Register and Municipal Heritage Committee (s.27-s.28)

Part IV - CONSERVATION OF PROPERTY OF CULTURAL HERITAGE VALUE OR INTEREST

1. 27(1) REGISTER

   27(1) The clerk of a municipality shall keep a register of property situated in the municipality that is of cultural heritage value or interest.

   Legislative History

   Originally enacted S.O. 2005, c.6, s.15 when the former s.27(1) was repealed and substituted by the current s.27(1) and s.27(1.1). [Enactment commenced 28/04/2005]  See Legislative History of s.27(1.1) for the language of former s.27(1).

   Wood Bull Commentary

   According to s.27(1), the register is to address property “that is of cultural heritage value or interest” [underlining added].  This provision is somewhat at odds with s. 27(1.2) which authorizes inclusion in the register of properties that the municipality “believes” to be of cultural heritage value or interest.

   Related Sections

   Definitions, s.1

   “municipality” means a local municipality and includes a band under the Indian Act  (Canada) that is permitted to control, manage and expend its revenue money under section 69 of that Act.

   Definition, Part IV

   26(1) In this Part, “property” means real property and includes all buildings and structures thereon

   Case Law

   Queen EMPC Six Ltd. v. Toronto (City), OMB (December 11, 2013)

   Townley-Willis v. Ross, OMB (November 29, 2012)

2. 27(1.1) CONTENTS OF REGISTER

   27(1.1) The register kept by the clerk shall list all property situated in the municipality that has been designated by the municipality or by the Minister under this Part and shall contain, with respect to each property,

   (a)    a legal description of the property;

   (b)    the name and address of the owner; and

   (c)    a statement explaining the cultural heritage value or interest of the property and a description of the heritage attributes of the property.

   Legislative History

   Originally enacted 1974, c.122, as s.27(1) with the title “Register” and which read as follows:

   27(1) A register of all properties designated under this Part within a municipality shall be kept by the clerk of the municipality in which the property is situate and shall contain,

   a)         a legal description of the designated property;

   b)         the name and address of the owner; and

   c)         a short statement of the reason for designation of the property. [Enactment commenced 05/03/1975].

   Original clause (c) of s.27(1) was repealed and substituted by S.O. 2002, c.18, Sch. F, s.2(5) to read as follows:

   (c) a short statement of the reason for the designation of the property, including a description of the heritage attributes of the property. [Enactment commenced 26/11/2002]

   Former s.27(1) was repealed and substituted by the current s.27(1) and s.27(1.1) by S.O. 2005, c. 6, s.15. [Enactment commenced 28/04/2005]

   Wood Bull Commentary

   The descriptive requirements of s.27(1.1) have changed over time from a “short statement of the reason for the designation” in 1974 to the additional requirement of a “description of the heritage attributes of the property” added in 2002 to a “statement explaining the cultural heritage value or interest of the property and a description of the heritage attributes of the property” introduced in 2005.

   The term “heritage attributes” and its definition were first introduced into the Act in 2002 (See Legislative History of s.1 “heritage attributes”)  The 2002 definition read as follows:

   "heritage attributes", in relation to a property, means the attributes of the property that cause it to have cultural heritage value or interest. [Enactment commenced 26/11/2002]

   This definition of “heritage attributes” was repealed and substituted by S.O. 2005, c.6, s.2(2) [Enactment commenced 28/04/2005] as follows:

   "heritage attributes", in relation to real property, and the buildings and structures on the real property, means the attributes of the property that contribute to their cultural heritage value or interest.

   The requirement that the Register contain (1) a statement under s.27(1.1) “explaining” the “cultural heritage value or interest of the property” and (2) a description of the “heritage attributes” of the property results in redundancy given the definition of the term “heritage attributes.  It is hard to imagine how one could provide the statement required without identifying the attributes which contributed to the value or interest, even in the absence of the requirement for the “description” of the attributes..

   Furthermore, no longer do the “heritage attributes” have to cause the cultural heritage value or interest; they must merely contribute to it.

