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PLANNING AND DEVELOPMENT - Heritage property protection

Thursday, December 05, 2019 @ 8:03 AM  


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Appeal by the Town of Oakville from a judgment interpreting the Ontario Heritage Act. From 1999 onward, the Clublink respondents owned the Glen Abbey golf course, a 94-hectare property comprised of valley and tablelands. From 1977 onward, the Town's Official Plans and zoning evidenced an intention that Glen Abbey remain a golf course permanently, reflecting its longstanding history of hosting the Canadian Open golf tournament. In 2014, the Town adopted a strategy to conserve certain cultural heritage landscapes, including Glen Abbey. In 2015, the respondents advised that they intended to redevelop Glen Abbey into a residential and mixed-use community comprised of approximately 3,000 residential units plus office and retail space. In 2016, the respondent submitted applications in furtherance of the development plan. In 2017, the Town rejected the respondents' applications and passed a bylaw that designated the golf course and surrounding area as a property of cultural heritage value or interest under s. 29 of the Ontario Heritage Act (Act). The respondents advised they intended to apply to demolish Glen Abbey pursuant to s. 34 of the Act. Under s. 34, the respondents' application would ultimately be determined by the Local Planning Appeal Tribunal. However, the Town took the position that any such application was governed by s. 33 of the Act, which conferred the decision-making power to the municipal council. The court below concluded that Glen Abbey was a structure within the scope of s. 34 of the Act based on the significant construction and engineering required to create a golf course. The Town appealed.

HELD: Appeal dismissed. The application judge correctly found that Glen Abbey was properly regarded as a structure within the meaning of s. 34(1) of the Act. The purpose of the Act was to provide for the conservation, protection and preservation of the province's heritage. The Act counterbalanced a municipality's broad power to designate properties as being of cultural heritage value with procedural protections for private property owners who sought to make changes to designated properties. Based on the scheme of ss. 33 and 34 of the Act, and the provisions' legislative history and current statutory context, the different procedural protections between the provisions reflected a balancing of private property interests and the public interest in conserving property of cultural heritage value. The legislative context of the word "structure" in s. 34 went beyond the ordinary meaning of the word and accorded with the application judge's conclusion that a golf course was the product of significant construction. The respondents' proposed plans would wholly remove the cultural heritage attributes identified by the Town and necessitate repeal of the designation bylaw. This was precisely the type of situation contemplated by s. 34 of the Act. Therefore, the respondents' application to demolish and/or remove Glen Abbey was properly framed.

Oakville (Town) v. Clublink Corp. ULC, [2019] O.J. No. 5371, Ontario Court of Appeal, D.H. Doherty, I.V.B. Nordheimer and A.L. Harvison Young JJ.A., October 23, 2019. Digest No. TLD-December22019012