CHLs at the OMB/LPAT — Thumbs down for Rockfort Quarry

Friday, March 22, 2019
by Dan Schneider
An image of a small farm building

Stone milkhouse, Westerveld Farm, Caledon

Still on the topic of cultural heritage landscapes (bear with me, just a couple more rounds to go!): We have yet to look at how CHL arguments have fared before the Ontario Municipal Board, now the Local Planning Appeal Tribunal.

How has Ontario’s planning appeals tribunal handled the Provincial Policy Statement injunction that “significant” cultural heritage landscapes “shall be conserved”? What lessons are there here?

Recent OHA+M posts looked at the evolution of the PPS definition of CHLs[1] and the meaning of “significant.”[2]

The OMB/LPAT has wrestled with these definitions — as well as with what it means to “conserve” a CHL — on very few occasions. We’ll look at two decisions: the Rockfort Quarry case from 2010 this time, and the Burleigh Bay case from 2017 next time.

A map of Caledon, Ontario

The proposed Rockfort Quarry was turned down by the OMB after long and complex proceedings.[3] The proposal for a massive (58 hectare) open pit quarry in rural Caledon was found wanting on a number of grounds, including its “unacceptable impacts” on cultural heritage resources.[4]

The Town of Caledon’s Official Plan, in its policies for mineral resources, included a requirement that applicants for approvals for new or expanded aggregate operations complete a cultural heritage survey and, where appropriate, a cultural heritage impact statement demonstrating that the proposal would not have “any unacceptable impacts.” In its decision the OMB confirmed the onus was on the proponent to make the case to municipal council, and the Board on appeal, that the proposal did not have “unacceptable impacts” on cultural heritage resources.

The cultural heritage part of the case turned on whether the impacts of the quarry on heritage resources were so negative that, despite mitigation, they were “unacceptable.” Or, in other words, that what was proposed crossed the line from “conservation” of heritage resources, as directed by the PPS, to something else again.

The Board took note of the definition of “conservation measures” spelled out in the OP policies, which “may include, as appropriate, retention and uses or adaptive reuse of heritage buildings and structures, incorporation of cultural heritage elements … and carrying out appropriate salvage and recording of cultural heritage resources that may be removed as a result of aggregate extraction operations.” Note that this language clearly contemplates the removal of heritage resources in some instances subject to appropriate salvage and recording.[5]

Fundamental to the Board’s determination of what impacts were unacceptable was the question of the significance of the cultural heritage resources on the subject property.

As context for this determination, the Board seemed to place great emphasis on rural landscapes and farmscapes, which the Official Plan described as “the most dominant cultural landscape” in Caledon.

The Board proceeded to undertake an assiduous examination of the significance of the two farms to be primarily affected by the quarry proposal.
 

A black and white image of a farm house

Rockfort Farm farmhouse, with foxhunt, 1938


One farm, the Rockfort farm, had an 1870s stone house and an earlier barn complex with an 1864 stone barn (with datestone!). These elements, described as “exceptional”, would be kept by the quarry owner. But the other attributes of the farm — including the fields, fence lines, hedgerows, remnant orchards and mature plantings — would be lost as the quarry was developed over time. (The second farm, known as the Westerveld farm, would be completely lost.)

The Board noted the significance of the sum of all of the landscape features — essentially the features of the iconic traditional Ontario farm — quoting from the proponent’s heritage consultant’s report that:

  • the historic farmscapes comprising the proposed quarry site “have been in continuous agricultural use since first settled by Scottish immigrants in the early nineteenth century. The property is well defined as an ensemble.”
  • with respect to the Rockfort farm, the farm complex includes “field patterns” and “the whole forms a distinctive agricultural landscape … that is visually attractive and well preserved.”

The Board also looked at whether the farms were eligible for designation under the Ontario Heritage Act. (According to the consultant’s report, the Rockfort property was, the Westerveld property wasn’t.)

The loss of landscape features, the Board observed, would also diminish the significance of what was retained, leaving the Rockfort buildings (farmhouse and barns) on “an isolated island in the midst of an industrial operation, the quarry.”

The Board found that “conservation does not necessarily require no change to the resources, but at the very least it requires mitigation to the extent required by the OP — no unacceptable impact.” It was clearly not impressed with the mitigation measures proposed here, including the retention of some dry stone walls, the possible relocation of the Westerveld farmhouse and the phased installation of berms.

The Board acknowledged that change is inevitable, but opined that “when one is considering a significant cultural heritage landscape and its component parts the degree of change must be circumscribed.” Using strong language, the Board concluded that “the complete annihilation of the Westerveld farm complex and the destruction of the rural context of the Rockfort farm complex are not the type of change which should be countenanced.”

The Board summed things up this way: “The PPS directs conservation of significant cultural heritage landscapes. The subject property is part of such a landscape and the eradication of the agricultural context does not constitute conservation; it constitutes destruction. Such destruction is an unacceptable impact.”
 

People protesting a quarry

Key takeaways of the Rockfort Quarry decision:

  • the onus is on the proponent to demonstrate that the planning proposal achieves an acceptable level of conservation of cultural heritage;
  • the significance of the built heritage/cultural heritage landscape resources is the big factor in determining whether impacts are acceptable or unacceptable — look at not just the significance of the particular CHL affected to the community, but also the significance of that type of CHL in the community;
  • the cultural heritage resources don’t have to be designated under the OHA; the Board will consider whether they are designation-eligible in assessing significance
  • it may be hard to argue that the change being proposed (here a monster quarry) is part of a natural or inevitable evolution — with therefore arguably acceptable impacts — if the new use is a drastic departure (here from rural to industrial) from anything in the area and would pretty much obliterate the existing landscape;
  • in such situations mitigation measures like preserving isolated landscape components, salvage, and recording won’t help you much.

[T]he fundamental change to the character of the area attendant upon the proposed quarry would not be acceptable. The loss of views of rural lands, the loss of a cultural heritage landscape and cultural heritage resources and the conversion of a rural area into an urban area centred on a heavy industrial operation cannot be permitted in the interest of the production of more aggregate for infrastructure development.[6] 


Note 1: See “Cultural heritage landscapes, part one” from May 26, 2018.

Note 2: See “Cultural heritage landscapes, part two… or a matter of significance” from June 21, 2018.

Note 3: The November 12, 2010 decision can be found at http://elto.gov.on.ca/tribunals/lpat/e-decisions/ by entering in case numbers PL000643 and PL060448. “Cultural heritage” is considered at pages 42-54 of the 77 page decision.

Note 4: See the Toronto Star’s reporting on the outcome of the case here.

The Town of Caledon’s Cultural Heritage Landscapes Inventory Report, released in 2009, identifies Rockside, where the quarry would have been located, as a cultural heritage landscape. See https://www.caledon.ca/en/live/resources/Cultural_Heritage_Landscapes_Inventory_Report-Section12.pdf.

Note 5: Compare the definition in the PPS 2014:

Conserved:

means the identification, protection, management and use of built heritage resources, cultural heritage landscapes and archaeological resources in a manner that ensures their cultural heritage value or interest is retained under the Ontario Heritage Act. This may be achieved by the implementation of recommendations set out in a conservation plan, archaeological assessment, and/or heritage impact assessment. Mitigative measures and/or alternative development approaches can be included in these plans and assessments.

Note 6: Page 76 of the decision.