Bowden v ACT Heritage Council (Administrative Review)
[2019] ACAT 56
•25 June 2019
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
BOWDEN v ACT HERITAGE COUNCIL (Administrative Review) [2019] ACAT 56
AT 112/2018
Catchwords: ADMINISTRATIVE REVIEW – decision of the ACT Heritage Council to register a place of heritage significance – place includes house that is a private residence – house designed in 1951-52 by leading architect – original house had distinctive features of Post-War International style – subsequent extensions and alterations to the house – some distinctive features of original house enclosed or obscured – whether the Tribunal could be satisfied on reasonable grounds that the current house is likely to have ‘heritage significance’ – role of the Tribunal – scope of ‘heritage significance’ criteria under Heritage Act 2004
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 68, 69
Heritage Act 2004 long title, ss 3, 3A, 8, 10, 11, 12, 13, 18, 25, 26, 28, 29, 32, 33, 34, 35, 36, 37, 38, 39, 40, 111, 112, 114, 114A, Schedule 1
Land (Planning and Environment) Act 1991 ss 14, 17, 52, 54, 56, 59, 60, 61, 63, Schedule 2
Subordinate
Legislation cited: Heritage (Decision about Registration of 11 Northcote Crescent, Deakin) Notice 2018, Notifiable Instrument NI2018 – 636
Cases cited: Cairns v ACT Heritage Council [2010] ACAT 48
John Flynn Community Group Inc and Flynn Primary School Parents and Citizens Association Inc v ACT Heritage Council [2012] ACTSC 50
The Salvation Army (NSW) Property Trust and ACT Heritage Council [1998] ACTAAT 281
Taglietti and ACT Heritage Council [2011] ACAT 14
212 Northbourne Pty Limited v ACT Heritage Council [2016] ACAT 30
List of
Texts/Papers cited: Apperly, Richard, Irving, Robert and Reynolds, Peter, A Pictorial Guide to identifying Australian architecture: Styles and Terms from 1788 to the Present, (Angus and Robertson, 1989)
Belogolovsky, Vladimir, Harry Seidler Lifework, (Rizzoli International Publications, 2014)
Blake, Peter, Architecture for the new world: The work of Harry Seidler, (Horwitz Australia, 1973)
Cameron, Milton, Experiments in Modern Living: Scientists’ Houses in Canberra 1950-1970, (ANU Press, 2012)
London, Geoffrey, Goad, Phillip and Hamman, Conrad, An Unfinished Experiment in Living: Australian Houses 1950-65, (UWA Publishing, 2017)
Macquarie Dictionary, 7th edition
Metcalf, Andrew, Canberra Architecture, (Watermark Press, 2003)
Reeves, Tim and Roberts, Alan, 100 Canberra Houses: A Century of Capital Architecture, (Halstead Press, 2013)
Seidler, Harry, Houses, Interiors, Projects: Harry Seidler (Horwitz Publications, 1954)
Seidler, Harry, 1955/63, (Horowitz Publications, 1963)
Seidler, Harry, Houses and Interiors 1: 1948-1970 (Images Publishing Group, 2003)
Spigelman, Alice, Almost Full Circle: Harry Seidler, a biography by Alice Spigelman, (Brand & Schlesinger, 2001) Taylor, Jennifer, Australian Architecture since 1960, (The Law Book Company, 1986)
Taylor, Jennifer, ‘Harry Seidler’, P Goad and J Willis (eds), The Encyclopedia of Australian Architecture (Cambridge University Press, 2012)
Tribunal: President G Neate AM
Senior Member R Pegrum
Date of Orders: 25 June 2019
Date of Reasons for Decision: 25 June 2019AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 112/2018
BETWEEN:
MICHAEL BOWDEN
Applicant
AND:
ACT HERITAGE COUNCIL
Respondent
TRIBUNAL: President G Neate AM
Senior Member R Pegrum
DATE: 25 June 2019
ORDER
The Tribunal orders that:
1. The decision of the ACT Heritage Council on 15 November 2018 to enter 11 Northcote Crescent, Deakin Block 8 Section 9, Deakin on the Heritage Register be set aside.
2. The entry be removed from the Heritage Register.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
1. The applicant, Michael James Bowden (Mr Bowden or the applicant) is the Crown lessee of Block 8 Section 9, Deakin, located at 11 Northcote Crescent. In about 1954-1955, a house (the Bowden House) was constructed on that parcel of land for Mr Bowden’s father, Ivor Bowden. The Bowden House was designed by architect Harry Seidler, who was based in Sydney. Substantial additions and modifications were made to the house in 1960 and in 1978 to accommodate the changing needs of the Bowden family. More modifications have been undertaken in recent years and further work is planned by Mr Bowden.
2. In mid-November 2018, following some years of assessment by the ACT Heritage Council, the Council entered the Bowden House and the parcel of land (together the Place) on the Heritage Register (the Register) under section 40 of the Heritage Act 2004 (Heritage Act).
3. Mr Bowden disagrees with the entry of the Place on the Register and applied to the ACT Civil and Administrative Tribunal (the tribunal) for a review of the Heritage Council’s decision.
4. In his application for review of the decision, lodged with the tribunal on 1 December 2018, Mr Bowden sought a stay of the decision and extension of time to lodge an application for review of the decision. The application recited that he would be disputing the legitimacy of the decision and the process by which the Heritage Council reached its decision.
5. The Tribunal notes that:
(a) because the application was made within 28 days of the Heritage Council’s decision of 15 November 2018, an extension of time was not necessary; and
(b) the Heritage Act provides that, where an interested person applies to the tribunal for a review of a decision by the Heritage Council to register a place, the decision is stayed until the review (or an appeal to a court arising from the review) has been finally decided and that decision is consistent with the Heritage Council’s decision.
The issues
6. The central issue in this case is whether the Place (particularly the Bowden House) satisfies any of the statutory criteria of ‘heritage significance’ for registration under the Heritage Act or whether its entry should be removed from the Register.
7. The Heritage Council submitted that the correct and preferable decision is for the Tribunal to affirm the decision of the Heritage Council to register the Place under section 40 of the Heritage Act. Mr Bowden sought the removal of the entry from the Register.
8. In the course of correspondence with the Heritage Council and his submissions in relation to this application, Mr Bowden specified various reasons for opposing and objecting to the entry of the Place on the Register. Those concerns include:
(a) the duration of the registration process and the lack of information provided to, and the limited involvement of, the Bowden family in the registration process;
(b) the restrictions on the use of the Place while it is registered; and
(c) the adverse economic implications of the registration for the owner of the Bowden House, including a reduction in the market value of the Place.
Those issues are considered in these reasons for decision.
9. Although the positions of the parties can be described as an “all or nothing” approach, the Tribunal raised with the parties whether, if there is to be any entry on the Register, that entry should relate to part only of the house and whether the entry should include some or all of the surrounding land on Block 8 Section 9, Deakin.
10. That issue arises in light of section 40 of the Heritage Act, which refers to the registration of a ‘place,’ and section 8 of that Act, which defines ‘place’ to include:
(a) a site, precinct parcel of land;
(b) a building or structure, or part of a building or structure;
(c) the curtilage, or setting, of a building or structure, or part of a building or structure;
(d) an object or feature historically associated with, and located at, the place.
The role of the Tribunal on review of the decision to register the Place
11. The Heritage Act provides that a decision by the Heritage Council under section 40 to register a place is a ‘reviewable decision.’ An interested person for a reviewable decision may apply to the tribunal for a review of the decision. An ‘interested person’ includes the owner, occupier or lessee of a place. Mr Bowden is an interested person.
12. The ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) prescribes the role of the tribunal when reviewing such a decision. Sections 68 and 69 of the ACAT Act provide:
68 Review of decisions
(1) This section applies if the tribunal reviews a decision by an entity.
(2) The tribunal may exercise any function given by an Act to the entity for making the decision.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including regulations (see Legislation Act, s 104).
(3) The tribunal must, by order—
(a) confirm the decision; or
(b) vary the decision; or
(c) set aside the decision and—
(i) make a substitute decision; or
(ii) remit the matter that is the subject of the decision for reconsideration by the decision-maker in accordance with any direction or recommendation of the tribunal.
69 Effect of orders for administrative review
(1) This section applies if the tribunal makes an order under section 68 (3) in relation to a decision.
(2) The order—
(a) is taken to be the decision of the decision-maker; and
(b) takes effect from the day the tribunal makes the order, unless the tribunal orders otherwise.
13. The effect of those provisions is that the tribunal as presently constituted (the Tribunal) stands in the shoes of the Heritage Council and decides:
(a) whether it is satisfied on reasonable grounds that the Place meets one or more of the criteria of ‘heritage significance’ in section 10 of the Heritage Act; and
(b) whether to confirm, vary or set aside the Council’s decision to register the Place.
The conduct of the hearing
14. Although the steps taken by the parties before and at the hearing of the application proceeded generally in the usual way, two unusual features should be noted as they affected the conduct of the hearing.
15. First, the parties and their representatives did not participate together with the Tribunal in a view of the Place. Mr Bowden was and remains unwilling to allow people associated with the heritage assessment and registration of the Bowden House to enter the house, and he allowed only some people access to the land surrounding the house.
16. Second, Mr Bowden refused to allow the expert engaged by the Heritage Council, David Hobbes, to take his own photographs of the Bowden House. Rather, Mr Bowden permitted Mr Hobbes to take some photographs on Mr Bowden’s phone camera, and Mr Bowden made those photographs available to Mr Hobbes and through him to the Heritage Council and the Tribunal for the purpose only of these proceedings.
17. In order to respect Mr Bowden’s wishes about access to the land on which the Bowden House is located for the purpose of these proceedings, the following arrangements were made:
(a) Mr Hobbes inspected the exterior of the house and the surrounding gardens and driveway in the company of Mr Bowden on 15 March 2019 and prepared a report which referred to observations made by Mr Hobbes on that occasion.
(b) The Tribunal viewed the exterior of the Bowden House and the surrounding gardens and driveway unaccompanied by anyone on 28 March 2019, the first day of the hearing of this application.
(c) No representatives of the Heritage Council inspected the gardens, driveway or Bowden House from inside the boundaries of Block 8 Section 9, Deakin.
18. Finally, the Tribunal notes that Mr Seidler’s family or associates did not participate in these proceedings. According to Mr Bowden, the legal representative of the Heritage Council advised him by email on 11 January 2019 that Harry Seidler & Associates, who had indicated an intention to join as a party to these proceedings, had informed the representative that they did not intend to do so.
