Bill 108 - (Schedule 11) – the proposed More Homes, More Choice Act: Amendments to the Ontario Heritage Act

Comments received through the Environmental Registry, by email, and in person during the comment period were considered by the government in making the decision to amend the Ontario Heritage Act. Several of the comments resulted in changes to the Bill as outlined below.

Commonly expressed themes and the Ministry’s responses are as follows:

Balanced Approach: The amendments seek to improve consistency, transparency and efficiency in decision making under the Act, while continuing to provide tools to conserve heritage properties that are important to Ontarians.

• Comments were received that expressed appreciation for how the amendments bring more balance to the heritage protection process in Ontario; for example, improving clarity of heritage designation bylaws with new requirements, creating a more rigorous and transparent process for adding properties to the municipal register and allowing property owners a say through the new objection process, and improving transparency around timelines and requirements for heritage permit applications.

• Ministry response: The Ministry will continue to contemplate a balanced approach when drafting the accompanying regulations to the Act and making updates to guidance materials.

Principles: The amendments allow the Minister to create a regulation which will establish principles that must be considered by municipalities when making decisions under Parts IV and V of the Ontario Heritage Act.

• Many comments expressed that it was difficult to provide comments on the proposed amendment as the principles have not yet been drafted, and requested that heritage and municipal stakeholders be consulted on the development of the principles.

• Ministry response: The Ministry will be consulting on the draft regulations to the Act, including the principles.

Listing: The amendments help to strengthen the process for adding non-designated properties to the municipal register (“listing”). The amendments create new requirements for notification, and a process for property owners to object.

• Some stakeholders raised concerns about the ability to raise an objection at any time. Stakeholders commented that this would increase burdens and create too much uncertainty for the municipality, as listings could always be subject to a challenge. Some submissions suggested that allowing a municipality to provide notice before the council decision is made would create a more efficient process.

• Ministry response: Through our consultation the Ministry heard that many municipalities already provide notice to property owners. The new listing process will be supported by new guidance that will be released by the Ministry.
• The government believes that it is important to provide an objection process, and that the opportunity to object should be available to all property owners, current and future.
• Providing notice after the decision is made ensures that heritage properties are protected and there is no opportunity for a property owner to apply for a demolition permit after receiving notice that council is considering listing the property.

Timelines: The amendments introduced new timelines for determining a complete application for demolition or alteration (60 days), issuing a notice of intention to designate (90 days from prescribed circumstances), and to follow through with a decision on designation (120 days).

• Some stakeholders raised questions about what the prescribed circumstances would be for triggering the 90 day timeline for issuing a notice of intention to designate. Some comments raised concerns about whether they would allow flexibility to respond to specific municipal circumstances and that the timelines may be too short.

• Ministry response: Timelines have been introduced to address approval delays, consistent with the approach taken under the Planning Act for timelines associated with planning approvals. The purpose is to help expedite the heritage approvals process and reduce disagreements which are costly and frustrating to both municipalities and development stakeholders.
• New regulations that will be developed in the coming months, will provide further detail when extensions and exemptions may be possible, and when the 90 day timeline would apply. Stakeholders will have an opportunity to provide feedback on the draft regulations.

Demolition: The amendments provide added clarity that demolition includes the removal or demolition of a heritage attribute as well as a building or structure.

• Some stakeholders raised concerns about the application of this new definition in heritage conservation districts, where heritage attributes for individual properties are often not identified. Other stakeholders raised questions about what would happen in cases where pre-2005 bylaws do not identify specific heritage attributes.

• Ministry response: The Government made changes to the Bill to clarify that this definition applies to the attributes that are identified in the Heritage Conservation District (HCD) Plan. This means that municipalities would not be required to identify the attributes of individual properties in an HCD plan, unless the municipality chooses to do so.
• The changes to the Act will be supported by transition provisions that will be set out in regulation. Transition provisions will allow municipalities to amend their bylaws using a streamlined process that will make it easier to update those designations where heritage attributes are not described.

