Appellate, Civil Litigation

Golf course ruling highlights Heritage Act protections for owners

By AdvocateDaily.com Staff

A recent ruling that will allow the owner of a renowned Oakville golf course to move forward with an application to redevelop the site confirms that the Ontario Heritage Act (OCA) has built-in protections for property owners that must be respected, Toronto lawyer and arbitrator Earl Cherniak tells AdvocateDaily.com.

The Ontario Superior Court decision centred around the question of whether the golf course and the property on which it is situated — heritage sites under s. 29 of the OHA — were considered ‘structures’ under s. 34 of the Act.

As the Oakville Beaver reports, last year the company announced it had filed an application to demolish parts of the golf course and redevelop it as a residential community. However, in February, the demolition application came before Oakville's Planning and Development Council where it was unanimously rejected by councillors.

Under the Act, Cherniak, partner with Lerners LLP and co-counsel for the golf course owner explains, “there are two provisions for making changes to a heritage site — one is s. 33 and one is s. 34. Section 33 deals with alterations and s. 34 deals with removal or demolishing.”

Although the owner sought to apply to the town council under s. 34(1) of the OHA for permission to “demolish or remove a building or structure on the property,” the town submitted that the course is not a “building or structure”, but rather contains natural and landscaped features such as trees, creeks, tees, greens, fairways, bunkers, and watercourses. It instead advised the owner to apply under s. 33 of the OHA for permission to alter the heritage aspects of the course, according to the decision.

However, as the court notes, applications under s. 33 and 34 of the OHA feature different routes of appeal.

For example, any decision by the town council under s.34 carries with it a right of appeal to the Local Planning Appeal Tribunal (LPAT), which has the authority to either uphold or overturn the council’s decision.

However, under s. 33, the only right of appeal is to the Conservation Review Board (CRB), which cannot overrule the decision of the town, but rather only has powers to make recommendations to town council, which retains the power to make a final decision on the property owner’s application.

“So the big question was — is a golf course a structure? And Oakville said no, a golf course is not a structure, it’s just a piece of land with some holes on it. The applicants called detailed evidence that said a golf course, and particularly this golf course, is an engineered series of structures, with underground drainage, with built-up berms, built-up spectator viewing, detailed construction of greens and bunkers and tees and cart paths and the like," says Cherniak.

“Having deemed it was a structure, the judge found that the owner could make an application to remove or demolish a structure under s. 34," he adds.

In finding that the golf course is a structure for the purposes of s. 34 and the applicant has the right to make an application to the town for demolition and/or removal of buildings on the property, the court noted:

“It is evident that it is the structural aspects of [the course] – the routing, shape and slope of the fairways and greens, the elevated mounds and berms for audience viewing, the creation of sand traps and other hazards, the underground irrigation and drainage engineering, the routing and installation of cart paths, etc. – that make it a championship course and, from the Town’s point of view, a cultural heritage landscape in the first place. It is the architecture of the Golf Course, and not just some superficial, non-structural gardening or grooming of the landscape, that has made this Golf Course what it is.”

The property owner’s appeal regarding its application to redevelop the lands into a subdivision and commercial space is currently pending before LPAT.

“The court confirmed that the Ontario Heritage Act has built-in protections for property owners that must be respected and the right of appeal, the right to a) make a s. 34 application and the right of an appeal to LPAT is one of those protections that the owner of this golf course or any heritage property, has got a right to access, and the fact that there’s a heritage designation does not end or derogate from those rights," says Cherniak.

Ultimately, he says, the decision underscores one of the few protections that owners of heritage properties have, in s. 34 of the OHA.

“Municipalities often designate buildings and the like as heritage properties, but it doesn’t prevent the owners from doing what they want with the property. You can turn an old courthouse into a restaurant or a B&B or a museum, and there are lots of examples of that. What Oakville is trying to do is require the company to operate this golf course as a championship golf course in perpetuity and never be able to use it for anything else. So there’s a good question as to whether that’s a proper use of a heritage designation.”

“It’s got major implications certainly all across Ontario," says Cherniak.

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