212 Northbourne Pty Limited v ACT Heritage Council and Anor (Administrative Review - [2016] ACAT 30

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

212 NORTHBOURNE PTY LIMITED v ACT HERITAGE COUNCIL & ANOR (Administrative Review) [2016] ACAT 30

AT 22 of 2015
Catchwords: ADMINISTRATIVE REVIEW – heritage listing – Late Modern style of architecture – whether Territory level significance is sufficient in order to decide to register a place

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68

Australian Capital Territory (Self-Government) Act 1988 (Cth) s 22
Environment Protection and Biodiversity Conservation Act 1999 (Cth) at ss 12, 13, 15B, 15C, 324C, 324D
Heritage Act 1977 (NSW) ss 4, 4A, 10
Heritage Act 2004 ss 3, 7, 8, 10, 17, 18, 28, 32, 34, 35, 36, 37, 38, 39, 40, 41, 111, 112, 114, 114A, 119 sch 1
Heritage Legislation Amendment Act 2014 s 202
Legislation Act 2001 ss 122, 255

Subordinate

Legislation:Environment Protection and Biodiversity Conservation Regulations 2000 (Cth) s 10.01A
Heritage Regulations 2006 s 10

Cases cited:Eastman v Director of Public Prosecutions (2003) 214 CLR 318
McDonald v Director-General of Social Security (1984) 1 FCR 354
Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405

List of

Texts/Papers cited: Apperly, Richard, Robert Irving and Peter Reynolds, A Pictorial Guide to Identifying Australian Architecture: Styles and Terms from 1788 to the Present (Angus & Robertson, Sydney, 1994)
Bennion on Statutory Interpretation A Code (6^th edition, 2015)
Boer, Ben and Graeme Wiffen, Heritage Law in Australia (2006)
Canberra: An Architectural Guide to Australia’s Capital, (Royal Australian Institute of Architects, ACT Chapter, 1982)
Committee of Inquiry into the National Estate Report of the National Estate (1974)
Goad, Philip and Julie Willis The Encyclopedia of Australian Architecture (Cambridge University Press, 2012)
Pearce, D C and R S Geddes Statutory Interpretation in Australia (7^th edition, 2011
Taylor, Jennifer, Australian Architecture since 1960, (The Law Book Company, Sydney, 1986); second edition (Royal Australian Institute of Architects, Canberra, 1990)
The Future Canberra, (Angus & Robertson, Sydney, 1965)

Tribunal: Senior Member R. Orr (Presiding)
Senior Member R Pegrum

Date of Orders:  14 April 2016
Date of Reasons for Decision:         14 April 2016
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AT 22/15

BETWEEN:
212 NORTHBOURNE PTY LIMITED
Applicant

AND:
ACT HERITAGE COUNCIL
Respondent
AUSTRALIAN INSTITUTE OF ARCHITECTS
Party Joined

TRIBUNAL: Senior Member R Orr (Presiding)
Senior Member R Pegrum

DATE:14 April 2016
ORDER

The Tribunal Orders that:

The decision of the ACT Heritage Council on 12 February 2015 under section 40 of the Heritage Act 2004 concerning the building on Block 3 Section 3 Braddon (the former AAA building) is set aside, and is substituted by a decision under section 40 that the former AAA building has heritage significance by operation of section 10(g) and should be registered on that basis.
The Council should register the former AAA building in accordance with this decision.

………………………………..
Senior Member R Pegrum
for and on behalf of the Tribunal

REASONS FOR DECISION

On 12 February 2015 the ACT Heritage Council (Heritage Council or Council) decided to register the former AAA building, on Block 3 Section 3 Braddon, at 212 Northbourne Avenue (Building or former AAA building, and sometimes former CSC building), on the ACT Heritage Register.
The decision was made under section 40 of the Heritage Act 2004 (ACT)[1] (Heritage Act) and that Act relevantly provided that the Heritage Council could decide to register a place, which included a building, if:
(a) it demonstrates a high degree of technical or creative achievement, by showing an exceptionally fine level of application of existing techniques or approaches (section 10(a) of the Heritage Act);
(b)    it is important as evidence of a distinctive design that is of exceptional interest (section 10(c)); or
(c)    it is a notable example of a kind of place or object and demonstrates the main characteristics of that kind (section 10(g)).
[1]     In the relevant form as it stood immediately prior to 3 October 2014, see paragraph 13 below
The owner of the Building, 212 Northbourne Pty Limited (applicant), challenges this decision.

Summary of Tribunal decision

The applicant raised a range of issues in relation to the process towards the decision of the Heritage Council to register the Building, including that the applicant did not receive appropriate notice and was denied an opportunity to be properly involved in the process.[2] Because of the issues raised by the applicant, the Tribunal sets the decision aside. The Tribunal does not think it appropriate to remit the decision to the Heritage Council for a further decision, and therefore makes a substitute decision itself.
[2] Applicant’s closing submissions at [24]
A key issue in the hearing was whether Territory level heritage significance is sufficient in order to decide to register a place, or whether national or world level heritage significance is required. The Tribunal finds that Territory level heritage significance is sufficient.
In relation to the criterion in section 10(a), the Tribunal finds that the Building shows a high level of application of existing techniques or approaches, but is not convinced that it reaches the required exceptionally fine level. This criterion is not met.
In relation to the criterion in section 10(c), the Tribunal finds that the Building is evidence of the Late Modern style, but is not convinced that the style is of exceptional interest. This criterion is not met.
In relation to the criterion in section 10(g), the Tribunal finds that the Building is in the Late Modern style, demonstrates the main characteristics of that style, and is a notable example of that style. This criterion is met. The decision of the Tribunal is that the Building should be registered on this basis.
These reasons describe the Building in part A, the legislative framework for the decision in part B, and the process of consideration by the Heritage Council in relation to its decision to register the Building in part C. Part D summarises the Tribunal’s consideration. The Tribunal then considers the key issues raised by the applicant in relation to the Heritage Council’s process, and sets out its reasons for setting the Heritage Council’s decision aside (part E). The Tribunal then discusses some key general issues in relation to the decision whether to register the Building, including the level of heritage significance required (part F). The evidence in relation to the Building and criterion (a) are considered in part G, followed by that for criterion (c) in part H, and criterion (g) in part I.

A. The Building

The Building at 212 Northbourne Avenue was opened in September 1979 as the national headquarters of the Australian Automotive Association, which represented the interests of Australian motorists and motoring organisations nationally and internationally. Northbourne Avenue is the main approach road to Canberra from the north. Between 1957 and 1989, development in the central areas of Canberra was under the control of the National Capital Development Commission (NCDC) who placed emphasis on the “architectural merit of buildings, based on the enduring qualities of appropriate scale, good proportions and fine materials.”[3]
[3] Exhibit R4, statement of David Flannery, report at [68] and attachment C, NCDC, The Future Canberra, (Angus & Robertson, Sydney, 1965), page 42
The prominent Adelaide architecture practice of Cheesman, Doley, Neighbour and Raffen (later Raffen Maron) were appointed as architects for the Building. Guy Maron joined the Cheesman office as a partner in 1973. The NCDC nominated Mr Maron to be architect in charge of the building project because he had been one of six finalists in the 1972 two-stage competition for the design of the High Court in Canberra. The chief architect of the NCDC noted at the time that “although the building is quite small, its form could still be determined by an imaginative structure. I can envisage a fairly delicate structural cage with largish areas of glass and not too much blank wall.”[4]
[4] Exhibit R16, statement of Michael Queale, report at [17] and [19]and appendix pages 37-38, minute from Paul Reid dated 19 April 1977, and appendix pages 62-68, Goad, Philip and Julie Willis The Encyclopedia of Australian Architecture (Cambridge University Press, 2012)
Evidence was given to the Tribunal that the Association sought a building identity appropriate to its function and membership. The architects were instructed to “combine maximum office space and low maintenance cost to maximise the return to the client.” When the Building was completed, the Association noted that:
a number of innovative features have been incorporated in the design, not only enhancing the building’s appearance and flexibility, but achieving significant savings in energy requirements … the building is expressed as a curved wall of clear anodised aluminium sheeting and continuous strips of frameless hermetically sealed windows, tinted grey to reduce the penetration of sunlight and heat.[5]
In summary, this is a three-story office building on the east side of Northbourne Avenue, which curves away from the Avenue on a north-west to south-east orientation, with services contained in towers at either end, and a basement parking area.[6] The style and key features of the Building are discussed further below.

B. Legislative context

[5] Exhibit R16, statement of Michael Queale, report, appendix pages 13-27, brochure for official opening of the Building on 10 September 1979, at page 24; and appendix page 58, Architecture Australia, Volume 71, No. 1, January 1982, page 52
[6] Exhibit T1, T documents, pages T46 and T365

The relevant legislation is the Heritage Act as it stood immediately prior to amendments made by the Heritage Legislation Amendment Act 2014 (ACT) (2014 Amendment Act), which came into operation on 3 October 2014. Section 202 of the current Heritage Act, which was inserted by the 2014 Amendment Act, provides for that version of the Heritage Act to continue to apply to certain decisions in relation to registration and states as follows:
This Act, as in force immediately before the commencement day, continues to apply to the following:
…
(b) if the public consultation period has begun under section 37 for a decision about registration under section 40 – the decision under section 40 and any matter under part 6 (including a decision or action by the council or any other person) resulting from the decision;
…
The ‘commencement day’ is defined in section 200 of the current Act as the day the 2014 Amendment Act, section 23 commenced. The public consultation period for the decision about registration of the Building began on 18 September 2014.[7]
[7] Exhibit T1, T documents, pages T158-159; section 37 of the Heritage Act; Outline of respondent’s submissions at [2]
The main objects of the Heritage Act include “to establish a system for the recognition, registration and conservation of natural and cultural heritage places and objects, including Aboriginal places and objects.”[8] The key concepts for registration are a ‘place or object’ of ‘heritage significance’. Section 8(1)(c) of the Heritage Act provides that place includes “a building or structure, or part of a building or structure, at the place.” The Building is therefore a place for the purposes of the Act.
[8] Section 3(1)(a) of the Heritage Act
Section 10 then provides that a place or object has heritage significance if it satisfies one or more criteria, known as the heritage significance criteria. It was agreed in these proceedings that the relevant criteria are:[9]
(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 or approaches;
…
(c)    it is important as evidence of a distinctive way of life, taste, tradition, religion, land use, custom, process, design or function that is no longer practised, is in danger of being lost or is of exceptional interest;
…
(g)    it is a notable example of a kind of place or object and demonstrates the main characteristics of that kind;
…
[9]     Applicant’s closing submissions at [6]; Outline of respondent’s submissions, discussed generally at [22]-[77]
Another main object of the Act is to establish a Heritage Council,[10] which is the relevant decision making body. The members of the Council are the conservator of flora and fauna,[11] the chief planning executive,[12] three public representatives[13] and six experts.[14] The Council therefore has both public representatives and expert members.
[10] Section 3(1)(b) of the Heritage Act
[11] Section 17(1)(a) of the Heritage Act
[12] Section 17(1)(b) of the Heritage Act
[13] Section 17(1)(c) and (3) of the Heritage Act
[14] Section 17(1)(d) and (4) of the Heritage Act
The procedure for heritage listing is a two stage process; provisional registration[15] and then registration.[16] A place can be nominated for provisional registration,[17] and the Heritage Council must decide whether to provisionally register each place nominated.[18] The Council may also decide to provisionally register a place that has not been nominated for provisional registration.[19] Section 32(3) provides:
(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.
[15] Division 6.1 of the Heritage Act
[16] Division 6.2 of the Heritage Act
[17] Section 28 of the Heritage Act
[18] Section 32(1) of the Heritage Act
[19] Section 32(2) of the Heritage Act
Provisional registration must be notified[20] and the notice must include an invitation to make comments.[21] A report which identifies issues raised in comments and includes a copy of those comments must be given to the Minister.[22] The Minister may require further consideration.[23]
[20] Section 34 of the Heritage Act
[21] Section 37 of the Heritage Act
[22] Section 38 of the Heritage Act
[23] Section 39 of the Heritage Act
Section 40 then provides:
(1) If a place or object is provisionally registered, the council must decide whether to register it under this division.
(2) The council must register the place or object only –
(a) after complying with any direction by the Minister under section 39;
(b) if satisfied, on reasonable grounds, that it has heritage significance.
Under section 41(2) the Council may register a place only if there is no appeal, or any appeal is finally decided and the registration is consistent with any decision on the appeal. Appeal is defined in the Dictionary to mean an application to the Tribunal to review the decision.
Another main object of the Act is “to establish enforcement and offence provisions to provide greater protection for heritage places and objects.”[24] And another “to provide for a system integrated with land planning and development to consider development applications having regard to the heritage significance of places and heritage guidelines.”[25] It is sufficient to note in this context that registration of a building can have significant legal consequences, in particular for the owner of the building.

