Qureshi v. Mississauga (City), 2015 ONCONRB 99223

Conservation Review Board

Commission des biens culturels

ISSUE DATE: November 12, 2015

CASE NO.: CRB1407

PROCEEDING COMMENCED UNDER subsection 29(5) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Owners/Objector: Latiq Qureshi and Fatima Qureshi

Subject: Notice of Intention to Designate

Property Address: 2625 Hammond Road

Legal Description: Part of Lot 2, Range 1, South Dundas Street, Racey Indian Tract, Township of Toronto, designated as Part 3, Plan 43R-3594

Municipality: City of Mississauga

CRB Case No: CRB1407

CRB Case Name: Qureshi v. Mississauga (City)

Heard: July 27 to 29, 2015, in Mississauga, Ontario

APPEARANCES:

Parties	Counsel+/Representative
City of Mississauga	Bruce C. Ketcheson+ and Raj Kehar+
Latiq Qureshi and Fatima Qureshi	Scott Snider+ and Anna Toumanians+

Participant	Representative
Charlene Haupt	Self-represented

REPORT OF THE BOARD DELIVERED BY SU MURDOCH, DANIEL NELSON AND LAURIE SMITH

SUMMARY OF REVIEW BOARD FINDINGS

1The Conservation Review Board ("Review Board") considered the evidence of the Parties and for the reasons set out in this Report recommends that the City of Mississauga ("City") not proceed with a by-law under s. 29(14) of the Ontario Heritage Act ("Act") to designate the entirety of the 2.15 acres of Part 3, Plan 43R-3594, municipally known as 2625 Hammond Road.

2The Review Board also recommends that the City not repeal By-law 224-84, which protects the southern portion of Part 3, Plan 43R-3594, but that the City weigh the advantages of amending By-law 224-84 to clarify or correct the statement explaining the property's cultural heritage value or interest and the description of the property's heritage attributes. The purpose of any such amendment would be to provide clarity for the long term protection of that portion of the property as a cultural heritage resource.

OVERVIEW

3The property known municipally as 2625 Hammond Road in the City of Mississauga (Part of Lot 2, Range 1, South Dundas Street, Racey Indian Tract, Township of Toronto, described as Part 3, Plan 43R-3594) is a 2.15-acre parcel of land just south of Dundas Street West and fronting on the east side of Hammond Road, with an east (rear) boundary of King Forrest Drive.

4This 2.15-acre parcel is the remnant of the hundred acre farmstead formerly owned by Oliver Hammond (1812-1874) and his son Thomas (1841-1892). The Hammonds were successful merchants and farmers in the Erindale (formerly Hammondville) village area. Oliver inherited the property in 1858 and the two Hammonds are presumed to have erected the existing brick dwelling about 1866. The family was associated with the property until 1932.

5In 1984, the City, acting under s. 29 of the Ontario Heritage Act, designated the southern portion of Part 3, Plan 43R-3594, describing it in Schedule B of designating By-law 224-84 as Part 1, Plan 43R-11502. This southern portion contains the c.1866 dwelling, part of the traditional laneway, a former root cellar rebuilt as a modern guest house, late 20^th^ century outbuildings, contemporary landscaping, a circular drive, and other structures.

6In September 2014, the City issued a Notice of Intention to Designate ("NOID") (Schedule 1) under s. 29(3) to protect what is being described as the "entirety" of Part 3, Plan 43R-3594, as a property of cultural heritage value or interest as prescribed by Ontario Regulation 9/06: Criteria for Determining Cultural Heritage Value or Interest ("O. Reg. 9/06").

7On October 16, 2014, one of the two property owners, Latiq Qureshi, objected to the NOID. The other property owner, Fatima Qureshi, did not file a written objection but appointed the same legal counsel as Latiq Qureshi to be her Representative.

8Given that the southern portion of Part 3, Plan 43R-3594, is already designated, the NOID was considered by the Review Board as an intention to protect the northern portion of the 2.15 acres. The northern portion contains an open watercourse (a tributary of Loyalist Creek, also known as Governor's Creek, which enters the Credit River to the east) and treed valley lands. There are no historic buildings or structures on this northern part.

9The City's actual intent is to repeal By-law 224-84, replacing it with one designating by-law protecting the entire 2.15-acre parcel of land.

10This proceeding arises from an objection under s. 29(5) to the NOID. Although it does not arise from an application to amend a designating by-law under s. 30.1(1), there was prepared testimony from both Parties about amending the content of By-law 224-84 which protects the southern portion of the property.

11At the close of the hearing, direction was sought from the Parties on whether they anticipated the Review Board extending its consideration of the evidence to the amending of By-law 224-84. In their written closing arguments and reply received on September 4, 2015, the Parties submitted that the Review Board's jurisdiction under s. 29(12) is broad enough to apply the evidence heard to a consideration of the amending of By-law 224-84. Accordingly, the Review Board also gives consideration in this Report to amending that by-law.

12On July 27, 2015, the Review Board panel members, the City's legal counsel, the Owners/Objector and their legal counsel, and the three witnesses (David Cuming, Wendy Shearer, and Amy Choi) conducted a site visit of the property. The hearing commenced on the same day and closed on July 29, 2015. Final written submissions were filed by the parties on September 4, 2015.

DETERMINATION OF CULTURAL HERITAGE VALUE OR INTEREST

RELEVANT LEGISLATION

13Ontario Heritage Act, Designation of Properties by Municipalities

Definitions

1. In this Act,

"heritage attributes" means, in relation to real property, and to the buildings and structures on the real property, the attributes of the property, buildings and structures that contribute to their cultural heritage value or interest:

Designation by municipal by-law

29.(1) The council of a municipality may, by by-law, designate a property within the municipality to be of cultural heritage value or interest if,

(a) where criteria for determining whether property is of cultural heritage value or interest have been prescribed by regulation, the property meets the prescribed criteria; and

(b) the designation is made in accordance with the process set out in this section.

