Gardner v ACT Heritage Council

[2014] ACAT 4

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GARDNER & ANOR v ACT HERITAGE COUNCIL & ORS
(Administrative Review) [2014] ACAT 4

Case Number            AT 13/64; AT 13/65

Catchwords:             ADMINISTRATIVE REVIEW - – HERITAGE REGISTER – decision not to provisionally register as a place of heritage significance – requirement for reasonable grounds to be satisfied about heritage significance – relevant heritage significance criteria: important evidence of a “distinctive” form of design, and notable example of Garden City precinct – whether there was diminishing of intactness of the precinct’s Garden City design qualities – whether the precinct meets the criterion of being important evidence of a design  

Legislation:Heritage Act 2004, ss 3, 10, 13, 17, 18, 29, 32, 111 and 114

Subordinate

Legislation:Heritage (Decision about Provisional Registration of the Turner Housing Precinct, Turner) Notice 2013, Notifiable Instrument
NI 2013 – 337

Cases:150 Braddon Pty Ltd and ACT Heritage Council
[2013] ACAT 44

Briginshaw v Briginshaw (1938) 60 CLR 336

Cummings v Lewis and Ors (1993) ATPR (Digest) 46-103

Pettersson and ACT Heritage Council and Commissioner for Social Housing [2010] ACAT 28

Taglietti and Ors & Act Heritage Council [2011] ACAT 14

Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn and the ACT Heritage Council and Ors [2013] ACAT 62

Texts/Papers:            Andrew Ward, Assessment of Garden City Planning Principles in the ACT, (Environment ACT, Heritage Unit) (September 2000) 

David Hay (Gen. Ed), Words and Phrases Legally Defined
(4^th Ed, 2009)

John Sulman, An Introduction to the study of Town Planning in Australia, (National Trust of Australia (NSW)) (Facsimile edition, 2007)

Peter Dowling, Turner Streetscapes: A Heritage Assessment of
           Sections 46, 47, 48, 49 & 50, Turner ACT, (National Trust of
           Australia (ACT), 2004)

National Archives of Australia, A Design History of Australia’s National Capital 2002

Tribunal:                  Ms E. Symons - Presidential Member
  Dr T. Foley - Senior Member

Date of Orders:  29 January 2014

Date of Reasons for Decision:         29 January 2014

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL                   AT 13/64

AT 13/65

RE: HENRY GARDNER

Applicant – AT 13/64

RE: NICOLA WATSON

Applicant – AT 13/65

AND: ACT HERITAGE COUNCIL

Respondent

AND: JUDY ANDERSON

Party Joined – AT 13/64

AND: HENAVINE PTY LTD

Party Joined - AT 13/64 &    AT 13/65

AND:RAMESH & RASHMI MALIK

Party Joined - AT 13/64 &

AT 13/65

TRIBUNAL:             Ms E. Symons - Presidential Member 

Dr T. Foley - Senior Member

DATE:29 January 2014

ORDER

The Tribunal Orders that:

1.     The decision under review is confirmed.

………………………………..

Ms E. Symons - Presidential Member

REASONS FOR DECISION

Decision Under Review

1. This is an application to the ACT Civil and Administrative Tribunal (‘the Tribunal’) for review of a decision[1] (‘the decision’) of the ACT Heritage Council (‘the Council’) made on 25 July 2013 pursuant to section 32 of the Heritage Act 2004 (‘the Act’) not to provisionally register the Turner Housing Precinct (‘the precinct’), Turner on the ACT Heritage Register on the basis that the precinct does not meet any of the criteria specified in section 10 of the Act.

Introduction

[1]    Notified as Notifiable Instrument NI 2013 – 337- Heritage (Decision about Provisional Registration of the Turner Housing Precinct, Turner) Notice 2013

1. By letter dated 12 August 2012, the Turner Residents Association Inc.(‘TRA’) lodged a Nomination (‘the nomination’) including a request for an urgent decision, with the support of the National Trust of Australia (ACT), to register the precinct which includes Sections 47, 48 (excluding block 24), 49 and 50 Turner, on the ACT Heritage Register. Sections 47, 48, 49 and 50 Turner are immediately north of Haig Park in the inner northern suburbs. The boundaries of the nominated precinct are Bent Street, part of Greenway Street, part of Macleay Street and part of Condamine Street. The precinct includes Holder Street. The precinct was nominated for its Garden City planning principles and associations with Lindsay Pryor and Trevor Gibson. The nomination was accepted by the Council at its meeting on 6 September 2012.

2. In 2000, Section 47 was nominated to the ACT Heritage Register by a resident. On 9 July 2001, the Council made a decision under the former ACT legislation which dealt with heritage places, not to provisionally register Section 47 Turner. The Council concluded that Section 47 was of insufficient heritage value to warrant listing and recommended that the then planning authority, Planning and Land Management (‘PALM’), consider the minor heritage values it had identified, namely, broad landscaped verges and street trees; corner treatment of blocks and built form with houses set across the corner; consistency of materials and articulation of built form within the streetscape.[2]

   [2]    Exhibit A2 (Philip Leeson Architects Pty Ltd Report), at 3.1

3. As a consequence of responding to the application, PALM developed a Master Plan for the precinct which zoned Sections 47, 48, 49 and 50 as B12 under the then current Multi Unit Housing Development Code, allowing 2-storey multi residential development. A moratorium was placed on that type of development in Section 47. Following the ACT Government’s adoption of the recommendations of the Legislative Assembly’s Standing Committee on Planning, Public Work and Territory & Municipal Services’ ‘Inquiry into RZ3 and RZ4 Residential Development Policies – Inner North Canberra’ the moratorium was lifted in late 2011, thereby allowing multi unit development.