C. Consideration of the Building by the Heritage Council

[24] Section 3(1)(d) of the Heritage Act
[25] Section 3(1)(e) of the Heritage Act

In 1999 the Royal Australian Institute of Architects (RAIA) accepted a Heritage Council grant for a project entitled ‘Register of Significant Twentieth Architecture – to prepare 5 nominations to the ACT Heritage Register’.[26] The RAIA indicated in 2000 that the Building would be studied for the writing of the five citations under the grant.[27] Work was done on a nomination for the Building. The RAIA appeared to believe that the Building had been nominated, as noted in a document provided to the Heritage Council in January 2009.[28]
[26]    Exhibit T1, T documents, pages T400-409, see especially T409
[27]    Exhibit T1, T documents, letter from RAIA, page T399
[28]    Exhibit T1, T documents, letter and submission from RAIA dated 29 January 2009, pages T372-382, see esp. T374
At its meeting on 7 July 2011, the Council noted that a nomination was received for ‘CSC Building, 212 Northbourne Avenue completed in 1979 and designed by Adelaide firm of Raffen Maron Architects,’ which is the Building.[29] The Council then proceeded to consider the nomination as set out below. There is a range of other references to the nomination in the T documents. [30] No document in the form of a nomination was provided to the Tribunal. However the document in relation to the Building contained on the Register of Significant Twentieth Century Architecture (RSTCA) is contained in the T documents,[31] and it seems likely that what was called the nomination (or sometimes the draft citation) was the RSTCA entry for the Building.[32] There was an issue before the Tribunal as to whether there had in fact therefore been a nomination, and a valid provisional registration.
[29]    Exhibit T1, T documents, minutes of ACT Heritage Council meeting, 7 July 2011, pages T345-356, see esp. T351. The acceptance had been recommended by the Register Taskforce, see exhibit T1, T documents, minutes of Register Taskforce meeting, 21 April 2011, pages T357-359, see esp. T357
[30]    In addition to those noted, see for example Exhibit T1, T documents, pages T339 and T342
[31]    Exhibit T1, T documents, Register of Significant Twentieth Century Architecture in relation to the Building, pages T365-369
[32]    Exhibit T1, T documents, email from Mary Gleeson, ACT Heritage dated 19 January 2010, page T364; email from Jennifer Dunn dated 7 February 2011, page T360; email from Fiona Moore dated 18 November 2014, page T111
The Heritage Act provided, for a period, for an application under the previous regime to be taken to be a nomination for provisional registration of the place (section 127, which expired on 9 March 2006). It is unclear if the RSTCA entry, or anything else, in relation to the Building fell within this provision.[33] Section 119 of the Heritage Act provides that the Minister may, in writing, approve forms for the Act, and that if the Minister approves a form for a particular purpose, the approved form must be used for that purpose.[34] A nomination form was approved on 9 August 2006.[35] The RSTCA entry is not in this form. Importantly the form requires information as to the current owner; asks if the current owner is aware of the nomination; and does the owner support the nomination. Use of the form may therefore have raised for consideration the views of the applicant at an appropriately early stage. The Legislation Act 2001 (ACT) (Legislation Act) also provides for a range of rules in relation to forms in section 255.
[33] Mr Martin submitted that the ‘nomination’ predated the Heritage Act, see Transcript of Proceedings 19 October 2015, page 21, line 40 and following
[34] Section 119(1) and (2)
[35] ACT Heritage Register – Nomination Form, AF2006-241
But, as the Council argued, it is not necessary to resolve whether a proper nomination was made, since the Council may also decide to provisionally register a place that has not been nominated for provisional registration under section 32(2)). Even if not nominated, the Council could proceed to consider and provisionally register the Building, even where it mistakenly thought it was doing so in response to a nomination. As a general proposition, the validity of an administrative act is unaffected by mistaking the source of the power; rather, validity depends on whether a relevant power existed.[36] The applicant did not press the issue of the invalidity of the nomination.[37]
[36] Eastman v Director of Public Prosecutions (2003) 214 CLR 318, at [124] Heydon J, with whom Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ agreed
[37] Transcript of Proceedings 19 October 2015, page 12, line 13

A letter was sent to the Building Manager, 212 Northbourne Avenue, Braddon advising of the nomination.[38] The applicant indicated that it did not receive this notification;[39] the Heritage Council did not dispute this.
[38] Exhibit T1, T documents, letter from ACT Heritage Council, page T336
[39] Exhibit T1, T documents, letter from Meyer Vandenberg dated 9 December 2014, page T98; Applicant’s closing submissions at [24(i)]
A draft decision that the Building not be provisionally registered[40] was considered by the Register Taskforce on 16 January 2014, but the Taskforce requested that “the draft citation be further developed.”[41] The Building was considered at subsequent meetings. In this period information was sought from Guy Maron.[42] Further, the Chairperson of the Heritage Council, Duncan Marshall, was involved in rewriting the draft decision.[43] He wrote in an email of 5 July 2014 that he had inverted the outcome of the analysis in the case of some criteria and was suggesting provisional registration.[44] Another member of the Council, Pam O’Neill, replied that if Mr Marshall was really persuaded about the excellence of the Building she would go along with his view.[45] The matter was finally considered at the meeting of the Register Taskforce on 7 August 2014. The minutes of that meeting noted that “Mr Marshall considered that…[the Building] may reach the threshold for registration” and that the “analysis was considered by the Taskforce who agreed that the matter proceed to Council for consideration.” Further comments were to be provided with a view to consideration by the Council at its next meeting.[46]
[40]    Exhibit T1, T documents, draft decision and statement of reasons, pages T305-310
[41]    Exhibit T1, T documents, minutes of Register Taskforce meeting, page T302
[42]    Exhibit T1, T documents, letter from Guy Maron dated 11 April 2014 with attachments, pages T268-274; email correspondence with Guy Maron, pages T277-291
[43]    Exhibit T1, T documents, email from Duncan Marshall dated 5 July 2014 which attaches a revised decision, pages T233-239
[44]    Exhibit T1, T documents, email from Duncan Marshall dated 5 July 2014, page T233
[45]    Exhibit T1, T documents, email from Pam O’Neill dated 6 July 2014, page T232
[46]    Exhibit T1, T documents, minutes of Register Task Force meeting of 7 August 2014, T204
At its meeting on 22 September 2014 the Heritage Council decided to provisionally register the AAA Building.[47] The provisional registration stated that the Building met the criteria in paragraphs (a), (c) and (g) of section 10 of the Heritage Act. The terms of the provisional registration were very similar to those for the later registration, which are set out and discussed below.
[47] Exhibit T1, T documents, Heritage (Decision about Provisional Registration of The Former AAA Building, Braddon) Notice 2014, and provisional entry to the Heritage Register, NI2014460, T-docs, pages T158-170; Minutes of ACT Heritage Council meeting of 18 September 2014, page T179
The provisional registration was notified in a range of ways. The notices invited written comments on the provisional registration by 22 October 2014.[48]
[48] Exhibit T1, T documents, pages T145-157
Meyer Vandenberg, Lawyers made a submission to the Heritage Council on behalf of the applicant. This indicated an intention to make a further submission; that this would take some time to prepare; asked that the process be delayed to consider the issues; and set out arguments as to why criteria (a), (c) and (g) in section 10 were not met.[49] An extension was granted, to enable a further submission, to 11 November 2014,[50] and then to 14 November 2014.[51] Representatives of the applicant met with officials of the Council on 10 November, and with members and officials of the Council on 27 November 2014.[52] No supplementary submission was provided, but there was a letter from Meyer Vandenberg to the Minister for Planning dated 9 December 2014 which argued that as there was no nomination which met the requirements, and that many of the factual assumptions upon which the provisional listing was based were under challenge, the Minister ought to direct the Council to consider dismissing the nomination.[53]
[49]    Exhibit T1, T documents, letter from Meyer Vandenberg of 22 October 2014, pages T127-130
[50]    Exhibit T1, T documents, email from Anna Gurnhill dated 23 October 2014, page T125
[51]    Exhibit T1, T documents, email from Fiona Moore dated 23 October 2014, page T112
[52]    Exhibit T1, T documents, minutes of meeting on 27 November 2014, pages T101-102
[53]    Exhibit T1, T documents, letter from Meyer Vandenberg dated 9 December 2014, pages T97-99
There were three other responses to the notification of provisional registration. The RAIA supported the registration, an individual suggested the Building should make way for newer public housing, and another individual stated that they did not understand why the Building needs to be registered as it is well maintained, and registration will encumber the owner with arguably unreasonable restrictions.[54]
[54] Exhibit T1, T documents, public consultation submissions, pages T131-134; summary of public consultation submissions, pages T92-96
In response to the submissions, the Minister requested that the Council give further consideration to the issues raised in the public consultation.[55] The Minister also asked to receive a detailed response to the matters noted in the letter from Meyer Vandenberg and that the owner or its representative be given time to provide a response to this detailed response.[56] A further submission was provided by the Council to the Minister and received on 19 December 2014.[57] The submission refers to a draft letter, which is not attached to the submission in the T documents, but the Minister did not agree to this draft letter and asked for further consultation.
[55]    Exhibit T1, T documents, submission received 16 December 2014, pages T74-T96, see esp. T78
[56]    Exhibit T1, T documents, letter from the Minister dated 17 December 2014, page T73
[57]    Exhibit T1, T documents, pages T69-72
On 12 February 2015 the Heritage Council considered the matter; in the minutes of the meeting it was noted that the applicant had had two meetings, and that representatives of the applicant had advised that they were not interested in further consultation. The Council reviewed each issue raised in the summary of consultation submissions; the Council agreed its prior decision to provisionally register was accurately made; and the Council decided to register the Building.[58]
[58] Exhibit T1, T documents, minutes of Heritage Council meeting of 12 February 2015, draft form, pages T51-57, see esp. page T55; Heritage (Decision about Registration of The Former AAA Building, Braddon) Notice 2015, NI2015-73, pages T39-50; Exhibit R8, minutes of Heritage Council meeting of 12 February 2015, final form
The statement which accompanied the notice of decision provided:[59]
[59] Exhibit T1, T documents, page T41
The former AAA building within its open park like setting stands out as a bold and sleek metal-clad beacon of modernity amidst a setting of conventional brick and concrete structures nearby. It is an exemplar of the Late Twentieth Century Late Modern style with its supremely simple and elegant form and finish, expressing not just a high-tech quality but also considerable design skill. [Criterion (c) and (g)]
Designed in 1978 by Guy Maron, its bespoke wall cladding and glazing system completed in a high quality finish helps to extend the creative achievement of the design making it still appear as a modern building over three decades after its completion. [Criterion (a)]
…

Further parts of the statement are discussed below in consideration of the relevant criteria in section 10.