29.(14) After considering the report under subsection (12), the council, without a further hearing,

(a) shall,

(i) pass a by-law designating the property,

(ii) cause a copy of the by-law, together with a statement explaining the cultural heritage value or interest of the property and a description of the heritage attributes of the property,

(A) to be served on the owner of the property and on the Trust, and

(B) to be registered against the property affected in the proper land registry office, and

(iii) publish notice of the by-law in a newspaper having general circulation in the municipality; or

(b) shall withdraw the notice of intention to designate the property by causing a notice of withdrawal,

(i) to be served on the owner of the property and on the Trust, and

(ii) to be published in a newspaper having general circulation in the municipality.

Ontario Regulation 9/06 – Criteria for Determining Cultural Heritage Value or Interest

1.(1) The criteria set out in subsection (2) are prescribed for the purposes of clause 29(1)(a) of the Act.

1.(2) A property may be designated under section 29 of the Act if it meets one or more of the following criteria for determining whether it is of cultural heritage value or interest:

Design or Physical value

1. The property has design value or physical value because it,

i. is a rare, unique, representative or early example of a style, type, expression, material or construction method,

ii. displays a high degree of craftsmanship or artistic merit, or

iii. demonstrates a high degree of technical or scientific achievement.

Historical or Associative Value

2. The property has historical value or associative value because it,

i. has direct associations with a theme, event, belief, person, activity, organization or institution that is significant to a community,

ii. yields, or has the potential to yield, information that contributes to an understanding of a community or culture, or

iii. demonstrates or reflects the work or ideas of an architect, artist, builder, designer or theorist who is significant to a community.

Contextual Value

3. The property has contextual value because it,

i. is important in defining, maintaining or supporting the character of an area,

ii. is physically, functionally, visually or historically linked to its surroundings, or

iii. is a landmark.

BACKGROUND

14In 1977, the City passed By-law 476-77 (Exhibit 4, page 3) to designate the entire 2.15 acres of Part 3, Plan 43R-3594, for "architectural and historic value or interest" reasons. This by-law describes the c.1866 former Hammond dwelling as the sole heritage attribute.

15In 1984, the City repealed By-law 476-77 and passed By-law 224-84 (Exhibit 4, page 13) to designate only the southern portion of the property for its "architectural value and historical interest." The parcel protected by this by-law contains the c.1866 dwelling, part of the laneway, other structures, and landscape features.

16As with many designating by-laws passed prior to the amendments to the Act in 2005, the statement of the "reasons for designation" (known after 2005 as the "statement of cultural heritage value or interest and description of heritage attributes") in By-law 224-84 is brief. Schedule A of By-law 224-84 provides:

The Hammond House is listed on the Heritage Inventory and is recommended for designation for its architectural and contextual importance. Built by Thomas Hammond, c.1866, the house is a fine example of the type of farmhouse recommended by the Canadian Journal, The Canada Farmer in the mid-1860s. The building achieves distinction through the use of a variety of stylistic details. Architectural features of importance include the central projecting bay terminating at the roof level in a gable, Italianate brackets, stone quoining and paired round headed windows in the gable ends of the rear addition. Contextually, the house is a recognizable reminder of 19^th^ [century] settlement in Erindale and Mississauga.

17In August 2014, the City's Culture Division prepared a Cultural Heritage Assessment (Exhibit 4, page 116) which concludes that By-law 224-84 fails to recognize that the "natural features of the site are intrinsically linked to this history [of the property]." These "natural" features are said to contribute to the cultural value or interest of the whole 2.15 acres as a 19^th^ century farmstead, particularly that of the Hammond family. As such, the Cultural Heritage Assessment recommends that the property would be better served by a new by-law that includes the northern portion of Part 3, Plan 43R-3594, which contains a watercourse and treed valley lands, as well as other "natural" features throughout the 2.15 acres. To achieve this, the City needed to pass a new designating by-law and repeal By-law 224-84. To this end, in September 2014, the City issued the NOID.

18On July 27, 2015, the Review Board commenced a hearing under s. 29(8). The scope of inquiry was to hear evidence sufficient to report to City Council whether in the opinion of the Review Board, the northern portion of the 2.15 acres should be included in a designation under s. 29 for its cultural heritage value or interest as prescribed by O. Reg. 9/06. The testimony before the Review Board was intertwined with proposed amendments to By-law 224-84. The Review Board thus considered the evidence in the context of this twofold agenda – the northern lands being proposed for inclusion in a designating by-law and the potential need to amend By-law 224-84.

19The City called one witness, the Owners/Objector called two witnesses, and one participant (a member of the public) gave a statement. A list of exhibits filed at the hearing is attached as Schedule 3 of this Report.

WITNESSES IN ORDER OF APPEARANCE

20Wendy Shearer was called by the City. Ms. Shearer was admitted as an expert witness. She is a landscape architect and cultural heritage landscape specialist with extensive experience in "evaluating and planning for the conservation of heritage properties." She is a member of the College of Fellows of the Canadian Society of Landscape Architects and the recipient of a Lifetime Achievement Award from the Canadian Association of Heritage Professionals. The breadth of her work is outlined in her Witness Statement (Exhibit 3). Of particular note is that she is knowledgeable in "19^th^ century settlement patterns and agricultural practices that are part of the historical development of southern Ontario."

21Amy Choi was called by the Owners/Objector. Ms. Choi was admitted as an expert in the identification and inventorying of tree species. She has a B.Sc. in Environmental Science and a M.Sc. in Forestry.

22David J. Cuming was called by the Owners/Objector. Mr. Cuming was admitted as an expert in "cultural heritage resource planning, design, conservation and management." He holds professional memberships with the Canadian Institute of Planners and the Royal Town Planning Institute. He is a Registered Professional Planner in Ontario and a member of the Canadian Association of Heritage Professionals.

23The Review Board reminded the witnesses that by signing the Acknowledgement of the Duty of an Expert Witness they agreed to give evidence that is "fair, objective, and non-partisan."

PARTICIPANT

24Charlene Haupt has been a resident of the Sherwood Forest subdivision since 1976 and is a member of the Sherwood Forest Residents' Association. She is aware of the Hammond House as a heritage property in the vicinity. Her statement advocated for protecting the property and using educational tools to interpret its origins as a mid 19^th^ century farmstead.