4. In 2004, the ACT Government funded the National Trust of Australia (ACT) to undertake a heritage assessment of sections 46 – 50 in Turner with funding provided through the ACT Heritage Grants program (T1853, 1872ff). The National Trust assessment (the Dowling Report[3]) led to a nomination by the National Trust ACT for sections 46 – 50, Turner, for registration.  In

   
   

   December 2004, the Council requested additional information. The nomination did not proceed as the nominator did not provide the supplementary information requested by the Council.

   [3]    Peter Dowling, Turner Streetscapes: A Heritage Assessment of Sections 46, 47, 48, 49 & 50, Turner ACT, (National Trust of Australia (ACT), 2004)

5. Following the TRA nomination in August 2012, the Council notified residents of affected properties by letter dated 11 September 2012 that the Council had accepted the nomination.

6. The Council’s Heritage Unit commissioned an assessment of the precinct by Philip Leeson Architects Pty Ltd (‘PLA’) on 18 September 2012. Various drafts of the PLA report were provided to the Heritage Unit for input by the Register Taskforce and Council members in 2012 and 2013. On 22 July 2013, PLA provided their Heritage Assessment which recommended in the Executive Summary (T161) –

   “The Precinct should be listed on the ACT Heritage Register.
   The Precinct should be conserved to preserve its significant features.”

7. By letter dated 4 July 2013, the Council notified residents that Council was likely to make a decision on whether or not to provisionally register the precinct at a meeting scheduled for 9 July 2013. Decisions not to provisionally register a place can be appealed to the Tribunal within 28 days of the decision.

8. The Council assessed the nomination of the precinct against the criteria specified in section 10 of the Act at its meeting on 9 July 2013. Its Heritage Unit had prepared a draft provisional registration for the precinct (T830-863) which was reviewed by the Register Taskforce of the Council and considered at the

   
   

   9 July 2013 Council meeting.  An in-principle decision was taken at this meeting not to provisionally register the precinct (T455) and further consideration of the matter was adjourned to a Council meeting on 25 July 2013. By letter dated 9 July 2013 the Council notified residents that Council had not reached a decision and the next meeting was scheduled for 25 July 2013.

9. On 25 July 2013, the Council decided not to provisionally register the precinct and adopted a Statement of Reasons (T34ff). In Council’s Statement of Reasons issued on 25 July 2013, it provided its assessment of the precinct and found “that the place does not meet any of the criteria specified in section 10 of the Heritage Act 2004.”

10. Pursuant to section 34 of the Act, the Council provided notice, in Notifiable Instrument NI 2013 – 337, of its decision pursuant to section 32 of the Act not to provisionally register the precinct to the ACT Register.

11. Under the Territory Plan, the precinct is located within the RZ3 Urban Residential Zone which allows the construction of secondary residences and multi-unit housing.

12. On 15 August 2013, Henry Gardner lodged an Application for Review of the decision (AT 13/64) as did Nicola Watson (AT 13/65).

13. On 28 August 2013, Judy Anderson applied to be joined as a party to AT 13/64. She supported the Application for Review. Henavine Pty Ltd applied to be joined as a party to AT 13/64 and AT 13/65 on 28 August 2013, opposing the Applications for Review. David Jenkins applied to be joined as a party to AT 13/64 and AT 13/65 on 30 August 2013, supporting the Applications for Review.

14. On 3 September 2013, the Tribunal ordered that Judy Anderson be joined as a party to AT 13/64, Henavine Pty Ltd be joined as a party to AT 13/64 and AT 13/65 and David Jenkins be joined as a party to AT 13/64 and AT 13/65.

15. On 9 September 2013 Ramesh Malik and Rashmi Malik applied to be joined as a party to AT 13/64 and AT 13/65 and, on 11 September 2013, the Tribunal ordered that Ramesh Malik and Rashmi Malik be joined as a party to AT 13/64 and AT 13/65.  Ramesh Malik and Rashmi Malik opposed the Applications for Review.

16. On 1 November 2013, David Jenkins gave notice that he discontinued his applications for joinder to AT 13/64 and AT 13/65. The Tribunal ordered that he be removed as a party to the proceedings.

Issues

1. The issue for consideration in relation to the merits of the Council’s decision is whether the Tribunal, standing in the shoes of the decision-maker, can be satisfied on reasonable grounds that the precinct may have heritage significance.

2. The Tribunal may consider any evidence before it, whether or not it was available to the Council at the time it made the decision. If the Tribunal were to be so satisfied, it would have to set aside the Council’s decision and substitute the Tribunal’s decision or remit it to the Council for reconsideration. If not satisfied, the Tribunal would have to confirm the Council’s decision.

