Lost in the “bomb” of Bill 23 and the ensuing fury, a different provincial government initiative threatens to undermine another vital part of Ontario’s heritage protection regime.
Posted on the Environmental Registry of Ontario (ERO) last October 25, the same day as the Bill 23 posting but with a December 30 closing date, a proposal by the Ministry of Municipal Affairs and Housing (MMAH) sought input on “how to create a streamlined province-wide land use planning policy framework that enables municipalities to approve housing faster and increase housing supply.”1
MMAH is actively at work on a ”housing-focused policy review of A Place to Grow and the Provincial Policy Statement.” We’ll probably see something soon.
Prepare yourselves.
It is clear that the cultural heritage policies (along with much else) in the Provincial Policy Statement, 2020 (PPS) and the Growth Plan for the Greater Golden Horseshoe are under a particular scrutiny — a biased scrutiny driven by the bogus claim that these policies somehow impede the provision of a decent supply of housing for Ontarians.
This means that the bedrock policies for “Cultural Heritage and Archaeology” in section 2.6 of the PPS are in the goverment’s cross-hairs. Yes, these policies, policies with which planning decisions In Ontario must be consistent:
2.6 Cultural Heritage and Archaeology 2.6.1 Significant built heritage resources and significant cultural heritage landscapes shall be conserved. 2.6.2 Development and site alteration shall not be permitted on lands containing archaeological resources or areas of archaeological potential unless significant archaeological resources have been conserved. 2.6.3 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. 2.6.4 Planning authorities should consider and promote archaeological management plans and cultural plans in conserving cultural heritage and archaeological resources. 2.6.5 Planning authorities shall engage with Indigenous communities and consider their interests when identifying, protecting and managing cultural heritage and archaeological resources.And not just the policies themselves but also the definitions of key terms including “conserved”, “significant”, and “development.”
MMAH is proposing to replace the PPS, along with the Growth Plan for the Greater Golden Horseshoe, with a “new policy instrument” that would create a “streamlined planning framework for the province.” This framework, it says, would be:
- Outcomes-Focused – streamlined, less prescriptive policy direction requiring fewer studies, including a straightforward approach to assessing land needs, that is focused on outcomes
- Relevance – streamlined policy direction that focuses on the above-noted land use planning matters and other topics not listed that are also key to land use planning and reflect provincial interests
- Speed and Flexibility – policy direction that reduces the complexity and increases the flexibility of comprehensive reviews, enabling municipalities to implement provincial policy direction faster and easier (emphasis added)
The proposal states that: “The core elements of this new policy instrument could include the approaches outlined below.” The approach outlined with respect to cultural heritage calls for:
Policy direction that provides for the identification and continued conservation of cultural heritage resources while creating flexibility to increase housing supply. (emphasis added)It is pretty clear where this is going. The hard-won cultural heritage policies in the Provincial Policy Statement are about to be diluted.
Just how remains to be seen. The directive-type “shalls” in the policies might be downgraded to advisory-type “shoulds.” The requirement in the adjacency policy (2.6.3) that it be “demonstrated that the heritage attributes .. will be conserved”, which is usually met through the undertaking of a Heritage Impact Assessment, might be vitiated, or even the whole policy chucked. The definition of “conserved”, despite its provenance in professional best practice, might be corrupted in some way, as was just done with the one-to-two criteria change for how we determine cultural heritage value.
Given the government’s antipathy, as evidenced in Bill 23, to the OHA’s listing powers, the PPS definitions of “built heritage” and “cultural heritage landscape” might well be truncated and restricted to apply to only protected (designated) property.
All of the PPS’s resource-specific policies with respect to cultural heritage, natural heritage, the preservation of agricultural lands, etc. might be made subject to some overriding policy dictum that puts the building of housing as the primary focus in planning decisions.
Or all of the above … and more.
With so much happening late last year and despite a challenging Dec. 30th deadline, one heritage organization (at least) provided comments on the ERO on the ministry’s proposal.
Architectural Conservancy Ontario (ACO) provided a detailed submission.2 It makes some excellent points and is quoted at length here.
