Designation of a property under the Ontario Heritage Act gives council the power to refuse an application for the demolition or removal of a building, structure or heritage attribute on the property. If the owner of a designated property wishes to demolish or remove a building, structure or a heritage attribute, the owner must obtain written consent from council.

5.1. Buildings and structures

Any building or structure on the designated property is subject to the demolition control provisions of the Ontario Heritage Act. As outlined in Section 3.2, the legal description of the property in the designation bylaw specifies what is subject to designation, which could be an area smaller than the parcel of land. If a building or structure falls outside the legal description of the property, it would not be subject to the demolition control provisions of the Ontario Heritage Act.

5.2. Heritage attributes

Demolishing or removing heritage attributes can have a significant impact on the cultural heritage value or interest of a property. Thorough evaluation and designation documentation supports a clear and defensible description of heritage attributes. This information assists council’s decision whether to allow a property owner to demolish or remove heritage attributes.

The process for considering the demolition or removal of a heritage property’s heritage attributes or a building or structure on a heritage property, under sections 34, 34.1 & 34.3 of the Ontario Heritage Act, is summarized below.

  1. Application to council

    The owner of a property designated under section 29 of the Ontario Heritage Act must apply to council for consent in writing to demolish or remove / permit the demolition or removal of:

    • any of the property’s heritage attributes, as set out in the description of the heritage attributes in the bylaw registered against the property
    • any building or structure on the property, regardless of whether it would impact any of the property’s heritage attributes

    The application process and requirements are the same as those outlined for applications for alteration to a designated heritage property. These include provincially-established minimum application requirements, which municipalities can build on, and the ability to request additional information as part of an application, where necessary. For complete application requirements prescribed by the province, see section 6 of Ontario Regulation 385/21. The same rules regarding notification of complete applications also apply to requests for demolition and removal.

  2. Decision of council

    1. 90-day time periods

      Council must complete the following within a period of 90 days from the date the notice of complete application is served on the owner:

      • seek the advice of its municipal heritage committee, where one has been established
      • make a decision on the application
      • serve notice of the decision on the owner, and the Ontario Heritage Trust
      • publish its decision in a newspaper having general circulation within the municipality

      Where council has not provided either a notice of complete application or notice of an incomplete application within 60 days after the day the application is commenced (i.e. the day it is served on council), the 90-day period commences after the end of that 60-day period.

      Note, the time periods referred to above can be extended through mutual agreement between the property owner and council.

      In many cases, an alternative to demolition can be negotiated with the owner and agreed to at this stage. Council, with the aid of its municipal heritage committee, has an opportunity to work with the property owner toward a means to conserve the threatened property.

      Depending on the circumstances, there are several approaches:

      • sharing information with the owner about the property’s cultural heritage value and the benefits of heritage conservation
      • exploring ideas about how the building or structure might contribute to a proposed development or future use of the site
      • suggesting alternative uses for the building or the property
      • relocation of a building or structure to a new property
      • providing an opportunity for the owner to sell the heritage property to the municipality or a purchaser who will conserve it or
      • expropriating the property

    2. Decision

      Within the 90-day period referred to above, the decision of council must make a decision to either consent to the application, consent with terms and conditions, or refuse the application altogether.

      If council does choose to allow the demolition, it is advisable to include terms and conditions. For example, council can require that the owner obtain a building permit for a replacement building on the property. This helps to prevent valuable heritage structures from being replaced by vacant lots. The owner would need to apply for the building permit through the normal municipal process, and will only receive such a permit for a new building that meets applicable zoning and other requirements.

      At minimum, council should require full documentation of a heritage attribute, or a heritage building or structure prior to its removal or demolition, as well as documentation of any other cultural heritage resources on the property that may be affected.

      Recording the property helps to provide an understanding of the past for future generations and to help conserve similar resources that remain. Thorough documentation of any heritage attribute that would be completely removed as a result of council’s consent may help a future property owner reproduce that heritage attribute should they choose to do so.

      If the council fails to notify the owner of its decision on the application within the 90-day time period, the council will be deemed to have consented to the application.

  3. Appeal process

    If the owner objects to council’s decision to refuse an application, or consent to it with terms and conditions, the owner may appeal to the Ontario Land Tribunal.

    A notice of appeal must be given to both the municipal clerk and the Tribunal within 30 days of the day the owner received notice of council’s decision. The notice of appeal must set out the objection to council’s decision and the reasons in support of the objection. The appeal must also be accompanied by the fee charged by the Ontario Land Tribunal.

    If a notice of appeal is given within the 30-day time period, the Tribunal must give notice of the hearing and then hold a hearing. The Tribunal is required to give notice of the hearing to such other persons or bodies and in such a manner as the Tribunal may determine.

    In some cases, a Tribunal may dismiss an appeal without a hearing in accordance with specific requirements under subsections 34.1(6) and (7).

    If a notice of appeal is given within the 30-day time period, the clerk must ensure that a record of council’s decision on the application is forwarded to the Tribunal within 15 days after the notice of appeal is given to the clerk. Section 13 of O.Reg 385/21 outlines what material and information are to be included as part of the record of decision on a demolition or removal.

