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PART 3 — WHEN DOES A HERITAGE COMMITTEE CROSS THE LINE?

PEC Heritage Register and Property Rights Series

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Prince Edward County maintains publicly available information concerning properties of heritage interest. Property owners should begin by checking the County’s published heritage material: Prince Edward County Heritage Designation Project

The central governance issue in Prince Edward County’s heritage system is not whether heritage conservation is legitimate.

It is.

The more important legal and administrative question is whether an advisory committee has remained within the authority actually given to it by Council and by statute.

That distinction matters because municipal advisory bodies do not possess an independent reservoir of authority. Their powers arise from legislation, Council resolutions, terms of reference and applicable municipal policy.

Where those boundaries are unclear, the risk of procedural unfairness, inconsistent treatment and institutional overreach increases.

THE COMMITTEE ADVISES. COUNCIL DECIDES.

The Ontario Heritage Act permits a municipal council to establish a heritage committee to advise and assist Council.

That is the legal architecture.

The committee may research, deliberate and recommend.

Council remains the statutory decision-maker.

The committee does not independently designate property.

It does not independently add or remove property from the statutory register.

It does not become the planning authority because members believe professional heritage expertise is lacking elsewhere in the organization.

And it should not impose de facto procedural requirements on owners or applicants that Council itself has not lawfully established.

ADVOCACY AND ADMINISTRATION ARE NOT THE SAME THING

Members of a heritage committee may strongly support preservation.

That is not improper.

The difficulty begins when advocacy and administration become indistinguishable.

A committee member may advocate internally for stronger protection.

But when committee members begin:

  • independently contacting property owners;
  • approaching applicants outside formal municipal channels;
  • directing or pressuring owners to obtain studies;
  • treating committee preferences as mandatory;
  • developing priority lists with apparent regulatory effect; or
  • representing themselves as the municipality’s operative authority,

Council should examine whether the advisory function has expanded beyond its lawful purpose.

The issue is not motive.

It is authority.

“INSPECT” MUST BE DEFINED

Where a committee’s terms of reference authorize research, surveys or inspection of heritage properties, Council should define those terms with precision.

There is an obvious difference between:

  • observing a building from a public road;
  • reviewing archival material;
  • examining planning records;
  • requesting voluntary access;
  • entering a backyard;
  • photographing private areas;
  • entering a residence; and
  • documenting the interior of a home.

Those activities engage very different legal and privacy considerations.

An advisory committee appointment does not, by itself, create a general right of entry onto private property.

If access is voluntary, the owner may refuse.

If access is compulsory, the legal authority must come from statute or another lawful source, and the person exercising that authority must be legally entitled to do so.

Council should not leave that boundary to individual interpretation.

PEC SHOULD ADOPT A FORMAL PROPERTY-CONTACT PROTOCOL

The County should establish a written protocol governing all contact between heritage committee members and private property owners.

That protocol should answer:

  • whether committee members may independently contact owners;
  • whether staff approval is required;
  • whether contact must be documented;
  • whether members must identify themselves as advisory rather than enforcement officials;
  • whether owners must be told that access is voluntary;
  • whether photographs may be taken;
  • whether personal devices may be used;
  • where photographs and notes must be stored;
  • whether private information may be circulated;
  • whether outside advocacy organizations may receive information; and
  • what happens when an owner declines contact or access.

A proper protocol protects residents and committee members alike.

IF A RESIDENT BELIEVES A COUNCILLOR OR COMMITTEE MEMBER ACTED IMPROPERLY

The first step is evidence preservation.

A resident should keep:

  • emails;
  • text messages;
  • letters;
  • screenshots;
  • photographs;
  • notes of conversations;
  • dates and times;
  • names of participants; and
  • any municipal correspondence concerning the incident.

Contemporaneous records are far more useful than recollection months later.

The next step is identifying the correct accountability mechanism.

CODE OF CONDUCT CONCERNS

Where the concern involves a councillor, the applicable municipal Code of Conduct and Integrity Commissioner process may be relevant.

