Council Member Inquiry/Motion Form Demande de renseignements d’un membre du Conseil /Formulaire de motion
From/Exp. : Councillor Doucet	Date :	File/Dossier : 27-10
To/Dest. : City Clerk and Solicitor
Subject/Objet : Ontario Heritage Trust Heritage Easement Agreement for the Aberdeen Pavilion
Inquiry/Demande de renseignements Motion The purpose of this inquiry is to request that the City Clerk and Solicitor provide a legal opinion to Council regarding the Ontario Heritage Trust Heritage Easement Agreement (Ontario Heritage Act, section 22) for the Aberdeen Pavilion at Lansdowne Park. What is the Ontario Heritage Trust's legal position on the City's plans to relocate the Horticulture Building to the northeastern side of the Aberdeen Pavilion, as described in the Lansdowne Partnership Plan Implementation Report? The proposed location is protected as a view corridor in the Heritage Easement Agreement. Can the Ontario Heritage Trust prevent the relocation of the Horticulture Building to the northeastern side of the Aberdeen Pavilion? If so, on what grounds? If not, on what grounds? What are the potential and real consequences for the City should it decide not to respect the Ontario Heritage Trust Heritage Easement Agreement? What are the financial and legal consequences for the City should it decide to impinge upon the Aberdeen Pavilion easement?
Response/Réponse Response to be listed on the Planning and Environment Committee Agenda of August 24, 2010 and the Council Agenda of September 14, 2010.

The position held by the Ontario Heritage Trust (“OHT”), formerly known as the Ontario Heritage Foundation, on the proposal to relocate the Horticulture Building to the northeastern side of the Aberdeen Pavilion as described in the Lansdowne Partnership Plan Implementation Report, is not consistent with that formulated by City staff in conjunction with the City’s external legal advisor, Borden Ladner Gervais LLP (“BLG”).

Briefly, the OHT stated in a letter to the City Manager, dated May 21, 2010, that, in part, “…the relocation of the Horticultural [sic] building is contrary to the…easement agreement, the Ontario Heritage Act…the Planning Act and cannot be considered as heritage conservation.” Further, the OHT also indicated that it would be seeking a conservation easement agreement on the building to secure its long term protection “(in situ and in toto)”. A copy of that letter can be found as an attachment to this response.

Easement Agreement

The Easement Agreement between the City of Ottawa and the Ontario Heritage Foundation, (now the Ontario Heritage Trust), dated January 15, 1996, covers both the Aberdeen Pavilion Building and the approach to the building from Bank Street (Part 1 on Plan 4R-11612) as well as a large parcel of land to the east and south of the Aberdeen Pavilion building (Part 2 on Plan 4R-11612) visible from the Queen Elizabeth Driveway. The Easement Agreement is intended to "conserve the aesthetic and scenic character and condition of the property (all of Parts 1 and 2 on Plan 4R-11612) as well as the Aberdeen Pavilion (referred to in the agreement as the “Building”). Part 1 is not relevant to this opinion as it pertains solely to the site line corridor off of Bank Street, looking easterly to the western façade of the Pavilion.

The Part 2 lands are relevant to this opinion (see attached plan entitled: “Sketch of Lansdowne Park Indicating Protected Sight-Lines of the Building From the Driveway” attached as Appendix “D” to the Agreement, but note that the footprints are of buildings that no longer exist along the Queen Elizabeth Driveway) and by Paragraph 1.10 of the Easement Agreement that provides that the City shall be permitted to "carry out any activities on the Lands to the south and east of the Building provided that such activities and any structures or buildings erected as a result thereof (a) are compatible with the architectural design and the conservation of the Building; (b) respect and enhance those sightlines of the Building from the Driveway adjacent to the Rideau Canal which site lines are shown on Appendix "D" to the Easement Agreement."

The proposed relocation of the Horticulture Building to the northeastern side of the Aberdeen Pavilion is therefore permissible based on the geographic requirement in the above provision as set out in the above referenced Sketch. Notwithstanding that the contextual relationship between the Aberdeen Pavilion and the Horticulture Building would change with its relocation, since the Horticulture Building is currently located on site and is also a designated heritage structure it arguably is compatible with the ‘architectural design and conservation’ of the Pavilion.

In the event that the City wishes to rely on Paragraph 1.10, the City "shall, during the development or design of such structures or buildings, consult in writing with the Foundation with regard to the requirements contained in Subparagraph 1.10(a) and (b)". All design drawings are to be completed in consultation with the OHT, however, this provision does not require the City to obtain the consent of the OHT.

