Ontario Land Tribunal

Tribunal ontarien de l’aménagement du territoire

ISSUE DATE: February 09, 2024

CASE NO(S).: OLT-22-004497

PROCEEDING COMMENCED UNDER subsection 45(12) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicants/Appellants: Lisa and Rudy Irish

Subject: Minor Variance

Description: To permit Minor Variances to facilitate the new development and severances on 3 lots

Reference Number: A37-22

Property Address: 292 Main Street West

Municipality/UT: Grimsby/Niagara

OLT Case No.: OLT-22-004497

OLT Lead Case No.: OLT-22-004497

OLT Case Name: Irish v. Grimsby (Town of)

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicants/Appellants: Lisa and Rudy Irish

Subject: Consent

Description: To create a vacant new lot facing main street

Reference Number: B03-22

Property Address: 292 Main Street West

Municipality/UT: Grimsby/Niagara

OLT Case No.: OLT-22-004559

OLT Lead Case No.: OLT-22-004497

PROCEEDING COMMENCED UNDER subsection 53(19) of the Planning Act, R.S.O. 1990, c. P.13, as amended

Applicants/Appellants: Lisa and Rudy Irish

Subject: Consent

Description: To create a second new lot at the rear of the property

Reference Number: B04-22

Property Address: 292 Main Street West

Municipality/UT: Grimsby/Niagara

OLT Case No.: OLT-22-004561

OLT Lead Case No.: OLT-22-004497

PROCEEDING COMMENCED UNDER subsection 29(11) of the Ontario Heritage Act, R.S.O. 1990, c. O.18, as amended

Appellants: Lisa and Rudy Irish

Subject: Objection to designation By-law 23-28

Description: “Swallowbeck II” with auxiliary buildings

Property Location: 292 Main Street West

Municipality: Grimsby/Niagara

OLT Case No.: OLT-23-000405

OLT Lead Case No.: OLT-22-004497

Heard: November 14-17, 2023 by video hearing

APPEARANCES:

Parties	Counsel
Rudy Irish and Lisa Irish (“Appellants”)	Scott Snider Anna Toumanians
Town of Grimsby (“Town”)	Tom Halinski

DECISION DELIVERED BY K.R. ANDREWS AND ORDER OF THE TRIBUNAL

BACKGROUND

1These appeals involve the Appellants’ efforts to divide a large existing residential lot (the “Subject Property”) into three separate parcels, all for residential purposes. A number of variances to the Town’s Zoning By-law are also sought to facilitate said proposed severances and eventual development.

2The Subject Property features a historic Edwardian home, known as “Swallowbeck II”, which is situated just past the midway depth of the existing lot and has always fronted onto Main Street West. The Subject Property also contains a number of outbuildings associated with the house, all of which (including the house and outbuildings) were built in 1909-1910. One of the outbuildings, a former driveshed located at the rear of the property, has since been converted into a secondary residence. Once upon a time, this property was in a rural area, but it is now surrounded by residential subdivisions.

3The Subject Property is deep and narrow, meaning that the proposed division will result in lots located one behind the other with a common driveway and associated easements proposed to provide access to the rear lots. The proposed division is illustrated below at Figure 1¹, with red lines indicating the new proposed lot lines.

Figure 1

4As shown above, the proposed division purports to create “Lot 1”, which is intended to be available to build a new residential home fronting entirely onto Main Street West. Meanwhile, the proposed “Lot 2” is proposed to be located behind Lot 1 and contain the historic Swallowbeck II residence, and the proposed “Lot 3” is proposed to be located behind Lot 2 and contain the former driveshed/existing secondary residence. It is noteworthy that the Appellants also propose to offer a heritage easement, applicable to Lot 1, to preserve some views of Swallowbeck II from the eastern approach of the property from Main Street West and up the existing tree-lined driveway (which is also proposed to be preserved).

5The appeals began with the Town’s refusal to approve the requested Consent and associated Variance applications, to create the three proposed new lots, due to heritage policy considerations. The Appellants appealed these decisions pursuant to s. 45(12) and 53(19) of the Planning Act. However, the scope of the appeals expanded when the Town passed Heritage designation By-law No. 23-28 (the “Heritage By-law”) under s. 29(1) of the Ontario Heritage Act (“Heritage Act”), which purports to designate some aspects of the Subject Property as of cultural heritage value or interest. The Appellants also appealed the passing of the Heritage By-law because it would act as yet another impediment to prevent them from undertaking their proposed development. All of these appeals were then ordered by the Tribunal to be heard together for obvious overlapping of issues and evidence.

6More specifically, the Heritage By-law, if left undisturbed, has the effect of prohibiting the creation and future development of Lot 1, and it prohibits the demolition and/or substantial alteration of the former driveshed/existing secondary residence that is proposed to be located on Lot 3. The Tribunal notes that the Town does not oppose the creation of Lot 3, it just insists that the former driveshed/existing secondary residence be designated as a heritage building.

7The Parties agree that heritage issues will determine the entire matter, with the Town confirming that the proposed development is otherwise policy supportive in every other respect. Put another way, the Town confirmed that the proposal would be approved but for the heritage issues. Setting aside these heritage questions, the Tribunal received and accepts the evidence and submissions of the Parties and their respective experts insofar as the proposed development satisfies all of the applicable legislative tests necessary for approval. The scope of this matter is therefore relatively narrow, focused solely on heritage issues.

