Cultural heritage in the PPS, 2020 — some good tweaks

New Provincial Policy Statement

The new Provincial Policy Statement, 2020, replacing the PPS, 2014, comes into force on May 1, 2020.1

What do you need to know?

Overall, the changes to the cultural heritage policies are minor, but do represent improvements. They clarify and simplify existing provisions while in some cases extending the application of the policies. Most are refinements of the cultural heritage-related definitions. Let’s have a closer look.


Changes to section 2.6 “Cultural Heritage and Archaeology”

No changes have been made to section 2.6, which encompasses five policies. Most importantly the bedrock policies in 2.6.1, directing that “significant built heritage resources and cultural heritage landscapes shall be conserved” — and its companion 2.6.2 on “significant archaeological resources” — have not been touched.

The exception is a change to policy 2.6.5. on considering Indigenous interests. The policy currently reads:

Planning authorities shall consider the interests of Aboriginal communities in conserving cultural heritage and archaeological resources.

The new 2.6.5 says:

Planning authorities shall engage with Indigenous communities and consider their interests when identifying, protecting and managing cultural heritage and archaeological resources.

This change strengthens the policy by explicitly requiring engagement with Indigenous communities, as part of consideration of their interests, when  undertaking a broad range of conservation activities.
 

Changes to the definition of “built heritage resource”

"Minor changes here have the effect of broadening the definition (additions in bold, deletions in strikeout)."


Built heritage resource: means a building, structure, monument, installation or any manufactured or constructed part or remnant that contributes to a property’s cultural heritage value or interest as identified by a community, including an Aboriginal Indigenous community. Built heritage resources are generally located on property that may be has been designated under Parts IV or V of the OntarioHeritage Act, or that may be included on local, provincial, federal and/or international registers.

Three things to note:

  • “Built heritage resource” explicitly includes any “constructed part” of a property that contributes to its cultural heritage value. An example would be parts of a golf course, such as the greens, fairways and tees, where these were created in a manner and using techniques associated with construction. (Mnn… might this be called the Glen Abbey amendment?) With the broadening of the definition there is now even greater overlap with the definition of “cultural heritage landscape,” some of which are entirely constructed or have constructed elements.
  • Built heritage resources include those that may be listed on international registers. This change recognizes that Ontario has buildings and structures recognized internationally, such as Ontario Place, recently put on the World Monuments Fund 2020 Watch List.
  • Built heritage resources “may be” located on designated or listed/registered property — with the implication that they also may not be. This change relaxes the current statement that they are “generally” located on such property.

World Heritage

Changes to the definition of “conserved”

An interesting amendment here.

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 that has been approved, accepted or adopted by the relevant planning authority and/or decision-maker. Mitigative measures and/or alternative development approaches can be included in these plans and assessments.

The core of the definition is that conservation actions are those undertaken in a manner that ensures that the cultural heritage value of the resource is retained. The superfluous wording “under the Ontario Heritage Act” has been removed.

The bigger change:

  • The means by which conservation “may” be achieved — by following recommendations set out in property-specific plans and assessments — has been tightened by requiring that these documents be accepted by the municipality or other decision-maker. This makes sense since the decision-maker will normally rely on these plans and assessments, commonly undertaken by the proponent, to help it assess impacts of a proposed development on the resource or make provision for its long-term preservation.
  • Note that it is the plan or assessment that is approved/accepted/adopted, not necessarily the recommendations (for example, an HIA could be acceptable in that it meets municipal requirements for such reports without the municipality agreeing with its recommendations).
  • One probable implication of this change is that assessments that are not approved by the municipality will have less weight in any appeal to the Local Planning Appeal Tribunal. This may or may not be a good thing depending on the side of the issue you are on. For example, an HIA commissioned by a residents’ association appealing the municipal approval of a project may be given less attention than one prepared by the developer and approved by the municipality.

Changes to the definition of “cultural heritage landscape”

Despite concern in some quarters that there would be big changes to this definition, there is nothing too major here.

Cultural heritage landscape: means a defined geographical area that may have been modified by human activity and is identified as having cultural heritage value or interest by a community, including an Indigenous Aboriginal community. The area may include involve features such as buildings, structures, spaces, views, archaeological sites or natural elements that are valued together for their interrelationship, meaning or association. Examples may include, but are not limited to heritage conservation districts designated under the Ontario Heritage Act, villages, parks, gardens, battlefields, mainstreets and neighbourhoods, cemeteries, trailways, viewsheds, natural areas and industrial complexes of heritage significance; and areas recognized by federal or international designation authorities (e.g. a National Historic Site or District designation, or a UNESCO World Heritage Site). Cultural heritage landscapes may be properties that have been determined to have cultural heritage value or interest under the Ontario Heritage Act, or have been included on federal and/or international registers, and/or protected through official plan, zoning by-law, or other land use planning mechanisms.

