150 BRADDON PTY LTD & ACT HERITAGE COUNCIL (Administrative Review) - [2013] ACAT 44

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

150 BRADDON PTY LTD & ACT HERITAGE COUNCIL (Administrative Review) [2013] ACAT 44

AT 13/18
Catchwords: ADMINISTRATIVE REVIEW – Mural of heritage significance – whether the Mural is a heritage “place” or heritage “object”: distinction between a “place” and an “object” – provisional registration in heritage register – criteria of heritage significance: section 10 of the Heritage Act 2004 - definition section as aid to statutory interpretation

List of legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT)

s 68

Heritage Act 2004 ss 3, 8, 10, 32, 40-42, 111, 114, 117 and 124
Legislation Act 2001(ACT), ss 137

List of cases: Briginshaw v Briginshaw (1938) 60 CLR 336
Kelly v R (2004) 205 ALR 274
Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672

Tribunal: Ms E. Symons, Presidential Member (Presiding)
Mr A Davey, Senior Member

Date of Orders: 5 July 2013
Date of Reasons for Decision: 5 July 2013

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 13/18

BETWEEN:
150 BRADDON PTY LTD
Applicant

AND:
ACT HERITAGE COUNCIL
Respondent

TRIBUNAL: Ms E. Symons, Presidential Member (Presiding)

Mr A. Davey, Senior Member

DATE:5 July 2013
ORDER

The decision of the ACT Heritage Council of 14 February 2013 that an entry to the heritage register be prepared for the place: ‘Expansion’ Mosaic Mural Wall, Braddon (part) Block 1 Section 8 Braddon, ACT is set aside and is substituted with a decision that an entry to the heritage register be prepared for the object: ‘Expansion’ Mosaic Mural Wall.
………………………………..
Ms E. Symons – Presidential Member
For and on behalf of the Tribunal
REASONS FOR DECISION

Decision under review

This is an application to review the decision of the ACT Heritage Council (‘the Council’) made on 14 February 2013, pursuant to section 40 of the Heritage Act 2004 (‘the Act’) to the effect that an entry to the Heritage Register be prepared for the place: ‘Expansion’ Mosaic Mural Wall (‘the Mural’), Braddon (part) Block 1 Section 8 Braddon, ACT. The Applicant is the registered proprietor of Block 1, Section 8 Braddon on which The Canberra Rex Hotel (‘the Rex Hotel’) is situated and where the Mural is located. The applicant applies to the Tribunal for a review of the Council’s decision, pursuant to section 114 of the Act.

Heritage registration

The Mural was originally considered by the Council on 26 June 2008. The Minutes of Meeting 20 on 26 June 2008 (T 236) under the heading Nominations: Expansion Mural at Canberra Rex Hotel stated [1] “It was established that this mural is not public art. It is privately owned and integral to the building’s structure. It will be dealt with as an object.”
[1] T 236
On the ACT Government ACT Heritage Register Object List the Mural’s registration status was shown as ‘Provisionally Registered’ until June 2013.
On 23 October 2012, the Council wrote to Mr Wayne Gregory at the Rex Hotel informing him that in accordance with section 32 of the Act, the Council had provisionally registered the Mural as a place of heritage significance[2] on the ACT Heritage Register (‘the Register’).[3] The Council invited Mr Gregory to provide written comments on the provisional registration by 21 November 2012.
[2] Notifiable Instrument NI 2012 - 545
[3] Applicant’s Statement of Facts and Contentions, page 2
Mr Gregory and his solicitor, Mr Alfonso del Rio from Clayton Utz, met with Mr Duncan Marshall (Chair of the Council) and Ms Fiona Kane (ACT Heritage Unit Team Leader) on 3 December 2012 to discuss the provisional registration of the Mural as a ‘place’ as opposed to an ‘object’.

On 17 December 2012, the Applicant’s solicitors provided the Council with a written submission in response to the provisional registration of the Mural as a ‘place’ of heritage significance. In the Conclusion of the Submissions (T122) the Applicant’s solicitors stated “As the mural was originally nominated for registration as an object….is capable of being moved, and is currently located in a place which results in it being hidden from public view and difficult to access, the mural should be classified as an object rather than a place. Our clients support the application to list the mural as an object of heritage significance.”
On 18 February 2013 the Council wrote to the Applicant’s solicitor, informing him of the Council’s decision (‘the decision’) to list the Mural as a place of heritage significance in accordance with sections 40 – 42 of the Act. The decision was effective from 14 February 2013.[4]
[4] Notifiable Instrument NI 2013 - 68
The listing on the Register includes the following statements:
FEATURES INTRINSIC TO THE HERITAGE SIGNIFICANCE OF THE PLACE
The attributes listed below are assessed as features intrinsic to the heritage significance of the place and warrant conservation:
- The original mosaic mural wall consisting of
-- hand cut; irregular shaped glass, vitreous and porcelain tiles
-- hand painted cartoon underneath the mosaic
- original colour scheme of yellow, grey, black and earthy red, white and brown
- fine black grout
- finish of matt black tiles to each end, the top and base section to ground level
- its location, prominently visible by the public from Northbourne Avenue
- the open landscaped area between the mural wall and Northbourne Avenue

REASON FOR PROVISIONAL REGISTRATION
The “Expansion’ Mosaic Mural Wall has been assessed against the heritage significance criteria and been found to have heritage significance against three criteria under the Heritage Act 2004:
(a)It demonstrates a high degree of technical or creative achievement (or both) by showing qualities of innovation, discovery, invention or an exceptionally fine level of application of existing techniques and approaches;
(b)It is a rare or unique example of its kind, or is rare or unique in its comparative intactness;
(c)It is a notable example of a kind of place or object and demonstrates the main characteristics of that kind; and
(d)It has strong or special associations with a person, group, event, development or cultural phase in local or national history.