   Related Sections

   Definitions, s.1

   “heritage attributes” means, in relation to real property, and to the buildings and structures on the real property, the attributes of the property, buildings and structures that contribute to their cultural heritage value or interest.

   “Minister” means the member of the Executive Council to whom the administration of this Act is assigned by the Lieutenant Governor in Council.

   “municipality” means a local municipality and includes a band under the Indian Act  (Canada) that is permitted to control, manage and expend its revenue money under section 69 of that Act.

   “owner” means the person registered on title in the proper land registry office as owner.

   Definition, Part IV

   26(1) In this Part, “property” means real property and includes all buildings and structures thereon.

3. 27(1.2) SAME

   27(1.2) In addition to the property listed in the register under subsection (1.1), the register may include property that has not been designated under this Part but that the council of the municipality believes to be of cultural heritage value or interest and shall contain, with respect to such property, a description of the property that is sufficient to readily ascertain the property.

   Legislative History

   Originally enacted S.O. 2005, c.6, s.15. [Enactment commenced 28/04/2005]

   Wood Bull Commentary

   Subsection 27(1.2) should be compared with s.29(1) which requires strict adherence to criteria in the designation of a property and a thorough process, inclusive of rights of appeal.  No criteria are set out for the exercise of council’s discretion; it is enough if council “believes”, that the property is “of cultural heritage value or interest”, after consulting with its municipal heritage committee (see s.27(1.3) below). No process is required except consultation with the committee.  Given the low threshold for inclusion of properties which are not designated, there is little excuse for municipalities to be caught unawares and lose heritage properties through demolition, alteration or removal.  See in this regard, Commentary under s.27(3).

   It is not uncommon for properties that have been added to the Register in this manner to be described as “listed” properties.  This jargon is confusing since both s 27(1.1) and s. 27(1.2) refer to “designated properties” as being listed under s. 27(1.1).  Other terminology should be used to properly distinguish the basis for being put into the register or the language of s.27 should be tweaked to be consistent with the existing practice.

   As noted in the reference to s.26.1(3) in Related Sections below, property that is owned by the Crown in right of Ontario or by a prescribed public body can be included in a municipal registry through municipal action, notwithstanding the absence of municipal power to designate that class of property under Part IV.  Inclusion in the Registry does not imbue the property with any greater status or protection than might be accorded to it by virtue of it being subject to the Standards and Guidelines approved under Part III.1.  On the other hand, such property may be added to the Registry regardless as to whether there are Standards and Guidelines approved under Part III.1.  Once again, there is no legal consequence attached to such inclusion.

   Related Sections

   Definitions, s.1

   “municipality” means a local municipality and includes a band under the Indian Act  (Canada) that is permitted to control, manage and expend its revenue money under section 69 of that Act.

   Definition, Part IV

   26(1) In this Part, “property” means real property and includes all buildings and structures thereon.

   Exception

   26.1(3) Nothing in subsection (1) shall prevent a municipality acting under subsection 27 (1.2) from including in the register referred to in that subsection a reference to property described in clause 25.2 (2) (a).

   Case Law

   Queen EMPC Six Ltd. v. Toronto (City), OMB (December 11, 2013)

4. 27(1.3) CONSULTATION

   27(1.3) Where the council of a municipality has appointed a municipal heritage committee, the council shall, before including a property that has not been designated under this Part in the register under subsection (1.2) or removing the reference to such a property from the register, consult with its municipal heritage committee.

   Legislative History

   Originally enacted S.O. 2005, c.6, s.15. [Enactment commenced 28/04/2005]

   Related Sections

   Definitions, s.1

   “municipality” means a local municipality and includes a band under the Indian Act  (Canada) that is permitted to control, manage and expend its revenue money under section 69 of that Act.

   Definition, Part IV

   26(1) In this Part, “property” means real property and includes all buildings and structures thereon.

   Same [ed. Contents of register]

   27(1.2) In addition to the property listed in the register under subsection (1.1), the register may include property that has not been designated under this Part but that the council of the municipality believes to be of cultural heritage value or interest and shall contain, with respect to such property, a description of the property that is sufficient to readily ascertain the property.

