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Municipal - Heritage. Rockcliffe Park Residents Association v. The City of Ottawa [standing]
In Rockcliffe Park Residents Association v. The City of Ottawa (Div Court, 2024) the Divisional Court dismissed a JR by a resident's group, here where the issue was the issuance of a heritage permit under the Ontario Heritage Act.
Here the court questions the standing of a residents' group to challenge by JR the issuance of a Heritage Act license:[8] There is a related point about standing that requires comment. I do not need to decide if the Applicant has standing to bring this proceeding because the application is dismissed in any event. But I am dubious that the District Plan intends for the Applicant association to be a voice for private neighbours to become involved in opposing applications by neighbouring owners about the development of their private properties.
[9] The Applicant has a consultative role in the staff review process leading to the City Council’s permitting decision. It has no role at City Council itself. Unlike the City and the owner, the Applicant has no appeal rights from the City’s permitting decision. Moreover, if the City or the owner appeals the City’s decision, their further appeal to this court is limited to issues of law. While judicial review has been widened by the Supreme Court of Canada, the parties’ judicial review rights may still be tempered by the existence of the appeal right.[1] It is difficult to interpret the regulatory scheme as anticipating that opposing neighbours were being given greater rights than the immediate parties.
[10] On a higher level of abstraction, I am concerned that the Applicant is purporting to act as an extra judge and jury in the regulatory approval process. If it is entitled to full participation rights and can launch judicial review if an owner does not buckle under to neighbours’ demands, then the Applicant becomes an additional decision-maker. At least, property owners anticipating development will have to consider the chill caused by the prospect of neighbouring landowners’ litigation despite whatever approvals the property owner may receive from the City under the District Plan and the Ontario Heritage Act.
[11] I am very hesitant to find that the Applicant ought to be recognized as having standing to challenge a private owner’s permit application for his or her own property. As noted above however, I do not need to reach a conclusion on this issue as the application is dismissed in any event. . Rockcliffe Park Residents Association v. The City of Ottawa
In Rockcliffe Park Residents Association v. The City of Ottawa (Div Court, 2024) the Divisional Court dismissed a JR by a resident's group, here where the issue was the issuance of a heritage permit under the Ontario Heritage Act.
Here the court illustrates some procedures of a contested Heritage Act dispute:[1] Rockcliffe Park Residents Association brings an application for judicial review of the City of Ottawa’s decision, dated July 12, 2023, to grant Jianbin Wang a heritage permit to construct a new house at 480 Cloverdale Road in the Rockcliffe Park neighbourhood in Ottawa.
[2] Rockcliffe Park has been designated as a Heritage Conservation District under s. 42 of the Ontario Heritage Act, RSO 1990, c 0.18. Mr. Wang’s proposed construction of a new home is subject to the requirements of the Rockcliffe Park Heritage Conservation District Plan.
[3] Mr. Wang made two prior applications to build a home at the same site in Rockcliffe Park. Both were rejected. After making changes to his proposed plans, the City staff were satisfied and recommended approval of Mr. Wang’s permit application to City Council. City Council agreed. It approved the final plans and granted a heritage permit on July 12, 2023.
[4] In addition to the final decision of the City, the Applicant purports to challenge the prior staff and committee recommendations to approve Mr. Wang’s application. In my view, nothing turns on the distinction among the three phases of the permitting process. All were part and parcel of the applicable regulatory approval process considered in this application. Technically however, there is only one permitting decision and it was made by City Council on July 12, 2023.
[5] The essence of the challenge is that the Applicant believes that the proposed house is too big and too modern in its design and layout. The Applicant submits that the proposed house is out of character with the carefully preserved heritage and culturally significant landscapes of Rockcliffe Park. The Applicant relies on a technical reading of the applicable District Plan to submit that the City’s decision to approve the house was unlawful and therefore unreasonable.
[6] The Applicant also submits that it was denied procedural fairness in the City’s final approval process. It was consulted and engaged fully at the staff and committee stages. But the Applicant was not invited to appear before City Council and it is not clear if its written objections were put before Council by staff.
[7] For the reasons set out below, the application is dismissed. I do not agree with the Applicant’s narrow interpretation of the City’s District Plan. Moreover, the Applicant fulfilled the role provided for it in the District Plan. It made its opposition to the proposed house known loud and clear to the City. The City’s basis for its decision is both readily discernable and reasonable. . Rockcliffe Park Residents Association v. The City of Ottawa
In Rockcliffe Park Residents Association v. The City of Ottawa (Div Court, 2024) the Divisional Court dismissed a JR by a resident's group, here where the issue was the issuance of a heritage permit under the Ontario Heritage Act.
