The Evolution of Cultural Heritage Landscapes as a Means of Protecting Heritage Resources

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1 The Evolution of Cultural Heritage Landscapes as a Means of Protecting Heritage Resources Heritage conservation itself is not a new planning issue. This issue has traditionally been framed primarily as involving built form. The purpose of this paper is to explore the evolution of Cultural Heritage Landscapes (CHLs) in the context of a variety of development approvals, with a particular focus on a recent decision by the Ministry of the Environment and Climate Change (MOECC) relating to an application by wpd White Pines Incorporated (wpd) for a Renewable Energy Approval (REA). In that decision (16 July 2015, REA R6RWR), MOECC refused two of the proposed wind turbines to ensure that impacts to identified cultural resources and protected properties are mitigated sufficiently and appropriately. Ontario Heritage Act (OHA) The OHA does not specifically identify CHLs as a specific heritage resource, although a property can be designated under section 29 of the Act for reasons of cultural heritage value or interest. The criteria for determining such value or interest is set out in Ontario Regulation 9/06: (1) design or physical value (2) historical or associative value, or (3) contextual value. It is this notion of contextual value defining the character of an area, being linked to its surroundings or recognized as a landmark - that is particularly key to recognizing CHLs and in evaluating the impact of development proposals. PPS 2014 CHLs are a relatively new and evolving concept in the planning lexicon. The Provincial Policy Statement 2014 provides the most recent iteration of provincial thinking on CHLs: 2.6 Cultural Heritage and Archaeology Significant built heritage resources and significant cultural heritage landscapes shall be conserved Development and site alteration shall not be permitted on lands containing archaeological resources or areas of archaeological potential unless significant archaeological resources have been conserved Planning authorities shall not permit development and site alteration on adjacent lands to protected heritage property except 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 Planning authorities should consider and promote archaeological management plans and cultural plans in conserving cultural heritage and archaeological resources. Cultural heritage landscape: means a defined geographical area that may have been modified by human activity and is identified as having cultural heritage value or interest by a community, including an Aboriginal community. The area may involve features such as structures, spaces, archaeological sites or natural elements that are valued together for their interrelationship, meaning or association. Examples may include, but are not limited to, heritage conservation districts designated under the Ontario Heritage Act; villages, parks, gardens, battlefields, mainstreets and neighbourhoods, cemeteries, trailways, viewsheds, natural areas and industrial complexes of heritage significance; and areas recognized by federal or international designation authorities (e.g. a National Historic Site or District designation, or a UNESCO World Heritage Site).

2 Page 2 The definition of a CHL in the PPS 2014 is fairly broad and was in fact expanded from the 2005 version to extend to a wider range of properties. The effect of this should be to increase its utility as a tool of heritage protection. Planning Cases Historical value or interest is generally signified by listing a property on an inventory of heritage property or by way of a designating by-law. This is however not the only signifier; in a number of decisions the Ontario Municipal Board (OMB) has recognized the existence/value of heritage resources, including CHLs, that have not been designated as such. Canadian Niagara Hotels (12 April 2005, PL040295) involved a severance application for a site along the Niagara River Parkway. In that case, Members Pendergast and Rossi held that the fact that a property is not designated under the OHA is not determinative of its heritage value: a site is designated in recognition of its heritage value. The heritage value does not flow from the designation. In keeping with this finding, the Board accepted that the Parkway in its entirety could be considered as a CHL. Referencing the Venice and Appleton Charters, the Members viewed the application in the context of both its site and larger setting, finding that the application was not appropriate as it would have an adverse impact on the larger cultural heritage landscape in which it was located. In appeals of Ottawa By-law by Ted Lawrence (18 November 2014, PL140212), Member Denhez similarly held that a lack of a heritage designation for a property is in no way determinative of a property s heritage value or interest, particularly in the context of a broader understanding of built and landscape heritage values in the 2014 PPS. The David Dunlop Observatory case (Corsica Developments Inc, 1 May 2013, PL101254) is perhaps the highest profile planning case to involve a CHL. The boundary of that CHL was established by the Conservation Review Board to include a wide range of built form and natural features of historical, contextual and physical value. Residential development was permitted outside of that boundary. The OMB accepted the evidence of Michael McLelland that CHLs are complex and evolve organically. In that case the OMB found that that CHL was a dynamic and evolving entity, which anticipates that change will occur. What happens when the CHL is more static, intended to protect a particular historical period of time? CHLs and REAs This issue of the evolution of a landscape as being of cultural heritage value and the ways in which it should be protected has most recently been tested in the context of the wpd application for a wind turbine project in Prince Edward County (County). Statutory Background Enacted under the Environmental Protection Act (EPA), Ontario Regulation 359/09, Renewable Energy Approvals, sets out the criteria to be considered in any application for an REA. Part IV of the Regulation, the Application Process, specifically addresses issues of heritage. Section 19 addresses the authorizations required where a project will result in the alteration or demolition of a protected property. This is a straightforward regulation of circumstance.