D. Review by the Tribunal

An application for review of the decision of the Heritage Council to register the Building was made by the applicant to the Tribunal on 12 March 2015. Under section 111 and schedule 1, column 1, item 3 of the Heritage Act a decision to register a place under section 40 is a reviewable decision, which is subject to review by the Tribunal on the application of anyone who made comments to the Council about the decision.[60] As noted above, the applicant did so. By order made on 24 May 2015 the Australian Institute of Architects was joined as a party to the proceedings.
[60] Sections 112 and 114
The hearing of this matter was conducted on 19-22 October and 5 November 2015. A view of the Building was undertaken on the first day of the hearing. The T documents provided by the Heritage Council in relation to its decision were admitted as evidence (exhibits T1 and T2). The applicant provided a statement of facts and contentions dated 18 June 2015 and a reply dated 12 October 2015, and relied principally on a bundle of documents (exhibit A1); a statement dated 18 June 2015 and reply dated 13 October 2015 by Jennifer Hill (exhibits A2 and A3); a statement dated 20 August 2015 and reply dated 12 October 2015 by Andrew Metcalf (exhibits A4 and A5); and a statement dated 18 June 2015 and reply dated 13 October 2015 by Juliet Landler (exhibits A6 and A7). These expert witnesses gave further oral evidence in the proceedings and were cross-examined. The applicant also provided written closing submissions, supplemented by oral submissions.
The Council as respondent relied on a statement of facts and contentions dated 1 October 2015; a bundle of documents (exhibit R1); a statement by David Flannery dated 29 September 2015 (exhibit R4); and a statement by Michael Queale dated 30 September 2015 (exhibit R16). These expert witnesses gave further oral evidence in the proceedings and were cross-examined. The Heritage Council also provided a written outline of closing submissions, supplemented by oral submissions.
The RAIA as a party joined relied on a statement of Eric Martin dated 1 October 2015 (exhibit PJ1), who gave oral evidence and was cross-examined, and provided a written closing submission. The RAIA generally supported the position of the Heritage Council and the decision to register the Building.

E. Issues with the decision-making process of the Heritage Council

The applicant raised a range of issues in relation to the decision-making process of the Council. In its submission, the applicant argued that the decision should be set aside and not remitted to the Council, and further that the Tribunal should decide that the Building not be registered.[61] The Council argued for its decision, and appeared to agree that if set aside the decision should not be remitted, but that the Tribunal should decide that the Building be registered.[62] The Tribunal first considers the issues raised about the decision-making process.
E.1 Nomination
[61] Applicant’s closing submissions at [15], [26]
[62] Transcript of Proceedings 22 October 2015, page 306, line 36 to page 307, line 6
One of these concerned whether there was a nomination, though this was not pursued by the applicant. At any rate this has been considered above at paragraphs 23-25.
E.2 Notice
A second issue was the failure to notify the applicant of the proposal for provisional registration, resulting in a denial of procedural fairness.[63] As discussed above the applicant did not receive notice of the process until provisional registration. The failure to require a nomination in the approved form may have contributed to this. The Tribunal agrees that this was a poor administrative process which showed little concern or respect for the legitimate interests of the applicant. Provisional registration was only one step in the process, and the applicant did have some opportunity to be heard before the decision to register was made. However, initially the applicant had only a month to provide written comments in response to the provisional registration,[64] although some minor extensions were granted. The Council had in contrast been formally considering the Building since July 2011, that is for over three years and to some extent before then, and the RAIA had been looking at it since 1999.[65] This placed the applicant at a significant, inappropriate and unnecessary disadvantage in having its views heard in the assessment process.
E.3 Expertise
[63]    Applicant’s closing submissions at [24(i)]
[64]    Exhibit T1, T documents, letter to the applicant dated 22 September 2014, page T154
[65]    See paragraphs 22-23 above
A third issue the applicant raised was the failure to ensure that adequate expertise in architecture and architectural history was brought to bear in the decision-making process.[66] The Council does appear to have relied principally on the ‘nomination’ by the RAIA, and its own expertise, rather than seeking any other experts. As noted above, under section 17(1)(d) six people are appointed to the Council as experts, and architecture is one area of expertise.[67] Duncan Marshall as Chair of the Council had expertise in architecture, but further issues in relation to his involvement are noted below; Dianne Firth was another member who had expertise in architecture; Pamela O’Neil had expertise in heritage, land and planning law.[68] Fiona Moore, a staff member in the ACT Heritage Unit, has an architecture degree.[69] Information was collected from Guy Maron, the architect.[70] It does not appear that any attempt was made to obtain independent expert advice from outside the Council; but such advice has been obtained for these proceedings.
[66]    Applicant’s closing submissions at [24(ii)]
[67] Section 17(4)(d) of the Heritage Act
[68]    Exhibit R9, Heritage Council member qualifications; Exhibit R11, cv for Pamela O’Neil
[69]    Exhibit R13, cv for Fiona Moore
[70]    Exhibit T1, T documents, emails and documents from Guy Maron, pages T277-291
There was no legal requirement to obtain independent expert advice for the decision-making process; as noted the Heritage Act establishes the Council in such a way that it contains significant expertise; and the Tribunal does not think that there are generally grounds for concern in relation to the process simply on this basis. However, in this case it is now clear that the owner, the applicant, objects to the registration. If the applicant had been notified earlier, it would have no doubt voiced its concerns earlier. Where the application is opposed, independent expert advice would improve the process.
E.4 Role of Mr Marshall
The applicant also raised a number of issues in relation to the role of Duncan Marshall in the process.[71] Mr Marshall was involved in researching and writing the citations for the RSTCA and which formed the basis for consideration for registration.[72] It appears that this was however principally in relation to another nominee, Churchill House.[73]
[71]    Applicant’s closing submissions at [24(iii)-(v)]
[72]    Exhibit T1, T documents, ACT Heritage Grants Program, Final Report as at 31 August 2006, pages T388-397, see esp. page T391
[73]    Exhibit T2, Supplementary T documents, invoices from Graeme Trickett, page ST27, and Duncan Marshall, page ST29
Mr Marshall was the Chair of the Register Taskforce and the Heritage Council throughout the process concerning the Building. Also, as noted above, it is clear that Mr Marshall was heavily involved in rewriting the draft decision to provide for provisional registration, and in supporting this registration.
At meetings of the Taskforce and the Council, Mr Marshall declared, in various terms, his previous role with the RAIA and “a possible association with the AAA Building,” more specifically through research of the Building, and its inclusion on the RSTCA.[74]
[74] Exhibit T1, T documents, pages T177, T201, T250, T292, and T300
Under regulation 10(1) of the Heritage Regulations 2006 (ACT), if a member of the Council has a material interest in an issue being considered, or about to be considered, by the Council, the member must disclose the nature of the interest at a Council meeting as soon as practicable after the relevant facts come to the member’s knowledge. Further, unless the Council otherwise decides, the member must not be present when the Council considers the issue, or take part in a decision of the Council on the issue.[75] ‘Material interest’ is broadly defined in regulation 10(4). There is no indication in the minutes of the meetings that Mr Marshall absented himself from discussion or decision-making in relation to the Building, nor of any relevant decision of the Council.
[75] Regulation 10(2)
The applicant did not seek a finding that Mr Marshall had a conflict of interest or that there was a breach of regulation 10. Further inquiry would be necessary to consider this. The applicant did argue that the fact that Mr Marshall may have been involved in the RAIA considerations and the ‘nomination’ of the Building, and was then heavily involved in the consideration of that nomination by the Council, was an additional issue in relation to the process. Also, the Council relied heavily on the work of the RAIA, which either nominated, or at least proposed for consideration, the Building (see paragraphs 22-23 above) and consulted Mr Maron, who was the architect for the Building being considered for registration (see paragraph 27 above). The Tribunal agrees that these are relevant factors, especially when combined with the absence of the involvement of the applicant in the provisional registration decision, and the absence of other independent architectural expertise in the process.
E.5 Heritage Assessment Policy
The applicant also raised the failure to ensure that it was informed of the adoption by the Council of a new Heritage Policy in 2014, and also the failure to apply the Policy in any event.[76]
[76] Applicant’s closing submissions at [24(vi)-(vii)]
David Flannery, now Chairperson of the Heritage Council, referred in his report to the Heritage Assessment Policy which was adopted by the Council in February 2014 (Heritage Assessment Policy), with an updated version adopted in February 2015. Mr Flannery in particular noted that the Heritage Assessment Policy provided that a place may be entered to the Register only if it has Territory level significance, or higher; he stated that this is consistent with the Act; and that a place has Territory level significance if its heritage values contribute to our understanding and appreciation of the broad pattern and evolution of the ACT’s history and heritage. National heritage places are those that are of outstanding heritage significance to Australia as a nation, while world heritage properties are important to everyone. Mr Flannery noted that this can be visualised as a pyramid; the pyramid he shows, which is also included in the Policy, has personal or family heritage, interest group heritage and local heritage below Territory heritage, and below what is described as the ‘heritage criteria threshold’.[77] The concept of Territory heritage significance is considered further below, but first consideration needs to be given to the role of the Policy.
[77] Exhibit R4, statement of David Flannery, report at [24]-[29]
The Heritage Council tendered the minutes of a meeting of the ACT Heritage Council on 6 February 2014 which notes that the Council endorsed a Heritage Assessment Policy and Information Sheet.[78] It would seem that the Policy existed from this time, but there are some curious issues in relation to its role from then on.
[78] Exhibit R5
First, notwithstanding the comments of Mr Flannery, there is no reference to the Heritage Assessment Policy in the documentation for the provisional registration[79] or registration,[80] nor in any of the decision-making documents of the Council. It is not referred to in the proposed entry for the Heritage Register, which is, in effect, a statement of the reasons for the decision of the Council.[81] Indeed the applicant submits there is no evidence that the Council ever applied the Policy.[82]
[79]    Exhibit T1, T documents, pages T159-195
[80]    Exhibit T1, T documents, pages T39-57
[81]    Exhibit T1, T documents, pages T39-50
[82]    Applicant’s closing submissions at [54]

