2. The designation process

There are seven key steps to designating an individual property under section 29 of the Ontario Heritage Act. These include:

• identifying the property as a candidate for designation
• researching and evaluating the property
• serving a notice of intention to designate, with an opportunity for objection
• passing the designation bylaw
• appeals and coming into force
• listing the property on the municipal register (or updating the information on the register if it was already listed)
• including the property on the Ontario Heritage Trust register

2.1. Step 1: Identifying the property

Identifying local cultural heritage resources is the first step toward conserving and protecting them.

Properties of cultural heritage value or interest are usually identified by municipal heritage committees, or through a local community process such as an inventory of cultural resources, a municipal cultural planning process, or a community planning study.

The Ontario Heritage Act allows property that has not been designated, but that municipal council believes to be of cultural heritage value or interest and which meets the prescribed criteria set out in Section 1, O. Reg. 9/06, to be listed on the municipal register. In most cases, a property does not have to be listed on the register in order to be eligible for designation. See Heritage Property Evaluation for more information about the municipal register.

A property can also be recommended for designation by a property owner, or through the suggestion of an individual or group in the community. In some cases, this can occur because a property is about to undergo alteration, demolition or development. Initiating a designation is one way of protecting a property of potential heritage value to allow more time for considering options and alternatives. For properties subject to certain applications or requests under the Planning Act, there is a limited timeframe within which a municipality can issue a notice of intention to designate. See Step 3: Serving Notice of Intention to Designate.

2.2. Step 2: Researching and evaluating the property

Research and evaluation of the candidate property must be done before a property can be recommended for designation. Criteria are set out in a regulation made under the Ontario Heritage Act to determine whether property is of cultural heritage value or interest. A qualified person should carry out this research and evaluation under Ontario Regulation 9/06 to ensure that considerations for listings or designations are offered by someone with expertise in cultural heritage. See the Heritage Property Evaluation guide for further information on this process – this guide provides advice on evaluating properties to determine their cultural heritage value or interest.

A designation report should be prepared for council’s consideration, containing the written statements and descriptions required to support the designation. These are discussed in more detail in the next section.

Before deciding whether to issue a notice of intention to designate, council must consult with its municipal heritage committee (where one has been established). A municipal heritage committee is instrumental in ensuring that all relevant heritage information is considered and assisting in the evaluation of the property in order to make a recommendation to council. For more information about municipal heritage committees please see the Your Community, Your Heritage, Your Committee Ontario Heritage Toolkit guide.

2.2.1. Designation and the property owner

The property owner is a key player in a designation under the Ontario Heritage Act. As early as possible in the process, designation should be discussed with the owner to ensure that they are actively engaged in the process. There are some misconceptions about designation that may need to be clarified. Once they understand the process, many owners are interested in designation as a way of expressing pride in their property and ensuring it is protected for the future.

Municipal heritage committees across Ontario have built positive relationships with owners of designated properties to support them in their conservation efforts, and owners value the advice and information committee members and municipal staff provide.

2.3. Step 3: Serving notice of intention to designate

If council passes a motion to proceed with designating a property, it must notify the owner as well as the Ontario Heritage Trust and publish a notice of intention to designate in a newspaper having general circulation in the municipality or as otherwise stipulated in the Ontario Heritage Act. Under Section 26(4), the Ontario Heritage Act has a specific provision allowing municipalities to publish notices digitally (e.g. on their municipal websites) instead of in a local newspaper.

2.3.1. Protection for a threatened property

Sometimes, it is only when a property is threatened that a community recognizes the need to legally protect and manage change on the property. Municipal councils can use the notice of intention to designate as a way to consider the cultural heritage value of the property, and alternatives to alteration or demolition, before the damage is done.

If a notice of intention to designate is issued for a property, the property will be subject to certain interim protections. Any existing permit that allowed for the alteration or demolition of the property, including a building permit or a demolition permit, becomes void. Any proposed demolition or alteration affecting the property’s heritage attributes will require council’s consent.

The owner’s consent is not required for a designation to proceed. In some cases, council may have to act in the public interest to conserve a property valued by the community, despite objections by the owner. The owner can appeal the designation made by council to the Ontario Land Tribunal.

In November 2003, an Ontario Divisional Court decision in the case of Tremblay v. Lakeshore (Town) held that requiring the owner’s consent before considering the designation of a property was not consistent with the intent of the Ontario Heritage Act. This court decision suggests that a council should consider a request for designation, regardless of whether the owner supports it. This means that if council is approached with a request for a designation, it must consult with its municipal heritage committee (where one exists) and discuss the matter at a council meeting.