  4. Tribunal decision

    After holding the hearing, the Tribunal may order the appeal dismissed, or order the municipality to consent to the demolition or removal, or consent with such terms and conditions as the Tribunal specifies. The municipality must serve notice of the Tribunal’s decision on the Ontario Heritage Trust.

  5. Prescribed steps following Council consent to demolition

    Section 7 of O. Reg 385/21 prescribes the steps that are required where council either consents, is deemed to consent, or the Tribunal has ordered the municipality to consent to a demolition or removal application.

    When the demolition or removal is complete, council must, in consultation with its municipal heritage committee, if one is established, make one of the determinations and take the associated steps outlined below in respect of the designation bylaw.

    No change to a property’s cultural heritage value or interest or heritage attributes

    It is possible that a demolition or removal of a building or structure or heritage attribute may not impact the property’s cultural heritage value or interest. For example, where a non-contributing building, such as a contemporary, detached garage was demolished.

    If this happens, and council determines the property continues to have cultural heritage value or interest and-despite the demolition or removal-the statement of cultural heritage value or interest and the description of the heritage attributes do not need to be amended, the clerk of the municipality must ensure that notice of council’s determination is served on the owner of the property and the Ontario Heritage Trust. It is recommended that a copy of the notice of determination is kept on file.

    Change to the statement of cultural heritage value or interest or heritage attributes

    The demolition or removal of a building, structure or heritage attribute may not result in the complete loss of a property’s cultural heritage value or interest. For example, a property that includes a complex of buildings, all of which contribute to the property’s cultural heritage value or interest, but where only one was demolished.

    In this regard, where council determines the property continues to have cultural heritage value or interest but, as a result of the demolition or removal, the statement of cultural heritage value or interest or the description of heritage attributes is no longer accurate and needs to be amended, the council must pass an amending bylaw that updates the statement and/or the description to reflect the changes resulting from the demolition or removal. Council must also ensure that the amending bylaw complies with the bylaw requirements under section 3 of Ontario Regulation 385/21.

    This is an administrative step to clean up the bylaw registered against the property. In this regard, passing the amending bylaw does not require notice of council’s intention and there is no opportunity for objection or appeal.

    Once council passes the amending bylaw and ensures that the amending bylaw complies with the requirements as set out in section 3 of Ontario Regulation 385/21, the clerk of the municipality is responsible for the following steps:

    • ensure that a copy of the amending bylaw is served on the owner of the property
    • publish notice of the amending bylaw in a newspaper having general circulation in the municipality
    • ensure that a copy of the amending bylaw is registered against the property affected by the amending bylaw in the appropriate land registry office and
    • ensure that a copy of the registered amending bylaw is served on the Ontario Heritage Trust

    Complete loss of cultural heritage value or interest

    Sometimes, the demolition or removal of a building, structure or heritage attribute will result in the complete loss of all physical elements that reflected the cultural heritage value or interest of a property.

    If council determines the property no longer has cultural heritage value or interest because of the demolition or removal, council is required to pass a bylaw to repeal the bylaw (or the part thereof) designating the property.

    This is an administrative step to clean up the property’s title. In this regard, passing the repealing bylaw does not require notice of council’s intention and there is no opportunity for objection or appeal.

    Once council passes the repealing bylaw, the clerk of the municipality is responsible for the following steps:

    • ensuring a copy of the repealing bylaw is served on the owner of the property
    • publishing notice of the repealing bylaw in a newspaper having general circulation in the municipality
    • ensuring a copy of the repealing bylaw is registered against the property affected by the repealing bylaw in the appropriate land registry office
    • ensuring that a copy of the registered repealing bylaw is served on the Ontario Heritage Trust and
    • ensuring that any reference to the property is deleted from the municipal register of heritage properties

    Relocation of a building or structure to a new property

    In some instances, the only means of preventing the complete loss of a building or structure is to relocate it to a new property. The relocation of a building or structure is a significant undertaking which requires agreement from all parties. Those willing to undertake such a relocation often see the value in saving the building or structure because of its cultural heritage value or interest.

    If, as part of an application for removal, a building or structure is moved to another property, council (in consultation with its municipal heritage committee) must determine if the receiving property where the building or structure has been relocated meets the criteria for determining whether the property is of cultural heritage value or interest under referred to in subsection 29(1)(a) of the Act.

    If council determines that the receiving property meets the criteria, council may pass a bylaw designating the receiving property following the abbreviated process enabled through section 7 of Ontario Regulation 385/21 for designating the new property. Note, while the Regulation allows for an abbreviated designation process, the designation bylaw itself must comply with the requirements set out in section 3 of Ontario Regulation 385/21.

    This process does not require notice of council’s intent to designate the receiving property and does not include an objection or appeals process. Therefore, the option should be discussed with the property owner in advance of passing the designation bylaw. Where council has used the abbreviated process to pass the designation bylaw, the clerk is responsible for completing the following steps once passed:

    • ensuring a copy of the designating bylaw is served on the owner of the property affected by the designating bylaw
    • publishing notice of the designating bylaw in a newspaper having general circulation in the municipality or digitally (e.g. on the municipal website)
    • ensuring a copy of the designating bylaw is registered against the property affected by the designating bylaw in the appropriate land registry office and
    • ensuring a copy of the registered designating bylaw is served on the Trust