More significantly for these proceedings, the Policy is not in the T documents before the Tribunal.[83] These T documents were provided under an order by the Tribunal to the Council which required production of “every document or part of a document that is in the respondent’s possession or under its control and is considered by it to be relevant to the review of the decision by the Tribunal.”[84]
[83] Exhibits T1 and T2
[84] Orders of 16 March 2015
Further, a statement was provided to the Tribunal by Michael James Phillis, an employed solicitor with Mills Oakley, who now act for the applicant, dated 21 October 2015.[85] Mr Phillis stated that the previous solicitors for the applicant requested on 14 October 2014 all documents on which the Council based its decision to provisionally register the Building. He stated that the records he had showed that there was no reply to this request;[86] however there was an email response from the Heritage Council on 14 October 2014, in which a link was provided to a list of references;[87] it was not suggested that the Heritage Assessment Policy was included in the list. An email confirmed that this list was the documents the Council had reference to when making its decision.[88] Next those solicitors made a request under the Freedom of Information Act 1989 (ACT) for access to the entire file that the Heritage Council holds in relation to the provisional listing of the Building. These documents were provided but did not include the Heritage Assessment Policy.[89]
[85]    Exhibit A9
[86]    Exhibit A9, statement of Michael Phillis at [5]
[87]    Exhibit T1, T documents, email dated 14 October, 2014 from Anna Gurnhill, pages T136-T137
[88]    Exhibit T1, T documents, pages T135-136
[89]    Exhibit A9, statement of Michael Phillis at [6]-[7]
The Heritage Council indicated at the hearing that the Heritage Assessment Policy had been published on the Council’s website since around June 2014. Emails were tendered which showed some elements of the process towards doing so.[90] Another email from Anna Gurnhill to ‘stakeholders’ dated 17 July 2014 advised of the Heritage Assessment Policy and noted that it was on the ACT government’s website.[91] The statement of Mr Phillis indicated that his search on 19 October 2015 of the relevant site of the ACT Environment and Planning Directorate did not find a link or reference to the Heritage Assessment Policy. Further, by using an internet site known as the Internet Archive Way Back Machine to do a number of searches, he concluded that the Heritage Assessment Policy was never accessible by a publicly visible link on the ACT Environment and Planning Directorate website.[92] Mr Phillis did find that a document entitled ‘Heritage assessment policy factsheet’ was available on the searches for 7 July and 14 September 2014; this document was found through a search result for 8 September 2014, and it refers to the Heritage Assessment Policy and states that it is available by contacting the ACT Heritage Unit.[93] He also found the Heritage Assessment Policy of February 2015 on the search for 3 March 2015.[94] A similar search by the Heritage Council however showed that at least in July 2014 the Policy was available on the website;[95] Mr Phillis agreed that this appeared to be the case.[96]
[90]    Exhibit R10, emails regarding Heritage Assessment Policy
[91]    Exhibit R6, email from Anna Gurnhill dated 17 July 2014
[92]    Exhibit A9, statement of Michael Phillis at [11]-[27]
[93]    Exhibit A9, statement of Michael Phillis at [18]-[19] and annexure H to the statement
[94]    Exhibit A9, statement of Michael Phillis at [21] and annexure I to the statement
[95]    Exhibit R15, ACT Heritage Council website print out as at 6 July 2014
[96]    Transcript of Proceedings 21 October 2015, page 194, line 12
This means that it seems likely that the Heritage Council did have a Heritage Assessment Policy at the relevant times, but it did not have regard to that Policy in making the provisional registration and registration decisions, and that this was not provided to the applicant and the Tribunal despite various requests to do so until filing and service of the statement of Mr Flannery. The Policy was, at very least, not easily available to the public and the applicant. Even when the applicant was informed of the provisional registration decision, it was not informed of the existence or possible relevance of the Policy; in the process towards the registration decision, it was not informed of the existence or possible relevance of the Policy.
The applicant also raised a range of issues in relation to the substance of the Heritage Assessment Policy. The applicant submitted that while the Council could have a policy on relevant issues, it could not have a policy which was inconsistent with the terms of the Act.[97] The Tribunal agrees with his proposition. The applicant argued that the Heritage Assessment Policy was inconsistent with the Act. We return to this issue below, but given that the Tribunal does not appear to have had regard to the Policy, it is not necessary to consider it here.
E.6 Conclusion concerning the process of the Heritage Council
[97] Applicant’s closing submissions at [7]-[9]
The applicant raises other issues in relation to the substance of the decision of the Council. We consider these below. In particular the Tribunal does not think that the evidence supports a finding of heritage significance under the criteria in section 10(a) and (c). But the issues noted in relation to the process of consideration by the Council have led the Tribunal to set aside the decision of the Council.
In such circumstances, under section 68 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) the Tribunal may substitute its own decision for that of the Council or remit the original decision to the Council. The applicant argued that there were significant problems in remitting the decision to the Heritage Council for its consideration.
The applicant argued that if the decision were remitted, the Council would not be able to deal with the matter. This is because in order for the Council to decide whether to register a place, it must be provisionally registered,[98] and it was said that provisional registration had ended because section 35(2) provides that “provisional registration ends if the place…is registered under division 6.2.” It is not correct that provisional registration has ended on this basis. While the Council has decided to register the Building, section 41(2) provides that it can be registered only if, relevantly, the appeal period has ended and no appeal has been made, or any appeal has been finally decided and the registration is consistent with any decision on the appeal. Section 41 has now been omitted from the Heritage Act, and in effect replaced by section 114A, but in this case it continues to operate.[99] These requirements in section 41(2) are additional to those in section 40(2). While some of the materials talk of the Council registering the Building, this cannot be legally correct in light of section 41(2). Therefore the provisional registration has not in law ended under section 35(2).
[98] Section 40(1) of the Heritage Act
[99] By operation of section 202(b) of the 2014 Amendment Act, until this expires under section 204, see paragraph 13 above
However, in addition, the provisional registration is only for five months, or for such further extended period as the Minister decides, though the Minister can do so only on limited grounds which are not relevant here.[100] The five month period has now passed. However, section 41(2) is also relevant here, since it provides that the Council may register a place if any appeal has been finally decided and the registration is consistent with any decision on the appeal. Such registration does not require an existing provisional registration. This would allow the Council to implement a decision by the Tribunal. It is not clear that this extends to the Council making a fresh decision on remittal, though it may do so, otherwise the appeal process could be futile.
[100] Section 36 of the Heritage Act
At any rate, the applicant also argued that the matter should not be remitted because the Council would not be free from the appearance of bias in undertaking any reconsideration, it having taken an active role in the Tribunal proceedings, and has at no time acknowledged the flaws in the decision making process.[101] Another reason is that the Tribunal has had available to it not just the documents from the Heritage Council’s process, but also extensive further expert evidence on this issue. The applicant has also had a full opportunity to participate in these proceedings, in contrast to the Council’s considerations. The Council itself did not argue for remittal if the decision is set aside.[102]
[101] Applicant’s closing submissions at [23]
[102] Transcript of Proceedings 22 October 2015, page 306, line 36 to page 307, line 6
On this basis the Tribunal is of the view that the decision should not be remitted to the Heritage Council, but the Tribunal should decide the matter itself in light of the extensive evidence before it. The Tribunal agrees with the applicant that given the nature of the decision under the Heritage Act, the Tribunal can decide to register the Building only if it reaches the required state of satisfaction that the criteria in the Act are met.[103]

F. Issues relevant to the criteria in section 10

[103] Applicant’s closing submissions at [64]-[68], see esp. [68]; McDonald v Director-General of Social Security (1984) 1 FCR 354

