G Global 180Q Pty Ltd v Brisbane City Council
[2023] QPEC 5
•16 March 2023
PLANNING AND ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
G Global 180Q Pty Ltd v Brisbane City Council & Anor [2023] QPEC 5
PARTIES:
G GLOBAL 180Q PTY LTD
(Appellant)v
BRISBANE CITY COUNCIL
(Respondent)&
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, INFRASTUCTURE, LOCAL GOVERNMENT AND PLANNING
(Co-respondent)
FILE NO/S:
1670/2021
DIVISION:
Planning and Environment Court
PROCEEDING:
Appeal
ORIGINATING COURT:
Brisbane
DELIVERED ON:
16 March 2023
DELIVERED AT:
Brisbane
HEARING DATE:
13 June 2022; 14 June 2022; 24 October 2022; 26 October 2022
JUDGE:
Rackemann DCJ
ORDER:
The further hearing of the appeal is adjourned to enable the parties to prepare minutes of order.
CATCHWORDS:
ENVIRONMENT AND PLANNING – HERITAGE –PLANNING SCHEMES AND INSTRUMENTS – where the Appellant appealed against certain conditions for building works involving partial demolition and internal alterations and a material change of use for centre activities (office) in respect of a building – where the building was a State Heritage Place (SHP) under the Queensland Heritage Act 1992 (Qld) – where the building is in the Classical revival style – where the second and third floors still substantially retain their original layout and finishes – where the Appellant now wishes to alter the layout of those floors to a more open design – whether on a proper construction of the entry in the Queensland Heritage Register the internal layout and finishes of Levels 2 and 3 are part of the cultural heritage significance of the building – whether recourse ought be had to expert evidence.
CASES:
Goldicott v Brisbane City Council [2020] QPELR 1153.
LEGISLATION:
Planning Act 2016 (Qld).
Queensland Heritage Act 1992 (Qld).
COUNSEL:
M Batty and J Bowness for the Appellant.
R Yuen for the Respondent.
D O’Brien and K Buckley for the Co-Respondent.
SOLICITORS:
Connor O’Meara for the Appellant.
Brisbane City Council Legal for the Respondent.
Corrs Chambers Westgarth for the Co-Respondent.
Introduction
This appeal is against certain conditions attaching to an approval of the appellant’s application for development permits for building works involving partial demolition and internal alterations and a material change of use for centre activities (office) in respect of the building situated at 180 – 182 Queen Street, Brisbane and known, for historical reasons, as the National Australia Bank.
The building, or more correctly, the place where it stands, is a State Heritage Place (SHP) under the Queensland Heritage Act 1992 (QHA) and the co-respondent was a referral agency for the development application. The place is also mapped under the respondent’s planning scheme (City Plan) as within a heritage overlay.
Constructed in 1929-30, the National Australia Bank is a 7-storey building with an impressive main sandstone façade, in the Classical revival style. The ground floor contained the main banking chamber, with a mezzanine level. That has, in recent years, been tenanted by a well-known national retailer. It is presently being prepared for a different retailer. The appeal does not relate to that part of the building.
The upper floors of the building, accessed by a separate lift, are fitted out for a range of tenancies. The internal layout and finishes on most of those levels have been modified over time, but the second and third floors still substantially retain their original layout and finishes. They present as a virtual “rabbit warren” of tiny, individual tenancy spaces.[1] Understandably, from its perspective, the appellant now wishes to alter the layout of those floors to a more open design. The conditions, the subject of the appeal would, in effect, prevent the appellant from altering the internal layout of Levels 2 and 3 as it wishes. That is the point of controversy.
[1]Ex. 4.02, para 24(a).
When the hearing commenced there were a number of issues in dispute. The hearing was unfortunately interrupted, because I contracted Covid-19. By the time the hearing was able to resume the parties had agreed that the only issue the Court need consider is whether, on a proper construction of the entry in the Queensland Heritage Register (QHR), under the QHA, the layout and finishes of Levels 2 and 3 are part of the cultural heritage significance of the building.
It is agreed by the parties that:
(a)if the answer to the question is “yes”:
(i)the proposed development would have a detrimental impact or unacceptable impact on the “cultural heritage significance” of Levels 2 and 3 of the NAB building, including the original layout and original finishes of Levels 2 and 3;
(ii)as a consequence, the conditions disputed by the appellant, are lawful conditions pursuant to s 65(1) of the Planning Act 2016 (PA); and
(iii)the appeal should be dismissed.
(b)if the answer to the question is “no”:
(i)the proposed development would not have a detrimental impact or unacceptable impact on the “cultural heritage significance” of Levels 2 and 3 of the NAB building, including the original layout and original finishes of Levels 2 and 3;
(ii)as a consequence, the conditions disputed by the appellant are not lawful conditions pursuant to s 65(1) of the PA;
(iii)the appeal should be allowed; and
(iv)the Court should grant an approval to undertake the development without the conditions disputed by the appellant.
Whilst framed as a question of construction, the contentions of the respondent and co-respondent rely not just on the words appearing in the QHR, but also on recourse to expert evidence, particularly that of the historians.
The statement of significance
It has already been noted that in addition to being a State Heritage place, the place also falls within a heritage overlay under City Plan. That makes the Heritage Overlay code relevant. That code is supported by the Heritage Planning Scheme Policy. The criteria for premises to be included in the overlay mirror the criteria under the QHA, save that they refer to the city or local area rather than the State. In the case of the subject building no separate citation, in relation to the designation of the place under the Heritage Overlay, has been prepared. That is a circumstance which also applied in Goldicott v Brisbane City Council[2] where, in the reasons for judgment, some comment was made about the Council’s failure to clearly state the basis of the designation under its own planning scheme.[3] It was common ground, as in Goldicott, that it should be taken that the basis for the designation in City Plan is the same as that for the Queensland Heritage Register (QHR) under the QHA. It is that entry to which the parties’ submissions were directed.
[2][2020] QPELR 1153.
[3]At [140].
Section 31(3) of the QHA provides that an entry in the QHR for each place or area must, amongst other things:
(a)include enough information to identify the location and boundaries of the place or area; and
(b)include information about the history of the place or area; and
(c)include a description of the place or area; and
…
(e)for a State Heritage Place – include a statement about the cultural heritage significance of the place related to the cultural heritage criteria;
….
I will refer to the statement required by s 31(3)(e) as the Statement of Significance. Such a statement is of obvious importance, not least to the owner of the place. So much is reflected in s 34 of the QHA which, whilst permitting the Chief Executive to make some changes to an entry in the QHR provides, in sub-section (2), that the Chief Executive must not, without the written agreement of the owner of a Queensland Heritage place[4] and the Council, change a statement mentioned in s 31(3)(e) or (f) (a Statement of Significance), unless the change is a minor change. The Statement of Significance, being one that is required to be about the cultural heritage significance of the place related to the cultural heritage criteria, should be one that is informative in relation to each relevant criterion.
[4]Which is defined to include a State Heritage place.
The following propositions, taken from Goldicott[5] were uncontroversial:
(i)the cultural heritage significance of the place is that described in the Statement of Significance in the QHR, rather than what experts might now consider its significance to be, on the basis of a fresh assessment;
(ii)although a Statement of Significance may be for the place as a whole, it does not follow that every feature within the place contributes to its cultural heritage significance; and
(iii)whilst other parts of the entry in the QHR (such as the description of the place and information about the history of the place) might provide relevant context in assisting the proper construction of the Statement of Significance, reference to a particular feature in those other parts of the entry does not necessarily mean that the entry ascribes cultural heritage significance to it.
[5]At [116], [117], [123] and [129].
The name of the heritage place, in the QHR, is the National Australia Bank, but the heritage place is the whole of the property on which the building stands. The Statement of Significance is as follows:
“National Australia Bank is a place that satisfies one or more of the criteria specified in s.31(1) of the Queensland Heritage Act 1992 as evidenced by, but not exclusive to, the following statement of cultural heritage significance, based on criteria:
Criterion A
The place is important in demonstrating the evolution or pattern of Queensland’s history.
(Criteria under review)
Criterion D
The place is important in demonstrating the principal characteristics of a particular class of cultural places
The National Australia Bank is a fine example of a 1920s bank with Classical elements reflecting the solidity of a financial institution.
Criterion E
The place is important because of its aesthetic significance
The building is significant for its contribution to the streetscape in terms of style, scale, and texture, in conjunction with the adjoining Finney Isles building.
The construction
There are a number of things to note about that Statement of Significance. First, the introductory words “but not exclusive to” cannot validly reserve the right to contend that the cultural heritage significance of the place extends beyond that otherwise described in the Statement of Significance. As in Goldicott,[6] the Statement of Significance should be read as confined to what follows in relation to each relevant criterion. There was no contention to the contrary.
[6]Supra at [125], [126].
Second, the description “criteria under review” in that part of the Statement of Significance relating to Criterion A does not answer the description of “a statement about the cultural heritage significance of the place related to the cultural heritage criteria” as required by s 31(3)(e) of the QHA. No reliance could be, or ultimately was, placed on that criterion.
Third, the internal layout and finishes of Levels 2 and 3 are irrelevant to the Statement of Significance in relation to Criterion E. The debate focused upon Criterion D only.
The Statement of Significance for Criterion D makes no mention of Levels 2 or 3 or, more particularly, their layout and finishes. Rather it refers to the place as a bank built in the 1920s (i.e. a 1920s bank) with Classical elements reflecting the solidity of a financial institution (i.e. the banking institution). At least at first blush, the layout and finishes of the tenancies on Levels 2 and 3 would appear to be of no relevance to the Statement of Significance in relation to Criterion D.
Parts of the other sections of the entry in the QHR provide context to what is written in the Statement of Significance with respect to Criterion D. In that regard:
(i)the part of the entry which gives information about the history of the place states that the building “was an example of the pervasive fashion for the neo-classical style in commercial and civic buildings, of similar scale and materials during the period”. Indeed, leaving the Statement of Significance itself to one side, that is the only thing which the balance of the entry describes the building as an example of; and
(ii)the part of the entry which describes the place refers to the main façade of the building as being in the “Classical Revival style” and describes elements that are of that style.
Although expressed in slightly different ways, the submissions on behalf of the respondent and on behalf of the co-respondent are to the effect that the Statement of Significance attaches significance to the place under Criterion D as a fine example of a 1920s bank by reason of characteristics it shares with 1920s bank buildings more generally, that are not mentioned in the Statement of Significance for Criterion D, as well as for its Classical elements. In this way, the submissions distinguish between what were referred to as two limbs or elements of the Statement of Significance with “the National Australia Bank is a fine example of a 1920s bank” being the first and “with Classical elements reflecting the solidity of a financial institution” being the second.[7] It was not suggested that the layout or finishes of Levels 2 or 3 have anything to do with the second limb or element. It was contended however, that they are identifiable as part of what makes the place important under the first limb or element, by recourse to expert evidence, particularly of the historians.
[7]I note however, that it was submitted, for the respondent, that the Classical elements are themselves part of the principal characteristics of a 1920s bank for the purposes of Criterion D – T2-49 – in referencing the transcript I have followed what appears in the transcript in relation to the day of the hearing. Accordingly, T2-49 is from 26 October 2022, which was the second day of the resumed hearing, after the matter was earlier adjourned part heard.
It was submitted, for the appellant, that it is wrong to break the Statement of Significance up in that way. It was said that impermissibly sets up a “test within a test” of whether the building is a fine example of a 1920s bank, divorced from the following words in the Statement of Significance.
It was submitted that to treat the Classical elements as only something that is additional to the importance of the building as a fine example of a 1920s bank or expands upon its importance otherwise, is to give effect to the ordinary meaning of the word “with” as accompanied by or accompanying. It was pointed out that a 1920s bank building with Classical elements has more than just its Classical elements. The same definition from the Macquarie Dictionary upon which reliance was placed however, goes on to refer to “with” also being used to mean “characterised by or having”. The example given in that dictionary is a man with long arms.[8] Such a man has more than long arms, but it is his long arms that are his significant characteristic. The appellant called that meaning in aid.
[8]I note that the respondent’s written submissions also referred to this meaning.
It was submitted that if the Classical elements are the only matters of significance, then the Statement of Significance need not have referred to the building as a 1920s bank at all.[9] The nexus between the Classical elements and the fact that the building is one that was built in the 1920s for a bank is however, apparent on a reading of the Statement of Significance in the context of the history section of the entry in the QHR. The history section of the entry refers to the building’s neo-classical style being pervasive in commercial and civic buildings of a similar scale and materials during the period. Further, the use of that style achieved the effect referred to in the Statement of Significance; that is, to reflect the solidity of a financial institution, being, in this case, the relevant banking institution. In this way, the fact that the building was built in the 1920s for a bank and that it has Classical elements with the identified effect, work together.
[9]T2-52, T2-79.
In support of the contention that the second limb/element is to be distinguished from the first, it was said that Classical features were not a defining characteristic of 1920s banks.[10] That however, sits comfortably with the construction contended for by the appellant, that the importance of the place, for the purpose of this criterion, does not lie in it being a 1920s bank per se, but in it being a fine example of such a thing with Classical elements, reflecting the solidity of a financial institution.
[10]T2-7.
Attention was drawn to other parts of the entry which, in the history section, refers to the upper floors being occupied by various professional tenants and, in the description section, refers to the second and third floors retaining their original office layout and finishes. Those sections of the entry, in full, are as follows:
“History
This building, constructed 1929-30, replaced an earlier bank which had erected in 1891 for the Royal Bank of Queensland. In 1917 the Royal Bank of Queensland merged with another Queensland bank, the Bank of North Queensland to form the Bank of Queensland. In 1992, the Bank of Queensland was absorbed by the National Bank of Australasia and several years later decided to build a new bank on the site.
Designed by Melbourne architects A & K Henderson with assistance from local firm of Atkinson, Powell and Conrad, the contractor was G A Stronach, with the technical advice of Thomas Walker Pearce. It was an example of the pervasive fashion for the neo-classical style in commercial and civic buildings, of similar scale and materials during the period. The building was opened on 6 May 1930 and its lavish fittings and imposing style attracted favourable comment. Prominent features of the building included the large bronze doors in the Queen Street entrance, separate lifts for tenants, and a special women’s banking section fitted with lounge, retiring room, writing facilities and telephone. Over the years various professional tenants have occupied the upper floors – solicitors, doctors, accountants, architects, and optometrists.
The new building, like its predecessor, served as the head office of the National Bank of Australasia in Queensland until 1948 when it absorbed the last of the distinctively Queensland banks of the nineteenth century, the Queensland National Bank. The new head office was set up in the former QN Bank building on the corner of Queen and Creek Streets. In 1983 the NBA merged with the Commercial Banking Corporation to form the National Australia Bank.
Description
The National Australia Bank Central Branch, located at 180 Queen Street, is a seven storey structure with a steel frame and reinforced concrete floors and roof. The external walls are brick with sandstone facing and a granite plinth on the front façade. The sandstone is from Yangan, Queensland and the granite from Uralla, New South Wales.
The main façade, in the Classical Revival style, is divided into five vertical bays. The three central bays are distinguished by flanking giant order pilasters which extend from above the ground floor level to the cornice line below the parapet.
The openings on the upper level have semicircular arches. The three central openings have individual balconies with balustrading and a projecting cornice/balustrade that returns to the flanking side bays. These are plainer with narrower openings. The original glazing on the building has been replaced by aluminium framed glazing to a similar pattern.
At the ground floor level the building has four engaged Doric columns above the granite plinth and flanking the three entrance doorways. Over these is an entablature that has balustraded balconies to the first floor level.
The ground floor contains the main banking chamber with a mezzanine level, partly renovated. Much of the plaster detailing in the chamber remains. The vestibule and adjoining lift lobby have finely figured marble linings. The second and third floors retain the original office layout and finishes, but other levels have been modified to accommodate larger tenancies. The relatively austere basement contains carefully detailed security grilles and a strong room.”
The extent to which those parts of the entry provide context to what is written in the Statement of Significance, in relation to Criterion D, has already been discussed in paragraph 16 of these reasons. It was submitted that unless the construction for which the respondent and co-respondent contend is accepted, some other parts of what is written in the history and the description will have no work to do.[11] I do not agree.
[11]T2-39.
What appears in the history part of the entry is in observance of the requirement, pursuant to s 31(3)(b) of the QHA, for the entry to include information about the history of the place. Similarly, what appears in the description part of the entry is in observance of the obligation, pursuant to s 31(3)(c) of the QHA, to include a description of the place in the entry. What is said has work to do in that way. As has already been observed, not everything said in those parts of the entry, in observance of those requirements, must also necessarily be an aspect of the Statement of Significance prepared in observance of the requirement in s 31(3)(e) of the QHA. In any event , even if one were (erroneously) to assume that everything in those other parts of the entry must necessarily have been written with some aspect of the Statement of Significance in mind, it would be difficult to know, with certainty, the extent to which the drafter, in this case, might have included things in those other parts of the entry because of Criterion A (which was apparently “under review”).
It may be noted that:
(i)whilst the occupation of the upper floor by tenants and the original office layout and finishes of the second and third floors are referred to in those other parts of the entry, they are only described as matters of fact and, unlike the Classical elements, are not referred to in the Statement of Significance in relation to Criterion D; and
(ii)those other parts of the entry do not discuss 1920s bank buildings generally.
Recourse to expert evidence, particularly of the historians,[12] was said to be justified in order to determine, for the purpose of the Statement of Significance, the otherwise unidentified characteristics which make the building a fine example of a 1920s bank, if the construction urged by the respondent and co-respondent is accepted. Senior counsel for the co-respondent put the justification for this on the basis that expressions like “1920’s bank” have a particular meaning for the experts.[13] Counsel for the respondent put it on the basis that the Court should turn to the historical facts as established by the evidence of the historians.[14]
[12]Whose evidence was the focus of the submissions in this regard.
[13]Written submissions on behalf of the co-respondent, para 47.
[14]T2-53 and T2-55.
The historians addressed what they considered to be a “key question” of “how is the building a fine example of a 1920s bank?” and “what are the attributes of a 1920s bank building?”. It was a first limb/element exercise on the construction contended for by each of the respondent and the co-respondent. They considered other CBD banks built in Brisbane in the 1920s and came to the conclusion that banks built in that era were distinguished from their predecessors by three principal characteristics;[15] being high rise buildings, with provision for tenancies and offering a diversity of banking functions and services. They were also said to have had other “key attributes” shared with their predecessors, including a façade with quality materials and designed with the intention to impress and stand out in the street and public spaces similarly designed to impress, notably the banking chamber.[16]
[15]Ex. 4.01, para 93.
[16]Ex. 4.01, para 94.
The expression “1920s bank”, where it appears in the Statement of Significance is, in my view, simply a reference to a building built in the 1920s for a bank. On the face of the Statement of Significance, the importance of the place, for the purposes of Criterion D, lies in it being a fine example of such a building having (i.e. with) Classical elements reflecting the solidity of a financial institution, being the banking institution associated with the building. There is no need or warrant for recourse to the views of experts, as to whether, in their view, the place is also important in demonstrating things that buildings built for banks in the 1920s otherwise had. It is the Statement of Significance which is the effectual identification of the cultural significance of the place related to the criterion. The appeal ought be allowed on that basis.
The expert evidence
It was submitted, for the appellant, that, in any event, the expert evidence does not, establish that the layout and finishes of Levels 2 and 3 are part of what makes the building a fine example of a 1920s bank, if that were the issue. In particular, it was submitted that, on the evidence, any significance of the tenancies lay in the use of the floors to produce an income source and also to contribute to the size of the building, rather than in their internal layout.[17]
[17]Written submissions for the appellant, para 64.
The things which the historians agreed were the principal characteristics distinguishing 1920s banks from their predecessors, as identified earlier, have either been overtaken by time (diversity of banking functions and services) or are unaffected by the appellant’s proposal (a high-rise building with floors above the former banking chamber to accommodate tenancies). So much was acknowledged by senior counsel for the co-respondent,[18] subject to the observation that the layout of the tenancies would change on the levels in question.
[18]T2-70.
The joint report of the historians (JERH) discussed the history of Australian banks in the 1920s. It notes that the country’s financial institutions were left licking their wounds for years after the 1892 financial crash, but that the 1920s saw a boom in the construction of bank and insurance buildings. In 1929, banks were erecting, or proposing to erect, magnificent structures in practically every capital city and even in small country towns. It was a competitive and dynamic period in the financial sector, with the desired image of security and strength manifested in the architecture, external and internal.[19]
[19]JERH para 66.
It was against that background that Ms Rosen, the historian engaged by the appellant, observed[20] that a “common theme” was the opulence and spaciousness of the banking areas in contrast with the modest functionality of the professional suites. She referred to the stark contrast in fabric and form that physically distinguished the bank and non-bank functions. That was relied on in the submissions for the respondent and the co- respondent, in contending that it is important to preserve the contrast, although it was made clear that the only point of contrast relied upon was as to layout. No point was made about relative opulence.[21]
[20]JERH para 78.
[21]T2-68, 69.
Ms Rosen did not say that the contrast of which she spoke led to the layout of the tenancies being significant. Indeed she said that she had only been able to find one detailed description of the tenancy floors in her review of 10 years of detailed commentary and criticism of finance sector architecture on Australia’s east coast in the industry trade journal Building. She took that to be a reflection of the disconnect between the commercial tenancies and the bank, as a bank.[22] She went on to say that no images of the tenancy floors were found, which she took to be a reflection of their utilitarian function. She contended that the real interest in trade journal reviews of bank buildings was the banking chamber and other bank related areas, which she specified.[23]
[22]Ex. 4.01, para 39.
[23]JERH para 79.
The historians retained by the respondent and by the co-respondent rejected the proposition that there was such a distinction between the banking areas and the tenancies. Whilst they acknowledged a hierarchy of fabric and form, they said that the contrast was instead between the more public spaces and other spaces, including banking and non-banking spaces.[24] Whilst some reliance was sought to be placed, in submissions, upon the fact of the hierarchy of which they spoke, it was a point they made in rebuttal of Ms Rosen, rather than in support of any assertion of importance in the original layout and finishes of the tenancies. I do not consider that the position of the respondent or co-respondent is advanced by these parts of the evidence.
[24]Ex. 4.01, para 80.
Ms Rosen expressed the opinion that Floors 2 and 3 are not significant elements of the bank, because they were not associated with banking or part of the experience of going to the bank.[25] Whilst I appreciate her point, referred to earlier, about the tenancies not being the matter of real interest, the reason given for her ultimate conclusion is difficult to reconcile with her acceptance that tenancies were one of the principal characteristics distinguishing 1920s bank buildings from their predecessors. That is not to say however, that the particular layout and finishes of the floors in question are material to the importance of the place.
[25]She also considered that a fair proportion of the fabric claimed to be original is not, but the appellant did not pursue this and the matter was litigated on the basis that the levels in question substantially retain their original layout and finishes.
The historians engaged by the other parties expressed the following conclusion in the JERH:
“105TB and SH are of the opinion that the tenancies are an important part of the significance of the place as discussed in paras 101 and 102. The proposed works as outlined in the development application would diminish the significance of the place as the remaining evidence of the original tenancies of the 1920s bank would be lost.”
In paragraphs 101 and 102 of the JERH they had said:
“101TB and SH are of the opinion that the tenancies were an integral part of the bank building and the National Bank’s business model. Tenancies provided an invaluable source of income. As discussed in para 31, by the mid-1920s the bank had adopted a different business model, whereby it was important on valuable CBD blocks to maximise the return on their asset. This was achieved by constructing buildings that accommodated specific bank operations as well as several floors of tenancies. The extra floors for tenancies had another important value. While the bank building only needed to be two or three storeys high for the bank’s use, the additional floors for tenancies enable the National Bank (and the other banks) to build much higher buildings that became very prominent in the CBD streetscape.
102TB and SH are of the opinion tenancies are an important part of the significance of the place. Levels 2 and 3, in particular, demonstrate the original form and planning of the tenancies. The original planning has remained substantially unaltered as evident in the original drawings. The size of rooms, doors, corridors, location of windows, kitchen, toilets, safes, and locations of stairs and lifts are substantially as built. These attributes tell an important story about bank buildings and banking and commercial life in Brisbane in the 1920s and 1930s.”
In paragraph 101 the following opinions are expressed in relation to the tenancies:
(i)they were an integral part of this building;
(ii)they were an integral part of the National Bank’s business model;
(iii)they provided a source of income; and
(iv)they increased the height of the building.
None of those propositions establishes, or even materially supports, a contention that the particular layout and finishes of the tenancies demonstrates or exemplifies anything of significance in relation to whether the building is a fine example of a 1920s bank. Earlier, in paragraph 97, those experts had referred to the considerable effort and cost that had gone into providing offices that would appeal to prospective tenants, usually professionals, but that was in support of the proposition that the accommodation of tenants was of importance for this building.
In paragraph 102 of the JERH the opinion is expressed that the tenancies are an important part of the significance of the place. The paragraph goes on to describe how those floors are essentially in their original form, before it is said that
“These attributes tell an important story about bank buildings and banking and commercial life in Brisbane in the 1920s and 1930s.”
The reference to banking and commercial life might potentially be relevant to Criterion A, but that criterion is, as has been noted, irrelevant. There is no elaboration on the asserted “important story”. There seems to be a leap from the propositions in paragraph 101 and the observation that the tenancies remain substantially in their original form, to the conclusion that the existing form of the tenancies on Levels 2 and 3 of this building are of significance such that their loss would dimmish the significance of the place. I do not accept that conclusion as it relates to Criterion D.[26]
[26]Mr Blake also prepared an individual statement of evidence (exhibit 5.02) that made like points which I need not traverse again. It also presents a mock image of how the building might have looked if it had been designed without floors to accommodate tenancies. That is not to point in relation to the issue about the internal layout and finishes of the particular floors in question.
In paragraph 103 of the JERH Ms Rosen said that she was “also of the opinion that floors 2 and 3 are an integral part of the design characteristics of 1920s financial head office and/or capital city buildings and part of their business model”, but I read that as referring to the integral nature of the tenancies point made by the other historians in paragraph 101, rather than a point about the particular layout and finishes. Whilst she goes on, in the same paragraph, to refer to aspects of the layout, that is in support of her point about the offices not being seen to be part of the banking function.
If it were right to have resort to expert opinion evidence to identify the aspects of the building which make it a fine example of a 1920s bank per se, for the purposes of Criterion D, I would, for the reasons given, find that they did not extend to the particular layout and finishes of Levels 2 and 3.
Conclusion
For the reasons given the appeal will be allowed and the disputed conditions will be deleted. I will hear from the parties on the appropriate minutes of order.
0
0
0