Issues

It is common ground that the Mural has heritage significance.
The primary issue in the proceedings is whether the Mural should be registered under the Act as a ‘place’ or an ‘object’.
If the Tribunal determines that the Mural should be registered as a place, the Respondent also seeks that the registration be varied to change the actual area of land in front of the Mural.

The Applicant’s Contentions:-

The Applicant contends[5] that:
·the Mural should be described as an ‘object’ of heritage significance because of its artistic merit and there is insufficient evidence to justify a finding that there is heritage significance in the place where the Mural is located;[6]
·correctly construed, the definition of ‘place’ was not intended to convert the listed items in paragraphs 8(1) (a) - (f) of the Act into ‘places’;[7]
·when considering the registration of a heritage ‘place’ there has to be a place as generally understood before the items in paragraph 8(1) (b) to (f) of the Act are considered and that place (as generally understood) must be of heritage significance before it can be registered as a ‘place’;[8]
·by treating the Mural itself as a place the Council has proceeded to register a ‘heritage place’ even though there is no other aspect of the actual place, including the Rex Hotel, that has any heritage significance whatsoever;[9]
·there is no legal basis for placing an area of land on the heritage register purely for the purpose of permitting a better view of a heritage object or a heritage place;[10] and
·listing the Mural as an object of heritage significance is consistent with the Objects in section 3 of the Act, in particular paragraph 3(2)(b), which recognizes that the Act is designed to strike a balance between the need to use and benefit from places and objects and, in a proper case, to preserve heritage significance.[11]

The Respondent’s Contentions
[5] Part 1.3 Applicant’s Statement of Facts and Contentions
[6] Applicant’s Submissions, paragraph 19
[7] Applicant’s Submissions, paragraph 32
[8] Applicant’s Submissions, paragraph 35
[9] Applicant’s Submissions, paragraph 42
[10] Applicant’s Submissions, paragraph 19
[11] Applicant’s Submissions, paragraph 40

The Respondent contends[12] that:
[12] Respondent’s Statement of Facts and Contentions, paragraphs 16 & 17
·the Mural is “part of a building” at a place within subsection 8(1)(c) of the Act as -
o it is affixed, in a fashion intended to be permanent, to a block masonry wall that is part of a building;
o it is specific as distinct from the general term ‘object’ or ‘item’ and the term ‘object’ in the scheme of the Act, applies to a moveable object, rather than to a building;
·if the Mural is an item it is physically associated with a place – namely its original location on a wall of the Rex Hotel building and its primary importance as a public artwork is partly associated with that place because it was designed and made to be located in this place, and to be viewed at this place;[13]
·without this location the Mural would not have been created as it was, in terms of scale, orientation, colours and its visual relationship to the building;[14]
·if the Mural were relocated as an ‘object’ it would lose its setting and intactness that is integral to its heritage significance under some or all of the relevant criteria;[15] and
·an interpretation of section 8(1) of the Act as sought by the Applicant that allowed the Mural, as an ‘object’ to be relocated would be inconsistent with the objects of the Act, and must not be preferred.[16]

The Hearing
[13] Respondent’s Statement of Facts and Contentions, paragraph 18
[14] Respondent’s Statement of Facts and Contentions, paragraph 20
[15] Respondent’s Statement of Facts and Contentions, paragraph 21
[16] Respondent’s Statement of Facts and Contentions, paragraph 26

The application for review of the Council’s decision was heard on 13 and 14 June 2013.
The Applicant was represented by Mr Walker of Counsel and the Respondent was represented by Dr Jarvis of Counsel. Mr Eric Martin and Mr Darren Sault gave evidence on behalf of the Applicant. Mr Martin is a Conservation Architect of some 30 years professional experience specializing in heritage and conservation work. He was the Chairman of the Heritage Council of the ACT from 1992 to 1995 and a member until 1997. He was Chairman of the ACT Heritage Committee from 1989 to 1992 and Deputy Chairman from 1986 to 1989. Mr Darren Sault is a senior structural design engineer with the Canberra office of AWT Consulting Engineers and has been involved in all aspects of the structural design and detailing projects under taken by the Canberra Office.

Professor David Williams and Mr Duncan Marshall gave evidence on behalf of the Council. Professor Williams is Emeritus Professor at the Research School of Humanities and the Arts at the Australian National University (‘the ANU’) and Foundation Chair of the ANU Visual Arts Foundation. Mr Marshall is the Chairman of the ACT Heritage Council, having been a member since May 2011 and a heritage architect and consultant with some 30 years’ experience in heritage conservation in Australia and internationally.
At the conclusion of the hearing the Tribunal reserved its decision.