2.3.2. Limitations of issuing a notice of intention to designate

For properties that are subject to certain “prescribed events”, there are limitations on when and if Council can issue a notice of intention to designation. Prescribed events related to where the property is subject to one of the following matters under the Planning Act:

• a request for an official plan amendment (section 22)
• a zoning bylaw amendment application (section 34)
• a plan of subdivision application (section 51)

See the Ministry of Municipal Affairs and Housing’s website on applying for changes to land use or the Citizen’s guide to land use planning to learn more about these types of planning matters.

The “prescribed event” is when a council and/or planning board, as applicable, has completed giving all the required public notices for a complete application set out in the Planning Act. In order for Council to pursue designation, the property subject to one of these must have been included on the municipal register as a non-designated property at the time of the prescribed event.

When a municipality gives notice under the Planning Act that:

• a request for an official plan amendment is complete under clause 22(6.4)(a)
• a zoning bylaw application is complete under clause 34(10.7)(a)
• a subdivision applications is complete under clause 51(19.4)(a)
• as of that day the property was included on the municipal register as a non-designated property

then a 90-day time period to determine whether a notice of intention to designate is necessary would begin. It is recommended that municipalities put in place a process to keep track of this 90-day timeframe. Council should use this time to decide whether to issue a notice of intention to designate for any property that is part of the application.

Municipalities are strongly encouraged to develop requirements for information and material that should accompany these three types of planning matters to help identify whether properties of known or potential cultural heritage value or interest are included in the proposal. The information and material needed would be outlined in an Official Plan policy, to be submitted as part of a complete application, and could include the requirement for technical heritage studies or to complete a municipal checklist. The Ministry offers a checklist for Evaluating Potential for Built Heritage Resources and Cultural Heritage Landscapes. Official Plan policies may require a pre-consultation meeting, however, where such a policy does not exist, applicants can still reques a pre-consultation meeting with the municipality prior to submission. Such a meeting is often of value to gauge the viability of the application, and to ensure the applicant is submitting the appropriate information and material such as technical heritage studies. Early engagement can also assist in determining if any properties subject to the application are of known or potential cultural heritage value or interest and whether the municipality may want to consider designating any of those properties. In cases where the property is not listed on the register, council has the options of either moving forward with a notice of intention to designate prior to the prescribed event, or they can list the property on the municipal register as a first step, if it is eligible for listing, providing the council with the opportunity to initiate designation later, during the 90-day timeframe.

2.3.3. Exceptions to the 90-day timeframe

There is no exemption to the requirement that the property be included on the municipal register as a non-designation property at the time the 90-day timeframe begins. However, there are exceptions to the 90-day timeframe itself, as set out below.

2.3.3.1 Mutual agreement

The municipality and the property owner can agree within the 90 days to extend this 90-day period. Alternatively, the municipality and the property owner can agree at any time after the 90-day restriction is triggered that the timeframe does not apply. This may be a useful option to explore in many circumstances including complex applications which may benefit from an extension. For example, if a project needs a building to be temporarily moved to accommodate construction staging, after which the building is moved back to the property, or when a development proposal will result in the subdivision or severance of land, and only a portion of the original property is of cultural heritage value or interest and would be designated.

2.3.3.2. Municipal emergency period

An exception to timelines is provided for where an emergency is declared under the Emergency Management and Civil Protection Act in the municipality where the property is located (or in any part of that municipality). If the trigger event falls in a period when the emergency has been declared, the 90-day period does not begin until the day after the emergency is terminated. If the emergency is declared after the 90-day period had been triggered, the 90-day period is terminated when the emergency is declared and a new 90-day period begins on the day after the emergency is terminated. In either case, council will have 90 days from the end of the emergency period to issue the notice of intention to designate.

2.3.3.3. End of 90-day limitation

The 90-day limitation ceases to apply when the Planning Act matter that triggered it is finally disposed of either by operation of the Planning Act or through an order of the Ontario Land Tribunal (the Tribunal). This would include where:

• a request for an official plan amendment is approved by the approval authority, and not appealed
• a zoning bylaw amendment is passed and not appealed
• a final plan of subdivision is final approved
• the municipality refuses the planning application or request and there is no appeal
• there is an appeal to the Tribunal, the appeal is complete, and a final order has been issued

Once the 90-day limitation timeframe (or an extended timeframe when an exception has been invoked) no longer applies, the municipality can issue a notice of intention to designate, where the property had been included on the municipal register as of the day of the prescribed event.

