THE ROAD AHEAD FOR ONTARIO'S CONSERVATION DISTRICTS

Notwithstanding the requests for review of the Campbell decision because of a contradictory decision issued by Marc Denhez about eight days beforehand, unless the Campbell decision is overturned it will set the standard for Ontario practice. The key legal pointbetween the two decisions was whether or not a District Plan passed before 2005 enjoys the enhanced provisions of the new Ontario Heritage Act, ie. a municipality cannot pass a bylaw that contradicts the District Plan. Campbell says no, the pre-2005 plans must be upgraded to meet the standards of the new Act; Denhez says yes - the pre-2005 District Plans were grandfathered.

What would this mean for the Cabbagetown District for example, which is subdivided into five smaller Districts, three passed before 2005, two afterwards, but all the plans are nearly identical. Does the Campbell decision mean that only 2/5 of the District is fully protected?

Many in the room favoured the Denhez interpretation. Why would all Part IV designations have been grandfathered to get the protection of the new Ontario Heritage Act, yet Part V designations (HCD's)? divided into two categories?

For lawyer Jane Pepino, this point of law was critical in whether or not the St. Catharines council could give permission for the development. Dan Schneider, senior policy advisor at the Ministry of Culture doesn't think that the Campbell decision hinges on this point, and that even if the OMB sides with Denhez, he believes the interpretation would not materially alter the OMB's approval of the development. Jane Pepino, firmly disagreed with Mr. Schneider.

Madamme Hubbard, OMB chair issued her response to the request for a review of the OMB decision May 4. Mr. Schneider's prediction was right on the money. Hubbard refused the request for a review of the decision at the same time acknowledging the error in law regarding the pre-2005 districts. Hubbard re-confirmed Denhez's interpretation that a plan passed before the New Act did not need to be re-passed under the 2005 Act to enjoy the "enhanced protection" available under the 2005 Ontario Heritage Act.

Toronto and other cities have been of the view that it is not possible to upgrade a plan without opening the designation process to appeal. On the other hand Vaughan has simply passed a bylaw adopting existing HCD plans under the new Ontario Heritage Act. George Rust'D'Eye, one of Ontario's most respected municipal lawyers, agreed that it should be possible to amend the HCD bylaw without opening the question of the designation. Ministry of Culture guidance on appropriate process is needed here.

Ms. Pepino cautioned that development lawyers are starting to look to the Campbell decision as a way of breaking pre-2005 District Plans so municipalities need to act fast to upgrade protection. The big question of the day is where will all the resources come from to do the work needed to meet the "Campbell standard". Another issue is the need for intervenor funding to allow communities to defend their HCD's at the OMB.

Pepino stressed that District Plans are going to need much more discussion of both principle and detail, and that it will take highly qualified experts to draft them. Everything of significance needs to be recorded in the Plan, which buildings, landscape elements are to be protected. "The language of guidance must be replaced by the language of regulation" commented fellow presenter Wayne Morgan. The soft language of avoid or preferred must go in favour of must, will, and shall so that there is very clear instructions to property owners, municipal decision makers, and the OMB.

Morgan also commented on the desirability to have more than one OMB member on such a long complicated hearing and the need for a Conservation Review Board (CRB) member as part of the panel when heritage is involved. At the moment the Memorandum of Understanding between the OMB and the CRB gives the OMB the power to decide whether they want to have additional expertise. There have been two decisions in Oakville where a CRB member was requested by the municipality. In one case the CRB was not able to provide anyone for the time requested, in the most recent request The OMB has declinde to include a CRB member, citing sufficient heritage expertise within the OMB. It was suggested that the Ministry of Culture initiate a discussion to change the MOU.

Another issue is the way the OMB chose to "balance" different parts of the Provincial Policy Statement (PPS). The OMB felt that they were not obligated to give heritage more consideration than the need for revitalization and intensification. In Morgan's view this is inappropriate. When Council has established an HCD then the municipality is making a clear statement that the municipal priority in this area is on conservation.
Another place where heritage may be "balanced" out of existence is in communities governed by the Ontario Places to Grow Act. The legislation requires that heritage be conserved "where feasible". "Where feasible" needs to be defined. Following the 2007 Ontario Heritage Conference resolutions the ACO wrote to the Minister of Infrastructure to have this section of the legislation reviewed, or better have "where feasible" deleted. No response so far.

Morgan cautioned against "zingers" in the heritage sections of the O.P, ie. things that might suggest that there are conflicting priorities. The Port Dalhousie plan contained a motherhood statement encouraging economic revival of the commercial part of the district, but was not clear whether that was to take place within the existing commercial buildings.

An emerging theme of the day was a call for the Ministry of Culture to become more proactive in assisting municipalities to "get it right" in the first place, and in guiding the OMB on the intent of the legislation. Dan Schneider commented "We [at the Ministry] are not the experts". He noted that once the legislation is passed it has a life of its own and the "experts" are in the field. Lawyers, heritage consultants, and municipal staff look to the legislation and have to "rely on what it says".

It seems that what is said is not always what was intended. It is also clear that the moment is here to start plugging the policy loopholes that are appearing.

Shortly before the new Ontario Heritage Act was passed, Anthony Tung was here to speak at the Hamilton ACO/CHO conference. He commented that we would find that a binding law required much more specific regulation to be in place. Seems his prediction is proving to be exactly right. It will take a great deal of collaborative effort and discussion to put in place appropriate heritage practice. Many who were there agreed to become part of an HCD network to continue discussions of best practice. The Ministry of Culture must become a very active partner in that process.