3 What is not so straightforward are situations where a renewable energy project may impact a property that is not protected under the OHA or an abutting property protected by the OHA. This latter circumstance, which is regulated by section 23 of O. Reg 359/09, was of particular importance for the wpd application. Page 3 Heritage assessment 23. (1) Subject to subsections (2) and (5), a person who proposes to engage in a renewable energy project shall ensure that a heritage assessment is conducted, consisting of the following steps: 1. Conduct an investigation, including historical research and visual inspection, to determine whether, i. there is potential for the presence of a heritage resource at the project location on any part of the project location that is not on a property described in Column 1 of the Table to section 19, and ii. any properties described in Column 1 of the Table to section 19 abut the parcel of land on which the project location is situated. 2. If the determination under subparagraph 1 i is that there is potential for the presence of a heritage resource, confirm the presence or absence of a heritage resource by applying the criteria set out in Ontario Regulation 9/06 (Criteria for Determining Cultural Heritage Value or Interest) made under the Ontario Heritage Act. 3. Evaluate the impact of engaging in the renewable energy project on the heritage attributes of any heritage resources at the project location and on any abutting properties described in subparagraph 1 ii and provide recommendations for measures to avoid, eliminate or mitigate the impact if, i. the determination under subparagraph 1 ii is that there are abutting properties as described in that subparagraph, or ii. the presence of a heritage resource at the project location is confirmed under paragraph 2. O. Reg. 195/12, s. 15 (1). (2) Subsection (1) does not apply if the person determines that, (a) there is low potential for the presence of a heritage resource at the project location after considering the potential, which consideration must include completion of the document entitled, REA Checklist: Consideration of Potential for Heritage Resources, as amended from time to time, available from the Ministry of Tourism, Culture and Sport; and (b) there are no properties described in Column 1 of the Table to section 19 that abut the parcel of land on which the project location is situated. O. Reg. 195/12, s. 15 (1). (2.1) A person who is subject to subsection (1) shall submit a heritage assessment report to the Ministry of Tourism, Culture and Sport, consisting of, (a) a summary of the qualifications and experience of the persons who conducted the assessment and prepared the report; (b) a summary of the process followed in each applicable step of the heritage assessment and the conclusions reached at the end of each step; (c) a description of any documents used to conduct the assessment;

4 (d) a statement of cultural heritage value or interest for each confirmed heritage resource, including a description of the heritage attributes; Page 4 (e) maps or diagrams depicting the project location, the renewable energy generation facility and any heritage resources and protected properties identified as a result of assessment; and (f) the recommendations of the persons who conducted the assessment for measures to avoid, eliminate or mitigate the impact on heritage resources. O. Reg. 195/12, s. 15 (1). (3) As part of an application for the issue of a renewable energy approval, a person to whom this section applies shall submit, (a) written comments provided by the Ministry of Tourism, Culture and Sport in respect of any heritage assessment conducted under this section; and (b) any heritage assessment reports prepared under this section. O. Reg. 359/09, s. 23 (3); O. Reg. 195/12, s. 15 (2, 3). (4) For the purposes of this section, heritage attributes has the same meaning as in section 1 of the Ontario Heritage Act. O. Reg. 195/12, s. 15 (4). (5) This section does not apply to a person who proposes to engage in a renewable energy project in respect of, (a) a Class 2 wind facility; (b) a Class 1 or 2 anaerobic digestion facility; (c) a Class 1 thermal treatment facility, if the generating unit of the facility is located at a farm operation; or (d) a Class 2 thermal treatment facility. O. Reg. 195/12, s. 15 (4). wpd Application The wpd application proposed to locate 29 wind turbines in an area of the County that is particularly rich in heritage resources. These attributes have given rise to a committed heritage group and a robust tourist industry in the County. As part of the County s rich heritage resources, the Rose-Frost House at 940 Royal Road was designated as the first CHL in the County shortly after the wpd application was filed. The reasons for the designation are lengthy but can be summed up as follows under the terms of the designating By-law : an evolved rural landscape that shows features of pre-industrial, rural use typical of early Prince Edward County, plus elements of a designed landscape in the placement of buildings and landscape features. That property is part of a larger landscape known, but not designated, as the Royal Road CHL. The properties that comprise that CHL are important as examples of a settlement pattern of the early nineteenth century and way of life, an aesthetically pleasing architectural vernacular and the intentional plantings of hedgerows, windbreaks and shade trees. The Royal Road CHL includes the Cheese Factory at 1105 Royal Road, designated as a heritage building with ties to the local dairy industry.

