RECOMMENDATION:

THAT the staff report entitled “Comments on Bill 60 – An Act to amend the Ontario Heritage Act”, dated November 30, 2004, be received;

THAT the Council of the Town of Markham congratulate and commend the Province for its commitment to the further conservation and protection of heritage resources, especially in the area of demolition control, heritage property standards and delegation of approval authority, as illustrated in the proposed amendments to the Ontario Heritage Act;

THAT Markham Council generally supports the proposed changes to the Ontario Heritage Act as presented in Bill 60, An Act to amend the Ontario Heritage Act, but specifically requests the provincial government, through the Ministry of Culture to consider the following amendments:

That section 12 of Bill 60 be revised to indicate that the Ontario Municipal Board shall (rather than ‘may’) appoint a member of the Conservation Review Board to sit on a panel of the Board conducting an appeal under this Act for the duration of the appeal [25.1 (1)].
That development of standard designation criteria, which is to be prescribed by regulation, be undertaken in consultation with municipal stakeholders, many of which already have criteria in place.
That section 19 of Bill 60 be revised to include the revision of a designated property’s legal description as a permitted amendment to a designation by-law [30.1(1)].
That section 29 of Bill 60 be revised to include a provision whereby a heritage conservation district study area may be created for a one year period with the council of the municipality having the ability to amend the by-law to extend the period of time during which it will be in effect provided the total period of time does not exceed two years from the date of the passing of the by-law [40.1(1)].
That Part IV of the Act be amended to allow a property owner to apply to the Province for heritage designation of his property where a municipality is unable or fails to designate upon request.
That the Act be amended to allow municipal councils to designate properties, buildings or structures owned by the Province and its agencies.

7. That section 69 of the Act be amended to include in addition to the existing fine provisions, a new provision that would allow the Court to order the offender to restore the property, building or structure, as nearly as possible, to its previous condition.

8. That the Act be amended to include a provision for a one year limitation period to commence a prosecution of an offence under the Act starting from the date that the municipality discovers the offence.

That section 30(1) and (2) of Bill 60 be amended to ensure that the date that the voiding of permits and the interim control of alteration, demolition or removal becomes applicable is the date of Council passing an intention to designate rather than the date notice is served on the owner of the property, on the proposed Trust, and published in a newspaper.
That the Act be amended to allow a council of a municipality to authorize an identified municipal employee, by by-law, the authority to issue a stop order with respect to property in the municipality that may be of cultural heritage value or interest for a specified period of time (60-90 days) to prevent the alteration of the property, any damage to the property or the demolition or removal of any building or structure on the property while the municipality investigates the potential designation of the property.

THAT Council endorse this report and submit it to the Province as the Town of Markham’s comments on Bill 60 – An Act to amend the Ontario Heritage Act.

THAT the Town Clerk be requested to forward a copy of this report to the Committee Clerk of the Standing Committee on Justice Policy before 12 noon on December 1, 2004, as well as to the Minister of Culture, the Ontario Heritage Foundation, Community Heritage Ontario, Ontario Historical Society and Heritage Markham.

PURPOSE:

The purpose of this report is to review the proposed changes to the Ontario Heritage Act as presented in Bill 60 – An Act to amend the Ontario Heritage Act, and to provide comments to the Minister of Culture through the Ontario Legislature’s Standing Committee on Justice Policy. The deadline for written submissions is 12 noon on December 1, 2004.

EXECUTIVE SUMMARY

The proposed amendments to the Ontario Heritage Act in Bill 60 represent a significant commitment by the Provincial Government to the conservation and protection of the province’s heritage resources. The amendments would provide many of the necessary tools for municipalities to undertake a successful heritage conservation program. A number of the proposed amendments formally recognize processes and procedures that already exist in Markham, such as maintaining a heritage inventory, delegation of Council’s approval authority for alterations, and the preparation and adoption of heritage conservation district studies and plans. Although the amendments are comprehensive in their scope, it is recommended that the Ministry of Culture consider the proposed modifications in this report and the recommendations for the areas of concern that are not addressed in the current amendments.

BACKGROUND:

Ontario Heritage Act has a number of deficiencies

The Ontario Heritage Act was enacted in March 1975 to enable municipalities to protect buildings and areas of historic and architectural significance. However, since its creation, a number of deficiencies with the Act have been noted. The problems associated with Act include inconsistencies, lack of clarity, implementation issues and weak controls. The Act is significantly limited by its inability to provide heritage properties with permanent protection from demolition.

A number of minor amendments have occurred over the years to address some of the procedural and administrative concerns. Since the mid-1980s, a number of provincial governments have attempted to address the major deficiencies and introduce significant improvements to the Act or replace the Act with new legislation. These initiatives were not successful. It was not until 2002 that a number of significant changes were made to the Act.

Former government amended the Act in 2002

Previously, the Ministry of Culture made changes to the Ontario Heritage Act as part of the Government Efficiency Act which received Royal Assent on November 26, 2002. The Manager of Heritage Planning was involved in the consultation discussions with the then Minister, the Honourable David Tsubouchi and his staff, which resulted in the amendments.

The 2002 amendments to the Ontario Heritage Act focussed on archaeology and municipal heritage protection. The key changes to the Act affecting built heritage included the following:

Changed Local Architectural Conservation Advisory Committee (LACAC) to ‘municipal heritage committee’ to update name;
Allow municipal heritage committees to advise council on all cultural heritage matters, not just buildings and districts (e.g. archaeological sites, cultural landscapes)
Allow municipalities to designate property and acquire heritage easements on property of “cultural heritage value or interest” (replacing “historic or architectural value or interest) to reflect the broader meaning of heritage;
Require that the “reason for designation” statement include a description of the specific “heritage attributes” of the property so it is clear what aspects need to be conserved;
Strengthened demolition controls across Ontario by:

Allowing municipalities to prohibit demolition of designated properties until the owner has obtained a permit for a replacement building;
Providing that the replacement building must be built within two years (council can waive or extend this time limit);
Increasing the maximum fine from $250,000 to $1 million for illegally demolishing designated properties.

This gave all of Ontario the ‘special powers’ Markham (and 13 other municipalities) had secured through special statute;

Allow individually designated properties to be included in heritage conservation districts (individual designation controls would continue to apply);
Require municipalities to give notice of the passing of by-laws designating heritage districts. Remove the requirement that the Ontario Municipal Board approve these by-laws where there are no objections;
Remove the requirement for a municipality to obtain the Minister’s consent to prosecute for an offence under the Act;
Allow municipalities to recover the costs of restoring illegally altered properties in heritage conservation districts (municipalities already had this power for individually designated property);
Require municipalities to include heritage conservation districts in their register of designated properties to provide a single source of information to property owners and the public.

These were all welcome amendments to the Act.

Current provincial government proposes additional major improvements to the Act (Bill 60)

The current Liberal government recently announced significant changes to the Ontario Heritage Act that will help ensure the preservation of Ontario’s irreplaceable heritage resources for present and future generations. The provincial government has indicated that it is proposing comprehensive amendments to bring Ontario’s heritage legislation in line with leading jurisdictions in Canada and around the world. The Manager of Heritage Planning participated in stakeholder consultations on the proposed amendments at the invitation of the new Minister of Culture, the Honourable Madeleine Meilleur. If passed, the proposed amendments would introduce additional positive changes in eight key areas:

New municipal powers to prevent demolition of heritage sites

· Enable municipalities to prevent demolition of sites

· Allow property owners, who have been refused consent to demolish a designated heritage property, a right of appeal to the OMB.

Improvements to the municipal designation process

· Standardize designation criteria

· Enable municipalities to recognize and list non-designated heritage sites

· Allow municipal councils to delegate approvals for alterations to designated heritage properties, set minimum maintenance standards for designated sites and easily update designation by-laws

· Shorten newspaper notice requirements for designations

· Require public notice of all de-designations

Strengthened protection for heritage conservation districts

· Require that districts have a plan and guidelines

· Extend district controls to cover heritage property features as well as buildings; allow minor alterations to be exempted from approvals; enable interim controls for up to a year for districts being considered for designation

· Require district designation by-laws be registered on title

New provincial powers to identify, designate and prevent demolition of heritage sites

· Enable the Minister of Culture to designate and prohibit demolition of heritage property of provincial significance, in consultation with the Ontario Heritage Foundation.

Clear standards and guidelines for provincially owned heritage properties

· Enable the Ministry of Culture, in consultation with ministries and agencies affected, to develop mandatory standards and guidelines for identifying and protecting heritage property owned or controlled by the Province

Increased provincial protection for significant marine heritage site

· Enable the Province to protect the most significant marine heritage sites by prescribing these sites in regulation and prohibiting access without a site-specific licence

Enhanced provisions to conserve archaeological resources

· Enhance provincial powers to ensure conservation of archaeological resources by increasing fines to a maximum of $1 million for illegal alteration of sites

· Enable the Province to inspect archaeological fieldwork and sites and provide public access to certain archaeological information collected under the proposed legislation

Streamlined provisions for provincial heritage agencies

· Change the name of the Ontario Heritage Foundation to “Ontario Heritage Trust” and update reference to the agency’s natural heritage role, to better reflect its current mandate

· Increase the Conservation Review Board’s administrative powers in line with amendments to the Statutory Powers Procedure Act and require that the board be composed of at least five members

Committee Hearings on the Act

The proposed amendments to the Ontario Heritage Act received second reading in the Legislature on November 2, 2004. The Ontario Legislature’s Standing Committee on Justice has scheduled public hearing on the proposed amendments on November 25 and December 1, 2004. Written submissions on Bill 60, An Act to amend the Ontario Heritage Act will be received by Standing Committee up until noon on December 1, 2004.

DISCUSSION:

Provincial government has taken a leadership role concerning heritage conservation

The proposed amendments to the Ontario Heritage Act are very positive and reflect many of the requested improvements that have been advocated by the Markham heritage community. Strengthening the Act has been long overdue and the government should be commended for following through on its promise to protect and preserve Ontario’s heritage resources.

A review of the key aspects of the proposed legislation affecting built heritage resources and archaeology

1. New municipal powers to prevent demolition of heritage sites

The proposed amendments will give the municipality the power to prohibit the demolition of property designated by the municipality.

Currently, demolition of municipally designated heritage properties can be delayed, but not prevented. Owners can proceed to demolish after 180 days (from the date of refusal by Council) provided they have obtained a building permit for a replacement building.

The amendment ensures that if an application for demolition is refused, the demolition will be prevented from occurring, subject to any future application. If a demolition request is refused by Council, the refusal can be appealed to the Ontario Municipal Board (OMB) by the owner. Municipalities will also be given the power to attach conditions to an order approving an application to demolish designated property. The conditions may also be appealed to the OMB. The amendment also includes provision that a member of the Conservation Review Board may sit on a panel of the OMB when that Board is conducting an appeal under the Ontario Heritage Act.

Response: the proposed amendment will provide an enhanced level of protection for heritage buildings from the threat of demolition while owners still have an appeal mechanism through the OMB. The inclusion of a member of the Conservation Review Board on the OMB panel should be mandatory to provide the necessary heritage expertise when considering heritage matters before the OMB.

Recommendation: That section 12 of Bill 60 be revised to indicate that the Ontario Municipal Board shall (rather than ‘may’) appoint a member of the Review Committee to sit on a panel of the Board conducting an appeal under this Act for the duration of the appeal [25.1 (1)].

2. Improvements to the municipal designation process

a) Registry of Heritage Property

The amendments will allow a municipality to maintain a register of properties that includes designated properties, as well as properties that have not been designated, but are considered to be of cultural heritage value or interest to the municipality.

Response: this provision recognizes the existence of heritage inventories which are maintained by many municipalities, including Markham. Inventories are a valuable tool as they allow the municipality to catalogue all their heritage resources and can be used to flag properties when alterations or demolition is contemplated. Each municipality will prescribe the process for listing on the registry and prescribe the manner in which listed buildings will be dealt with once impacted (i.e. the application will be forwarded to the municipal heritage committee for review). In Markham, any development application or building permit affecting a listed building is reviewed by the municipal heritage committee (this policy is in the Markham Official Plan).

b) Designation Criteria

The current Act enables municipalities to designate property of cultural heritage value or interest, but provides no criteria for doing so. The amendments will require property that is to be designated to meet prescribed criteria that will be established by regulation.

Response: the use of standard designation criteria is supported, as it will make the municipal designation process more objective and transparent. The development of the criteria must be done in consultation with municipal stakeholders, as we would want to ensure that any regulations which prescribe criteria for determining whether a property is of cultural heritage value or interest do not negatively affect the Town’s ability to designate such properties.

Recommendation: That development of standard designation criteria which is to be prescribed by regulation be undertaken in consultation with municipal stakeholders, many of which already have criteria in place.

c) Changes to Designation By-laws

The proposed amendments will allow a municipality to amend an approved designation by-law (with the written consent of the owner) in order to clarify or correct the statement explaining the property’s cultural heritage value or interest or the description of the property’s heritage attributes or otherwise revise the language of the by-law to make it consistent with the requirements of the Act or the regulations.

Response: the amendment which will permit changes to a designation by-law should also include a change to the property’s legal description. In Markham, we often designate a heritage resource on a large parcel of land and later amend the by-law when a new legal description becomes available.

Recommendation: That section 19 of Bill 60 be revised to include the revision of a designated property’s legal description as a permitted amendment to a designation by-law [30.1(1)].

The proposed amendments to the Ontario Heritage Act also will require notice to be provided concerning the repeal of a designation by-law. The municipality will be required to publish notice of the intention to repeal the by-law in a local newspaper and any person may, within 30 days after the date of publication, serve a notice of objection. The matter would then be referred to the Conservation Review Board.

Response: public notice of any proposed de-designation is supported.

d) Delegation of Approval Authority

An amendment to Section 33 of the Act would allow council to delegate to municipal employees or staff the power to consent to alterations of properties designated by the municipalities, in certain circumstances. The delegation of approval authority must be by by-law after consultation with the municipal heritage committee, and the by-law may delegate the power with respect to all alterations or with respect to specific alterations as described in the by-law. Demolition requests would still have to be considered by Council.

Response: The current Act requires that all alterations to designated properties be approved by municipal council, in consultation with its municipal heritage committee. Council approvals can be time consuming and cumbersome especially for minor alterations. In Markham, Council has already delegated certain heritage approvals to staff by Council resolution. This provision in the Act will allow Council to delegate consent powers officially. From a customer service perspective, this is one of the most important changes to the Act and Heritage staff strongly advocated for its inclusion during all the consultation sessions. If the amendments are passed and Markham enacts such a delegation by-law, we would need to ensure in the delegation by-law that “conditions” could be attached to the approval.

e) Minimum Maintenance Standards

A new section is proposed for the Act (35.3) which would give municipalities the power to enact a by-law to prescribe minimum standards for the maintenance of the heritage attributes of properties individually designated by the municipality. The by-law can also require a designated property, that does not comply with the standards, to be repaired and maintained to conform to the standards. The municipality must have passed a by-law under section 15.1 of the Building Code Act, 1992 setting out standards for maintenance of property in the municipality.

Response: the ability to establish minimum standards for maintenance for heritage properties would be a very positive addition to the heritage conservation toolbox, and would assist the municipality in having heritage properties that have fallen into disrepair properly maintained. It could also be used to prevent certain designated buildings from becoming candidates for relocation to Markham Heritage Estates due to abandonment and lack of ongoing maintenance. The enforcement provisions provided for under the specific by-law and the Building Code Act would address instances of non-compliance.

f) Emergency Alterations

Many in the heritage community have expressed concern with the emergency alterations provision in Section 69(4) of the Act and the fact that this has been open to abuse. The provision indicates that a person is not guilty of an offence for altering a designated building or a building in a heritage district if the alteration is carried out for reasons of public health or safety or for the preservation of the property after notice is given to the municipal clerk. The proposed amendments would remove this provision in its totality from the Act.

Response: The removal of this provision from the Act is very much supported. In some instances, this provision has been used after a property owner has received an order to comply with local property standard by-laws. We have also had property owners indicate that they clad their heritage building in vinyl siding to ‘preserve the property’ and replaced heritage windows for ‘safety reasons’. Rarely is the clerk notified, as required in the legislation.

If an emergency alteration is truly required and carried out for safety or health reasons, the owner should fully document the situation and can later explain this to Council. If the reason is deemed legitimate, it is unlikely a Council would proceed with prosecution under the Act. If there was not truly a safety issue at stake or the reason given is suspect, Council can choose to prosecute.

3. Strengthened protection for heritage conservation districts

a) Controls for District Study Areas

The proposed amendments provide municipalities with the authority to pass a by-law to impose controls on areas in the municipality that are designated as study areas for proposed future designation as heritage conservation districts. The study area may be designated by by-law for a period of one year, and during this period, alteration of property and the erection, demolition or removal of buildings would be subject to such limitations as may be specified in the by-law. The by-law may be appealed to the OMB. Once the one year period has ended, the municipality would not be permitted to pass a by-law designating another study area, which includes any portion of the initial study area, for a three (3) year period.

Response: the ability to put a form of interim control by-law on a heritage conservation district study area is an amendment to the Act which has merit and would be useful to address proposed changes to the area during a study process. However, it may be appropriate to consider allowing a one year extension of the by-law, similar to the interim control by-law provisions in the Planning Act, to address situations where a study has not been fully completed or the district plan not implemented within the one year timeframe.

Recommendation: That section 29 of Bill 60 be revised to include a provision whereby a heritage conservation district study area may be created for a one year period with the council of the municipality having the ability to amend the by-law to extend the period of time during which it will be in effect provided the total period of time does not exceed two years from the date of the passing of the by-law [40.1(1)].

b) Scope of the District Study

The amendments identify what elements are to be addressed in heritage conservation district studies, including an examination of the character and appearance of the area to determine if the area should be preserved; examination and recommendations on boundaries; recommendations as to the objectives of the designation; and recommendations as to any changes required to municipal plans and by-laws.

Response: the proposed scope of work to be addressed in a heritage conservation district study will provide much needed guidance to municipalities, and represent the basic tasks that should be undertaken. In all Markham’s heritage conservation district studies to date, these requirements and more have been addressed.

c) Require District Plan and Guidelines

The amendments would require a municipality to adopt, by by-law, a heritage conservation district plan when designating a heritage conservation district. The current Act does not require a district plan be prepared. Bill 60 also prescribes the necessary content of a heritage conservation district plan, including a statement of objectives to be achieved; a description of heritage attributes of the district and properties; policy statements, guidelines and procedures for achieving the stated objectives and managing change; and any types of minor alterations that an owner may carry out without obtaining a permit.

Response: It is appropriate to require that heritage conservation districts have a plan and guidelines for the management of change in the district. It is extremely important to have a plan (to justify the need for and the boundaries of the district) as well as to have clear, concise and easily understood guidelines to help guide not only the property owner, but also assist staff, the heritage committee and Council to ensure appropriate and consistent decision making. Markham has always adopted a comprehensive district plan for each of its heritage conservation districts.

d) District Designation Notice

The amendments would require a municipality to make information of a proposed heritage conservation district plan available to the public and hold at least one public meeting on the subject. In addition, a person who fails to participate in the consultation process (oral or written submission) may be prevented from objecting to the by-law adopting the plan through the OMB process. Bill 60 would also require the district designation by-law to be registered on title of all properties within the district.

Response: The proposed amendments are appropriate and supported. In the past, Markham has always included a comprehensive public consultation program as part of its district plan study process. Markham is also in the process of registering its district designation by-laws on title.

e) Municipality is subject to the District Plan

The proposed amendments would ensure that a municipality abides by the objectives of its heritage conservation district plan in terms of public works and municipal by-laws. In the event of a conflict between a heritage conservation district plan and a municipal by-law that affects the district, the district plan would prevail to the extent of the conflict, but in all other respects the by-law would remain in full force.

Response: In the existing Markham heritage conservation district plans there is provision whereby the objectives, guidelines and policies of the document are to be used when reviewing all municipal public works, all activities of government, all matters relating to current policy documents and by-laws, and any construction activity. The amendment concerning conflict between the district plan and by-laws could assist Markham in areas where the zoning by-law has yet to be amended to reflect the objectives of the district (e.g. height of buildings).

f) New municipal powers to prevent demolition of heritage sites

The proposed amendments will give the municipality the power to deny the demolition or removal of buildings or structures on property in a designated heritage conservation district. The amendments would ensure that if a demolition permit is refused by Council, the refusal will prevent the demolition from occurring, subject to any further application for consent or approval by the OMB. The same provisions noted for demolition control of individual properties would apply to properties in a district.

Response: the proposed amendment would provide an enhanced level of protection for heritage buildings from the threat of demolition and are supportable. Owners still have an appeal mechanism through the OMB. The inclusion of a member of the Conservation Review Board on the OMB panel should be mandatory in appeals involving demolition as well as those involving alterations in heritage conservation district.

g) Approval of Alterations

An amendment to Section 42 of the Act would allow a municipality to indicate, in a heritage conservation district plan, that certain minor alterations of property located in the district could be carried out without obtaining a permit. Also, Council would be given the power to delegate to municipal employees or staff the authority to grant permits for alterations to properties in the district in certain circumstances. The delegation of approval authority must be by by-law after consultation with the municipal heritage committee, and the by-law may delegate the power with respect to all alterations or with respect to specific alterations as described in the by-law. Demolition requests would still have to be considered by Council.

Response: the proposed amendments would assist in providing better customer service in heritage conservation districts by streamlining the approval process.

h) Minimum maintenance standards

A proposed new amendment to the Act would provide municipalities the ability to make by-laws establishing standards for the maintenance of the heritage attributes of property located in a designated heritage conservation district.

Response: the ability to establish minimum standards for the maintenance of heritage attributes would be a very positive addition to the heritage conservation toolbox and would assist the municipality in having heritage properties in the district that have fallen into disrepair properly maintained.

4. New Provincial Powers for Minister of Culture

a) Designation Powers

The Province can designate archaeological sites, but does not currently have the power to designate built heritage properties of provincial significance. In cases where significant properties are at risk, the Province has no authority to intervene.

The proposed amendments would allow the Minister of Culture to designate property anywhere in the Province as property of cultural heritage value or interest of provincial significance. Criteria would be prescribed to guide which properties may be designated. Properties designated by the Minister would be subject to limitations with respect to any alterations of the property, and buildings or structures on such properties could not be demolished without the consent of the Minister. The decision of the Minister to refuse demolition would be subject to appeal to the OMB. The provisions relating to the designation process and to the removal of the designation are similar to those provisions that relate to municipal designation. The Minister could also issue a stop order to prevent the alteration or demolition of property. If there is a conflict between an order issued by the Minister and an order or approval affecting a municipally designated property, the Minister’s order would prevail.

Response: the proposed amendments are supported. They would allow the Minister of Culture to intervene in situations where properties of provincial significance are threatened. It will be important to provide a definition and/or criteria of what constitutes ‘provincial significance’.

Another related weakness of the Act is the lack of provision for provincial designation of heritage buildings that may not be of provincial significance, but are located within a municipality that is unable or unwilling to undertake a heritage conservation program. Existing legislation prevents any provincial action apart from direct acquisition.

Provision should also be made to allow municipalities to designate provincially or federally owned properties that are of cultural heritage value or interest to the local municipality (but may not be of provincial significance).

Recommendation:

That Part IV of the Act be amended to allow a property owner to apply to the Province for heritage designation of his property where a municipality is unable or fails to designate upon request.

That the Act be amended to allow municipal councils to designate properties, buildings or structures owned by the Province and its agencies.

b) Standards for Provincially Owned Heritage Properties

The provincial government owns a wide range of cultural heritage properties. The proposed amendments would enable the Ministry of Culture, in consultation with ministries and agencies affected to lead by example by developing mandatory standards and guidelines for identifying and protecting heritage property owned and controlled by the Province. The amendments would require compliance with the standards and guidelines.

Response: the Province should lead by example and require that heritage resources in its possession are identified and maintained. In the past, heritage properties in Markham owned by the province through the Ontario Realty Corporation have been altered in an inappropriate manner, without approval (removal of heritage windows, removal of wooden battens and cladding in vinyl siding).

5. Archaeological Resources

The proposed amendments to Part VI of the Act address concerns related to marine heritage archaeological sites, inspections of archaeological sites and license requirements, maintaining a provincial register of archaeological sites and increasing fines to a maximum of $1 million for illegal alteration of sites.

Response: the proposed amendments are supported.

Areas of concern that have not been addressed in the proposed legislation

Although the proposed amendments to the Act are extensive and much needed, there are some additional areas of concern that warrant consideration.

Prosecutions for Violations of the Act -

At present, section 69 of the Act allows the court to impose a fine if a person is convicted of an offence under the Ontario Heritage Act. From our experience in prosecuting under the Act, typically the fines imposed are usually very low given that it is often a first time offence and the lower courts characteristically give small fines considering the other matters before them. There is no provision which gives the court the power to order the offender to restore or repair the property, if it is practical, to its previous condition. Heritage staff in Markham and in other municipalities realize that to prosecute using the current Act can be of limited value as municipalities must expend a considerable amount of money and time to take heritage offences to court, only to have a small fine levied and not have the illegal alteration corrected. For most municipalities and heritage groups, the ultimate goal is to have the alteration corrected, not the financial penalty.

In one of Markham’s prosecutions, the court actually ordered that the offending material be removed and the Town ended up having to appeal the decision, not because we didn’t support it, but because it was not enforceable. The Town ended up at the court of appeal and through a joint sentencing agreement with the offender, accepted a lower fine with a requirement that the illegal alterations be removed from the front elevation.

Recommendation: That section 69 of the Act be amended to include in addition to the existing fine provisions, a new provision that would allow the Court to order the offender to restore the property, building or structure, as nearly as possible, to its previous condition.

Limitation Period for Prosecutions

Currently, the limitation period to commence a prosecution of an offence is six (6) months from the date of the offence (Provincial Offences Act). This is problematic for offences of altering (or demolishing) without a permit when we don’t know when the alteration occurred or we don’t discover the alterations until well after the six month period has expired. The Ontario Heritage Act is silent on a limitation period for prosecutions. It would be very useful if the Ontario Heritage Act had a one year limitation period which would run from the date that the municipality discovers the offence.

Recommendation: That the Ontario Heritage Act be amended to include a provision for a one year limitation period to commence a prosecution of an offence under the Act starting from the date that the municipality discovers the offence.

Notice of Intention to Designate a Property

Under section 29 of the Act, when a council intends to designate a property, a ‘Notice of Intention to Designate’ must be served on the property owner and the Heritage Foundation and published in a newspaper having general circulation in the municipality. Section 30 of the Act, indicates that where a notice of intention to designate is served and published, any permit that allowed for the alteration or demolition of the property that was issued by the municipality prior to the day notice was served and published is void, and the property is treated as if it were designated.

A proposed amendment in Bill 60 has revised the wording of section 30 for clarity purposes, but does not address the issue of the status of the property between the period of Council approval of the intention to designate and the serving and publication of notice. There have been examples of alterations and demolitions that have occurred during this period of time when the property has no heritage status or protection. It is suggested that in the case of section 30, the voiding of permits and the interim control of alterations and demolition be applicable the date Council passes a resolution for the intention to designate rather than the day notice is served on the owner, the Heritage Foundation and published in a newspaper (which could take up to 2 weeks and present an opportunity for the heritage property to be abused without recourse).

Recommendation: That section 30(1) and (2) of Bill 60 be amended to ensure that the date that the voiding of permits and the interim control of alteration, demolition or removal becomes applicable is the date of Council passing an intention to designate rather than the date notice is served on the owner of the property, on the proposed Trust, and published in a newspaper

There is also a concern that the heritage attributes associated with a heritage resource could be removed from a property once the municipality indicates an interest in pursuing designation, but prior to Council passing a resolution of intention to designate. Bill 60 proposes to amend the Act (Section 35.2) be providing the Minister of Culture the authority to issue a stop order if the Minister is of the opinion that the property or building may be of cultural heritage value or interest of provincial significance. It would be very helpful if the municipality had a similar power to prevent individuals from making alterations during the time period when the municipality is determining whether to pursue designation. The Act could be amended to allow a council to authorize an identified municipal employee, by by-law, the authority to issue a stop order for a period of time (60-90 days) while the municipality determines if the property should be designated. The by-law could limit the use of the stop to only those properties listed on the municipal heritage registry.

Recommendation: That the Act be amended to allow a council of a municipality to authorize an identified municipal employee, by by-law, the authority to issue a stop order with respect to property in the municipality that may be of cultural heritage value or interest for a specified period of time (60-90 days) to prevent the alteration of the property, any damage to the property or the demolition or removal of any building or structure on the property while the municipality investigates the potential designation of the property.

CONCLUSION

ENGAGE 21^ST CONSIDERATIONS:

The proposed amendments to the Ontario Heritage Act would assist in the preservation of the Town’s heritage resources and recognize, promote and strengthen a sense of community.

ATTACHMENTS:

Appendix A – New Release “McGuinty Government Acts to Save Ontario’s Heritage”

Valerie Shuttleworth, M.C.I.P., R.P.P.

Director of Planning & Urban Design

Jim Baird, M.C.I.P., R.P.P.

Commissioner of Development Services

Q:\Development\Heritage\SUBJECT\HRTGACT\COUNCIL nov 30 2004.doc

		COUNCIL


	TO:	Mayor and Members of Council

	FROM:	Jim Baird, Commissioner of Development Services Valerie Shuttleworth, Director of Planning & Urban Design

	PREPARED BY:	Regan Hutcheson, Manager, Heritage Planning

	DATE OF MEETING:	2004-Nov-30

	SUBJECT:	Comments on Bill 60 - An Act to amend the Ontario Heritage Act