There are a number of general issues which were relevant to the application of the criteria in section 10. The Tribunal considers these before addressing the specific relevant criteria.
F.1 Style of the Building
The Heritage Council found the former AAA building to be “an exemplar of the Late Twentieth-Century Late Modern style.”[104]
[104] Exhibit T1, T documents, pages T41 and T45
The architectural style known as ‘Late Twentieth-Century Late Modern 1960-’ (Late Modern) has been described by Richard Apperly et al (Apperly) as follows:[105]
By the end of the 1970s it was clear that Post-Modern was a recognisable style which was not going to go away, however much its opponents attacked what they felt were its superficiality and obsession with historicism…with modernism now proclaimed dead and with post-modernism starting to gain ground, a style name was needed to identify a new breed of buildings which seemed to owe more to the deceased modern movement than anything else. The label Late Modern was therefore created.
Late Twentieth-Century Late Modern buildings avoided most of the allusions, irony and self-mockery of post-modernism, although they sometimes paid homage to Inter-War Functionalism. They also modified the uncomplicated predictable matchbox shapes of the International style by slicing, chamfering or serrating them, by stressing the 45-degree angle in plan and elevation, or by relinquishing the rectangular prism in favour of pyramidal, cylindrical or free-curved shapes. Late Modern architecture was nothing if not sleek and glossy. It strove to convey the image of the formidable technology of the computer and the satellite, a technology that was not yet practical for everyday use in the building industry even though it appeared overseas in such tours de force as the Hong Kong and Shanghai Bank and the Lloyds of London Building.
An Australian strand of late modernism emerged. It could be seen in the carefully detailed, minimalist, metallic houses of Glenn Murcutt and others. Precision, lightness and elegance characterised these buildings, with a refreshing absence of the rather empty slickness found in so many examples of the Late Modern commercial idiom. [Emphasis in the original.]
[105] Exhibit R 16, statement of Michael Queale, report, appendix pages 71-73, Apperly, Richard, Robert Irving and Peter Reynolds, A Pictorial Guide to Identifying Australian Architecture: Styles and Terms from 1788 to the Present (Angus & Robertson, Sydney, 1994) page 260
With the exception of Mr Metcalf, the expert witnesses before the Tribunal accepted the classification of the Building as an example of the Late Modern style.[106] Mr Metcalf argued that ‘Late Twentieth-Century Late Modernism’ should be seen only as a period within the style known as Modernism and that the appropriate architectural style of the former AAA building is Modernism. He suggested that “periodising architectural history with the construction of a convoluted category like Late Twentieth-Century Late Modern may be expedient but not particularly productive. Its use in the case of the former AAA building implies membership of an elite category which may or may not be warranted.” In his opinion, “the whole 20^th century was a period of the ‘modern’ residing in architecture in different ways in different parts of the world, even differently in different parts of Australia”. Mr Metcalf concluded that the “specificity of the subject building is more relevant than the claim that it has status from the assertion that it belongs to any stylistic category.”[107]
[106] Exhibit A2, statement of Jennifer Hill, report pages 10-14; Transcript of Proceedings 19 October 2015, page 25, line 10; Exhibit R4, statement of David Flannery, report at [50]-[73]; Exhibit R16, statement of Michael Queale, report at [47]-[67]. Juliet Landler principally gave evidence on the curtain wall technology
[107] Exhibit A4, statement of Andrew Metcalf at [13]
The Tribunal notes the opinion of Ms Hill that Modernism as a whole was “incredibly important” in the history of architecture. Ms Hill did not think that Late Modern is more important “than the principles of Modernism generally, which were being debated from the middle sixties.”[108] The Council contended that the Late Modern style was of exceptional interest in the ACT because it was “the form of architectural modernism embraced by the NCDC for Canberra’s major post-war expansion.”[109]
[108] Transcript of Proceedings 19 October 2015 page 42, line 38 and following
[109] Outline of respondent’s submissions at [66]
Notwithstanding the statements of Mr Metcalf, on the basis of the views of the other experts the Tribunal accepts that the Building is in the Late Modern style. The applicant acknowledged that the evidence supported this view.[110]
[110] Applicant’s closing submissions at [117]
The Tribunal discusses further below the styleof the Building in its consideration of the criteria for the assessment of the heritage significance.
F.2 Territory heritage significance
As noted, the Building can be registered only if the decision-maker is satisfied, on reasonable grounds, that it has heritage significance.[111] A place has heritage significance if it satisfies one or more of the criteria in section 10 of the Heritage Act. There are a number of important adjectives and adverbs used in the section 10 criteria, in particular ‘high’ degree, ‘exceptionally fine’ level (in paragraph (a)), ‘exceptional’ interest (in paragraph (c)) and ‘notable’ example (in paragraph (g)). These terms, in part, import a comparison between the place under consideration and other places. As Mr Metcalf noted in his oral evidence, to make a heritage assessment of a building in the ACT, “you need to, amongst other things, have reference to comparison, other buildings.”[112] There was considerable argument as to how these adjectives and adverbs and the comparisons they suggest should be assessed. But it is important to keep in mind that, as Mr Metcalf indicated and as discussed further below, such comparisons are only one aspect of the application of the criteria.
[111] Section 40(2)(b) of the Heritage Act
[112] Transcript of Proceedings 20 October 2015, page 72, lines 28-30
The Council’s position was that these comparisons, and the issue of heritage significance, should be assessed at the ACT level, though this did not prevent comparisons also at the national or international levels.[113] That is whether the Building is a notable example of a kind of place should be assessed in relation to other buildings in the ACT (Territory heritage significance), though it could also be assessed in relation to other buildings in Australia (national heritage significance) or even the world (world heritage significance). In effect, if a building was a notable example when compared to others around the world, or in Australia, it was likely also to be a notable example in the Territory, and could demonstrate heritage significance in this way. But it could also demonstrate heritage significance if it was a notable example only within the Territory.
[113] Outline of respondent’s submissions at [6], and then the discussion of each criteria
The applicant’s position was that the assessment could not be at just the ACT level, that is on the basis of Territory heritage significance. It argued that the words in the criteria are intended to be left unaffected by any geographical limitation to the ACT locality, and invoke a scale of measurement and comparison of achievement that goes beyond the ACT.[114] The applicant was not always precise about how far beyond; generally this was expressed as Australia, but it could be the world. In its submission a building could not demonstrate heritage significance if it was a notable example only within the Territory, but needed to be of national or world heritage significance.
[114] Applicant’s closing submissions at [30]
The issue is therefore whether the assessment or comparison can be undertaken at only the ACT level; both parties agreed it could be done at the national or world level.
Place or object
Both the applicant and the Heritage Council agreed that the place or object needed to be in the ACT.[115] In the Tribunal’s view it seems clear that the Heritage Act does not intend to enable the registration of a place or object outside the ACT, even if ACT legislation was able to do so. There is no express provision to this effect in the Act. But this limitation arises from section 18(a) of the Heritage Act, and from section 122 of the Legislation Act, and if necessary the equivalent common law presumption, and from the nature of the Heritage Act as a law of the ACT.
Adjectival terms
[115] Applicant’s closing submissions at [29]; Outline of respondent’s submissions at [4]
As noted, there was no such agreement in relation to the adjectival or adverbial terms which suggest comparison of the place under consideration with other places. There is no definition of these terms in the Heritage Act.
Section 122 of the Legislation Act
The respondent argued that section 122 of the Legislation Act is relevant. Section 122(1) provides:
122Application to Territory
(1) In an Act or statutory instrument—
(a)a reference to an entity or position by name or description is a reference to the entity or position of that name or description in or for the Territory; and
(b)a reference to a place, jurisdiction or anything else by name or description is a reference to the place, jurisdiction or thing of that name or description in or for the Territory.

In relation to paragraph (a), the concept of ‘entity’ is defined in the Legislation Act to include “an unincorporated body and a person (including a person occupying a position)”, and ‘position’ includes “office”.[116] In relation to paragraph (b), ‘place’ is not defined in the Legislation Act. In the Heritage Act it includes buildings. Here buildings may be a place, but would at least be within ‘anything else’.
[116] Dictionary to the Heritage Act
A ‘notable example’ is a reference to a thing by name or description. The concepts of ‘high degree of creative achievement’ and ‘exceptionally fine level of application’ in paragraph (a) and ‘design of exceptional interest’ in paragraph (c) are less obviously a reference to a thing by name or description, though this is still possible. However the concepts clearly involve comparators of the place under consideration. Application of the presumption in this context would require a high degree of creative achievement in the Territory, so that criterion (a) catches a thing in the Territory, which demonstrates a high degree of creative achievement when compared with other things in the Territory.