5. 27(2) EXTRACTS

   27(2) The clerk of a municipality shall issue extracts from the Register referred to in subsection (1) to any person on payment of the fee set by the municipality by by-law.

   Legislative History

   Originally enacted 1974, c.122, as s.27(2) which read as follows:

   27(1) The clerk of a municipality shall issue extracts from the Register referred to in subsection 1 to any person on payment of the fee prescribed by the regulations. [Enactment commenced 05/03/1975; ed. underlining added]

   Former s.27(2) was amended by S.O. 2002, c.18, Sch. F, s.2(6) to strike out the words “prescribed by the regulations” and replace them with the words “set by the municipality by  by-law”. [Enactment commenced 26/11/2002]

   Wood Bull Commentary

   A copy of the by-law passed by the municipality setting the fee for an extract can be obtained from the Clerk of the municipality.

   Related Sections

   Definitions, s.1

   “municipality” means a local municipality and includes a band under the Indian Act  (Canada) that is permitted to control, manage and expend its revenue money under section 69 of that Act.

   “person” includes a municipality.

   Register

   27(1) The clerk of a municipality shall keep a register of property situated in the municipality that is of cultural heritage value or interest.

6. 27(3) RESTRICTION ON DEMOLITION, ETC.

   27(3) If property included in the register under subsection (1.2) has not been designated under section 29, the owner of the property shall not demolish or remove a building or structure on the property or permit the demolition or removal of the building or structure unless the owner gives the council of the municipality at least 60 days notice in writing of the owner’s intention to demolish or remove the building or structure or to permit the demolition or removal of the building or structure.

   Legislative History

   Originally enacted S.O. 2006, c.11, Sch. B, s.11(2). [Enactment commenced 12/06/2006]

   Wood Bull Commentary

   The notice required by this provision must be accompanied by “such plans and information as may be specified by the municipality (see s.27(5) Commentary).

   By requiring a 60 day written notice of an intention to remove or demolish a building included in the municipal register, the subsection permits a municipality to take steps to protect buildings or structures from demolition or removal which are not designated under Part IV (or included in a Heritage Conservation District under Part V) from such demolition or removal by proceeding under Part IV to designate them. 

   It should be noted that s.27(3) does not preclude the issuance of a building permit for an alteration.  Alterations can deprive a heritage building of the “heritage attributes” which contribute to its importance and ultimately to its designation under Part IV.

   The 60 day notice has the effect of temporarily precluding the issuance of any demolition or removal permit than might otherwise be legally available to an owner for 60 days.  In this respect, O. Reg.350/06 (Building Code) s.1.4.1.3(1)(b)(vi.1) made under the Building Code Act identifies s.27(3) as being “applicable law” which the Chief Building Official must apply in determining whether to issue a permit under s.8 of the Building Code Act.

   During this 60 day period, a municipality can proceed under s.29 to begin the designation process.  According to s.30(1), once a “notice of intention to designate” such property has been given in accordance with s.29, then any permit which has been issued prior to the giving of the notice of intention to designate is “void as of the day the notice of intention is given”.  The municipality need not complete the designation process to head off the permit.

   The opportunity afforded to a municipality in regard to non-designated properties exists only where the property was already on the register prior to the making of an application for demolition or building permit (s.27(4)).  If the property is not on the register, the Chief Building Official may not refuse to issue the requested permit.  The only way to obtain a retroactive protection, that is, to void an issued permit, is by the municipality proceeding to give notice of an intention to designate under s.29.

   Section 30 speaks to voiding issued permits for alterations and demolitions in comparison with s.27(3) which does not refer to alterations but does reference “removals” which are not included in s.30. No clear explanation for these distinctions was provided when s.27(3), s.27(4) and s.27(5) were added to the Act in 2006; and, in particular, no explanations as to why alterations were not included in s.27(3).

   If a municipality is serious about protecting its cultural heritage, the tools provided by s.27(1.1) and s.27(3), s.29 and s.30, used in a prudent and timely manner, can be effective in conserving, protecting and preserving such cultural heritage.  The loop-hole in regard to alterations noted above may be addressed in future amendments to the Act.

