A question of Heritage - Heritage conservation districts post-2005

26 juin 2020

Municipalities are creatures of statutes. Their legal authority must be grounded in a statute. With respect to heritage matters, the primary statutory authority for municipalities is set out in the Ontario Heritage Act ("OHA") and the Planning Act. There are times where municipalities seek to regulate in excess of their legal authority including through legally unjustified demands for building plans, heritage permits, etc.



A 2017 decision by the Ontario Municipal Board (the "Board") successfully argued by Gowling WLG's Ottawa office, Statler v. Ottawa (City), 2017 CarswellOnt 18749 (O.M.B), signifies a clear and unambiguous ruling that Heritage Conservation District Plans ("HCDPs") adopted prior to 2005 amendments to the OHA have no force of law. Further, the pre-2005 OHA did not control property, only structures, and as such never had the ability to touch on land. Finally, committees of adjustment have no rights to insist on building plans for vacant parcels, and plans should only be requested to the extent that they are relevant to the requested variances.

This decision still resonates today, especially as municipalities have not yet updated many pre-2005 HCDPs.

Background

Greg Statler applied for a consent to sever the Subject Property known municipally as 514 Manor Avenue in the northwest section of the former Village of Rockcliffe Park, now in the City of Ottawa. Along with the consent to sever, Mr. Statler applied for variances seeking relief from the frontage, lot area, and density requirements of the applicable Zoning By-law. At the time of application, a by-law to adopt a new Rockcliffe Park HCDP was under appeal to the Board. The OHA clearly provides that any HCDP is in full force and effect only after all appeals have been disposed of. This left City Staff to evaluate applications under a Heritage Conservation District Study completed in 1997. Prior to 2005, the OHA did not afford such studies the force of law.

The Committee of Adjustment refused both applications on the basis that the applications were premature. The assertion of prematurity was based on the fact that the plans and elevations for a future building on the proposed lot requested by the Committee had not been submitted; and as well, that Mr. Statler had not obtained a Heritage Permit under the new HCDP.

Legislation

The Ontario Heritage Act prevents by-laws passed under the Act of coming into force until all appeals have been withdrawn or dismissed.

41. (10) If one or more notices of appeal are given to the clerk within the time period specified in subsection (4),

(a) the by-law comes into force when all of such appeals have been withdrawn or dismissed;

HCDPs were not mentioned in the pre-2005 OHA, and amendments in 2005 granted legal status to pre-2005 HCDPs only if they met the requirements of the OHA addressing both public consultation and content requirements.

Heritage conservation district plans

41.1 (2) If, on or before the day the Ontario Heritage Amendment Act, 2005 received Royal Assent, the council of a municipality had passed a by-law designating one or more heritage conservation districts, it may pass a by-law adopting a heritage conservation district plan for any one of the designated districts.  2005, c. 6, s. 31.

Content of plan

(5) A heritage conservation district plan shall include,

(a) a statement of the objectives to be achieved in designating the area as a heritage conservation district;

(b) a statement explaining the cultural heritage value or interest of the heritage conservation district;

(c) a description of the heritage attributes of the heritage conservation district and of properties in the district;

(d) policy statements, guidelines and procedures for achieving the stated objectives and managing change in the heritage conservation district; and

(e) a description of the alterations or classes of alterations that are minor in nature and that the owner of property in the heritage conservation district may carry out or permit to be carried out on any part of the property, other than the interior of any structure or building on the property, without obtaining a permit under section 42.  2005, c. 6, s. 31.

Consultation

(6) Before a by-law adopting a heritage conservation district plan is made by the council of a municipality under subsection 41 (1) or under subsection (2), the council shall ensure that,

(a) information relating to the proposed heritage conservation district plan, including a copy of the plan, is made available to the public;

(b) at least one public meeting is held with respect to the proposed heritage conservation district plan; and

(c) if the council of the municipality has established a municipal heritage committee under section 28, the committee is consulted with respect to the proposed heritage conservation district plan.

Ontario Municipal Board Decision

This decision turned on two separate issues: (1) whether a Committee has the right to insist on building plans for a vacant parcel; and (2) the application of Heritage Conservation District Plans along with the OHA, both old and new.

The position of the Appellant before the Board was that:

(1) The Committee improperly required the submission of a specific building design as a condition of approval, despite the fact that the consents and minor variance applications were specifically directed to the creation of a new lot and not a building;

(2) Neither the 1997 Rockcliffe Park HCDP nor the new Rockcliffe Park HCDP had the force of law and were not enforceable; and,

(3) Neither the old HCDP nor the new HCDP applied to the Subject Property in a manner that would prevent the requested consents or variances.

The City's position was that an application for consent to sever was premature because plans for a future new dwelling on the proposed severed parcel had not been provided and it was not possible for the City's Heritage section to properly assess the impact of the proposal without such plans. The City further maintained that an application for a Heritage Permit needed to precede the application for consent to sever.

The Board sided with the property owner on all issues, finding that: the Committee had no right to insist on building plans for the vacant parcel; that Heritage Conservation District studies adopted prior to the 2005 amendments to the OHA have no force in law; and, that the pre-2005 OHA did not control property, only structures, resulting in the lack of legal authority to regulate land. 

In agreeing with the property owner, the Board provided important commentary on the statutory provisions that impact severances and minor variances, including the Planning Act, the Ontario Heritage Act, and the impact of by-laws enacted pursuant to those Acts.

Subdivision of Land with Minor Variances

The Board emphasized that the matters before it related to the severance of a lot, along with the authorization of variances related to a reduction in lot area and an increase in density. 

[25] The matters before the Board are the severance of a lot, along with the authorization of variances related to a reduction in lot area and an increase in density and not an application for the authorization of variances to the performance standards/zoning requirements to permit the construction of a structure.

The property owner through a land use planner, demonstrated that an adequate dwelling could be constructed on the proposed new lot in accordance with the performance standards set out in the zoning by-law. The Board found that further detail regarding a proposed future building was not relevant to the zoning permissions sought. As such, there was no right for the Committee of Adjustment to require plans for a proposed structure not relevant to the variances sought.

This logic extends to variances not related to a structure, or part of a structure. For example, a variance related to a rear-yard setback need not include plans for the front or side elevations.

Ontario Heritage Act and HCDPs

The Board did not agree with the City's position with respect to the necessity of the granting of a Heritage Permit as the Board found neither the old study nor the new HCDP applied.

[29] With respect to the City's position that prior to the granting of the applications, a Heritage Permit must be granted for the subject property and that the Village area has been designated a Heritage Conservation District ("HCD") by the former Village, it is clear based on the evidence before the Board that neither the older HCDP nor the new HCDP apply to the subject property in a manner that would prevent the requested consents or variances.

The Board could not apply the new HCDP as it was then under appeal at the Board. Section 41(10) of the OHA provides that the by-law does not come into force until the appeals have been withdrawn or dismissed and therefore could not apply to the Subject Property.

[33]…Clearly, the City has no legal basis upon which to enforce it and anything that occurs while the new HCDP is under appeal is not subject to it even if the appeal is ultimately dismissed.  

The Board found that the OHA provides a mechanism in which HCDPs created prior to 2005 could be granted legal status. For pre-2005 HCDPs to be granted legal status, it had to meet the requirements of the OHA.

[35] It must be noted that HCDPs were not mentioned in the pre-2005 OHA and that the amendments in 2005 granted legal status to pre-2005 HCDPs, but only if these met the requirements of the Act. The 2005 amendments required that and HCD be coupled with and HCDP but required that a stringent public consultation process and content requirement be followed before adopting an HCDP. The evidence before the Board is that the old HCDP did not meet the content or consultation requirements. It does not differentiate between alterations that require City approval and those that do not.

Counsel for the Appellant referred to the Board's decision in Proud Port Dalhousie, Re, 2009 CarswellOnt 1096 (O.M.B.) where the Board found that the process for adopting the pre-2005 district plan is not a mere technical procedure. The Board stated that section 41.1 of the OHA guarantees a transparent public process.

Ultimately, the Board found that the since the City had not followed the required process for the old HCDP, it had no legal status, and there was no requirement for a Heritage Permit. There is no requirement for a Heritage Permit under the existing OHA, unless it arises under a HCDP adopted in accordance with the post-2005 OHA.

Finally, the Board agreed with the Appellant that a permit was not necessary under the pre-2005 OHA when seeking to alter land. The Board found that the pre-2005 OHA made no mention of anything other than building or structure, whereas the post-2005 OHA mentions any part of the property indicating the legislature's intention to expand the scope of HCDPs to land. Therefore, only HCDPs adopted in accordance with the 2005 amendments apply to lands.

Discussion

As noted above, there are times when municipalities seek to exceed their authority by requesting more than they are entitled from applicants seeking severances or variances. These additional requests can be in the form of unnecessary building plans, heritage permits, etc.

It is clear from the decision in Statler that Committees of Adjustment are not entitled to request plans that do not touch on requested variances. Such additional documents are not relevant to the permissions being sought and have no application to the decision-making process. This case should alert landowners that Committees do not have the right to insist on building plans for vacant parcels.

Most importantly, the decision of the Board in Statler v. Ottawa (City) represents a warning to cities across the province that the Board (now the Local Planning Appeal Tribunal) will not allow municipalities to overreach their powers under the OHA.

Many municipalities across the province of Ontario have Heritage Conservation Districts that were designated well before the 2005 amendments to the OHA. It is unknown how many of these municipalities have Heritage Conservation Districts that have no legal enforceability. This decision should alert landowners whose property is within a Heritage Conservation District, that if the applicable Heritage Conservation District was adopted prior to the 2005 amendments to the OHA, the Heritage Conservation District has no force in law and the City cannot insist on heritage permits.

Further, landowners whose property is in a Heritage Conservation District with a study from prior to 2005 will undoubtedly be told by municipalities that they are restricted from demolition or alterations they may seek to a building or structure located on the property.  However, because the OHA makes the adoption of an HCDP mandatory ("shall adopt a heritage conservation district plan for each district that is designated in the by-law"), it is our view that the proper interpretation of Statler and the OHA provide that in the absence of a properly adopted HCDP, a Heritage Conservation District is not enforceable at law.


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