Provinces all across Canada have statutes that address heritage properties. These are structures or areas of land that have historical, cultural, social, or spiritual importance to a community. A building or parcel of land can be “designated” a heritage property, meaning it is registered in a database of other properties with community value, and the property becomes subject to that province’s heritage property legislation.
In Nova Scotia, heritage properties can be designated in registries at two different levels: provincial or municipal.
The Heritage Property Act, RSNS 1989, c 199, governs heritage properties in Nova Scotia. The Act allows the Governor in Council to create an “Advisory Council on Heritage Property”, which makes recommendations to the Minister on what to include in the Provincial registry. What is key for a homeowner is that when a recommendation has been made to the Minister, the owner cannot substantially alter the exterior of the building or demolish it for a 120 day period. The final decision on whether a property is designated rests with the Minister.
Information on the designation process can be found with the Department of Communities, Culture and Heritage1. Further, this Department allows an owner to submit an application to the Advisory Council recommending their property for consideration.
Municipalities are still subject to the requirements of the Heritage Property Act, which allows an individual municipality to create its own municipal heritage property registry and a Heritage Advisory Committee. This committee advises the municipality on properties that should be included in the registry. When an owner is given notice of this, not only is the owner subject to the same 120 day period without substantial alterations, a hearing is set allowing the owner to provide their opinion. The final decision on whether a property is designated is made by the council of a municipality.
Through By-Law H-200, the Halifax Regional Municipality established a Heritage Advisory Committee and a municipal registry for heritage properties2. The purpose of this committee is to make recommendations to the municipal council. The Halifax Regional Municipality also has an application that can be provided to the Heritage Advisory Committee to recommend a property for designation. However, unlike the application for provincial registration, this can be submitted to the committee by a third party who does not own the property. Notice must to be provided to the owner of the property, however the owner’s consent is not required.
Where each municipality may have its own registry, it is important to be aware of what by-law may apply to your property.
Issues regarding the designation of a heritage property have been the subject of litigation. In Nova Scotia, our Supreme Court demonstrated in Armour Group Ltd. v Halifax (Regional Municipality), 2008 NSSC 81, that where a province or municipality has not strictly complied with the requirements of the Heritage Property Act, a designation may be invalidated. This case occurred in the context of a failure by the municipality to index the designation as a conveyance in the province’s property registry. The purpose of this registration is to alert the owner or anyone interested in the property of its heritage status, so a failure to do so invalidated the designation.
From the Ontario decision of Tremblay v Lakeshore (Town), [2004] OJ No 4292, a Roman Catholic Diocese wanted to demolish the church it owned, however parishioners who wanted to save the church asked the municipality to designate it a heritage property. The court discussed that the purpose of the Ontario Heritage Act is to preserve the heritage of the province. In light of this purpose, it would not be consistent with the Act to require the property owner’s consent before designation, particularly where the owner does have the opportunity to raise objections.
Cox & Palmer’s property lawyers are available to assist with any questions regarding heritage properties.
This article was written by Sarah Stevens, Articled Clerk in our Halifax office with guidance from Patrick Cassidy, Partner.
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1 https://cch.novascotia.ca/exploring-our-past/heritage-property/how-register-property
2 https://www.halifax.ca/sites/default/files/documents/city-hall/legislation-by-laws/By-lawH-200.pdf
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