Here the court canvasses provisions of the Heritage Act regarding permit issuance, interaction with local 'heritage conservation district plans', and adequacy of consultation:Applicable Provisions – The Ontario Heritage Act
[24] Much of this case turns on the interpretation of the Rockcliffe Park Heritage Conservation District Plan adopted by the City under the Ontario Heritage Act. Under s. 41.2 (2) of the statute, a heritage conservation district plan trumps the provisions of other by-laws concerning the heritage conservation district to the extent that there is any conflict between them.
[25] Under s. 41.1 (3) of the statute, prior to adopting a district plan by by-law, a municipality must give notice to all owners of land in the proposed district. It must also advertise the proposed adoption of the district plan to the public at large by newspaper.
[26] The statute requires that a draft district plan must include: a statement of the objective of the proposed heritage designation, statements explaining and describing the heritage value or interest of the proposed district, policies and procedures to achieve the stated objectives of the plan, and a description of minor alterations to the exterior of a home that an owner will be entitled to carry out without obtaining a permit under s. 42 of the statute.
[27] Before adopting a district plan, the municipality is also required to consult with the public, hold a public meeting, and consult with its municipal heritage committee if it has one. Any person is entitled to make oral and written submissions to the municipality concerning the proposed heritage conservation district plan.
[28] Subsection 41 (4) of the statute grants a right to appeal to any member of the public who objects to a by-law in which a municipality adopts a heritage conservation district plan.
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[30] This application involves a specific request for a permit by an owner under s. 42 of the Ontario Heritage Act. The relevant parts of the statute provide:Erection, demolition, etc.
42 (1) No owner of property situated in a heritage conservation district that has been designated by a municipality under this Part shall do any of the following, unless the owner obtains a permit from the municipality to do so:
1. Alter, or permit the alteration of, any part of the property, other than the interior of any structure or building on the property.
2. Erect any building or structure on the property or permit the erection of such a building or structure.
3. Demolish or remove, or permit the demolition or removal of, any attribute of the property if the demolition or removal would affect a heritage attribute described in the heritage conservation district plan that was adopted for the heritage conservation district in a by-law registered under subsection 41 (10.1).
4. Demolish or remove a building or structure on the property or permit the demolition or removal of a building or structure on the property.
Exception
(2) Despite subsection (1), the owner of a property situated in a designated heritage conservation district may, without obtaining a permit from the municipality, carry out such minor alterations or classes of alterations as are described in the heritage conservation district plan in accordance with clause 41.1 (5) (e) to any part of the property in respect of which a permit would otherwise be required under subsection (1).
Application for permit
(2.1) The owner of property situated in a designated heritage conservation district may apply to the municipality for a permit to alter any part of the property other than the interior of a building or structure on the property or to do anything referred to in paragraph 2, 3 or 4 of subsection (1) in respect of the property.
Content of application
(2.2) An application under this section shall include such information as the council of the municipality may require.
Notice of receipt
(3) The council, upon receipt of an application under this section together with such information as it may require under subsection (2.2), shall cause a notice of receipt to be served on the Applicant.
Decision of council
(4) Within 90 days after the notice of receipt is served on the Applicant under subsection (3) or within such longer period as is agreed upon by the Applicant and the council, the council may give the Applicant,
(a) the permit applied for;
(b) notice that the council is refusing the application for the permit; or
(c) the permit applied for, with terms and conditions attached.
Consultation
(4.1) If the council of a municipality has established a municipal heritage committee under section 28, the council shall, before taking any action under subsection (4) with respect to an application to do anything referred to in paragraph 2, 3 or 4 of subsection (1) in respect of the property in a heritage conservation district, consult with its municipal heritage committee.
Deemed permit
(5) If the council fails to do any of the things mentioned in subsection (4) within the time period mentioned in subsection (4), the council shall be deemed to have given the Applicant the permit applied for.
Appeal to Tribunal
(6) If the council refuses the permit applied for or gives the permit with terms and conditions attached, the owner of the property may appeal to the Tribunal. [Emphasis added and citations omitted.] [31] The permitting process provided by the statute deems a permit to have been issued within 90 days of the municipality giving notice of receipt of an owner’s application unless the municipality issues the permit, without conditions, or gives notice of refusal of the permit within that time. The process is required to move very quickly. The process requires the municipality to consult with its municipal heritage committee.
[32] Unlike the process for approval of the district plan under s. 41 of the statute, when an application is made by an owner for a permit to build on his or her land, there is no consultation with the public at large, no mandatory public meeting, no guarantee of members of the public having a right to make oral or written submissions, and no appeal rights beyond the applicant owner.
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[66] The City notified the Applicant of Mr. Wang’s application within five days of acknowledging receipt. The Applicant engaged in extensive communications with the City. It knew the issues and availed itself of every opportunity to respond and make its position known.