Case for the Municipality

Witness Wendy Shearer

25In February 2015, Ms. Shearer was retained by the City to provide her "professional opinion on the merits of the designation of the entire property at 2625 Hammond Road." She was not involved in drafting the current NOID. She categorizes the 2.15 acres of Part 3, Plan 43R-3594, as a cultural heritage landscape.

26As a heritage landscape specialist, Ms. Shearer explained her approach to the assessment of a cultural heritage landscape as a process of "seeking physical, on site, evidence of past activity." The challenge is always in identifying and describing what features of a property (heritage attributes) support the cultural heritage value or interest of a cultural heritage landscape, and doing so in a way that can "sustain and retain a living heritage landscape." She explained that heritage conservation policy and practice have evolved since By-law 224-84 was passed in 1984, to now embrace "the cultural landscape setting and context of the property . . . as contributors to a property's heritage significance."

27The methodology undertaken by Ms. Shearer for evaluating the property as what she terms "an agricultural heritage landscape" involved applying accepted definitions, policies, and guidelines for analysis. She undertook a site visit on June 8, 2015, reviewed previous designating by-laws and related documents held by the City, and examined mapping and aerial photographs. She did not conduct any independent historical research, instead relying on the Cultural Heritage Assessment prepared by the City's Culture Division in August 2014. When preparing her testimony, she reviewed Ms. Choi's July 2015 report and accompanying Updated Tree Inventory and Preservation Plan, and Mr. Cuming's Witness Statement.

28Ms. Shearer tested her findings against the definition of Cultural Heritage Landscape contained in the Provincial Policy Statement 2014 (the "PPS"). She cited PPS policy 2.6 Cultural Heritage and Archaeology, which directs that "significant built heritage resources and cultural heritage landscapes shall be conserved." She also considered the direction provided in the Ministry of Tourism, Culture and Sport's Heritage Tool-Kit, and the Parks Canada publication, Standards and Guidelines for the Conservation of Historic Places in Canada (Second Edition).

29Ms. Shearer also applied the criteria used in Cultural Landscape Inventory: City of Mississauga, compiled in 2005 by The Landplan Collaborative Ltd. (Exhibit 12). The property is not listed in this inventory. In Ms. Shearer's opinion, this omission relates to the ongoing nature of the inventory compilation process, and not any evaluation by Landplan resulting in the rejection of the property as a cultural landscape.

30The final step in Ms. Shearer's evaluation was to organize her findings within the three overall categories, but not the subcategories, of O. Reg. 9/06.

31At this point in the proceeding, the Review Board clarified that the definitions and provisions of the Act and its Regulations are the authority for this scope of inquiry. Unlike the PPS, the Act does not define or reference the term "cultural heritage landscape." Similarly, the Heritage Tool-Kit and Parks Canada Standards and Guidelines, although useful evaluative tools, have no legislative authority. The Review Board does view the use of these definitions, policies, and guidelines by a consultant when formulating a recommendation, as an indicator of due diligence.

32It is Ms. Shearer's position that the geographic boundary of By-law 224-84 arbitrarily divides one cultural heritage resource, the 19^th^ century Hammond farmstead, into two parts (separating the protected southern part from the unprotected northern part of Part 3, Plan 43R-3594). Also, the end section of the laneway near Hammond Road is omitted, whereas, the entire length of the laneway would be an appropriate boundary that is "easily recognizable." The by-law also omits the natural features of the land that, in her opinion, have attained cultural (human) meaning. She agrees with the City's attempt to reconstitute this resource into one landscape. This is an "appropriate way to consider a complex landscape such as this."

33In reviewing the content of Schedule A to By-law 224-84, Ms. Shearer indicated she has "no concern" about the "architectural wording," but she concurs with Mr. Cuming on his proposed "improvements" to the description of the former Hammond farmhouse as provided in Exhibit 5, page 12, paragraph 39.

34Ms. Shearer's overall reading of Schedule A is that the intent in 1984 was to identify the property as a remnant farmscape. One indicator is the use of the word "farmhouse" rather than "house" as a distinction that this is being protected as a farm setting. She interprets the wording that the property is a "recognizable reminder of 19^th^ century settlement" as meaning that the property, although now only a remnant of the hundred acres, still embodies elements of the traditional settlement pattern and farm layout of early Ontario.

35According to Ms. Shearer, the layout of this "agricultural cultural landscape" can be traced to purposeful and conscious decisions made at the outset by the Hammonds (and possibly the earlier owners, the Carpenters) when establishing their farm. In her opinion, the integration of the natural topography of the hundred acres into the farm layout is legible in the 2.15 acres.

36For example, Ms. Shearer asserts that the highest elevation was chosen for the location of the dwelling to ensure its visual prominence within the farm and within the area. This highest elevation, combined with the deliberate orientation, deep setback, and near proximity of the dwelling to Hammond Road, achieved a "visual link from the public realm with the setting of the house." As demonstrated during the Review Board site visit, the primary historic view of the dwelling is still open at two locations: an oblique view southeast from the terminus of the driveway at Hammond Road; and at the southwest corner of the lot where an opening in the vegetation frames the west facade.

37Ms. Shearer considers the proximity of the dwelling to the watercourse and treed valley lands to be another example of purposeful design and intent. She credits the Hammonds (and Carpenters) with choosing to integrate, not eradicate, this natural feature. Clustering the buildings beside a watercourse minimized the loss of arable land. Locating the farmhouse anywhere else would not have been an "efficient use of cultivated lands." In Ms. Shearer's opinion, the fact that the treed valley lands and watercourse were "purposively left" to naturalize was a human decision, and one that can be assigned cultural heritage value.

38To Ms. Shearer, the physical evidence of this "purposeful intent" is the contrast edge between the natural valley lands and the manicured landscape of the house yard. "The stream informed the location of the house" and the "edge" between the natural corridor and human landscape took on cultural/human value. "Together they tell an important story."

39Testimony was heard from both Parties that this hundred acres was last cultivated in 1967. The east and south fields and the orchards to the north were subsequently severed and redeveloped for residential and commercial uses. (Phase One of the Sherwood Forest housing area on the former Hammond field acreage was developed in November 1975.) A former root cellar of unknown date, northeast of the dwelling, is now the foundation of a 20^th^ century guest cottage. All of the core farm function buildings (barns, driveshed, etc.) and related infrastructure have been removed. By 2014, Hammond Road no longer intersected with Dundas Street West. There are modern outbuildings and recent landscaping on the site.