8Additionally, not all heritage matters are contested. Specifically, the Parties are in agreement that the Swallowbeck II structure deserves heritage designation pursuant to the Heritage Act, as well as the tree-lined laneway leading up to it. Furthermore, there is a general acceptance among the Parties that the existence of a heritage building on Lot 2 has an impact on what can be done on Lots 1 and 3 from a Provincial and Municipal heritage policy standpoint (the degree and implications of that impact remain an issue).

9The remaining heritage issues in dispute concern the following:

1. Whether the open space/front yard area between Swallowbeck II and Main Street West is, in itself, a heritage attribute to be protected. If not, then the question is whether Lot 1 can be created and a home built on it, permanently blocking at least some of the view of Swallowbeck II from the street; and

2. Whether the former driveshed/existing secondary residence located behind Swallowbeck II is also a heritage building that should be protected pursuant to the Heritage Act. As already mentioned, this question will not affect the creation of Lot 3 (which is not in dispute), but it will limit potential future redevelopment of that lot.

10As it relates to these heritage issues, the Tribunal finds that the case largely turns on a factual determination concerning the historical context of the property. The Town takes the position that the current lot is a remnant of a tender-fruit operation, with the existing dwelling being the ‘farmhouse’ of that operation and the former driveshed once being an associated agricultural building.

11Opposed to this position, the Applicants submit that the existing lot (or a close variation thereof), dwelling and driveshed were never connected to a farm operation; rather, this parcel and buildings were developed as part of a retirement lot for purely residential purposes (albeit having been built by a former tender-fruit farmer). The Parties acknowledge, and the Tribunal finds, that this historical context is an important distinction, given that the Town’s heritage assessment and justification in support of designating the area in front of the heritage home as a heritage attribute, as well as to designate the former driveshed as a heritage building, is largely premised upon such context.

12Further on this point, the Tribunal notes that the Town’s witnesses have acknowledged that the former driveshed does not meet the threshold for heritage protection under the Heritage Act if it is determined to be unrelated to an agricultural operation. Additionally, as it relates to the front yard, the Town’s witnesses premised their opinions to preserve this open area on the basis that the Subject Property is a farm remnant. However, they also made their opinions clear that the front yard should remain clear of any sight-blocking development, either as a means to protect it as a heritage attribute (if the Tribunal finds that it qualifies), or to avoid unacceptably impacting the views of the protected Swallowbeck II building.

13Upon considering the Parties’ respective positions, and within the above-described context, the Tribunal finds as follows for the reasons set out in greater detail below:

• the factual evidence supports the Applicants’ position insofar as the existing lot (or a close variation thereof) was originally created and built upon by a former fruit farmer to act as their residence upon retirement from farming;
• the “deep front yard setback” of the existing heritage house does not constitute a heritage attribute in itself pursuant to the provisions of the Heritage Act;
• the former driveshed/existing secondary residence does not meet the requisite criteria for heritage designation pursuant to the provisions of the Heritage Act;
• the development of the proposed Lot 1 will not unacceptably impact the heritage conservation of Swallowbeck II, provided that Lot 1 is subjected to the building envelope and heritage easement restrictions proposed by the Applicants.

14Upon these findings, and pursuant to the Tribunal’s directions and Order below, the Appeals are allowed in such a manner as to permit the Appellants to proceed with their development plans (as illustrated in Attachment “A”).

Historical context of the Subject Property

15There is no dispute that the lands upon which the Subject Property is located were once part of a greater 200-acre (“ac”) Crown grant to the Pettit family in 1787. The Pettits were one of the original families who arrived in the Grimsby area as United Empire Loyalists after the American Revolution and, over time, various members of the Pettit family made important contributions to the Town and area. Four generations of Pettit’s owned the lands that include the Subject Property over a 110-year span from 1787 to 1897.

16However, The Tribunal finds that no members of the Pettit family have any connection to the development of Swallowbeck II or the former driveshed. The Pettits instead constructed two houses on their larger land holdings prior to the construction of Swallowbeck II, including:

• An 1820s stone house known as Evergreens which is now Municipally addressed at 42 Roberts Road; and
• A former wood frame house known as Swallowbeck (Swallowbeck II’s namesake) that was located at 290 Main Street before it was demolished.

17In light of the evidence before the Tribunal, and given that the above facts are uncontested, the Tribunal finds that the Pettit family has no historical affiliation with Swallowbeck II which might otherwise affect the Tribunal’s heritage findings associated with the Subject Property.

18Carrying on with the history of the property, the Pettit family sold a 30-ac portion of their lands in 1897 to James and Emma Metcalf, the first inhabitants of Swallowbeck II. This parcel included the original Swallowbeck home, as well as the not-yet-established lot where Swallowbeck II was eventually built. Prior to building Swallowbeck II, the Metcalfs lived in the original Swallowbeck house and farmed their surrounding farmland.

19In 1909, the Metcalfs began construction of Swallowbeck II on a portion of their property. Shortly thereafter, in April of 1910, the Metcalfs moved into their newly constructed home, kept a lot beneath it, and sold the remaining surrounding farmland together with the original Swallowbeck residence. The lot they retained consisted of approximately 0.8 ac on the north side of Main Street West, where Swallowbeck II is still located, and a vacant 1.25 ac portion on the south side of Main Street West.