Applicable Law

The Act includes the following provisions:
3 Objects of Act
(1)       The main objects of this Act are as follows:
           (a) to establish a system for the recognition, registration and
conservation of natural and cultural heritage places and
objects, including Aboriginal places and objects;
……
(2)       A function under this Act must be exercised—
(a) to preserve the heritage significance of places and objects; and
(b) to achieve the greatest sustainable benefit to the community
from places and objects consistent with the conservation of
their heritage significance.
8 Place and object
(1)       In this Act:
place includes the following:
(a) a site, precinct or parcel of land;
(b) an item at the place;
(c) a building or structure, or part of a building or structure, at
     the place;
(d) an object at the place that could be registered separately;
(e) an item historically or physically associated with the place, if
the primary importance of the item derives, completely or
               partly, from that association;
(f) equipment, furniture, fittings and articles at, or historically or
physically associated with, the place.
Examples of things that place may include
1 landforms
2 plantings
3 animal habitats
Note An example is part of the Act, is not exhaustive and may extend, but
does not limit, the meaning of the provision in which it appears (see
Legislation Act, s 126 and s 132).
(2) An object means a natural or manufactured object, including an
Aboriginal object, but does not include a place.
40 Decision about registration
(1) If a place or object is provisionally registered, the council must
decide whether to register it under this division.
(2) The council may register the place or object only—
(a) after complying with any direction by the Minister under
     section 39; and
(b) if satisfied, on reasonable grounds, that it has heritage
significance.
Pursuant to section 114 of the Act an interested person for the decision may apply to the ACT Civil and Administrative Tribunal (‘the Tribunal’) for a review of a reviewable decision. Section 111 of the Act defines ‘reviewable decision’ as a decision mentioned in schedule 1, column 3 under a provision of the Act mentioned in column 2. The Tribunal is satisfied that that the Council’s decision to register the Mural as a place under section 40 of the Act is a reviewable decision.
The Tribunal’s role is to determine whether the Council has made the correct or preferable decision. In this case, given that there is no dispute that the Mural has heritage significance, this requires the Tribunal to stand in the shoes of the decision maker, the Council, and to decide on the evidence whether the Mural is a place or an object. If the Tribunal decides that the Mural is a place, the Respondent seeks that the decision under review be varied to change the area of land in front of the Mural. If the Tribunal decides that the Mural is an object, it would set aside the decision [17] and consider those matters set out in paragraphs 68(3)(c)(i) and (ii) of the ACT Civil and Administrative Tribunal Act 2008 (‘the ACAT Act’).

The evidence
Mr Martin
[17] Subsection 68(3) of the ACAT Act

Mr Martin’s Witness Statement dated 9 May 2913 was Exhibit A1. He said that the Mural was an artistic creation of high, outstanding merit; it was a heritage object. He drew the Tribunal’s attention to the fact that there was no reference to the Rex Hotel in the ACT Heritage Register assessment under heritage significance criteria relied on, namely section 10(a) or 10(f) and indirect reference under section 10(g). While the Rex Hotel was referred to under heritage significance criterion in section 10 (h), Mr Martin said[18] there was some inaccurate information in the Assessment, namely “The Canberra Rex was constructed in 1960 at which time there were a number of large multi story buildings including Bega and Allawah Flats, John Curtin School of Medical Research, ANU University House, ACT Police Headquarters, Northbourne Flats plus several Government Offices and Institutions.”
[18] Mr Martin’s Witness Statement dated 9 May 2013, paragraph 5.1
He also said the statement in the assessment that the Rex Hotel formed the precinct that marked the entrance to the national capital needed balance. At the same time as the Rex Hotel was being built (1959) the Dickson/Lyneham Flats were being built and the same design, intent and title ( gateway to the national capital) was given to them (Refer: Australian Institute of Architects Register on significant twentieth century architecture). He had been through the original architect’s files. In his opinion it was already decided, before the Rex Hotel was being built, that the gateway to the national capital was Mouat and Antill Streets.
He said that the Rex Hotel has no heritage significance. It was built in 1960 and has not been recognized as having significance that justified it being on the Heritage Register. The Institute of Architects, of which he is currently a member of the ACT Chapter Heritage Committee, has for decades continuously assessed, and continues to assess, buildings along Northbourne Avenue. He is not aware of any heritage assessment of the Rex Hotel. He understood, subject to planning approval, that there was no restriction on demolishing the Rex Hotel.
He said in his Witness Statement that the Mural’s location was outside the Rex (Hotel), beside the entry and designed as a screen wall of service areas.[19] He agreed, in cross examination, that the Mural was affixed to a masonry wall, an external wall of the Rex Hotel which enclosed part of the floor space and it was intended to remain there. He accepted that the artist, Margo Lewers, knew that it would be in a fixed position on the hotel wall and on a prominent thoroughfare. He also agreed that this was the artist’s largest mosaic and that being parallel to Northbourne Avenue was part of the intended design. He said the Mural was intended for wider exposure and appreciation from Northbourne Avenue[20].
[19] Mr Martin’s Witness Statement dated 9 May 2013, paragraph 5.3
[20] Mr Martin’s Witness Statement, paragraph 5.3
He had not seen any evidence that the Mural was an integral part of the concept of the Rex Hotel. If the artwork was an integral part of the design, the architect and the artist would have worked in harmony together. To him, it was a significant fact that the Mural had been built “too long”, which evidenced a lack of co-ordination, cohesion and some disjunction. The consequence of this was that the wall for the Mural needed to be extended to accommodate the artwork and this resulted in the foyer space in the conference centre being compromised by being partly screened by the Mural.
Mr Martin referred to three black and white photographs of the Rex Hotel (Exhibits A2, A3 and A4) dated 1960. He said that there had been changes to the Rex Hotel since then including the area north of the current tower block being demolished and replaced by a new building; over the years there had been changes to the colour scheme; the stone wall at the entrance to the conference centre had been demolished and replaced by glass and an area servicing the functions area and a porte cochere had been added.
Mr Martin accepted that the Mural was always designed to be seen by the public. However he said its location on the southern wall of the Rex Hotel does not impress its importance on arrival at the Hotel. He said it was unfortunate that the Mural was located on the other side of the main entrance, adding that the greatest view is obtained when one is stopped at the front door of the Rex Hotel and is looking forward. He said one would also get a striking view of the Mural if entering the Rex Hotel from the southern entrance. The vegetation reduces the opportunity for appreciation of the Mural from Northbourne Avenue.
He said that the associational value of being part of the urban landscape and appreciated from Northbourne Avenue means that the Mural could be relocated, provided it remains part of the urban landscape. If it is made more visible from Northbourne Avenue, it would reinforce its significance more than the current setting.[21]
[21] Mr Martin’s Witness Statement , part 8
In his opinion the Mural would retain significance as a piece of artwork in whatever location. Its principal significance is as Margot Lewers’ artwork. When asked his opinion if the Mural was located at the ANU, Mr Martin said “it should remain in an urban landscape as it was designed for such and it should be on a main road”. He opined that it would retain significance as a piece of artwork, even if at the ANU, regardless.