40Ms. Shearer maintains that in spite of these changes and losses over time, it is still possible to distinguish elements of the traditional layout of this farmstead within the remnant 2.15 acres. To demonstrate this, an artistic rendering of the "late Oliver Hammond, Esq., Credit, Ont," farmstead published in the 1877 Illustrated Historical Atlas of Peel County, was entered as Exhibit 4, page 207 (Schedule 2). Ms. Shearer and Mr. Cuming both describe this depiction as "idealized." Using the depiction, Ms. Shearer demonstrated that many of the features in 1877 are still visible on site. The following is a summary of the features she identified:

• the c.1866 dwelling (now with modifications) set perpendicular to the road;
• the generous setback, framing the view of the west front façade from Hammond Road;
• the curved alignment of the driveway running east from the road, past the house, and to the barns and northeast fields (the barns and fields are now gone);
• the creek meandering through a corridor of randomly spaced trees;
• the trees (now stumps) as indicators of the traditional tree planting practice along a laneway, and of the original grade level;
• a collection of trees first evident in 1877, deliberately retained on the property and renewed over time;
• the spatial organization of the lot evident in 1877 continues to exhibit the sense of scale of the property: tall elements are on the north side of the site, and there are elements around the property line, open spaces, and an architectural component; and
• the east and south areas around the dwelling have new landscaping but are in keeping with the traditional planting patterns evident in the 1877 depiction; these continue to "respect the 19^th^ century framework, with new materials."

41Approaching this property as an "agricultural heritage landscape," Ms. Shearer had previously applied her findings against the statement of cultural heritage value or interest and the description of heritage attributes proposed in the City's August 2014 Cultural Heritage Assessment (Exhibit 4, pages 145-146). (This statement of cultural heritage value or interest and the description of heritage attributes were not transferred directly to the NOID and only appear in that format in the Cultural Heritage Assessment.) She then compiled a list of "recommendations for revisions to the wording of the "draft designation statement" (Exhibit 3, pages 17-18). From this process, she assembled the following list of "key attributes" as a supplement to the list of heritage attributes identified in the Cultural Heritage Assessment:

Design or Physical Value

Add the following items to the Key attributes that reflect the property's physical/design value:

• the outbuilding at the rear side yard, its shape and form and materials including the stone foundation of the lower level set into the sloped stream bank and accessed [by] a door on the north side;
• the relationship and proximity of the farmhouse to the stream corridor;
• the contrast between the naturalized stream corridor and the maintained and manicured landscape surrounding the residence;
• the views to ~~and from ~~[stricken by Ms. Shearer during testimony] the house ~~towards ~~[from] Hammond Road, open at the driveway and the southwest corner framed by vegetation;
• the higher elevation of the house site compared to the adjacent streets and lots;
• the gentle grades on the south portion of the site;
• the steeper grades along the stream corridor;
• the access, curve and location of the driveway on the north side of the residence linking it with Hammond Road;
• the species variety, quantity, sizes, and ages of trees.

Historical or Associative Value

Key attributes that reflect the historical/associative value:

• its connection to Erindale village, St. Peter's Anglican Church and the area once known a Hammondsville;
• its association with the prominent Hammond family who were successful farmers on the property in the 19^th^ century;
• the recognition of the Hammond legacy in the naming of Hammond Road in their honour.

Contextual Value

Key attributes that reflect the property's contextual value:

• it is a landmark distinct from the surrounding land pattern in its layout and its varied vegetation collection;
• its naturalized stream corridor visible at the surface;
• its distinctive architecture and higher elevation compared to the surrounding residential development.

Case for the Owners/objector

Witness Amy Choi

42Ms. Choi prefaced her testimony with the statement that her expertise is as an arborist and not in the evaluation of cultural heritage landscapes. Her report of July 10, 2015, and accompanying charts, were prepared through Kuntz Forestry Consulting Inc. on behalf of the Property owners (Exhibit 7, Tab 3, A and B). Her methodology in updating the 2010 tree report for the Property involved a sampling of canopy trees in the naturalized area (north watercourse and valley lands), measuring these at a DBH of 1.4 metres above ground.

43Ms. Choi determined that the average age of the trees is 85 years, including some over 100 years. Not including the latter, the average age is 58 years. The oldest trees are on the southern bank of the creek, where the majority of trees are 20 to 65 years old. She characterized this wooded feature as lacking in shrubs but with an understorey and tree regeneration in process. The invasive Norway maple and spruce are the primary regenerators.

44The southern part of the property has ten trees over 60 years, including an open grown tree (Tree 620).

45In Ms. Choi's opinion, nothing in the creek corridor has been deliberately planted, other than orchard trees and possibly a Black Walnut for domestic nut harvest. No surviving orchard species were found. If the dead ash trees (destroyed recently by Emerald Ash Borer) are included, the species composition on the property is common in Southern Ontario.

46Ms. Choi investigated the surrounding area and found other locations where the watercourse is not channelized, notably the above ground section between Will Scarlett Drive and Lincoln Green. There are numerous other trees in the area, many of which have regenerated from the woodlot on the south part of the original hundred-acre Hammond farm. Their existence confirms that the trees on the subject property are not unique. She could not confirm which, if any, of the trees depicted in 1877 are still on the property.

Witness David Cuming

47Mr. Cuming was retained by the Owners/Objector to evaluate the City's NOID. He visited the site and reviewed all of the documents and mapping available in City files and elsewhere. He peer reviewed the August 2014 Cultural Heritage Assessment prepared by the City's Culture Division. His objective was to consider the development of the acreage over time and evaluate the findings to determine whether there is sufficient cultural heritage value or interest remaining in the 2.15 acres, notably the northern portion, to warrant protection.

48Mr. Cuming's opening statement was that all of the design or physical values, and historical or associative values of the property are vested in the c.1866 former Hammond dwelling as the principal heritage attribute of this property. He generally supports By-law 224-84 as a "sound mechanism for the management of a property with a dwelling as the main feature." Although he would not press for By-law 224-84 to be amended, he recognizes that there is merit in updating this older by-law to meet the provisions of the 2005 amendments to the Act.