Applicable Law

1. The Heritage Act 2004 provides for the registration of places and objects of heritage significance upon the heritage register. The objects of the Act are as follows:

   3Objects of Act

   (1)The main objects of this Act are as follows:

   (a)to establish a system for the recognition, registration and conservation of natural and cultural heritage places and objects, including Aboriginal places and objects;

   (b)to establish the heritage council;

   (c)to provide for heritage agreements to encourage the conservation of heritage places and objects;

   (d)to establish enforcement and offence provisions to provide greater protection for heritage places and objects;

   (e)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.

   (2)A function under this Act must be exercised—

   (a)to preserve the heritage significance of places and objects; and

   (b)to achieve the greatest sustainable benefit to the community from places and objects consistent with the conservation of their heritage significance.

   (3)If the exercise of the function involves conduct that would adversely affect the heritage significance of a place or object, the conduct may be engaged in only if—

   (a)there is no feasible or prudent alternative; and

   (b)all measures that can reasonably be taken to minimise the adverse effect are taken.

2. In order to determine whether a place or object has heritage significance it is necessary to consider section 10 of the Act:

   10Heritage significance

   A place or object has heritage significance if it satisfies 1 or more of the following criteria (the heritage significance criteria):

   (a)it demonstrates a high degree of technical or creative achievement (or both), by showing qualities of innovation, discovery, invention or an exceptionally fine level of application of existing techniques or approaches;

   (b)it exhibits outstanding design or aesthetic qualities valued by the community or a cultural group;

   (c)it is important as evidence of a distinctive way of life, taste, tradition, religion, land use, custom, process, design or function that is no longer practised, is in danger of being lost or is of exceptional interest;

   (d)it is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations;

   (e)it is significant to the ACT because of its importance as part of local Aboriginal tradition;

   (f)it is a rare or unique example of its kind, or is rare or unique in its comparative intactness;

   (g)it is a notable example of a kind of place or object and demonstrates the main characteristics of that kind;

   (h)it has strong or special associations with a person, group, event, development or cultural phase in local or national history;

   (i)it is significant for understanding the evolution of natural landscapes, including significant geological features, landforms, biota or natural processes;

   (j)it has provided, or is likely to provide, information that will contribute significantly to a wider understanding of the natural or cultural history of the ACT because of its use or potential use as a research site or object, teaching site or object, type locality or benchmark site;

   (k)for a place—it exhibits unusual richness, diversity or significant transitions of flora, fauna or natural landscapes and their elements;

   (l)for a place—it is a significant ecological community, habitat or locality for any of the following:

   (i)the life cycle of native species;

   (ii)rare, threatened or uncommon species;

   (iii)species at the limits of their natural range;

   (iv)distinct occurrences of species.

3. Part 3 of the Act establishes the Heritage Register for the registration of places and objects of heritage significance. Part 4 of the Act establishes the Heritage Council which is given responsibility for both maintaining the Register and also deciding whether a place or object should be provisionally or finally registered upon the Register.

4. In accordance with section 17 of the Act, the Council is comprised of the Conservator of Flora and Fauna (being the person holding that designation under the Nature Conservation Act 1980 (ACT)), the chief planning executive (under the Planning and Development Act 2007 (ACT)), three people appointed by the Minister as public representatives (one for each of the following groups – the community, the Aboriginal community and the property ownership, management and development sector) and six people appointed by the Minister as experts (each of whom must adequately represent one or more of the following disciplines –Aboriginal culture; Aboriginal history; archaeology; architecture; engineering; history other than Aboriginal history; landscape architecture; nature conservation; object conservation; town planning; and urban design).

5. Council Functions are set out in section 18 of the Act :

   18Functions of council

   The council has the following functions:

   (a)to identify, assess, conserve and promote places and objects in the ACT with natural and cultural heritage significance;

   (b)to encourage the registration of heritage places and objects;

   (c)to work within the land planning and development system to achieve appropriate conservation of the ACT’s natural and cultural heritage places and objects, including Aboriginal places and objects;

   (d)to advise the Minister about issues affecting the management and promotion of heritage;

   (e)to encourage and assist in appropriate management of heritage places and objects;

   (f)to encourage public interest in, and understanding of, issues relevant to the conservation of heritage places and objects;

   (g)to encourage and provide public education about heritage places and objects;

   (h)to assist in the promotion of tourism in relation to heritage places and objects;

   (i)to keep adequate records, and encourage others to keep adequate records, in relation to heritage places and objects;

   (j)any other function given to it under this Act or another Territory law.

6. Section 32 of the Act states:

   32Decision about provisional registration

   (1)The council must decide whether to provisionally register each place or object nominated for provisional registration.

   (2)The council also may decide to provisionally register a place or object that has not been nominated for provisional registration.

   (3)The council may provisionally register a place or object only if satisfied, on reasonable grounds, that the place or object may have heritage significance.

7. Sections 111 and 114 of the Act deal with reviewable decisions. The Tribunal is satisfied that the decision under review is a reviewable decision pursuant to Schedule 1, column 1, item 1 of the Act and that the Applicants and Parties Joined are interested persons in accordance with section 13 of the Act. They have standing to bring their applications.