Mr Martin said that the Mural was not tied to the place. When asked his opinion about the “Features Intrinsic to the Heritage Significance of the Place” (see paragraph 7 above) Mr Martin said that each relate to the Mural as a piece of artwork in the public domain. The references to Northbourne Avenue in the last two dot points “were reinforcing the public thoroughfare, not particularly that Northbourne Avenue location.”
In cross examination, he did not agree that the Mural was a site specific work of art, describing the site and relationship to the Rex Hotel as incidental rather than primary. Although he had not undertaken an analysis of the dimensions of the Mural and the Rex Hotel he did not think the Mural’s dimensions had a direct relationship to the building.
It was his opinion that if the Mural was removed from the place identified in the site plan (T28), the place would not have heritage significance.
Mr Martin did not agree with the statement by Professor Williams[22]that “She (Margot Lewers) was strongly associated with the growth in Canberra’s emerging cultural life ….. in the 1950’s, 1960’s and 1970’s.” He said that Margot Lewers did not live in Canberra. He acknowledged that she was associated with Canberra’s emerging cultural life through her creativity as an artist which, in his opinion, reinforced that status of the Mural as an object.

Professor Williams
[22] Mr Martin’s Witness Statement, paragraph 17

Professor Williams’ Witness Statement dated 30 May 2013 was Exhibit R1.
Professor Williams described himself as an advocate for public art. He had been the Director of the ANU School of Art from 1986 to 2006, and from 2006 he has been the Chair of the ANU Visual Arts Foundation which, he said, looks to philanthropic support for Art students. He was a contributing editor to a catalogue published by the School of Art in association with an exhibition tribute to Margo Lewers in 2011. The exhibition was held after the completion of the Mural’s refurbishment with funding assistance from ACT Heritage.
Professor Williams said he had not requested or looked at the plans or commissioning documents for the Rex Hotel or for the Mural. He did not know when construction started at the Rex Hotel. He had assumed that the building was designed for the Mural artwork, however, he conceded he did not know the details of this. He had based his views on Professor Peter Pinson’s work (T 126-127).
He had not met Margo Lewers. He was not present when the Mural was constructed. In relation to his statement[23]’...the Expansion Mural is a contemporary public art work integral to the architecture and design of the building’ Professor Williams said he had written this in the context of modernism, and architects’ desire to create a contemporary statement and to commission art work for buildings. He added ‘I would say – contemporary architecture embracing contemporary public art.’
[23] Professor William’s Witness Statement, paragraph 9
He said that it was not possible to divorce the Mural from the ’60’s; at that time it was a signature artwork, very prominently displayed on entering the Rex Hotel or Canberra; it signalled something was going on in Canberra at that time and the place afforded her (Margo Lewers) the opportunity to make the Mural there and in that style.
In his opinion, the Mural was site specific. Evidence of this was when it was realized that the Mural was too long, the wall was extended to accommodate it. He also said that it has a credibility that pertains to that site. If it was moved, its artistic value would be maintained, but its heritage value would be lost. He detailed this heritage value as the value of the artwork in its original place at the Rex Hotel, its prominence on the wall, the curtilage and it being viewable from the street.
Professor Williams stood by the opinions expressed in his email dated 21 November 2012 to the Council that “the Mosaic is a rare example of a large scale public artwork not only important in terms of its heritage significance, but also as an outstanding work by a noted Australian artist of the modernist era.” and “….one of the most successful abstract expressionist public artworks in Australia.” He had written this email as part of his public art advocacy endeavours. He had been involved with a group concerned that the Mural be preserved. In November 2012, he was not aware that the question of whether the Mural should be classified as an object or place was in issue.
Under cross examination, he conceded that one could say the primary importance of any commissioned public artwork is its site. However, he added that in his opinion the intrinsic value of the Mural was as a work of art in the context of its site specificity and that it would be less valuable if placed anywhere else.
Professor Williams also conceded that without the Mural, the place identified on the plans at T28 would not have any heritage significance. He agreed that this was not a case of the Mural deriving its significance from the place; it was the place deriving its significance from the Mural.
Professor Williams said that looking at the entirety of the artwork was part of the experience but a closer view of the Mural could be obtained from the median strip and from standing in the driveway of the Rex Hotel. He had been able to get a good view of the Mural, at the site inspection on 13 June 2013, from across Northbourne Avenue. He said, in response to a proposition that it was virtually impractical to see the Mural if driving south along Northbourne Avenue, that one would have to observe the road rules; one would get a partial view or a fleeting glance of the Mural even if you did not know it was there if you had glanced to left when driving south.
He agreed, notwithstanding the merits in 1960, that the foliage (between the Mural and Northbourne Avenue) had grown up and this might prejudice the public’s appreciation of the Mural.
In cross examination, Professor Williams retracted from the strong statement he had made at paragraph 16 of his Witness Statement about the site being a “gateway” and the significance of this as a place. He agreed the intersection at Mouat and Antill Streets could be the entrance way to the city, although he had thought it was Ipima Street.
