Saturday, March 11, 2017

Debating Bill C-323

[M]ost of those who have grown to know and love our country's history have travelled that path guided by heritage buildings that were the gateways to the stories of the past.
~ Peter Van Loan, MP (CPC)

The most interesting heritage discussion in Canada right now is going on in Ottawa — in the House of Commons!

This week MPs engaged in a second hour of Second Reading debate on Bill C-323, a private member’s bill that would provide income tax incentives for the rehabilitation of historic places.  The March 9 debate followed a first hour of debate on February 10. [1]

The bill was introduced in Parliament late last year by Peter Van Loan, MP for the Ontario riding of York—Simcoe and Official Opposition Critic for Canadian Heritage and National Historic Sites.  For background on the bill see my OHA+M post from December 21, 2016.

Leaving aside for the moment consideration of the bill itself, it is wonderful to see our representatives, from all three major parties, engaged in a passionate discussion of the importance of our cultural heritage.

These [historic] buildings tell a story about who we are and where we came from. They impart important lessons from the past and remind us about the challenges we have overcome and the accomplishments we have had in this country. In short, they highlight and bring to life those special moments in our history that are worth remembering.
~ Mark Gerretsen, MP (Lib.)

As a private member’s initiative, the bill faces an uphill climb.  As a measure amending the Income Tax Act and affecting government revenues, that climb is especially steep.

At Second Reading a bill is discussed at a high level, with MPs weighing in on whether the concept or principle of the legislation should be supported.  More rigorous scrutiny of the details of the bill comes — if it comes at all — later, when the bill moves on to the committee stage.

So how's it going so far?

Considering that the fate of the bill is in the hands of the Liberal government, one would have to say… there is still reason to hope.

In the first hour of debate last month two Conservatives, three Liberals and three NDP members took part.  Not surprisingly, the two Conservatives, including Mr. Van Loan himself, spoke in favour of the bill.  The NDPers were clear that while they had some concerns they supported the bill in principle, in part because of its “greeness.”

New Democrats have long supported Canadian heritage and we support the goal of this private member's bill of preserving historic stock. … This legislation would help to clear the path for the creation of good green jobs; jobs that are stable, safe, and family-supporting; jobs that do not endanger the climate or the environment; and jobs that help us in the gradual transition away from reliance on fossil fuels.
~ Sheila Malcolmson, MP (NDP)

As for the Liberal MPs who spoke, one said he was “definitely sympathetic” to the bill and asked some good questions.  But the other two — one of whom was the Parliamentary Secretary to the Minister of Finance — were much more guarded.  While not saying the legislation was a bad idea, they made the point that “tax changes should ideally be made as part of the budgetary process”, since obviously a new tax credit is going to cost something in terms of foregone revenue. [3] They also mentioned the government’s 2016 commitment to undertake a “comprehensive review of tax expenditures”, part of a broader exercise to “eliminate poorly targeted and inefficient programs, wasteful spending and ineffective or obsolete government initiatives.”

Both these points seem to suggest that, in the eyes of the government, the timing of the bill is not great.

Rather than simply dismiss the bill on that basis, the Liberal critique — and this could actually be construed as a more positive sign — went on to identify several substantive issues (some more coherent than others):

  • cost/lack of cost controls — many thousands of properties would be eligible; no caps on amount of tax credits
  • effectiveness — would tax credits actually promote preservation or just provide a perk to owners “for doing work that they are already obliged to do”
  • inequality/unfairness — people who own designated property would be eligible while their neighbours who don’t would not, ”even though costs are incurred in both cases”
  • need — there are already tax incentives for donations to preserve heritage buildings
  • potential administrative burdens — could the system handle the expected increase in heritage designations; what about the burden on the Canada Revenue Agency 

One might observe that less-than-ideal timing of a bill should not be a fatal flaw.  Nor should specific policy and administrative criticisms and concerns, if they can be countered, fixed through amendments or addressed through implementation planning.

Across the country, Canada's built heritage reminds us of where we came from and where we have been along the way. From the smallest rural towns to our grandest cities, the history contained within these buildings forms what it means to call our communities home.
   ~ John Aldag, MP (Lib.)