49Mr. Cuming questions the credibility of the methodology and analysis undertaken by the City. Of particular concern to him is that the City did not formulate an overall statement of cultural heritage value or interest for the property, from which would flow the identification and description of the heritage attributes that support that overall value or interest. In this regard, he finds the NOID deficient. This is the basis for paragraphs 9(a) and 9(b) in the letter of objection dated October 16, 2014, which allege that the NOID is deficient in providing the required statement of cultural heritage value and description of heritage attributes. (The Review Board considers this matter in Schedule 4 of this Report.)

50Mr. Cuming disagrees with the City's findings and Ms. Shearer's evidence regarding the identification of the property as a representative example of a 19^th^ century farmstead.

51The testimony of Mr. Cuming, as with Ms. Shearer, revolved around finding physical evidence within the 2.15 acres of the purposeful intent of the Hammonds (and the Carpenters as the earlier owners) in laying out this farm. Mr. Cuming sought evidence that illustrates cultural use intent, seeing this as distinct from features and relationships that are simply a product of the topography of the acreage.

52To this end, Mr. Cuming noted quotations in the City's Cultural Heritage Assessment from Thomas F. McIlwraith's publication, Looking for Old Ontario. In reference to a farmhouse, McIlwraith states that the "location in the middle of the farm gave best access to the fields, was within earshot of the dinner bell, and made driving the cows home for milking easy regardless of which field was in pasture." A central location allowed the proud owner "to gaze on one's domain from the house." "One writer rated view as important as water supply and more so than drainage or wind protection." Mr. Cuming pointed out that the Hammond farmhouse is not centrally located in the hundred acres. He does agree that its location on the highest elevation is purposeful as it gives prominence to the dwelling.

53Mr. Cuming noted how the City uses McIlwraith to corroborate its contention that the location of the Hammond farmhouse near the watercourse served the practical purpose of providing "the family with fresh flowing water." McIlwraith states: "Water has been crucial in the location of farm buildings. The earliest settlers relied on surface streams – 'living water.'" The City argues that "what is now a scenic land form today, with important watershed uses, was a critical part of the lives of the pioneering Carpenter and Hammond families" for "providing water for livestock, washing clothes, and basic irrigation."

54Quoting the balance of the "living water" passage in Looking for Old Ontario, Mr. Cuming contends that the City has misrepresented McIlwraith. The balance of the quote excerpted by the City explains that groundwater was preferable over open watercourses and "an increasing number of wells were dug from the 1860s onward." Mr. Cuming interprets McIlwraith to be saying that it was the location of the dug well, not the open watercourse, that became the principal factor in locating the buildings on a farm. There is a dug well on the south side of the Hammond dwelling.

55If the intent of the Hammonds was to embrace the scenic value and enjoyment of the watercourse, Mr. Cuming queries why there are no steps to the stream, no terracing of the bank, and no viewing areas depicted in 1877 or existing today. The water was never dammed to create a pond. The dwelling does not have a double front, one oriented to Hammond Road, the other north to frame a picturesque view of the stream. The age of the former root cellar near the south bank, which now forms the stone foundation of a guest house, is unknown and not depicted in 1877.

56Mr. Cuming contends that any orientation of the dwelling to the north is not to the watercourse, but to the laneway flanking the south side of the watercourse and the north side of the dwelling. This lane allowed the family to move between Hammond Road to the west and the core farm buildings that were formerly located to the east of the dwelling. The historic row of planted specimen trees (depicted in 1877 and now reduced to stumps) along part of the north side of the laneway was likely a visual encumbrance to any appreciation of the stream from the dwelling.

57Mr. Cuming does concur that the "current entrance and asphalt driveway appear to generally follow the route of the 1877 driveway." The 1877 atlas depicts the laneway terminating farther west and with a gateway within a picket fence. A photograph identified as showing the Hammond Property in c.1870 (Figure 19, Cultural Heritage Assessment, Exhibit 4, page 138) shows a "grassed and rutted track" on the south side of the dwelling. This image appears to be reversed and there is debate on whether this is a depiction of the subject dwelling or of another location.

58Mr. Cuming disagrees with Ms. Shearer that cultural heritage value can be assigned to the "contrast between the naturalized stream corridor and the maintained and manicured landscape surrounding the residence." This contrast is simply a circumstance that the landscaping around the dwelling site is manicured and the valley lands are not. Similarly, "gentle grades" and "steeper grades" are a natural topography, not a cultural heritage element.

59Mr. Cuming does not accept that "species variety, quantity, sizes, and ages of trees" within the valley lands can or should be protected as heritage attributes. In his opinion, these are an ever changing product of a natural process of regeneration and not a planned landscape.

60In the Cultural Heritage Assessment (Exhibit 4, page 124), the City assigns value to this "remnant of Loyalist Creek" as "the last remaining unchannelized portion of this historic creek through Erindale village. The remaining portions have been either buried or channelized." Mr. Cuming gave two examples of sections of open watercourses in the vicinity. This was substantiated by mapping and also identified in Ms. Choi's evidence.

61To Mr. Cuming, a cultural heritage landscape is a type of resource where the whole is greater than the sum of its parts. In his Witness Statement (Exhibit 5, page 14), he delineates the features evident in the 1877 depiction that:

are specifically and permanently lost:

a. Carpenter Farm house

b. Drive shed

c. Barn complex and fencing

d. Front fence and gate

e. Front yard plantings

f. Orchards

g. Access and driveway over creek

h. Treelined driveway

i. Southern woodlot

j. Field system and boundary fences

k. Picket fence and boundary hedge

62He continues that:

Notwithstanding the contemporary residential landscape substantially remodelled since 1990, new additions or alterations to the two acre parcel or at the perimeter include:

a. a substantial, high retaining wall to the east, adjacent to King Forrest Drive

b. a substantial concrete embankment on the west adjacent to Hammond Road

c. a concrete culvert and gabions to the sets

d. a concrete and metal grate, screen culvert to the east

e. chain link fence and gate to the east

f. a timber fence along the north boundary

g. a timber fence along the south boundary

h. a substantial tree-house. (Exhibit 5, page 14),

63In conclusion, Mr. Cuming states that all alterations to the dwelling since it was first protected under the Act in 1977 have been approved by the City. The result is:

The former farm house now strictly serves a contemporary twenty-first century residential function and has no functions related to farming operations. (Exhibit 5, page 10)

The only built feature that remains from the one-hundred (100) acre farmscape is the former Hammond Farmhouse. (Exhibit 5, page 14)

64In addition, Mr. Cuming concludes that:

...the substantial loss of 98 acres of former farm land from the 100 acre original holding is a critical and detrimental loss that compromises the integrity of the former extensive cultural heritage environment. The loss of farm land together with the loss of many typical farm related features as described previously are impossible to be physically recalled in the remaining two acre parcel. (Exhibit 5, page 15)

SUMMARY OF THE ISSUES

65The issues raised in this proceeding relate to: whether there are cultural heritage value or interest reasons to protect the entirety of Part 3, Plan 43R-3594, using a new by-law; the scope of By-law 224-84; and whether there is merit in amending By-law 224-84. The following is the Review Board's summary of the evidence heard.

Statement of Cultural Heritage Value or Interest

66There is no dispute among the Parties that the southern portion of Part 3, Plan 43R-3594, is of cultural heritage value or interest as prescribed by O. Reg. 9/06. This southern portion is currently protected by By-law 224-84. The by-law does not contain a statement of cultural heritage value or interest that has been prescribed by the Act for new designations since 2005. If By-law 224-84 is to be amended, the issue will be in agreeing to the nature and extent of that cultural heritage value or interest under O. Reg. 9/06. The City contention that the property has value for being representative of a 19^th^ century farmstead, is not accepted by the Owners/Objector.

Hammond Dwelling as a Heritage Attribute

67By-law 224-84 protects the c.1866 former Hammond dwelling as the sole heritage attribute of the designated property. The Parties agree that the description of the dwelling as a heritage attribute could be improved by Mr. Cuming's proposed wording (Exhibit 5, page 12, paragraph 39). It is acknowledged that to comply with the Act, any amendment to By-law 224-84 must include a statement of cultural heritage value or interest. The description of the c.1866 dwelling as a heritage attribute must be in the context of how it contributes to that stated value or interest. As such, the final wording of the statement of cultural heritage value or interest may result in the need to adjust the description contained in Mr. Cuming's proposed wording.

Natural Features as Heritage Attributes

68The City contends that certain "natural" features of the acreage (grades, elevations) attained human/cultural meaning by being purposefully incorporated by the Carpenters and/or Hammonds into the design of the farm layout. The Owners/Objector disagree and consider all of the design or physical, and historical or associative values of the property to be vested in the dwelling as the sole heritage attribute. The parties agree that the choice of the highest elevation for the siting of the dwelling is culturally significant.

The Watercourse and Treed Valley Lands as Heritage Attributes

69The City proposes to protect the watercourse and treed valley lands in the northern portion of the property by passing a new by-law and repealing By-law 224-84. As with other topographical features, the City contends that these features attained human/cultural value when they were incorporated into the design of the farmstead by the Carpenters and Hammonds, rather than being eradicated. The Owners/Objector do not agree that the watercourse and treed valley lands hold any cultural heritage value or interest, arguing these are natural, not cultural, features.

Trees as Heritage Attributes

70The City considers the collective of "species variety, quantity, sizes, and ages of trees" to be more than a product of natural regeneration. Its retention within the historic farm layout is seen by the City as a conscious decision. The Owners/Objector disagree, arguing that these are natural features that have evolved without human intervention and cannot be assigned cultural value.

Former Root Cellar as a Heritage Attribute

71There is agreement that an outbuilding identified as a former root cellar, which now forms the foundation of a 20^th^ century guest house, could be identified and described as a heritage attribute. This is within the boundary of By-law 224-84 but is not described.

Driveway/Laneway as a Heritage Attribute

72There is agreement that the driveway follows the traditional path of the laneway as depicted in 1877 and that this could be described as a heritage attribute. The western stretch of the laneway and the gateway and fence at Hammond Road depicted in 1877 no longer exist. The boundary of By-law 224-84 does not include the (modern) west terminus of the driveway at Hammond Road. The City advocates that the full surviving length of the laneway be protected. The Owners/Objector consider the partial length already protected to be sufficient, especially given that the 1877 west section is gone.

Views

73The issue of whether certain views should be identified as heritage attributes was debated during the hearing. These included the view of the dwelling looking southeast from the west terminus of the driveway, and the view of the dwelling from an opening in the vegetation at the southwest corner of the lot. During the hearing, the City struck its reference to "views from the house towards Hammond Road," thereby limiting its concern to "views to the house from Hammond Road."

74The Review Board has established in other Hearing Reports that a view identified as a heritage attribute must be within the boundary of the protected property. It has also stated that the Act does not require nor result in any public right of access or viewing any building or structure on a protected property. (CRB1003 Township of King – Intention to Designate the Property known as 12605 Keele Street ("Shift Property"), 17 October 2012; CRB1109 Township of Muskoka Lakes – Intention to Designate three Properties known as Township Dock at Lake Muskoka; Portage Landing at Moon River; and Shield Parking Lot, in the Town of Bala, 12 March, 2013)

Contextual Landmark Criteria

75The Parties debated the definition of "landmark" and how a landmark is evaluated by O. Reg. 9/06. The City considers the property to be a landmark, the Owners/Objector do not.

ANALYSIS

76O. Reg. 9/06 sets out criteria for determining whether a property is of cultural heritage value or interest and provides that a property may be designated if it meets one or more of the criteria. In this case, the City is proposing that the 2.15-acre parcel (Part 3, Plan 43R-3594) meets the criterion for design or physical value under section 1.(2)1.i, because it is a representative example of a style or type known as a 19^th^ century farmstead.

77"Heritage attributes" are defined in the Act as "in relation to real property, and to the buildings and structures on the real property, the attributes of the property, buildings and structures that contribute to their cultural heritage value or interest."