He did not know the practicalities of the Rex Hotel being demolished but assumed that a developer could knock it over if they wished.
Mr Duncan Marshall
Mr Marshall’s Witness Statement dated 29 May 2013 was marked Exhibit R3.
He said that no assessment had been undertaken of the Rex Hotel and the Council had formed no view on heritage significance of the Rex Hotel. The Council had confined itself to the wall on which the Mural was installed.
He had researched the Mural at the National Library and in Canberra Times articles to give a sense of the prominence of the Rex Hotel and the Mural when the Hotel opened in 1960 and in September 1963.
In cross examination, Mr Marshall was asked if it is correct that the Mural was ‘private art seen from a public area’ to which he responded ‘No problem. I am not an expert.’ He conceded that the view of the Council recorded in the Minutes of Meeting 20 on 26 June 2008 (T 236) under “Nominations: Expansion Mural at Canberra Rex Hotel, stated [24] “It was established that this mural is not public art. It is privately owned and integral to the building’s structure. It will be dealt with as an object.”
[24] T 236
He was asked if the Council’s view had changed, when in 2012 it referred to the Mural as ‘public art’. He said that it did, but he did not recall a specific discussion leading to that change.
Mr Marshall said, when asked if the Mural was registered as a heritage ‘object’, that that was not his understanding. Mr Walker showed Mr Marshall a copy of the ACT Heritage Register Object List (Exhibit A8) printed on 1 May 2013 stating that the Status of the Mural on the Object List was ‘Provisionally Registered” and asked Mr Marshall whether the Council, at some time, had decided to provisionally register the Mural as an Object. Mr Marshall said “no, the only decision Council had made was to provisionally register the Mural as shown in T 198 (Notifiable Instrument NI 2012 – 545), that is, as a place”.
He said the entry on the Object List (Exhibit A8) could have been an administrative decision in the ACT Heritage Unit. He did not know of this entry on the data base until a few days before the hearing and had been in email contact with the team leader. It had now been removed from that list.[25] He told the Tribunal that he did not ask anyone about Professor Williams’ reference in the Foreward (T125) to the Mural being registered as an ‘object’, as this was a common misunderstanding.
[25] Exhibit R6, Object List dated 14 June 2013
Mr Marshall told the Tribunal that the statement in the Guidelines of the Register Entry (T22) – Heritage Guidelines adopted under s 25 of the Heritage Act 2004 are applicable to the conservation of the ‘Expansion” Mosaic Mural Wall” was a generalized statement because it was not known whether any Guidelines were in operation. He said the statement was included to indicate that Guidelines may be adopted and was intended to cover Guidelines if any were implemented. He then told the Tribunal that there were draft Guidelines which had not yet been adopted. In cross examination, he denied that the statement was false explaining that was not how he read it.
When asked if there was any reference in the Registration Citation, of Council having once considered the Mural as an ‘object’ and the ‘pros and cons’ of reclassification, Mr Marshall referred to the Minutes dated 27 September 2012 and the email exchanges between the taskforce members, but could not point to any evidence of a formal decision on that issue.
Mr Marshall agreed that as a matter of engineering, the Mural could be moved.[26] He personally would not oppose the Mural being moved temporarily if there was some good reason requiring a temporary removal and relocation safely and within reasonable time.
[26] Applicant’s submissions, paragraph 65
He agreed with the description of the wall ‘as a semi-detached screen wall, with interconnecting walls running perpendicular to the artwork at two approximately evenly spaced points along the walls length’ in the Murtagh (T 133) report and ‘the wall is a semi-detached screening wall that is tied to the main building with two buttress walls. These are presumed to be interlocking masonry joints’ in the Mitchell (T151) report.
He told the Tribunal there was a range of options for redeveloping the building above and behind the Mural and including it in a glass foyer. He acknowledged that this would change the character of the Mural and the view from Northbourne Avenue.
Mr Marshall said the reason for the ‘box’ (marked on T28) was to protect the view of the artwork from Northbourne Avenue and not because the area in the box had heritage significance itself. He said the Council had considered this area under sections 10 and 32[27] of the Act. He could not recall who had drawn the original boundaries of the box and was not sure if anyone had visited the site before drawing these boundaries. He had drawn the proposed new boundaries in May 2013.
Mr Darren Sault
[27] 32 Decision about provisional registration
(1)       The council must decide whether to provisionally register each place
or object nominated for provisional registration.
(2)       The council also may decide to provisionally register a place or
object that has not been nominated for provisional registration.
(3)       The council may provisionally register a place or object only if
satisfied, on reasonable grounds, that the place or object may have
heritage significance.
Mr Sault’s Witness Statement dated 5 June 2013 was Exhibit A5.
As a structural design engineer with AWT Consulting Engineers he is responsible for the design and supervision of a large variety of commercial, residential, industrial and institutional buildings in the ACT region.
He concurred with the two opinions obtained in 2002[28] that the Mosaic Mural Wall at the Rex Hotel may be relocated from a structural viewpoint. He said in the Conclusion of his Witness Statement that he believed that it was feasible for this operation to be carried out without dividing the wall into smaller sections.

