Property Rights and Heritage Designation

Can municipal councils require an owner's consent to designation? The simple answer is “No”.

The ACO is still regularly informed by community members across Ontario that their local council refuses to designate a heritage property without the owner's consent. As recently as August 2007, a member of a municipal heritage committee in the GTA wrote to the Toronto Star expressing outrage that another municipality had designated a property over the owner's objections, citing the need to respect  property rights.

If members of heritage committees don't understand the legislation, it is easy to see why there is a widespread misapprehension of councils' powers and responsibilities.

The facts are clear. The owner's consent is not required for a designation to proceed, nor may a council adopt a policy to that effect.

In November 2003, an Ontario Divisional Court decision in the case of Tremblay v. Lakeshore (Town) held that requiring the owner's consent to designation was not consistent with the intent of the Ontario Heritage Act. The main points of the judgment include:

• Requiring the consent of the owner is contrary to the intent of the legislation [23, 26]
• Protection of the heritage of Ontario…. may interfere with individual property rights [24]
• ….the very purpose of the Act must be to balance the interests of the public, community and the owner. This balancing would not be necessary if the owner's consent were a precondition [27]

Having said this, owners clearly have rights which must be respected. The Act requires that council give owners notice which allows them, and others, the right to object and have the matter reviewed by the Conservation Review Board. It is also good practice to involve owners at the earliest stage of considering listing or designation. For a valuable discussion of this issue, consult the Ontario Heritage Tool Kit, “Designating Heritage Properties” (available on the Ministry of Culture's website).

Click here to find the full text of the Tremblay v. Lakeshore (Town) judgment or Google “Ontario Superior Court” and go to “Divisional Court”, “Judgments”, “2003”, “November”, and you will find “2003-11-04. Tremblay v. Lakeshore (Town), CanLll 6354 (ON SCDC)”. Paragraphs #23-28 explain why a council is not permitted to require an owner's consent to designation.

Scott James
Manager

ACO PreservationWorks! Program