Barnes v Southern Downs Regional Council (No 2)
[2011] QPEC 119
•14 September 2011
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Barnes & Anor v Southern Downs Regional Council & Ors (No 2) [2011] QPEC 119
PARTIES:
JOHN EDWARD MYTTON BARNES AND GEOFFREY FREDERICK COOK
(Appellants)V
SOUTHERN DOWNS REGIONAL COUNCIL
(Respondent)And
THE CHIEF EXECUTIVE, DEPARTMENT OF ENVIRONMENT AND RESOURCE MANAGEMENT
(Co-Respondent)And
MCCONAGHY GROUP PTY LTD ACN 108 353 199
(Second Co-Respondent)FILE NO/S:
Appeal No. 313 of 2010
DIVISION:
Appellate
PROCEEDING:
Submitter Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland at Brisbane
DELIVERED ON:
14 September 2011
DELIVERED AT:
Brisbane
HEARING DATE:
27-29 July, 4-5 August 2011
JUDGE:
Robin QC DCJ
ORDER:
Appeal allowed, development application refused
CATCHWORDS:
Integrated Planning Act 1997 s 3.5.14(2)
Queensland Heritage Act 1992 s 33, s 44, s 87, s 89
Whether proposed demolition of service wing of a “heritage place” listed in Council’s Planning Scheme Policy - Cultural Heritage was external building works and code assessable, such that the impact assessment process gone through in which appellants lodged submissions did not lead to appeal rights - demolition of service wing held to conflict with planning scheme, which favoured retention - ground relied on by developer and Council to justify approval notwithstanding conflict (that the demolition could not occur until work to stabilise the remaining (more significant) part of the building) held insufficient - cultural heritage significance of the service wing was “considerable” rather than “some” or “little or none”.
COUNSEL:
Dr. C. McGrath for the appellants
Mr. M. Connor (Solicitor) for the respondent
Mr. N. Loos for the co-respondent
Mr. D. M. Favell for the second co-respondent
SOLICITORS:
Cook & Associates for the appellants
Connor O’Meara for the respondent
Department of Environment and Resource Management for the co-respondent
Gadens Lawyers for the second co-respondent
This is an appeal by submitters against the Council’s granting of a preliminary approval for building works described as “Preliminary Approval for Building Work (Partial Demolition of Building on the Register of Cultural Heritage Places)” advised by the Council by letter of 26 November 2009 (the day following the approval) at 84 Fitzroy Street, Warwick (lot 1 RP94676). The Register of Cultural Heritage Places is a local register kept for purposes of the former Shire of Warwick’s Planning Scheme Policy No. 1 Cultural Heritage. The listing had the effect that demolition would require an impact assessable development application, opening the way for interested persons to lodge submissions, as the appellants did, and thereafter to appeal, should the Council’s decision disappoint. It will be necessary to make some comments below regarding the contention presented by the respondent (the successor of the Warwick Shire Council) that, on analysis, the second co-respondent’s development application was really for code assessable development, that the public notification process pursued, including any submission, was therefore a nullity, giving rise to no appeal rights. The court rejects the contention. The appeal boils down to a balancing exercise. Does the conditioning of the partial demolition of a building the planning scheme (like the Queensland Heritage Act 1992) wants protected on the prior completion of unspecified work to save the rest of the building (accepted to be more important) amount to a ground sufficient to overcome such conflict as exists between the proposal and the planning scheme?
The demolition which concerns the court relates to an extension to the rear of a handsome two-storey sandstone structure (shops below, residence above) constructed in the mid-1870s in Fitzroy Street, Warwick opposite Leslie Park, which is justly seen as the town square. An accolade published in the local newspaper lauded the building as the first of its size and quality in Warwick and a development presaging a grand future. Immediately to the east of the building is an even older, more modest structure of brick and timber at no. 82. To the west, across Haig Avenue (which it appears was not gazetted as a road until much later) is the later, but nevertheless historic and architecturally valuable, police station and to the west of it the court building which is likewise valuable for its visual and cultural/historical significance, however limited when considered as a functioning court building. Preservation of the streetscape consisting of such components is plainly to be desired. For reasons of sight lines and geometry and of the presence of trees in the police station grounds, opportunities to observe the section proposed to be demolished (described as part of the service wing and to be referred to below as the “service wing”) from Fitzroy Street (which exist only at limited points west of no. 84) are few.
Visually, the impact in Haig Avenue of loss of the service wing will be of far greater significance. It constitutes about a third of the length of the building which is built right up to Haig Avenue carriageway (there is no footpath), giving a definite character to the eastern side, which includes a line of six stone windowsills for windows that are essentially uniform, but for one in the rear (roughly where the part to be demolished begins and within it), which is boarded up. The other side of Haig Avenue, the police station grounds, presents an open, landscaped appearance, featuring the trees mentioned above. There is not much more to the lane (which is all Haig Avenue amounts to, notwithstanding the somewhat pretentious title) beyond where the backyard of no. 82 ends. Haig Avenue now provides rear access to the underground car park of the Rose City Shopping Centre. For the moment it is closed off out of concern that the bulging upper storey well may fail.
The purposes of the appellants are to preserve the building at no. 84 in its entirety, which is as much as can be achieved in this appeal. They would like to preserve the older building no. 82 as well, apprehending that the whole of it is threatened by the approval and the first co-respondent’s disposition to accept its removal. To that end, one of the appellants (Mr Barnes) has made an offer to the second co-respondent to purchase the combined site with a view to preserving both buildings. Although some emphasis was sought to be laid on this in their case, even assuming that the offer is one that cannot be withdrawn, it is not a factor on which the court can place weight. It seems to be put up in support of an argument that the second co-respondent’s proposal is not the only way of saving the main part of the building at no. 84. The court has no business attempting to bring about or encourage transactions leading to the change of ownership of development sites, however laudable the goal.
The appellants can do little in relation to no. 82. It does not appear in the Warwick Register of Cultural Heritage Places (that being the circumstance that rendered any proposal for demolition of no. 84 impact assessable). There is no development approval before the court of any proposal about no. 82, notwithstanding reference to it in concurrence agency conditions required by the first co-respondent. See the explanation on paragraph [62] below.
The appellants’ apprehensions have a sensible enough basis. Disclosed material in the Council’s possession indicates clearly the second co-respondent’s proposal to expand the shopping centre (with which it is associated) by use of the combined site. When the early material was prepared, it as “developer” had only an option to acquire, since exercised. The proposal was for the demolition of the building at no. 82, apparently to make way for a driveway to provide access in and out to the shopping centre (Haig Avenue is one way in) demolition of the rear part of the service wing of no. 84 would facilitate turning movements and (the court is given to understand) provide enhanced access to enlarged underground parking areas.
Numbers (lots) 82 and 84 are not linked only by geography and their joint contribution to possible expansion of the shopping centre in the future, they are linked as the components of Plumb’s Chambers, which has been entered in the Heritage Register pursuant to s 33(1)(a) of the Queensland Heritage Act.
It is appropriate to set out the statement of heritage significance of Plumb’s Chambers in full, given the submissions against the appellants that the parts of the statement must be read strictly, to the intent that features of the buildings not expressly set out in the “statement” are not within the purview of the Act, even though they may feature prominently in later parts of the entry in the Heritage Register (reference CC838) under headings such as “History” and “Description”.
“QUEENSLAND HERITAGE ACT 1992
Certified Copy Of An Entry in the Heritage Register pursuant to Section 33 (1) (a)
State Heritage Place
Reference: CC838
Place ID 601725 Name Plumb’s Chambers Former name(s)/other Medical Hall Location 82 & 84 Fitzroy Street WARWICK 4370 RPD Lot 1 ROAD19 Lot 1 RP5801
Lot 2 RP 5801 Lot 1 RP94676Local Authority SOUTHERN DOWNS REGIONAL COUNCIL Map Sheet WARWICK Map Projection 56 Grid Easting: 405001
Northing: 6878682Boundary Description Whole Property Other Listings
Heritage Significance Plumb’s Chambers is a place that satisfies one or more of the criteria specified in s.35(1) of the Queensland Heritage Act 1992 as evidenced by, but not exclusive to, the following statement of cultural heritage significance, based on criteria A, B, C, D, E and H.
Criterion A Plumb's Chambers, comprising a brick and timber building possibly dating to the 1860s and an 1874-75 stone building, is important in illustrating the transformation of Warwick in the late 1860s and 1870s from a squatters' town to the principal urban centre of Queensland's most prosperous pastoral and agricultural district, the possibly cl860s brick building may represent the beginnings of this movement, and the 1874-75 building is indicative of Warwick's first building boom. Both buildings also illustrate a tradition of masonry construction in Warwick and district dating from at least the 1860s and sustained well into the early 20th century, which sets the district apart from any other in Queensland. Criterion B The 1874-75 building survives as an excellent example of a substantial, two-storeyed, stone building with commercial premises on the ground floor and residence on the first floor, designed to impress and inspire confidence. Few buildings of this type and material have survived in Queensland, and even fewer Georgian-styled stone shop-houses in Queensland overlook a town square. The building provides rare evidence of the nature of the accommodation and work place of a successful 1870s business family in a developing Queensland rural town. More particularly, it is important in illustrating the nature of such buildings in a town in which stone and brick construction for commercial buildings was the norm at this period. Criterion C Both buildings are important in illustrating the design, materials and construction techniques of mid-19th century masonry building in Queensland, and both have potential to reveal further information about 19th century stone and brick construction. Criterion D Both buildings are important in illustrating the design, materials and construction techniques of mid-19th century masonry building in Queensland, and both have potential to reveal further information about 19th century stone and brick construction.