Contentions of the Applicants and Party Joined, Judy Anderson

1. The Applicants and Judy Anderson contend[4] as follows:

   [4]    Applicants’ and Parties Joined’s Statement of Facts and Contentions dated 4 October 2013, pages 7 to 17

   i.The decision to reject provisional Heritage Listing for the precinct contravenes both the spirit and the intention of the Act.

   ii.The criterion for heritage significance identified in section 10 of the Act is not constrained by the number of comparable precincts which are presently listed.

   iii.The Act states[5] that applicants seeking provisional registration must satisfy the Tribunal on reasonable grounds that the place or object may have heritage significance. There is more than enough evidence between the 2012 nomination, the 2004 streetscapes document[6] and the 2013 PLA report to argue that the precinct has reasonable grounds for listing. The term may has been considered in other Tribunal decisions. It is important to give full effect to the purpose and meaning of the Act by maintaining a distinction between provisional listing and registration (see Taglietti and Ors & Act Heritage Council [7](“Taglietti”).

   [5] Subsection 32(3) of the Act

   [6]    The Dowling Report

   [7] [2011] ACAT 14-where it was held that provisional registration will affect the actions of future developers in that there will be a moratorium on new buildings until the registration has either been made or it is withdrawn.

   iv.The process around the decision was flawed because the Council:

   a)     breached the time frame required for urgent applications[8];

   [8] Section 29 of the Act

   b)     

   relied on irrelevant information – namely, the five unsolicited

   
    

   objections from other residents and the number of already approved Garden City precincts; and

   c)     rejected the recommendations of their independent report with no  sound factual evidence or argument to the contrary.

   v.

   There is no information in the Tribunal documents (‘T’ documents) to explain why the initially positive response to the PLA report and listing of the precinct changed in the lead up to the vote on

   
   

   9 July 2013.

   vi.The decision contains a number of inaccurate assertions and/or directly contradicts the PLA report in many areas – Garden City planning principles, precinct size, hierarchy of roads, front fences, housing design, pocket parks, hedges, garages, verge crossings and integrity.

   vii.The precinct is important as evidence of a distinctive way of life, taste, tradition, religion, land use, custom, process design or function that is no longer practised, is in danger of being lost or is of exceptional interest (Section 10, criterion (c) of the Act).

   viii.The precinct is a notable example of a kind of place or object and demonstrates the main characteristics of that kind (Section 10, criterion (g) of the Act).

   ix.The statement by the Council that, in response to it advising residents of the precinct and the ACT Planning and Land Authority of the nomination, it received five responses all opposing the nomination and none in support misrepresents the process undertaken by the Council. The Council never formally requested submissions from residents. The Council omitted mentioning 28 residents’ signatures supporting the urgent nomination for heritage listing.

   x.A heritage precinct is not a museum. Many of the Council’s claims that certain qualities diminish the value of the precinct are very minor in nature and assume that no change can take place in a precinct since its construction in the 1950’s.

   xi.Sections 47 to 50 Turner retain their integrity as an excellent late expression of Sulman Garden City planning and design. Section 47 is unusually intact due to its protection from development by the moratorium. The precinct is an aesthetically and culturally pleasing example of post-World War II planning in this city which is in imminent danger of being lost.

Contentions of the Respondent

1. The Council contends[9] as follows:

   [9]    Respondent’s Statement of Facts and Contentions dated 25 October 2013, paragraphs 4, 5, 6 and 7.

   a)“Garden City” planning is a distinctive form of urban design adopted by town planners in the early 20^th century.

   b)The form of Garden City planning adopted in the precinct is not a distinctive design, nor a post war design or phase, nor strongly associated with any Canberra development phase, because the precinct –

   i.      is indistinguishable from Garden City planning adopted in many  areas of Canberra from the 1920’s, except in being inferior in execution or no longer intact in some respects (see c. below);

   ii.     has key design elements shown on the 1925 “Griffin” gazetted plan, or determined by 1933;

   iii.    was largely complete, in terms of street and park design, by 1940; and

   iv.    was developed in 1947-1951 using stock housing designs originating in 1920’s FCC[10] designs.

   [10] Federal Capital Commission

   c)The precinct compared with other places in Canberra listed in (iv) below, is not important evidence of, nor a notable example of, Garden City characteristics and intactness because of –

   i.      Its small scale and lack of distinct entity, its utilitarian cheap government housing designs,

   ii.     Its degraded “pocket” parks, the absence of diagonally-sited corner dwellings (Section 48, Turner),

   iii.    The absence of a clear road hierarchy,

   iv.    The presence of high hedges and carports or garages forward of the building line,

   v.     Extensive modification by redevelopment, and

   vi.    A general loss of streetscape scale and harmony.

   d)Better evidence and better examples of Garden City planning, in terms of their quality of execution, range of characteristics and intactness, can be found in the following other places in Canberra –

   i.      Alt Crescent precinct,

   ii.     Braddon precinct,

   iii.    Barton precinct,

   iv.    Wakefield Gardens,

   v.     Corroboree Park,

   vi.    Reid precinct,

   vii.   Blandfordia precincts 4 and 5,

   viii.     Forrest Housing precinct, and

   ix.    Kingston/Griffith Housing precinct.