[67] In s. 4.1, the District Plan invites Applicants for a permit to discuss their plans with the Applicant in advance. It warns people who apply for permits that the Applicant will provide comments that should be provided to staff. In the mandatory provision for new home construction, s. 7.4.2 (3), the District Plan says:These situations will be reviewed on a case-by-case basis in consultation with the community in accordance with Section 4.1 of this Plan. [68] The Ontario Heritage Act and the District Plan both deal expressly with community consultation and engagement. The District Plan provides a role expressly for the Applicant in dealing with applications for new homes. That role involves consulting with staff. Here, the Applicant did far more than that. It made formal submissions, oral and written. It provided evidence to the Built Heritage Committee. It could have submitted an expert report to staff or to the Committee had it been so minded.
[69] Under s. 42 (4.1) of the Ontario Heritage Act, City Council was required to “consult with” the Built Heritage Committee. The statute does not provide a veto right for the Committee. In fact, the Committee has no statutory power of decision in the permitting process. Rather, under s. 28 (1) of the statute, the Committee’s role is “to advise and assist” Council on heritage matters as provided in the statute or by by-law.
[70] I see no basis for the Applicant to have had any expectation beyond the participation set out in the District Plan. What was actually provided to it exceeded the reasonable expectation that can be drawn from the statutory scheme and the District Plan.
[71] The Applicant and the public are provided extensive procedural input for municipal decisions to adopt a heritage district conservation plan. Under the District Plan, the Applicant has a much more limited role when a private landowner applies for municipal approval to alter his or her land. Under the statute, the permit will issue in 90 days unless City Council performs required consultation and limits or rejects the permit. I can see no basis to infer broad participation rights to the Applicant or other neighbours beyond what is provided quite specifically in the District Plan (that itself was adopted after the broadest express requirements for public consultation).
[72] A City Councillor reading the staff report and seeing the recommendation of the Built Heritage Committee would understand that issues addressed between Mr. Wang and staff involved the height, size, and massing of the proposed house to protect the heritage attributes of the neighbouring property and streetscape. The staff report provided expressly:The Rockcliffe Park Residents Association (RPRA) was notified of the application on May 5, 2023. The RPRA's Heritage Committee does not support the application and has provided comments attached as Document 14. [73] While it appears that the Applicant’s submissions may not have been attached to the version of the staff report that went to City Council, it was referred to expressly and was available to any Councillor who wished to review it. But given that the Applicant had no reasonable expectation nor other basis to have a right to be heard by City Council itself, I see no denial of fairness to the Applicant in the process. . Toronto (City of) v. 445 Adelaide Street West Inc.
In Toronto (City of) v. 445 Adelaide Street West Inc. (Div Ct, 2022) the Divisional Court reviewed the basics of the little-litigated Ontario Heritage Act:1. Cultural Heritage Value and the Ontario Heritage Act
[14] The overarching purpose of the Ontario Heritage Act is to provide for the conservation, protection and preservation of the heritage of Ontario, and to this end, the Act confers broad powers upon municipalities to designate properties as being of cultural heritage value or interest, thereby interfering with private property rights.[5]
[15] The scheme of the Ontario Heritage Act has two discrete branches (Parts IV and V of the Act) with respect to land use planning and heritage conservation. Properties can be recognized for their individual cultural heritage value (Part IV of the Act), and, or they can be recognized as a part of a collective “Heritage Conservation District” (Part V of the Act). Part IV of the Ontario Heritage Act sets out the process for individually “listing” and “designating” a property. Part V of the Act sets out the process for establishing a Heritage Conservation District.
[16] For the purposes of this appeal, the most pertinent matter is Part IV of the Ontario Heritage Act. Pursuant to Part IV, s. 29 of the Ontario Heritage Act, a municipality may by by-law designate a property to be of cultural heritage if the property meets the prescribed criteria for determining whether a property has cultural heritage value. Ont. Reg. 9/06 prescribes the criteria for determining whether a property has cultural heritage value or interest. In the immediate case, the City enacted by-laws designating the John P. Jackson House and the Eliza Lennox Houses as heritage properties.
[17] There is a prescribed process for the enactment of the by-law, and if the by-law is enacted then a person who objected to the by-law may appeal to LPAT. On the appeal, pursuant to s.29(15) of the Ontario Heritage Act, after holding a hearing, the LPAT shall: (a) dismiss the appeal; (b) allow the appeal and repeal the by-law in whole or in part; or (c) allow the appeal and amend the by-law in whole or in part.
[18] Pursuant to s. 27 of the Ontario Heritage Act, the clerk of the municipality shall keep a register that includes, among other things, properties that the municipality has designated by by-law.
[19] The Ontario Heritage Act provides that no owner of property designated under s. 29 of the Act shall remove or demolish a building or structure on the property unless the owner receives consent from municipality.