The Bowden House
19. Before considering the decision of the Heritage Council to register the Bowden House, it is appropriate to describe briefly:
(a) the design of the original Bowden House;
(b) the architectural style of the original Bowden House;
(c) the ‘Post-War International c. 1940-1960’ style of architecture;
(d) the additions and modifications to the Bowden House between 1960 and 1978; and
(e) references to the Bowden House in architectural literature.
The Bowden House: the original design
20. Harry Seidler was born in Vienna in 1922 and studied and worked in Canada and the United States with some of the leaders of the modern movement in architecture including Walter Gropius, Marcel Breuer and Josef Albers. Mr Seidler arrived in Sydney in 1948 at the age of 25 and set up his architectural practice. Starting with houses and smaller projects, he became well-known for a wide range of projects in Australia and overseas. He is generally acknowledged as one of Australia’s most significant architects of the twentieth century. Mr Seidler died in Sydney in 2006.
21. The original Bowden House was modest in scale with a split-level plan and was similar in form and detail to many of Mr Seidler’s early houses. At the lower level was a combined living and dining area plus kitchen and laundry, and there were two bedrooms, a small study, a bathroom and a toilet at the upper level. A recessed courtyard on the north-eastern face provided shelter from Canberra’s winter winds. Andrew Metcalf has noted that “as with most of his large corpus of work, the Bowden House contains examples of specific design strategies or devices that Seidler used from project to project always at slightly different stages of development.”
22. The Bowden House was Mr Seidler’s first project outside Sydney and he included it with a number of his other buildings in a book Houses, Interiors, Projects: Harry Seidler which he published in Sydney in 1954. In a Preface, Mr Seidler claimed that the book was “a summary of completed buildings and projects during the first five years of my practice in this country” and that it described “the true aims and techniques of modern architecture” including “planning, aesthetics, working details and outline specifications.” The book described 28 houses with text, floor plans and sections, notes on construction and materials plus high quality photographs. Other than the Bowden House and a house in Quirindi, NSW, all the houses in the book were in Sydney.
23. In his 1954 book, Mr Seidler described the Bowden House thus:
This house is located on a wooded slope in Deakin, one of Canberra’s new suburbs. The site is very ample in size and has a generally diagonal slope across its width. This slope gave rise to an arrangement on 3 different levels, all of which have access onto the ground on various sides of the house. Extending retaining walls form level terrace spaces for the various outdoor areas.
The carport is located below the bedroom level and covered access is provided to the entrance of the intermediate living floor. The two main levels are joined by a continuous sloping ceiling which produces spatial interplay between the living and open bedroom floor. The slope of the main terrace roof ‘opens up’ toward a view of distant mountains on the north west and forms an opposing incline to that of the main roof. Since westerly winds prevent outdoor living at certain times of the year, a recessed windsheltered courtyard is provided on the north east, facing up the hill.
The living space combines sitting furniture around the open stone fireplace and the dining group screened from the entrance by the back of the fireplace which becomes a built-in coat hanging recess with indirect lighting.
The kitchen-utility space is compactly planned and self-contained. A hatch is provided for serving meals onto the main terrace. Open-riser steps lead up to the bedroom and study level where every room has access to the outdoors.
The use of material plays up contrasting textures against each other. Rough basalt stone against white painted common brick and plaster surfaces against natural finished interior boarding. Colouring is very subdued on the interior leaving the exposed natural materials their full impact. Upkeep is minimised by this use of natural materials.
24. The full text of Mr Seidler’s 1954 book, including his original essay, was republished in 2003 with an introductory essay by Chris Abel.
The Bowden House: architectural style
25. The Bowden House has been described as belonging to a particular Australian architectural style known as Post-War International c.1940-1960. The term Post-War International c.1940-1960 is one of the style category names devised by architects Richard Apperly, Robert Irving and Peter Reynolds for their book A Pictorial Guide to identifying Australian architecture: Styles and Terms from 1788 to the Present (Apperly). Apperly noted that there had been previously “no agreed terminology for architectural styles in Australia” and that discussion of architectural styles had previously been hampered by “imprecise description and definition of style characteristics as well as hasty and superficial investigation of building history.”
26. Apperly noted that “the idea of dissecting the architectural traditions of a country into chronological styles is not new.” Their book, said the authors, attempted “to create images of the sixty-six distinctive facets of architecture which the authors have discerned in their investigation of many thousands of buildings all over Australia.” For each architectural style, the book presents “a series of pictures in which the indicators of the style – the particular details that distinguish it – are shown by numbers. The indicators printed in italics are the ones that are peculiar to that style or that are in other ways vital to the understanding of its character.”
27. It is relevant to an assessment of the Bowden House for the purposes of these proceedings to note that the Apperly style indicators for each of the named architectural styles do not refer to internal spaces, nor do they include or categorise details of planning or construction. The authors made it clear that the book “deals with styles almost entirely in terms of the features which can be observed on the exteriors of buildings ... while some of the details of a building may be significant - even essential - features of a style, what is really important is the way all the parts of the building are brought together to create a totality.”
28. David Flannery, an architect and urban planner who is chair of the Heritage Council, gave evidence that the Apperly book is “a standard source and nationally accepted reference document for heritage nomenclature” and that it is regularly quoted by the Heritage Council and other bodies “to categorise architectural works in citations for registration.” However, the Tribunal also notes that the Apperly category Post-War International c.1940-1960 contains only two building types - the “curtain-walled office block” and the “radical, flat-roofed, glass-walled private house.”
29. Modern architecture in Australia in the post-war period is thus defined by Apperly as either “sleek, undoubtedly modern and instantly recognisable” office towers or carefully crafted private houses and residential buildings. Apperly gives Harry Seidler a special place in this second category with a “steady stream of uniformly high-quality work” which sets a standard “against which the work of other modernists has tended to be judged.”
30. As noted above, the Bowden House was one of Mr Seidler’s earliest houses and was included by him in his 1954 manifesto Houses, Interiors, Projects. The Tribunal has accordingly considered the significance of the Bowden House as part of Seidler’s “steady stream of uniformly high-quality work” within the architectural style known as Post-War International c.1940-1960.
The style category Post-War International c.1940-1960
31. In its introduction to the style category Post-War International c.1940-1960, Apperly makes particular reference to Seidler’s position as “Australia’s best-known practitioner in the Post-War International style” and places the early houses of Seidler in the context of architectural expression at that time.
Whilst it is clear in retrospect that there were very few winners at the end of World War II, it could be claimed that one victor emerged in the form of what was then called ‘contemporary architecture.’
When it was decided to build a world peace headquarters in New York to house the United Nations Organisation, a team of famous and not-so-famous architects from many countries was assembled and given the task of producing a design. Disappointingly, though perhaps predictably, bickering among the architects triumphed over brotherly love, but the building complex that eventually emerged was sleek, undoubtedly modern and instantly recognisable. Soon after, in 1952, Lever House in New York showed the world that American capitalism had embraced the rectangular prism (or ‘matchbox on its end’) wrapped in a glossy, impersonal curtain wall. …
In Australia, modern architecture won acceptance during the 1950s through two building types: the curtain-walled office block and the radical, flat-roofed, glass-walled private house. Office buildings designed by Bates Smart & McCutcheon for the MLC insurance company exemplified the former; houses by Sydney Ancher and by Arthur Baldwinson the latter. What were at that time radically modern buildings were distinguished by their extensive use of steel, reinforced concrete and glass, by their predilection for open planning, and by the gradual realisation on the part of their designers of the need for sun control if large areas of glass were to be used.
Starting with houses and progressing to office towers, Harry Seidler, a Viennese-born graduate of Walter Gropius’s Harvard Graduate School, was Australia’s best-known practitioner in the Post-War International style. From the early 1950s onwards, the steady stream of uniformly high-quality work from Seidler’s office set a standard against which the work of other modernists has tended to be judged.
32. Photographs in Apperly of buildings in the Post-War International style are marked to show the following eleven (11) ‘style indicators’:
(a) Cubiform overall shape
(b) Structural frame expressed
(c) Curtain wall
(d) Large sheets of glass
(e) Overhang for shade
(f) Plain smooth wall surface
(g) External sun control device
(h) Corbusian window motif
(i) Cantilever
(j) Contrasting non-rectangular shape
(k) Contrasting texture.
33. As noted previously, Apperly uses italics to identify those “style indicators” which are “peculiar to that style” or are “in other ways vital to the understanding of its character.” The Tribunal notes that only the first four (4) of the indicators for the Post-War International style are shown in italics and that two (2) of those indicators in italics (“structural frame expressed” and “curtain wall”) relate generally to larger commercial buildings only and are not relevant to the Bowden House. The relevance of this “style” of architecture in deciding whether the Bowden House has ‘heritage significance’ is discussed later in these reasons for decision.
The Bowden House: additions and modifications 1960-1978
34. In about 1960 Mr Seidler designed additions and alterations to the house for the Bowden family. These extended the dining area and kitchen service areas, and provided new bathrooms and two new bedrooms at the upper level. External materials and finishes generally matched the original building, but the sheltered courtyard on the north-east façade was absorbed into the living area and the original form of the Bowden House and its contained roofline were lost with the addition of the new rooms.
35. A second major change to the external appearance of the Bowden House occurred in 1979 with plans prepared by Canberra architect CG Cummings. The major element of these changes was that the master bedroom was extended onto the balcony cantilevered from the south-west wall and, at the same time, the carport below the bedroom was brought forward and fitted with a solid entry door. These works obscured Mr Seidler’s composition of the open balcony over a deeply recessed carport and interrupted the long line of the sloping roof facing the street.
36. A significant issue in this case is whether these and other changes to the original building design have adversely affected the ‘heritage significance’ of the Bowden House.
37. The Heritage Assessment Report prepared by the Heritage Council on 22 March 2019 observed that ‘the 1961 Seidler-designed additions did not diminish the heritage significance of the original 1954 Bowden House’ but that ‘the 1980 Clem Cummings designed alterations, particularly the removal of the front balcony and the application of timber wall cladding to part of the front elevation of the house, were inappropriate changes deleteriously affecting the Modernist appearance of the house from Northcote Crescent.’
38. The report of heritage architect David Hobbes prepared for the Tribunal hearing of the current application for review stated that:
the play of solid and void within the overall cubic shape is readable from the public domain including the main terrace and entry recesses under the main roofline. In my opinion the enclosure of the garage and balcony has diminished the contribution that the original cantilevered balcony and open carport made to this effect but not so much as to render the overall effect lost.