78The City is proposing that the northern watercourse and treed valley lands, and certain topographical features, are heritage attributes that contribute to the property's cultural heritage value or interest as a representative example of a 19^th^ century farmstead. The Owners/Objector disagree, taking the position that these are naturally occurring aspects and that the loss of typical farm related features has fatally compromised the heritage integrity of the property as a mid 19^th^ century farmstead.

79In order for the Review Board to be persuaded of the City's case, it must be satisfied that the evidence supports the following findings:

1. The 2.15-acre property is a representative example of a mid 19^th^ century farmstead, and therefore has design or physical value or interest under section 1.(2)1.i;

2. Topographical features identified by the City as "key attributes," such as "highest elevation," "gentle grades," and "steeper grades," are heritage attributes that contribute to an understanding of the property as a mid 19^th^ century farmstead, and that these are more than naturally occurring aspects of this particular site;

3. The watercourse and treed valley lands are heritage attributes that were perceived in the mid 19^th^ century as integral components of a farmstead; they contributed to the design of the farmstead and the siting of the farm buildings and fields; they were more than an encumbrance to cultivation;

4. The siting of the dwelling supported access to and enjoyment of the watercourse and treed valley lands, and therefore the siting is a heritage attribute that contributes to the design or physical value of the property;

5. The "species variety, quantity, sizes, and ages of trees" are heritage attributes that were design features of the farmstead; they are more than the product of natural regeneration without human intervention;

6. The boundaries of By-law 224-84, which take in the dwelling but not the northern part of the property, do not include all of the heritage attributes that contribute to the cultural heritage value or interest of the property.

80The Review Board finds that the City's characterization of the property as a style or type known as a 19^th^ century farmstead, and its interpretation that natural aspects of the property are heritage attributes that contribute to that style or type, relies too heavily on conjecture. The City did not provide clear evidence of the typical features of the style or type, and the extent to which those features were incorporated in this farmstead by the Carpenter or Hammond families. The Review Board is not persuaded that the natural aspects of the property described by the City are attributes of a style or type known as a 19^th^ century farmstead, or that this site meets the criteria in section 1.(2)1.i.

81The Review Board is not persuaded that the siting of the Hammond dwelling close to the watercourse reflects design intentions associated with a typical mid 19^th^ century farmstead. The City's reliance on McIlwraith's reference to the need for nearby "living water" is contradicted by McIlwraith's commentary that by the mid 1860s, when the Hammond dwelling was erected, the need for open water had been surpassed by dug wells. In this case, there is a dug well on the south side of the dwelling.

82There was no evidence provided of view corridors, steps, terracing, a double front façade, etc. to show that there was a functional or aesthetic relationship between the dwelling and the watercourse. The dwelling was/is oriented to the north flanking laneway; a row of specimen trees planted along a section of this laneway (depicted in 1877 and evidenced as remaining stumps) partially blocked the view of the watercourse.

83The siting of the dwelling in an elevated location may be a characteristic supporting the design or physical value of the dwelling. However, the Review Board is not persuaded that the natural topography of the treed valley, including elevation, the "gentle grades" and "steeper grades," is part of the design intentions of a 19^th^ century farmstead, or that it can be considered a heritage attribute of that style or type.

84In making these findings, the Review Board does not deny that natural features, and a landscape design that accommodates natural features, can function as heritage attributes that contribute to cultural heritage value or interest. As well, the Review Board is not negating any natural heritage value that may exist in the open watercourse and treed valley lands, and that may warrant protection through policy measures and legislation to address conservation of natural resources that are outside of the Act.

85It was demonstrated that many key elements that might have been characteristic of a mid 19^th^ century farmstead, and/or might have contributed to an understanding of the Hammond farmstead in particular, have been removed from this property: the barn complex, the driveshed, fencing, the field system, boundary fences, orchards, internal laneways, the entrance feature, and the woodlot. The Review Board finds that the surviving natural features cannot substitute for this loss of heritage integrity.

86As the 2.15-acre property no longer contains sufficient farm related features to be considered a representative example of a mid 19^th^ century farmstead, it does not meet the criterion in section 1(2)1.i for design or physical value as a farmstead. The dwelling on the southern portion of the property continues to have cultural heritage value or interest under the criteria in section 1(2)1.i and ii. For this reason, the Review Board agrees with the Owners/Objector that only the southern portion of the acreage warrants continuing protection under the Act.

87The City is also proposing that the 2.15-acre property meets the criterion for historical value or associative value under section 1.(2)2.i because it is associated with the Hammond family. The Review Board agrees and finds that the key attribute that contributes to the historical or associative value is the former Hammond dwelling, which is adequately protected by the existing designation on the southern portion of the property.

88Further, the City is proposing that the 2.15-acre parcel meets the criterion for contextual value under section 1.(2)3.iii because it is a "landmark." There was some discussion during the hearing as to the scope of influence within which a landmark should be measured. The Review Board interprets this section to mean a landmark in the context of its community. Charlene Haupt, a resident of the Sherwood Forest subdivision since 1976, stated there is an awareness of the "Hammond House" in the neighbourhood. The Review Board agrees that the Hammond House contributes to the landmark status of the property within the meaning of section 1.(2)3.iii, and is adequately protected by the existing designation on the southern portion of the property.

89In conclusion, on the basis of the evidence before it, the Review Board is not persuaded that Part 3, Plan 43R-3594, or any part of it, can be considered as a representative example of a style or type known as a mid 19^th^ century farmstead, for the purposes of the criterion in section 1.(2)i. The loss of farm related features has been fatal to this interpretation of the property. The Review Board also is not persuaded, in this instance, by the argument that natural features of the watercourse, treed valley lands, elevations, grades, and collection of tree species are heritage attributes that contribute to cultural heritage value or interest. The principal heritage attribute which contributes to the cultural heritage value or interest is the former Hammond dwelling, which is found in the southern portion of the property already protected by heritage designation.

90Regarding By-law 224-84, there is merit in continuing the protection of the southern portion of the 2.15 acres, principally because it contains the Hammond dwelling. The cultural value of the former root house foundation is as yet undetermined.

