The last posts for 2019 looked at two recent cases of the Local Planning Appeal Tribunal (LPAT) involving the potential demolition of a built heritage resource.1 In both cases the Tribunal determined that demolition was not inconsistent with the “shall be conserved” policy of the Provincial Policy Statement.
Significant built heritage resources and significant cultural heritage landscapes shall be conserved. ~ PPS policy 2.6.1
We’re looking at recent cases where the Local Planning Appeal Tribunal (LPAT) has explored the meaning of “conserved” — and whether demolition of a built heritage resource is necessarily antithetical to provincial planning policy.1
Isn’t the demolition of a heritage building the antithesis of its conservation?
Well, under Ontario’s land use planning rules, the answer seems to be: Not necessarily…
The starting point of course is the bedrock cultural heritage policy set out in policy 2.6.1 of the Provincial Policy Statement:
We saw last time that an OMB panel decided in 2009 that “old”, pre-2005 HCD plans were advisory only and did not have the enhancements of “new” plans (plans that complied with the 2005 amendments to the OHA). And that about the same time a different OMB panel in another case decided the contrary — that the “old” plans were as good as the “new” (or at least could be).
How did this happen? Did the conflict get resolved?
The OMB panel in the Kleinburg case, which concerned a dispute over proposed changes to the 1852 Martin Smith House in the Kleinburg-Nashville Heritage Conservation District, had an unusually complicated situation before it.1 We won’t go into all the messy details but part of the site was individually designated under Part IV, while the whole site was designated under Part V as part of the HCD. The Board thought the matter of approvals for the project would be greatly simplified if Part V and the 2003 HCD plan were determined to apply to the whole site. But — because of the wording of the OHA about which Part applies in double-designation scenarios — this would necessitate treating the “old” plan as a “new” plan.
Suffice to say, contrary to the position of both of the parties, that’s what the Board did.
In this case, clearly unanticipated by the legislation, a municipality did have an HCD Plan in effect, but proposed to ignore it … because there was no evidence of an update to declare it as being “adopted under Section 41.1” [providing for the adoption of HCD plans and their mandatory contents]. … Because of that omission, the OMB is being invited to inflict pragmatic and procedural convolutions on all involved. On a purposive reading, the OMB discerns nothing in the legislation that would have intended such a result.2
The Board went on — perhaps further than it needed to — to pronounce that “the Kleinburg-Nashville Heritage Conservation District Plan is still binding on any By-laws ‘that affect the designated district’, whether the HCD Plan was updated or not.” And: “There is nothing in the OHA which restricts the Kleinburg-Nashville Heritage Conservation District Plan from governing any By-law pertaining to the House property.”
In other words, using a kind of reverse logic the Board found — based on what it called a “purposive” interpretation of the statute — that a pre-existing plan should be accorded the same status as a new plan since there was “nothing” in the Act specifically stating that pre-existing plans did not have the same force as new plans.
Huh?
For the reasons discussed in part one of this article, it was never the intention of the drafters of the legislation, or the Legislature that passed it, to give old plans the same status as new plans.
But then, while the intention of drafters and legislators, where it can be discerned, should be given great deference, it is not definitive as to the meaning of our laws and their application in specific situations — and ultimately that job is for our courts and tribunals to figure out.
That doesn’t mean we can’t criticize them when we think they get it wrong. Or overstep.
In the Kleinburg case one could argue that the Board went a bit rogue. In trying to find a way out of a regulatory conundrum particular to the case it made assertions and findings that had potentially far greater implications.
And so we got two OMB decisions coming to opposite conclusions on the status of pre-2005 HCD plans. This was obviously awkward and confusing. Not to mention the uncertainty created about just what should or should not be allowed to happen in pre-2005 heritage conservation districts!
It was hardly surprising, then, that the “losing” parties from both of these cases sought clarification on the issue. The vehicle for this is a request for a review of the objectionable decision. Under the since-repealed section 23 of the Ontario Municipal Board Act3 the Board could review a decision and — depending on the results — change or rescind the decision. In practise the review was done by the OMB chair.
In response to the request from the Port Dalhousie group unhappy with the Board’s decision in that case to allow the proposed condo tower, and to treat the Port Dalhousie HCD plan as advisory only, the OMB chair wrote:
I agree with the comments in the Request that it is necessary for the Board to undertake a purposive and liberal interpretation to achieve the objectives of the OHA. The court decisions found at tab 3 and 4 of the Request support this proposition. I agree with the ground raised in the Request that the correct interpretation of s 41.2 (1) (b) of the OHA [prohibiting a municipality from enacting by-laws for purposes contrary to those of the HCD plan] is set out in the Decision of Member Denhez [in the Kleinburg case].4
That’s right — the OMB chair came down on the side of an-old-plan-can-be-as-tough-as-a-new-one!5
Harumpf.
Fast forward 10 years to the LPAT’s decision last month approving a low-rise condo project in the South Rosedale Heritage Conservation District.6
For present purposes we need not get into the nitty-gritty of the case. It is enough to say that the appellants, who wanted approval to build the project, thought it would actually advance their case if the 2003 South Rosedale Heritage Conservation District Study were treated as a “new” and binding plan. Groups fighting the project took the opposite view.
A binding plan? The Tribunal was having none of it. It summarily dismissed the earlier cases as based on different fact situations and found that the old-plan-can-be-as-tough-as-a-new-one doctrine (if that’s the word) was not binding on it.
The Appellants attempted to construct an argument based upon Section 43 Ontario Municipal Board Act reviews issued by the Chair of the Ontario Municipal Board in 2009 of two prior Ontario Municipal Board decisions under Case references PL060850 (Port Dalhousie) and PL060606 (Kleinberg). With respect to those decisions and the review by the Chair, the underlying circumstances and issues were different from those pertaining in this instance and this panel does not find any determination in those dispositions which binds this panel on the question before it.
A July 4 decision of the Local Planning Appeal Tribunal (LPAT) okayed a low-rise condo development in the South Rosedale Heritage Conservation District in Toronto.1 The case is noteworthy in several respects.
The aspect of the decision we’ll look at today concerns the status of “old”, pre-2005 Heritage Conservation Districts. This is a particular bugbear of mine. The case (one hopes!) will finally put paid to a befuddlement about older HCD plans that goes back more than 10 years.
You would have to have been living under a rock not to have heard about the province’s proposed changes to the Ontario Heritage Act.
The proposals are part of a much bigger omnibus bill introduced on May 2, 2019. Bill 108, which may have already cleared Second Reading, is on a fast track and expected to be passed into law by June 6, when the Legislature rises for the summer recess.
Stoney Lake, Peterborough County
Today we look at a second OMB decision on cultural heritage landscapes.
Stone milkhouse, Westerveld Farm, Caledon
Still on the topic of cultural heritage landscapes (bear with me, just a couple more rounds to go!): We have yet to look at how CHL arguments have fared before the Ontario Municipal Board, now the Local Planning Appeal Tribunal.
For the 85th edition of OHA+M: We return to our recent farms theme and look at another way to protect historic farmsteads. I’m very happy to have a guest contributor to the discussion, landowner Barbara Heidenreich.
I have been putting off writing about Bill 66, the proposed Restoring Ontario's Competitiveness Act.[1]
As OHA+M is a blog on heritage policy, it seemed impossible to ignore a major legislative foray by the new provincial government that could have major implications for Ontario’s cultural heritage protection regime and the resources it is designed to protect. The bill was introduced last December 6, the final day of the fall session.