The 1874-75 building survives as an excellent example of a substantial, two-storeyed, stone building with commercial premises on the ground floor and residence on the first floor, designed to impress and inspire confidence.Criterion E Both buildings occupy a prominent role in the streetscape along Fitzroy Street between Guy and Palmerin Streets, and the pitch of the roofs contribute to the unity of the street. Criterion H The 1874-75 building is significant also for its close association with Warwick chemist and seedsman David Clarke, who made a substantial contribution to the expansion of agriculture in the Warwick district in the 1860s and 1870s.”
Relevantly, the entity responsible for administration of matters to do with the Queensland Heritage Act is the Department of Environment and Resource Management (DERM). It has given a concurrence agency response in the course of intimating that it is open to the Council to grant an approval for demolition if the Council’s assessment indicates that ought to be done, but on the basis of incorporation in any approval of certain concurrence agency decisions. The DERM conditions were incorporated by the Council in its approval and are:
“Schedule 2 – Department of Environment and Resource Management (Formerly Environmental Protection Agency) Conditions as a Concurrence Agency
Attachment – Concurrence Agency Response
Conditions of Approval: Plumb’s Chambers –Demolition Works, 17 September 2009
Project Ref No 318441: QHR No 601725 Permit No. IPCH00757707
Conditions of Approval Reasons for Conditions 1. Prior to commencement of demolition works within the registered place (82 and 84 Fitzroy Street), the applicant must comply with conditions 1.1 to 1.6.
1.1 Prepare an archival record of the registered place, including all existing buildings, structures and established vegetation in accordance with EPA Guideline: Archival recording of heritage registered places (Draft January 2009)
1.2 Engage a suitably qualified heritage architect to document conservation works to the building at no. 84 Fitzroy Street (including work associated with the structural stabilization of building fabric and reconstruction of damaged and missing elements), generally in accordance with Conservation Assessment Report, Plumb’s Chambers, prepared by Watson Architects, July 2008.
1.3 Prepare documentation of proposed methods to structurally stabilize the building at 84 Fitzroy Street, and engage an engineer experienced in the conservation of heritage building whose appointment is approved by the Manager, Regional and Heritage Council Support, Environmental Protection Agency, to review proposed methods of structural stabilization of no. 84 Fitzroy Street.
1.4 The conservation works documentation referred to in 1.2 and the proposed methods of structural stabilization referred to in 1.3 are to be submitted to the Manager, Regional and Heritage Council Support, Environmental Protection Agency for approval.
1.5 Conservation works to the building at 84 Fitzroy Street are to be carried out after the approvals in 1.4 is obtained. The conservation works are to include the conservation works referred to in 1.2 and the structural stabilization referred to in 1.3.
1.6 On completion of the conservation works referred to in 1.4, the applicant must obtain written confirmation from the Manager, Regional and Heritage Council Support, Environmental Protection Agency that the conservation works to no 84 referred to in 1.4 have been satisfactorily carried out.
2. The applicant must only demolish buildings and additions in accordance with the following as modified by these condition of approval:
Drawing: Rose City Shoppingworld, Palmerin Street, Warwick – Fitzroy Street Loading Dock, November 2008, 1:200 @A3 by Thompson Adsett Architects
Conservation Assessment Report, Plumb’s Chambers, prepared by Watson Architects, July 2008”
To ensure that the cultural heritage values of the place are appropriately recognised and managed.
To ensure development is carried out as approved.
The parties have been before the court a number of times already. See [2010] QPEC 111; [2010] QPEC 131 and [2011] QPEC 075. On the second occasion, the subject of a report at [2011] QPELR 290, the appellants were confined to appealing against approval of demolition of part of no. 84 and precluded from appealing in respect of the similar approval in respect of no. 82, that demolition being code assessable and development confined to demolition not being the making of an assessable material change of use, as had been contended. Judge Rackemann said:
“[26] While the co-respondent may have plans for a future shopping centre extension, there is no reason why it may not seek approval for demolition of the buildings, as a distinct form of development on its own merits. It may be that demolition will remove a potential obstacle to the intended, but yet to be approved, shopping centre expansion, but that does not mean that the demolition works are themselves the making of that material change of use.
[27] Understandably, the appellants are concerned to ensure that any asserted need for the shopping centre to expand, not be used to justify the demolition, in circumstances where the shopping centre extension is not approved and is not the subject of this application or indeed, any extant application. While the development application is supported by evidence about structural and heritage issues, it is also true, as the appellants pointed out, that the asserted need to extend the shopping centre was also referred to. I do not consider that, of itself, converts the application into one for the making of a material change of use, but I agree that, in the circumstances, it is inappropriate to seek to justify the proposed demolition by reference to an asserted need for a shopping centre extension which is not approved nor the subject of this or any live development application. Having been applied for on a “stand alone” basis, the proposed demolition will, as things stand, need to be assessed on its own merits.”
To similar effect (namely, that a free standing development application may not be conflated with another existing or anticipated one so as to change its character) is Brisbane City Council v Cunningham [2001] QCA 294.
I think it was accepted by the parties (and in my view had to be accepted) that no demolition work on no. 84 (or no. 82, either) can commence until satisfaction of the concurrence agency conditions, the arbiter of which appears to be the Environmental Protection Agency, now DERM. No-one has any idea what proposals will be made by the second co-respondent to DERM, or what proposals it may approve. Whether the conditions are workable is perhaps uncertain. A certain amount of demolition of the rear service wing may be necessary to permit closing the “wound” where separation occurs; it is not known what (if anything) might be proposed to be done to render what remains of no. 84 secure. Different approaches to what ought to be the appearance of the structure remaining emerged in evidence, one approach being to replicate the remaining sandstone walls in the location to be newly exposed, another being to demonstrate the changes to the building by a new finish, such as glass. This uncertainty has a bearing on the acceptability of the argument mounted by Mr Connor for the Council, in particular, that, properly approached, the demolition of part of no. 84 (like that of no. 82) was code assessable.
It is convenient to set out the parts of the Warwick Shire Planning Scheme relevant to that threshold issue in the appeal, along with those referred to by the parties in submissions regarding the merits:
“1.3 INTEGRATION AND CO-ORDINATION OF CORE MATTERS
1.3.1General
...
Collectively, the provisions of this planning scheme are intended to:
…
· promote urban areas which are efficient to service and provide for a high standard of accessibility, visual character and amenity; ensure all development will occur to a standard that will avoid risk to the environment and to health and safety of the community; and
· protect and manage the Shire’s ecological and economic resources and its landscape and cultural values;
…
2.DESIRED ENVIRONMENTAL OUTCOMES …
2.4CULTURAL, ECONOMIC, PHYSICAL AND SOCIAL WELLBEING
(i)The following elements which collectively create the Shire character will be maintained or enhanced:
…
· the historic architecture and traditional form and structure in Warwick city and the rural towns and villages; and
(ii)There will be effective conservation of places of cultural heritage significance in the Shire and new development which sensitively responds to them.
…
3.1.4Landscape and Cultural Heritage Values
3.1.4.1Strategies
(i)The policy intent identified for each of the land use areas set out in section 4 of this planning scheme reflects the intention to protect the major elements of the Shire’s character and landscape quality.
(ii)Places of cultural heritage significance … in the Shire are listed in Planning Scheme Policy – Cultural Heritage. Development proposals likely to affect the values of places listed in the policy will be subject to impact assessment.
…
3.1.4.2Assessment Principles
…
(ii)Development proposals will be subject to consideration of their impact on the character of the Shire and the landscape qualities and character of a particular locality, especially when viewed from major transport routes or other public spaces. Council may require the submission of a detailed assessment in this regard.
(iii)In considering applications for development at or near places listed in the policy, Council will have regard to the heritage qualities of the locality and whether the proposed development will be sympathetic to them. Council may request the submission of a conservation report, as described in the policy.
Council may give favourable consideration to a development proposal which may not otherwise have been intended in a particular land use area, providing that it would provide for the active use of a heritage place listed in the policy at the same time as conserving its heritage qualities.
…
4.2CITY CENTRE
4.2.1Key Policy Statements
…
(ii)The city centre will have a high standard of amenity, with a cohesive streetscape character in which buildings of heritage significance are protected and new development occurs in a compatible form.
…
The buildings of heritage significance within the city centre are listed in Planning Scheme Policy – Cultural Heritage. It is intended that these buildings are to be used for commercial activities, however, development is to be undertaken in such a way as to protect their heritage values.
For this reason, the table of development below and that in section 5.3 require that any proposed development which would involve demolition, removal or external works to these buildings will be subject to impact assessment.