2.3.3.4. Multiple applications

It may be the case that a municipality receives a subsequent Planning Act matter that applies to the same property that would also trigger the 90-day timeframe for notice of intention to designate. For example, first a request for an official plan amendment is submitted and while awaiting a decision on that request, the property owner submits an application for a zoning bylaw amendment that affects the same property.

When there are subsequent planning matters for the same property, it has the effect of deeming the earlier planning matter not to have occurred for purposes of determining the 90-day timeframe. When public notice of a second (or subsequent) matter is issued, the municipality now has a new 90-day timeframe to issue a notice of intention to designate. The date the council or planning board has completed giving all the required public notices for a complete request or application for the subsequent planning matter is what governs the new 90-day restriction, both for the purposes of applying any exceptions and for determining when the restriction finally ends.

Where public notice for two or more planning matters for the same property occur on the same day (e.g., notice is given on the same day for a complete request to amend the official plan and a related application for the implementing zoning bylaw amendment), the restriction on council’s ability to issue a notice of intention to designate ends as of the last date on which the last planning matter is finally disposed of under the Planning Act.

These rules governing instances of multiple applications only apply to the 90-day timeframe and do not set out exceptions to where a property was not included on the municipal register as a non-designated property as of the day of the original prescribed event. In other words, if a property was not included on the register at the time of the prescribed event for the original application, subsequently including the property on the register would have no effect on Council’s authority. Council would remain unable to issue a notice of intention to designate the property.

2.3.3.5. Contents of the notice of intention to designate and public notices

Under section 29 of the Ontario Heritage Act, the notice of intention to designate served on the owner and the Trust must include the following:

• an adequate description of property so that it can be readily ascertained
• a statement explaining the cultural heritage value or interest of the property and a description of the heritage attributes of the property
• a statement that notice of objection to the notice of intention to designate the property may be served on the clerk of the municipality within 30 days after the date of publication of the notice of intention in a newspaper having general circulation in the municipality

The notice of intention to designate must include the above information, except for the description of heritage attributes. The notice must also include a statement that further information about the notice of intention to designate is available from the municipality. See Section 3.2 of this Guide for further information about mandatory requirements for a designation bylaw.

2.3.3.6. Considering objections

Owner consent is not required for a property to be designated.

A person who objects to a proposed designation, may formally object to council if they serve a notice of objection on the clerk of the municipality within the 30-day period from the date of publication of the notice on the municipality’s website or notice in a newspaper having general circulation in the municipality. This objection must set out the reason for the objection and all relevant facts. If a notice of objection is served under the Ontario Heritage Act, council must consider the objection and make a decision whether to withdraw within 90 days after the end of the 30-day notice period.

If council fails to pass a designation bylaw within 120 days of the notice of intention to designate (or another time period in accordance with the exceptions discussed below), the notice of intention to designate will be deemed withdrawn, and council will have to issue a notice of withdrawal.

This notice of withdrawal must be served on the property owner, any person who objected under the act, and on the Ontario Heritage Trust. The notice must also be published in a newspaper of general circulation in the municipality.

As part of its overall heritage conservation approach, a municipality should establish public-facing procedures for how council will consider objections to notices of intention to designate property of cultural heritage value or interest.

These procedures should specify how to provide a suitable notice of objection, including how to set out the reason for the objection and all relevant facts. They should also include factors or criteria council takes into account when deciding whether to withdraw the notice.

Questions council should ask in deciding whether to withdraw the notice of intention to designate may include:

• Has any new or relevant information come to light about the cultural heritage value or interest of the property since the notice was given?
• Are there concerns, inaccuracies or discrepancies, or some other issue with the property evaluation or other documentation related to the notice of intention to designate raised by one or more objections?

If council decides to withdraw the notice of intention to designate, either at any time of its own initiative or after considering an objection under the act, it must issue a notice of withdrawal in the same manner described above.

2.3.3.7. Protecting a property of heritage value

Sometimes, it is only when change is imminent that a community recognizes a property’s cultural heritage value. Municipal councils can use the notice of intention to designate as a way of avoiding the demolition or alteration of a property that may be worthy of designation. This gives council an opportunity to consider the potential cultural heritage value of the property, and alternatives to alteration or demolition, before irreversible change takes place.