20While there were some lot-line adjustments to the portion on the north side of Main Street West over time, the Tribunal finds that the lot size and dimensions of the existing lot is substantially similar to that which was existing when the original lot was created in 1910 (apart from the portion on the south side of Main Street West, which was later sold separately).

21At the time when the Metcalfs moved into Swallowbeck II and sold the surrounding farmland, James and Emma Metcalf were 59 and 56 years old respectively. Their respective ages are important to consider given the Town’s position that the Metcalfs continued to be farmers after they sold the surrounding farmland.

22On this point, while there is evidence that James Metcalf continued to identify himself as a farmer as late as the 1920s (when he would have been in his late sixties or early 70s), there is no evidence that he actually operated a farming business after the Metcalfs sold their farmland in 1910. The Tribunal finds that the Metcalfs most likely retired from farming at the time when they moved into Swallowbeck II and separated the associated lot from the surrounding farmland.

23Within this context, the Tribunal finds that none of the existing Subject Property, including the land beneath Swallowbeck II, the historical residence and the former driveshed, ever served any purpose as part of a farm operation once the Subject Property and buildings were created in 1909-1910. The Tribunal therefore accepts the position of the Appellants as it relates to the history of the Subject Property and structures located thereon.

24Nevertheless, having come to this conclusion, the Tribunal remains open to consider whether the area between Swallowbeck II and Main Street West may still be considered a heritage attribute pursuant to the Heritage Act, and/or whether the relevant Provincial and Municipal policies can support development of a new residence in front of Swallowbeck II, even if it will obstruct some of the views of the heritage home.

25Carrying on with the history of the Subject Property, it is uncontested that the aforementioned sale of the Metcalfs’ surrounding farmland in 1910 was to Margaret Bertram. It is also uncontested that these lands were again sold in the early 1920s to Edwin Phelps. As it happened, the Metcalfs issued a mortgage on these lands to Mr. Phelps, who ultimately defaulted, and so the lands then reverted back to the Metcalfs’ ownership. While the Metcalfs unquestionably re-acquired the farmland, the Tribunal finds that there is still no evidence that they farmed it again themselves, a fact which the Tribunal finds is unsurprising given their relatively advanced ages at the time.

26Tragically, shortly after the lands reverted back to the Metcalfs’ ownership, history tells us that Mr. Metcalf was killed in a motor vehicle accident at around the age of 75. Following this, the surrounding farmland remained in Emma Metcalf’s ownership until she sold it in 1942. She later passed away in 1946, and her estate sold the Swallowbeck II property in 1947, including the 0.8 ac beneath the house on the north side of Main Street West together with the 1.25 ac portion on the south side. Subsequent to that, the part on the south side of Main Street West was sold separately, leaving only the lands immediately beneath Swallowbeck II on the north side as part of the Subject Property. After this, the Swallowbeck II property has changed hands again a number of times, but without any remarkable circumstances from a heritage standpoint.

Heritage Act

27Section 29(1) of the Heritage Act authorizes the Town to designate a property within the Town to be of cultural heritage value or interest where the property meets two or more of the prescribed criteria set out in O. Reg. 9/06: Criteria for Determining Cultural Heritage Value or Interest:

1. The property has design value or physical value because it is a rare, unique, representative or early example of a style, type, expression, material or construction method.

2. The property has design value or physical value because it displays a high degree of craftsmanship or artistic merit.

3. The property has design value or physical value because it demonstrates a high degree of technical or scientific achievement.

4. The property has historical value or associative value because it has direct associations with a theme, event, belief, person, activity, organization or institution that is significant to a community.

5. The property has historical value or associative value because it yields, or has the potential to yield, information that contributes to an understanding of a community or culture.

6. The property has historical value or associative value because it demonstrates or reflects the work or ideas of an architect, artist, builder, designer or theorist who is significant to a community.

7. The property has contextual value because it is important in defining, maintaining or supporting the character of an area.

8. The property has contextual value because it is physically, functionally, visually or historically linked to its surroundings.

9. The property has contextual value because it is a landmark.

28The onus is on the Town to demonstrate satisfaction of the above noted criteria, not on the Appellants to disprove it. The same applies to each claimed property attribute that the Town purports to protect in accordance with the Heritage Act.

Section 29 designation of Swallowbeck II

29The Parties are in agreement that at least two of the above listed criteria are met with respect to the Swallowbeck II residence. The Town claims that criteria 1-8 are satisfied, while the Appellants agree that only criteria 1-2 are met. Either way, the Tribunal finds that Swallowbeck II satisfies the requisite criteria for designation; however, it generally accepts the Appellants position on the finer point, finding that only criteria 1-2 are satisfied. Both Parties accept that criteria 9 does not apply.

30Regarding criteria 3-6, the Tribunal finds that these criteria do not apply upon determining that the evidence shows that the Subject Property and its structures were not originally developed as part of an area fruit farm, and are furthermore not associated with the Pettit family. Additionally, the Tribunal was not provided with evidence to find that the Metcalfs personally held sufficiently historical stature or notoriety in the community, to a degree that warrants heritage designation of their former property on such a basis.