…
Throughout the City Centre Land Use Area development should contribute to the streetscape character, having regard to the matters set out in the development code applicable to this area.
…
4.2.4 Applicable Assessment Criteria and Codes
4.2.4.1 Impact Assessment Criteria
In assessing applications for all development requiring impact assessment in the City Centre Land Use Area, Council will consider the following matters in addition to any other relevant provision of this planning scheme:
…
(c)For applications involving the demolition or removal of buildings listed in Planning Scheme Policy No. 1, whether a conservation study has demonstrated that:
· conservation actions are not feasible or viable; or
· the building is of no significance in terms of its historical, architectural, streetscape and other special value.
…
4.2.5 CITY CENTRE DEVELOPMENT CODE …
4.2.5.2 Purpose
The purpose of this code is to retain the heritage qualities[1] of the City Centre through the retention of highly significant and significant heritage places in a streetscape context which provides for sympathetic alterations to existing buildings and the incorporation of new development which is compatible with, and respectful to, the existing streetscape character.
[1]The heritage qualities dealt with in this code are related to architectural/streetscape character. They do not reflect indigenous heritage values.
In addition, the code seeks to create a built environment which incorporates a standard of design and amenity conducive to the functioning of the area and its role as an important community focus.
4.2.5.4 Development Controls
(a) Heritage Context
Performance Objective
· To ensure that heritage places are retained in a context which is appropriate to an understanding of their cultural value and respectful of their design qualities.
Acceptable Solutions
· Development, including external building work to existing buildings which adjoin a place identified as having heritage significance in Planning Scheme Policy No. 1, shall incorporate design elements (including building setback, form, scale, proportion, character, materials, and ornamentation) which are compatible, complementary and respectful to the heritage place.
…
5.3 CARRYING OUT BUILDING WORK
...
5.3.2 Table of Development – Carrying Out Building Work
The following table set out the type of assessment required for carrying out building work.
…
TABLE OF DEVELOPMENT - BUILDING WORK
Exempt Development
• None
Self Assessable Development
• All building works, unless otherwise identified in this table.[2]
Development Requiring Code Assessment
• External building work on buildings listed in Planning Scheme Policy No. 1 which:
- does not extend the height of the building; and
- does not extend the useable floor area of the building;
- does not have a deleterious effect on the design integrity of the building; and does not introduce design elements unsympathetic to the architectural style of the building
Development Requiring Impact Assessment
• Removal, demolition or external building work, other than in the circumstances identified in the Code Assessable category, on buildings listed in Planning Scheme Policy No. 1.
Except that, if the proposed development has already been the subject of an application for impact assessment in respect of a material change in use which has been approved by Council, building work proposed to be undertaken in accordance with that approval will be self assessable.
[2]This means that all building works must comply with the codes set out in this planning scheme but do not require an application to be made to Council for assessment against the planning scheme. However, while they are self assessable against the planning scheme, most building works will require an application for code assessment to be made either to Council or to a private certifier for assessment against the Building Code of Australia.
5.3.3 Applicable Assessment Criteria and Codes
5.3.3.1Impact Assessment Criteria
The criteria set out in the subsections below will be considered by Council in assessing applications for impact assessment for building work.
Council will also have regard to other relevant provisions of this planning scheme, including the policy intent and impact assessment criteria set out in section 4.0 for the particular land use area in which the site is located. To this end, the purposes for which the building is intended to be used, or is likely to be suitable for, will be a relevant consideration.
(a) Demolition or Removal
In assessing an application for a proposal to demolish or remove a building listed in Planning Scheme Policy No. 1, consideration will be given to whether a conservation study has demonstrated that:
· the building is of no significance in terms of its historical, architectural, streetscape and other special value; or
· where the building is of significance that conservation actions are not feasible or viable.
(b)External Building Work
In assessing an application for external building work to a building listed in Planning Scheme Policy No. 1, consideration will be given to whether a conservation study has demonstrated that the new work will not detract from the heritage significance of the building and will be compatible with the streetscape.”
A couple of definitions were referred to:
“Building Work – Has the meaning set out in the Integrated Planning Act, being:
…
(b)building, repairing, altering, underpinning (whether by vertical or lateral support), moving or demolishing a building or other structure; or
…
External Building Work – Means any building work related to the exterior portion of a building, other than development that is made exempt or self assessable under the Standard Building Regulations. The term does not include repair or maintenance work.”
As to Mr Connor’s point, while 3.1.4.1(ii) and 4.2.2 (the latter applicable because the site is in the City Centre) indicate impact assessment would be required, given that demolition is applied for, it is said that 5.3.2, being more specific, permits code assessment if the proposal is for “external building work” which, by reference to the definition (and (b) in the definition of building work) may extend to demolition. Reading the Planning Scheme as a whole, I do not think that approach is intended or accords with the proper interpretation of the Scheme. It is clear that to come within the category of “development requiring code assessment” all four requirements must be met in respect of a proposal that can be regarded as “external building work”. Demolition will not extend the height of any building, nor its usable floor area. I suppose it may be said that it does not “introduce design elements”, either, although from a design point of view, much might depend on what is left. Mr Connor’s argument faces an insuperable obstacle in present circumstances in my view, in respect of the requirement that there be no “deleterious effect on the design integrity of the building”. There may be cases where such a requirement is plainly satisfied, and there could be no disagreement about it. That is not the present situation. It must come down to a value judgment whether an effect is “deleterious” in any event. It seems to me, at least in the present context, that satisfaction of this requirement cannot be demonstrated. Hence, the second co-respondent’s proposal was not code assessable. It seems undesirable to have level of assessment depending on a value judgement. Compare Quinn v Beaudesert Shire Council [2005] QPELR 36 at [16], referred to by Mr Connor, where an objective feature (area) determined the level of assessment.
The appellants faced the conventional argument that the established approach focuses on the more specific provisions of a Planning Scheme as the source of controls on development rather than on the more general ones, such as those found in the listed desired environmental outcomes or those of even greater generality in introductory material. It was suggested that 5.3, in particular the code assessment provisions, has greater weight than 4.2.2. That proposition seems difficult to accept. 4.2.2 purports to describe what 5.3 provides in relation to “any proposed development”. I think it is an interpretation provision which makes perfect sense and should be applied. I think it leads to the consequence that code assessment is only going to be available in special, unremarkable cases. In both 4.2.2 and 5.3.2, removal and demolition are specifically mentioned as requiring impact assessment. Removal or demolition is proposed here. I am not persuaded that the sophisticated exercise of undercutting what appears to me as a clearly expressed intention by use of one aspect of the definition of building work (demolition) is appropriate here. It might be noted that the expression in 4.2.2 is “external works” rather than “external building works”, the expression seized upon in this analysis. I am inclined to think that “external works” ought to be construed as equivalent to “external building works”.
The Building
The main two-storey building, of sandstone - adopting the external measures used in the GFA estimate in exhibit 15[3] - has a 14.5 m frontage to Fitzroy Street and a depth of 9.5 m. At some time prior to 1899 when a useful photograph was taken from an elevated position to the south-east (atop the town hall), there had been added an L-shaped extension containing a single level. This extended what now appears to be the Haig Avenue frontage from 9.5 m to 25.5 m. (It may have been a metre or so less, depending on what one makes of some dotted lines on the exhibit – if they indicate construction which was formerly there, the width of the Haig Street arm of the L was greater than the 4.7 m now measurable by a similar distance.) The arm of the extension abutting the length of the rear of the main building has not been measured, but would appear to be some four and a half metres wide. The exhibit 15 measurement of 8 m takes into account an extension of the single-storey component to a total of 8 m, that extension, which occurred in the period from 1899 to 1929 when the next useful aerial photograph was taken, is of sandstone. A photograph of the eastern wall indicates that the height may have been increased slightly and the rake of the roof reduced to accommodate the greater width to be roofed. (The dotted lines mentioned probably represent roofed areas outside the principal walls.)
[3]Exhibit 15 shows GFA of 37.6 m², said to represent a modest loss of only 8.76% or thereabouts.
The principal two-storey building has always had an iron hipped roof in Georgian style, although in the 1929 photograph one can see crossing its length in the centre a pair of dormer windows or similar (possibly associated with storage) which are no longer there. The east-west component of the rear extension appears to have always had a skillion roof sloping (less steeply after the 20th century addition) to the south. The additional length of the Haig Avenue extension in 1899 had a skillion roof sloping to the east. In 1929 this had been replaced by a gabled roof. Presently it has a shallow hipped roof that may have been designed to reflect that of the principal two-storey building, but incongruous in appearance thanks to the two hipped roofs being separated by the remaining skillion form. It is the Haig Avenue section so roofed which is proposed to be removed. This is constructed of brick, rather than sandstone, although older than the 20th century sandstone extension proposed to be retained.
