The changes that Bill 108…

The changes that Bill 108 proposes to make to the Ontario Heritage Act (OHA) could significantly impact a municipality's ability to conserve its heritage resources as described below.
Adjudication of heritage designation by-laws by LPAT
Under the proposed changes to the OHA, designation by-law appeals would be adjudicated by the LPAT. Currently, municipal councils have the final authority for heritage designation under Part IV of the OHA. Designations (and alterations) can be referred/appealed to the Conservation Review Board (CRB), but its members review the merits of a Council decision and make a recommendation back to Council; their decisions are not binding. Bill 108 proposes to give the LPAT the final determination with respect to appeals of heritage designation by-laws, including the ability to:
• dismiss appeals;
• repeal or amend the designation by-law; or,
• direct a Council to repeal or amend the designation bylaw in accordance with a Tribunal order.

New (or revised) criteria for determining whether property is of cultural heritage value or interest could be prescribed. The extent of the changes from the existing criteria set out in Regulation 9/06 is unknown.
Under Bill 108, if a municipal council does not pass a designation by-law within 120 days of publishing a notice of intention to designate (90 days following the end of the objection period), the intention will be deemed to have been withdrawn. If appealed, a designation by-law will not come into force until all appeals to the LPAT are withdrawn or dismissed. However, if a council fails to pass a designation by-law within the proposed timeline, it may restart the process by making another decision to state its intention to designate. It is noted that a council could be precluded from restarting the process in the circumstance wherein a "prescribed event" has occurred in the interim period. The meaning of “prescribed event” would be provided in the supporting regulation that is not yet available for review.

Appeals of Council decisions on applications by owners to repeal a heritage designation pursuant to subsection 32 of the OHA would now be adjudicated by the LPAT rather than referral to the CRB for a recommendation to a council. Such an appeal should only be permitted to new heritage designations initiated post-Bill 108.

The proposed elimination of the existing CRB hearing process and recommendation will give control over municipal heritage protection to the LPAT. I am extremely concerned that the Tribunal members will not have the heritage expertise comparable to that of CRB members. Taking authority over heritage designation away from municipalities could have a negative impact on heritage conservation, which should be determined locally and afforded deference.

Restricting designation to 90 days after a “prescribed event”
Bill 108 proposes that a council not be permitted to give notice of an intention to designate a property under section 29(1) of the OHA more than 90 days after an unspecified "prescribed event," subject to exceptions that may also be prescribed. There are currently no limits placed on when a council may provide notice of an intention to designate a property.

Municipalities should be consulted on what constitutes a “prescribed event” (in addition to “prescribed criteria”, “prescribed principles,” and all the non-existent supporting regulations).

Alteration vs. demolition
Bill 108 proposes to introduce a definition of “alteration” to the OHA that specifically does not include the “demolition or removal” of a property’s designated heritage attribute(s). No definition of “demolition or removal” is provided, but should be.

Further, a new subsection would be added to subsection 34(1)1 of the Ontario Heritage Act to direct that the demolition or removal of any of a property’s heritage attributes be considered under the provisions of section 34. This would disallow a council from considering the removal of a heritage attribute under section 33 of the OHA.

Currently, appeals of a council’s decisions with respect to proposed alterations under section 33 of the OHA are considered by the CRB. Bill 108 proposes that appeals of a council’s decisions with respect to both proposed alterations under section 33, and proposed demolitions under section 34 of the OHA, be adjudicated by the LPAT. I believe that municipalities should retain control over the final authorization of alterations to designated heritage properties.
By including the demolition or removal of any heritage attribute in section 34 of the OHA, the town would be required to publish a notice council’s decision in the local newspaper (i.e., whether or not the requested alteration/demolition/removal was approved) for heritage permit applications. This will have a negative impact on the perception of heritage conservation by the public and impacted property owners.

Complete application requirements for alteration and demolition permits
Bill 108 proposes a new 60-day timeline for notifying property owners whether their (heritage permit) applications for alteration and demolition are complete – a new concept in the context of the OHA. However, the Bill is unclear in terms of what would occur in the event of a “notice of incomplete application.” As such, a process to address incomplete applications should be provided by the legislation.
It is also proposed that a council must make a decision with respect to a heritage permit request for alteration or demolition within 90 days of a notice of complete application. What constitutes a complete application will either be defined by regulation, or the Province will allow a municipality to define requirements by by-law. This has yet to be determined.

Interim protection during designation process
Despite proposing to maintain sections 30(1) and (2) of the OHA, which provide for the voiding of permits and interim controls on demolitions subsequent to a council issuing a notice of intention to designate, it is unclear whether similar interim protections would apply in the case of an appeal in relation to a designation by-law.
As noted above, if appealed, a designation by-law will not come into force until all appeals to the LPAT are withdrawn or dismissed. Currently, properties subject to a notice of intention to designate are treated "as designated" for the purposes of the OHA. I would like the Province to clarify in the legislation that a property subject to an appealed designation by-law would also be treated “as designated” for the purposes of the OHA until the matter is adjudicated by the LPAT.

Two-tier objection process
Bill 108 would require a council to consider an objection to a notice of intention to designate before passing a heritage designation by-law. Currently, objections to a notice of intention to designate go directly to the CRB. Under Bill 108, a council would be required to reconsider a notice of intention to designate within 90 days of receiving an objection, and before passing a designation by-law, which could in turn be appealed to the LPAT.

Should a council not reconsider its decision within the proposed time periods (or fail to pass a designation by-law), the intention to designate would be deemed to have been withdrawn.
Effectively, under Bill 108, the objection process creates a two-tier system of appeal to heritage designation and will create delays for property owners, staff, advisory committees and Council.
Principles required to designate

Bill 108 proposes to amend the OHA to enable the Province to introduce “prescribed principles” in relation to Part IV properties as well as heritage conservation districts (HCDs) that a Council will be required to consider when making decisions about designating a property or district, or when making decisions affecting the property or district. Draft “prescribed principles” have yet to be released, and as such the potential implications of this requirement are uncertain. Of concern would be the relationship between provincial “prescribed principles” and the stated objectives of each HCD Plan. In addition, the new language that is proposed to be inserted into section 34.5(2) of the OHA makes it unclear how individual property attributes are intended to be regulated within a district plan area which, by definition, is intended to manage change at an area-wide scale and currently provides only general policies and guidelines for alterations.

Consultation on the “prescribed principles” should be undertaken with municipalities. Heritage Planning staff will also need to determine the extent of the revisions required to the town’s existing and pending HCD plans.

Notice to owners regarding the listing of heritage properties

Bill 108 proposes that property owners be able to object to a Council's decision to list a property, and Council be required to consider any objection and make a second decision to confirm or remove the listing. Council would then provide an additional notice to the owner within 90 days of its decision. Under the proposed new section 27(3) of the Ontario Heritage Act, a time limit for objections is not specified, but I believe that one should be. It is noted that this new objection process would not apply to properties included in the heritage register before the More Homes, More Choice Act, 2019 comes into force.

Bill 108 will seriously impact heritage planning staff resources, and require updates to internal procedures and information systems, to ensure the delivery of heritage reports and notices within the specified timelines. The potential to conserve heritage properties is at risk.