31Regarding criteria 7-8, the Tribunal does not find that the property has contextual value as set out in these criteria. The evidence, including video evidence showing the view of the property as one passes by it from the street, shows that Swallowbeck II is now completely surrounded by residential development, including unremarkable housing subdivisions on three sides behind larger homes which front directly onto Main Street West.

32Certainly, the existing large deep lot of the Subject Property is an exception in the area. However, in the same way that it is an anomaly, the Tribunal finds that it does not meaningfully contribute to define, maintain or otherwise support the existing character of the area. Similarly, if Swallowbeck II was ever physically, functionally, visually or historically linked to its surroundings, that context was lost long ago after the original Swallowbeck residence was demolished, and modern subdivisions sprouted on the surrounding farmland.

33Despite the Tribunal finding that criteria 3-8 do not apply, it nevertheless finds that Swallowbeck II satisfies the first two criteria and, consequently, meets the threshold for heritage protection due to the home’s architectural style and quality of craftsmanship. The Tribunal therefore approves those elements of the proposed Heritage By-law which purport to protect the structural heritage attributes of Swallowbeck II under the provisions of the Heritage Act.

Front yard as a protected Heritage Attribute

34The term “heritage attributes” is defined in the Heritage 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.

35As it relates to the Swallowbeck II home itself, the Parties are in general agreement with respect to which elements constitute protected “heritage attributes”, and the Tribunal finds same. However, the Parties differ with respect to the qualification of the front yard as a protectable heritage attribute.

36On this point, the Appellants contend that the Town is attempting to designate the “deep front yard setback” as a heritage attribute as a means to protect the view of the house from the street. They further submit that the public views of any heritage resource cannot itself be considered a heritage attribute under the Heritage Act.

37To drive this point home, the Appellants cited a Decision of the Ontario Conservation Review Board (“OCRB”), in which the OCRB dealt with a debate between the Parties regarding whether certain views could be identified as a heritage attribute. The OCRB concluded that a view identified as a heritage attribute “must be within the boundary of the protected property” (i.e., not a view of the heritage property from the public realm; instead, only a view from within the property may be considered) and “the [Heritage Act] does not require nor result in any public right of access or viewing any building or structure on a protected property” (Qureshi v. Mississauga (City) 2015 LNONCRB at para. 74. (“Qureshi”)).

38While Qureshi is not binding on the Tribunal, the Tribunal is nevertheless persuaded to come to the same conclusion, with the Town having not identified an authority or legislative provision capable of leading to a different finding. To be clear, this is not to say that views of heritage resources cannot be maintained or, in effect, protected by operation of law. For example, as will be discussed in greater detail below, maintaining views of heritage resources are contemplated through various Provincial and Municipal policies, of which proposed developments (such as the present matter) shall be consistent with and/or conform with, in accordance with the Planning Act. The herein conclusion of the Tribunal is limited to finding that a public view of a heritage resource does not by itself, and as a direct extension of being such a view, become a protectable heritage attribute.

39In further support of their position, the Appellants additionally discussed an analogy between environmental protection and heritage protection, arguing that, similar to environmental protection, the intent and purpose is the protection of the feature itself – not a view of it. Likewise, they argued, in the same way that the public is not entitled to a view of environmental features protected through environmental legislation, the public is not entitled to views of heritage resources.

40While the Tribunal recognizes that there are obvious differences between heritage protection and environmental protection (i.e., environmental protection often involves a hands-off approach, while heritage protection generally requires a hands-on approach to maintain the subject heritage resources; additionally, there is much more of a social context to the qualification of a heritage designation), the Tribunal understands the point insofar as the preservation of heritage resources is more critical than enabling the public to see it.

41More importantly, the Tribunal finds, are the Appellants’ other points regarding personal privacy in relation to designating heritage resources. It is an obvious fact that many heritage properties also serve as personal dwellings, as it does in the present case, and so privacy interests of the inhabitants of those properties may be at stake within any related heritage analysis. With this in mind, the Tribunal finds that there are a number of privacy reasons to presume that the legislature never intended to guarantee public views of heritage resources under the Heritage Act.

42As part of the above discussions, the Tribunal finds it necessary to note that the Town’s heritage expert was careful to not frame the attribute she is proposing to protect (the “deep front yard setback”) as a view per se; but, rather, she proposes that the disputed attribute is about the setting of the home on the property – with its “deep front yard setback”. She stated that “[t]he large, intact lot and deep setback and auxiliary buildings represent the fruit growing industry that led to the success of Grimsby”, but also more generally that “[t]he long setback is reminiscent of the original long, narrow lotting that dominated the early development of the area and helped to define the streetscape of Main Street West”.

43The Tribunal finds two key problems with the Town’s submissions in this regard. First, their argument that the “deep front yard setback” is a heritage attribute is deeply steeped in their position that Swallowbeck II is the remnant of a farm operation, which the Tribunal does not find. Furthermore, if the Tribunal considers the appropriateness of deeming the “deep front yard setback” as a heritage attribute, outside of the context of it being a farm remnant, the Tribunal finds nothing remarkable about it from a heritage standpoint. While the setback may be a distinctive attribute, the Tribunal is not convinced that it is a heritage attribute as contemplated by the Heritage Act.

