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.

Conflict

(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.

footnotes 

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: http://www.mtc.gov.on.ca/en/publications/Heritage_Tool_Kit_HCD_English.pdf > at 20; see for example St. Lawrence Heritage Conservation District Plan, "City of Toronto", online:< https://www.toronto.ca/legdocs/mmis/2015/te/bgrd/backgroundfile-84943.pdf>, 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: http://www.mtc.gov.on.ca/en/publications/Heritage_Tool_Kit_HCD_English.pdf > 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:< https://www.toronto.ca/city-government/planning-development/heritage-preservation/heritage-conservation-districts-planning-studies/>.

22 Ibid.

23 Ibid.

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