91The City considers the geographic boundary of By-law 224-84 to be arbitrary and suggests that a more appropriate boundary would include the full length of the laneway/driveway. A comparison of current conditions at the site with the 1877 depiction of the farmstead suggests that this laneway has already been shortened and the entrance gateway and fencing at Hammond Road has been removed. In the opinion of the Review Board, there is no gain in amending By-law 224-84 solely for the purpose of including the current western terminus of the driveway/laneway. For the west terminus to be included, it would mean a change in the legal description of the property protected by By-law 224-84. The provision of s. 30.1(2)(a) "to clarify or correct" a by-law, may no longer apply.

92By-law 224-84 lacks the statement of cultural heritage value or interest prescribed by the Act since 2005 for new designations, but it remains valid. If the City finds merit in updating By-law 224-84 through the amending provisions of the Act, the Review Board recommends that items identified in the Summary of Issues in this Report be considered as part of this amendment.

RecommendationS

93Based on the evidence heard, the Conservation Review Board recommends that:

The City of Mississauga not proceed with a by-law under s. 29(14) of the Ontario Heritage Act to protect the entirety of the 2.15 acres of Part 3, Plan 43R-3594, municipally known as 2625 Hammond Road;

That the City of Mississauga not repeal By-law 224-84; and,

That the City of Mississauga weigh the advantages of amending By-law 224-84 to clarify or correct the statement explaining the property's cultural heritage value or interest and the description of the property's heritage attributes. The purpose of any such amendment would be to provide clarity for the long term protection of the property as a cultural heritage resource.

"Su Murdoch"

SU MURDOCH

VICE-CHAIR

"Daniel Nelson"

DANIEL NELSON

MEMBER

"Laurie Smith"

LAURIE SMITH

MEMBER

SCHEDULE 1

Notice of Intention to Designate

SCHEDULE 2

1877 Depiction of Property

SCHEDULE 3

Exhibit List

Exhibit 1: Affidavit of Service of Notice of Hearing on the Parties, Conservation Review Board

Exhibit 2: Affidavit of Service of Public Notice of Hearing, City of Mississauga

Exhibit 3: Witness Statement of Wendy Shearer, City of Mississauga

Exhibit 4: Document Book of the Corporation of the City of Mississauga

Exhibit 5: Witness Statement of David J. Cuming, Owners/Objector

Exhibit 6: Reply Witness Statement of David J. Cuming, Owners/Objector

Exhibit 7: Witness Statement of Amy Choi, Owners/Objector

Exhibit 8: Reply Witness Statement of Amy Choi, Owners/Objector

Exhibit 9: Plotting of Kuntz Forestry Consulting Inc. Tree Locations of Tree Core Assessments, City of Mississauga

Exhibit 10: Heritage Property Evaluation, Ontario Heritage Tool Kit, Ministry of Tourism, Culture and Sport, Owners/Objector

Exhibit 11: Extract of Standards and Guidelines for the Conservation of Historic Places in Canada, 2^nd^ Edition, Parks Canada, Owners/Objector

Exhibit 12: City of Mississauga Community Services, Cultural Landscape Inventory, January 2005, Owners/Objector

Exhibit 13: Aerial image and photographs of trees in the vicinity, Owners/Objector

Subsequent to Hearing

Exhibit 14: Final Submissions of the Owner/Objector: Latiq Qureshi, August 15, 2015

Exhibit 15: Written Submissions of the Corporation of the City of Mississauga, August 28, 2015

Exhibit 16: Reply Submissions of the Owner/Objector: Latiq Qureshi, September 3, 2015

SCHEDULE 4

Procedural Matter

This proceeding involved an alleged procedural deficiency in the content of the Notice of Intention to Designate.

(a) Description of Heritage Attributes

Paragraph 9(a) in the letter of objection dated October 16, 2014, alleges procedural irregularities in issuing the NOID, specifically in failing "entirely to include a description of the heritage attributes of the property."

Under s. 29(4)(b), "a statement explaining the cultural heritage value or interest of the property and a description of the heritage attributes of the property" is required in the notice served on the owner of the property and on the Ontario Heritage Trust ("Trust"). Under s. 29(4.1)(b) "a statement explaining the cultural heritage value or interest of the property" is required in the public notice. There is no requirement to provide a description of heritage attributes in the public notice. As such, Paragraph 9(a) in the letter of objection is interpreted by the Review Board as being in reference solely to s. 29(4)(b), which refers to notice to the property owner and the Trust.

The content of the City's NOID is not organized as a statement of cultural heritage value or interest and description of heritage attributes. Instead, it is arranged into the three categories of criteria in O. Reg. 9/06: Design or Physical Value, Historical or Associative Value, and Contextual Value. Within each category, there is reference to cultural heritage value or interest and a delineation of heritage attributes.

It is evident in the scope of the NOID that it was written in anticipation of the City's intent to repeal By-law 224-84 and to pass a new designating by-law protecting the entire 2.15-acre parcel. Some text in By-law 224-84 is brought forward; and some text is introduced that describes the northern portion and aspects of the whole property not addressed by this by-law. There are references to "the remaining undeveloped space surrounding the house, the natural features of the site, its elevation, the watercourse, the undulating topography, the lush vegetation and tall trees." The inference is that these "natural" features, and not just the buildings and structures identified in By-law 224-84, contribute to cultural heritage value.

Given these references, the Review Board cannot conclude that the NOID is deficient in providing a description of the heritage attributes, as is contended by the Objector. From the start of this proceeding, all Parties understood that the northern portion of the 2.15 acres and other "natural" elements of the whole property were under consideration.

(b) Statement of Cultural Heritage Value or Interest

Paragraph 9(b) of the Objection alleges that the City "failed to properly include a statement explaining the cultural heritage value or interest of the property."

As discussed in "(a) Description of Heritage Attributes" above, the content of the NOID served on the property owner and the Trust is not organized as a statement of cultural heritage value or interest and description of heritage attributes. Instead, the City subdivided the NOID into the three categories of O. Reg. 9/06. There is no single statement of the value or interest of the whole property.

The Review Board does find that the several statements, collectively, meet the intent of the Act in identifying cultural heritage value or interest. Therefore, the Review Board does not agree with the Objector's contention that there is no statement of cultural heritage value or interest.