[20] If the municipality does not consent to an owner’s application to demolish the structures on its property, the owner may appeal to the LPAT.
[21] On the appeal, pursuant to s. 34.1 (5) of the Ontario Heritage Act, after holding a hearing, the LPAT may dismiss the appeal or order that the municipality consent to the demolition or removal without terms and conditions or with such terms and conditions as the LPAT may specify in the order.
[22] If the LPAT approves the demolition application, then pursuant to s. 34.3 (1) of the Ontario Heritage Act, the municipality must repeal the by-law under s. 29 of the Act designating the property as being of cultural heritage value or interest.
[23] As explained by the Court of Appeal in Clublink Corporation ULC v. Oakville (Town),[6] (where the issue was whether a golf course was a “structure” that could be designated as being of cultural heritage value,) the Ontario Heritage Act was first enacted as the Ontario Heritage Act, 1974,[7] and the statute was substantially amended in 2005 through the Ontario Heritage Amendment Act, 2005.[8] As explained by Justice Harvison Young, under the original scheme of the Act, the municipality could designate a property as being of cultural heritage value with the effect of delaying any demolition of the property to afford the municipality the opportunity to expropriate the property.
[24] As explained by Justice Harvison Young, in Clublink Corporation ULC v. Oakville (Town), under the current scheme of the Ontario Heritage Act, which was introduced in 2005, the municipality can prohibit demolition by designating the property, but the landowner is afforded a right to apply for the municipality’s consent to demolition, and if the municipality’s refuses consent, then the landowner can appeal to the LPAT (formerly the Ontario Municipal Board). If the appeal of the municipality’s refusal to consent is successful, then the designation by-law is repealed. As Justice Harvison-Young explained at paragraphs 57 and 58 of her judgment in the Clublink case:57. In 2005, significant amendments were introduced to the OHA through the Ontario Heritage Amendment Act, 2005, S.O. 2005, c. 6 (the "2005 Amendments"). In particular, the 2005 Amendments provided the municipality the power to refuse outright -- and not merely delay -- an application to demolish a building or structure on a designated property under s. 34.
58. To counterbalance this expanded municipal power, the 2005 Amendments provided the owner with a binding right of appeal to the Ontario Municipal Board (now the LPAT). The introduction of these expanded procedural protections indicates that, consistent with the 1974 Legislation, the legislature viewed the power of a municipality to refuse outright an application for demolition or removal of a structure as a more profound interference with private property rights. As with previous iterations of the OHA, once the municipality had approved the owner's application -- or the OMB had directed the municipality to approve the application -- the municipality was obligated to repeal the by-law designating the property as being of cultural or historic value or interest. . Toronto (City of) v. 445 Adelaide Street West Inc.
In Toronto (City of) v. 445 Adelaide Street West Inc. (Div Ct, 2022) the Divisional Court sets out some basics of the Local Planning Appeal Tribunal (LPAT), and how it may involve itself with issues of cultural heritage:[31] For the analysis later in these Reasons for Decision, it shall be helpful to keep in mind that from the perspective of land use planning practice and procedure, the LPAT has jurisdiction with respect to a variety of land planning approvals, including matters of official plans, zoning, minor variances, site plan approvals, and subdivision control.
[32] It shall also be helpful to keep in mind for the analysis later in these Reasons for Decision that from the perspective of land use planning practice and procedure, the determination of cultural heritage value might come before the LPAT in three ways, the first of which does not engage the Ontario Heritage Act.
[33] First, the matter of cultural heritage value might come before the LPAT where there has been no designation of the property under the Ontario Heritage Act and the landowner seeks an approval under the Planning Act.
[34] Second, the matter of cultural heritage value might come before the LPAT where there has been a designation of the property under the Ontario Heritage Act and the landowner in addition to seeking some Planning Act approval is appealing: (a) the municipality’s designation of the property; or (b) the municipality’s refusal to allow demolition of the designated property under the Ontario Heritage Act.
[35] Third, the matter of cultural heritage value might come before the LPAT where the landowner is seeking some Planning Act approval and there has been a designation of the property under the Ontario Heritage Act, but the landowner has not appealed: (a) the designation of the property; or (b) the municipality’s refusal to allow demolition of the designated property.
[36] As the description below of the facts will reveal, the case at bar is about the third way that the matter of cultural heritage value may come before the LPAT. As the analysis below of the law will reveal, the third way the matter of cultural heritage value might come before the LPAT is rife with problems.
[37] In the immediate case, 445-Adelaide’s property had been designated under the Ontario Heritage Act, but it took no steps to exercise its rights under the Ontario Heritage Act and sought to have the cultural heritage value of its property dealt with exclusively under the Planning Act, notwithstanding there had been a designation of the property under the Ontario Heritage Act.
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