From ACO’s ERO Submission on Review of A Place to Grow and Provincial Policy Statement ACO supports in principle the creation of a new streamlined, province-wide, land-use planning policy instrument that would integrate the provisions of the Provincial Policy Statement and A Place to Grow. While the government’s current review is housing-focussed, any new policy instrument should combine the best aspects of both of the existing policy documents. In particular, we wish to see that existing policies with respect to cultural heritage (used here to encompass archaeological resources) are retained intact in any new instrument. Matters of Provincial Interest Section 2 of the Planning Act identifies a list of matters of provincial interest. This includes clause (j) relating to housing supply: “the adequate provision of a full range of housing, including affordable housing”; as well as clause (d) relating to the conservation of cultural heritage: “the conservation of features of significant architectural, cultural, historical, archaeological or scientific interest.” ACO notes that this statutory list is not prioritized and the matters do not appear in any particular order. All are equally of provincial importance in land-use planning. Provincial policies “work together” The Provincial Policy Statement (PPS) recognizes “the complex interrelationships among environmental, economic and social factors in land-use planning.” Although setting out a diverse range of planning policies, the PPS “is to be read in its entirety and the relevant policies applied to each situation.” The clear direction is that planning decisions must consider all applicable policies and determine “how they work together.” (emphasis added) Although some policies may be more directive or detailed than others, there is no implied priority to the policies. Provincial policies with respect to the provision of a full range of housing for Ontarians are of great importance. So are policies with respect to other matters of provincial interest such as the conservation of cultural heritage. The genius of our planning system is that different public policy objectives can be met without sacrificing or discounting one in favour of another. Planning is not a zero-sum game; the best decision is always the one that advances the most public policy goals. Over the years Ontario’s planning appeal tribunals, from the Ontario Municipal Board to the Ontario Land Tribunal, have recognized this in their decisions. Cultural heritage policies and “flexibility” The proposal sets out a number of potential “core elements” of the new policy instrument. With respect to cultural heritage, the proposal calls for “Policy direction that provides for the identification and continued conservation of cultural heritage resources while creating flexibility to increase housing supply (emphasis added).” ACO is concerned that in the name of “flexibility” the longstanding cultural heritage policies of section 2.6 of the PPS may be distorted or watered down. These policies and their supporting definitions have evolved and been carefully honed over decades; they are appropriately strong and must not be weakened. With respect to flexibility:- As discussed above, Ontario’s policy framework for land-use planning already provides inherent flexibility and accommodation: read and applied correctly, no one policy is limiting or standing in the way of another policy. Again, the challenge is to reconcile different policies — to make them “work together” — to achieve the best outcome.
- With respect to the cultural heritage policies in section 2.6 specifically, a common thread is the direction to “conserve” heritage resources. The term “conserve” is carefully defined in the PPS and allows for considerable elasticity in conservation approaches. Interpreted correctly, it does not mean to save at all costs. (Recent tribunal decisions have even concluded that a designated building can be demolished subject to conditions.)
- 245 Carlaw Avenue, south of Dundas Street East, Toronto — conversion of manufacturing premises to housing with rear infill additions, these included heritage properties such as the former Wrigley’s Gum Co. headquarters and factory
- The Waterworks, 505 Richmond Street West, Toronto — adaptively re-used public works building including a new high-rise tower for housing as well as a YMCA and a food hall
- move forward, not backward, in refining the suite of provincial land-use policies: strengthening as appropriate the province’s housing policies while also retaining the current cultural heritage policies (recently updated in the PPS, 2020)
- continue to provide up-front direction that the provincial planning policies “work together”
- in strengthening housing policies, provide more and better direction on sustainable, re-use housing options
- ensure that municipalities are provided with clear and current provincial guidance on interpreting and implementing the province’s planning policies (ACO notes that the Ministry of Citizenship and Multiculturalism’s guide Heritage Resources in the Land Use Planning Process, part of the Ontario Heritage Tool Kit, is more than a decade out of date).
Two last questions to leave you with.
First, in what form can we expect the new “policy instrument”? The Planning Act provides for “policy statements” — not “policy instruments” — so presumably we will be getting a revamped policy statement by a different name (?).3
Second, and more important, what consultation will be undertaken on the new instrument/statement?
The current ERO proposal (of about 1800 words, less than this blog post!) is pitched at a high level, as a kind of discussion paper and without the text of specific proposed policies. It is just a starting point.
Ontario has a history of and is accustomed to a substantial process for reviews of the PPS (both internally within government and through stakeholder and public consultation) — reviews that have occurred every seven years or so since the 1990s.4 Since the current PPS, the Provincial Policy Statement, 2020, is only a few years old, this current review is an outlier.
Given this government’s sad penchant for minimal consultation — basically just notification of what they’ve already decided to do with the “opportunity” to provide wasted input — we can likely expect no more than a 30-45 day ERO posting of a proposed new Provincial Policy Statement, er Instrument, 2023.
Watch (out) for it.
Notes
Note 1: The proposal is here: https://ero.ontario.ca/notice/019-6177.
Note 2: Architectural Conservancy Ontario, December 2022. Full disclosure: I am chair of ACO’s Policy Committee, which was responsible for drafting the ERO submission.
Note 3: Section 3 of the Planning Act provides the authority for policy statements on matters related to municipal planning.
Note 4: The Planning Act requires a review at least every 10 years, up from five years originally. Regarding consultation on policy statements, the Act stipulates that “the Minister shall confer with such persons or public bodies that the Minister considers have an interest in the proposed statement.”