5 Page 5 As a result of the presence of such a significant amount of heritage resources, the assessment of the impacts of the proposed projects impacts on the local heritage stock was a key element of the wpd application. wpd hired a consultant to undertake the Heritage Impact Assessment Report (HIA) in support of its proposed wind development. In the view of the heritage community, locating a number of turbines in close proximity to the County s heritage attributes would adversely impact their heritage value. With respect to the CHLs, the proposed turbines would represent the insertion of a 21 st century industrial form and use into a 19 th century landscape. This would undermine the contextual understanding of that protected landscape. wpd Heritage Impact Assessments The first version of the HIA, dated June 2012, was originally accepted as complete by the Ministry of Tourism, Culture and Sport, (MTCS). MTCS provides the first level of review for MOECC in evaluating the heritage impacts. This was followed by a hue and cry by members of the heritage community and the County that the HIA was deficient in terms of its scope, visualizations and information on heritage resources. As a result, MTCS reversed itself in September of 2012 and ordered wpd to revise the HIA to incorporate new information about built heritage resources. This information was to come through meetings with the heritage community. With respect to the CHLs, the revised HIA, dated October 2013, noted: the cultural heritage values of the Royal Road streetscape and individual CHLs along Royal Road may be impacted by the Project... Turbine 11 has the potential to impact views between the structures and properties along the linear village of Royal Road and detract from an understanding of the visual and land use relationship of these adjoining properties. These views are not only related to the cultural heritage value of the overall cultural landscape, but more specifically, this view is one of the heritage attributes of 940 Royal Street (sic), which is outlined in the designation bylaw. Similarly, Turbine 07 has the potential to impact views from public areas associated with the Royal Street (sic) Cheese Factory, a protected property. Under O.Reg 359/09 HIAs are required to propose mitigation measures where there are adverse heritage impacts. In addressing the above noted impacts the Revised HIA, other than relying on the notion that the turbines would eventually be removed at the end of the project s life, proposed no such mitigation: In order to avoid any visual impacts on the Royal Road Streetscape and individual CHRs located within the cultural landscape, turbines T07 and T11 would have to be avoided. Turbines T07 and T11 have been decided based on consideration of availability of land, and natural environment, noise and property line setbacks Moving the turbines is not possible due to these constraints, and avoidance/removal of the turbines will impact the economic viability of the project. The statutory regime is silent on any issue of economic viability and the issue of economic viability had not been raised in the previous version of the HIA. Moreover, this position on avoiding mitigation runs contrary to the MTCS Information Bulletin for REA applicants on Cultural Heritage Resources.

6 Page 6 This may be one area where the EPA and the Planning Act diverge. Heritage is to be viewed as a distinct and separate part of a proposal under O. Reg 359/09 whereas the OMB has focused on balancing competing interests where heritage is involved (see for example Birchgrove Estates Inc, 2007, PL050679). Environmental Bill of Rights Registry (EBR) In the view of the heritage community and the County, the revised HIA did not represent a marked improvement over the original HIA. MTCS was requested by both to require a further period of consultation and modelling of impacts. Notwithstanding these concerns, MTCS accepted the report as complete and the application was permitted to proceed to the Environmental Bill of Rights Registry (EBR) for public comment and a more intense scrutiny by MOECC and MTCS. The public comments focused largely on the deficiencies in the revised HIA and the review of same by MTCS staff, the adverse impacts of the proposed wind turbines on the Royal Road CHLs and other County heritage resources. The County passed a motion on 10 April 2014 requesting that MOECC not approve the project, and if the project was to be approved, that proposed Turbines T07, T09 and T11 be removed/relocated :to remove the impacts on adjacent cultural heritage resources in the [Revised HIA]. As a result of Freedom of Information requests involving this EBR process, the position of MTCS on the applicability of the PPS in the context of REAs became known. MTCS staff, in their review of comments from the public, wrote: There are a number of references to cultural heritage policies included in either the 2005 Provincial Policy Statement or the revised PPS While the PPS is an important document, as something that is mandated under the Planning Act, it is generally not applicable to projects subject to the Renewable Energy Approvals process, as a result of legislative amendments that were made under the Green Energy and Green Economy Act (2009). O.Reg 359/09 incorporates requirements related to environmental considerations, including cultural heritage, which are generally consistent with the Province s land use planning framework. The authority for the PPS derives from the Planning Act, but it is a key part of the regulation and use of land in Ontario. Moreover, O. Reg 359/09 does not provide any stakeholder with explicit direction on how to assess impacts on heritage resources. The Information Bulletin provides some guidance, but any assessment/analysis must rely on the standard heritage principles enunciated in the different international documents as well, I would think, on the principles of heritage planning developed for the Province. CHLs, as an evolving concept, should be viewed through this lens to provide certainty to all participants in the REA process. MOECC Decision on the wpd REA While the wpd project was approved in general by MOECC, the two turbines causing the greatest impacts on the Royal Road CHLs, T07 and T09, were refused. This is a precedent setting decision, the first by MOECC to refuse wind turbines on the basis of the protection of visual and cultural heritage landscapes. One of the interesting parts of this decision was that the adverse impacts on the CHLs were essentially privileged over the impacts on individually designated properties.

7 Page 7 For the heritage community this case is an important one in recognizing the benefits of a CHL as a means of protecting cultural heritage resources. Conclusion The concept of a Cultural Heritage Landscape is evolving to becoming an increasingly important part of the development process. CHLs may be complex, they may be dynamic, and they may static. For both those seeking to protect a heritage resource and those seeking approvals in the context of a heritage resource it is important to understand the utility and the impact CHLs can have whether or not they are officially designated as such.