Not every disagreement constitutes misconduct.

A resident should identify the specific conduct alleged and the specific rule said to have been breached.

Potential issues may include:

  • misuse of office;
  • improper influence;
  • confidentiality;
  • conflicts;
  • intimidation;
  • inappropriate treatment of residents; or
  • other conduct governed by the applicable Code.

A complaint should be factual, specific and supported by records.

COMMITTEE MEMBER CONDUCT

Where the concern involves an advisory committee member, residents should write to the Municipal Clerk and ask:

  • what Code of Conduct applies;
  • whether the committee is considered a local board for the relevant purpose;
  • whether the Integrity Commissioner has jurisdiction;
  • what complaint mechanism applies;
  • whether the conduct fell within the committee’s Terms of Reference; and
  • whether the matter should be referred to Council.

Do not assume that every advisory committee member is automatically subject to the same complaint process as a councillor.

Jurisdiction matters.

IF THE CONCERN IS EXCESS OF MANDATE

A separate issue arises where the alleged problem is not misconduct but institutional overreach.

For example, a resident may believe that a committee member:

  • acted as though they had regulatory authority;
  • attempted to impose a requirement not formally adopted by Council;
  • ignored a prior Council decision;
  • acted outside an assigned file;
  • communicated directly with an applicant inappropriately; or
  • treated an advisory recommendation as binding.

In that situation, the appropriate question is not necessarily “Did the person behave badly?”

It is:

Was the conduct authorized?

The resident should request a written response from the Clerk or CAO identifying the source of authority relied upon.

If no authority exists, Council should address the governance gap.

REQUEST THE RECORDS

Where there is uncertainty about what occurred, owners should consider asking for the records.

Potentially relevant records may include:

  • committee emails;
  • staff emails;
  • photographs;
  • site notes;
  • correspondence with third parties;
  • heritage evaluations;
  • meeting notes;
  • recommendations;
  • communications with councillors; and
  • records showing what action was authorized.

Formal access-to-information procedures may be required, and exemptions may apply.

But administrative accountability should be evidence-based.

A PROFESSIONAL HERITAGE PLANNER SHOULD REDUCE — NOT EXPAND — COMMITTEE OVERREACH

Prince Edward County’s newly adopted heritage planning framework contemplates additional professional resources.

If the County hires a dedicated professional heritage planner, the case for committee members acting as quasi-professional evaluators becomes weaker.

Professional staff should perform professional assessments.

The committee should advise on policy and provide recommendations within its mandate.

Council should make decisions.

That structure reduces confusion and liability risk.

COUNCIL MUST REMAIN ACCOUNTABLE FOR ITS OWN DECISIONS

Advisory bodies can sometimes become politically influential precisely because they operate one step removed from electoral accountability.

That makes role discipline essential.

Councillors are elected.

Committee members generally are not.

Council bears political responsibility for decisions affecting property rights.

It cannot avoid that responsibility by allowing an advisory committee to become the effective decision-maker.

If a committee’s recommendation is controversial, Council must own the final decision.

If Council disagrees with the committee, the committee remains bound by Council’s lawful decision unless Council later reconsiders it.

That is not disrespect for the committee.

It is basic municipal law.

THE CORE GOVERNANCE PRINCIPLE

The system should operate as follows:

Professional staff investigate and administer.

The advisory committee advises.

Council decides.

Owners receive notice, procedural fairness and access to lawful remedies.

When those roles blur, the risk of unfairness and inconsistent treatment increases.

Before PEC expands its heritage program further, Council should define those boundaries clearly and publicly.

DISCLAIMER

This article is public-interest commentary and general information only. It does not allege that any particular councillor, committee member, employee or other person has acted unlawfully or improperly.

Whether conduct breaches a Code of Conduct, exceeds a committee mandate, violates a statute or gives rise to another remedy depends on the specific facts, applicable municipal policies and legal jurisdiction.

Persons considering a formal complaint or legal proceeding should obtain independent legal advice where appropriate.