If a notice of intention to designate is issued for a property, the property will be subject to certain interim protections. Any existing permit (before the day the notice of intention was served and published in accordance with the requirements of the Ontario Heritage Act set out above) under any legislation that allowed for the alteration or demolition of the property, including a building permit or a demolition permit, becomes void. Proposed activities that will require council’s consent during the period of interim protection include any:

• alteration likely to affect the property’s heritage attributes as set out in the description of the property’s heritage attributes in the notice of intention to designate
• demolition or removal of heritage attributes as set out in the description
• demolition or removal of a building or structure, whether or not the demolition or removal would affect the property’s heritage attributes as set out in the description

The owner’s consent is not required for a designation to proceed. Any objections by the owner can be considered by following the objection procedure described above.

2.4. Step 4: Passing the heritage designation bylaw

If, after the 30-day period referred to above, there are either no notices of objection served, or council decides not to withdraw the notice of intention to designate following such a notice of objection, council may then pass a designation bylaw. The bylaw must include the statement explaining the cultural heritage value or interest of the property and a description of the heritage attributes of the property.

The 2019 amendments to the Ontario Heritage Act introduced two new requirements the bylaw must include: one relating to content, the other to process.

2.4.1. Content requirement

New bylaws must now comply with the requirements set out in Ontario Regulation 385/21. See more information on preparing the designation bylaw in Section 3.0.

2.4.2. Timeframe requirement

Council must pass the bylaw within 120 days after publishing the notice of intention to designate in a newspaper having general circulation in the municipality (subject to the exceptions to 120-day timeframe discussed below). If council fails to meet this deadline the notice will be deemed withdrawn, and council will have to issue a notice of withdrawal (in accordance with the service and publication requirements under the Ontario Heritage Act).

If a notice is deemed withdrawn, council may give a new notice of intention to designate. Council needs to ensure, however, that no prescribed events have occurred that would trigger the 90-day limit on giving notice of intention to designate.

2.4.3. Exceptions to the 120-day timeframe for passing a designating bylaw

2.4.3.1. Mutual agreement

The council of the municipality and the property owner can agree at any time within the 120-day period to extend the timeframe by any amount of time agreed upon.

2.4.3.2. Municipal emergency period

An exception is provided for where an emergency is declared under the Emergency Management and Civil Protection Act in the municipality where the property is located (or in any part of that municipality). If any part of the 120-day period falls within the emergency period, council will have 120 days from the end of the emergency period to pass the designating bylaw.

2.4.3.3. New and relevant information

The 120-day timeframe applies to passing a bylaw following a notice of intention to designate. The research required to produce the notice should have been thorough. However, circumstances may result in the discovery of new and relevant information. "New and relevant information" means information or materials that satisfy the following:

• The information or material affects or may affect matters set out in paragraph 2 of subsection 29(8) of the Ontario Heritage Act (which refers to the bylaw requirements including the statement explaining the cultural heritage value or interest of the property and description of the heritage attributes and additional bylaw requirements prescribed under section 3 of Ontario Regulation 385/21, discussed below)
• The information and materials are received by council after notice of intention to designate the property has been published in a newspaper having general circulation in the municipality

See Ontario Regulation 385/21 for the complete definition.

While the municipality is responsible for applying the definition in the Regulation (summarized above), examples of new and relevant information may include, but would not be limited to:

• a peer review of a heritage impact assessment that was part of required documentation for a development proposal might identify inaccurate information or information that was missed in the report about the property’s cultural heritage value or interest
• an adjacent property may be subject to a development proposal or other change (e.g., fire) that might affect the proposed cultural heritage value or interest of the property in question
• information that came to light during the municipal council’s consideration of any objections of the notice of intention to designate

Where new and relevant information is revealed, and the council passes a resolution during the 120-day period stating that the municipality has received new and relevant information relating to the property, council can then decide it has 180 days from the date of the resolution to pass the designating bylaw. The 180 days allows for instances where further investigation or information, including a technical cultural heritage study, may also be required to determine if the municipality wishes to pass the designating bylaw. Council must ensure that notice of the new time period is served on the property owner. The notice must also include the reasons for the new time period.