Should the City fail to meet its obligations under the Easement Agreement to consult, the OHT could, pursuant to Paragraph 3.0, enter the property and remedy any perceived breach at the City's expense. In practical terms, this could mean that the OHT might pursue legal action to ask a court to restrain the proposed relocation of the Horticulture Building.

In light of the above, I am of the opinion that the City has an obligation to consult in writing with the OHT with respect to the proposed relocation of the Horticulture Building, However, that obligation does not extend so far as to require the City to obtain the consent of the OHT to the proposed relocation.

Ontario Heritage Act

In 1994, the City of Ottawa passed By-law No. 8-94 designating the Horticulture Building as a building of architectural and historical value. A review of the Schedule to the By-law suggests that the heritage designation applies only to the building footprint and its exterior.

Since the City is the owner of the Horticulture Building, pursuant to Section 33 of the Ontario Heritage Act, it has the sole authority to consider and approve its alteration, including its relocation. The Section states as follows:

Alteration of property

33.  (1)  No owner of property designated under section 29 shall alter the property or permit the alteration of the property if the alteration is likely to affect the property’s heritage attributes, as set out in the description of the property’s heritage attributes that was required to be served and registered under subsection 29 (6) or (14), as the case may be, unless the owner applies to the council of the municipality in which the property is situate and receives consent in writing to the alteration.

Consequently, the OHT has no legal authority under the Act to require the City to obtain OHT approval for any applications related to the Horticulture Building. Furthermore, the Ontario Heritage Act does not preclude the ability to pursue alterations, including relocation and even demolition of municipally designated heritage structures, but rather requires that formal consideration and approval of such proposals be given by Council. Any decision by Council can only be appealed to the Conservation Review Board (“CRB”) by the owner of the building, which in this case, is the City. In any event, the authority of the CRB is limited to providing a recommendation to Council with council having the ability to reject or accept any recommendation of the CRB.

Planning Act

The Planning Act is not relevant to this particular issue as the Ontario Heritage Act deals specifically with heritage matters. The only point of relevance to the Planning Act is in the context of Section 3 dealing with the requirement for municipalities in its planning decisions to ensure such decisions are compatible with the Provincial Policy Statement (“PPS”). In this regard, the PPS 2005 in Section 2.6 states:

2.6.1 Significant built heritage resources and significant cultural heritage landscapes shall be conserved.

2.6.2 Development and site alteration shall only be permitted on lands containing archaeological resources or areas of archaeological potential if the significant archaeological resources have been conserved by removal and documentation, or by preservation on site. Where significant archaeological resources must be preserved on site, only development and site alteration which maintain the heritage integrity of the site may be permitted.

2.6.3 Development and site alteration may be permitted on adjacent lands to protected heritage property where the proposed development and site alteration has been evaluated and it has been demonstrated that the heritage attributes of the protected heritage property will be conserved.

Mitigative measures and/or alternative development approaches may be required in order to conserve the heritage attributes of the protected heritage property affected by the adjacent development or site alteration.

The PPS also sets out a definition for the term conserved which states:

Conserved: means the identification, protection, use and/or management of cultural heritage and archaeological resources in such a way that their heritage values, attributes and integrity are retained. This may be addressed through a conservation plan or heritage impact assessment.

As such, to be consistent with the PPS, Council, in giving consideration to a proposal involving a municipally designated heritage structure, is required to have before it a conservation plan or heritage impact assessment. Such a document will be part of what is before Council when it considers the application to relocate the Horticulture Building under their authority as set out by Section 33(1) of the Ontario Heritage Act.

Having regard to all of the above, providing the City follows the provisions of the Easement Agreement as set out and, further, approves the relocation of the Horticulture Building under the Ontario Heritage Act, it is permissible for it to relocate the Building and to comply with the provisions of the Easement Agreement. Furthermore, while the OHT has indicated its view that the relocation is contrary to the Ontario Heritage Act and the Planning Act, this view is not supported in law as the Ontario Heritage Act gives authority for the approval of alterations, including relocation and even demolition of municipally-designated heritage buildings to Council. The relevance of the Planning Act is limited only to Section 3 and the PPS which is a policy statement that is required to be read in total and provides that conservation of heritage resources can be addressed through a conservation plan or heritage impact assessment. Consequently, there would be minimal, if any, legal or financial consequences for the City.