Two points:

  • The list of features that a cultural heritage landscape (CHL) may encompass now includes “buildings” (in line with the use of the separate terms “buildings” and “structures” in the Ontario Heritage Act) and “views” (replacing the more technical “viewsheds” in the now-deleted list of CHL examples).
  • The long, grab-bag list of examples is (thankfully) gone, replaced with three general categories to which CHLs “may” belong:
    • properties that are “protected” through Official Plan, zoning, or other planning tools (note that properties protected in this way do not fall within the PPS definition of “protected heritage property”, which is more narrow and mainly restricted to properties designated under the OHA or subject to easements).
    • properties that are listed on a federal or international register, such as a National Historic Site or World Heritage Site; and
    • properties determined to have cultural heritage value or interest under the OHA, meaning they meet the significance criteria in Reg. 9/06 (whether or not they have been designated)

Town of Oakville

Changes to the definition of “heritage attributes”

The only change here is the result of the addition of “constructed” in the definition of “built heritage resource.”

Heritage attributes: means the 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 (including e.g. significant views or vistas to or from a protected heritage property).

Note that the Province backed off a proposal to add the words “and that must be retained” to the second line of the definition. Stakeholders pointed out that suggesting all heritage attributes of a property had to be retained would have been too strict in practice and not consistent with the more flexible definition of “conserved.”

Changes to the definition of “significant”

Here too the changes are more of a housekeeping nature and not substantial.

Significant: means

e) in regard to cultural heritage and archaeology, resources that have been determined to have cultural heritage value or interest for the important contribution they make to our understanding of the history of a place, an event, or a people. Processes and criteria for determining cultural heritage value or interest are established by the Province under the authority of the Ontario Heritage Act.

Criteria for determining significance for the resources identified in sections (c)-(ed) are recommended by the Province, but municipal approaches that achieve or exceed the same objective may also be used. While some significant resources may already be identified and inventoried by official sources, the significance of others can only be determined after evaluation.

Things to note:

  • Redundant explanatory text — “for the important contribution they make to our understanding…” — has been deleted.
  • In the new second line, the “criteria” referred to are clearly the significance criteria in O. Reg. 9/06 and O. Reg. 10/06. The changes here (which mean that the first sentence of the second paragraph no longer applies to cultural heritage and archaeology) recognize that these criteria are “established by the Province”, not merely “recommended” with the option to use alternative “municipal approaches.”
  • Despite some difficulties in interpretation the 9/06 criteria have served quite well and are in wide usage beyond Part IV designations. They could (and should) be revised at some future point, but in its communications the Province has telegraphed pretty clearly that no changes to the criteria or the two regulations are currently contemplated.
  • With respect to “processes”: It is not obvious what this refers to. There are currently no processes for determining CHVI in the OHA or regulations, other than the criteria and the legislated designation process. In archaeology, though, there is more of a mandated process — the cultural value of resources is determined through fieldwork requiring an archaeological licence (and compliance with provincial standards and guidelines for consultant archaeologists). Proposed new regulations under Bill 108 amendments to the OHA (expected to be in force by July 1, 2020) will introduce some new requirements for designation bylaws but do not get into how evaluation is to be done. (Guidance on evaluation is however provided in the Ontario Heritage Tool Kit, which will be updated.)
  • Resources do not have to be already evaluated at the time the issue arises to be significant. There is no change to the last sentence of the definition stating: “While some significant resources may already be identified and inventoried by official sources, the significance of others can only be determined after evaluation.”

Built heritage, street view

Taking a step back, the meaning of “significant” is important because it qualifies the terms ”built heritage resources”, “cultural heritage landscapes” and “archaeological resources” in policies 2.6.1 and 2.6.2. Only resources that are “significant” are subject to the requirement that they be conserved. This begs the question of the difference between, say, a built heritage resource and a significant built heritage resource.

Unlike the situation with archaeological resources, in the case of built heritage resources and cultural heritage landscapes one is hard-pressed to distinguish between nothing-special, run-of-the-mill resources and “significant” ones. This is because, as defined in the PPS, built heritage resources and CHLs are those that have cultural heritage value or interest identified by a community; that is, they are by definition resources that are evaluated and determined to have value.

They are thus intrinsically “significant.” This makes a significant built heritage resource a kind of tautology — like saying a new innovation or a necessary requirement, “significant” really adds nothing.2  (But be careful in how you go about explaining that before the LPAT!)

This of course is not to deny that some resources are more significant than others… and worthy of a greater degree of conservation.


Note 1: The new PPS is here. 

Note 2: For more on the question of “significant” see “Cultural heritage landscapes, part two… or a matter of significance” from June 21, 2018.

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About Dan Schneider

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Dan Schneider is a heritage enthusiast, policy wonk, writer and professional heritage consultant. Formerly senior policy advisor with the provincial culture ministry, Dan has much experience with the Ontario Heritage Act and heritage policy issues. A lawyer by training, he was lead policy expert on major changes to the Ontario Heritage Act in 2005 and 2006. His advice is frequently sought on questions related to Ontario's legislative and policy framework for heritage. Based in St. Marys, Ontario, Dan is Principal of Dan Schneider Heritage Consulting. He can be reached at danschneider@live.ca.