Circular appeal process lessens
charm of heritage properties
Whether you’re dealing with a
charming early-century brownstone in Toronto’s Cabbagetown,
a quaint old cottage along the
river in Niagara-on-the-Lake, or
a historic storefront or warehouse
in Hamilton, there are plenty of
cautions to heed when your client
is involved with a heritage property in Ontario. Before clients
purchase a heritage property, they
must be extremely familiar with
all the rules and restrictions
under any provincial heritage
legislation and, in particular, the
rules relating to alterations and
For example, until 2005, the
heritage designation of a property under the Ontario Heritage
Act merely allowed a municipality to delay, but not ultimately
prevent, the demolition of a
heritage property. In 2005, the
province enacted amendments to
strengthen the Act. Under the
amended legislation, a landowner of a Part IV designated
heritage property, who is refused
a demolition permit by the local
municipality, no longer has an
automatic right to demolish, but
can appeal the refusal of the
demolition permit to the Ontario
Municipal Board (OMB). The
OMB can grant or refuse to issue
a permit and its decision is final.
However, if the landowner
wishes to alter a Part IV designated heritage property, the process is more complex. The Act
requires that the owner make an
application for alteration with the
municipal council. A denial of
such an application can only be
appealed to the Conservation
Review Board (CRB), a provincial
tribunal. The CRB then holds a
hearing and makes findings.
Unlike the OMB, the decision
of the CRB simply becomes a
non-binding report back to the
very same municipal council that
originally denied the application.
The municipal council is then
free to adopt or reject the CRB’s
findings, and there is no further
recourse or appeal procedure for
In addition to an individual
property being designated as a
heritage property under Part IV of
the Act, a property can be designated under Part V of the Act as
being located in a Heritage Conservation District (HCD). An HCD
“Purchasing a heritage
property without a full
appreciation of the
become a costly
mistake of historic
is an area where all buildings or
certain parts of buildings within a
specified geographic area are considered historically significant.
Applications to either demolish or
alter a Part V property are made to
the municipal council; however, a
denial of either application can be
appealed to the OMB.
Complicated enough yet? A
property can also be designated
under both Part IV and Part V of
the Act. Once again, the rules concerning demolition and alteration
can be quite complex under this
scenario. For example, if a property is dual-designated, it is subject to the Part IV rules if the
designation of the HCD predates
the 2005 amendments to the Act
and no HCD plan has yet been
adopted by the municipal council
for that particular district. Otherwise, a dual-designated property is
subject to the rules for demolition
and alteration found in Part V of
Unfortunately, as is illustrated
in several leading cases (Port Dal-
housie Revitalization Corp. v.
PROUD, OMB Case File
PL060850 and 10360 Islington
Avenue Inc. v. Vaughan, OMB
Case File PL060606), various city
councils and tribunals have taken
somewhat divergent views on the
application of the Act. In addi-
tion, the differing appeal proced-
ures can be quite unfair, particu-
larly for the Part IV appeal
provisions for alterations.
Mary Flynn-Guglietti is a
partner at McMillan LLP in
Toronto and has practised municipal and land use planning law
for over 25 years. She and
McMillan associate, Andrew
Warman, have worked extensively
with the heritage laws in Ontario.
They acted for the developer in
10360 Islington Avenue Inc., referenced above.
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The Saskatoon city council has rejected a request for a bylaw banning
owners from allowing their pooches to pee on neighbours’ lawns.
After the issue was raised, the council reviewed a city report concluding that a law preventing owners from letting their dogs urinate on private property would be hard to enforce. Property owners would have to
file a complaint and complete a witness statement— and the actual evidence is pretty hard to retrieve. The council turned down the bylaw
request, according to The Star Phoenix.
Saskatoon residents will just have to put up with those telltale yellow
patches on the grass. — Natalie Fraser
Council nixes pet urine bylaw
MARCO NEUMAYR / DREAMSTIME.COM
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