44Second, while the Town expressly denies that it is attempting to protect a view under the Heritage Act, much of its evidence in support of denying the Appellants’ proposal to sever Lot 1 and build a house thereon is specifically premised on not blocking the view. The Town repeatedly argued that sightlines of Swallowbeck II are key to the public’s ability to see the house, unobstructed, as a way to inform themselves of the history of the Subject Property. So, while the Town’s heritage expert finessed her opinion to expressly deny attempting to deem the view of Swallowbeck II as a heritage attribute, the Tribunal finds that this is constructively what the Town is attempting to do.

45Further on this point, even if there was authority to protect the view of Swallowbeck II through the workings of the Heritage Act, there is currently no view to conserve. Only through the removal of several mature evergreen trees could a decent view of Swallowbeck II be re-established. In fact, based on the evidence provided, the Tribunal finds that the Appellants proposal, which includes designating a specified building envelope tight to one side of the proposed Lot 1, and introducing a heritage easement in favour of maintaining specific sightlines (primarily from the eastern approach from Main Street West), the Tribunal finds that the views of Swallowbeck II will only improve upon approval of the Appellants’ proposal.

46In summary, the Tribunal finds that the area between Swallowbeck II and Main Street West, and the associated “deep front yard setback” of the heritage home, does not constitute a heritage attribute as contemplated by the Heritage Act because:

• it has no agricultural context;
• it is otherwise unremarkable from a heritage standpoint; and
• a view of a heritage resource cannot constitute a heritage attribute as contemplated by the Heritage Act.

Section 29 designation of driveshed

47The Town and the Town’s witnesses made it clear that their efforts to include heritage protections for the former driveshed is premised upon a finding that this structure was once an outbuilding for a farm operation, and that the structure otherwise does not satisfy the requisite minimum two criteria set out in the regulations of the Heritage Act.

48With this in mind, and given the Tribunal’s factual finding that the Subject Property never functioned as a farm building, and was instead a driveshed which served only residential needs, the Tribunal has nothing before it to find that the former driveshed meets the threshold necessary to designate it under the provisions of the Heritage Act.

Planning Act

49While the appeal concerning the Heritage By-law is determined pursuant to the Heritage Act, as set out above, the appeals concerning the Consent and Variance applications are determined pursuant to the Planning Act. To resolve these Planning Act appeals, the Tribunal is obliged to apply the legislative requirements within that Act. While the legislative tests are different between the Heritage Act and Planning Act appeals, all of the appeals still generally turn on much of the same heritage considerations, given that the Town has acknowledged that the requested Consent and Variances would otherwise be approved if not for the heritage issues.

50Planning Act decisions must have regard for matters of provincial interest prescribed at s. 2 and be consistent with the Provincial Policy Statement (“PPS”) and conform with the Growth Plan for the Greater Golden Horseshoe (“Growth Plan”) pursuant to s. 3(5). Consent applications are also determined pursuant to the criteria set out at s. 51(24) of the Planning Act, and Variance Applications are subject to the test enunciated at s. 45(1). While there are multiple criteria set out at s. 51(24), and four parts to the test found at s. 45(1), the Parties were both principally concerned with conformity with the Region of Niagara Official Plan and Town Official Plan (“OP”), which is both a criterion under s. 51(24) and one element of the s. 45(1) test. Consequently, the Tribunal is focused on this aspect as well, and finds that the other s. 51(24) criteria and s. 45(1) tests are satisfied with no distinguishable dispute from the Parties.

51Aside from the above-described legislative requirements, s. 2.1(1) of the Planning Act also obliges the Tribunal to have regard to the Town’s decision to refuse the initial applications and to later pass the Heritage By-law. On this point, the Tribunal confirms that it has had appropriate regard in accordance with s. 2.1(1), despite finding against those decisions.

Provincial Policy Statement

52The Town’s planning expert highlighted policy 2.6.3 of the PPS as being particularly relevant to this matter from a heritage standpoint:

2.6.3 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.

53With Swallowbeck II becoming a protected heritage property pursuant to a revised Heritage By-law, there is no question that the proposed severance and development of Lot 1 (as well as Lot 3, which is not in dispute) must conserve the heritage attributes of Swallowbeck II pursuant to policy 2.6.3. The Tribunal recognizes that consideration of this section of the PPS is distinctive from those considerations under the Heritage Act, given that this policy speaks to what happens on adjoining lots – with the impact by the proposed Lot 1 development on the heritage attributes of Swallowbeck II, located on the proposed Lot 2, being the present concern. To be clear, the issue in the context of this PPS policy is not about interfering with the space between Swallowbeck II and the street per se, which the Tribunal finds is not a heritage attribute; rather, it is about concerns with interfering with the heritage attributes of the Swallowbeck II structure and, more specifically, the view of it in terms of it fostering a public connection.

54The Tribunal notes that the definition of “heritage attribute” under the PPS is not the same as the definition under the Heritage Act. Under the PPS, the definition of heritage attribute is:

The principal features or elements that contribute to a protected heritage property’s cultural heritage value or interest, and may include the property’s built, constructed, or manufactured elements, as well as natural landforms, vegetation, water features, and its visual setting (e.g. significant views or vistas to or from a protected heritage property).