Consideration
[28] The Murtagh Bond Report dated 6 June 2002 and the AWT Consulting Engineers Pty Ltd Report dated June 2002

As stated above there is no dispute between the parties that Margo Lewers’ ‘Expansion’ Mosaic Mural Wall is of heritage significance as it demonstrates a high degree of creative achievement and is a rare and unique example of a mosaic mural in Abstract Expressionist style in the ACT.
It is the Respondent’s decision to register the Mural as a heritage ‘place’ rather than a heritage ‘object’ that is the subject of this decision.
The need to distinguish between place and object in this case arises because the Mural was considered for registration at a time when there has so far been no formal proposal to register any place [i.e. one meeting the tests of heritage significance as a place] which might have contained this object. If such a proposal had already been processed to registration [e.g. for part or all of the Rex Hotel and/or its precinct], the object registration may not have arisen.
Subsection 40(2)(b) of the Act provides that the Council may register the place or object if satisfied, on reasonable grounds, that it has heritage significance. Section 10 of the Act states that a place or object has heritage significance if it satisfies one or more of 12 specified criteria. The definition of ‘object’ and ‘place’ is found in section 8 of the Act.
Mr Walker provided the Tribunal with detailed and helpful written submissions in relation to the approach he urged upon the Tribunal when considering the definition of ‘place’ in section 8(1). The Tribunal has considered these submissions. He asked the Tribunal,[29] when reconciling the operation of the definitions of ‘place’ and ‘object’, to bear in mind that the purpose of establishing these two terms is to ‘establish a system for the recognition, registration and conservation of natural and cultural heritage places and objects.’[30]
[29] Applicant’s submissions, paragraph 29 page 2
[30] Section 3(1)(a), Heritage Act
He submitted that in considering registration under the Act, the decision-maker must carefully consider the definitions in section 8 of the Act ‘to bring out the true intention of the legislature’[31] and referred the Tribunal to Leon Fink Holdings Pty Ltd v Australian Film Commission[32] as authority for ‘all provisions of an Act are assumed to have some authoritative effect’. The Applicant also referred the Tribunal to the following helpful statement by McHugh J in Kelly v R[33] in relation to the use of definition sections to aid statutory construction:
‘As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment.’

[31] Applicant’s Submissions, paragraph 20, page 1

[32](1979) 141 CLR 672 at 679

[33] (2004) 205 ALR 274 at 302

Mr Walker then submitted[34] that correctly construed, the definition of ‘place’ was not intended to convert the listed items in paragraph 8(1)(a) – (f) of the Act into ‘places’. Instead, the definition was intended to ensure that when the Council was dealing with the registration of a place it would not be limited to terra firma. Council could, if the place has heritage significance, [the Tribunal’s emphasis] also register those items set out in the definition which are associated with the place in the manner described in the definition. Such a construction gives due emphasis to the inclusion of the term ‘place’ within paragraphs 8(1)(b) – (f) and as the term ‘place’ has been included there must always be a ‘place’ under consideration and not just an ‘object’ alone. Otherwise they would have to be considered according to their own heritage significance as ‘objects’.
[34] Applicant’s Submissions, paragraph 32
Mr Walker submitted[35] that this construction was consistent with what McHugh J. said in Kelly (above) about construing the definition in conformity with the task which it has to perform when used in the substantive provisions of the Act. He added that his proposed construction preserves a real distinction in the registration process between ‘objects’ and ‘places’.
[35] Applicant’s submissions, paragraph 37 page 4
Mr Walker further submitted[36] that, as section 137 of the Legislation Act 2001 presumes that the common law presumptions operate in conjunction with the interpretation provisions of Chapter 14, a clear intention is required before it will be assumed that there is an intention to interfere with vested private property rights. His submission is that given the greater impact of an object being classified as a ‘place’, an interpretation which preserves the operation of the definitions of ‘object’ and ‘place’ accords with the common law approach.
[36] Applicant’s submissions, paragraph 41, page 4
Dr Jarvis urged the Tribunal not to get ‘tangled up’ in section 8 as the Applicant had submitted. Dr Jarvis said that the Mural is obviously a ‘place’. He acknowledged one could not register an item at a place unless it has heritage significance. He urged the Tribunal to recognise and find that the Mural was part of a building; it was on the wall of a building; the area in front of the Mural was land comprising the Mural’s visual curtilage; its heritage significance depended upon its setting to a not insignificant extent and these attributes specifically correspond to the place that has been provisionally registered by the Respondent.
The Tribunal accepts the Applicant’s submissions in relation to the interpretation of section 8 and agrees that when considering the registration of a heritage place, there has to be a place as it is generally understood before the items listed in paragraphs 8(1)(b) – (f) of the Act, each of which specifically includes ‘place’, are being considered and that place must be of heritage significance before it can be included on the heritage register. Such a construction is consistent with the objects of the Act in section 3.[37]
[37] Applicant’s Submissions, paragraph 38.
It is necessary for the Tribunal to next consider whether any ‘place’ in this matter has heritage significance.
Mr Walker submitted that the Tribunal should be positively satisfied of the matters going to heritage significance of an ‘object’, or in this case, a ‘place’ before it would reach a conclusion on that basis[38] because it is a conclusion which has enormous consequences. He referred the Tribunal to the judgment of Dixon J in Briginshaw v Briginshaw[39]-
“The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.
[38] Applicant’s Submissions, paragraph 44 page 5
[39] (1938) 60 CLR 336 at 361-362
….The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.”