Remarkably, a month later during the continuation of Second Reading debate on March 9, all MPs spoke forcefully in support of the bill

Speakers comprised three Conservatives, including Mr. Van Loan, two Liberals and one NDP member.  The Liberal members did not raise any of the issues mentioned previously.  Mr. Van Loan, who spoke last, took the opportunity to thank “all those who have spoken in support of this from all sides of the house”, adding:

It is indeed, as those addresses indicate, a non-partisan bill. This is not a partisan effort. It is very much a product of the work of previous governments, both Liberal and Conservative, under which the foundations of this tax credit have been developed in this proposal, and it is a benefit to all of Canada. That is why all of us are indeed advocating for it.

He then went on to address some of the criticisms voiced on February 10.  He punctured the inequality argument, saying that what was unfair was that private owners of designated properties were effectively providing a public benefit with little/no help.  With respect to the need for the measure, he pointed out that existing tax rules may benefit donations to preservation charities but not the preservation efforts of private businesses and individuals.

Finally, in response to the cost concerns, Mr. Van Loan said that the costs were calculable and would be “very modest.” [3]

What’s next?  Second Reading debate is concluded and the vote is scheduled for March 22.  If the bill isn’t killed, it’s on to committee!

* * *

I was happy to see my MP, John Nater, the Conservative representative for the riding of Perth—Wellington, participate in the March 9 debate.  His remarks included a personal story:

There are many beautiful older buildings in my riding…. In fact, my Wellington county constituency office is in one such heritage building. It is a beautiful old post office. It was the Harriston town post office for many years. … Shortly after I was elected, I was able to take a tour of the building and to see the state of repair it was in at the time. Thanks to a hard-working local family, it took ownership of the old post office and restored it to an exceptionally high level of standard. Now my constituency office in Wellington county is located in that building. It has been renamed the “Old Post” and is now home to a number of different local businesses and community groups. I am proud to have played a small role in the restoration of that building.

It was no surprise that Mr. Nater is backing Bill C-323.  He had assured me as much in his reply to my letter urging his support.

Have you written to your MP?  If not, this is the time!




Note 1: See Hansard for February 10 (first hourand March 9, 2017 (second hour) and scroll down to Private Members’ Business.

Note 2: Part of the case for the tax credits is that, while they reduce income tax for the taxpayer in the year of filing, over time there is a more-than-offsetting increase in tax revenue as a result of the returns on investment they stimulate. This argument is sounder in the case of a commercial, income-producing rehabilitation project than for a home restoration.

Note 3: Less clearly, Mr. Van Loan suggested that the government would have some control over the number of properties eligible for a tax credit since only properties on the Canadian Register of Historic Places qualify. In fact, under his bill properties designated under the Ontario Heritage Act and similar legislation could also be eligible.

Thursday, February 23, 2017

2017 Heritage Week plaques and stats

The 1867 Eden Mills Hotel, Eden Mills


Hope y’all are having a great Heritage Week!  With Canada/Ontario 150 this year, it’s the perfect time to celebrate achievements and take stock. 

My local branch of Architectural Conservancy Ontario holds its annual Heritage Week celebration in Stratford tonight.

We’re using the occasion to mark an important milestone — the 200th application to our Historic Plaque Program.



Launched in 2011, the Historic Plaque Program is the marquee program of the Stratford/Perth County Branch.  As of today, almost 210 plaque applications have been received, with about 35 in 2016.

The purpose of the program is to recognize and promote the architecture and history of older buildings in the city and county by providing owners with handsome and publicly visible plaques, while also raising funds for branch activities.

Plaques include the date the building was built, the name of the first owner or occupant, the occupation (and sometimes employer) of that person, and the name of the branch.  The plaque is rather large in size (20” by 14”) and is made of plastic (yes, they hold up quite well).  Plaques are mounted on the wall of the structure in a place clearly visible to the passerby.



A one-page report or monograph summarizing the research undertaken by members of our plaque committee, including a photograph of the building, accompanies the plaque.  The report is also posted on the branch website.

The plaque application fee is $125, of which approx. $90 covers the cost of the plaque and the balance goes toward branch operations. The applicant receives a tax receipt for $30.  Along with membership dues, the program is the chief source of branch funds.

Happy plaque recipients

So far almost all plaque applications are from Stratford and are for houses.  On a few streets in particular the program has really caught on, with every second or third house sporting a plaque.  Outside the city there are now three plaques in St. Marys and five in rural areas of the county.

It may not surprise you to know that a chief selling feature of our plaques is that they do not involve designation under the Ontario Heritage Act!

* * *

I’m also proud that this Heritage Week marks the second anniversary of this blog, OHA+M!

For those who have been with me from the start, you may recall that the second post to the blog, from February 27, 2015, was on the subject of stats: “Good heritage stats are hard to find!” [1]

Thinking it might be time for an update, I approached the good folks at the Ministry of Tourism, Culture and Sport.  Here’s the latest unofficial figures (thank you, Bert!):

  • 125 Heritage Conservation Districts now in effect (up from 115 in ’15)
  • 48 new HCDs (incorporating over 9,500 properties) have come into effect since the 2005 OHA amendments (up from 38)
  • 5 new HCD designation by-laws appealed to the OMB and not yet in effect (compared to 9 in that position in ’15)
  • Over 1,400 properties protected under Part IV of the OHA since the 2005 amendments (up from 1,200)
  • Over 6,900 properties individually protected under Part IV from 1975 to the present (up from 6,700)
  • Over 22,600 properties protected as part of an HCD under Part V from 1975 to the present (up from 19,100)
  • 151 municipal heritage committees (down 1 from ’15)

With respect to municipal Heritage Property Tax Relief (HPTR) programs:
  • 46 (41 lower/single tier and 5 upper tier) municipalities have now passed a by-law enabling them to provide HPTR (up from 42 in 2014)
  • $5.184 million in HPTR was paid out province-wide in 2014, of which $3.01 million came from lower/single tier municipalities, $26,871 came from upper tier municipalities — and $2.146 million came from the province (up from a total of $4.48M and $1.86M from the province in 2013)

Trends?

Individual designation activity seems to have recovered with about 100 by-laws passed in each of the last two years, up from 78 in 2014.  But still well down from the high point of 155 in 2008.

HCD activity continues very strong.  And it appears that fewer new HCD designations are being appealed to the Ontario Municipal Board, perhaps as a result of the Board’s recent track record.  As MTCS’s Andrew Jeanes observed: “OMB decisions regarding HCDs have been quite consistent in finding that if the municipality followed the process appropriately (including recommendations in the Ontario Heritage Tool Kit, as well as what’s specified in the OHA itself), then the appeals have no merit.”

HPTR continues in the right direction if lanquidly.  The observations in the 2015 OHA+M article “Heritage Property Tax Relief — slow but steady?” continue to hold. [2]

Back to the local, I’m pleased to report that after a few years of study, and a hiccup or two, St. Marys is on the brink of creating an HPTR program.  That will make 47!

The 1867 Westover Park, now the Westover Inn, St. Marys



Wednesday, February 8, 2017

Alteration, demolition — and partial demolition?



As is often pointed out, retaining just a historic building’s façade keeps a small part of the structure while trashing the rest.

I won’t wade into the debate about façadism. But it’s interesting to look at how we treat façade retention in our approvals process.

Last time, we looked at an (alas, all-too-common) proposal for redevelopment of a row of designated heritage buildings on Hamilton’s Gore Park. Two of the buildings were to be completely demolished — and the owner submitted an application for demolition. The other two, by renowned architect William Thomas, were also to be torn down — except for one wall (the street façade) that would be retained and restored — and the owner submitted an alteration application.

Isn’t it kind of strange that a 100 per cent demolition and a 90+ per cent demolition would be treated differently?

Mostly this is owing to our bifurcated approvals process, an entrenched part, for good or ill, of Ontario’s heritage protection regime. Alteration to Part IV (individually) designated properties follows the procedures set out in section 33 of the OHA, while demolition/removal follows those in section 34. Before the 2005 amendments to the Act, as today, an application for alteration could be approved by municipal council, approved subject to terms and conditions, or refused.

An application for demolition/removal on the other hand could be approved or refused. But a refusal would start the clock ticking on a six-month “waiting period”, after which the applicant could merrily proceed with the demolition/removal. [Note 1]

As for appeals… since a municipality couldn’t ultimately stop a demolition, there was no need for an appeal from a refusal. Refusal to okay an alteration, however, could be “appealed” to the Conservation Review Board, which, as the name suggests, reviews the council’s decision and makes a recommendation back to the municipality as to whether the alteration should be approved, with the council making the final decision on the alteration.

Since 2005 municipalities have been able to effectively say no to demolition, but along with that power came the owner’s right to appeal (either a refusal to demolish or an approval of demolition subject to terms and conditions) to the Ontario Municipal Board.


* * *

Parenthetically, there was great debate within and outside the culture ministry about whether to give this role to the OMB, which at the time had a much worse reputation in heritage circles than today. But the alternatives were the Conservation Review Board or a new body. The CRB, with its historical “review” mandate and almost exclusive focus on the worthiness of designations, seemed a poor fit, and creating a third heritage tribunal was pretty much a non-starter. With the OMB’s pivotal role in our land-use planning system, the argument went, giving the board this new function would help better integrate heritage protection into mainstream planning. It was also felt the Board would “grow into” the role as its familiarity and competency with heritage issues improved.
* * *

The difference today between applications to alter and those to demolish is not so much what kind of decision really gets made in the first place but the kind of appeal you can make — on alterations, to the CRB for a recommendation and then back to council for a final decision or, on demolition, to the OMB for a binding decision.

Now, faced with a choice about which appeal route they’d prefer, most applicants would opt for the OMB. But there is no choice in practice — it’s either an alteration (CRB) or a demolition (OMB), right?

The OHA defines alter as “to change in any manner and includes to restore, renovate, repair or disturb and ‘alteration’ has a corresponding meaning.” Demolition, though, is not defined. This is presumably because it has a pretty straightforward meaning, such as, from one dictionary, “to destroy or ruin (a building or other structure), especially on purpose; tear down; raze.”




Hence the long-recognized principle that anything short of flattening the site is legally an alteration rather than a demolition. The Official Plan of Ontario’s largest city makes this explicit: While alteration is defined as in the OHA, demolition is defined as “the complete destruction of a heritage structure and property from its site, including the disassembly of structures… for the purpose of reassembly at a later date.” [Note 2]

So, back to façadism, if a few feet of a side of a building are all that is kept, this is an alteration not a demolition.  Or is it?

* * *

In Rams Head Development Inc. v. Toronto (City) a developer applied to demolish a designated three-storey building at King and Sherbourne streets in Toronto, proposing to reconstruct the two street façades later as part of its redevelopment of the site.  The city refused and the developer appealed to the Ontario Municipal Board.  The developer also revised its proposal so as to retain in situ the two walls of the building and amended its demolition application accordingly. [Note 3]

At the outset of the hearing the OMB heard an argument that it had no jurisdiction to decide the appeal on the grounds that the revised proposal “constitutes an alteration affecting the heritage attributes of a property designated under Part IV [of the Act].”  But the appeal was intertwined with the appeal of planning decisions and the city didn’t push the point.

The Board nonetheless chose to address the issue and decided it had full authority to decide the appeal including (per the demolition appeal provisions of the OHA) the possible imposition of terms and conditions concerning the retention in situ of the two walls — which is what it ended up ordering.

Some have interpreted this decision as saying that the OMB has jurisdiction over cases involving the “partial demolition” of designated structures.  And, based on this, that the lesson here is that applicants who are proposing to take down some part of a heritage structure — small or large — should frame their applications as ones for demolition, giving them the right to appeal to the OMB, rather than for alteration.  In other words, that there’s a choice. [Note 4]

Partial demolition?  Mmmn.  On such a reading the decision flies in the face of the longstanding either-or, pregnant-or-not view of alteration and demolition.  It would also throw a wrench into the City of Toronto’s codification of the distinction.

To be clear the Board in Rams Head did not use the term partial demolition nor make any claim for jurisdiction over such situations generally.  The case had come before it as a bona fide full-demolition appeal and then, as the parties attempted to reach a compromise, morphed into one about how many façades should be retained.  Neither party challenged the Board’s continued jurisdiction and indeed the Board did not even need to rule on the question. When it did, all it said was that in the circumstances of the case the Board had the authority to impose the final two-façade solution.

Bottom line?  In my view this case cannot be relied on as a) widening the accepted definition of demolition at the expense of alteration, and therefore b) extending the OMB’s purview to disputes involving less than (full) demolition.  Sorry, there’s no real flexibility to pitch your alteration application as a “partial demolition.”

* * *

In a heritage conservation district of course, with just one process for both alteration and demolition, it’s much simpler…

Note 1:  Technically this was the case only up until 2002. Between 2002 and 2005 the owner still had to wait out the 180 days but also needed a building permit for a replacement building before the heritage building could be demolished.

Note 2:  See page 3-20 of Toronto’s OP: 

Note 3:  OMB Case No. PL090501 (November 4, 2010): 

Note 4:  The law firm Aird and Berlis takes this view: see http://www.lexology.com/library/detail.aspx?g=a39edc30-8d2b-44e5-be4a-af9e9d6522ec.

Monday, January 9, 2017

For Hamilton's Gore it's crunch time!

UPDATE: Hamilton Planning Committee met on January 17th and approved the two heritage permits: to retain the facade of 18-22 King Street East and to demolish the neighbouring buildings at 24 & 28. City council gave final approval on January 25th.

The Friends of the Gore have launched a last-ditch campaign to petition the province to intervene to save this fine heritage row. You can can lend your support here: 
https://www.change.org/p/eleanor-mcmahon-intervene-to-halt-demolition-of-heritage-buildings-on-gore-park-hamilton.

Wednesday, December 21, 2016

Finally, a federal tax incentive for heritage?



In a surprise move legislation has been introduced in Parliament that would provide income tax incentives for restoring heritage buildings in Canada.

Peter Van Loan, MP for the Ontario riding of York-Simcoe and Conservative Critic for Canadian Heritage and National Historic Sites, introduced a private member’s bill in the House of Commons on December 1st.

Bill C-323 would amend the Income Tax Act to create a 20% tax credit for the costs of rehabilitation of recognized historic places.  It would also provide an accelerated capital cost allowance for capital expenditures incurred in rehabilitation projects. [Note 1]

Passage of Bill C-323 would be a real game-changer for built heritage in this country. To quote the National Trust for Canada: “These two tax measures would transform the economic fundamentals for renewing historic places.” [Note 2]

MP Van Loan, interestingly, has degrees in both law and planning and, before entering politics, was both a planning and development lawyer and a professor of planning.  On introduction of his bill Mr. Van Loan said: “It is designed to help those who invest in our cultural heritage.”  He went on to say:

It is a meaningful measure to strengthen heritage infrastructure. By maintaining historic buildings and undertaking costly heritage renovations, citizens undertake a considerable private burden from which we all benefit through the preservation of our past and the places that have made our country. This bill seeks, in a small way, to provide some support for them for the considerable investment they make on behalf of all of us.
     
With the 150th anniversary of Confederation nearing, this bill is an opportunity for all members of the House to show their support for preserving Canada's built heritage. These changes will help save our most important historical structures for our children and grandchildren to enjoy for generations to come.

It remains to be seen if the legislation has legs.



Very few private members’ bills become law.  And the vast majority that do are for minor things like changing the name of the riding represented by the member.  A bill affecting taxes, and therefore government revenues, is another matter.

The rules governing our Parliament say that a private member cannot introduce bills which impose taxes (this power rests solely with the government).  But private members’ bills which reduce taxes or provide or increase a tax exemption are acceptable… if not usually welcome.

A hopeful sign — the government is so far not openly opposing Bill C-323.

In terms of the timeline, after the Christmas break the House resumes sitting at the end of January 2017.  Sources suggest the bill may be called for Second Reading in February or March — which opens up the possibility that the debate and vote on the main principles of the bill that occurs on Second Reading might even take place during Heritage Week!

If (and it’s a big if) the bill clears that hurdle it would then be sent to committee, probably the House Standing Committee on Environment and Sustainable Development, for more detailed consideration and possible amendment.  At this stage there is also the potential for public hearings on the bill.  [Note 3]

* * * * *
Interior of the Alton Mill Arts Centre, Alton

Bill C-323 cannot proceed without government support.  The government will be waiting to see what attention the bill garners and the public’s reaction.  If they’re taking it at all seriously, you may be sure the legislation is already undergoing scrutiny every which way.  It’s even possible that the government could seize the initiative and introduce their own bill.

This is not so far-fetched.  The previous Liberal government was piloting something very similar.  In 2003, as part of that government’s pivotal Historic Places Initiative, then Minister of Canadian Heritage Sheila Copps announced a $30 million fund for the restoration and rehabilitation of commercial heritage properties.  Known as the Commercial Heritage Properties Incentive Fund (CHPIF), the program reimbursed 20 per cent of eligible costs to a maximum of $1 million.  CHIPIF ran for three years and assisted some 49 projects across Canada including the Distillery District in Toronto and the Alton Mill in Alton.


Toronto's Distillery District

At the time it was widely understood that the Chretien government was using a short-term grant program to test the water before committing to a more permanent U.S.-style income tax incentive … just like that in Bill C-323!

All to suggest there is some reason for optimism about the fate of this initiative.  But — and nota bene — public support early in the New Year will be critical.



-----0-----


Hard to believe … but this is OHA+M post number 50!! Who knew there was so much to say about heritage policy?!

And so much interest — thank you! This blog (and blogger) could not have made it this far without your encouragement and support.

Happy holidays!

Dan




Note 1: The bill is here: http://www.parl.gc.ca/content/hoc/Bills/421/Private/C-323/C-323_1/C-323_1.PDF. Note that the measures in the bill are largely aimed at commercial (income-producing) property, although the 20% tax credit would also apply to owner-occupied residential property. While in Ontario Part IV-designated property clearly would be eligible, it is less clear whether properties designated under Part V would qualify.

Note 2: See NTC’s call-to-arms and backgrounder here: 

Note 3: See: http://www.parl.gc.ca/Committees/en/ENVI. The committee is composed of 10 members: six Liberals, three Conservatives and one New Democrat. One of the ways to kill a bill is to send it to committee but never have it brought back to the House for Third Reading and passage.

Sunday, December 4, 2016

The OMB under review (again)


Ontario is in the final stages of the latest public review of the 110 year-old Ontario Municipal Board.

Municipal Affairs Minister Bill Mauro — together with Attorney General Nasir Yaqvi, who is involved because the court-like OMB reports through the AG’s office — released a consultation document on OMB reform in October. [Note 1]

The consultation document sets out a number of changes the government is considering based on what it's heard during previous consultations on the future of the OMB and since the current review was launched back in June. These views include:

  • people feel they don't have a meaningful voice in the process
  • more weight should be given to municipal decisions
  • OMB decisions are unpredictable 
  • hearings cost too much and take too long
  • there are too many hearings; more mediation should be used 

The document asks 24 questions about the proposed changes and calls for feedback by December 19, 2016.

One change that is not being considered is abolishing the Board altogether. “The Ontario government sees a continuing need for the OMB in Ontario’s land use planning system”, says the discussion paper. [Note 2]  Rather, the focus is on changes to the Board’s scope (what it deals with) and effectiveness (how it operates) within that system.

The most interesting discussion has to do with scope.  Scope in terms of which matters end up coming before the Board, and which don’t, as well as the nature of the Board’s review of those matters — whether the Board continues to deal with these matters de novo (by considering the same issue that was before the initial decider fresh); or whether its authority is restricted in some way, giving the municipality’s or province’s decision more weight.

What could this mean for the conservation of cultural heritage in the province?

Hard to say, but probably not much.

* * * * *

As context, let’s review the ways the Ontario Municipal Board gets involved with cultural heritage resources.

While it also has a role in a number of non-planning matters, the Board’s primary function is that of an appeal body on land use planning issues, and most disputes that come before the Board are appeals under the Planning Act.  The Planning Act provides for appeals to the OMB from decisions on the use of a wide range of planning tools, any of which may have a heritage component or impact.  These include (with approximate figures for the five with the greatest number of OMB files in 2014/15):

  • Official Plans/amendments — 180 files
  • zoning changes — 350 files
  • minor variances — 575 files, by far the largest!
  • consents (for severances) — 235 files
  • subdivision plans — 80 files
  • refusal to approve demolition in demolition control areas (designated for the purpose of protecting residential property)
  • refusal to remove holding by-laws
  • interim control by-laws
  • site plan controls
  • Minister’s zoning orders  [Note 3]

In hearing an appeal of a municipal or provincial decision on these types of planning matters, the Board’s job first and foremost is to ensure that the decision is “consistent with” the provincial planning policies in the Provincial Policy Statement.  These policies include the five Cultural Heritage Policies in section 2.6 of the PPS, among them the oft-cited policy 2.6.1: “Significant built heritage resources and significant cultural heritage landscapes shall be conserved.”  The Board also looks for compliance with the Official Plan (approved by the province or an upper-tier municipality) and any other applicable plans, such as the Growth Plan for the Greater Golden Horseshoe or the Niagara Escarpment Plan.

The OMB also hears appeals from decisions on the exercise of some (although not all) heritage mechanisms under the Ontario Heritage Act:

  • refusal to approve the demolition of a building or structure designated under Part IV of the Act
  • refusal to approve the alteration of property, the demolition of a building or structure, or new construction in a heritage conservation district designated under Part V
  • designation of a heritage conservation district
  • designation of a heritage conservation district study area (for the purpose of prohibiting or restricting alteration and development for up to a year)

* * * * *

A major thrust of the provincial discussion paper is reminding the reader what the province has already done to address the concerns with the OMB cited above. It’s almost as if the province is saying, we’ve made many, many changes previously but for those who think there’s still a problem we’re prepared to consider some further things… what do you think of these ideas?

To my mind, the ideas for the most part amount to little more than tinkering.

A prime example has to with the “scope” issues.  The changes the province is floating include:
  • limiting appeals to the OMB on more provincial land use planning decisions: Minister’s zoning orders could not be amended by the OMB; provincial decisions on OPs could not be appealed to the OMB (appeal of entire OPs or their approval by the province is already verboten; this change would simply allow the province to say which parts of its decision, i.e. on which parts of the plan, could not be appealed) 
  • no appeal of a municipality’s refusal to amend a new secondary plan for two years 
  • no appeal of a municipal interim control by-law

No bold moves here — like, say, removing appeals to the OMB on minor variances or consents, major items contributing to the OMB’s heavy workload (not that this would be a good idea necessarily, but it’s not even considered). [Note 4]

Now consider the discussion of the question of de novo hearings and giving more weight to municipal decisions.

As the paper points out, since 2007 the OMB has been required to "have regard to” the earlier decision that is being appealed. (This has always struck me as somewhat disingenuous: how could an appeal body not pay attention to the decision it was asked to overrule?)

Now the government is looking at a further “possible change” to move the Board away from de novo hearings.  “If this were to occur, it would mean the OMB would focus on the validity of the decision under appeal instead of seeking the ‘best’ decision.”  How might this be achieved?  The documents suggests two ways:
  • requiring the OMB to review municipal/approval authority decisions on a standard of reasonableness. That means OMB hearings would examine whether the original decision was within a range of defensible outcomes within the authority of the municipality/approval authority.  If the decision is found to have been made within that range of outcomes, the OMB would not be able to overturn it
  • authorizing the OMB to overturn a decision made by a municipality/approval authority only if that decision does not follow local or provincial policies. This would mean that the Board would have to be convinced that the planning decision under appeal is contrary to local or provincial policies. Examples might include approvals of proposals for development in a flood prone area or a provincially significant wetland, or an official plan that does not meet the Growth Plan for the Greater Golden Horseshoe intensification targets [Note 5]

Oh dear.  These strike me as ways of just doubling down on the current “have regard to” requirement.  With the first… well, more time will be spent on arguments over whether the decision under appeal is “reasonable” — and therefore not within the Board’s power to overturn — than on the planning issue itself.

The second is no better.  In a policy-led planning system, which is supposedly what we have, what kind of restriction is it to tell the OMB it can overturn a decision “only” if the decision doesn’t follow provincial or local policies.  Seriously, who goes before the Board and argues, “I know this decision complies with the OP and the PPS, but it’s bad so please overturn it”?

I suspect the government knows this and is just trying to appear to be open to change.  Unlike in other areas, it is careful not to say that it is proposing these reforms, just that here are some ideas “if” there is to be a shift away from de novo hearings.

I for one hope there isn’t.

Thoughts?



Note 2: Page 3. The main reason seems to be that the existence of the OMB minimizes impacts on the courts. Also note that municipalities have had the power since 2007 to establish their own appeal bodies to deal with consent and/or minor variance appeals. Doubtless because of the expense involved, none have so far done so, although Toronto apparently has the process underway.

Note 3: Source for numbers: “Planning Act Files Received by the OMB by Application Type” on page 11 of the discussion document. The total number of OMB Planning Act files for 2014/15 was 1,535.

Note 4: See Note 2 re the scope of municipal appeal bodies.

Note 5: Page 19.