Contentions of the Parties joined

1. Ramesh Malik and Rashmi Malik, in their Statement of Facts and Contentions[11] stated that

   i.the place is a poor reflection of the properties within the wider Turner suburb and has no heritage value,

   ii.a significant number of the houses in the place have been modified – Section 47 has 12 houses out of 24 which have been modified and one completely new development, and Section 48 has 8 houses out of 19 which have been modified and three completely new developments,

   iii.design and aesthetic quality of most houses in the place is neither practical nor valued by most residents,

   iv.the benefit of the existing streets in the place, particularly where there is a strong street tree character, has the ability to maintain much of the existing character and amenity while increasing the density of development, and

   v.resident concerns can be addressed by existing residential codes.

   [11]  The Malik’s Statement of Facts and Contentions filed 15 October 2013, paragraphs 7, 8, 9 and 13.

2. Henavine Pty Ltd did not file a Statement of Facts and Contentions. Mr Emil Bulum represented the corporation at the hearing but did not give evidence.

Relevant Agreed facts

1. It is agreed that that the proposed listing is based upon a form of ‘design’ - Garden City Design originating in the United Kingdom which in Canberra was strongly influenced and implemented by John Sulman.[12] It was agreed that Garden City design is a distinctive form of design.

   [12]  John Sulman, Town Planning in Australia (1921) [Exhibit R4].

2. There was some agreement as to what constitutes Garden City design characteristics (Sulman  page 106; Ward’s set of 23 ‘Garden City planning principles’; ACT Heritage Council Heritage Register Entry list of ‘early 20^th century ‘Garden City’ planning’ features[13]) but no definitive list of characteristics was agreed.

   [13] Exhibit R12

3. It was agreed that the precinct was designed in the Garden City style.

The Hearing

1. The matter was heard over four days - 25, 26, 27 and 28 November 2013. Both Mr Henry Gardner and Dr Nicola Watson were self-represented and called evidence and provided the Tribunal with their written opening statement (Exhibit A1). Mr Eric Martin AM gave expert evidence for the Applicants. He had filed a witness statement dated 2 October 2013 (Exhibit A2). Emeritus Professor Ken Taylor AM gave expert evidence for the Applicants.   He had filed a witness statement dated 27 September 2013 (Exhibit A5). Each of the Applicants’ expert witnesses attached their Curriculum Vitae to their Witness Statements. The Tribunal noted their qualifications and experience.

2. Dr D. Jarvis of Counsel represented the Council, instructed by Ms Aditi Mohindra from ACT Government Solicitor. Mr Duncan Marshall, Chairperson of the Council gave evidence. Mr Marshall had filed a Witness Statement dated 24 October 2013 (Exhibit R10) to which he attached his Curriculum Vitae. He told the Tribunal he was appearing at the hearing as a representative of and the Chair of the Respondent Council and referred to his qualifications and credentials in his curriculum vitae relating to the subject matter. The Tribunal noted his qualifications and experience.

3. Ms Judy Anderson, a party joined, and Mr Emil Bulum, Director of Henavine Pty Ltd, represented themselves. 

4. Mr Malik and Ms Malik notified the Tribunal on 14 October 2013 that they would be absent overseas and would not be attending the hearing. Their Statement of Facts and Contentions was marked as Exhibit J1.

5. Immediately prior to the first day of the hearing the Tribunal conducted a view of the precinct in the presence of the parties, the legal representatives and the Applicants’ expert witness, Mr Eric Martin. The attendees had an opportunity to comment on the precinct during the view.

6. At the request of the Council, the Tribunal conducted a view of the Corroboree Park, Alt Crescent, Reid and Braddon Heritage Precincts at the commencement of the second day of the hearing. The Tribunal, the parties, the legal representatives and Mr Martin attended the inspection and had an opportunity to comment on the precincts during the view. Professor Ken Taylor joined the view from midway through the Corroboree Park precinct.

1. All parties made final submissions at the conclusion of the hearing, the Applicants and the Respondent providing the Tribunal with written outlines of their closing arguments.

Consideration

1. This review has arisen from the decision of the Council not to provisionally register the precinct on the ACT Heritage Register on the basis that it did not meet any of the heritage significance criteria in section 10 of the Act. The Applicants submit that the precinct meets two of such criteria:

   10(c) it is important as evidence of a distinctive way of life, taste, tradition, religion, land use, custom, process, design or function that is no longer practised, is in danger of being lost or is of exceptional interest;

   and

   10(g) it is a notable example of a kind of place or object and demonstrates the main characteristics of that kind.

   The Respondent has denied that the precinct meets these or any other heritage significance criteria.