39. In his application for review, Mr Bowden submitted that “every face and aspect of the House has changed” and that “every remaining room of the original house has been substantially altered.”
40. In this context, the Tribunal notes that six of the eleven photographs of the Bowden House in Mr Seidler’s first book are of its interior spaces. The title of that book specifically includes the word ‘interiors,’ and the introductory text discusses, among other things, interior design, colour and lighting.
41. The Royal Australian Institute of Architects (the Institute of Architects) Register of Significant Twentieth Century Architecture (RSTCA) notes that the Bowden House has “internal elements that are important to the integrity of the building: the stone fireplace, the sloping ceilings, the split level division of the living and sleeping areas, the detailing and type of finishes and the staircase.”
42. Mr Seidler referred on several occasions to the interior spatial aspects of his residential designs. In his RIBA Gold Medal lecture in 1996, and in similar talks elsewhere, Mr Seidler drew parallels between his own house in Killara and the work of Dutch painter Theo van Doesburg, the founder of the De Stijl movement, who “painted these hovering planes … which makes space flow between them … you can imagine the spatial complexity of this, you can look from one space to another … there is an openness which is so much more subtle than it is when it is totally open.”
43. However the Heritage Council’s consideration of the heritage significance of the Bowden House makes only passing reference to the contribution of interior spatial planning to the Seidler design and no reference to the impact of internal changes to the original house.
44. The Tribunal has necessarily considered whether it is possible, or at least prudent, to ignore the interiors of a house designed by an architect who emphasised the spatial qualities of his buildings, particularly when the original internal design intent may have been significantly damaged or even lost.
The Bowden House: references in architectural literature
45. In the preparation of its decision and accompanying papers, the Heritage Council referred to a number of books, articles and interviews concerning Harry Seidler or the Bowden House. The Tribunal lists these now in generally chronological order with some comments as to the content and relevance of each.
(a) Harry Seidler, Houses, Interiors, Projects: Harry Seidler, Associated General Publications/Horwitz Publications, Sydney, 1954. The entry of seven pages about the Bowden House (‘House in Canberra’ pages 52-58) included floor plans and cross section, roof construction details, outline specification, 11 photographs taken by Max Dupain c.1954 and a brief descriptive text. The Dupain photographs are those used in various other publications to illustrate the Bowden House.
In an introductory essay of 12 pages headed "Our Heritage of Modern Building’, Mr Seidler described modern architecture as “a new attitude to building” rather than a style in the historical sense. He was reluctant to state any characteristics of this new attitude, he wrote, “for fear of laying down the phenomena of another style.” The Tribunal notes that Mr Seidler’s exposition of his design thinking is consistent with his descriptions and photographs of the houses in his book. Mr Seidler’s essay included observations on the poor quality of house design in Australia and the opportunities for enhancing visual appeal with the use of contrasting building materials. Mr Seidler did not mention the Bowden House other than in the seven page entry in the catalogue of his work and made no specific reference to the philosophies of the Bauhaus.
Mr Seidler thought that Australian houses displayed a “crudeness of finish” and a “soul-destroying pattern of antiquated building forms.” On the subject of building materials, he noted that modern architecture, “originally criticised for its machine-like ‘inhuman’ quality, has become much more versatile … it can use ‘old’ materials such as stone and brick because it does not depend on new materials or new forms but on a new mentality … tension or interesting ‘opposition’ can be produced by the use of these heavily textured materials juxtaposed with synthetic or white surfaces.”
The site, Mr Seidler wrote, would often suggest arranging zones on various levels “following the contours of the land.” He wrote of a “craving for spatial freedom” which had found expression in “open planning.” As to floor plans and interior design, it is essential, he said, that living areas are separated from sleeping quarters and he noted the “psychological warmth of the sitting group around the open fire.” According to Mr Seidler, economical construction usually involves traditional materials such as brick or timber walls and incorporates steel or concrete beams and columns.
The Tribunal notes that individual entries in the book generally included detail sections of a staircase or joinery item or other building element. The roof detail for the Bowden House, for example, shows a sharp aluminium capping at the verge. This sits on a narrow timber fillet and projects beyond the timber boarded fascia, giving a crisp shadow effect and an elegant finish to the long sloping roofline. As discussed later in these reasons, the appearance of the roof was changed quite significantly when a new metal deck roof replaced the original roof covering. The increased depth of the roof required a deeper fascia and a folded pre-coated metal panel was fixed over the original fascia and structure. Both the sharp line of the roof and the comparatively slender timber fascia were thereby lost.
(b) Peter Blake, Architecture for the new world: The work of Harry Seidler, Horwitz Australia, 1973. The Bowden House is referred to at page 242, with floor plans and cross section, and two photographs by Max Dupain c.1954 of the north-west elevation and the interior viewed from the small north-east terrace. The Bowden House was described as being in “a beautiful location … in an open forest.”
Blake wrote of Mr Seidler’s early houses that “from the first, these houses were extremely neat: well-designed, well-planned, well-detailed and well-built … they were invariably rendered in flawless taste, and … they were almost always better in execution than the Le Corbusier or Breuer models on which they were based … Seidler’s early work … has all of Breuer’s formal and plastic organisation plus a degree of perfectionism not found in Breuer’s work until much later.”
(c) Harry Seidler, Houses and Interiors 1: 1948-1970, Images Publishing Group, 2003, (‘Bowden House, Canberra, 1950’ pages 38-41). This book is a lightly edited facsimile copy of Mr Seidler’s 1954 portfolio and includes a shorter description of the Bowden House with three of Max Dupain’s photographs (north-west and south-west elevations plus interior of living area). As noted previously, the book also includes Mr Seidler’s original essay in full.
In an introduction ‘Early Years: The Tall Poppy’, Chris Abel noted that:
Peter Blake draws attention to the architect’s outstanding technical competence and compares it favourably with the notorious weaknesses of the pioneers of modernism and their immediate followers … whether elevated or placed firmly upon the ground, standing alone or grouped in tight clusters, the planning of all of Seidler’s houses is as meticulous as the detailing … Seidler’s houses draw the landscape deep into their interiors in great gulps, fusing both together.
(d) Jennifer Taylor, Australian Architecture since 1960, The Law Book Company, 1986. Professor Taylor noted that Mr Seidler’s first Sydney house, the 1949 Rose Seidler House:
introduced the concepts of Gropius and Breuer directly into Australia in an unadulterated form … the [Rose] Seidler House, with its open plan and elevated, white, box-like form was revolutionary. With a series of crisp white houses designed through the following years, he continued to lay the principle of Bauhaus thought before the Australian public and profession’.
Professor Taylor made no specific reference to the Bowden House.
(e) Alice Spigelman, Almost Full Circle: Harry Seidler, a biography by Alice Spigelman, Brand & Schlesinger, 2001. In the last biography published before Mr Seidler’s death in 2006, Spigelman made only a passing reference to the Bowden House, in the context of other projects:
in 1949, Seidler was busy with the construction of Marcus Seidler’s house and a smaller house for Julian Rose on the Turramurra property, a house for the Waks family in Northbridge, the Bowden house in Canberra and a beach house in Newport.
(f) Andrew Metcalf, ‘Bowden House’ in Canberra Architecture, The Watermark Press, 2003. Metcalf described the Bowden House as Mr Seidler’s:
first architectural commission outside Sydney … as with most of his large corpus of work, the Bowden House contains examples of specific design strategies or devices used from project to project always in slightly different stages of development or in thematic variations that seem inexhaustible in their capacity to engender different but consistent outcomes … has been added to twice – once by the architect – but still retains its slightly Breueresque, totally Seidler character.
(g) Milton Cameron, Experiments in Modern Living: Scientists’ Houses in Canberra 1950-1970, ANU Press, 2012. This book included passing references only to the Bowden House. For example, Cameron wrote that “except for a small courtyard recessed into the north-eastern façade for shelter, the Bowden House was not substantially different to the architect’s Sydney houses of the same period.” Cameron noted that John Zwar, the scientist for whom Seidler built his only other house in Canberra, “was particularly impressed by the seven pages of plans, sections and photographs dedicated to the Bowden House in Deakin.” Cameron and Zwar would appear to be the source of the statement by the Heritage Council that “Seidler claimed [the Bowden House] as one of his favourite designs, dedicating a lengthy seven page spread to the residence in the 1954 portfolio of his work.”
(h) Jennifer Taylor, ‘Harry Seidler’, in Philip Goad and Julie Wills (eds), The Encyclopedia of Australian Architecture, Cambridge University Press, 2012, pages 622-624:
Harry Seidler was one of the major talents in Australian architectural history. He was a leading figure throughout his career and the first architect in Australia to fully comprehend the lessons handed down from the Bauhaus, of which he remained a steadfast proponent. Seidler never wavered in the pursuit of excellence and he left his mark on Australian architecture in terms of culture, ethics and performance.
Professor Taylor did not mention the Bowden House.
(i) Tim Reeves and Alan Roberts, 100 Canberra Houses: A Century of Capital Architecture, Halstead Press, 2013. A two-page description of the Bowden House was included in this book, issued to mark the Centenary of Canberra, with a floor plan and cross section. The single Max Dupain photograph is from the west as on page 54 in Mr Seidler’s 1954 book. The text repeats without attribution the words in the Heritage Council document ‘Background Information’ that “Seidler claimed the Bowden House as one of his favourites – it had a seven page spread in a 1954 portfolio of his work.”
The decision of the Heritage Council to register the Place
46. Against this background, it is necessary now to consider the Heritage Council’s decisions to register the Place. That consideration commences with the statutory criteria to be applied when deciding whether to register a place, and the Council’s reasons for registering the Place. The Tribunal will then consider:
(a) the Tribunal’s role in reviewing a decision of the Heritage Council;
(b) evidence about the interior and exterior of the Bowden House in its current state;
(c) evidence about the land surrounding the Bowden House; and
(d) the submissions of the parties about the correct and preferable decision in this case.
47. The Tribunal will then express its conclusion about whether the Place should remain on the Register.
Criteria considered by the Heritage Council
48. Section 32 of the Heritage Act provides the basis on which the Heritage Council might decide to provisionally register a nominated place. It states:
(1) The council—
(a) must decide whether or not to provisionally register a nominated place …; and
(b) may decide to provisionally register a place … that is not a nominated place ...