Appeals: Designation appeals and appeals regarding alteration of heritage properties will now be heard by the Local Planning Appeals Tribunal (LPAT) rather than the Conservation Review Board. The decision of the Tribunal will be binding on the municipality.

• Many stakeholders were concerned about the loss of expertise of the Conservation Review Board and emphasized the importance of LPAT members having expertise in heritage conservation to support decisions on designation.

• Ministry response: The Ministry will work with the Ministry of the Attorney General and Tribunals Ontario on building the capacity of the Tribunal to have the heritage expertise it needs to make decisions on heritage matters.
• In addition, the Bill was changed to give the Minister the authority to develop a regulation requiring municipalities to forward to LPAT the materials and information that form the record of any decisions under the OHA.
• Clarifying the information that forms the record of decision in regulation would help to make the appeals process more efficient and ensure that LPAT has the information make an informed decision on heritage matters.

Objections: The amendments introduce a new process for making an objection to council when a notice of intention to designate is issued. The new process is similar to the previous 30-day period for objections to the Conservation Review Board.

• Some comments expressed concern about the timing of the new objection process, requesting that the objection be brought forward prior to the final decision to issue a notice of intention to designate (e.g. through a statutory public meeting).

• Ministry response: Under the new process, objections may be brought forward once the municipality has issued its notice of intention to designate. The purpose of this timing is to allow the municipality to consider any objections before making its final decision on passing the designation by-law. The same objection process is applied to municipal decisions to issue a notice of intention to amend or repeal a designation by-law.
• Holding a statutory public meeting for every designation prior to the issuing of a notice of intention to designate may not be feasible in all municipalities. The Act is intended to enable municipalities of all sizes to apply its tools.
• This preliminary objection process gives the municipality an opportunity to consider feedback from the owner and/or community, prior to making a final decision.

Local Decision Making: The amendments do not change the ability of local councils to identify and protect heritage properties of cultural heritage value or interest.

• Many comments raised concerns that the amendments take away the ability for elected officials to make decisions about the significance of local heritage resources, and that decisions will be made by a Provincially appointed tribunal.

• Ministry response: The amendments work within the existing scope of the Act, to allow local municipal councils to conserve properties that are of cultural heritage value to their community.
• The amendments will help to facilitate municipal decision making by creating clear and transparent processes for how properties can be designated, including new guidance and direction on drafting designation bylaws, with heritage attributes clearly identified and the cultural heritage value of the property clearly explained.
• These changes will help to ensure that both the municipality and the property owner understand what change or development is possible, and which features of a protected heritage property must be maintained and not compromised during development. This clarity is intended to help to reduce the number of disagreements and appeals going to LPAT.

Loss of heritage properties: The amendments to the Ontario Heritage Act provide clearer rules and tools to help ensure that heritage properties are protected.

• Some submissions raised concerns about the amendments resulting in the loss of heritage buildings and local cultural heritage tourism.

• Ministry response: The proposed amendments will help to ensure that heritage resources are protected by providing more clarity to municipalities on how to use the Ontario Heritage Act.
• This increased clarity and transparency will help to reduce confusion about the Act and any frustration with the process for reaching decisions, which currently leads to disagreements, lengthy approval delays, and in some cases, the loss of important heritage properties that may have otherwise been incorporated into plans for compatible development.

Consultation: The proposed amendments were posted to the Environmental Registry for 30 days. During that time, the Ministry also held meetings with key stakeholders, and broader information sessions with municipalities.

• Many submissions raised concerns that not enough consultation was done prior to developing the amendments, and that the consultation period was too short. Heritage and municipal stakeholders requested that the Ministry do further consultation for the purposes of developing the regulations and guidance.

• Ministry response: The proposed changes were developed as a result of what was heard through the Ministry of Municipal Affairs and Housing’s consultation on the Housing Supply Action Plan in early March. Groups that were consulted included municipal stakeholders, development stakeholders and professional planning stakeholders.
• The Ministry will consult with stakeholders on the draft regulations and guidance.