ability to pass by-laws to designate as HCDs those areas whose cultural heritage value contributes to a sense of place extending beyond their individual buildings, structures and landscapes. Heritage value may be attributed to representative examples of architecture and does not require that they be outstanding or unique. Further, value may be "associative", and this is tied to historical events, not the quality of the built environment.5

Once a heritage conservation district designation by-law is approved, property owners in the district will need a permit from the municipality for any alteration that is not considered minor, as well as any demolition or new construction.

An HCD designation by-law must be registered on the title of each property within the district. 

HCDs – Why They Matter

The purpose of an HCD Plan is to impose responsibilities or limitations on landowners and/or properties in accordance with its terms. HCD Plans typically include inflexible rules that force expenses on property owners looking to replace, upgrade, or develop aspects of their property – for example, limiting building heights, restricting lot coverage, or requiring the preservation of certain buildings. This may prevent development directly as described above or effectively prevent it by rendering projects uneconomical. Developers should be conscious that it is possible for a municipality to misuse the heritage designation process as development control tool rather than a heritage preservation tool.

How to Participate – Area Study

It is possible to mitigate the risk of the enactment of a problematic HCD Plan by participating in its creation. In fact, this is the only opportunity to influence its substantive contents as there is no ability to seek an amendment thereto once it is approved.

Section 40 of the Act states that a municipality may undertake a study of any area of the municipality for the purpose of designating one or more heritage conservation districts.6

Although the term 'study' may be disarming, an area study can have a real impact.

In support of the area study, a municipality may pass a by-law establishing interim controls.7 Similar to the interim control powers under the Planning Act, this by-law may prohibit or set limitations respecting alterations to property including the erection, demolition, or removal of buildings and structures.8 These controls may be in place for up to one year.9 A municipality cannot extend the interim controls beyond one year and cannot pass another by-law to designate another study area if it includes a previously designated study area, for a period of three years.10

Within 30 days of the receipt of notice, any person who objects to the by-law may appeal to the Local Planning Appeal Tribunal ("LPAT").11 An Appellant is entitled to an open hearing.12 Once all appeals have been dismissed, or the Tribunal has ordered amendments to the by-law, the study area by-law will come into effect.13 An Appellant may object to the invoking of the study area altogether, or may object to the appropriateness and acceptability of the interim controls adopted under the by-law.14

How to Participate - HCD Designation

Whether or not an area study has been completed, a municipality may pass a by-law to designate an area as an HCD ("HCD By-law").15 All HCDs must be accompanied by an HCD Plan.16 The municipality must also hold at least one public meeting at which anyone in attendance shall be given an opportunity to make oral representations regarding the plan.17

Any person who objects to an HCD by-law passed by a municipality may appeal the by-law to the LPAT.18 Persons who did not make representations at the meeting or written submissions on the plan may be later denied the opportunity to appeal the passing of the by-law to the LPAT.19 Once all appeals have been dismissed, or the Tribunal has ordered amendments to the by-law, the HCD By-law will come into force.20

It is important for any party interested in maintaining an ability to appeal a designation by-law adopted by a municipality to participate meaningfully in the various stages leading up to the adoption of the by-law. If you do not attend public meetings, make written submissions to council, and out of an abundance of caution raise any objections, your silence may prejudice your future rights of appeal.

Participating in the heritage designation process and understanding your right to appeal is critical for landowners within a proposed HCD given the risk of impact on the development potential of affected properties once an HCD By-law and HCD Plan come into force.

HCDs in the City of Toronto – Quick Facts

Heritage Conservation Districts, much like the buildings, landscapes, or vistas they include, are not new to Toronto. Since the Act was in enacted in 1975, the City has designated 15 HCDs, including, among others, Fort York, Cabbagetown, Queen Street West, and Union Station. 21

At present, a further five HCDs are under appeal at the LPAT: Garden District, Historic Yonge Street, King-Spadina, St. Lawrence Neighbourhood, and West Annex Phase 1: Madison Avenue.22

Nine potential HCDs are undergoing development studies and a further six planning studies include a heritage component.23

The McCarthy Tétrault Municipal and Planning, and Real Property Development groups are always up to date on changes to the legislation in the development space. We would be pleased to discuss your or your organization's next steps with you.


1 Ontario Heritage Act, RSO 1990, c 0.18.

2 The Ontario Heritage Act, 1974, SO 1974, c 122.

3 Bill 60, Ontario Heritage Amendment Act, 1st Sess, 38th Leg, Ontario, 2005, (assented to 10 November 2004), S.O. 2005, c.6. 31.

4 Ontario Heritage Act, RSO 1990, c 0.18, s 41.1(1).

5 Ontario Ministry of Culture, "Heritage Conservation Districts, A Guide to District Designation Under the Ontario Heritage Act", online: > at 20; see for example St. Lawrence Heritage Conservation District Plan, "City of Toronto", online:<>, at 28.

5 Ibid.

6 Ontario Heritage Act, RSO 1990, c 0.18, ss 40(1), 40(2).

7 Ibid, s 40.1(1).

8 Ibid, ss 40.1(1), 40.1(2).

9 Ibid, s 40.1(1).

10 Ibid, s 40.1(6).

11 Ibid, s 40.1(4).

12 Ibid, ss 40.1(5),41(9).

13 Ibid, ss 40.1(5), 41(10).

14 Ontario Ministry of Culture, "Heritage Conservation Districts, A Guide to District Designation Under the Ontario Heritage Act", online: > at 20.

15 Ontario Heritage Act, RSO 1990, c 0.18, s. 41(1).

16 Ibid, s 41.1(1).

17 Ibid, ss 41.1(6), 41.1(9).

18 Ibid, ss 41.1(4), 41(4).

19 Ibid, ss 41.1(4), 41(8)(e).

20 Ibid, ss 41.1(4), s 41(10).

21 City of Toronto, "District Planning Studies", online:<>.

22 Ibid.

23 Ibid.

To view the original article click here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions