Bill 23 – Part 4: Changes to Heritage Planning

*Originally posted on November 16, 2022, updated on November 30, 2022.

On November 28, 2022, Bill 23, More Homes Built Faster, 2022, received royal assent. After its introduction on October 26, Bill 23 was referred to the Standing Committee on Heritage, Infrastructure and Cultural Policy (the “Committee”) and subsequently amended. The below blog has been updated to reflect these amendments.

Part 4 of this series will explore the changes Bill 23, More Homes Built Faster Act, 2022, makes to the Ontario Heritage Act (the “OHA”). These changes to the OHA are set out in Schedule 6 of Bill 23 and were not amended by the Committee from what was originally proposed. All of these changes will become effective on a date to be proclaimed by the Lieutenant Governor in Council (“LG”).

Highlights include:

1. Increased restrictions on a municipality’s ability to issue a notice of intention to designate a property;

2. Prescribed criteria to designate properties;

3. Stricter rules on requirements to remove properties from the register;

4. Prescribed criteria to designate Heritage Conservation Districts; and

5. Permitting retroactive ministerial review of provincial heritage properties.

Restrictions on Notice of Intention to Designate

Bill 23 removed a municipality’s ability to issue a notice of intention to designate a property under Part IV of the OHA, unless the property is already listed on the register on such date to be proclaimed.

Bill 108, The More Homes, More Choice Act, 2019, recently amended the OHA to establish a 90-day timeline for issuing a notice of intention to designate a property after a prescribed event occurred, which prescribed events include instances where Council has given notice of a complete application for an official plan amendment, a zoning by-law amendment or a draft plan of subdivision in respect of the property. The Province stated that its intention for this limitation was to provide certainty to development proponents and to encourage discussions about potential designations at an early stage.

While this process will remain for the prescribed events that occur on or after July 1, 2021, for the prescribed events that occur on or after the date to be proclaimed, municipalities will be precluded from issuing a notice of intention to designate a property altogether, unless the property is listed on the municipal heritage registrar before the date the prescribed event occurs. If the property is listed on the heritage register at this time, then the municipality has the 90-day timeline to issue a notice of intention to designate the property.

Increased Criteria for Designation

The Bill 23 amendments will require (once effective) that a property meet additional criteria, as prescribed in regulation, to be designated as a heritage property. Currently, Council must only believe that the property is of cultural heritage value or interest. This change would be implemented through amendments to Ontario Regulation 0/06.

Removal of Properties from the Register

          Notice of Intention Given

On a date to be proclaimed, Bill 23 will require municipalities to remove properties from the heritage register if the municipality has given a notice of intention to designate the property and any of the following circumstances exist:

1. The council withdraws its notice of intention to designate;

2. The council does not pass a by-law designating the property within 120 days after the notice of intention to designate is publicized, or in other prescribed circumstances;

3. A by-law passed by council is subject to an appeal to the Ontario Land Tribunal, where the Tribunal repeals the by-law or directs that the by-law be repealed.

          Notice of Intention NOT Given

In the case of a property included in the register on or after a day to be proclaimed by the LG, if the municipality does not issue a notice of intention to designate within two years of including the property on the registrar, the municipality shall remove the property from the register.

In the case of a property included in the register under a previous version of the OHA by such day to be proclaimed, if the municipality does not issue a notice of intention to designate within two years of this day, then the property shall be removed from the registry.

          Once Removed From Register

If a property is removed from the register, Council may not include the property again for a period of 5 years, commencing either the day the event occurs (withdrawal of notice of intention or repeal of by-laws); the day the property is included on the register (properties included after the proclamation date); or, the proclamation date (properties on the register now).

These new provisions, once in effect, will reduce the number of properties included on heritage registers, by limiting the register to properties that are designated, or in the process of seeking designation.

Prescribed Criteria to Designate Heritage Conservation Districts

On a day to be proclaimed, Bill 23 will authorize the LG to prescribe additional criteria that a municipality must meet in order to designate an area as a Heritage Conservation District (“HCD”).

Currently, Council of the municipality may designate an area as an HCD if the municipality has official plan policies that contain provisions relating to the establishment of an HCD. However, amendments introduced by Bill 23 require that if criteria for demonstrating whether an area of a municipality is of cultural heritage value or interest are prescribed, then the subject area of the municipality must meet these criteria in order to be designated as an HCD, in addition to the requirement that the municipal official plan contain policies relating to the establishment of an HCD. Where these criteria are prescribed, the required HCD plan must contain a statement explaining, among other things, the cultural heritage value or interest of the HCD and how the HCD meets the prescribed criteria.

The Bill also permits the Minister of Citizenship and Multiculturalism (“Minister”) to prescribe a process for municipalities to amend or repeal HCD by-laws.

Provincial Heritage Properties

Currently, the Minister may prepare heritage standards and guidelines (“S&Gs”) for the identification, protection, maintenance, use and disposal of property that is owned by the Crown or occupied by a ministry or prescribed public body that has cultural heritage value or interest. The S&Gs were enacted on July 1, 2010 and apply to all Ontario government ministries and prescribed public bodies with properties in their ownership or under their control. Ministries and public bodies use the S&Gs to designate properties as provincial heritage properties, which they believe to be important to the social, economic and cultural well-being of Ontario communities. For example, many of Ontario’s courthouses and hospitals, bridges and provincial parks are designated as provincial heritage properties.

Amendments to the OHA (once proclaimed) will authorize the Minister to set out a process in revised S&Gs, which permit it to review determinations made by other ministries or prescribed public bodies with respect to provincial heritage properties. Where this process is provided, the Minister would be authorized to confirm or revise the ministry or public body’s determination, notwithstanding the date that it was made. For clarity, this means that the Minister would be able to retroactively review a ministry or public body’s determination.

In addition, these amendments will permit the LG to, by order, exempt the Crown, a ministry or a prescribed public body from having to comply with the S&Gs in respect of a particular property where the LG opines that such exemption could potentially advance one or more of the following provincial priorities:

1. Transit;

2. Housing;

3. Health and Long-Term Care;

4. Other Infrastructure; and

5. Such other priorities as may be prescribed by regulation.

Conclusion

As most of these changes come into effect on a date to be proclaimed, we will continue to monitor how these changes are proposed to be implemented.

To read more about Bill 23, check out parts 1-6 of the Davies Howe Bill 23 blog-series.

If you wish to discuss how this may impact your development, please do not hesitate to contact the team at Davies Howe LLP.