Interpretation of relevant law

1. Section 32(3) of the Act sets the standard for provisional registration of a place. The council may provisionally register a place only if:

   ·satisfied

   ·on reasonable grounds

   ·that the place may have heritage significance.[14]

   [14]  Taglietti and Ors & Act Heritage Council [2011] ACAT 14, paragraph 110

2. Though this may appear to set a lower threshold this is not the case. A place only meets the third requirement of heritage significance if it satisfies one or more of the section 10 criteria. If it does not satisfy at least one criterion there is no basis for provisional registration.[15]

   [15]  Taglietti, paragraph 87

3. The Council’s satisfaction as to heritage significance has to be on reasonable grounds.

4. Subsection 32(3) of the Act has been considered by the Tribunal in Pettersson and ACT Heritage Council and Commissioner for Social Housing[16] (“Pettersson”) at paragraphs 17:

   17. Mr Arthur submitted that if the Tribunal standing in the shoes of the decision-maker, were to set aside the decision it would need to meet the three requirements of s 32(3), that is (i) it had to be satisfied, (ii) on reasonable grounds, (iii) that the place may have heritage significance.

   At paragraph 18 that Tribunal stated:

   18. In relation to being satisfied, Mr Arthur submitted that no particular level of proof was required, but there should be a state of ‘actual persuasion’ or of having reached a ‘clear conclusion’ about the matter relying on the definition of ‘satisfied’ in Words and Phrases Legally Defined[17], in particular as expressed by Finlay ACJ in Re Woodcock[i] in the New Zealand Court of Appeal.

   [16]  Pettersson and ACT Heritage Council and Commissioner for Social Housing [2010] ACAT 28

   [17]  David Hay (Gen. Ed), Words and Phrases Legally Defined (4^th Ed, 2009)

5. The Tribunal notes that the phrase ‘on reasonable grounds’ was also considered by the Tribunal in Pettersson and accepted that this did not depend upon the fact that a person making an assertion as to some fact or situation did so on the basis of a genuine belief in the accuracy of the statement. Instead, that Tribunal adopted the statements of Sheppard and Neave JJ in their joint judgment in Cummings v Lewis and Ors[18]-

   ....it is again the overall circumstances of the case which will provide more reliable guidance than would oral evidence on the part of interested parties.

   [18] (1993) ATPR (Digest) 46-103 at 53,447

6. In the later case of 150 Braddon Pty Ltd and ACT Heritage Council[19], at paragraph 75, the Tribunal accepted the test for ‘on reasonable grounds’ of Dixon J in Briginshaw v Briginshaw[20] (‘Briginshaw’)

   The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.

   ...The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

   [19] [2013] ACAT 44

   [20] (1938) 60 CLR 336 at 361-362

7. The Applicants submitted that, in considering this test, the Tribunal would favour the opinion of experts over ‘interested parties’. Thus, the Tribunal should note that the Applicants –

   have the weight of opinion of experts in the form of the PLA report, and two independent experts – Mr Eric Martin, formerly of the National Trust, Heritage Council and heritage committee and Professor Taylor, expert historian with many academic credentials…[and] note that the expert witness for the respondent is also a voting member and Chair of the Heritage Council and thus not, in our opinion, also an independent witness.[21]

   [21]  Applicants’ Closing Submissions, 28 November 2013, at [5]

8. In Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn & ACT Heritage Council[22] (Trustees of the RCC) that Tribunal said, of the Briginshaw test, -

   The Tribunal accepts this general proposition, but observed that the heritage criteria are couched in very general terms with an abundance of qualifying adjectives which do not easily lend themselves to the degree of precision specified by Dickson J in Briginshaw. In heritage matters, there is very likely to be a degree of imprecision in assessing whether the heritage criteria are satisfied...It seems to this Tribunal that the tension between economic effects and heritage preservation in individual cases may be better addressed by exercising the discretion whether or not to enter an object or place on the Heritage Register, rather than by setting the standard of satisfaction for individual heritage significance criteria at an impracticability high level, or artificially constraining the natural meaning of key terms in the legislation such as ‘important’, ‘strong’, and ‘special’.

   [22] [2013] ACAT 62, at [109]

9. Mindful of these comments, the obligation on the Tribunal is to consider and weigh up all of the evidence and determine whether any of the heritage significance criteria have been met to the reasonable satisfaction of the Tribunal.

The Heritage Significance Criteria

1. The Applicants’ case is that the precinct meets the Section 10(c) heritage significance criterion in that it is ‘important as evidence’ of a ‘distinctive’ form of ‘design’, namely, Garden City design that is no longer practised, is in danger of being lost or is of exceptional interest. The Applicants further contend that the precinct meets the Section 10(g) heritage significance criterion in that it is ‘a notable example’ of a Garden City precinct and that it demonstrates its main characteristics.

2. As stated by the Tribunal in Trustees of the RCC [23]:

   It is long-established that the role of the Tribunal in an application for review is not limited to the grounds advanced by either the applicant or the respondent, but requires the Tribunal to properly consider all relevant material and reach the correct and preferable decision.

   [23]  Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn and the ACT Heritage Council and Ors [2013] ACAT 62, at paragraph 36

3. As the Tribunal in the Trustees of the RCC matter took the view that it should consider the evidence available to it in relation to each of the potential criteria, irrespective of the views of the applicant and the respondent, the Tribunal raised this with the parties in the present matter. It was clear that the weight of the evidence and submissions before the Tribunal in the present matter have been directed towards whether the section 10 (c) and/or (g) criteria are satisfied. The Tribunal, therefore, focused on these two criteria.

