# Conservation Review Board Swan Songs — Contextual criteria (part one)

As part of a farewell tribute to the Conservation Review Board — now swallowed whole by the Ontario Land Tribunal — we’re digging into some of the Review Board’s recent decisions in so-called legacy cases. (Note that most if not all of these have been authored by a single CRB, now OLT, member, Daniel Nelson.)1

One result of the introduction in 2006 of a “test” for designation — in the guise of the O.Reg. 9/06 criteria, which the OHA requires be satisfied — was to make the Conservation Review Board the de facto authority on the meaning of the criteria. The Review Board, after all, had the job of determining, in the cases that came before it, whether the statutory test had been met or not.

For 15 years and in dozens of cases, the CRB interpreted and applied the nine prescribed criteria (three each on design/physical, historic/associative and contextual heritage value). The analysis brought to bear in this task has been for the most part quite scrupulous; it has contributed much to a better understanding and use of the now-ubiquitous criteria — and indeed to a fuller appreciation of cultural heritage value generally.

In two legacy cases last year the CRB (with Mr. Nelson presiding) had to confront questions of the contextual value of heritage properties. Both gave rise to interesting and noteworthy decisions.

31 Prideaux Street, Niagara-on-the-Lake, with the other two properties to the right

The first of these concerned the proposed designation of three adjacent properties in the Old Town area of Niagara-on-the-Lake (NOTL): 21, 27 and 31 Prideaux Street.2

This was the rare case where the owners agreed that their properties met the threshold for designation. There was no argument that the properties all had physical/design value (except for one), historic/associative value and contextual value. The only dispute was over two important details: whether the properties, together, constituted a cultural heritage landscape and it was appropriate to mention this in their respective Statements of Cultural Heritage Value or Interest (SCHVI); and whether the setbacks of the properties qualified as a heritage attribute in each case.

The Town of Niagara-on-the-Lake’s position was that the three neighbouring residential properties constituted a “nested” cultural heritage landscape within the much larger cultural heritage landscape of the Old Town — specifically the Niagara-on-the-Lake National Historic District (comprising 25 or so blocks including more than 90 buildings constructed between 1815 and 1859).3

Map of the National Historic District (white blocks), with the Prideaux properties in the block marked “x”

Parenthetically, the properties are not situated within NOTL’s one Heritage Conservation District. The Queen-Picton HCD takes in only 10 blocks in the downtown core. One side of Prideaux Street, across from the properties, is in the HCD, but the other is not.4

The Town’s argument for the “nested” cultural heritage landscape (CHL) was that, unlike their neighbours, the three houses are located on a bit of a hill, apparently the bank of a now-vanished stream, are roughly aligned with one another, and have deep setbacks from the street.

The heritage value of this placement of the buildings was expressed identically in all the SCHVIs, as shown in the SCHVI for 27 Prideaux:

The property also contains cultural heritage value in its contextual value, as it is physically and visually connected to the adjacent neighbouring properties at 21 and 31 Prideaux Street. The three properties represent a nested cultural heritage landscape and provide a sense of uniformity, all of which have a deep setback from the street. (emphasis added)

The three properties, with 27 Prideaux Street (the middle house) barely visible to the left of the laneway

The objector (one of the owners) disputed the connection between the three properties and the existence of the “nested” CHL, and also objected to the setbacks as heritage attributes.

In its decision the CRB pointed out that, while the CHL term is used — and defined — in the Provincial Policy Statement, neither the OHA nor O.Reg. 9/06 makes specific reference to CHLs. 5 The Review Board expressed concern about municipalities “importing the CHL concept into any SCHVI” and description of heritage attributes. This could lead, said the Review Board, to a designation “sloshing over” the lot line of the property — a big no-no. (The decision cites a 2015 Mississauga case, which held that views identified as heritage attributes must be within the legal boundary of the protected property.)

The Review Board seemed to think the Town was trying to use the three Part IV designations to create a mini-HCD “by stealth.” “Except for a heritage conservation district designation process in Part V of the OHA, there is no provision in the OHA to tie properties with a common, overlapping protection.” To sanction an assertion in the SCHVIs that the properties constituted a nested CHL (as in the SCHVI excerpt above) “would create a heritage district in all but name.”

Since the nested CHL concept is being used in support of the properties’ contextual values, the Review Board noted that “a property can be linked to its surroundings, in keeping with s. 3(ii) of O.Reg. 9/06, without creating a heritage district in the way proposed by the Town’s experts.” Quoting the wording of the s. 3(i) and s. 3(ii) criteria, the decision acknowledges that the CHL concept “can be a useful tool or lens to understand the O.Reg. 9/06 criteria, particularly when considering whether a property has contextual value because it is important in defining, maintaining or supporting the character of an area or because it is physically, functionally, visually, or historically linked to its surroundings.”