At any rate these criteria are defining the concept of ‘heritage significance’. This can also be the name or description of a thing, and section 122(1)(b) would give rise to the presumption that this is heritage significance in or for the Territory, that is that the relevant place in the ACT has significance compared to other places in the ACT.
The applicant argued that section 122 was concerned with things that have a geographical location; not adjectives or adverbs.[117] The applicant pointed to the fact that the criteria set out the qualities that need to be identified in a place or object located within the ACT that is a candidate for heritage registration; those qualities, such as creative achievement or design, are not themselves understood by reference to the ACT; they do not denote physical things, but rather describe standards against which a place or object is to be measured.[118]
[117] Applicant’s statement of facts and contentions in reply at [4]-[5]
[118] Applicant’s closing submissions at [30]
Section 122 of the Legislation Act is a non-determinative provision which may therefore be displaced expressly or by a contrary intention.[119] The applicant also argued that if section 122 did apply, there was a contrary intention which displaced it.
[119] Sections 5 and 6 of the Legislation Act
This contrary intention, it was argued, arose because some of the criteria in section 10 do indicate a level of geographic scope: paragraphs (b) and (d) refer to ‘community or cultural group’; paragraph (e) refers to ‘significant to the ACT’; paragraph (h) to ‘local or national history’; and paragraph (j) to the ‘natural or cultural history of the ACT’. The applicant argues that this suggests that elsewhere the presumption is rebutted and a national or international heritage significance is implied.[120] It is important to note that this submission involves two steps. First, it must be argued that the presumption is displaced, that is that the comparisons, and the issue of heritage significance, can be assessed at the national or international level, as well as at the Territory level. The Council to some extent agreed with this argument, provided that assessment at the Territory level can be sufficient. But second, it must be argued that the presumption is not just displaced, but that it is replaced by the opposite position, namely that these comparisons, and the issue of heritage significance, cannot be assessed at the Territory level, but must be assessed only at the national or international level.
[120] Applicant’s statement of facts and contentions in reply at [5]-[9]
However there is at best only a weak indication of this second step of legislative intent in the paragraphs identified in section 10.[121] None of these paragraphs is relevant in this case. They are all in a different form. If an implication is to be drawn from them for the other paragraphs, it is unclear what form that implication should take. For example paragraph (e) states “it is significant to the ACT because of its importance as part of Aboriginal tradition”; if this suggests that other paragraphs without geographic indicators must have an alternative reach, there is a range of such alternatives including local, national, or world, or a combination of these, with or without Territory level. Alternatively, paragraph (e) could simply be making clear that the concept of heritage significance is in fact focused on the ACT, and not other geographical areas which might otherwise be thought relevant to Aboriginal tradition, and therefore this criterion. Similarly, paragraph (j) refers to a place or object that “will contribute significantly to a wider understanding of the natural or cultural history of the ACT”; this allows for items of primarily local significance to be protected where they also have this wider significance. The use of these terms seems to be clarifying potential ambiguities which might arise for the particular criteria, rather than suggesting that elsewhere Territory heritage significance is irrelevant.
[121] Applicant’s closing submissions at [31]-[37]
The applicant also relies on the use of the phrase ‘promote places and objects in the ACT’ in section 18(a) (see also 18(c)).[122] But there are many examples in the Act where this express geographic link is absent, but the link to the Territory is clear: see for example the long title to the Act; the objects of the Act in section 3; and the definitions of places and objects in sections 8 and 9. There are also the other paragraphs in section 18 with an express geographic link and, contrary to the submissions of the applicant, it seems that the references to public interest,[123] public education[124] and tourism[125] are references to these things in and for the ACT.[126] This suggests that the reference to the ACT in section 18(a) and (c) is not an indication that elsewhere there is no link to the Territory.
Common law
[122] Applicant’s closing submissions at [36]
[123] Section 18(f) of the Heritage Act
[124] Section 18(g) of the Heritage Act
[125] Section 18(h) of the Heritage Act
[126] Applicant’s closing submissions at [36]
There is also a common law presumption that a provision is not to have extraterritorial effect, which is given some legislative effect by section 122 of the Legislation Act, and that general words are presumed not to extend to cases governed by foreign law.[127] This presumption has been described generally as that “an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons and matters.”[128] These presumptions can also be rebutted. They add little to resolving the issue.
Purpose of the Heritage Act
[127] Pearce, D C and R S Geddes Statutory Interpretation in Australia (7^th edition, 2011) at [5.9]-[5.12]
[128] Bennion on Statutory Interpretation A Code (6^th edition, 2015), page 339
In applying the section 122 and the common law presumption much depends on the nature and purpose of the legislation concerned. In Tan v Vocational Registration Appeal Committee (1996) 71 FCR 405, Carr J rejected a submission that in relation to matters of qualifications, training and experience, these had to be read as if the words ‘in Australia’ were inserted, and stated that “given the overall objectives of the Act…no such restrictive approach should be taken.” In that case failure to apply the presumption meant training in Australia or overseas could be considered. More generally, section 139(1) of the Legislation Act provides that in working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation. It is important to turn therefore to the purpose of the Heritage Act.
The long title of the Heritage Act is “to provide for the recognition, registration and conservation of places and objects of natural and cultural significance, and for other purposes”. As noted above, the objects of the Act include “to establish a system for the recognition, registration and conservation of natural and cultural heritage places and objects, including Aboriginal places and objects”[129], and a function under the Act must be exercised “to preserve the heritage significance of places and objects”, and “to achieve the greatest sustainable benefit for the community from places and objects consistent with the conservation of their heritage significance.”[130] Section 18(a) provides that the Heritage Council has the function “to identify, assess, conserve and promote places and objects in the ACT with natural and cultural significance.” The Revised Explanatory Memorandum for the Bill which became the Heritage Act stated that it “presents a new set of principles and processes for conserving significant heritage and places in the ACT.”
[129] Section 3(1)(a) of the Heritage Act
[130] Section 3(1)(a) and (2) of the Heritage Act
These indicators of purpose do not expressly address this issue. But they provide a basis for doing so when the legal context in which they occur is noted. First this is heritage legislation. The term ‘heritage item’ is defined in the Macquarie Dictionary online to mean, in relation to law: “landscape, place, work, building or relic of such significance for past, present, or future generations that it is deemed worthy of being preserved”. The general term ‘heritage’ is defined more broadly and refers to “the culture, traditions and national assets preserved from one generation to another”; as discussed below the reference to national assets is only one example of the level of generality at which the concept can be applied. The 1974 Report of the National Estate, which was central to the development of Australian heritage law, noted a description of the similar concept of the national estate as “the things that you keep”.[131] Therefore the purpose of heritage laws in general, including the Heritage Act, is to provide for the identification of buildings, and other things, of such significance that they are deemed worthy of being kept. This should inform how the Heritage Act is read.
[131] Committee of Inquiry into the National Estate Report of the National Estate (1974) at [1.1]
Second, it is important to remember that the Territory Assembly makes laws for the peace, order and good government of the Territory, that is with respect to the Territory and the people in it.[132] Therefore the Heritage Act is to provide for the identification of buildings, and other things, of such significance that it is deemed worthy of being kept for the benefit of the Territory and the people in it.
[132] Section 22 of the Australian Capital Territory (Self-Government) Act 1988 (Cth)
Third, the modern regime for the protection of heritage exists at a number of levels. It is relevant to note these briefly. The Convention for the Protection of the World Cultural and Natural Heritage [1975] ATS 47 (World Heritage Convention) defines ‘cultural heritage’ as “monuments, architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science” (emphasis added).[133] It then provides a regime for protecting these things.
[133] Article 1
The Commonwealth Parliament has implemented its obligations under the World Heritage Convention. In summary, the Environment Protection and Biodiversity Conservation Act 1999 (Cth) (Environment Protection and Biodiversity Conservation Act) at section 12(1) provides, subject to exceptions for approved actions, that a person must not take an action that has, will have or is likely to have a significant impact on the world heritage values of a declared World Heritage property (defined in section 13). A property has world heritage values only if it contains natural heritage or cultural heritage within the meaning of the World Heritage Convention.[134]
[134] Section 12(3) and (4) of the Environment Protection and Biodiversity Conservation Act
The Commonwealth regime importantly goes further. The Environment Protection and Biodiversity Conservation Act provides in sections 15B and 15C for the protection and management of National Heritage places (defined in section 324C(3)). A place has a National Heritage value only if the place meets one of the criteria (the National Heritage criteria) prescribed by the regulations.[135]
[135] Section 324D of the of the Environment Protection and Biodiversity Conservation Act
But the Australian heritage regime has generally recognised that heritage, or the national estate, extends beyond heritage of the world, and heritage of the nation in the sense of the whole of Australia, to heritage of a State or Territory, and a third Australian level of local areas.[136] States therefore have related regimes, which generally cover their jurisdiction and local areas within this. The ACT does not provide in any significant way for local heritage, since its size has been said not to justify this layer of heritage administration.[137] For example, the Heritage Act 1977 (NSW) (NSW Heritage Act) deals with ‘environmental heritage’, which is defined in section 4(1) as “places, buildings, works, relics, moveable objects, and precincts that are of State or local heritage significance” (emphasis added). State or local heritage significance means significance to the State or an area, respectively.[138] An item can be of both State heritage significance and local heritage significance.[139] The NSW criteria are similar, though not identical to those in the Heritage Act.
[136] Committee of Inquiry into the National Estate Report of the National Estate (1974) at [2.7]; Boer, Ben and Graeme Wiffen, Heritage Law in Australia (2006), page 183
[137] Boer, Ben and Graeme Wiffen, Heritage Law in Australia (2006), page 183
[138] Section 4A(1) of the NSW Heritage Act
[139] Section 4A(2) of the NSW Heritage Act
The Heritage Act should be interpreted on its own terms and in accordance with the principles of statutory interpretation. However, relevant to its purpose is the fact that it is heritage legislation for the ACT and sits within the Australian legal regime for protecting world heritage, national heritage and State, Territory and local heritage, with some level of co-operation between the levels of government on this issue.[140]
Conclusion concerning Territory heritage significance issue
[140] Boer, Ben and Graeme Wiffen, Heritage Law in Australia (2006), pages 99-100 and 313
These considerations lead the Tribunal to agree with the position argued for by the Heritage Council in these proceedings, namely that the comparisons called for in section 10 of the Heritage Act, and the issue of heritage significance, can be assessed at the ACT level. This does not prevent assessment and comparison also at the national or international level, at least on the basis that national or international significance will generally result in Territory significance. The statutory presumption in section 122 of the Legislation Act and its common law equivalent suggests that only ACT heritage significance is relevant. We do not think that there is a sufficient textual basis for reversing the presumption and finding that only national and international significance is relevant. Most significantly, such a reversal would be contrary to the purpose of having heritage legislation for the ACT, which is to provide for the identification of buildings and other things in the Territory of such significance to the Territory that they are deemed worthy of being preserved. This is particularly so in the context of laws for the protection of word heritage and national heritage at the Commonwealth level, and other State and Territory laws for heritage protection at the State, Territory and local level. To give as one example, it would seem best to achieve the purpose of the Act to enable registration of a building which is a notable example in the ACT of a kind of building and demonstrates the main characteristics of that kind, even though there may be better examples in Adelaide or Shanghai. It would not seem to achieve the purpose of the Act if the existence of a better example in Adelaide, or even more so, Shanghai, prevented registration in the ACT. Indeed if buildings outside the ACT prevented registration of buildings within it, this would render the Heritage Act of little utility, since generally it would only enable registration of things which are or could be protected, if they are in Australia, under Commonwealth laws.
This brings us back to the issue of the territorial operation of the Act. The interpretation that would best achieve the purpose of the Act is one which recognises that the Heritage Act can protect buildings only if they are in the ACT, and therefore that regard should be had to the buildings in the ACT in deciding which ones to keep.
The applicant argued that because the ACT is small in geographic size and population, with therefore a small number of buildings, that such an approach would ‘lower the standard’ and enable ‘easy registration’.[141] But given that the ACT Assembly has chosen to have a Heritage Act, the Tribunal does not think that this observation can affect its operation.
[141] Applicant’s closing submissions at [41]-[44]
Two final points on this issue need to be made. First, as discussed above, the Tribunal accepts that the Building is in the Late Modern style for the purposes of applying the criteria. The acceptance of Territory level heritage significance does not suggest that the Late Modern style must be a product of the Territory to be relevant. There are buildings throughout the world; the Late Modern style was an international development; there are Late Modern style buildings throughout the world. Notwithstanding some of the arguments of the applicant, this does not prevent, or make irrational, the consideration of Territory level heritage significance of a building in the ACT in the Late Modern style.
Second, the Tribunal agrees with the applicant to the extent that it cannot be that if there is only one example of a type of building in the ACT, this therefore demonstrates a high degree of technical achievement, or that it is a notable example of a kind of place. Comparisons are one way of considering this issue. As Mr Metcalf noted in his oral evidence, to make a heritage assessment of a building in the ACT, “you need to, amongst other things, have reference to comparison, other buildings” (emphasis added).[142] This is also a matter for assessment by experts as to whether the relevant qualities are present.[143] The Council acknowledged that regard should be had to the inherent qualities of things.[144] The absence of local comparators cannot of itself give a building these qualities. But the underlying question is whether the building has heritage significance in and for the Territory.
F.3 Recognition
[142] Transcript of Proceedings 20 October 2015, page 72
[143] Boer, Ben and Graeme Wiffen Heritage Law in Australia (2005), page 125
[144] Respondent’s statement of facts and contentions at [44]
The former AAA building has received a range of recognition. The Building was included in the 1982 handbook Canberra: An Architectural Guide to Australia’s Capital in which it was described as “Canberra’s first high tech architecture, aluminium faced sandwich panels and flush glazing stretched over sinuous form.”[145]
[145] Exhibit R16, statement of Michael Queale, report, appendix pages 59-61, Canberra: An Architectural Guide to Australia’s Capital, (Royal Australian Institute of Architects, ACT Chapter, 1982), page 11
In 1982, the Building received a Commendation in the annual awards of the ACT Chapter of the Royal Australian Institute of Architects. The Building did not receive the Chapter’s highest award, the Canberra Medallion, which went to the Belconnen public library. The report of the Institute jury said inter alia of the former AAA building that “the curved façade and stairs are carefully moulded together to provide a strong and sophisticated architectural statement”.[146]
[146] Exhibit R16, statement of Michael Queale, report, appendix page 58, Architecture Australia, January 1982, Volume 71, No.1, page 52
The applicant’s expert witnesses placed considerable emphasis on the fact that the Building was not awarded the Canberra Medallion, the highest award. In the opinion of Ms Hill, the ACT Chapter of the Royal Australian Institute of Architects “did not share Mr Maron’s enthusiasm for the building’s response to siting, noting an uncomfortable relationship with neighbours.”[147] Ms Hill refers to and quotes from an article in the Canberra Times in August 1982 by Frank Longhurst, City Reporter, which misleadingly combines quotations from the report of the jury with the opinions of the reporter. In the following extract from the article written by Mr Longhurst, the words underlined are taken from the report of the Institute jury and the remaining words are those of Mr Longhurst:[148]
One of the most visually striking buildings in Canberra, the AAA Building in Northbourne Avenue, was commended but also criticised. The judges found that Mr Maron “has achieved both success and failure” with the curving metal-clad building. The success related to the strong form and “silver skin” appearance but the failure came with the “uncomfortable relationship” it created with its precast concrete neighbours and “self-inflicted siting problems” which had resulted in the sweeping curve of the main façade of the building addressing the carpark of the adjoining Gowrie Private Hotel rather than Northbourne Avenue.
A copy of the full report of the Institute jury was not included with Ms Hill’s statement and was not provided to the Tribunal by the parties or by any witness.
[147] Exhibit A2, statement of Jennifer Hill, report page 5
[148] Exhibit T1, T documents, page T412, Canberra Times, 11 August 1982, page 35; Exhibit R16, statement of Michael Queale, report, appendix page 58, Architecture Australia, Volume 71, No. 1, January 1982, page 52

The position of the Heritage Council in these proceedings was that the Building is important evidence in the ACT of a distinctive form of architectural design, Late Modern, and that the Late Modern style is of exceptional interest.[210]
[210] Outline of respondent’s submissions at [59]
Mr Queale placed the Building within its historical context, in particular the significant growth of Canberra in the NCDC period (1958-89) when almost all public, government and commercial buildings were Modernist in design style, though there were variants including International Style, Brutalism, Organic/Regional and Late Modern. Modernist style buildings are therefore, he stated, of exceptional interest in the ACT. Although one of many, he thought the former AAA building is of exceptional interest as an early, extant, local exemplar of aluminium clad Late Modernism. He concluded that in his view it was of exceptional interest as an exemplar of Late Modern architecture within the ACT.[211] As noted, the Tribunal agrees that criterion (c) can be met by Territory level significance as discussed by Mr Queale, that is that the exceptional interest is in and for the Territory. But notwithstanding the significance of the NCDC period, the importance of the Modernist buildings within this period, and the rarity of aluminium clad Late Modern buildings, it is not clear that this of itself makes the Late Modern style of exceptional, that is extraordinary, interest.
[211] Exhibit R16, statement of Michael Queale, report at [97]-[101]
Mr Metcalf thought that there are numerous buildings in the ACT that the Building could be compared to such as the Cameron Offices, Parliament House, the School of Music and Dickson Library, which are approximately contemporaneous to the Building. There is further discussion of the relevance of such comparisons in the consideration of criterion (g) below, but generally whilst these are examples of Modernist style, the Tribunal doubts these are appropriate comparators of the Late Modern style. In his view the Building is not of a design that is of exceptional interest. It is now a commercial office building; open plan offices with curtain wall cladding were and remain common building types.[212] Ms Hill agreed that the Building provides evidence of the Late Modern style, but did not think it is of exceptional interest. She stated that key features of the Building and style can be found in other examples.[213] The Tribunal notes that this criterion does not seem to require the Building to be of exceptional interest, rather it is the design, in this case the Late Modern style, which needs to meet this standard. But the comments of Mr Metcalf and Ms Hill still indicate views that the style of the Building is not of exceptional interest. These views cannot be ignored.
[212] Exhibit A4, statement of Andrew Metcalf at [54]-[56]
[213] Exhibit A2, statement of Jennifer Hill, report page 20; Exhibit A3, statement in reply by Jennifer Hill at [29]
The Tribunal does not think that the Council has demonstrated that the Building meets this criterion. The Building is evidence of the Late Modern style, it may be important as evidence, but on balance the Tribunal does not think that the evidence supports a finding that the Late Modern style is of exceptional, that is extraordinary, interest.