   Related Sections

   Definitions, s.1

   “municipality” means a local municipality and includes a band under the Indian Act  (Canada) that is permitted to control, manage and expend its revenue money under section 69 of that Act.

   “owner” means the person registered on title in the proper land registry office as owner.

   Definition, Part IV

   26(1) In this Part, “property” means real property and includes all buildings and structures thereon.

   Same

   27(5) The notice required by subsection (3) shall be accompanied by such plans and shall set out such information as the council may require.

   Designation by municipal by-law

   29(1) The council of a municipality may, by by-law, designate a property within the municipality to be of cultural heritage value or interest if,

   (a) where criteria for determining whether property is of cultural heritage value or interest have been prescribed by regulation, the property meets the prescribed criteria; and

   (b) the designation is made in accordance with the process set out in this section.

   Related Statutes

   Building Code Act, 1992, S.O. 1992, c.23

   Building permits

   8.(1)  No person shall construct or demolish a building or cause a building to be constructed or demolished unless a permit has been issued therefor by the chief building official. 

   Issuance of permits

   8.(2)  The chief building official shall issue a permit referred to in subsection (1) unless,

   (a) the proposed building, construction or demolition will contravene this Act, the building code or any other applicable law; [ed. underlining added (see Related Regulations and/or Forms)]

   ...

   Conditional permit

   8.(3)  Even though all requirements have not been met to obtain a permit under subsection (2), the chief building official may issue a conditional permit for any stage of construction if,

   (a) compliance with by-laws passed under sections 34 and 38 of the Planning Act and with such other applicable law as may be set out in the building code has been achieved in respect of the proposed building or construction; [ed. underlining added (see Related Regulations and/or Forms)]

   Case Law

   Valastro v City of London, 2017 ONSC 773 (February 8, 2017)

   4402 Colonel Talbot Road, London, CRB File 1617 (March 1, 2017)

   1 St. James Place, Hamilton, CRB File 1404 (July 24, 2015)

    

   Related Regulations and/or Forms

   Ontario Regulation 350/06 (Building Code)

   1.4.1.3.  Definition of Applicable Law

   (1)  For the purposes of section 8 of the Act, applicable law means,

   (b) the following provisions of Acts and regulations:

   (vi.1) subsection 27 (3) of the Ontario Heritage Act,

7. 27(4) SAME

   27(4) Subsection (3) applies only if the property is included in the register under subsection (1.2) before any application is made for a permit under the Building Code Act, 1992 to demolish or remove a building or structure located on the property.

   Legislative History

   Originally enacted S.O. 2006, c. 11, Sch. B, s.11(2). [Enactment commenced 12/06/2006]

   Wood Bull Commentary

   See s.27(3) Commentary. Presumably, the "permit" in this section refers to a "building permit" rather than a "permit" as defined in s.1 to mean a permit issued under the Ontario Heritage Act.

   Related Sections

   Definitions, s.1

   “building permit” means means a building permit issued under section 8 of the Building Code Act, 1992.

   “permit” means a permit issued under this Act.

   Definition, Part IV

   26(1) In this Part, “property” means real property and includes all buildings and structures thereon.

   Same [ed. Contents of register]

   27(1.2) In addition to the property listed in the register under subsection (1.1), the register may include property that has not been designated under this Part but that the council of the municipality believes to be of cultural heritage value or interest and shall contain, with respect to such property, a description of the property that is sufficient to readily ascertain the property.

   Restriction on demolition, etc.

   27(3) If property included in the register under subsection (1.2) has not been designated under section 29, the owner of the property shall not demolish or remove a building or structure on the property or permit the demolition or removal of the building or structure unless the owner gives the council of the municipality at least 60 days notice in writing of the owner’s intention to demolish or remove the building or structure or to permit the demolition or removal of the building or structure.

   Related Statutes

   Building Code Act, 1992, S.O. 1992, c. 23.

   See definition of “building permit”, at s.1 for the text of the permit provisions of the Building Code Act, 1992.

8. 27(5) SAME

   27(5) The notice required by subsection (3) shall be accompanied by such plans and shall set out such information as the council may require.