The proposal would leave a 17.5 m sandstone wall abutting Haig Avenue 9.5 m two-storeys, 8 m a single-storey. The 8 m brickwork section proposed to be removed (4.7 m wide) has been rendered and exhibits a grey concrete finish which has been “sculpted” in sections to give an appearance of a wall of concrete blocks similar in dimensions to the sandstone ones. The section proposed to be demolished contains two of the six timber-framed-hung windows (or vestiges of such windows) along Haig Avenue. While the concrete wall is incongruous and unpleasing in appearance, the windows make significant contribution to the line of six. Two of them are at ground level in the principal building (which has no upper floor windows on the western side) and two (the rear one bricked up) in the middle section, proposed to be retained. The northern of the windows proposed to go is considerably wider, apparently similar in width to the single window at the back of the 20th century extension. Of the five upper level windows above, the second from the left is much narrower than its fellows. Uniformity of width of windows was never a feature of the structure. The unifying element on the western wall on Haig Avenue is the line of six matching protruding window sills picked out in white; necessarily, the sill for the wider window is wider. They are at a similar level above the road.
The two-storeyed building, its upper level, in any event, exhibits alarming “bowing” especially above Haig Avenue, and looks as though it is threatening to fall down. Safety concerns in this regard have led to the closure of Haig Avenue.
The “service wing” as the portion of the building proposed to be demolished was described, has no masonry or like walls other than those on the west and south. Obviously relatively recent timber walls provide an appropriate way of enclosing the toilet and like facilities there; the space may have been used for storage when the building was used commercially by the occupiers, most recently (until about 1995) by a firm of real estate agents.
Mr Scott, the appellants’ heritage architect attributes the open nature of the service wing to its being the coach house and stables referred to in a 1882 advertisement in the Warwick Examiner and Times newspaper offering the premises:
“TO LET, Large Stone Shop, with storeroom, situate in Fitzroy street, fronting the Square: also the Dwelling Premises on the second floor, containing 15 rooms, with Bathroom, Stables, Coach-house, large underground Tank (with force pump attached), and every convenience. Dwelling and Shop can be let separately or together. Rent Low. Apply to C. B. DAVENEY.”
On the basis of this evidence (which I am willing to accept as a reliable description of the property), Mr Scott thinks that the “service wing” was constructed by 1882. We cannot be sure. The “keys” depicted in photographs (suggesting they were part of the original two-storeyed building) indicate an intention to extend from the very start.
The 1875 article marking the completion of the building published in May 1875 referred to a “large underground tank” from which water supplied by a force pump would be laid on to the lower parts of the building, also noted the height of the building as 23 feet from floor to roof inside.
I was not particularly convinced by Mr Scott’s efforts to support his explanation of the original use of the service wing as stables and coach house by calculations based on the asserted 15 rooms. It seems to me that we can have no idea whether the stables and coach house, or even the bathroom, would have been classed as a room. (or even a store room, come to that). I find his explanation credible and persuasive without that support. The 1899 photograph, a clear enlarged version of which became exhibit 23 in my opinion offers valuable insight into how no. 84 would have been used around that time. Horses can be seen on a neighbouring property, and structures are seen which were plainly stables. The service wing is the obvious location for like facilities on no. 84.
A resolution of this appeal comes down to resolution of the issue joined between Mr Scott on one hand and on the other the heritage architect engaged by the first co-respondent (Mr Ross-Watt) and Mr Davies (counterpart for the second co-respondent). It is convenient to set out an extract from the architects’ joint report, beginning with Mr Scott’s opinion about the situation in 1882:
“At this time the rear wing of the main building is most likely to have served as stables and coach-house, supporting the functions of the main building, and so to understand the way the building worked, both parts of the building need to be retained. To tell the whole story of the building the service wing is essential. For this reason MS gives the service wing considerable significance in the assessment of the Heritage Place. Using the significance grading system outlined by Andrew Watson in his Conservation Management Plan for the Heritage Place this would be a:
B – Considerable Significance, meaning:
Fabric considered important to the understanding, appreciation or cultural value of the place but could possibly be intervened with in a sensitive, controlled and limited manner. Fabric that should be retained and appropriately conserved (eg. Maintained, restored, reconstructed, adapted).
Because of this level of significance MS is of the opinion that the rear service wing of 84 Fitzroy Street should not be approved for demolition.
Stephen Davies is of the opinion that there is no evidence of the use of the rear wing in the history included in the QHR Citation or the heritage assessment prepared by Watson architects. The service wing has changed considerably over time. There have been major changes as illustrated on photos dating from 1889, 1929 and the present. The roof form has been changed at least twice and the eastern wall and interior has been demolished over time. These changes reflect the nature of service wings as being the area of buildings where change is more likely to occur to effect the current use of the building. The subject wing has been graded ‘D – Little or no significance’ by Andrew Watson in his Conservation Assessment Report, July 2008. This grading is described as “Intervention and/or new work are appropriate provided that no nearby areas of higher cultural significance are compromised.”
The grading by Andrew Watson is considered appropriate having regard to the amount of change to the structure over time, including the rendering of the western wall. The structure belies its original appearance and the change is such that it does not convey the original use or appearance of the late 19th and 20th century. If the wing provided strong evidence of uses and or processes that occurred at a significant phase in the history of the building the grading would reflect that information and may have changed.
It is not uncommon to alter the rear service wings of buildings. This is what has happened in this case and it is the usual place to make changes to a building of high quality. The front sections of the 84 Fitzroy Street are appropriately graded as A – Considerable Significance or C – Some significance and the resources available to conserve the building should be applied to this section. Should uses designed to support the retention of the higher graded fabric be required then they should be located in areas of lower significance, including “Little or no significance”. Whilst the rear wing can tell part of the story of the subject building it is considered that the amount of change as documented in photographic and historical sources is more accurately able to be told through interpretation.
It is noted that whilst the QHR Citation includes the subject wing in the description of the building it does not make specific mention of it in the significance assessment. The significance is attached to the stone building, “designed to impress and inspire confidence.”Duncan Ross-Watt is of the opinion that the west and south walls of the brick extension to 84 Fitzroy Street are all that remains of the pre 1899 addition. The roof, veranda and internal partitions are comparatively recent. The photographic record indicates that this extension underwent several changes. The surviving walls offer no evidence of any particular use other than the most recent (as toilets). Using the significance grading system outlined by Andrew Watson in his Conservation Management Plan for the Heritage Place this would be a:
C – Some significance, meaning:
Fabric considered useful, but not essential, to the understanding, appreciation or cultural value of the place but for which sensitive intervention would be acceptable. Fabric that is desirable to be retained and appropriately conserved.B2. Michael Scott is of the opinion that the service wing is an integral part of the appearance of the heritage building at 84 Fitzroy Street, visible from Fitzroy Street and Haig Avenue and contributes to the streetscape character and associated heritage values of the building, to the extent that it should not be removed – as that removal would have a subtle but significant detrimental effect on the appearance of the building and consequently on the heritage values of the Place.”
Although Mr Scott’s evidence is preferred in the end, the others’ observations about changes in the form and use of the service wing over time are correct. The changed location of the chimney (now gone), for example, indicates relocation of the kitchen.
Issues about experts
Ms Doherty works for the Council and was called as its expert planner. She did not participate in the Council’s decision making, although her signature appears on various documents in evidence, such at the Council’s acknowledgment notice. The heritage architect Mr Ross-Watt works for DERM and indeed was its signing officer for the purposes of accepting the second co-respondent’s proposal for partial demolition of one of the heritage buildings constituting Plumb’s Chambers and demolition of the other in its entirety; it is unclear to what extent the decision-making was done by him. He and Mr Davies (the second co-respondent’s heritage architect) pursued relevant training at the University of York (UK) which was said to have pre-eminence in the field, in a way that might entitle their views to acceptance over those of Mr Scott, whose qualifications lack that cachet. By contrast, Mr Scott was presented as having investigated the site and its history much more thoroughly and considered the issues in greater depth, the contention being that his opinions therefore deserve more respect. But he was accused of having a professional relationship with the appellant Mr Cook which had not been disclosed and which might have affected his independence (challenged he recalled one occasion when he and Mr Cook’s firm had been on opposite sides in an appeal involving the Brisbane City Council). It could be said that Mr Davies and Mr Gill (the second co-respondent’s planner) might be disinclined to differ from each other in a context in which the planning and heritage issues largely overlay, by virtue of their professional association in Urbis Pty Ltd (the developer’s consultants from early on - indeed the maker of development application). None of these relationships preclude the entitlement of any of those named to give expert evidence: Mulleins v Chandos Developments Pty Ltd [2003] NSWSC 1084, and at paragraph [14]. In defence of Mr Ross-Watt’s giving expert evidence, Mr Loos referred to Wide Bay Conservation Council Inc. v Burnett Water Pty Ltd (No 8) [2011] FCA 175 at [106].