In a somewhat pointless effort, the Board then examines whether the three properties themselves constitute a CHL, only to conclude that there are challenges in using the concept as part of a rigorous OHA analysis and that “there may be a CHL in these matters but that may only become clear retrospectively when properties have already been evaluated under the OHA.” (emphasis added)

The Review Board then proceeds to evaluate the properties specifically against the “linked to its surroundings” criterion, 3(ii). In my view, this is the most cogent — and important — part of the decision.

27 Prideaux Street

Okay, if we took a poll of which O.Reg. 9/06 criteria is the most problematic, odds are this one would win.

3. The property has contextual value because it,

…

ii. is physically, functionally, visually or historically linked to its surroundings

The Review Board’s analysis goes straight to the heart of the matter — that the criterion, on its face, appears to be too broad and capable of capturing almost any property.

[I]t is important to understand the concept of what “linked” means within the context of this criterion. It is not enough, for example, to say that one property is “linked” to another simply because they are side-by-side. Such a definition, reductio ad absurdum, would mean that every property in Ontario could qualify for designation, as a daisy-chain, and this cannot be the intention of the Ontario Legislature. Rather, in the view of the Review Board, to be “linked” within the context of this regulation necessarily means there must be some substantial or important connection between the property and its surroundings that “ensure[s] the attainment of the legislature’s objectives.” In other words, this important connection must establish CHVI.6

The Review Board then goes through the four kinds of linkage in the criterion and, using the “substantial or important connection” lens, concludes that, for the three properties, none of the linkages make the grade, including the physical and visual connections stated in the SCHVIs.

Since the nested CHL concept is tied to and built on those connections in the SCHVIs, this conclusion undercuts the Town’s argument.

Not surprisingly, the decision winds up with the Review Board recommending that the three properties be designated, but that references to a nested CHL be struck from the SCHVIs and not included in the final list of heritage attributes of the properties. (The Review Board was satisfied that the respective setbacks of the houses did represent a heritage attribute and recommended those be included.)

21 Prideaux Street

While the result here is correct, in my opinion, there might have been a better and easier way of reaching it.

The Review Board seemed to misunderstand the intentions of the Town with respect to the nested CHL concept and became hung up on the notion that the Town was attempting to sneak in a mini-HCD by the back door.

Instead: The Review Board could have pointed out that a Statement of Cultural Heritage Value or Interest, designed to explain the cultural heritage values of a property, should eschew particular value-laden terms like “cultural heritage landscape” as part of that explanation. (Similarly with descriptions of heritage attributes.)

Think of a SCHVI that explained the heritage significance of a building by citing its value as a “built heritage resource.” The explanation becomes tautological — tantamount to saying “it has value because it has value” or “it’s heritage because it’s heritage.”

I think this helps account for the Review Board’s unease with the CHL language here.

Rather than say, as the Town did, “The three properties represent a nested cultural heritage landscape and provide a sense of uniformity, all of which have a deep setback from the street” — a sentence that, as a result of the Review Board’s decision, was stricken from the final designation by-law — how about: “The property, with its two neighbours, forms part of and contributes to a distinctive landscape characterized by a sense of uniformity through building placement, scale and deep setback from the street.”

Wording along these lines probably would have passed muster.

The big takeaways here?

• The Review Board’s explication of the “linked to its surroundings” criterion helps advance our understanding of the criterion and contextual heritage value.
• As the decision warns, “Municipalities must be cautious, when importing the CHL concept into any SCHVI…”

Next time: We move to Amherstburg for another CRB decision that turned on contextual value.

Note 1: See “The Conservation Review Board Fades to Black.”

Note 2: The decision on the three properties (CRB1918, CRB1919, CRB1920) can be found here: https://olt.gov.on.ca/tribunals/crb/reports-and-orders/hearing-reports-2021/.

Note 3: Technically the National Historic District (NHD) is the Niagara-on-the-Lake National Historic Site of Canada. The Canadian Register of Historic Places listing is here.

The contextual value of the properties in relation to the NHD is noted in the SCHVI and was not in dispute.

Note 4: Apart from the disparity in the size of the Queen-Picton HCD relative to that of the National Historic District, the fact that one side of Prideaux Street is in the district, and the (equally historic) opposite side where the properties are located isn’t, is a striking indication that the HCD, designated in 1986, needs revisiting.

Note 5: Nor, it should be noted, do they mention “built heritage resources.” These are PPS terms.

Note 6: The quote here is from the 2003 Divisional Court decision in Tremblay v. Lakeshore (Town). For more on this case see https://uwaterloo.ca/heritage-resources-centre/blog/post/ontario-heritage-act-oha-what-courts-have-say-part-two-or.