The Respondent has registered the Mural as a heritage ‘place’ on the grounds that it has ‘heritage significance’ as assessed against four of the criteria in section 10 of the Act, namely 10(a) - that the Mural demonstrates a high degree of technical or creative achievement (or both), by showing qualities of innovation, discovery, invention or an exceptionally fine level of application of existing techniques or approaches; 10(f) – that the Mural is a rare or unique example of its kind, or is rare or unique in its comparative intactness; 10(g) – that the Mural is a notable example of a kind of place or object and demonstrates the main characteristics of that kind and 10(h) – that the Mural has strong or special associations with a person, group, event, development or cultural phase in local or national history.
In considering the Respondent’s assertions in the previous paragraph, the Tribunal notes that the Applicant submits that the assessment of each criterion does not demonstrate the heritage significance of a ‘place’.[40] The Tribunal is also cognizant of the Respondent’s contentions referred to in paragraph 72 above.
[40] Applicant’s Submissions, paragraph 69 page 8
The Tribunal is satisfied and finds that the Respondent’s decision under criterion 10(a) does not refer to the Mural’s physical location and does not establish the heritage significance of any ‘place’.
The Respondent’s decision under criterion 10(f) refers to the physical location of the Mural in so far as it has remained ‘in its original location and is in good condition following comprehensive restoration work in 2010’. The Tribunal is satisfied and finds that the assessment under this criterion also does not establish the heritage significance of any ‘place’. In arriving at this finding the Tribunal has noted the unchallenged evidence of Mr Sault that the Mural can be removed without harming it as well as the contents of the 6 June 2002 Report from Mr Ken Murtagh of Murtagh Bond (T 132) and of the June 2002 Report from Mr Alan Tingcombe of AWT Consulting Engineers Pty Ltd (T143).
The Respondent’s decision under criterion 10(g) only appears to refer to the physical location of the Mural in the words “the linear shapes are complimented through the Mural’s horizontal positioning in association with the main building of the hotel.” The Applicant submits that this comment is entirely adjectival and that it does not relate to the requirements of the criterion, namely, whether the mural is a notable example of a place or object and that it demonstrates the main characteristics of that kind.[41] The Tribunal concurs and finds accordingly.
[41] Applicant’s Submissions, paragraph 74 page 9
The Tribunal also notes that the Mural has been referred to by the Respondent under this criterion as public artwork. This would appear to be factually incorrect. All of the evidence before the Tribunal was that the commission had been a private one. Indeed, at its meeting on 26 June 2008 (T236), the Respondent accepted that the Mural was not public art.
The Respondent’s decision under criterion 10(h) claims that the Mural has strong associations with the urban development of Canberra in the early 1960s. In the Statement of Heritage Significance (T21), the Respondent has again stated “Representing a cityscape, the Mural has strong associations with the urban development of Canberra during the 1960s. The Canberra Rex Hotel was one of the first multistory buildings constructed in Canberra and the first post-war hotel. The Mural affixed to the hotel was a significant feature that marked the entrance to the city. The Mural remains in its original location, alongside the main entrance to the hotel (in 2013 Canberra Rex Hotel) where it continues to be historically important as a design feature in the approach to the city along Northbourne Avenue, and today providing an important visual element to be viewed from the avenue.”
Mr Walker submitted that these statements are among a number of assertions made by the Respondent and conclusions reached by the Respondent without supporting evidence.
In considering the Respondent’s assertion that the Mural ‘has strong associations with the urban landscape development of Canberra during the 1960s’, the Tribunal has taken into account the evidence before the Tribunal. There is no dispute that the Mural existed in 1960. Margo Lewers’ two daughters, who nominated the Mural to the ACT Heritage Register on 24 April 2008, asserted in the Nomination “The title: Expansion embodies the spirit of a time of optimism when intense urban and cultural development was taking place in the Nation’s capital.” Neither of the Nominators gave evidence at the hearing. Professor Williams did not have direct knowledge of the details of the commission for Margo Lewers. He had not sourced that information. There was a lack of credible evidence that would enable the Tribunal to be satisfied that the heritage significance of the ‘place’ where the Mural is located had been established.
The Applicant has also submitted[42] that any contention that the intention was that the Mural should be visible from Northbourne Avenue is not borne out by the reality of the trees and vegetation which largely obscure it from view. The Nominators also refer to the growth of surrounding trees (T243). The Tribunal observed the impact of the trees and vegetation on the visibility of the Mural at the site inspection on 13 June 2013. The Tribunal is satisfied and finds that the fact that the trees were always going to grow to their current size is indicative of the fact that decades ago the ability to view the Mural from Northbourne Avenue was not given high priority by either the owners of the Mural or the local planning authorities.
[42] Applicant’s Submissions, paragraph 75 page 9
The Tribunal also observed that the Mural’s visibility from a motor vehicle proceeding in either direction along Northbourne Avenue was somewhat fleeting. As Professor Williams observed, it is necessary for motorists to obey the road rules on Northbourne Avenue. There is no lay-by for passing traffic to pull over to view the Mural. Even the opportunity for one to view the Mural from the Rex Hotel’s driveway requires the viewer to contend with cars using that driveway. Having considered all of the matters before the Tribunal, the Tribunal is satisfied and finds that the visibility of the art work is not intrinsically linked to its physical location.
The Respondent listed seven attributes (T21 and paragraph 8 above) in its Decision as features intrinsic to the heritage significance of the place. The Applicant did not dispute that five of these intrinsic features – hand cut irregular shaped tiles; hand painted cartoon underneath the mosaic; the original colour scheme; fine black grout and the finish of matt black tiles to each end, the top and the base section to ground level - are intrinsic to the Mural as an object of artistic merit. It is clear that these five matters are the key to the heritage significance of the Mural. It is also clear that they do not refer to any ‘place.’
The Tribunal has already considered the sixth attribute (the location being prominently visible by the public from Northbourne Avenue) and seventh attribute (the open landscaped area between the Mural and Northbourne Avenue) above.
It was clear from the evidence of all witnesses that the Rex Hotel has no heritage significance and notwithstanding continuing assessment of Canberra’s buildings including those on Northbourne Avenue, the Rex Hotel has not been considered to date for heritage significance. The Tribunal finds accordingly.
While there appeared to be some dispute in the evidence in relation to the ‘entrance’ or ‘gateway’ to Canberra in 1960, the Tribunal is comfortably satisfied from Mr Martin’s evidence that the ‘entrance’ in 1960 was not at the intersection next to where the Rex Hotel is located. The Tribunal accepted his evidence, which was convincingly given and not successfully challenged under cross examination, that the entrance was at Mouat and Antill Streets.
It was also clear from the photographs (Exhibit A2, A3 and A4) and the building viewed by the Tribunal on 13 June 2013 that the Rex Hotel has undergone a number of alterations since 1960. The witnesses’ evidence confirmed this.
All witnesses said that without the Mural, the place had no heritage significance. The Tribunal concurs and finds accordingly.
In coming to the above findings, the Tribunal considered each of the Respondent’s contentions in paragraph 13 above. While the Mural is part of a building there was conflicting evidence of the nature of the wall to which the Mural is affixed.
In their Nomination Margo Lewers’ daughters (at T244) describe the wall as ‘sitting in front of and independent of the building’. Mr Martin described the wall as sitting on its own base with the load being borne by the footing on which it sits. Mr Murtagh and Ms Gillian Mitchell, Conservator, (T151) described the wall in their reports as a semi-detached screening wall that is tied to the main building with two buttress walls or having interconnecting walls running perpendicular to the artwork at two points along the wall’s length.
Mr Tingcombe, from AWT Consulting Engineers Pty Ltd, stated in his June 2002 report (at page 2) that ‘from information obtained from the building file it is actually part of the external wall of the building.’
Mr Marshall described the wall in his Witness Statement as being attached to the Hotel, enclosing a floor space inside and not being free standing. His basis for this statement was stated to be the Schematic Fire Safety Plan located in the hotel and shown as Figure 1 in his Witness Statement. However, Mr Marshall conceded in that Witness Statement that he was not a structural engineer and that he had made assumptions. The Tribunal noted that, in cross examination, he readily accepted the description of the wall in the Murtagh and Mitchell Reports and that as a matter of engineering the wall could be moved. It was clear from all of the evidence before the Tribunal, and the Tribunal finds, that the wall can be relocated.
The Respondent submitted that pursuant to subsection 8(1)(c) of the Act, the provision ‘place’ should apply because it is specific as opposed to the general term ‘object’ and that the term ‘object’ in the scheme of the Act applies to a moveable object rather than to a building. For the reasons set out above the Tribunal does not agree with this submission.
The Respondent’s alternative contention was that the next most specific provision in section 8 of the Act was paragraph 8(1)(e) and if the Mural is an item, it is an item which is physically associated with a place – namely, its original location on the wall of the Rex Hotel building. The Tribunal has already considered the evidence and found that the Rex Hotel does not have heritage significance. The fact that the Mural has heritage significance does not afford heritage significance to the place where it is situated if the place does not have heritage significance itself.
The inevitable consequence of the Respondent’s decision to treat the Mural itself as a ‘place’ is that it has proceeded to register it as a heritage place when there is no other aspect of the actual place that has any heritage significance or value. It is not enough that an object or item with heritage significance happens to be located somewhere. The legislature has provided for those cases where an object has heritage significance but the place at which the object is located does not. Subsection 8(2) is applicable to this case.[43]