   Legislative History

   Originally enacted S.O. 2006, c. 11, Sch. B, s.11(2). [Enactment commenced 12/06/2006]

   Wood Bull Commentary

   Before a notice is given pursuant s. 27(3), enquiries should be made of the municipality to determine whether the council has specified any requirements in regards to plans or information.

   Related Sections

   Restriction on demolition, etc.

   27(3) If property included in the register under subsection (1.2) has not been designated under section 29, the owner of the property shall not demolish or remove a building or structure on the property or permit the demolition or removal of the building or structure unless the owner gives the council of the municipality at least 60 days notice in writing of the owner’s intention to demolish or remove the building or structure or to permit the demolition or removal of the building or structure.

9. 28(1) MUNICIPAL HERITAGE COMMITTEE

   28(1) The council of a municipality may by by-law establish a municipal heritage committee to advise and assist the council on matters relating to this Part, matters relating to Part V and such other heritage matters as the council may specify by by-law.

   Legislative History

   Originally enacted S.O. 1974, c. 122 as part of s.28 and titled “Local Architectural Conservation Advisory Committee” which read as follows:

   28. The council of a municipality may, by by-law, establish a local advisory committee to be known as the Local Architectural Conservation Advisory Committee composed of not fewer than five members appointed by the council to advise and assist the council on all matters relating to this Part and Part V. [Enactment commenced 05/03/1975]

   Original s.28 was amended by R.S.O. 1990, c.O. 18 to replace s.28 with s.28(1) and s.28(2), which s.28(1) read as follows:

   28(1) The council of a municipality may, by by-law, establish a local architectural conservation advisory committee.

   Former s.28(1) was repealed and substituted with the current s.28(1) by S.O, 2002, c.18, Sch. F, s.2(7). [Enactment commenced 26/11/2002]

   Wood Bull Commentary

   A listing of all municipal heritage committees in the province can be found on the website of the Ministry of Culture: http://www.mtc.gov.on.ca/en/heritage/lacac.shtml

   Related Sections

   Definitions, s.1

   “municipality” means a local municipality and includes a band under the Indian Act  (Canada) that is permitted to control, manage and expend its revenue money under section 69 of that Act.

10. 28(2) MEMBERS

    28(2) The committee shall be composed of not fewer than five members appointed by the council.

    Legislative History

    Originally enacted S.O. 1974, c. 122 as part of s.28 and titled “Local Architectural Conservation Advisory Committee” which read as follows:

    28. The council of a municipality may, by by-law, establish a local advisory committee to be known as the Local Architectural Conservation Advisory Committee composed of not fewer than five members appointed by the council to advise and assist the council on all matters relating to this Part and Part V. [Enactment commenced 05/03/1975]

    Original s.28 was amended by R.S.O. 1990, c.O. 18 to replace s.28 with s.28(1) and s.28(2), which s.28(2) read as follows:

    28(2) A local advisory committee shall be composed of not fewer than five members appointed by the council to advise and assist the council on all matters relating to this Part and Part V.

    Former s.28(2) was repealed and substituted with the current s.28(2) by S.O, 2002, c.18, Sch. F, s.2(7). [Enactment commenced 26/11/2002]

11. 28(3) CONTINUATION OF OLD COMMITTEES

    28(3) Every local architectural conservation advisory committee established by the council of a municipality before the day subsection 2(7) of Schedule F to the Government Efficiency Act, 2002 comes into force is continued as the municipal heritage committee of the municipality, and the persons who were the members of the local architectural conservation advisory committee immediately before that day become the members of the municipal heritage committee.

    Legislative History

    Originally enacted S.O. 2002, c.18, Sch.. F, s.2(7) when s.28 was repealed and re-enacted. [Enactment commenced 26/11/2002]

    Wood Bull Commentary

    Subsection 2(7) of Schedule F to the Government Efficiency Act, 2002 came into effect 26/11/2002.

    Related Sections

    Definitions, s.1

    “municipality” means a local municipality and includes a band under the Indian Act  (Canada) that is permitted to control, manage and expend its revenue money under section 69 of that Act.

    “person” includes a municipality.