Friday, April 29, 2016

Automatic protection — are old buildings next?

Picking up from last time… if we can — and do — have automatic protection for archaeological sites in Ontario, why not for other kinds of cultural heritage?

As we’ve seen, the protection extended under Part VI of the Ontario Heritage Act is not the same as that afforded by heritage designation under Parts IV and V.  In the context of our land use planning regime, archaeological sites receive instant legal protection from the moment of discovery, with the law compelling a strict process be followed to assess the site and determine its future.  Long-term protection, where that is warranted and feasible, will normally rely on other mechanisms — easements, zoning changes, public acquisition (even designation, as with the First Parliament site in Toronto).

Outside the cultural heritage sphere, what might be gleaned from automatic protection in other areas?  We also use AP approaches for aspects of our natural environment.  Take trees for instance.  The Municipal Act gives municipalities broad powers to prohibit or restrict the removal and injuring of trees.  Not selected trees, but all trees meeting a basic definition. [Note 1]

The City of Toronto, for example, protects any privately owned tree more than 30 centimetres in diameter as measured at 1.4 metres above ground level.  You need a permit from the city to injure or destroy a tree and your permit application requires a certified arborist’s report.  There are a few exemptions, of course: no permit is needed if a tree is confirmed by city staff to be 100% dead, imminently hazardous or terminally diseased.  It’s also clear that a tree loses its protection if the city approves new development for the site. [Note 2]

So how about a similar kind of automatic protection for old buildings?  In a recent pitch to MPPs and government ministers at Queen’s Park, Architectural Conservancy Ontario seems to be calling for exactly that.  ACO observes that in Toronto “trees have more protection than buildings” and calls on the province to “create a regulatory bias for conservation” — ending “the right to destruction” by “reduc[ing] access to demolition permits under the Ontario Building Code.” [Note 3]

ACO doesn’t say exactly how this would be implemented.  But one approach could be to protect from demolition any building over a certain age, say 40 years, for a temporary period, say 60 days, to give the municipality a chance to assess the importance of the structure, consider the competing public/private interests at play, and put in place designation or other more permanent protection measures.

Could this work?

We already have a comparable interim protection for heritage property formally listed under the OHA.  In that case the owner of the property can’t demolish unless they give 60 days notice.  Of course, this protection is not conferred automatically — the property must be individually listed by the municipal council, requiring some evaluation of the property and a “belief” that it has cultural heritage value.  The procedural requirements for listing may be fairly minimal compared to those for designation but this is still a selection-based as opposed to an automatic model. [Note 4]

Perhaps the closest thing we have in Ontario to what ACO proposes is in the protection of provincially owned property subject to the mandatory Standards & Guidelines for Conservation of Provincial Heritage Properties.  Paragraph B.4. says:

If a ministry or prescribed public body has not evaluated a property in its care or control, and if that property contains a building or structure that is 40 or more years old, then the ministry or prescribed public body shall:
a. prevent the building or structure from undergoing demolition by neglect; and
b. obtain the consent of the Minister of Tourism and Culture before removing or demolishing the building or structure, or before transferring the property from provincial control. (emphasis added)

What this means is that every 40-year-old-or-more structure in Crown ownership or control is protected from demolition and sale — until such time as it has been evaluated, using other standards in the S&Gs, and determined either to be a “provincial heritage property” or not.  (If it is a heritage property it becomes subject to the rest of the S&Gs, and if it’s not, it doesn’t).  The intention here is clearly to provide a big incentive for provincial owners to evaluate their holdings so as to avoid the onerous consent and other requirements of B.4.

This is nevertheless an example of an approach that provides automatic protection for buildings on an interim basis, where the protection is not time-limited (as in 60 days) but pending the carrying out of a formal evaluation.

Another interesting thing about the B.4. example is who carries out the heritage evaluation.  It is not, as in municipal listing and designation, the municipality, but the owner of the property.  Looked at another way, the onus is on the owner to show why the protection of the property should not continue to apply.  In this respect it is similar to how archaeological sites and Toronto trees are protected.

This suggests a variant on the ACO-inspired approach we looked at above.  How about a model that protects from demolition any 40-year-old building unless and until the owner demonstrates the building has no cultural heritage value?  Or, going still further into what is less a heritage than an environmental strategy — until the owner demonstrates the building has no ongoing utility or that it can’t be adaptively reused, incorporated into or added to in any redevelopment of the site?

I know, heady stuff!

The point is that — from archaeology to Crown property to trees in Toronto — there are precedents and models to draw on should we want to pursue the idea of automatic protection of buildings.  I leave it to you, dear reader, to judge whether this would be good policy.

I am struck though by the parallels between the purpose of Toronto’s tree by-law and ACO’s rationale for “a regulatory bias for conservation”:

The Private Tree By-law was adopted to preserve significant trees on private property in the City of Toronto, to assist in sustaining the urban forest in the City and to educate individuals with respect to tree protection measures and alternatives to tree injury and destruction.
- - - - -
The greenest building is the one that already exists:
  • Recognize Ontario’s older buildings as important community assets
  • Encourage retention and adaptive reuse
  • Discourage demolition and removal to landfill

Note 1See section 135 of the Municipal Act. The City of Toronto has similar powers under section 104 of the City of Toronto Act, 2006.

Note 2: The city’s by-law is formally known as City of Toronto Municipal Code, Chapter 813, Article III, "Private Tree Protection."

Note 3: "Ontario's Culture Strategy: What's Next?", Architectural Conservancy Ontario, February 18, 2016.

Note 4: See OHA+M: “Listing — Designation Lite?” from March 3, 2016.