Associate Professor Searles, the appellants’ planner found himself facing charges of improperly liaising with the appellants’ solicitor while the joint expert report was in preparation contrary to the rules, with the implication that he had been told what opinions to give. The situation led to evidence being given by the solicitor, Ms Cook, to clear their names, so to speak, which was achieved effectively. The cloud which lingered for a while because of his understandable inability to recall details of contacts with Ms Cook that would not have been significant to him was in due course dispelled. He was heavily criticized for not visiting the site, and basing his opinions on photographs and moving street views available on the internet. (The explanation may be that, like Mr Scott, apparently, he was acting “pro bono” – Mr Scott did go to Warwick.) He may have been embarrassed when in response to a question out of the blue he failed to recognize Mr Barnes’ heritage listed residence Canning Downs from a photograph presented to him (a photograph which I think does not show the present condition of the house). This “points scoring” descended to implied criticism of Mr Barnes for the removal from Canning Downs homestead of an elaborate porch added around the time of World War I – Dr McGrath ensured the court was told that the removal was done by Mr Barnes’ late father.
Associate Professor Searles and the appellants were certainly taking a risk of his planning opinion being accorded little weight. Dr McGrath confronted it by reporting what he said was the expressed view of another judge of the court that planners ought not to be allowed to give evidence in this court at all.
As it happens, the planning view preferred in this appeal is Associate Professor Searles’. The court had the advantage of a view on the first day of the hearing, which was useful in confirming that the photographs available give an accurate picture of the building in its context (including streetscapes). The only exceptions to that proposition relate to:
(a) the interior of the two-storey building (not photographed) which confirmed its cultural and heritage values, neglected state and need of repair, the bowing of the western wall being particularly obvious from inside;
(b) the interior of the “service wing”, which rendered explicable photographs I would not have been able to interpret reliably otherwise, and confirmed its structural soundness (in contrast to the two-storey building);
(c) a better appreciation of some external details, in particular the “joins” in the eastern sandstone wall, the way in which the “service wing” has been rendered and the way in which the concrete render (not feasible to remove, because of likely damage to the bricks underneath) has been finished; also
(d) what will be there to behold of 84 Fitzroy Street by way of streetscape if the “service wing” is demolished. (The answer is an ugly hodge podge of the back sides of various commercial buildings whose owners would not have expected them (except for the car park entrance under Woolworths’ signage at the head of Haig Avenue) to be part of the streetscape.)
With the possible exception of (d), which I think does bear on what public interest grounds might overcome conflict of the demolition proposal with the planning scheme, such “information”, more correctly assistance in understanding the formal evidence, obtained on the visit to the site and its surrounds is irrelevant to the court’s task.
I am satisfied that all of the experts (including those named above as well as the second co-respondent’s planner Mr Gill and the engineers, Mr Hoskins and Mr Farr) understood and gave their evidence consistently with their duty to the court. My view is that there is nothing to prevent appropriately qualified persons giving expert evidence even if they are closely related to a party (provided the relationship is properly disclosed), or are parties themselves. Expert evidence is received on the basis of being useful to the court. Experience is that the expectation is often realized, to the extent that the court as a rule would prefer to have expert evidence. Of necessity so long as recourse to a single agreed expert is a rarity, the parties have the responsibility of marshalling expert evidence to assist the court and to pay whatever the exercise costs. Apocryphally, expert evidence does not come cheap. It may not be possible for parties to fund all of the work their experts might recommend or for the experts to devote unlimited time and resources to executing their commissions. The court ought to recognize the financial constraints many or most litigants confront and (unless there is reason to take a different line) receive expert evidence offered, according it appropriate weight. It is unreasonable to expect a “no trouble or expense spared” approach to be followed whenever an expert is engaged to assist the court.
As to use of “in-house” experts, I am not the only member of the court who regrets the passing of the era when it was common. One assumes that it reduced the costs of proceedings for the relevant party. In my experience such evidence was typically prepared and presented in a professional way and useful to the court. Parties economizing in that way are no doubt aware of the risk that in the event the court may see fit to give only limited weight to an in-house or related expert’s report. See Insight Projects (Qld) Pty Ltd v Hervey Bay City Council [2007] QPEC 109.
Opinions, whether in the field of expertise or not, are just opinions and experts uninfluenced by any irrelevant considerations may well differ in their opinions. While in theory an expert who can be seen to be totally independent may be the ideal, I suspect that a thorough audit of proceedings in the court would reveal a pattern of coincidence between the opinions of experts and the interests of the particular parties engaging them (or the stance taken by such parties in a proceeding in the court) outstripping mere chance. I have encountered plenty of exceptions and there may be a heartening tendency for them to be increasing in recent times. These comments are not intended as a criticism of anyone concerned with this appeal or any litigant or expert in any proceeding before me at any time. The difficulty is no doubt attributable to human nature and the way the world is.
Some history of the development application
The EPA made an information request in respect of the development application dated 8 November 2007. It described the proposal as demolition of 82 Fitzroy Street and to demolish the single-storey section of 84 Fitzroy Street (two-storey sandstone building) “to facilitate the extension of the adjacent Rose City shopping centre”. Receipt of details about the dilapidated state of both buildings was acknowledged, likewise the lack of details of “other options to retain the building that have been explored. There is no detail in the application on how or if the two-storey sandstone section of 84 Fitzroy Street will be prepared or used if the current application was successful”. It was noted that engineering and heritage reports had finally became available to the EPA “but they do not detail a specific extent of demolition proposed nor do they explore the issue of no prudent or feasible alternative to demolition of over half of Plumb Chambers”. The information requested was copies of both the engineering reports and heritage reports on the two properties as stated in the application, a copy of cultural heritage impact of the two demolitions. The applicant was required to:
“Provide evidence to demonstrate that Urbis has comprehensively investigated all prudent and feasible alternatives to the total demolition of 82 Fitzroy Street and partial removal of 84 Fitzroy Street.
Provide a written statement of works proposed for 84 Fitzroy Street including drawings detailing the extent of demolition proposed.” (Appeal book Exhibit 1, vol 1, p 62).
In July 2008 Watson Architects issued a 44 page Statement of Heritage Impact and a 92 page Conservation Assessment Report. The latter won EPA “approval” (leaving the final decision in the Council’s hands) as attested by Mr Ross-Watt’s signature of 17 September 2009; he has separately signed (ibid p 221), also on 17 September 2009, a plan illustrating the proposed supermarket expansion (extending through to Fitzroy Street), the disappearance of no. 82 and of the section of no. 84 “to be demolished”. The longer of the Watson Architects’ reports at p 41 propounds a conservation policy specific to 84 Fitzroy Street. The conclusion (p 59) was that:
“Due to the condition and extent of reconstruction required to 82 Fitzroy Street, it is considered that an appropriate conservation approach is to allow the removal of 82 Fitzroy Street and to consolidate conservation efforts on the more culturally significant sandstone building, 84 Fitzroy Street. An appropriate form of conservation and adaptive re-use is considered an acceptable approach for the future long term conservation of 84 Fitzroy Street.”
It was acknowledged that both buildings formed an important part of Warwick’s cultural heritage but considered that their existing condition presented “a substantial impost on the retention and conservation of both buildings”. Neither was considered to be habitable or able to perform the original function of shop and residence. The future of the “remaining place” (84 Fitzroy Street) – more correctly the front part thereof - it was recommended be guided by the 66 policies set out in the Conservation Policy. The Statement of Policies begins as follows:
“Plumb’s Chambers (82 & 84 Fitzroy St) form an established place of cultural significance. The following policies are to be applied to the conservation of the place.
Policy 1: Future work on the place should be in accordance with the principles of the Australia ICOMOS Charter for the Conservation of Places of Cultural Significance (the Burra Charter) and its Guidelines.
The cultural significance of Plumb’s Chambers is embodied in the physical fabric of the place. Section 3.4 sets out the relative significance of a wide range of these elements and attributes a graded scale ranging from those elements of exceptional significance down to those which are intrusive. It follows that conservation action should be related to an element’s relative level of significance. As a general guide, the following approaches are recommended:
· Elements of exceptional significance must be retained and appropriately conserved (eg maintained, restored, reconstructed, and adapted). These elements are considered essential to the understanding, appreciation of cultural value of the place.
· Elements of considerable significance should be retained and appropriately conserved (eg maintained, restored, reconstructed, and adapted). These elements are considered important to the understanding, appreciation of cultural value of the place but intervention in a sensitive, controlled and limited manner could be possible.
· It is desirable that elements of some significance be retained and appropriately conserved. These elements are considered useful, but not essential, to the understanding, appreciation or cultural value of the place and sensitive intervention would be acceptable.
· Elements of little or no significance need not be conserved. Intervention and/or new work are appropriate provided that no nearby areas of higher cultural significance are compromised.
· Elements which are intrusive should be removed and original form reconstructed or new compatible adaptation made.”
That five level scale the court understands to have been developed by the Watson Architects authors. The Watson authors do not disguise their acceptance of the importance of “5.2 Client’s Requirements”, accepting the economic need and desire to expand the shopping centre:
“According to the client, without the purchase of these two buildings and the removal of 82 Fitzroy Street, the expansion of the development would not meet tenancy needs or be economically viable and would not proceed. As previously noted, the failure of the expansion of the shopping centre is considered to have other potential ramifications for the city centre of Warwick which are explained within the earlier town planning report prepared by Urbis.”