I. Criterion (g) notable example

Criterion (g) requires that the Building is:
(a)a notable example,
(b)of a kind of place or object, and
(c)demonstrates the main characteristics of that kind.
‘Notable’ is not defined in the Heritage Act. The Macquarie Dictionary online defines it as “1. worthy of note or notice; noteworthy: a notable success 2. prominent, important, or distinguished, as persons”. The Shorter Oxford Dictionary also refers to “1. Worthy or deserving of note” and adds “esp. on account of excellence, value, or importance; remarkable, striking eminent.” An example which is worthy of note or notice for positive reasons, such as its importance, is required. This is a lower test than ‘exceptional’. The Tribunal is of the view that any one of the criteria can provide heritage significance, and that the terms of criterion (a) are not a basis for reading down other criteria, such as criterion (g).
The decision of the Heritage Council stated that the Building is an example of the Late Modern Style, in particular because the shape of the building is determined by simple geometry, and the use of an aluminium curtain wall. The Council stated that it is a notable example because the design extends the style “with a supremely simple and elegant form and finish, expressing not just a high-tech quality but also considerable design skill.”[214]
I.1 Kind of place
[214] Exhibit T1, T documents, page T43
As noted above, the Tribunal is of the view that it is appropriate to treat the Building as of the Late Modern style, and that this is the relevant ‘kind of place.’ Mr Metcalf stated that in his view the ‘kind of place’ was an office building.[215] The Tribunal does not think that Mr Metcalf’s is the appropriate way to assess the Building. The applicant in effect indicated that his was unlikely to be the correct approach.[216]
I.2 Main characteristics
[215] Transcript of Proceedings 20 October 2015, page 97, lines 11-17; Exhibit A4, statement of Andrew Metcalf at [59]
[216] Transcript of Proceedings 22 October 2015, page 284, lines 15-21
As also noted above, evidence was given that the Building demonstrates a number of the ‘Style Indicators’ and ‘Style Keys’ identified by Apperly as representative of the Late Modern architectural style. The relevant Apperly ‘Style Indicators’ include shape of principal masses determined by simple geometry (item 1); three-dimensional (ie non-planar) façade treatment (item 2); rounded corner (item 4); aluminium curtain wall (item 6); reflective glass cladding (item 7); patent glazing (item 8); and windows suggesting space-age technology (item 13). The Apperly ‘Style Keys’ include the broad characteristics of sleek, glossy commercial buildings; cylindrical or free-curved shapes; precision, lightness and elegance; by minimalist construction in metallic materials; with exterior characteristics of principal masses determined by simple geometry; three-dimensional façade treatments; glass and metal curtain walls and cladding panels; and reflective glass cladding.[217] The Building has these features.
I.3 Notable example
[217] Exhibit R 16, statement of Michael Queale, report, appendix pages 71-73, Apperly, Richard, Robert Irving and Peter Reynolds, A Pictorial Guide to Identifying Australian Architecture, Styles and Terms from 1788 to the Present (1994) pages 262-3
The applicant contends that the Building is not a notable example of the Late Modern style because it lacks “the technological ingenuity that distinguishes notable examples from other examples of work in the style” and because “flaws in the siting of the building…preclude it from being a notable example.” The applicant further argues that this judgment is reflected in the failure of the Building “to win awards other than the Canberra Chapter Award of Merit’ together with ‘its exclusion from authoritative texts and guides on architectural styles.”[218]
[218] Applicant’s statement of facts and contentions at [64]
The term ‘technological ingenuity’ does not appear in the Apperly Style Indicators or Style Keys, nor does it appear in criterion (g). As noted earlier at paragraph 66, Apperly states that Late Modern architecture “strove to convey the image of the formidable technology of the computer and the satellite” (emphasis in the original),[219] and while Jennifer Hill argued this suggested a characteristic of technological innovation in such buildings the Tribunal does not agree.[220] The words “rarely accompanied by displays of technological ingenuity” were used by Professor Taylor to qualify her description of “high finish, metal clad buildings”, which she stated were “uncommon in Australia before the eighties”. Professor Taylor does not list the buildings to which she refers when using the term ‘technological ingenuity’ nor does she clarify her use of the word ‘rarely’. She offers the Building as an example of a “high finish, metal clad building” but suggests its origins may lie more with the facades of Mendelsohn’s department store buildings and the “curved geometry” of 1930s automobiles than with “the ‘high-tech’ language of today.”[221] It would appear to the Tribunal that the applicant has misunderstood Professor Taylor by suggesting that the former AAA building is not a notable example of the Late Modern style because it lacks ‘technological ingenuity’.
[219] Exhibit R 16, statement of Michael Queale, report, appendix pages 71-73
[220] Transcript of Proceedings 19 October 2015, page 33
[221] See above at paragraph 104; Exhibit R1, documents relied on by the respondent, Taylor, Jennifer, Australian Architecture since 1960 (2^nd edition), page 195
In this context, the Tribunal notes that Professor Taylor’s book Australian Architecture since 1960 was first published by the Law Book Company in Sydney in 1986. The book to which reference has been made by the parties in these proceedings is the second edition published in Canberra in 1990 by the Royal Australian Institute of Architects. The text concerning the former AAA building was not changed with the second edition but Taylor’s use of the word ‘today’ in the phrase “‘high-tech’ language of today” should be read to refer to a time around 1986 rather than around 1990.
Ms Hill argued that the former AAA building is a “good but not exceptional example of the style”. She then combines Taylor’s phrases “rarely accompanied by displays of technological ingenuity” and “high-tech language of today” and concludes of the Building that “its sleek curving facade portrays a high-tech aesthetic without the displays of technological ingenuity of the better examples of buildings in the Late Twentieth-Century Late Modern style.” The linking of two unrelated modifiers misleadingly suggests that Professor Taylor considers the former AAA building is not a notable example of the Late Modern style on the grounds that it lacks ‘technological ingenuity’. Moreover, having introduced the new term ‘better examples’, Ms Hill fails to identify any buildings that are, in her mind or in the mind of the late Professor Taylor, “better examples of the style.”[222] It is true that Professor Taylor goes on to discuss other buildings, and we note these below.
[222] Exhibit A3, statement in reply of Jennifer Hill, at [9]
As noted previously, Mr Metcalf does not accept the narrow classification of the former AAA building as Late Twentieth-Century Late Modern and prefers to see it only as an example of the Modern style. He suggested it can no longer be regarded as a building that represents purpose built accommodation for a trade or industry peak body. He stated: “it may be regarded as an above average exemplar of an office building however for (the) reasons set out…it suffers from design limitations that detract from its utility.” Mr Metcalf said “there are numerous buildings in the ACT that the former AAA building could be compared to…such as Cameron Offices, Parliament House, the School of Music and the Dickson Library, all of which are approximately contemporaneous.”[223]
[223] Exhibit A4, statement of Andrew Metcalf at [34], [55], and [59]
The Tribunal finds Mr Metcalf’s examples not well-chosen - Cameron Offices and the Canberra School of Music are large and complex structures in expensive exposed concrete; and the Dickson Library is a single level suburban building in off-form concrete, generally seen as belonging to a more organic sub-set of the Late Twentieth-Century style. The Tribunal has considered the scale, purpose, form and finishes of the permanent Parliament House and can see no sense in attempting to compare Parliament House with the former AAA building.
Although Professor Taylor does not name a particular building or buildings with which the former AAA building might be fairly compared, she discusses at some length three metal-clad buildings of the period - the Education Department Building by Cameron, Chisholm and Nicol in East Perth (Education Building in Perth), and two buildings by Lawrence Nield, the David Maddison Clinical Sciences Block of the School of Medicine at the University of Newcastle (Maddison Clinical Sciences Block in Newcastle) and the Mount Druitt Hospital in western Sydney (Mount Druitt Hospital).
Professor Taylor describes the Education Building in Perth as “an accomplished building showing confidence in the handling of its particular aesthetic”. The Education Building is significantly larger and more expensive than the former AAA building. The design of the Education Building was the result of an invited competition in August 1979 and construction was completed in April 1982. The design of the former AAA building was approved by the NCDC in December 1977 and the Building was completed and occupied in September 1979, that is, at about the same time as the competition for the design of the Education Building in Perth.[224] The Education Building in Perth is not curved like the former AAA building but uses the same materials in its external cladding - grey tinted glass and natural anodised aluminium. Taylor says that “the tight exterior skin…and its suppressed detailing indicate the designers’ interests in the minimal qualities of Foster’s buildings in England.”[225]
[224] Exhibit R1, documents relied on by the respondent, Taylor, Jennifer, Australian Architecture since 1960 (2^nd edition), pages 195-196
[225]Exhibit R1, documents relied on by the respondent, Taylor, Jennifer, Australian Architecture since 1960 (2^nd edition), pages 195-196
Taylor says the two metal-clad buildings of Nield are “more exploratory” than the Education Building in Perth. She writes that the Maddison Clinical Sciences Block in Newcastle presents “a progressive image attuned to the scientific nature of the activities housed” but, in her opinion, Nield’s Newcastle building “lacks the finesse of finish and detail of Cameron, Chisholm and Nicol’s building”. She notes that the cladding at Newcastle is not aluminium but stainless steel in response to the corrosive industrial and seaside location. Taylor describes the curving aluminium walls of Nield’s Mount Druitt Hospital as “quite sensuous”. She says this is a “satisfying work” that shares a “spirit of inventiveness” with the Newcastle building.[226]
[226] Exhibit R1, documents relied on by the respondent, Taylor, Jennifer, Australian Architecture since 1960 (2^nd edition), pages 196-197
Mr Queale gave evidence that the former AAA building “is notable as a skilful representation of Late Modern style architecture within the ACT.” He noted particularly that “the sculptural properties of the interconnecting building forms enhance the play of light over curved facades and are dramatic and sensual in effect”. He noted also the urban design response of the Building to the broader context of Northbourne Avenue, and the dynamic curved form of the Building as providing “a non-rectilinear internal environment of interest.”[227] He also mentioned features referred to under the other criteria: the pilotis; the three-dimensional curved building form; the internal functions expressed in a mix of forms; the flush windows and aluminium sheet cladding. He noted again that the curved form is dynamic and reflects the function of headquarters for the Australian Automobile Association; and that the aluminium façade is a space age type of material that allows an economic, seamless treatment of the exterior skin and a unique curvaceous form.[228]
[227] Exhibit R16, statement of Michael Queale, report at [113] and [114]
[228] Exhibit R16, statement of Michael Queale, report at [114]
Mr Queale gave evidence that there is nothing to support the claim of Andrew Metcalf that the Callam Offices in Woden is a better representation of the Late Modern architectural style than the former AAA building, and he noted that the Callam Offices project was never completed. As to the former AAA building being a ‘notable example of a kind of place or object’, Mr Queale referred again to the peer recognition awarded to the Building and its inclusion in a number of academic publications.[229]
[229] Exhibit R16, statement of Michael Queale, report at [114] and [115]
Mr Queale disputed also the arguments of Ms Hill that the place is not of ‘technical innovation’. It is his belief that “the place is of architectural merit, not technical merit.” He rebuts the suggestion of Jennifer Taylor of a ‘romantic association’ of the Building with the aesthetics of 1930 automobiles, saying that “212 Northbourne Avenue is clearly a Late Modern building in architectural style, featuring exaggerated, curvaceous, interlocking functional forms and a seamless, space-age façade of aluminium and flush glass.” Motor cars in the 1930s, he says, “were curvaceous but bulky, painted in finish and trimmed with chrome ornaments and bumpers.” He concluded his consideration of the Building against this criterion with the statement that “there are further notable examples of Late Modern architecture in Australia, but I believe that 212 Northbourne Avenue is the earliest, most complete and most notable of its type within the ACT.”[230]
[230] Exhibit R16, statement of Michael Queale, report at [41], [116] and [118]
Mr Flannery supported the position of Mr Queale, and stated that “the former AAA building is an important Canberra example of the Late Twentieth-Century Late Modernism holding exceptional architectural, urban planning and heritage conservation interest.” He continued that it is “a rare example of the style in the Australian Capital Territory”, “exhibits many of the characteristics of the style”, and “an important…example of it.”[231]
[231] Exhibit R4, statement of David Flannery, report, pages 16-17
To return to Ms Hill’s evidence, she seems to require technical innovation which, as discussed above, is not a feature, or at least a necessary feature, of the Late Modern style, nor is it called for by criterion (g). She stated that the Building does not indicate “exceptional design skill”, which is not the relevant factor or the level required by this criterion. She placed emphasis on the siting; as discussed above at paragraph 152, in the Tribunal’s view the siting does not detract from the Building’s notable feature. She relies on the analysis of Jennifer Taylor, but as discussed above the Tribunal is not convinced that she does so is appropriatly. She relies on Mr Metcalf’s book to suggest that the Building is not an “outstanding example of the style”, but again this is not the level required by criterion (g). Mr Metcalf himself noted the “unusual architectural form in a precisely designed and executed building,” quoted at paragraph 130 above, suggesting some support for the Building as a notable example.[232]
[232] Exhibit A2, statement of Jennifer Hill, report page 22
One of the comparators for the Building raised by the parties and others was the Australian Antarctic Division Headquarters in Kingston, Tasmania, designed in 1978. The Statement of Eric Martin for the Australian Institute of Architects noted that this is listed on the Tasmanian Heritage Register on a number of bases, but one of these is that it meets the equivalent to criterion (g) under the Tasmanian heritage scheme, namely that the “place is important as demonstrating the principal characteristics of a class of place in Tasmania’s history”. The relevant citation states that that building “has the ability to demonstrate the principal characteristics of a Late Twentieth-Century Modern style building complex” with the characteristics of “the determination of principal masses within the complex of simple geometry” and “aluminium glass curtain walls”, amongst others.[233]
I.4 Conclusion concerning criterion (g)
[233] Exhibit PJ1, statement of Eric Martin at [4] and attachment B