2.5. Step 5: Providing notice of bylaw

Should council pass the bylaw following the process set out in section 29 of the Ontario Heritage Act, it must ensure that the following are served on the property owner, the Ontario Heritage Trust and anyone who objected under the Ontario Heritage Act:

• a copy of the bylaw and
• a notice that any person who objects to the bylaw may appeal to the Ontario Land Tribunal by giving the Tribunal and clerk of the municipality, within 30 days after the date of publication of the newspaper notice (referred to below), a notice of appeal setting out the objection to the bylaw and the reasons in support of the objection, accompanied by the fee charged by the Tribunal

The council must also publish notice of the bylaw in a newspaper of general circulation in the municipality. The public notice in the newspaper must also include the information about appeal rights in accordance with the requirements under section 29 (which is effectively set out under the second bullet above). Appeal rights are broad: a person does not have to have objected under the Ontario Heritage Act to the notice of intention to designate to have the right to appeal the bylaw to the Ontario Land Tribunal.

2.6. Step 6: Appeals and coming into force

Any person who objects to a bylaw passed by council to designate a property under section 29 may appeal to the Ontario Land Tribunal.

To start, a notice of appeal must be given to the Tribunal and the clerk of the municipality within 30 days after publication of notice in the newspaper (as described above). The notice of appeal must set out the objection to the bylaw and the reasons in support of the objection.

The appeal must also be accompanied by the fee, where one is charged under the Ontario Land Tribunal Act. Further details on any fees charged by the Tribunal can be found on their website or by contacting the Tribunal directly.

If a notice of appeal of a designation bylaw is given within the 30-day time period referred to above, the clerk must ensure that a record of council’s decision on an objection to the notice of intention to designate, if any, and their decision to pass the bylaw under the Ontario Heritage Act is forwarded to the Tribunal within 15 days after the notice of appeal is given to the clerk. Section 8 of Ontario Regulation 385/21 outlines the following material and information that must be forwarded to the Tribunal:

• a certified copy of the notice of intention to designate the property
• if the council received objections to the notice of intention to designate, a copy of every notice of objection served on the clerk and the date on which each notice was served
• a certified copy of the designation bylaw
• a certified copy of the notice referred to in paragraph 4 of subsection 29 (8) of the Ontario Heritage Act
• a copy of any report considered by council
• a copy of all written submissions and comments related to the decision and the dates they were received
• if a public meeting was held that related to the decision, the prescribed materials related to that meeting
• any additional material or information that the council considered in making its decision and,
• an affidavit or sworn declaration by an employee of the municipality that contains a certificate that all the material and information required under this section is accurate

Please refer to Ontario Regulation 385/21 for complete details.

If notice of appeal is given within the 30-day time period (referred to above), the Tribunal is required to hold a hearing and give advance notice of the hearing to such persons or bodies and in such manner as the Tribunal may determine in advance.

After holding the hearing, the Tribunal must decide whether to:

• dismiss the appeal
• repeal or amend the bylaw, in such manner as the Tribunal may determine
• direct the council of the municipality to repeal or amend the bylaw, in accordance with the Tribunal’s order

Note: in some cases an appeal may be dismissed without a hearing in accordance with specific requirements under subsections 29(16) and (17).

2.6.1. Coming into force

The bylaw comes into force on the day after the 30-day notice period ends, if no notices of appeal were given within that time period.

If there were one or more notices of appeal given within the 30-day period, the bylaw comes into force when all of the appeals have been withdrawn or dismissed.

If the Tribunal amends the bylaw, or council of the municipality amends the bylaw (as directed by the Tribunal), the bylaw as amended comes into force on the day it is amended. There are no further appeal rights under the Ontario Heritage Act.

Once the bylaw comes into force, the clerk must ensure that a copy of the in-force bylaw is registered against the properties affected by the bylaw in the appropriate land registry office and that a copy of the registered bylaw is served on the Ontario Heritage Trust.

2.7. Step 7: Including a property on the municipal register

Under section 27 of the Ontario Heritage Act, designated properties under Part IV must be included on the municipal register of properties that are of cultural heritage value or interest, kept by the municipal clerk. The listing for designated properties includes the following:

• legal description of the property
• name and address of the owner
• statement explaining the cultural heritage value or interest of the property
• description of heritage attributes of the property

2.8. Step 8: Including the property on the Ontario Heritage Trust register

Once a bylaw comes into force and the registered copy has been sent to the Ontario Heritage Trust, the Ontario Heritage Act Register. This register is a valuable resource tool for learning about and promoting designated properties across the province. Any person can search the Ontario Heritage Trust’s register by keyword, property type or municipality.