Conclusion
[43] Applicant’s submissions, paragraphs 78 & 79

Notwithstanding the several references to place in the current statement of significance addressing the heritage criteria, the Tribunal is not satisfied there are reasonable grounds to conclude the proposed property is of heritage significance as a place on any of the criteria, and so its registration as a place fails. The Tribunal agrees with the applicant that the Mural should be registered as an object.
The Tribunal is satisfied that it should set aside the Respondent’s decision to register the Mural as a heritage place. The correct or preferable decision is that the Respondent should prepare an entry to the heritage register for the object: ‘Expansion’ Mosaic Mural Wall, Braddon.
The statement of significance, as it currently stands, contains a number of ambiguities or errors of fact and the full statement of significance for the object will need to be corrected by the Council under section 24 of the Heritage Act.

Other matters

While it is no longer necessary to consider the Respondent’s application to vary the designation of the boxed area at T28 as a heritage place, given the matters raised by the Applicant in relation to this issue which the Tribunal has considered, it is appropriate to indicate that the Tribunal concurs with the Applicant and repeats the Applicant’s observations that:

a. there is no basis upon which Council can register the area in the box at T28 as a heritage area solely for protecting views;
b. section 40 permits the registration of a place or object which has heritage significance. Absent heritage significance, a place cannot be registered in order to conserve an object which does have heritage significance;
c. the attempt by Council to introduce the practical equivalent of a restrictive covenant over private land is not authorized in the Act unless the area within the identified place has heritage significance;
d. conservation of registered places and objects arises through the development approval process under the combined effect of part 10 of the Act and sections 119, 148 – 150 of the Planning and Development Act 2007; and
e. conservation of places with heritage significance also arises under Parts 11, 12 and 13 of the Act

The Tribunal was also concerned by Mr Marshall’s evidence in relation to the paragraph dealing with Heritage Guidelines in the attachment to the Notification of Provisional Registration. This paragraph is false and misleading. The Council should rewrite the paragraph to reflect the fact that Guidelines are proposed but not yet in existence.

Decision

For the reasons stated above, the Tribunal is satisfied the Respondent’s decision to register the Mural as a ‘heritage place’ should be set aside and a decision substituted requiring the Respondent to prepare an entry to the heritage register for the object: ‘Expansion’ Mosaic Mural Wall, Braddon.

………………………………..
Ms E. Symons, Presidential Member
For and on behalf of the Tribunal

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	AT 13/18
PARTIES, APPLICANT:	150 Braddon Pty Ltd
PARTIES, RESPONDENT:	ACT Heritage Council
COUNSEL APPEARING, APPLICANT	Mr P Walker
COUNSEL APPEARING, RESPONDENT	Dr D Jarvis
SOLICITORS FOR APPLICANT	Clayton Utz
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Ms E Symons, Presidential Member Mr A Davey, Senior Member
DATES OF HEARING:	13 & 14 June 2013
PLACE OF HEARING:	Canberra

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: