Golf course was ‘structure’ on designated property

Municipal law - Zoning - Zoning bylaws

Golf course was one of Canada's most famous, and town where it was located regarded it as having significant historical value. Owner of golf course advised town that it intended to redevelop golf course into residential and mixed-use community and submitted applications to amend town’s official plan and zoning bylaws, and sought approval of subdivision plan. Town served owner with notice of intention to designate golf course as property of cultural heritage value or interest under s. 29 of Ontario Heritage Act (Act). Owner advised it intended to submit application under s. 34 of Act to “demolish” and/or “remove” golf course to town, and town took position that application was properly within scope of s. 33 of Act, which permitted owner to “alter” designated property. Town's council officially passed s. 29 bylaw designating golf course and surrounding property as property of cultural heritage value or interest. Town applied for declaration that s. 34 did not apply to owners' proposed demolition or removal of golf course whereas owner applied for declaration that it could make application under s. 34 of Act. Application judge found that demolition of buildings on designated property fell within scope of s. 34(1) of Act, and that other features comprising golf course were “structures” within meaning of s. 34(1) of Act. Town appealed. Appeal allowed in part. At appeal hearing, parties agreed that application judge erred in ordering town to process owner’s s. 34 application. Owner’s request for mandamus was withdrawn on consent as result, applicable portion of application judge’s order was set aside. Statutory interpretation of Act and sections supported that, while purpose of Act was to protect heritage of Ontario, broad powers of municipalities to designate property under Act were counterbalanced with procedural protections of which s. 34 and its appeal route was one. Legislative history of s. 33 and 34 of Act “reflects a particular balancing of private property rights and heritage conservation.”. Section 34 of Act provides for greater procedural protections for property owner for particular “subset of ‘alterations’ involving ‘demolition or removal’ of ‘building or structure’ that would wholly remove cultural heritage attributes associated with property.”. Golf course was “structure” on designated property within meaning of s. 34(1) of Act. Owner properly framed its application to demolish and/or remove golf course under s. 34 of Act. That conclusion flowed from text of s. 34, context of Act, and purpose of Act generally and ss. 33 and 34 specifically, viewed considering legislative history. Section 34 of Act applied because golf course was product of significant construction and engineering, comprise or built up of constituent parts, and intended to remain permanently on the property. Such interpretation accorded with recognition that term “structure” when used in Act embraced earthworks. It was also consistent with the legislative intention underlying Act generally and s. 34 specifically to conclude that golf course was “structure” within meaning of s. 34 because owner's plans, if realized, would wholly remove cultural heritage attributes identified in respect of the designated property.

Oakville (Town) v. Clublink Corporation ULC (2019), 2019 CarswellOnt 17136, 2019 ONCA 826, Doherty J.A., I.V.B. Nordheimer J.A., and A. Harvison Young J.A. (Ont. C.A.).

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