Happy Heritage Week!
In 2019 the province passed Bill 108 (the More Homes, More Choices Act), a developer-friendly grab-bag of changes including amendments to the Ontario Heritage Act.1
That bill became law in near-record time. The bill was posted on the Environmental Registry for comment — the first opportunity for public input — and was passed and received Royal Assent within a week of the closing of the comment period. So much for public consultation.
The haste with which Bill 108 was thrown together and passed was rivalled by the sluggishness that followed in implementing the heritage changes. The mixed-bag amendments to the OHA, along with a cumbersome catch-all regulation, finally came into force over two years later, on July 1 of last year. (Not that the delays were cause for complaint from municipalities and the heritage community, where the attitude was more count-your-blessings.)
Actually, the sluggish implementation by the Ministry of Heritage, Sport, Tourism and Culture Industries (MHSTCI) of a going-on-three-year-old bill continues. The final but very important piece — updates to the 2006 Ontario Heritage Tool Kit — are still pending. Still, after all this time. Sluggish is being kind.
The updating of the Tool Kit is an embarrassment. It reminds me of what they say about a breakthrough in fusion energy: It has been just around the corner… for 20 years. The ministry had said (again) last month that the revised Tool Kit guides were coming; they would be released “in the coming weeks.”
Now the ministry may have another excuse for holding back — the Report of the Housing Affordability Task Force, released February 8.
There is a definite through-line from Bill 108 to the Housing Affordability Task Force (HATF). Like Bill 108, the HATF leverages the housing crisis to propose lots of things the development industry, and big homebuilders in particular, want to see happen.2 Like Bill 108, these include proposals that would impact heritage — in radical ways — with no consultation with heritage stakeholders.
Unlike Bill 108, however, the HATF proposals are “just” the recommendations of an ad hoc task force, not a government bill or position paper.3 Outside of the Ministry of Municipal Affairs and Housing, whose minister, Steve Clark, commissioned the report, MHSTCI and other provincial ministries would not have seen what was in the report until its release.
Let’s hope Minister MacLeod and MHSTCI are pushing back hard on the heritage-related recommendations. These are, to quote one prominent heritage advocate, not only radical but “dopey.” This is being charitable.
Architectural Conservancy Ontario’s media release on the report is here.
There are four main recommendations on heritage:
- Create a more permissible land use, planning and approvals system by (among other things) repealing or overriding municipal policies, zoning or plans that prioritize the preservation of physical character of neighbourhoods (recommendation 12 a));
- Prevent abuse of the heritage preservation and designation process by:
(a) prohibiting the use of bulk listing on municipal heritage registers, and
(b) prohibiting reactive heritage designations after a Planning Act development application has been filed(recommendations 16 a) and b)); and - Require municipalities to compensate property owners for loss of property value as a result of heritage designations, based on the principle of best economic use of land (recommendation 17).
About 12 a)
- Where does one even start with this? The “physical character” of their neighbourhoods is why most people choose to live and stay in them.
- The “preservation of physical character of neighbourhoods” is what Ontario’s heritage conservation districts — and heritage conservation district plans — are all about. Of course, this has never meant freezing the physical aspects or appearance of an area to the exclusion of change, but managing how changes occur over time.
- Instead of talking about the need to reconcile and in some cases rebalance different public policy objectives, the report wants the province “repealing or overriding” municipal policies and plans to favour new housing goals over everything else.
- Elsewhere the report advocates using the Provincial Policy Statement to provide “clear direction” on the “overriding priorities for housing.”
The report’s call for provincial dictates in the operation of Ontario’s land use planning system would (among other things) upend the decades-old Provincial Policy Statement and its core principle that no one policy trumps others and all are to be read together.4
About 16 a)
- “Bulk listing” is what is usually called “batch listing,” meaning listing many properties in one go. This approach is used by most Ontario municipalities with active heritage programs, even small ones (like St. Marys where I live).
- Toronto, and maybe a few other very large municipalities, have sometimes listed hundreds of properties at once (the report makes the incorrect and galling statement that “some municipalities add thousands of properties at a time”).5
- Batch listing is perfectly legitimate and makes good sense for planning and efficiency reasons, provided it complies with the OHA listing process (which now includes notice to owners, who have the opportunity to object).
By equating batch listing with “abuse” the report is suggesting that many listed properties are not what it calls “true heritage sites” — exposing its authors’ anti-heritage bias and ignorance of the difference between listing and designation.
What is this all about? Mainly, I think, big-developer gripes with Toronto.
About 16 b)
- The concern here is about heritage designations being “sprung” upon developers/owners who have applied for an Official Plan or zoning change or other planning approval for redevelopment, which could result in the redevelopment project being tied up and even stymied by the designation process.
- Whatever the validity of this concern, the issue was specifically addressed in Bill 108. A limitation was imposed on a municipality’s ability to designate once a Planning Act application has been filed. Specifically, a municipality cannot commence a heritage designation later than 90 days after the filing of an application, with some exceptions.6
- With delays to the proclamation of the OHA changes in Bill 108, this provision came into force less than eight months ago, on July 1, 2021.
- What is proposed in recommendation 16 b) is an outright prohibition (very different from a limitation) on designation after a development application has been filed. The report authors either don’t know about the recent change to the OHA, or do know but think a tougher approach is required — without even giving the new law a chance! Res ipsa loquitur.
About 17
- Any change to the OHA to require compensation for designation would presumably apply to both Part IV and Part V designations.
- In practice this would mean most designations would require a negotiation with owners — essentially municipalities would have to “buy” the designation by offering a grant, tax relief or other financial inducement to get the owner to agree.
- There is precedent for this in Alberta’s and British Columbia’s heritage legislation.
- There is also a precedent of sorts in the OHA itself — the MHSTCI Minister has the power to designate an archaeological site under Part VI of the Act but must pay compensation to the owner for any personal or business losses.7 The province, not surprisingly, has never used the power (there are other reasons for this but the compensation requirement is a big one).
- When the OHA was strengthened in 2005, to avoid any question of whether Part IV and V designations might result in a claim for compensation, a “no compensation” clause was inserted in the Act.8
The impact of such a change for Ontario’s heritage protection regime would be catastrophic. An “existential threat” is no overstatement.
Again, where is this coming from?
Judging by the development industry representatives on the task force and their likely familiarity with particular situations, I suspect the compensation idea is an outrageous overreaction to the arguable overreach of GTA municipalities in one or two cases where heritage designation has been used in an attempt to thwart development.9
With a provincial election just months away, the government’s response to the task force report won’t be long coming. Expect it to pick and choose among the report’s 55 recommendations. For what it’s worth, I predict the looney ones won’t make the cut, but…
Notes
Note 1: See “What to make of Bill 108” from May 25, 2019.
Note 2: The task force report is here.
Note 3: At the same time the task force, like Bill 108 before it, is on a very fast track — it was set up by the province in early December and produced its report within two months — suggesting the government is prepared to move quickly to adopt and implement at least some of its recommendations before the June provincial election.
Note 4: From page 2 of the Provincial Policy Statement, 2020:
Read the Entire Provincial Policy Statement
The Provincial Policy Statement is more than a set of individual policies. It is to be read in its entirety and the relevant policies are to be applied to each situation. When more than one policy is relevant, a decision-maker should consider all of the relevant policies to understand how they work together. …
Note 5: Ironically, given the apparent antipathy to listing betrayed in the HATF report, the measure was conceived by the province as a planning tool — primarily a “flag” rather than a protection — to assist both municipalities and property owners with identifying potential heritage resources and making informed decisions. It is common for multiple listings to go forward together as a result of cultural heritage surveys of areas or neighbourhoods. In large surveys in geographically-large municipalities it is not surprising that the number of properties identified as candidates for listing could run into the hundreds.
Note 6: See subsection 29(1.2) of the OHA and section 1 of O. Reg. 385/21.
Note 7: Section 63 says:
Compensation where property designated
63 Where property is designated under section 52 and no agreement as to the payment of compensation has been reached by the Minister with the owner, the owner shall be entitled to compensation for personal or business damages for the period provided for in the order designating the property, and the Expropriations Act with respect to the determination of compensation applies with necessary modifications as if the designation and the resulting restrictions imposed by this Act were an expropriation of rights.
Note 8: Section 68.3 says:
No compensation
68.3 (1) Except as may be provided under this Act, no owner of property or other person is entitled to compensation in respect of any designation, order or decision made by a municipality, the Minister or Tribunal under this Act.
No expropriation or injurious affection
(2) Nothing done or not done in accordance with this Act or the regulations under it constitutes an expropriation or injurious affection for the purposes of the Expropriations Act or otherwise at law.
Note 9: I am not alone in thinking that issues arising from a certain Oakville golf course played an outsized role in the HATF’s attitude towards heritage (just as they influenced changes in Bill 108). Such site-specific disputes should be allowed to play out, through the tribunal and court system as necessary, rather than be used as a pretext for corrupting our legislation.
(Full disclosure: For some years I was a consultant to ClubLink, the owner of the Glen Abbey golf course.)