An analysis of heritage property legislation : balancing the public interest with protection for the property owner
University of British Columbia
Master of Laws - LLM
In the last two decades, Canadian provinces have enacted legislation designed to protect buildings with architectural or historical significance. The legislation typically prohibits a private owner of one of these designated heritage properties from demolishing or altering the structure without approval from a governmental body. This restriction invariably affects the property rights of the owner and thus, conflict is likely to develop. To avoid conflicts, the ultimate goal of any heritage property statute should be to strike a balance between protection of the public's desire to preserve the building and the protection of the owner's basic rights in the property to use it as he wishes. Thus far, Canadian heritage statutes have had little success in achieving this balance because no logically designed form of protection for the property owner has been presented. This thesis analysises in detail one of these statutes, British Columbia's Heritage Conservation Act in order to formulate recommendations for a second generation of Canadian heritage legislation that would better balance the competing interests of the public's right to preserve the building and the owner's right to utilize his property in any manner he wishes. The first part of this thesis analyses the Heritage Conservation Act's protective measures for buildings and compares them to the provisions of the Alberta, Saskatchewan and Ontario heritage statutes. To be effective, the statute must satisfy several requirements, notably interim control, demolition prohibition, maintenance standards and strong enforcement provisions. The thesis also analyses the relationship of heritage powers to a municipality's zoning powers. This part entailed researching primary legal materials including statutes, by-laws and litigation. Examples of current situations in the City of Vancouver are also included. The second part of the thesis concerns the protection of the owner. The current system in British Columbia is to impose compensation for any decrease in the value of the property caused by the heritage restriction. The analysis demonstrates that this system has been a failure and thus, alternatives are examined in order to recommend one that is inexpensive to a municipality or government yet provides significant protection to the property owner. The thesis analyses six alternatives, namely expropriation, revolving funds, transfer of development rights, property tax relief, the consideration of the economic consequences of designation and income tax incentives. The thesis examines the effectiveness of these alternative methods in other jurisdictions and their adaptability to the present law of British Columbia. Research for this section concerned more secondary legal materials, especially law journal articles and textbooks by American experts in the field of historic preservation law. The general conclusion of the thesis is that the present system is ineffective in balancing the two competing interests. The Heritage Conservation Act's protective measures for the building might be adequate, if used, but contain obvious flaws that need to be remedied. The greatest defect in the statute is its mandatory compensation provisions which act as a great deterrent to heritage protection. These provisions should be replaced with a form of property tax relief whereby a property owner will be at least partially compensated and provided incentives to rehabilitate the property. This programme should be accompanied by the right for the owner to seek de-designation or further compensation upon proof that the heritage restriction creates an unreasonable economic hardship. With this scheme, the conflicts currently surrounding heritage protection could be eliminated.
Law, Peter A. Allard School of