A Toothless Dragon?
When the municipality signals intent to “designate” a property under the Ontario Heritage Act, there is a right to object. As Designation is in fact, a legal lien, objections happen quite frequently and usually originate with the person or company who owns (or intends to own and develop) the property. Sometimes, initial resentment and distrust is resolved amicably by some small changes in expectations from both sides, but if this does not work, if the municipality is unable to resolve the objections, then the matter is taken to the Conservation Review Board.
The Ontario Ministry of Culture offers the following explanation for the work of the Board: “The Conservation Review Board is a regulatory tribunal that hears disputes on matters relating to the protection of properties considered to hold cultural heritage value or interest or of archaeological significance to a municipality or to the Minister of Culture, as defined by the Ontario Heritage Act (Act). ” Ontario – CRB
Both sides are invited to argue their case before the Board and interested third parties may also make presentations at the hearing. When all arguments have been heard, the Conservation Review Board rules on whether the property should be designated under the Heritage Act. There is no question that the Board takes the job seriously, as their reports (which are public documents) show.
So, on the surface, this is good stuff, and a fair way to get out of an impasse. -But consider this. The Board may consider the heritage merits of the property, and only the heritage merits of a property. Related disputes are beyond their jurisdiction.
The Ministry of Culture states: “Once a Notice of Intention to Designate is issued by a municipality …. enforcement of these provisions is the responsibility of the municipality or the Minister of Culture, whichever is applicable. The Board has no role in the protection of a cultural heritage property, outside of its mandate as an adjudicator in disputes over decisions made under the Act. As it is an independent regulatory tribunal tasked with assessing the merits of designation without any apprehension of bias, the Board’s sole role is to conduct a formal hearing process.”
For instance, if the owner of the property has turned off the heat, and left the building vulnerable to all that the elements can deliver in the expectation that it will become so unsound that the neighbours will demand demolition, the Conservation Board has nothing to say, even if they agree with the municipality that the structure is of historical importance. The recent ruling in regards to the City of Burlington and Seaton House (April, 2008) is a case in point. The Conservation Review Board agreed with Burlington that: “the values or interests prescribed in Regulation 9/06 of the Act to be well manifested in this property” and recommended Heritage Designation. However, the Board could do nothing for the City in the matter of the landlord’s seemingly deliberate neglect of the property and ignoring the City’s requests for inspection. It was left to the City of Burlington to decide whether they should take further legal action.
This seems to be a classic Pyrrhic victory.
As Designation, with required public notices, followed by mounting a defence at the Conservation Review Board is not without cost, municipalities might well be excused for baulking at further investment to attempt to stop angry owners from destroying built heritage by neglect.
So, the decision of the Board only has teeth if the municipality gives it teeth. Exhausted Heritage Committees (“LACAC’s”) must find the energy to push and push again to defend the built heritage, even after a positive ruling from the Conservation Review Board.
Consider also the role of the Conservation Review Board vis a vis the Ontario Municipal Board (OMB). Developers may take their planning problems to the OMB, even after a ruling by the Conservation Review Board has gone against them. The OMB takes a much wider look at the case. “Decisions are based on the evidence presented at the hearing, the relevant law, provincial polices and the principles of good planning.” (Website)
Although there is no question that the OMB would treat a recommendation to Designate from the Conservation Review Board very seriously, it does not consider heritage as the principle issue in requests for planning permission. In recent years, the OMB has listened to accusations from developers that the Heritage Act may be used to impede otherwise good planning initiatives. In the current economic situation, it is doubtful that the OMB will put history and culture before job-creation and infrastructure growth.
The expertise on the OMB team does not normally include heritage, or even architecture. However, “Members of the [Conservation Review] Board can be cross-appointed to the Ontario Municipal Board (OMB) as members with full standing to hear disputes under other sections of the Act.” So, the Ontario Municipal Board may invite colleagues from the Conservation Review Board to provide heritage input on a property. However, the Ontario Municipal Board out-ranks the Conservation Review Board in the government hierarchy and, “Decisions of the OMB are final.” (Ontario Municipal Board official website)
Beleagured Heritage Committees, having rallied to convince their Municipality, and then fought the battle at the Conservation Review Board, may wake up the morning following an OMB Hearing to find that all they have saved is the facade, after all.