Preliminary Issue

1. Before turning to the consideration of the issues identified above, the Tribunal considered, as a preliminary issue, whether a comparative analysis of the quality and the intactness of the Garden City attributes of this precinct, as against other registered Garden City precincts, is a relevant consideration in assessing the criteria.

The Applicants’ evidence on comparison

1. The Applicants submitted that the precinct fares well on such a comparison. They say it meets 19 of the 23 Garden City design characteristics of Ward (data taken from the PLA report). However, such a numerical comparison does not address the issue of the relative intactness of these characteristics in the precinct.

2. Mr Martin accepted that comparison was appropriate. His evidence as to comparability was that the precinct represented an important phase in the continuum of Garden City design in Canberra in that it had been planned in the 1940s (much later than the 1920s planning of the other registered Garden City precincts) and constructed in the late 1940s/early 1950s. He considered the precinct in this light as the ‘best’ example of that phase.

3. Professor Taylor, in his evidence, rejected the notion of comparing examples to determine which provided ‘better’ examples or ‘better’ evidence of Garden City design. He rejected ranking of places in terms of their relative heritage merit. In comparing places he said it was important to note what elements of the suite of Garden City characteristics are evident or intact in the place being looked at and to evaluate its significance.

4. The Applicants relied on the PLA report which compared precincts that were contemporary with the Turner precinct and other 1920 era precincts. The PLA report concluded that the Turner precinct was superior and comparison with other 1920’s precincts found that Turner precinct had most of the principles listed.

The Respondent’s evidence on comparison

1. Dr Jarvis submitted that comparison was appropriate.

2. Mr Marshall said that comparative analysis was an essential element and at the heart of the work that the Council undertakes. It is what any credible assessment needs to undertake. He said that Mr Martin’s statement that the precinct was the best example of Garden City planning in the post-war period was probably correct based on the limited comparisons[24] in the PLA study.

   [24]  The comparison with other post-war housing developments.

3. However, assessing the importance of Turner as representing the ongoing development of the Garden City concept requires comparison with previous examples of Garden City planning from the 1920’s  and an understanding of the meaningful differences which represent that ongoing development. 
   Mr Marshall said a comparative analysis of the precinct with the other registered Garden City precincts did not justify registration[25].  He did not accept “that the ongoing development of the Garden City concept represented at Turner being associated with an important phase in Canberra’s development merits registration”.[26]

Conclusion

[25]  Duncan Marshall, Witness Statement (Exhibit R10), paragraphs 53-57

[26]  Duncan Marshall, Witness Statement, paragraph 54

1. Both of the identified heritage significance criteria (c) and (g) invite comparison. Criterion (c) refers to whether a place is ‘important as evidence’. Criterion (g) refers to a place being ‘a notable example’. The comparative assessment of the relative value of the heritage significance or values of the precinct can be made against existing Garden City Design precincts currently on the Heritage Register in order to determine whether the threshold for the criteria has been met. Taglietti[27] makes clear that the qualifying words such as ‘important as evidence’ and ‘a notable example’ require such a comparative assessment.

   [27]  at [131-134] and [153]

2. Putting aside the Tocumwal Housing Precinct (which is listed principally for the value of its unique housing stock), each of the remaining 10 registered housing precincts (Exhibit R12) are listed because they are ‘notable examples’ or as ‘important evidence’ of early 20^th Century Garden City planning.

3. Having considered the parties’ submissions the Tribunal finds that comparison is important and that in determining whether any of the criteria relied on is met, a comparative analysis of the quality and intactness of the Garden City attributes of the precinct as against other registered Garden City precincts is relevant.

Consideration of the Issues 

Intactness of the precinct’s Garden City design qualities

1. It is not in dispute that Garden City design is a distinct form of design. Nor is it disputed that the precinct was designed in that style. At issue is whether it now represents ‘important evidence’ of that design or is a ‘notable example’ of a place that demonstrates the main characteristics of that kind.

2. The PLA report provides a consolidated list of 20 attributes of Garden City design which was generally accepted by all parties. Its lists the significant factors as:

   1.the creation of a distinct physical and social entity,

   2.a hierarchical road system with residential roads determined by geometry or contours,

   3.elimination of back lanes,

   4.elimination of front fences to allow a transition of private and public space,

   5.rounded street corners to open up vistas at intersections,

   6.rationalisation of overhead wires to the sides and rear of blocks, leaving the streetscape clear,

   7.a suite of uniform street furniture,

   8.the use of shared verge crossings, both for economy and to minimize visual intrusion,

   9.the provision of garages behind the building line to emphasise the landscape setting of the houses,

   10.uniform tree planting on wide verges to emphasise the landscaped setting,

   11.hedge planting to front boundaries,

   12.staggered house setbacks to provide variety and reinforcement of street curves,

   13.generous side setbacks to allow for landscaping on all sides,

   14.planned vistas both within and beyond each housing precinct,

   15.variation in aspect of front doors,

   16.stylistic consistency in the houses, preferably well executed examples of traditional styles, e.g. English style cottages,

   17.predominance of single storey cottages,

   18.      linking fences behind the front building line,

   19.the use of external reserves, often containing community facilities, and

   20.the use of public walkways.