It is said that an “economic balance” has to be achieved for the client if the cultural significance of the buildings is to be conserved: conservation has to be “prudent and economically feasible”. The view was expressed that “adaptations and additions would be required to ensure the building is structurally sound, habitable and commercially useable”. See Ex 1 Vol 1 p148. That sensible approach attracted the observation from Dr McGrath that the argument is essentially illogical. What is proposed to be demolished is the structurally sound part of no. 84. Unlike the two-storey section, it is in no danger of collapse, even of serious deterioration. It cannot be accepted that demolition of the service wing would increase the appeal of no. 84 to a prospective tenant. It offers useable space. It is inconceivable that a tenant would be inclined to pay a higher rent for a reduced floor area. Of course, all of this discussion is premised on the main part of the building being saved and got into tenantable condition. The developer’s real case is that it will do what is necessary to save and refurbish the main part of the building only if it gets the benefit of removal of the service wing and can use the small area of ground thus rendered open for other purposes. For purposes of this appeal, we cannot make assumptions or speculate about what they may be. The appellants cannot hope to gain any advantage should the court think an expanded shopping centre is not a development in the public interest; the developer cannot get any advantage should the court consider (as a number of the submitters did) that an expanded shopping centre is highly desirable and may save the city centre. The only possible “matter of public interest” or “ground” for purposes of s 3.5.14(2)(b) of the IPA that might overcome conflict with the planning scheme and justify the desired approval is the prospect of the main part of the building being saved if the developer decides to act on the approval (which will require the obtaining of development permits authorising the actual carrying out of development).
Does the proposed demolition of the “service wing” conflict with the Planning Scheme?
In my opinion, the relevant parts of the Planning Scheme are set out above. In them, expressions such as “Council will consider” (4.2.4.1) “will be considered by Council”, “Council will … have regard to”, “a relevant consideration” and “consideration will be given” (5.3.3.1) indicate factors that are to be given great (perhaps determinative) weight in the assessment process, either favouring or counting against a development proposal. The context indicates the influence that the identified consideration will have in favour of or against an approval. For example, if the provision found in both 4.2.4.1(c) and 5.3.3.1(a) is satisfied, as to which the Council ought to form its own opinion on the merits and not uncritically accept what a purported “conservation study” might claim to demonstrate, one would expect approval of demolition to ensue. The onus clearly lies on the applicant to demonstrate that the demolition of a building (which in my view relevantly includes part of a building) listed in Planning Scheme Policy No. 1 is exceptional in that what is proposed to be demolished deserves to forfeit the protection which the Planning Scheme otherwise provides for a listed building.
Focusing on the provisions which the most specific parts of the Planning Scheme make, which are found in 4.2.1(ii), 4.2.5.2, 4.2.5.4 and 5.3.3.1, and contain cross-references, it is clear that the Planning Scheme exhibits determination to ensure “retention of highly significant and significant heritage places” or “buildings of heritage significance” (which are those listed in the Planning Scheme Policy – Cultural Heritage and include the subject site). Retention of heritage places is the “performance objective” of the relevant City Centre Development Code (4.2.5.4(a)).
The heritage architects agree that “the whole of the building, and associated structures, at 84 Fitzroy Street is listed as a heritage place and matters of cultural heritage significance are relevant”. They agree that the service wing is visible from Fitzroy Street and Haig Avenue and that the contribution of 84 Fitzroy Street to the streetscape of Fitzroy Street as one of the historical buildings there is important. The key policy statement in relation to the city centre in 4.2.1 requires protection of the building, and, in my view, all of it, given that (relevantly), we are dealing with a 19th century structure. The intention next expressed that heritage buildings “are to be used for commercial activities” may or may not be realised. We do not know what the owner’s intention is; the conditions contain no requirement for any particular use of the parts of the building that will remain and be restored, should the condition be fulfilled.
Turning to 4.2.4.1, notwithstanding Watson Architects’ views, in respect of what is proposed to be demolished it cannot be shown that “conservation actions are not feasible or viable”; the fact of the matter is that conservation actions are not necessary. As to the second dot point in (c), no-one expresses the view that what is to be demolished “is of no significance”.
The demolition runs counter to the purpose of the City Centre Development Code in 4.2.5.2. It is a significant heritage place, if not a highly significant one, as part of what all concede is a very important Warwick building.
Turning to 4.2.5.4 Development Controls, the performance objective that “heritage places are retained” is frustrated. It cannot be said that the objective is achieved by meeting the acceptable solution that “development … shall incorporate design elements … compatible, complimentary and respectful to the heritage place”.
5.3.3 Applicable Assessment Criteria and Codes is the most specific provision. As noted, it refers back to and incorporates other relevant planning scheme provisions, specifically the policy intent and impact assessment criteria set out in s 4 for the city centre. The “dot points” where demolition or removal of a heritage building is sought are the same as those in 4.2.4.1(c), albeit set out in reverse order. They are not satisfied. If the proposal comes under (b) External Building Work, I am doubtful that the provision is available, whether demolition amounts to “new work” at all. The view the court accepts is that loss of the service wing would detract from the heritage significance of itself and of the aggregation of which it is presently a part; it would, in my view, not be “compatible with the streetscape” to replace the service wing with open space.
The argument against the proposition that there is conflict with the planning scheme as demonstrated above is essentially that the service wing does not demonstrate the qualities that merit recognition or protection from a heritage point of view. In particular, it was said (and this may be accepted) that with the service wing removed, everything that has been said in justification of 84 Fitzroy Street having heritage significance remains unaffected and equally true. Exhibit 13 is the Warwick Shire Council’s place recording form for the cultural heritage study which underlies recognition in the Policy. That is a brief document indeed (which happens to get the street address of the building wrong, referring to 88 Fitzroy Street). It shows “Date Recorded 23/11/96”. The real property description and a photograph sufficiently identify the two-storey sandstone building that this appeal is about. The recording form says the place is significant:
“· for its association with the local historical theme of development of Warwick as an administrative centre;
·for its architectural value as a sandstone building in a district characterised by the use of local sandstone.”
The conservation approach is to:
“· Conserve the significant fabric of the place through local town planning mechanisms.
·Encourage continued use of the place for commercial purposes.”
The photograph shows nothing of the service wing or the Haig Avenue frontage. The photograph is taken from the east of the building from or across Fitzroy Street. What is proposed to be demolished is not sandstone. It may follow that the “significant fabric” is limited to the sandstone. On this approach, one wonders what might be the fate of the balcony/veranda which runs along the Fitzroy Street frontage for its whole length across the full width of the footpath. This is not of sandstone. It is a 20th century addition, as can be established by the date of the application made to the then local government for authority to build over the footpath.
The Queensland Heritage Act Register entry is far more extensive in what it has to say. See paragraph [8] above. The criteria listed are numbered in accordance with the paragraphs of s 35(1). Mr Connor (with the apparent support of the co-respondents) undertook a close analysis of the statement of heritage significance, which has statutory recognition. The subject is recognised as a “stone building”. Mr Connor argues that there is no recognition of the brick service wing in what is said about “a tradition of masonry construction in Warwick” being illustrated. One wonders whether the addition of the service wing may not illustrate the tradition being “sustained well into the early 20th century”. In Criterion B it is the “stone building” which gains recognition on account of the material. Again one wonders whether the service wing may not come under the umbrella of providing “evidence of the nature of the accommodation and workplace of a successful 1870s business family”. As to the reference to importance in illustrating “stone and brick construction for commercial buildings”, Mr Connor’s analysis was that no. 84 illustrates stone construction, brick construction being illustrated by other buildings in Warwick. Along the same lines, for Criterion C, again, which refers to both buildings, it is said that no. 82 illustrates brick construction, no. 84 illustrates stone (but not brick) construction relevantly. A similar argument was made about Criterion D. The 1874-75 building is described as a two-storey stone one.
One of the difficulties in the way of this argument is that the listing of half a dozen criteria is preceded by a clear statement that what follows is “not exclusive”. The extensive “History” which forms the second part of the “Entry in the Heritage Register pursuant to s 31(1)(a)” begins:
“Plumb’s Chambers comprises two distinct buildings. One is a substantial, two-storeyed stone building with rear service wings, constructed in 1874-75 …”
Consistently with what Criterion H said about the activities of David Clarke (on top of preceding indications of historical significance), a certain amount of history of the occupants, particularly the commercial users, follows. The planning permission for the balcony sought in 1910 by James Wilson “over the footpath in front of his stone buildings” was noted.
The next part of the Entry bears the heading “Description”. It describes the larger of the Plumb’s Chambers buildings as “a two-storey sandstone structure with single-storey wings to the rear, and a two-storey veranda to the street.” The description notes:
“All four sides of the two-storeyed section show cross-plates with tie-rods stabilising the upper levels. Windows to the side and rear elevations are vertical sliding sashes with projecting stone sills. To the rear is a single-storeyed skillion wing of stone with a recess clad in weatherboards for a back door and windows. There is a later single-storey extension running perpendicular to the remainder, built of rendered masonry and weatherboards with a hipped corrugated steel roof.”