The Tribunal is of the opinion that the Building meets this criterion. It is an example of a building in the Late Modern Style. The views of Mr Metcalf that the relevant kind of building is an office building are inconsistent with that of the other experts, and the Tribunal does not think this is the appropriate approach.
The Building demonstrates the main characteristics of that kind. The Tribunal doubts that technical ingenuity is a characteristic of that style, or at least that this is an essential or main characteristic. At any rate there are significant elements of technical ingenuity and creativity in the Building, as discussed under the consideration of criterion (a) above.[234]
[234] See paragraphs 126-145, esp. 143
It is notable example for a range of architectural features, in particular the three dimensional curved form and the aluminium sheet cladding and flush windows, all features of substance mentioned by Apperly. Mr Queale’s analysis is preferred to that of Ms Hill. There are significant problems with Ms Hill’s approach, outlined above, especially at paragraph 183. Mr Metcalf’s approach, as noted above at paragraph 168, is not accepted. While the Tribunal does not think that there is sufficient evidence to support the Council’s argument that the very high ‘exceptionally fine’ standard in criterion (a) is met, the Tribunal does think it is clear that there is sufficient evidence that the ‘notable example’ standard in criterion (g) is met.
In addition, because of its original role as the national headquarters building for the Australian Automobile Association, the Building is a notable example of architectural achievements in the development of Canberra in the NCDC period and of the architecture of Mr Guy Maron, an eminent Australian architect. As to the first point, Mr Metcalf noted that the NCDC was “very self-consciously trying to get architecture from around the country to bring in people who they thought would make a contribution in the architectural sphere.”[235] Mr Flannery agreed, and stated that it was an objective of the NCDC to produce “modern buildings of the highest calibre designed by architects from all States and Territories and to try and create thereby a palette of architectural expression…that was striving for excellence”.[236] The Tribunal agrees that the Building is important because of its contribution to the history and architectural story of the ACT.[237]As to the second point, it is relevant that Mr Maron received the Sir Zelman Cowan Award, the highest award of the Royal Australian Institute of Architects, for his design of the Bicentennial Conservatory at the Adelaide Botanic Garden and that the Conservatory has been placed on the South Australian Heritage Register. It is relevant also that Mr Maron’s contribution to architecture in Australia has been recognised by his appointment as a Member in the Order of Australia.
[235] Transcript of Proceedings 20 October 2015, page 80, lines 41-43
[236] Transcript of Proceedings 20 October 2015, page 123, lines 24-28
[237] Transcript of Proceedings 20 October 2015, page 129, lines 19-21
Neither of the parties nor the party joined provided evidence of further places that might be seen as a more notable relevant example than the former AAA building. From the evidence provided, it appears to the Tribunal that the former AAA building enjoys a measurable degree of comparability with the three metal-clad examples discussed by Taylor. The Tribunal finds comparison of the former AAA building with large concrete and steel buildings of the period in Canberra inappropriate, unrealistic and unproductive (High Court 1979; School of Music 1976; Callam Offices 1981). The Tribunal is similarly disinclined to compare the former AAA building with buildings of a similar scale but with lesser quality painted fibre cement sheet facades (Garden Island 1982; AIS Swimming Hall 1984). As noted by Apperly, aluminium curtain walls and construction in metallic materials are primary markers of the Late Modern Style. The applicant argued that it was not appropriate to limit the comparators to only those with particular characteristics of the style, such as ‘aluminium curtain walls’ or ‘construction in metallic materials’.[238] But these are clearly main characteristics of the Late Modern style. It is true that there are other stylistic indicators or characteristics mentioned by Apperly, but it does not seem appropriate to require all the characteristics, indeed this would not be possible. Further, it does not seem appropriate to treat other examples as more notable simply because they have different characteristics.
[238] Applicant’s closing submissions at [30]
The former AAA building predates the comparable buildings only slightly (former AAA building 1979; Maddison Clinical Sciences Block in Newcastle 1981; the Mount Druitt Hospital and the Education Building in Perth 1982). Various elements and characteristics of Late Modern architecture in Australia as described by Apperly are evident in all of these buildings: sleek, glossy, free standing buildings; principal masses determined by simple geometry; precision, lightness and elegance; minimalist construction in metallic materials; glass and metal curtain walls and cladding panels.
The former AAA building is the only one of these four buildings in the ACT. As discussed, in the Tribunal’s view, Territory heritage significance is sufficient. The Tribunal is of the view that the Building has Territory heritage significance under criterion (g). The skilful representation of the Late Modern style by the Building and rarity of the relevant elements of the style in the ACT support this finding. The fact that there are few comparable buildings in the ACT does not of itself mean that this criterion is met, but nor does it prevent it doing so. In this case there are assessments by experts that the relevant quality is present, with no credible evidence to the contrary. A comparable building in Tasmania has been held to have State heritage significance on this basis. Indeed in the Tribunal’s view there is some evidence that the Building also has national heritage significance in the context of this criterion.
The various forms of recognition of the Building discussed above support a finding that the Building is a notable example. The fact of its inclusion in Jennifer Taylor’s seminal publication indicates that the Building became a notable example of Late Modern architecture not only in Canberra, but also in Australia as a whole.
The Tribunal has noted previously the testimony of Mr Metcalf that the specificity of the former AAA building “is more relevant than the claim that it has status from the assertion that it belongs to any stylistic category.”[239] The evidence before the Tribunal is nevertheless that the characteristics of Late Modern architecture in Australia are present in the former AAA building at a very high level of competence and integrity. The Tribunal finds that the former AAA building is a notable example of Late Modern architecture and that it demonstrates the main characteristics of that style. Accordingly the Tribunal finds that the former AAA building meets the requirements of criterion (g) for registration as a place of heritage significance.
[239] See paragraph 67 above
As the applicant correctly states, meeting one of the criteria does not mandate registration; it simply enables it.[240] The Heritage Council argues that the refusal to decide to register a place which is of heritage significance should be rare having regard to section 3(2)(a) of the Heritage Act.[241] Section 18(a) of the Act also provides that it is a function of the Council to conserve places with cultural heritage significance, and section 18(b) to encourage the registration of heritage places.
[240] Applicant’s closing submissions at [4]
[241] Outline of respondent’s submissions at [78]
The applicant argues that if the discretion under section 40(2) arises, it should be exercised to decide not to register the Building.[242] No basis for doing so is set out in the applicant’s statement of facts and contentions. Given that the criterion is in the Tribunal’s view met, the Tribunal does not see a basis for deciding not to register. The Tribunal therefore decides to register the Building.
[242] Applicants statement of facts and contentions at [66(iv)]

.....................................
Senior Member R Pegrum

for and on behalf of the Tribunal
HEARING DETAILS

FILE NUMBER:	AT 22/15
PARTIES, APPLICANT:	212 Northbourne Pty Limited
PARTIES, RESPONDENT:	ACT Heritage Council
PARTY JOINED	Australian Institute of Architects
COUNSEL APPEARING, APPLICANT	Ms M Allars SC
COUNSEL APPEARING, RESPONDENT	Dr Jarvis
SOLICITORS FOR APPLICANT	Mills Oakley Lawyers
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Senior Member R Orr, Senior Member R Pegrum
DATES OF HEARING:	19-21 October 2015; 5 November 2015