HTNS Writes Letter to HRM Mayor and Council Urging Appeal in 1245 Edward Street Decision.

December 20, 2023

Dear Mayor Savage and Members of Council:

I write on behalf of the Board of the Heritage Trust of Nova Scotia regarding the November 20, 2023, Decision of Justice Rosinski concerning the heritage designation of 1245 Edward Street.

As the provincial body whose mission is to preserve and protect Nova Scotia’s historic buildings and sites, and as residents of HRM, we are deeply concerned that Justice Rosinski’s ruling is fundamentally flawed and sets a number of precedents that endanger heritage properties throughout HRM and Nova Scotia. We believe there are ample reasons for HRM to appeal the ruling, which we have summarized below.

Erosion of Municipal Autonomy

Justice Rosinski’s ruling challenges the autonomy of not only HRM, but of every municipality in Nova Scotia, and it imperils HRM’s ability to conduct business according to approved laws, policies and processes. The essence of the Decision is that Justice Rosinski has determined that the rights of an owner are inviolable. This is simply incorrect and not part of the established property law of the province, nor indeed of the common law generally.

 We also believe Justice Rosinski erred by giving undue weight to the opinion of an out of province architectural consultant with a vested interest in the matter and little to no knowledge of local architectural styles and social history. He states:

[205] One can understand that HRM staff would want to “stand their ground”, having expressly stated their belief that they were more qualified than Mr. White regarding appropriate Heritage value scores for 1245 Edward Street, and having received the blessing of their scoring recommendations by the HAC. But, were they so much more qualified than Mr. White that therefore their opinions should be so heavily weighted by Councillors, with the result that the majority Councillors appear to have given scant regard to Dalhousie’s grounds of opposition and its consultant’s scorings?

 Justice Rosinski provides no justification for why he decided that Mr. White was better qualified to assess the heritage value of the Edward Street building than HRM’s trained heritage planning staff and members of the Heritage Advisory Committee, who stood to gain nothing personally from the designation.  He does not adequately justify why the scoring done by Dalhousie’s paid consultant should supersede that of the HAC.

By implication, Justice Rosinski has said that the HAC cannot, by reason of inherent bias, properly evaluate any property.  By doing so, he has effectively called into question the composition and role of all heritage advisory committees established in the Heritage Property Act. We believe this is a substantial over-reach on the judge’s part.

Accountability

Justice Rosinski also questions the propriety of Council taking into account the well-researched recommendations of staff and the HAC, as well as input from organizations such as the Trust, which has a great deal of knowledge about local built heritage. Giving consideration to input from subject specialists, as well as feedback from residents, is a fundamental part of accountability and a principle that we believe is well worth defending.

Ending of Third-Party Heritage Applications
We believe the Judge Rosinski erred in his interpretation that the Heritage Property Act does not allow applications by third-parties. The Act states:

14 (1) A heritage advisory committee may recommend to the municipality that a building, public-building interior, streetscape, cultural landscape or area be registered as a municipal heritage property in the municipal registry of heritage property.

The Act does not explicitly state who may, or may not, bring the application to a heritage advisory committee. Contrary to the Judge’s interpretation, we believe the Act implicitly allows for third-party applications by including the following provisions:

14 (2) The municipality shall cause notice of the recommendation to be served upon each registered owner of the building, public-building interior, streetscape, cultural landscape or area that is the subject of the recommendation at least thirty days prior to registration of the building, public-building interior, streetscape, cultural landscape or area in the municipal registry of heritage property.

 (3) The notice shall contain

(a) a statement that the building, public-building interior, streetscape, cultural landscape or area described in the notice has been recommended for registration in the municipal registry of heritage property;

(b) a brief statement of the reasons for the recommendation;

(c) a summary of the consequences of registration;

(d) a statement that no person shall substantially alter the exterior appearance of or demolish the building, public-building interior, streetscape, cultural landscape or area for one hundred and twenty days after the notice is served unless the municipality sooner refuses to register the property; and

(e) notification of the right of the owner to be heard and of the time and place for the hearing.

If the authors of the Heritage Property Act envisioned that only registered property owners would be allowed to apply for heritage designation of their buildings, why does this Act provide owners of such properties an opportunity to be heard before heritage designations are conferred?  Barring such restriction, one must conclude that third-party designations were contemplated.  If allowed to stand, Justice Rosinski’s Decision will have the effect of changing the process set out in the Heritage Property Act.

 Misinterpretation/Application of Evaluation Criteria

 At paragraph [54] Justice Rosinski identifies three grounds for quashing the original decision awarding the heritage designation, including:

c)   the decision was substantively unreasonable as HRM assigned unreasonably high scores on its heritage scoring of the Property, without having attempted to see the building interior [which was] necessary to evaluate its deteriorated condition and the significant changes made to its original architectural style.

Justice Rosinski erred in concluding that the interior condition of the building should have disqualified the Edward Street building from receiving a high score. Municipal heritage designations for non-public buildings apply restrictions only to the exterior of the building. Therefore, the condition of the interior of the 1245 Edward Street was immaterial.  His incorrect determination indicates his fundamental lack of understanding of this legislation.

In fact, the approved Halifax Regional Municipality Heritage Property Program Evaluation Criteria expressly state, “Architectural Integrity refers to the extent to which the building retains original features/structures/styles, not the state of the building’s condition.” (my emphasis)

Further, Justice Rosinski applies other evaluative standards that are not included in the Act, such the quality of “vitality”.  He states:

[31]  I conclude that HRM Council was required to seriously consider, but did not reasonably do so [see also the videotape and Minutes of October 18, 2022]:

a) the purpose for which Dalhousie acquired the property/the proposed use of its property (at the time of the October 18, 2022, HRM Council meeting); and

b) the “vitality” of the building [14];

c) together with the “heritage value” of the building at 1245 Edward Street.

 The Heritage Property Act and HRM’s Heritage Property Evaluation Criteria are the legal and procedural frameworks upon which the HAC and Council base their recommendations for designation. Neither the Heritage Property Act nor the Heritage Property Program Evaluation Criteria includes “vitality” as a factor that must be considered. As such, Justice Rosinski erred in introducing a new evaluative criterion that does not exist in the law as it stands now.

Erroneous Conclusions About the Financial Impacts of Designation

 Justice Rosinski’s Decision seems to place a great deal of weight on the assumption that conferring heritage status on 1245 Edward St. would have been financially detrimental to Dalhousie. This is a major flaw in the ruling because, in fact, the opposite is true.

Had Dalhousie let the heritage designation stand, the University would have been able to apply for a development agreement for the Edward Street property. Through such an agreement, Dalhousie would have been in a position to negotiate much more advantageous, and valuable, development rights for the property.

Such heritage development agreements for registered heritage properties, like those negotiated for Victoria Hall and the Waverly Inn, could have increased the value of the Edward Street property exponentially, in exchange for a modest investment in preserving the heritage structure. Therefore, we believe Justice Rosinski erred in assuming designation would have been financially deleterious to Dalhousie – another indication of his lack of understanding of the effects of such designation.

These are just some of the many important principles we believe are at stake if this Decision remains unchallenged. As such, we strongly and respectfully encourage HRM to file Notice to Appeal Justice Rosinski’s Decision within the timelines set out in the Civil Procedure Rules of Nova Scotia.

Respectfully submitted,

Heritage Trust of Nova Scotia

Sandra L. Barss President