There is a slight mystery about the Entry. The evidence contains a certified copy dated 11/2/2010 “valid at the date of issue only” which contains some material not found in other versions, such as that attached to Mr Scott’s report of 5 July 2010 which was apparently downloaded from the website. Missing from Mr Scott’s version is p 9 of 9, a Process Statement containing some history of the listing and confirming that the place was entered permanently in the Heritage Register on 3 November 1997. Mr Scott’s final page contains further information:
“Element Name Plumb’s Chambers
Design Period Mid-19th century – (1840s-1860s)
Construction Period 1860s-1910 c
Place Components Garage
Toilet Block/Earth Closet/Water Closet
Shop/s
Outbuilding/s
Service wing
Residential accommodation – house/quarters above shop/s”
Mr Scott shows the images, but not the map. Mr Loos was concerned for the court to be aware of the discrepancies, and urged that the certified copy be relied upon, perhaps apprehensive that the “service wing” reference might inappropriately assist the appellants’ case. I am not concerned about that. The outcome of the appeal is not affected by it. It might be noted that the Queensland Heritage Act contemplates records being kept electronically.
By s 33(2) of the Queensland Heritage Act, a certified copy of an entry in the Queensland Heritage Register is admissible as evidence in legal proceedings and, in the absence of proof to the contrary, is taken to be proof of the entry and its contents. By s 31(3):
“(3)An entry in the Queensland heritage register, for each place … must –
(a) include enough information to identify the location and boundaries of the place … and
(b) include information about the history of the place; … and
(c) include a description of the place; … and
(d) if the place … is the subject of a heritage agreement – state that fact; and
(e) for a State heritage place – include a statement about the cultural heritage significance of the place related to the cultural heritage criteria; and
(f) for an archaeological place – include a statement about the place related to the archaeological criteria; and
(g) for a protected area – include a statement about the cultural heritage significance of the place relevant to the declaration of the protected area.
(4) The chief executive may keep the Queensland heritage register in the form, including electronic form, the chief executive considers appropriate.”
Section 32(2) provides that the chief executive may publish a copy of the Queensland Heritage Register on the Department’s website. In those circumstances, there is no reason to doubt the authenticity of Mr Scott’s version. Given the arrangement of the paragraphs of s 31(3) I am not persuaded that primacy ought to be given to the “statement” mentioned in paragraph (e) to the extent that the omission of reference to the “service wing” in the statement denies the existence of cultural heritage significance in respect of the service wing, notwithstanding that the service wing is referred to in both the history and the description. I do not know whether there is any general form of statement adopted, but in the present instance the preamble is explicit that it does not purport to set out an exhaustive explanation of cultural heritage significance.
The importance of the statement of how a place satisfies one or more of the listed cultural heritage criteria for an application to enter a place on the register or for an application to remove a place from the register is clear from s 36(2)(c) and (d). Appeals against inclusion of places in the Queensland Heritage Register have successfully been prosecuted in the court from time to time, as in Advance Bank Australia Limited v The Queensland Heritage Council [1994] QPLR 229, Reelaw v Queensland Heritage Council [2005] QPELR 335 and J L Smallcombe as trustee for the Cotton Tree Trust v Queensland Heritage Council [2009] QPEC 65; [2010] QPELR 68. Here, Plumb’s Chambers is already on the Register, for all that implies. There is no application to remove it. In my opinion, this appeal has to proceed on the basis that the listing is appropriate. The contrary could hardly be submitted. That said, “judgments can be made on which parts of a culturally significant object are more and which are less significant and there can be areas of greater and lesser importance”: Green v Brisbane City Council [2005] QPELR 121 at [35]. Senior Judge Skoien expressed the view that, whatever experts may decide, lay people, (whose views he thought were important) would regard the southern ramp of the Story Bridge in Brisbane as less important to cultural heritage than the cross river spans.
A similar judgment can be made here about the service wing. Oddly, it is slated for demolition, rather than the later-constructed extension to the single-storey element to the east. I am persuaded that what is proposed to be demolished has some cultural heritage significance on its own, and (obviously) much greater cultural heritage significance when considered as part of the entire building, as it is. It is structurally sound, so that the consideration in Reelaw that it may not be feasible to save a State heritage place is not present here. Applying the Watson Architects’ scale, as the heritage architecture experts do, I think that Mr Scott has got it right. I think he is correct in identifying stables and coach house as the early use of the service wing, which justifies his “considerable significance” grading. Even if Mr Scott is wrong, in my opinion the service wing as a component of the total aggregation of components constituting the overall building has cultural heritage significance in demonstrating the requirements for sheltered space which the occupants made use of in the latter part of the 19th century. Quite apart from the cultural heritage aspect, in streetscape terms, the threatened service wing is important too for both the Fitzroy Street and Haig Avenue streetscapes. A truncated structure, while having the virtue of uniform construction and appearance, would not have the length and sweep of what is there now, being reduced to two thirds of what is now there to be seen, I would go so far as to say enjoyed. The unsympathetic finish of the exterior of the service wing is doubtless a matter for regret (cf Lonie v Brisbane City Council [1988] QPELR 209, at 212). It is accepted, however, that when it comes to heritage and character protection, ugliness is not a disqualifying factor. Although a purist view may be expressed against the idea, it would be a simple matter to render the unpleasing grey finish there today in another colour more in harmony with the sandstone.
The conflict with the planning scheme here is gross. The planning scheme wants the service wing retained. Beyond that, it merits retention under the planning scheme and policy, also under the Queensland Heritage Act. The matter of public interest or “ground” that may justify approval of demolition notwithstanding that conflict is the prospect of saving the rest of the building, concededly the more important component. One can easily understand the Council and DERM (or the Heritage Council) seeking to grasp the chance of the greater being saved for the undoubted benefit of Warwick and all of us, at the cost of a part. It is akin to severing a sound limb to create a chance of saving a life. What creates the link here is really the second co-respondent’s economic interests, as it understandably sees them. There is no necessity here to demolish the service wing: whatever has to be done to save the principal building could be done without interference with the service wing.
The proposal conflicts with the planning scheme not only because of the destruction of part (being an important part, albeit not the most important part) of a heritage place intended to be retained, but also in a subsidiary way because of the impact on streetscape. This is of limited importance for the Fitzroy Street streetscape, from which the service wing is remote and not in the field of view from most positions. It is significant in Haig Avenue, amounting to loss of between a fifth and a third, depending on how one calculates it, of the built form on the eastern side. Empty space will not be an improvement in my assessment. Fitzroy Street of course far outstrips Haig Avenue in significance. The planning scheme contains provisions offended by the proposed injury to the streetscape. 4.2.1(ii) wants a cohesive landscape character (not promoted by removal of one of the relatively harmonious components of it) and requires that “development should contribute to the streetscape character”, which the proposal will not. For 4.2.4.1(c) it cannot be shown that the “building” (which I take to cover part of a building – in any event, I think removal of part of a heritage place triggers the section) is of no significance in terms of streetscape value, likewise for 5.3.3.1(a). If reference is made to (b), it seems difficult to regard as “compatible with the streetscape” removal of part of the streetscape which cannot be regarded as jarring or incongruous – leaving a situation that is less acceptable.
The “ground” proposed does not justify ignoring the conflict identified. As noted, it is not strengthened by other considerations, such as assurance that what is restored will actually be used. In other circumstances a ground might have been identified in terms of Section 4.2.1(ii), for example. Nor do we have any idea what will be done by way of restoration: everything will be left to the second co-respondent or its successor and DERM. We are left to guess how the streetscape may change and what the rear of a refurbished building might look like. Section 3.5.14(2) stands in the way of the demolition being approved.
Having met for purposes of preparing their joint report dated 27 June 2011, the heritage experts met again three days later and produced the following supplementary report:
“In the conclave of 30 June the heritage experts have considered the test in the Queensland Heritage Act 1992:
Whether approving the development would be to destroy or substantially reduce the cultural heritage significance of a State Heritage Place.
Flowing from the previous Joint Report, Michael Scott has given the rear service wing proposed to be demolished Considerable Significance and hence its demolition would substantially reduce the cultural significance of the Place.
Stephen Davies has given the rear service wing proposed to be demolished Little or no Significance and hence its demolition would not substantially reduce the cultural significance of the Place.
Duncan Ross-Watt has given the rear service wing proposed to be demolished Some Significance and hence its demolition would not substantially reduce the cultural significance of the Place.
The three Heritage Experts agree the demolition of the rear wing would not destroy the cultural heritage significance of the Place.
Michael Scott is of the opinion that a prudent and feasible alternative to demolishing the rear service wing of 84 Fitzroy Street would be to not demolish the rear service wing of 84 Fitzroy Street.”
The test referred to is found relevantly in s 44 of the Queensland Heritage Act (reprint 3). It applied if the Heritage Council (now, relevantly DERM) was assessment manager or a referral agency for a development application. By sub-section (2), if satisfied that the effect of approving the development would be to destroy or substantially reduce the cultural heritage significance of a registered place, the Council was obliged, once “satisfied there is a prudent and feasible alternative to carrying out the development” – if the Council as the assessment manager, to refuse the application; or, if the Council is a concurrence agency, tell the assessment manager to refuse it. Section (3) requires regard to be had, in determining whether there is an alternative, to safety health and economic considerations and “any other matters the Council considers relevant”. Cultural heritage significance of a place was defined in the schedule at the relevant time to include “its aesthetic, architectural, historical, scientific, social or technological significance to the present generation or past or future generations.” (The current definition is:
“Cultural heritage significance of a place or feature of a place, means its aesthetic, architectural, historical, scientific, social or other significance, to the present generation or past or future generations.”)
