# Of attributes and elements

attribute ~

something attributed as belonging to a person, thing, group, etc.; a quality, character, characteristic, or property

element ~

a component or constituent of a whole or one of the parts into which a whole may be resolved by analysis

Happy summer!

Before digging into some recent Conservation Review Board/Ontario Land Tribunal decisions, and to help set the stage for that, let’s look at a question I sometimes get.

“Do you know why character-defining elements everywhere else in Canada are called heritage attributes in Ontario?”

The short answer is that “character-defining elements” and “heritage attributes” are not the same thing — at least in Ontario. So two terms are needed.

For the longer answer we need to go back a ways to see how these terms evolved.

Twenty years ago, in 2002, as part of a “good government” omnibus bill, the Ontario Heritage Act was substantially amended for the first time since its passage in 1974 (the Act was proclaimed the following March in Kingston). One of the changes was to the terminology for property that could be designated by municipalities — from property of “architectural or historical value or interest” to property of “cultural heritage value or interest.”

Another change was the introduction of the term “heritage attributes.” The Act now required that there be “a short statement of the reason for the proposed designation, including a description of the heritage attributes of the property” (emphasis added).1

As many of us are aware from old designation by-laws, the OHA originally required only “a statement of the reason for the designation.” This meant the notice of intention to designate and designation by-law had to address the question why the property was being designated — that is, why it was important and what its heritage value or interest was. At the same time the Act imposed controls on alterations to the property that would “affect” the reason for the designation.

But in practice the statement of the “why” was often vague about the “what” — the parts or aspects of the property that could not be altered without consent. Did a change to a later porch on a house designated as a fine example of Gothic Revival need approval or not? What about the removal of an original back door that exhibited no Gothic Revival details? To ensure more clarity on this point the Act was amended to require a description, or list, of the property’s “heritage attributes.”

The term was defined as “the attributes of the property that cause it to have cultural heritage value or interest” (emphasis added). This was changed in 2005 to “the attributes of the property, buildings and structures that contribute to their cultural heritage value or interest (emphasis added). The attributes are the manifestation, if you will, of the heritage values of the property as expressed using the criteria in Reg. 9/06.

Why “heritage attributes”?

At the time the only Ontario precedent for a term identifying the features of a legally protected heritage property was in the heritage easement agreement in use by the Ontario Heritage Foundation (OHF, later Ontario Heritage Trust). For the features that could not be changed without approval,the standard OHF agreement used the term “heritage elements.” This was almost certainly language drawn from American precedents.2

By contrast, I believe (but don’t know for sure) the “attributes” terminology came from UNESCO/World Heritage Convention and International Council on Monuments and Sites (ICOMOS) practice with respect to world heritage sites.3

About the same time the federal government had launched the Historic Places Initiative and work was underway on a set of national standards and guidelines for heritage conservation. This resulted, in 2003, a year after the OHA changes, in the Standards and Guidelines for the Conservation of Historic Places in Canada (S&Gs).

This document, in widespread use in Ontario and throughout the country, employs the term “character-defining elements” (in French éléments caractéristiques), which is defined as:

The materials, forms, location, spatial configurations, uses and cultural associations or meanings that contribute to the heritage value of an historic place, which must be retained in order to preserve its heritage value. (second edition, 2010)

In Ontario, beginning in 2005, the OHA’s “heritage attributes” language was adopted in the Provincial Policy Statement.4 The PPS 2020 defines “heritage attributes” as:

[T]he principal features or elements that contribute to a protected heritage property’s cultural heritage value or interest, and may include the property’s built, constructed, or manufactured elements, as well as natural landforms, vegetation, water features, and its visual setting (e.g. significant views or vistas to or from a protected heritage property).

With its use of the words ”elements” and “features” the PPS definition does seem awfully close to the terminology and definition of “character-defining elements.”

So, why the different terms? Is this just an historical anomaly peculiar to Ontario? Isn’t it confusing?

Let’s examine more closely the “heritage attributes” definition in the OHA:

“heritage attributes” means, in relation to real property, and to the buildings and structures on the real property, the attributes of the property, buildings and structures that contribute to their cultural heritage value or interest (“attributs patrimoniaux”)

Unlike the definition from the S&Gs we looked at above, the definition in the Ontario Heritage Act is a legal definition for purposes of the statute itself. It isn’t, and isn’t intended to be, that helpful in describing what “heritage attributes” are in the broader sense. Its only function is to clarify what the term means when it appears in the Act — and in the alteration provisions in particular.5

The municipality, property owner and the public alike need to clearly understand the specific legal implications of a given heritage designation. To know when municipal approvals are required, the “heritage attributes” must be clearly identified.

And because we are talking about controls on physical interventions to real property, they must also be physical or tangible features.6

Back to the definition of character-defining elements: “The materials, forms, location, spatial configurations, uses and cultural associations or meanings…” Because the S&Gs is an advisory or best practices document without direct regulatory impacts on property rights, it can define the things about a historic place that manifest its heritage value in longer, broader, more inclusive — and frankly fuzzier — ways. The traditional use of a place, for example, or the intangible meaning associated with it, can be highly important.

But our real property-based protection regime cannot be used to regulate them or activity that is likely to affect them.

We have here a classic case of set and subset. The set is “character-defining elements”; the subset is “heritage attributes.” In other words, all heritage attributes are character-defining elements, but not all character-defining elements are heritage attributes. With comprehensive changes to the OHA in 2005 the province had the chance to drop “heritage attributes” and adopt “character-defining elements.” It chose not to.

While it may be confusing to have different terms, think how much more confusing it would be to have just one term meaning different things in different situations!

We’re out of time, but some municipalities out there have apparently not figured out the difference between a legislative or policy term and a different, best-practices term which is not in legislation.7

Comments?

Note 1: The OHA was amended again in 2005 to drop mention of the “statement of the reason for the designation.” The Act currently requires “a statement explaining the cultural heritage value or interest of the property and a description of the heritage attributes of the property.”

Note 2: The statutory heritage easement or conservation easement was introduced by the 1974 Ontario Heritage Act, drawing on precedent legislation from the U.S. The prototype easement agreement of the OHF developed in the late 1970s was similarly based on American precursors. For the origins of heritage easements in Ontario see “Heritage Easements 101: Easements come to Ontario.”

Note 3: See, for example, the Operational Guidelines for the Implementation of the World Heritage Convention which requires for each World Heritage property a “Statement of Outstanding Universal Value and Defining of Attributes.” The Operational Guidelines go on to suggest that the following types of attributes might be considered as conveying or expressing Outstanding Universal Value:
- form and design;
- materials and substance;
- use and function;
- traditions, techniques and management systems;
- location and setting;
- language and other forms of intangible heritage;
- spirit and feeling; and
- other internal/external factors.

Note 4: The term ”heritage attributes” is used only once in the PPS, in the adjacency policy (2.6.3), which reads:

Planning authorities shall not permit development and site alteration on adjacent lands to protected heritage property except where the proposed development and site alteration has been evaluated and it has been demonstrated that the heritage attributes of the protected heritage property will be conserved. (emphasis added)

This policy first appeared in the PPS 2005 necessitating the inclusion of a definition of the term.

Note 5: Until last year only alteration was tied to the heritage attributes listed in the designation by-law: under section 33 changes that are “likely to affect” the heritage attributes of a property designated under Part IV of the Act require municipal consent. With the recent (Bill 108) changes to the Act, under section 34 demolition or removal of the heritage attributes also requires approval.

Note 6: While this should be obvious — and a tribunal or court would no doubt interpret “heritage attributes” as physical/tangible features — for greater clarity the OHA definition should probably be amended to qualify the term with “physical” or “tangible.” Note that the Ministry of Tourism, Culture and Sport’s draft update to the Tool Kit guide “Designating Heritage Properties” states that “heritage attributes are those physical features or elements of the property, and of buildings and structures on the property, that contribute….”  (emphasis added) (Draft of May 28, 2021, p. 25)

Note 7: Some heritage attributes descriptions in current municipal designation by-laws use loose and inappropriate “character-defining elements”-style language. Check out the designation by-law for Oakville’s Glen Abbey golf course, for example, which includes things like “historic use,” “ongoing ability,” and “close and ongoing association.”