(2) However, the council may provisionally register a place … only if satisfied on reasonable grounds that the place … is likely to have heritage significance.
49. The critical criterion for the Heritage Council’s decision was whether the Place is likely to have ‘heritage significance.’
50. Section 10 of the Heritage Act states:
A place or object has heritage significance if the place or object meets 1 or more of the following criteria (the heritage significance criteria):
(a) importance to the course or pattern of the ACT’s cultural or natural history;
(b) has uncommon, rare or endangered aspects of the ACT’s cultural or natural history;
(c) potential to yield important information that will contribute to an understanding of the ACT’s cultural or natural history;
(d) importance in demonstrating the principal characteristics of a class of cultural or natural places or objects;
(e) importance in exhibiting particular aesthetic characteristics valued by the ACT community or a cultural group in the ACT;
(f) importance in demonstrating a high degree of creative or technical achievement for a particular period;
(g) has a strong or special association with the ACT community, or a cultural group in the ACT for social, cultural or spiritual reasons;
Example
a place or object that has a strong or special association for Aboriginal people in the ACT because it is part of their continuing or developing cultural tradition
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(h) has a special association with the life or work of a person, or people, important to the history of the ACT.
51. The Heritage Council expressed its views in relation to each criterion. In summary, the Council concluded that Bowden House did not satisfy any of the criteria apart from criterion (d). The Council gave written reasons for its conclusions in respect of each of the criteria.
52. In relation to criterion (d) the Heritage Council wrote:
The Council has assessed 11 Northcote Crescent, Deakin against criterion (d) and is satisfied that the place meets this criterion.
As a Modernist building the house has special interest in being a strong example in the ACT of this modern ideal by one of Australia’s notable architects. The original house demonstrates the creative design principles of the influential German Bauhaus School of design which provided a formative influence in the early Post-War International Style (1940-60). Seidler’s influences as an architect were of authentic engagement with Bauhaus principles in Europe and America. He was one of the earliest and strongest proponents introducing the Bauhaus approach to architecture to Australia and this house is a very good example of his application of that approach in a domestic setting. The house is the ACT’s first true example of the rationale of the Bauhaus movement.
The major architectural elements that are particular to the Post-War International Style (1940-1960) and that are overtly displayed in this building relate to the external forms. They are:
• cubiform overall shape (including the roof form and the balconies, terraces and the roofed entrance staircase within the form), and
• the use of large sheets of glass.
Other architectural elements of this style displayed by the building that relate to the external forms are:
• overhanging for shade (i.e. wide, overhanging eaves),
• plain smooth wall surfaces;
• Corbusian window motif;
• contrasting textures (notably the use of natural stone, which is a feature of Seidler’s work).
The original cantilevered balcony off the main bedroom, which has now been enclosed but is structurally intact, is an element of the style. This has the potential to be reinstated in the future.
The design has been compromised by Seidler’s additions in 1960 and the additions of a local architect in 1978. The contained cubist form of the house no longer remains due to the addition of bedroom three and the bathroom (designed by Seidler 1960) and the original ‘butterfly’ roof form now extends in a gable over the addition. In 1978 the cantilevered balcony was enclosed and the garage below extended beneath it.
Although the additions have an adverse effect in terms of form, which is an important Bauhaus design aesthetic, the original house and fabric remain in evidence. It is considered that the house is still able to demonstrate the principal characteristics of Post-War International Style as influenced by the Bauhaus design.
The entry on the Heritage Register
53. Section 40 of the Heritage Act provides that if a place is provisionally registered the Heritage Council must decide either to register the place or not to register the place. A decision to register a place may only be made if the Council is satisfied on reasonable grounds that the place has ‘heritage significance.’
54. In making its decision to register the Place in accordance with section 40, the Heritage Council considered a range of documentary material about the original Bowden House and the alterations made to it.
55. The Heritage Council’s decision to register 11 Northcote Crescent, Deakin, was notified in the Registration Notice dated 15 November 2018. The Registration Notice stated that:
(a) the registration details of the Place are in the schedule;
(b) the Heritage Council is satisfied on reasonable grounds that the Place has heritage significance as it meets one or more of the heritage significance criteria in section 10 of the Heritage Act;
(c) a detailed statement of reasons, including an assessment against heritage significance criteria, is provided in the schedule;
(d) the registration of the Place takes effect on the day after the Notice is notified; and
(e) the Provisional Registration Notice is revoked.
56. The schedule to the Registration Notice contained detailed statements in relation to the location and description of the Place, the heritage significance of the Place, the conservation objective of the registration, the reason for registration and the Heritage Council’s assessment against the heritage significance criteria. Extracts from the schedule are set out below.
57. The location of the registered place was described as “11 Northcote Crescent, Deakin Block 8 section 9, Deakin.” The entry continued:
This statement refers to the description of 11 Northcote Crescent, Deakin as required in s.12(c) of the Heritage Act 2004. The attributes described in this section form part of the heritage significance of the place. For the purposes of s.12(c) of the Heritage Act 2004, the boundary of the place is at Image 1.
58. That image was an aerial photograph showing the boundary of Block 8 Section 9, Deakin.
59. The description of the place is as follows:
11 Northcote Crescent, Deakin, is a detached house which consists of the following attributes:
• The major architectural elements that are particular to the Post-War International Style (1940-1960) and that are displayed by this building relate to the external forms. They are:
o Cubiform overall shape (including the roof form and the balconies, terraces and the roofed entrance staircase within the form) and;
o Large sheets of glass.
• Other architectural elements of this style displayed by the building that relate to the external forms are:
o Overhanging for shade (i.e. wide, overhanging eaves);
o Plain smooth wall surfaces;
o Corbusian window motif and;
o Contrasting textures (notably the use of natural stone).
60. The Statement of Heritage Significance was as follows:
11 Northcote Crescent Deakin was designed by one of Australia’s leading architects of the modern movement, Harry Seidler, in 1951-2. It demonstrates his adoption of Bauhaus design principles and is one of the most significant examples of the early Post-War International Style (1940-60) in a detached residential building in the ACT. Seidler cites this house as an outstanding example of Bauhaus that typifies his early work in the ACT.
The Tribunal’s role in deciding the application for review of the Heritage Council’s decision
61. As noted earlier, section 68 of the ACAT Act provides that, when reviewing a decision of an entity (in this case the Heritage Council), the Tribunal:
(a) may exercise any function given by an Act (in this case the Heritage Act) to the entity for making the decision; and
(b) must, by order, confirm, vary or set aside the decision of the entity.
62. Section 69 provides that the order of the Tribunal is taken to be the decision of the decision-maker.
63. Accordingly the Tribunal may only decide to register the Place if it is satisfied on reasonable grounds that the Place has ‘heritage significance.’
64. In deciding whether the Place should be entered on the Heritage Register, the Tribunal has had regard to the written materials that were before the Heritage Council (and which are summarised and quoted elsewhere in these reasons for decision).
65. There is a significant amount of evidence before the Tribunal about the nature and extent of the modifications of, and additions to, the original Bowden House. The evidence comprises architects’ drawings and plans, photographs, written descriptions and oral evidence from witnesses.
66. The Tribunal has also:
(a) considered the source materials referred to in the briefing documents provided to the Heritage Council;
(b) inspected the exterior of the Bowden House and the grounds surrounding it on Block 8 Section 9 Deakin; and
(c) considered the expert evidence of Mr Hobbes and the evidence of Mr Bowden.
67. The information and insights gleaned from those additional sources supplemented (and, in some respects, updated) the material that was available to the Heritage Council when it made the decision to provisionally register and to register the Place. To that extent, the Tribunal is better placed than the Heritage Council was to make an informed decision about whether, at present, the Bowden House has ‘heritage significance.’
68. Although the Tribunal was assisted by the evidence of an expert heritage architect, it is not bound to adopt his conclusions when deciding whether to enter the Place on the Register. Rather, the Tribunal has to make its own assessment based on the evidence as a whole.
The interior of the current Bowden House
69. Although Mr Seidler's book published in 1954 included detailed descriptions and illustrations of the interiors of his houses, the heritage registration of the Bowden House specifically excludes its interior.
70. As noted earlier in these reasons for decision, the entry on the Register refers to the architectural elements of the Post-War International style displayed by the house and related to the “external form.” The correspondence between the Heritage Council and Mr Bowden, as well as evidence given in these proceedings, make it clear that the decision to enter the place on the Register was made without regard to the heritage significance, if any, of the interior of the house.
71. However before assessing the exterior of the Bowden House by reference to the statutory criteria for ‘heritage significance,’ it is necessary to make some brief observations about the interior of the house.
72. It is clear to the Tribunal from the photographs of the original Bowden House taken by Max Dupain soon after its construction and from the books cited earlier that the interior of the House was a significant component of the overall design.
73. The heritage assessment prepared by the Heritage Council in 2004 described, among the architectural features of the Bowden House, “the original detail and finishes, to stairs, fireplace and angled soffit detail.” Attached to the heritage assessment document was a detailed description of the building which referred to “internal elements that are important to the integrity of the building: the stone fireplace, the sloping ceiling, the split-level division of living and sleeping areas, the detailing and type of finishes and the staircase.” It noted that the alterations in 1978, although carried out due to changes in lifestyle of the owners, had “detracted from the original design philosophy.” Of those later alterations, the enclosure of the main bedroom balcony “has been the most significant, at the western side of the house it has changed the external appearance. This design feature was a major expression of the internal spaces, structure and architectural style.”
74. In his letter to the Heritage Council dated 6 April 2000, Ivor Bowden wrote “Internally all rooms of the original house except the bathroom and lavatory have been substantially structurally altered.”
75. In 2018, the materials provided to the Register Taskforce in support of the registration of the Place noted that the Council was not considering internal features as part of the heritage significance assessment, and that internal features were outlined in the background documents for reference only.
76. Mr Flannery wrote to Mr Bowden on 6 July 2018 stating that “the internal features of your home are not part of this heritage assessment; it is only the external components of your home that are being considered.”
77. There seemed to be two reasons for not including references to the interior on the Register. First, the Heritage Council was unable to make an assessment of the interior because of the reluctance of Mr Bowden to allow people inside the house to assess its heritage significance. At the hearing, the parties agreed that the Tribunal should “view the property alone without any parties.” As previously noted, the Tribunal viewed the house and grounds on 28 March 2019 but did not enter the house.
78. Second, the letter to the Heritage Council from Ivor Bowden dated 6 April 2000, and the oral and written evidence of Mr Bowden before this Tribunal, supports a substantive reason for not referring to or expressly registering the interior. In his letter dated 12 June 2018, and his confirmatory oral evidence, Mr Bowden described the numerous, extensive and significant modifications made to the interior of the Bowden House, both as a result of the architect designed extensions and modifications referred to earlier and modifications made by the owners to meet their personal needs and lifestyle.
79. Cross examined by Mr Bowden, Mr Flannery said “the great bulk of the alterations that you cited were interior changes.” That was why, in his letter to Mr Bowden dated 6 July 2018, Mr Flannery advised that the internal features of the house were not part of the heritage assessment.
80. Based on the photographic, oral and written evidence in these proceedings, the Tribunal is satisfied that
(a) the interior of the original Bowden House was integral to the overall design of the house and provided a good example of Mr Seidler’s architecture and of the Post-War International style; and
(b) the numerous, extensive and significant modifications described by Mr Bowden have so altered the interior of the house that it is no longer a good example of Mr Seidler’s architecture in particular or of the Post-War International style in general and does not have ‘heritage significance’ as defined in the Heritage Act.
81. The remaining issues before the Tribunal are:
(a) whether the exterior of the Bowden House, or any part of it, satisfies the statutory definition of ‘heritage significance’; and
(b) if it does, whether the whole or part of the Place should be entered on the Register.
The exterior of the Bowden House
82. As noted earlier, the schedule to the Registration Notice listed the major architectural elements of the Post-War International style that are displayed by the external forms of the house. The Heritage Council also stated in summary that:
(a) the design of the house has been compromised by Mr Seidler’s additions in 1960 and the additions of a local architect in 1978;
(b) the contained cubist form of the house no longer remains due to the addition of bedroom three and the bathroom (designed by Mr Seidler in 1960), and the original ‘butterfly’ roof form now extends in a gable over the addition;
(c) in 1978 the cantilevered balcony off the main bedroom was enclosed and the garage below extended beneath it, however the original cantilevered balcony is structurally intact and has the potential to be reinstated in the future; and
(d) although the additions have an adverse effect in terms of form, which is an important Bauhaus design aesthetic, the original Bowden House and fabric remain in evidence and the Heritage Council considered that the house is still able to demonstrate the principal characteristics of the Post-War International style as influenced by the Bauhaus design.
83. The key issue for the Tribunal is whether, despite the compromising effect of the alterations, the Bowden House in its current state satisfies one or more of the ‘heritage significance’ criteria in section 10 of the Heritage Act.
84. Expert opinion evidence was given by David Hobbes, an architect with extensive experience in heritage assessment and the restoration and adaptation of heritage buildings. Mr Hobbes inspected the exterior of the Bowden House in the company of Mr Bowden on 15 March 2019. Mr Hobbes took photographs of the exterior of the house, and particular features of it, using Mr Bowden’s phone. Those 20 colour photographs, and 8 others taken by Mr Bowden were in evidence as a bundle. Mr Hobbes prepared a detailed written report which was also in evidence.
85. In his report, Mr Hobbes listed each of the changes or additions to the original house that he had observed. The list was revised slightly in light of information provided by Mr Bowden at the hearing. That list, as revised, is as follows:
(a) A large addition has been constructed to the rear of the building, comprising white bagged brick cavity walls, white painted timber framed highlight windows with predominantly timber awning sashes, metal deck roof which continues the original butterfly form and recessed porch outside the laundry at the north corner.
(b) A small brick enclosed cellar constructed extending off the rear wall, approximately 1.8 metre high.
(c) The cantilevered concrete balcony off Bedroom 1 and the original open carport below on south-west elevation have been enclosed including a new rendered brick pier, a Colorbond metal garage door, white painted timber door with vertical boarding, white painted vertical boarding to side and front panels, and white painted timber framed window with steel casement sashes.
(d) Colorbond pre-formed fascia and capping fixed over the original white painted timber boarded fascia to the majority of the building – both the original section and additions (an original section of fascia remains on the south-east side).
(e) A new pre-painted rainwater head and downpipe have been installed in the east corner of the rear addition.
(f) The original cantilevered concrete entrance stairs have been reinforced with steel supports and have been tiled over.
(g) The original north-west terrace and later laundry terrace have been tiled over.
(h) The original galvanised steel pipe rail on the entry steps has been replaced with a stainless steel rail of slightly differing shape.
(i) Decorative leadlight glazing has been inserted in the highlight window over the front door.
(j) Slate look stacked sheet tiling has been applied to the original white bagged brick wall extending out from the north-west terrace.
(k) An approximately 1.8 metre stacked slate tiled wall has been constructed extending forward between the kitchen and the laundry.
(l) Striped retractable awnings have been installed over the kitchen, dining and bedroom 1 windows.
(m) On close inspection of the current exterior render and comparison with the 1954 photographs, it would appear that the original lightly bagged brick work has been covered with a thin cement render with fan shaped trowel marks.
(n) The original exterior door leading from the study to the south-east terrace has been removed and the opening bricked up, rendered and painted white.
(o) The original servery hatch from the kitchen to the terrace has been bricked up.
(p) New services have been installed including rooftop photovoltaic panels, wall mounted inverter panels, new exhaust fan flues and external hot water storage tank.
(q) A redundant plumbing vent has been removed from the rear addition.
(r) Extensive hard landscape works have been carried out recently, including stone retaining walls, cobbled driveway, brick paved terraces and pathways, and four steel posts have been installed at the top of the driveway to support a new carport roof.
(s) A brick outbuilding has been constructed in the top north-east corner of the site.
86. Referring to the large glass sliding doors from the living room to the north-west terrace, Mr Bowden told the Tribunal that:
…the full height and quarter width sliding glass doors are seldom opened, and that’s been for years, due to the inability of a single person to easily get them moving, and that's been the case since I was a boy. Each is a steel frame glass door and it's estimated to weigh somewhere between 150 to 200 kilos. The glass is untempered and it receives its strength only by virtue of its thickness. It's almost impossible for a child or a slight adult to move them and the risk of injury or damage, once the glass doors are moving, is always there ... the risk [of] injury from falling glass, should one of the panels, window panels, give way is ever-present. I've had a number of people in to look at those windows and some of them won't even walk near them, from fear, and they've certainly advised that they would definitely not be allowed today.
87. Mr Bowden also explained the addition of the canvas window awnings:
…because the kitchen faces the north-west and receives the full intensity of the afternoon sun right onto food preparation areas. It’s difficult to stand there without having the awnings to shelter you from the sun … been a problem from day one.
88. Mr Bowden also referred to:
the contrast in textures of stone and white painted brickwork, the large sheets of glass, all faithfully copied by Seidler, from the other house which was built just ahead of ours … elements … (which were) … employed by other architects in various combinations. Seidler doesn’t own that approach.
89. It was the opinion of Mr. Hobbes that the following “significant elements of the original building” remain:
(a) Overall cubiform shape when viewed from the public domain, specifically the north-west and south-west elevations.
(b) The play of solid and void within the overall cubic shape, including terrace and entry recesses under the main roof line (noting that the enclosure of the garage and balcony has diminished the contribution of the cantilevered balcony and open carport).
(c) Distinctive butterfly roofline, when viewed from the public domain, punctuated by a white brick chimney.
(d) Overhang for shade.
(e) Contrasting textures of ashlar (sic) basalt stone walls and smooth white brickwork.
(f) Fully glazed window wall to living room with full height and width glass doors contrasting with strip windows with Corbusian motif, that is, small sashes making a pattern within an overall frame, specifically the original kitchen window.
90. In his written report, Mr Hobbes agreed that the Bowden House has undergone “extensive alterations and additions” and that it “is not the same modest square house as built in 1952.” He also acknowledged that the documentation of the building in various publications which include the original floorplans and the 1954 photographs by Max Dupain had been “heavily relied upon” in the heritage nomination and heritage citation. Despite that, in his opinion “the alterations have not been so radical as to diminish the heritage values of the place below the threshold for this criterion, particularly in so far as the significant features are read from the public domain and are able to be viewed by the ACT community.”
91. He referred to the overall cubiform shape and the play of solid and void within that shape, “so it’s carvings in and out of that overall cubic shape.” He described the “rather large simple rectangular and developing butterfly roof” and the “deep recess for the terrace and the larger area of glazing. The recess is serving the purpose of sun-shading device and then we’ve got the slightly lesser recess under that very strong roofline on the … front of the building where you walk up and go up the stairs and turned into the front door. Now, that effect is diminished to some extent by the enclosure of the balcony, but is still clearly able to read the strong roofline and the recess part of that wall.”
92. Mr Hobbes also referred to the “Corbusian motif” which he described as an “artistic arrangement of a window” and the “visual play” that architects made of the proportions of those windows and like features “to make a pleasing pattern to the eye.” He agreed that the effect of the large bedroom windows opening to the original balcony had been diminished, if not lost, by the combination of the balcony being enclosed and the addition of an awning over the newer window. However he also gave evidence that the enclosure of the cantilevered balcony and the recess carport below it is reversible, despite the cost and the effect on the amenity of the larger room constructed where the balcony was.
93. Mr Hobbes acknowledged that changes made to the house affected the design but, comparing “then and now,” he referred to the “interplay of the cut-ins, both on the terrace side and to some degree still on the entry side, notwithstanding the fact that the carport and balcony have been enclosed.” He also highlighted the “very strong impact of the comparison of the very rustic and very large segments of rubble stone wall contrasted with the more or less smooth white walls,” as well as the contrast of the very large expanse of glass with the small strip elements of glass and, to some degree, the wall extending from the terrace into the garden (although the material face of it has been changed – a change he described as “cosmetic” and “in theory reversible.”)
94. Mr Hobbes agreed that some aspects of the house are in poor condition (which might be expected after decades of use) but he said that a house “would have to be in an incredibly advanced state of decay for us to decide it wasn’t worth trying to restore.” He also stated that the fabric of a house does not necessarily have to be the original fabric as built to have significance. Some things change or are replaced over time. The replacement of a window within the overall design or a change of wall finish do not necessarily negate the significance of a building.
95. Mr Flannery also stated that materials used on all buildings change over time. Components are replaced. They could include doors, windows, the render on walls, roofs or floor coverings. Such changes need not have “a diminishing effect” on the heritage significance of these places so long as “the form of the building is still being retained.”
96. Mr Flannery confirmed that one reason for registering the Bowden House was that it was designed by Mr Seidler, it is a stepping stone into the introduction of Post-War International style and it was rare, being the only remaining example of a Seidler-designed house in Canberra. In his words, it “adds to the rarity and the importance to the ACT community.”
97. When asked by the Tribunal what criteria he applied when assessing whether a modified building merited registration, Mr Hobbes explained that “there is an element of subjectivity, but … it’s based on experience and understanding and it comes to the degree of modification.” He continued, “I think we ask ourselves the question, what would be the point of heritage listing?” In his opinion, the answer is “to preserve a place so that the current and future community can appreciate it and be able to understand it and have the benefit of it remaining in existence … for our cultural richness.” A heritage listing does not serve that purpose where a building is so diminished and it is unrealistic (in structural rather than economic terms) to consider reversing the alterations.
98. While Mr Hobbes agreed that every external side of the house has been modified to a greater or lesser extent, he did not consider that the first extensions designed by Mr Seidler destroyed the cubiform whole. Rather, in his opinion, the design “took away from its original pure cubic shape, insofar as it added an L shape addition to the rear.” Mr Hobbes also noted that the additions to the rear of the house are not visible from the street or the front of the house.
99. In Mr Hobbes’ opinion, the level of change to the Bowden House is not such that it is impossible to appreciate the characteristics of the building. In particular, although it would be desirable that the balcony enclosure be reversed, there are sufficient attributes still evident that the house meets the ‘heritage significance’ criterion in section 10(d) of the Heritage Act. While it is not intact as shown in the 1954 photographs, there is enough of the original building “for a story to be told” by reference to what can be seen and to other information (for example an interpretative sign or brochure) to assist people understand the building.
The land surrounding the Bowden House
100. Finally, for completeness it is necessary to consider the other component of the Place, the grounds in Block 8 Section 9 Deakin on which the Bowden House stands.
101. During his oral evidence, Mr Hobbes described the “extensive hard landscape works” over the years, including garden stone walls and changes to pathways and driveway. As he observed, the 1954 photographs show a bare site with virtually no vegetation. In his opinion, the stone retaining walls built at various times are “very much in the flavour of the original design” and the driveway being constructed at the time of the hearing was in sympathy with the character of the house.
102. In his report, Mr Hobbes wrote:
In my opinion the hard landscape elements which have been constructed at various times are largely sympathetic to the character of the original building and do not obscure the view or an understanding of significant features,
Soft landscaping including trees and shrubs does not appear to obscure the view of significant features.
103. He concluded with the following observation:
The boundary identified in the Heritage Registration is the entire block boundary. This is presumably for the purposes of maintaining a suitable curtilage around the building. In my opinion there are no significant heritage features within the surrounding garden.
104. In his oral evidence, Mr Hobbes expressed the view that there is nothing intrinsically valuable about the setting. It is a suburban block and the main feature for the present case is that the house is easily visible from the front. Mr Flannery agreed.
105. Mr Bowden submitted, by reference to Mr Hobbes’ evidence, that there are no heritage elements beyond the house.
106. The effect of Mr Flannery’s evidence was that the land component of the Place does not have ‘heritage significance’ independently of the Bowden House. He explained that it was not unusual for the registration of places to align the curtilage with the block boundary. The practical benefit is administrative in nature, as it aligns the heritage description with the planning legislation, and appears to allow the Heritage Council to deal more readily with hundreds of referrals of development applications each year.
107. Mr Flannery also quoted the guiding conservation objective in the registration of the Place:
The guiding conservation objective is that 11 Northcote Crescent, Deakin shall be conserved and appropriately managed in a manner respecting its heritage significance.
108. He said that the Heritage Council would not be concerned if the owner of the Place wanted to make alterations to the garden (such as removing or planting a tree) or put in a new driveway. Nor would it have concerns about more trees being planted to screen the house from the street to provide privacy. However, the appearance or vista towards the building is important, and that would be available at least along the driveway. The Heritage Council would want an opportunity to comment about the design of a major extension to the house or another significant structure on the land, particularly if it might obscure the Bowden House.
109. The Heritage Council submitted that the inclusion of the land surrounding the house as part of the Place was more than simply a question about whether there are significant heritage features in the surrounding garden. The Council had never contended that there are such features. The point of registering that area was that changes in the surrounding area might, in some circumstances, adversely impact on the heritage significance of the Place. In the Council’s submission, it is appropriate that the whole block be registered so that such a question can be considered in the event that Mr Bowden (or any subsequent owner) wishes to conduct work or other development in the surrounding area. It does not mean that such works or development would not be permitted. Rather, it means that regard would be had to how they might impact the heritage significance of the place. The Council submitted that registering the entire block is clearly in furtherance of the object in section 3(e) of the Heritage Act “to provide a system integrated with land planning and development to consider development applications having regard to the heritage significance of places and heritage guidelines.”
Does the Place satisfy the section 10(d) criterion?
110. In order to decide whether the Place should remain on the Register, it is appropriate to consider separately:
(a) the exterior of the Bowden House; and
(b) the grounds around the house.
111. It is apparent from the evidence that the heritage significance of Block 8 Section 9, Deakin (if any) is contingent upon the heritage significance of the house constructed on that land. Accordingly, it is appropriate to consider first whether the Bowden House, in its present state, has sufficient ‘heritage significance’ (as defined) to merit registration.
Mr Bowden’s submissions
112. Mr Bowden submitted that the correct and preferable decision is to remove the entry about the Bowden House from the Register.
113. In support of that outcome, Mr Bowden submitted, in summary, that:
…there is little public interest in the property. The public consultation period drew only one response. The house fails to meet seven of the eight criteria, and the central element offered in support of the eighth criterion, the ‘cubiform overall shape’, disappeared in 1960 following the first major extension. Changes to the internal form of the house are accorded no importance by the Council. The Council claims the house to be one of Seidler’s most outstanding and important designs (but) there is no mention of the house on the website of Harry Seidler & Associates.
114. He submitted that, rather than being unique, the original Bowden House had design features that Mr Seidler copied from his other houses and which were employed by other architects in various combinations.
115. Mr Bowden also submitted that the Tribunal should be considering the current building not what he described as the “regressed building” which, he suggested, would be smaller (with smaller bedrooms) and less secure than the current house. He also said that he could not imagine anyone opening up the garage and reinstating the carport given the equipment located there and the role of the garage as the “nerve centre” of the house.
116. Mr Bowden further submitted that:
…the ‘place’ has been enlarged by the Council to encompass the whole block and all reference to Bowden House has been dropped. This appears to be a calculated move to prevent the construction of a freestanding carport at the side of the House adjacent to the front entrance, a second outbuilding to the rear of the property, and to control development of the grounds. The family’s interest in the property has been entirely disregarded. There has been no consideration of the economic impact of the decision on the family and no consideration of the existential impact of the decision on the family.
The Heritage Council’s submissions
117. The Heritage Council submitted that the correct and preferable decision in this case is for the Tribunal to confirm the decision of the Council to register the Place under section 40 of the Heritage Act.
118. The Heritage Council relied on the expert opinion evidence of Mr Hobbes to support the ongoing registration of the place. In summary, the Council noted that Mr Hobbes and Mr Bowden had agreed about the nature of the modifications to the original Bowden House but that, in Mr Hobbes’ opinion, the current house retains sufficient principal characteristics of the original house to satisfy the criterion of ‘heritage significance’ in section 10(d) of the Heritage Act. In the opinion of Mr Hobbes, neither changes of materials (for example the replacement of windows or changes to the colour of some surfaces) nor the current state of repair of the property detract from the heritage significance of the house. The alterations have not been so radical, and the building has not been so diminished by them, that it no longer has ‘heritage significance’ as defined.
119. Further, the Heritage Council submitted that an important factor for the Tribunal to take into account is how the building could exist, not merely how it exists today. Reversal of some alterations (particularly the enclosure of the balcony, it was suggested), would enhance the heritage significance of the house. The Council contended that Mr Bowden’s submissions about reversibility not being possible were based on economic considerations rather than what is practically possible, and little weight should be given to his suggestions about what other owners of the house might do. In any case, the Council submitted, the key point of entering the house on the Register is so that regard will be had to its significance. In the future, someone with an interest in its significance might want to make the changes. However, that factor is not essential to the Tribunal’s decision whether the Place should be registered.
120. Finally, the Council submitted that the Tribunal could find that the Place satisfies criteria in section 10 of the Heritage Act other than (or in addition to) the criterion in section 10(d).
Consideration
121. There was no dispute between the parties that the original Bowden House satisfied the criterion in section 10(d) of the Heritage Act. The extensive photographic and written first-hand evidence suggests that the original Bowden House was a good example of Mr Seidler’s early work in Australia and that it demonstrated identifiable characteristics of the modern movement in architecture in the post-World War II period. The Tribunal agrees that the evidence of the Bowden House photographs and other documents shows that, in its original condition, the Bowden House demonstrated a level of importance sufficient for it to be recognised as having ‘heritage significance.’
122. As noted earlier, the interior of the Bowden House in its current state was not, and is not, considered as part of the assessment of the heritage significance of the Place.
123. Although evidence (including photographs) was given in relation to each of the exterior walls of the house, the focus and emphasis was on the north-west and the south-west elevations, both of which are visible from Northcote Crescent.
124. In the Tribunal’s view, for the purposes of reviewing the Heritage Council’s decision to register the Bowden House, the most significant changes have been made to the roof and to the south-western side of the house. Those changes and their implications for the overall structure and appearance of the house, particularly from the public domain, deserve close consideration.
The Bowden House: the roof
125. In his report, Mr Flannery said “the form of the building is still being retained … that hasn’t been lost and that, to my mind, is the most significant thing about the place.” He noted that “the butterfly roof form is distinctive and is the defining feature of the house.”
126. The Tribunal was presented with conflicting descriptions of the construction of the roof. The document ‘description of place’ prepared by the Heritage Council noted that:
…the roof design was originally detailed specially so that there was no box gutter at the low point of the roof, instead the membrane roof had a ‘valley’ along its length which occurred along the line of the terrace glazing, thus emphasising the axis…this detail was not built. The roofing is metal decking with a box gutter, a possible cost saving measure.
127. In the several texts referred to by the parties and witnesses in this matter, the only detailed reference to the construction of the roof of the Bowden House (other than by Seidler himself in his first book) would appear to be in the 2017 publication An Unfinished Experiment in Living: Australian Houses 1950-65. In his Heritage Assessment Report, Mr Flannery quoted from this latter book as follows:
The Bowden House was Harry Seidler’s first project to be designed in Canberra and an early expression of his later monumental modes of the 1960s … this two-bedroom house was designed as an eroded cube anchored to its lightly wooded site … Seidler’s plan was tight and its footprint small, aiding thermal efficiency in cold Canberra winters. Bedrooms were set on a mezzanine level over a car space, while the entry stair, north-facing terrace and east-facing garden court were all recessed beneath the roof. Its butterfly roof, built-up of bituminous felt and two layers of 42 gauge pure aluminium, was an early example of its kind in Australia …
263. Mr Flannery gave evidence that there was no nomination form for the previous scheme. The Council submitted there had not been a new nomination since that time, so the lack of a nomination form in relation to the Place cannot affect the outcome in this case.
264. Significantly, section 32 of the Heritage Act (referred to earlier) provides that the Heritage Council may decide to provisionally register a place that is not a nominated place. Consequently, the absence of a nomination under the Heritage Act does not prevent the Heritage Council registering a place, so long as the other statutory requirements are met.
265. That issue was also considered in 212 Northbourne Pty Limited v ACT Heritage Council. A differently constituted tribunal concluded that it was not necessary to resolve whether a proper nomination was made since the Heritage Council may also decide to provisionally register a place that has not been nominated for provisional registration under section 32(2) of the Heritage Act, or where the Council mistakenly thought there was a nomination.
266. Counsel for the Council submitted that nothing turns on whether Mr Bowden had a copy of the nomination, or when he had received it (whether in two, 10 or 15 years ago). The only practical consequence of early notification might have been that Mr Bowden might have started earlier to make submissions to the Council.
267. Further, counsel submitted, the Council had gone beyond what is statutorily prescribed. Consequently, Mr Bowden’s complaints about the process were based on what he would like to have happened rather than on any lack of compliance with the applicable law.
268. There is force in the Heritage Council’s submission that Mr Bowden’s real complaint is about the content of the Heritage Act rather than its application or observance by the Council.
269. That point was not lost on Mr Bowden, whose written and oral submissions included a strident and sustained critique of the Heritage Act, which he described (among other things) as “entirely discriminatory, abhorrent to common law and natural justice, hypocritical, adversarial and a vehicle for the easy acquisition of private property rights by the territory government, without compensation. In short, it is an abomination.” Further, he submitted, the Heritage Act “denies consideration of the procedural or financial implications of the ACT Heritage Council’s actions, inaction, neglect, decisions and indecision, and the impact these may have on private property owners.”
270. Those excerpts from his final written submissions are not quoted to give credence to his views but to illustrate the depth of feeling Mr Bowden brought to these proceedings. Indeed, when counsel put to him that his earlier submissions contained inflammatory language, Mr Bowden replied “Possibly, but I was quite inflamed at the time.”
271. Although it appears that the Heritage Council complied strictly with the statutory requirements, the process that it followed was not above criticism. Accordingly, even though any flaws in the process followed by the Heritage Council to register the Place would not affect the exercise of the Tribunal’s powers to decide whether the Place should be registered, it is appropriate to make some observations about the process followed in this case.
272. First, the decision-making process took too long. To spend two decades or more in making a decision of this type, particularly when for most of that period nothing was done to research, assess or otherwise progress the resolution of the issues, was poor public administration.
273. It also flew in the face of the spirit, if not the letter, of the Heritage Act. Although it might be correct to state that there is no statutory period prescribed for the length of time a place could remain nominated for inclusion on the Register, the Act provides that:
(a) ‘as soon as practicable’ after receiving a nomination application, the Heritage Council “must assess” the merits of the nomination application and either dismiss or accept the application;
(b) there is a specified period of provisional registration (which might be extended by the Minister);
(c) there is a specified period of public consultation (which might be extended by the Council); and
(d) ‘as soon as practicable’ after the end of the public consultation period, the Heritage Council must give the Minister a written report that gives the Council’s reason about whether the place should be registered.
274. Although the Heritage Council moved at an appropriate pace from 2017, the 12 year delay between the commencement of the Act and the renewed process was inconsistent with the scheme of the Act (particularly as the Council was proceeding on the basis that it had received a nomination from the Institute of Architects).
275. In that context, it is somewhat disingenuous for the Heritage Council to submit (as it did) that, because there was no decision to register the Place for 18 years, Mr Bowden has not suffered detriment during that period and to suggest that, if anything, he has had longer than usual to contemplate his response to the registration.
276. Second, the Heritage Council did not advise the owners of the status of, or the halt in dealing with, the process toward possible registration of the Place. Rather, probably as a result of inadvertence on the part of the Heritage Council, the owner or owners had no indication for about 17 years from 2000 until 2017 that the decision had not been taken but that the Heritage Council considered that the Place was still subject to nomination (albeit that the process of dealing with the nomination was in abeyance). It was not unreasonable for the owners to conclude that, at least by 2004, the Heritage Council had decided not to register the Place. The response to being informed many years later that the process was still on foot was not surprising.
277. Although that concern might be qualified in light of the post-hearing evidence that the nomination of the Place was on a summary list from the Heritage Register in 2007, it appears that Mr Bowden was unaware of the existence of that ongoing nomination.
278. Third, there was insufficient engagement with the owner or owners of the Bowden House at key points early in the resumed process from 2017. The correspondence in 2017 merely informed the recipient of the process. It did not expressly invite a substantive response, whether by way of information or submission or both. The persons who stood to be most directly affected by the registration of the Place were, in effect, on the sideline until the provisional registration occurred. At that stage they were invited to participate in a public consultation process. More substantive engagement with the owners at an earlier stage might have brought the real issues of concern, as well as material.
279. Fourth, the Tribunal is concerned that, in assessing the heritage significance of the Place, the Heritage Council appears to have relied too heavily on secondary sources and not conducted sufficient primary research about the Place.
280. The following statement by President Curtis in The Salvation Army (NSW) Property Trust and ACT Heritage Council, although made in relation to a different statutory scheme, seems apposite to the role of the Heritage Council under the Heritage Act:
While the Heritage Council is entitled to have regard to the results of the National Trust investigations, it is required by the Land Act to form its own conclusions and it may not simply rely on what is sent to it by the National Trust. It must make its own assessment of the supporting material. Its conclusions must be based on material that rationally supports those conclusions. That material may consist of objective facts, to be ascertained by research, inquiry or observation. It may consist of the expert opinion of experts, including experts from its own membership. When it gives reasons for its decisions, it must be prepared to relate its conclusions to the material on which they are based … Because of the effects that its decisions may have on the interests of others, it must be rigorous in its testing of its material against the statutory criteria in Schedule 2 and not allow the issue to be clouded by describing that material in extravagant terms or stretching it beyond its probative limits.
281. The Tribunal acknowledges again that the Heritage Council was somewhat constrained in making its independent assessment of the Place by Mr Bowden’s reluctance to have members or staff of the Heritage Council access the property and enter the house. Consequently, apart from viewing the house from Northcote Crescent, the Council had to rely on documents, including plans and photographs.
282. When researching the books and articles on which the Heritage Council relied, the Tribunal formed the view that the Council had accepted too readily, and without critical analysis, some of the statements about the significance of the original Bowden House repeated in the literature.
283. In support of that view, the Tribunal notes that the Heritage Council has adopted much of the wording of the entry of the Bowden House on the RSTCA and has provided other statements without attribution. For example, the statement of significance from RSTCA states: “Seidler’s recognition of this house as a key example of his early work highlights the significance of this house for its association with him.” No source is given for the claim that Seidler recognised the Bowden House “as a key example of his early work.”
284. The statement of significance prepared by the Heritage Council for the Interim Heritage Places Register stated: “Seidler’s recognition of this house as a key example of his early work highlights the significance of this house for its association with him.” This is verbatim from the RSTCA and likewise no source is given.
285. The statement of heritage significance (Decision about registration of 11 Northcote Crescent Deakin) stated: “Seidler cites this house as an outstanding example of Bauhaus that typifies his early work in the ACT.” No reference is given to support the statement that Seidler cited this house as an outstanding example of Bauhaus.
286. The description of the Bowden House from RSTCA stated: “Seidler highlights this house in his writings as an example which demonstrates the design philosophy that was central to his architecture during this period of his work.” The reference given is “Harry Seidler, Houses, interiors and projects (sic), Horwitz 1959.” As noted previously, Mr Seidler’s book included the Bowden House and more than 20 of his other houses but did not ‘highlight’ it or any other building as an “example which demonstrates” his design philosophy.
287. The description of the Place for the Interim Heritage Places Register stated: “Seidler highlights this house in his writings as an example which demonstrates the design philosophy that was central to his architecture during this period of his work.” This is verbatim from RSTCA.
288. The Tribunal does not presume to suggest that, had the Heritage Council taken a more thorough or rigorous approach to the documents, the Council’s decision would have been different. These observations are about the way in which the Heritage Council should perform its statutory functions, not about the outcome in a particular case.
The limitations or constraints on the use of the Place as a consequence of registration
289. In his written submissions, Mr Bowden referred to the “greatly diminished control” that he has over the property and the “greatly diminished opportunity for development and improvement of the property.”
290. Speaking as the current owner of the Bowden House, he stated that no owner contemplating investment in the property would be interested in its regression. Rather, they would be interested in further expansion, which is limited by the position, orientation and style of the house.
291. That statement echoes what Ivor Bowden wrote on 6 April 2000 that the original house was (by current standards) small for the size of the block, and prospective purchasers would expect to be allowed to have a house of a size commensurate to the size of the block and the rates payable in relation to it. Indeed, he suggested that a prospective purchaser would wish to make “substantial additions/alterations or to demolish and start afresh.” Further, Mr Bowden contended that there have been “five generations of changes” to the house, some of which were not faithful to the original building, but all of which would have to be maintained if the house remains listed on the Register.
292. The Tribunal notes that the Registration Notice of November 2018 included the following conservation objective:
The guiding conservation objective is that 11 Northcote Crescent, Deakin shall be conserved and appropriately managed in a manner respecting its heritage significance.
The ACT Heritage Council may adopt heritage guidelines applicable to the place under s25 of the Heritage Act 2004.
For further information on guidelines applicable to the place, or for advice on proposed works or development, please contact ACT Heritage on 13 22 81.
293. No heritage guidelines were adopted in relation to the Place. Nor was there any evidence of any actual (rather than perceived or anticipated) limitations on what might be done at the Place after its registration. Mr Flannery gave evidence that if, for example, a development application was lodged in relation to a heritage registered property, the Heritage Council would take the opportunity to comment to the planning authority about the appropriateness or otherwise of any proposed alterations or additions. In the present case, however, he stated that the Council was “not concerned.” It would not be concerned if the owner wanted to make certain alterations to the garden (for example to pull out a bush or plant a new tree, or build a planter bed for a vegetable garden) or install a new driveway.
294. Where “significant structures” were being built on the property, the Council would like the opportunity to comment about such things as the design of a major extension to the house or the possibility of a dual occupancy. The Council would be unlikely to reject, in principle, a second residence at the back of the block but might have grave concerns about the construction of a structure at the front of the block which obscured the view of the Bowden House. Anything that did not need a development application (including changes to the interior of the house) would not trigger referral to the Council.
295. Also, as noted earlier, Mr Flannery wrote to Mr Bowden on 6 July 2018 to reassure him that the Heritage Council was not asking him to reinstate his home to its original form.
296. The Heritage Council submitted that whether or not Mr Bowden would undertake any reversals to restore the house to its original appearance, the point of conservation by way of heritage registration is that future generations are not deprived of such an opportunity because of what one owner at a given point of time might wish to do.
297. Mr Bowden described the registration of the Place as “highly restrictive” and the earlier Development Control Plans as “exceedingly onerous or limiting.” He said that, had he been aware of the preparations for provisional registration of the Place in 2004-2005, he would have made a different investment decision about the house. He contended that the heritage listing has removed the opportunity for any development and improvement and has greatly reduced the market for an old, small house on a large block.
298. Some basis for Mr Bowden’s concerns can be found in the conservation objectives and specific requirements for conservation objectives considered by the Heritage Council in about 2004. However:
(a) those possible constraints were developed under the Land (Planning and Environment)Act 1991, relevant provisions of which were replaced by the Heritage Act in 2005; and
(b) because the Heritage Council did not decide to register the Place under the previous Act, no conditions were imposed on its use.
299. Mr Bowden’s submissions have force only if the registration in 2018 was coupled with restrictions on the use of, or changes to, the Place. No heritage guidelines were adopted in relation to the Place.
300. The Heritage Act empowers the Heritage Council to make heritage guidelines in relation to the conservation of a registered place, and sets out examples of matters about which guidelines may be made including demolition of registered structures and alterations and additions to registered buildings. However, the Heritage Council may make heritage guidelines only after a process of public consultation about proposed heritage guidelines and the notification of each interested person about the proposed guidelines. The Heritage Council would need to be satisfied on reasonable grounds that making the guidelines promotes the effective conservation of the Place. A guideline is a disallowable instrument.
301. The Heritage Council stated in its further written submissions in reply that it is not a necessary consequence of registration that Mr Bowden would be compelled to maintain the Place as though “frozen” in time. Rather, the registration seeks to restrict the heritage significance of the place from being diminished.
302. The Tribunal is satisfied that, despite the registration of the Place, there is currently no express restriction on the use to which the Bowden House or the surrounding land can be put. Mr Bowden’s concerns are based on apprehension of what might happen rather than what has happened. Given that the Tribunal has decided that the entry about the Place should be removed from the Heritage Register, it is not necessary to say anything more about this matter.
The economic implications of registration
303. Mr Bowden submitted that the registration of the Place will have adverse economic implications for the owner, including a reduction in the market value of the Place, with consequential reduction in return on investment and capital gain achievable from the Place. As noted earlier, that concern was raised by Ivor Bowden in his letter dated 6 April 2000, where he expressed the opinion that the registration of the house “would appreciably reduce the sale price of the property.”
304. Mr Bowden did not provide any market or other evidence to support his submissions on the supposed economic implications of entering the Place on the Register. The Tribunal accepts, however, that if the consequences of registration were to include an obligation to do certain work (or refrain from doing certain work) at the Place, there would be financial implications for the owner. In response to questions from Mr Bowden, Mr Flannery stated that the Heritage Council never undertakes real estate valuations of properties about which it makes decisions, and does not look at the economic impact of the decisions it makes. Indeed, the Council does not undertake financial assessments of properties “for any reason whatsoever”.
305. In its submissions about the possible economic impact of the decision to register the Place, the Council argued that what Mr Bowden contended was mere assertion. There was no expert or other evidence that the registration of the Place had any detrimental effect on the market value of the property. More significantly for this case, counsel submitted that, in accordance with the provisions of the Heritage Act, the Heritage Council is to focus on the system for registering and conserving property that has cultural or natural significance, and related matters. The Council must have regard to the purposes of the Heritage Act and its functions under that Act. The Heritage Act does not mention, and the Council does not consider, the economic impact of its decisions to enter a place on the Register.
306. Given:
(a) the Tribunal’s conclusion that the Place in its current state does not satisfy any of the ‘heritage significance’ criteria; and
(b) the lack of evidence of the possible financial implications for the owner of the registration of the Place,
it is neither necessary nor appropriate for the Tribunal to express a view on Mr Bowden’s submissions.
307. The Heritage Council’s submissions, however, invite some consideration of whether, in the exercise of its discretionary decision-making power, the Council should consider only the cultural or natural significance of places and objects.
The scope of the Heritage Council’s discretion under section 40 of the Heritage Act
308. In the course of making final oral submissions, counsel for the Heritage Council suggested that the Council might have some discretion to take into account economic considerations when deciding, under section 40 of the Heritage Act, whether to enter a place on the Register. Counsel suggested that any such discretion is limited and might not be available in circumstances where criteria for registration were clearly satisfied, particularly as the Council has to have regard to the purposes of the Heritage Act and the purposes of its functions, which are about maximising conservation.
309. As noted earlier, section 32 of the Heritage Act provides that the Heritage Council may provisionally register a place only if the Council is satisfied on reasonable grounds that the place is likely to have ‘heritage significance.’ Although that level of satisfaction is a precondition to a decision to provisionally register a place, the Heritage Council is not obliged to provisionally register a place once the Council has that level of satisfaction. It follows that the Council has some discretion in making the decision not to provisionally register such a place, and the Heritage Act does not specify what circumstances or factors the Council might take into account when exercising its discretion.
310. Some guidance can be found within the Heritage Act including:
(a) the long title of the Act “to provide for the recognition, registration and conservation of places … of … cultural significance”;
(b) the objects of the Act, including establishing “a system for the recognition, registration and conservation of… places… that have cultural significance”;
(c) the requirement that a function under the Heritage Act “must be exercised in a way that, as far as practicable, achieves the … conservation of’ places with heritage significance”; and
(d) the functions of the Heritage Council, including “to identify, assess, conserve and promote’ places in the ACT with cultural heritage significance, and ‘to encourage the registration of heritage places.”
311. Section 40(1) of the Heritage Act provides that, if a place is provisionally registered, the Council must either:
(a) decide to register the place … under this division by—
(i) entering the registration details for the place or object in the register; and
(ii) removing the indication that registration is provisional; and
(iii) preparing written notice of the decision; or
(b) decide not to register the place … under this division by preparing a written notice stating—
(i) the decision; and
(ii) the date the decision takes effect (the cancellation date).
312. Again the Heritage Council has a discretion when dealing with whether to register or not register a place that is provisionally registered.
313. The extent of that discretion was not the subject of detailed legal submissions in this case. Nor, given the Tribunal’s conclusion that the Place does not satisfy any of the ‘heritage significance’ criteria, is it necessary or appropriate for the Tribunal in this case to express a view about the scope of that discretion.
314. The Tribunal notes, however, that in his decision, in the Salvation Army case, ACTAAT President Curtis also referred to the effects on landowners and other property owners of a decision by the Heritage Council to list buildings or land:
I think it is necessary to say something about the decision-making processes of the Heritage Council as revealed in these proceedings. It has a most important role to play in preserving our heritage before that heritage is swept away by the progress of time or the re-development of the city. But it must also be concerned with the effects of its decisions upon those who are affected by them. In particular, its decisions as to the listing of buildings or land can impose substantial economic burdens on landowners and other property owners. The Constitution of the Territory, the Australian Capital Territory Self-Government Act 1988, renders invalid any acquisition of property by the Territory unless the acquisition is on just terms. This protects an important civil right. A heritage listing such as the one in issue in these proceedings results in a significant diminution of the owner’s rights in respect of his or her property. The diminution results from the limitations on the owner’s rights in respect of the property considered necessary to protect the public interest in our common heritage. While it may not technically amount to an acquisition of property for a public purpose and thereby attract the protection of the just terms requirement–a matter as to which I express no view–it has an equivalent effect on the property owner. In a case such as the present it is not simply the economic burden of a building which, although still used, is no longer useful for the purpose for which it was built, nor is it well-suited to the uses to which it is now put.
315. In the subsequent decision in 212 Northbourne Pty Limited v ACT Heritage Council, a differently constituted tribunal noted that “registration of a building can have significant legal consequences, in particular for the owner of the building.” That statement needs to be read in the context of the decision as a whole, including observations about the main objects of the Act and the functions of the Heritage Council, and the tribunal’s conclusion that meeting one of the criteria in section 10 does not mandate registration, it simply enables it. The tribunal noted, without expressing a view about, the Heritage Council’s submission that, having regard to provisions of the Heritage Act, the refusal to decide to register a place which is of heritage significance should be rare.
Orders
316. For the reasons given above, the Tribunal orders that:
(a) the decision of the ACT Heritage Council on 15 November 2018 to enter 11 Northcote Crescent, Deakin Block 8 section 9, Deakin on the Heritage Register be set aside; and
(b) the entry be removed from the Heritage Register.
………………………………..
President G Neate AM
For and on behalf of the Tribunal
HEARING DETAILS
FILE NUMBER:
AT 112/2018
PARTIES, APPLICANT:
Michael Bowden
PARTIES, RESPONDENT:
ACT Heritage Council
COUNSEL APPEARING, APPLICANT
N/A
COUNSEL APPEARING, RESPONDENT
Ms P Bindon
SOLICITORS FOR APPLICANT
N/A
SOLICITORS FOR RESPONDENT
ACT Government Solicitor
TRIBUNAL MEMBERS:
President G Neate AM
Senior Member R Pegrum
DATES OF HEARING:
28 March 2019
29 March 2019
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