The s 44 issue comes down to whether demolition “would … substantially reduce the cultural heritage significance” of the heritage place. Demolition would not destroy but would reduce the cultural heritage significance of the place as a whole. Would that reduction be “substantial”? “Substantial” has no clear meaning. It probably means something more than trivial or minimal and is sometimes taken to mean considerable. Another notion is that it means “real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size”. – per Deane J in Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 27 ALR 367, 382. His Honour went on to quote Viscount Simon:
“Applying the word in this sense [“considerable, solid or big”] it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case.”
The proposed demolition would in my judgment “substantially reduce”. That is so whether one takes a qualitative approach based on what the service wing contributes to an understanding or appreciation of the heritage place or a quantitative approach, in which regard I reject the “only modest loss of gross floor area” argument. I think it more appropriate to consider the proportionate loss of the Haig Avenue façade and of footprint of the built form.
Reference was made to s 87 of the Queensland Heritage Act. That entitles the “chief executive” to give a maintenance notice requiring the owner of a State heritage place to carry out essential maintenance work. The provision offers no prospect of saving the two-storey building, however precarious its condition, because by sub-section (7) essential maintenance work is limited to “work of a minor nature that, if carried out on the place, would help to prevent serious or irreparable damage to, or deterioration of, the place”. Examples are given of work of various kinds, all falling far short of the costly structural work which is necessary here. The examples relate to fixing things that have come loose, removing potential fire hazards, maintaining of locks, boarding up insecure openings in an unoccupied building, shutting down electricity or gas services and eradicating insect pests.
Reference was also made to s 89 of which requires that a person discovering an archaeological artefact “that is an important source of information about an aspect of Queensland’s history” as soon as practicable give the chief executive notice and certain details. This procedure, it is no doubt hoped, will lead to the protection of things of significance. Presently nothing is known of it, but historical material points to the existence somewhere on the site at certain times of an underground water tank. Photograph 21 in Mr Scott’s report exhibit 8 depicts the domed top of an underground brick water tank at Canning Downs. While such tanks were considered not uncommon for 19th century residences, Mr Scott has come across only four in his 25 years of practice as conservation architect. Mr Ross-Watt and Mr Davies agree with him that the underground water tank is important and should be looked for and recorded, because of its architectural value. The problem is that the only evidence for the existence of the underground water tank or cistern is two newspaper articles from 1875 and 1882. While there is no reason to doubt them, it is very much a matter of speculation whether anything remains now to be discovered. If it is, s 89 will come into play. Mr Scott is strongly if favour of preservation should the structure be found because of its “important role in demonstrating the early brick-making history of Warwick”; Mr Davies thinks there should be a feasibility study if the water tank is located, which I take it might recommend preservation. It might be possible to devise a condition requiring a look out to be kept if demolition of the service wing proceeds, emphasising what s 89 requires to be done and perhaps imposing additional obligations, should anything be found. Since the outcome of this appeal will be that there is no approval, there is no point in considering conditions of this kind any further.
Compromise of Desired Environmental Outcomes (DEOs)?
I am grateful to Mr Connor for his reference to Aldi Stores (a limited partnership) v Redland City Council [2009] QCA 346 at [19]. The Chief Justice (the other members of the Court of Appeal concurring) expressly preferred Judge Brabazon’s approach to issues of alleged compromise of desired environmental outcomes for purposes of applying s 3.5.14(2)(a) of IPA to that shown to have been taken by other judges of this court.
In Webster v Caboolture Shire Council [2008] QPEC; [2009] QPELR 455 Judge Brabazon considered but decided to depart from the doctrine expressed in a number of decisions in the court to the effect that compromise of DEOs or otherwise is to be approached on a planning area wide basis, with the consequence that a particular approval that may not support achievement of a DEO is not going to “compromise” because it will count for little on a shire wide basis. Parties in the court became unwilling to pursue arguments based on compromise of DEOs. See for example Zanow v Ipswich City Council [2010] QPEC 50; [2010] QPELR 721 at [10]. In Webster, refusal of the application was based fairly and squarely on compromise of DEOs of retaining rural character. The appeal concerned a 5 ha site where two rural residential house properties would be replaced with an industrialised commercial bus depot with fuel storage. See his Honour’s analysis of the law and cases regarding compromise of DEOs at [102] ff. The cases he and the Court of Appeal referred to acknowledge that compromise of DEOs dealing with specific locations may more readily be found because of the inappropriateness of considering matters on a planning area wide basis. Here, the DEO in 2.4(i) and (ii) can be seen as directed to maintaining the “historic architecture and traditional form and structure in Warwick City” and therefore focussed more narrowly than shire-wide. One only need visit Warwick to understand what is being got at. As to (ii), which is seeking “effective conservation of places with cultural heritage significance”, that compromise of achieving the desired outcome occurs if a place specifically listed is demolished in whole or in part is a conclusion readily able to be defended. In this appeal, it is not necessary (although it might be open) to rely on (a) in s 3.5.14(2) given that (b) is sufficient to defeat the demolition proposal for lack of sufficient grounds to justify a different decision. The wariness of this court about finding compromise may have something to do with the lack of provision for making exceptions, in a marked contrast between (a) and (b). Dr McGrath relied on (b) but said nothing about (a). It will be interesting to see whether Webster marks a new beginning. The Sustainable Planning Act 2009 has not continued s 3.5.14(2)(a). See s 326.
Mr Connor suggested that to the extent the court might be concerned that the partial demolition might leave a gap in Haig Avenue giving the sight of views of “unsightly back of house elements of land and adjoining lands” that could be dealt with by imposition of conditions requiring mature vegetation to be put in place which might improve the streetscape of that portion of Haig Avenue. Apart from the difficulty which a condition to that effect (which would doubtless require retention of vegetation brought in) might have on the future development possibilities for the site, it has to be borne in mind that the issue is all about retention of buildings or parts of buildings with cultural heritage significance. It is not to the point that vegetation may be more pleasant to behold or that empty space may be more appreciated.
With regard to paragraph [5] above, the confusing situation arose because, although the development application presented to the Council for assessment related to both no. 82 and no. 84, the Council took the view that it had authority to make a decision only in respect of no. 84 which was listed in the Warwick Registry of Cultural Heritage Places. No. 82 was not. The Council’s understanding which led it to eschew deciding anything about no. 82 was that DERM was the only competent decision maker in respect of no. 82, which (like no. 84, indeed with it) is a State Heritage Place the subject of an entry in the Register kept under the Queensland Heritage Act. The appellants understandably complained that the Council had failed to decide that part of the development application concerning demolition of no. 82 Fitzroy Street (lot 1 on RP 5801) and said that there was no valid decision for that part of the development application. The difficulty was brought before the court against a background of DERM as concurrence agency having initially required refusal of the development application, it subsequently issued an amended notice recommending approval subject to conditions which on its face extended to both properties. The decision notice refers only to no. 84. Judge Rackemann was persuaded that in the circumstances “it behove the Council to issue a decision notice which included an approval of the demolition of the house at 82. That it did not do so means that it failed to comply with the relevant Act [IPA]”. Rather than treat all of this as amounting to a deemed refusal, his Honour determined to grant relief, under s 820 of the Sustainable Planning Act 2009, all parties being amenable. He ordered “that it be taken that the decision notice included the conditional approval of the demolition of the house at 82, subject to the conditions in the concurrence agency’s response”.
Conclusion
The second co-respondent bears the onus of showing that the appeal should be dismissed. It has received support from the Council (the first co-respondent taking a neutral position). The burden has not been discharged. The difficulty is the planning scheme’s requirement that the heritage place be preserved, meaning (in my view) the whole of it. The loss of a part which is not under threat as the price of the second co-respondent’s taking as yet undefined steps to save and restore the greater, more important parts of the building (whose future use, if any is unknown) should not, as the proceeding stands, be allowed. The link between removing what is to go and protecting what is to be retained is the private owner’s interests, as it sees them, presumably financial/economic interests. Physically, the task of saving what is proposed to remain in no way depends upon demolition or is facilitated by demolition of a structure (the service wing) with heritage value – and which presently makes an important contribution to the whole. It is not shown that the demolition of the service wing and/or the creation of open space in its place advances any public interest or even on its own enhances or benefits the structure remaining from any point of view. I am unable to detect any basis on which the “deal” achieved by the respondent and co-respondents, commendable as it may be, and as much as it advances an important public heritage interest, can be supported in terms of the planning scheme and s 3.5.14(2)(b). More would be needed by way of countervailing benefiting of the public interest to overcome conflict with the planning scheme. That might have been available had more been revealed of public interests to be advanced in respect of no. 84 Fitzroy Street from the desired demolition (no particular reason for which emerges) and/or from whatever will be done to what remains.
The appeal should be allowed and the second co-respondent’s development application should be refused.
9
2