55It is clear from this wording that at least some views pertaining to heritage properties may need to be conserved to be consistent with the PPS. On this point, the Town’s planning expert clearly opines that the entire existing and/or potential view of Swallowbeck II should be protected. The Appellants, on the other hand, are of the position that some obstruction of the view, whether existing or potential, is acceptable as long as it does not unacceptably impact Swallowbeck II’s heritage attributes, as defined by the PPS. They further submit that the expected impact of the proposed development on the potential views of Swallowbeck II is acceptable, while the existing views of the heritage home will actually improve upon development.

56The Tribunal finds that these considerations are not only key to determining consistency with the PPS, but also key to finding conformity with the other applicable Provincial and Municipal heritage policies described further below, with the objectives of all these various policies being generally similar.

57Upon reading the definition of “heritage attribute” within the PPS, together with associated heritage polices of the PPS, the Tribunal finds that not all views of protected heritage resources must be entirely preserved to be consistent with the PPS. This is because, in the PPS definition above, the word “significant” is used in relation to “views”, which suggests that a view to a heritage resource must stand apart from just any view, and it must be at least somewhat remarkable in a heritage sense for it to be deemed a heritage attribute for conservation purposes.

58The Tribunal finds that it has received no evidence to support a finding that the view of Swallowbeck II is remarkable in a heritage sense. Additionally, the evidence shows that, whatever view is potentially there, it is currently almost completely obscured by contemporary tree-cover.

59In this case, it is important to acknowledge that the Appellants’ plans include offering a heritage easement to ensure that the building envelop of a future home on Lot 1 minimizes screening of Swallowbeck II, and the easement’s purpose is also to clear specific sightlines of Swallowbeck II that are currently obscured.

60Through the Appellants’ evidence, the Tribunal is persuaded that the views of Swallowbeck II will actually improve through the course of the proposed development. While the Tribunal has not received satisfactory evidence to find that any potential view of Swallowbeck II could be remarkable enough to be considered “significant” as contemplated by the PPS, it nevertheless finds that such views will improve, as facilitated by the proposed heritage easement. This means that, even if the Tribunal is wrong by determining that the potential views of Swallowbeck II need not be protected to be consistent with the PPS, the Applicant’s plans will nevertheless be consistent with the PPS because the views will improve.

61The Tribunal notes that, while both of the Town’s experts were adamant that the views of Swallowbeck II will unacceptably suffer as a result of the proposed development, given the permanent nature of a home being built on the proposed Lot 1 (compared to the current vegetative screening, which they opine is preferable because it is theoretically temporary), their planning expert admitted that if the Tribunal finds as a fact that the proposed development will improve the view, through the course of implementing a heritage easement, then the balance of policy considerations will tip in favour of approving the creation and development of Lot 1. Given this admission, and the Tribunal’s conclusion that the view will in fact improve by way of the heritage easement, the Tribunal finds that this effectively settles the matter.

62For the reasons set out above, the Tribunal finds that the proposal to sever and develop Lot 1 is consistent with the PPS, and specifically policy 2.6.3, because:

• there is effectively no existing view to conserve; and
• any potential view is unremarkable from a heritage standpoint, so it need not be conserved; and the Applicants’ plans will improve the view of Swallowbeck II, despite it being unremarkable, meaning that, if the Tribunal is wrong by determining that the view need not be protected, the plans will nevertheless be consistent with the PPS.

Growth Plan for the Greater Golden Horseshoe

63The Town’s planning expert identified policy 4.2.7 of the Growth Plan as being applicable to this matter from a heritage standpoint:

1. Cultural heritage resources will be conserved in order to foster a sense of place and benefit communities, particularly in strategic growth areas.

64He further opined that the creation and development of Lot 1 does not conform with the Growth Plan because the imposition of a home on the property would “hinder the community’s ability to foster a sense of place which would provide a benefit to the community [sic] by detaching the heritage resource from the community’s view”.

65This opinion repeats the Town’s position that heritage resources must be seen to be conserved, and that views of heritage resources cannot be impeded by any degree, even where existing views are almost completely screened (as in the present case).

66Once again, the Tribunal does not accept that the preservation of any and all views (including potential views) of heritage resources is necessary, as a means to benefit a community, by preserving heritage resources, to foster a sense of place. To accept this position is to accept that all views of all heritage resources must conserved to the fullest degree possible, including both existing and potential views. The Tribunal finds that if the legislature intended to preserve all views of all heritage resources, it would have been explicit in doing so through legislative and/or policy language, especially considering that views of heritage homes inherently introduce potential conflicts with privacy interests (as was discussed earlier in this Decision).

67In light of the facts that the current views of Swallowbeck II are currently almost completely obscured, and that the Appellants’ plan involves implementing building envelope restrictions and a heritage easement, which the Tribunal finds will improve the view of Swallowbeck II, the Tribunal consequently finds that the proposal conforms to the objectives of the Growth Plan by benefiting the community through fostering a sense of place as contemplated by policy 4.2.7.

The Region of Niagara Official Plan 2014

68At the time of the Consent and Variance applications, the Region of Niagara Official Plan 2014 (“2014 ROP”) was in effect. Now, the 2022 version applies. While the Tribunal has reviewed the heritage polices of both and finds that the Appellants’ plans conform to both, the Tribunal elects to conduct its analysis according to the policies that were in force at the time when the applications were made, pursuant to the Clergy Principle as a matter of procedural fairness.

69The Town’s planning expert highlighted policy 10.C.2.1.5 of the 2014 ROP, which states that, “where development, site alteration and/or a public works project is proposed on or adjacent to a significant built heritage resource (such as Swallowbeck II), a heritage impact assessment is required and the findings of the assessment shall include recommendations for design alternatives and satisfactory measures to mitigate any negative impacts on identified significant heritage resources.”

70Regarding this policy, the Tribunal accepts the Appellants’ planning expert’s opinion, insofar as he testified that policy 10.C.2.1.5 does not contain language that prohibits development or site alteration on adjacent properties, rather it requires that any impacts on significant built heritage resources be mitigated to a sufficient degree to ensure that the heritage attributes are adequately conserved. Furthermore, the Tribunal accepts their submission that “conserved” does not mean “no change” or “no impact”.

71Without repeating the findings above with respect to the PPS and Growth Plan, the Tribunal comes to the same conclusion insofar as the Appellants development plan conforms with the applicable heritage policies of the 2014 ROP because the Tribunal is convinced that it will not have an unacceptable impact on the conservation of the heritage attributes of Swallowbeck II, including in relation to views. Furthermore, the Tribunal finds that the proposed restricted building envelope is a satisfactory mitigation measure as contemplated by the 2014 ROP, and the heritage easement will actually go further than a mere mitigation measure, by improving the view as it exists today.

The Town of Grimsby Official Plan

72The Town’s planning expert opined that the application of the objectives and policies of the Town OP demands that heritage resources are seen by the general public. He testified that this is necessary in order to “foster a sense of place” where heritage resources can collectively assist the Town in telling its story and support tourism opportunities and long-term economic prosperity. He further opined that preserving Swallowbeck II, but then “hiding it behind new development”, would hinder the attainment of such goals.

73The Tribunal again does not accept this, for generally the same reasons already covered above in this decision; namely, there is almost no existing view to conserve due to existing vegetative screening, and the proposed heritage easement will improve such views. Accordingly, the connection between Swallowbeck II and Main Street West will not be further impeded than it is right now, and instead it will be improved. Consequently, the Tribunal finds that any impact on the heritage aspects of Swallowbeck II by the proposed development of Lot 1 will be minor and acceptable from a heritage conservation standpoint.

74To confirm, the Tribunal finds that none of the Town OP policies highlighted by the Town are functionally different from those polices within the 2014 ROP, Growth Plan or PPS. For example, there is nothing in the Town’s OP that purports to be more restrictive than the above-mentioned Municipal or Provincial heritage policies. Upon this finding, the Tribunal comes to the same conclusion as it did with respect to the other Municipal and Provincial heritage policies identified above, insofar as the Tribunal finds that the Appellants’ Consent and Variance applications conform to the heritage policies of the Town’s OP in the same way.

Conditions of consent

75The Tribunal received and considered a list of proposed conditions from the Appellants, applicable to the creation of the two new lots (see Attachment “B”). There was no debate between the Parties about the appropriateness of these conditions, and the Tribunal observes that they are very similar to the conditions proposed by the Town with respect to their approval to create Lot 3. Upon review of these conditions, the Tribunal is satisfied that these conditions are appropriate, and in accordance with the various applicable planning policies, to enable the efficient and orderly development of the Subject Property.

76The only thing missing from the conditions listed in Attachment “B” is the proposed heritage easement applicable to the proposed Lot 1 to protect at least some of the views of Swallowbeck II on Lot 2. To support the outcome of this decision, insofar as the proposed development will be allowed, the Tribunal finds that this heritage easement is necessary and should be added to the list of conditions applicable to Lot 1.

77Lastly, if establishment of the proposed restricted building envelop illustrated at Attachment “A” is not otherwise provided by the heritage easement, then a condition shall also be added to limit development of a new home on Lot 1 to that envelope.

Summary of findings

78The following is a summary of the Tribunal’s key findings:

• Swallowbeck II and the property that it currently occupies (now being proposed for severance) does not represent a remnant of a former farm operation; rather, it was originally created and developed as a residential retirement lot for a former tender fruit farmer (the Metcalfs). There is also no historical relationship between the Subject Property and the area’s original settling family, the Pettits.
• Swallowbeck II satisfies the first two criteria of the regulations under the Heritage Act and shall be designated accordingly pursuant to s. 29(1) of the Heritage Act . This includes the structure itself and the tree-lined laneway leading to it from the street.
• The area between Swallowbeck II and Main Street West, referred to by the Town as the “deep front yard setback”, has no agricultural context, is unremarkable from a heritage standpoint, and otherwise does not constitute a heritage attribute in itself as contemplated by the Heritage Act.
• The former driveshed/existing secondary residence at the rear of the property, to be located on Lot 3, also has no agricultural context and consequently does not satisfy at least two of the requisite criteria for determining cultural heritage value or interest. As a result, this structure cannot be designated under s. 29(1) of the Heritage Act.
• The creation of Lot 1 and associated requested variances, which will facilitate the construction of a dwelling in front of Swallowbeck II (subject to the building envelope and heritage easement restrictions), is consistent with the PPS, including policy 2.6.3. It similarly conforms with the Growth Plan, including policy 4.2.7, and the heritage policies of the 2014 ROP and Town OP. The creation of Lots 2 and 3 (noting that the creation of Lot 3 is uncontested) and associated requested variances also pass the requisite statutory tests.

Bill 150

79Since the conclusion of the merit hearing held by the Tribunal, and prior to the issuance of this decision, the Tribunal has reached out to the Parties to seek input if the passing of Bill 150, Planning Statute Law Amendment Act, 2023, which enacts the Official Plan Adjustments Act, 2023 (“OPAA”), which received Royal Assent on December 6, 2023, has any impacts on the potential outcome of this matter. All of the Parties have provided responses to state that Bill 150 does not impact the matter that was heard. The Tribunal comes to the same conclusion.

ORDER

80THE TRIBUNAL ORDERS that:

1. The appeal commenced under s. 53(19) of the Planning Act is allowed, in part, and the provisional consent, generally illustrated within the “Preliminary Concept Plan” prepared by J. Marcus of IBI Group Inc., dated on June 8, 2022, attached as Attachment “A”, is to be given subject to conditions whereby:

a. The Parties shall jointly prepare revised draft conditions as follows:

i.The attached conditions at Attachment “B” shall remain principally intact, but with a condition added to implement a requirement to execute a heritage easement to protect the views of Swallowbeck II, as contemplated by the Appellants through their evidence. If necessary, a condition shall also be added to implement the restrictions associated with the building envelope as illustrated at Attachment “A”; and

ii.The Parties may make any minor corrections that they jointly consider necessary to maintain the general intent and purpose of the conditions.

b. The Parties shall file copies of said revised conditions with the Tribunal within thirty (30) days of the issuance of this Decision, for its consideration and final approval, with one copy tracking changes from the original at Attachment “B”, and one clean copy; and

c. If the Parties cannot agree on the contents of said revised conditions, the Town shall prepare a draft to be sent to the Appellants within twenty (20) days of the issuance of this Decision, and the Appellants shall then prepare a draft which tracks their proposed changes based on the Town’s copy. Both copies shall then be submitted to the Tribunal within thirty (30) days of the issuance of this Decision. The Tribunal may or may not seek additional submissions from the Parties before making a decision on a final copy to be ordered.

2. The appeal commenced under s. 45(12) of the Planning Act is allowed, in part, and the variances to Zoning By-law No. 14-45 are authorized subject to the conditions set out in Attachment “C”;

3. The appeal commenced under s. 29(11) of the Ontario Heritage Act is allowed, in part, subject to the following directions:

d. The Parties shall jointly prepare a draft revised Heritage By-law which gives effect to the following findings and directions of the Tribunal:

i.Swallowbeck II and the property that it currently occupies (now being proposed for severance) does not represent a remnant of a former farm operation; rather, it was originally created and developed as a residential retirement lot for a former tender fruit farmer (the Metcalfs). There is also no relationship between the Subject Property and the area’s original settling family, the Pettits. The “Statement of Cultural Heritage Value or Interest” at Schedule “B” of the Heritage By-law shall be revised accordingly;

ii.Except where indicated in this decision, the original “Heritage Attributes to be Designated” at Schedule “B” in relation to Swallowbeck II, and the tree-lined driveway leading to it, shall remain intact (except to make corrections, if any);

iii.The “Statement of Cultural Heritage Value or Interest” at Schedule “B” of the Heritage By-law shall be revised to reflect the findings of the Tribunal as it relates to the area between Swallowbeck II and Main Street West (referred to as the “deep front yard setback”). Additionally, the points “Deep Lot And Long Setback, Typically Found Along Surviving Fruit Farms On Main Street” and “Mature Tree Canopy And Landscaping” under “Landscape” attributes within the stated “Heritage Attributes to be Designated” of Schedule “B” shall be removed;

iv.The “Statement of Cultural Heritage Value or Interest” at Schedule “B” of the Heritage By-law shall be revised to remove references to auxiliary buildings as being former agricultural buildings. Additionally, all of the attributes referenced under “auxiliary buildings” within the stated “Heritage Attributes to be Designated” of Schedule “B” shall be removed;

v.The revised Heritage By-law shall apply to only Lot 2 once the severances are complete; and

vi.The Parties may make any minor corrections that they jointly consider necessary to maintain the general intent and purpose of the Heritage By-law.

e. The Parties shall file copies of said revised Heritage By-law with the Tribunal within thirty (30) days of the issuance of this Decision, for its consideration and final approval, with one copy tracking changes from the original, and one clean copy; and

f. If the Parties cannot agree on the contents of said revised Heritage By-law, each Party shall submit a copy of their own proposed draft for consideration by the Tribunal, with notes included to highlight the differences. The Tribunal may or may not seek additional submissions from the Parties before making a decision on a final copy to be ordered.

81The Member may be spoken to should any issues arise with implementing the above Order.

“K.R. Andrews”

K.R. ANDREWS

MEMBER

Ontario Land Tribunal

Website: olt.gov.on.ca Telephone: 416-212-6349 Toll Free: 1-866-448-2248

The Conservation Review Board, the Environmental Review Tribunal, the Local Planning Appeal Tribunal and the Mining and Lands Tribunal are amalgamated and continued as the Ontario Land Tribunal (“Tribunal”). Any reference to the preceding tribunals or the former Ontario Municipal Board is deemed to be a reference to the Tribunal.

ATTACHMENT A

ATTACHMENT B

ATTACHMENT C

Footnotes

1. 1A more detailed concept plan is attached as Attachment A.