1. This list reflects, in general terms, the attributes used by the Council to assess applications for heritage listing based on Garden City design. Mr Marshall’s evidence was that the Council’s own list has been derived from authoritative sources (not including Ward[28] which it predates) but probably including Sulman. The Council’s list of attributes intrinsic to the heritage significance of the place as it applied to each of the 11 heritage registered precincts is set out in each of the Heritage Register Entries (Exhibit R 12). Excluding the Tocumwal Housing precinct, these may be generally described as:

   [28]  Andrew Ward, Assessment of Garden City Planning Principles in the ACT (Environment ACT, Heritage Unit) (September 2000)  (Exhibit R7)

   (a)road pattern – whether symmetrical arrangement of streets around  internal or central reserves;

   (b)a hierarchical road pattern including a wide arterial road, secondary streets in an axial pattern around the perimeter of the subdivision and  narrow street/s within the subdivision;

   (c)pre-existing stands of trees utilised in planning arrangements;

   (d)a central landscaped reserve for communal use;

   (e)symmetrical subdivision of blocks generated from the road pattern;

   (f)land use allocated to distinct uses to create an ordered and efficiently planned environment, i.e. residential, recreational and community uses;

   (g)landscaped verges containing substantial street trees and footpaths;

   (h)patterns of modest dwellings in a generous garden setting whereby the gardens enhance the streetscape and form a buffer of landscaped open space with adjacent dwellings;

   (i)single storey detached dwellings;

   (j)generally uniform front setbacks;

   (k)a highly-ordered composition of dwellings, driveways and public space included dwellings sited centrally on blocks, parallel to the street and with entrance doorways facing the street;

   (l)dwellings with unifying architectural style, scale and materials;

   (m)garages sited towards the rear of the block to deliberately play down the utilitarian structure of the streetscape and to give emphasis to the garden setting of each dwelling;

   (n)driveways alongside boundaries generally sharing or pairing the verge crossing with the neighbouring block;

   (o)public utility services removed from the streetscape and located underground or at the rear of the blocks; and

   (p)unified landscape treatments and street furniture including verges, driveway materials, street trees, hedges, fences, street signs and lighting.

2. The Council noted in its Statement of Reasons[29] that the Turner precinct does   demonstrate the following attributes of Garden City planning:

   [29]  Exhibit R3

   (a)the street layout including curved corners, pedestrian walkways across common areas, Holder Street lay-bys and the pocket parks (Sections 49 and 50);

   (b)uniform street furniture, including original NCPFC era lamp posts and fire hydrants;

   (c)mature verge plantings;

   (d)paired verge crossing;

   (e)large verges;

   (f)houses set diagonally to the corners (section 47 only);

   (g)alternating front setbacks and varied building orientation and front entry;

   (h)generous side setbacks to allow for landscaping on all sides;

   (i)power lines relegated to the sides and rear of blocks; and

   (j)garages sited to the rear of the block.

3. In dispute is the intactness of the following subset of the attributes which the Statement of Reasons says is diminished in the precinct. Mr Marshall repeats this list of nine diminished attributes in his statement[30]: 

   [30] Exhibit R10, paragraph 34

   However the Precinct is diminished by:

   ·   its small size and the current lack of a physical and social entity

   ·   the absence of road hierarchy

   ·   the presence of fences to some front boundaries

   ·   the original utilitarian housing

   ·   the degradation of the pocket parks (Section 49 and 50)

   ·   the presence of high hedge lines to some front boundaries

   ·   garages in front of some dwellings

   ·   predominantly single verge crossings, and

   ·   the degradation of the stylistic consistency of housing through unsympathetic alterations and redevelopment.

4. The Tribunal has considered the evidence in relation to each of these nine attributes.

   ·      Small size and the current lack of a physical and social entity

The Applicants’ evidence

1. Mr Martin’s evidence was that small size did not mean the precinct lacked the characteristics or qualities of Garden City design. The value of the precinct should be judged by an overview of the whole precinct. He said that it constituted a distinct social entity having been designed for a certain type of public servant at the time. He considered its siting was important with parks on two sides allowing views in and out of the area giving it a strong feeling of an extended landscape.

2. In cross examination, Mr Martin agreed that other precincts such as Meehan and Bannister Gardens (which the PLA report had compared the Turner precinct to as examples of 1940s constructed Garden City design) had more space and so greater opportunity for symmetrical layout for blocks and roads.  He agreed that planning consistent with curvilinear street design allowed opportunities for incidental green space consistent with Garden City principles. This was evident in Meehan and Bannister Gardens. He agreed that the relative absence of curvilinear street design meant that there were no such incidental leftover green spaces evident in the Turner precinct.

3. Also in cross examination, he agreed that symmetrical design of the precinct was an important part of Sulman’s Garden City design. Section 47 had been designed with Blocks 14 and 15 at the apex of Holder Street. These were consolidated sometime after 1950 to one large block known as Block 5. While this had changed the symmetrical aspect of the design of the precinct, he said that the symmetrical design had not been totally lost as the blocks did not change in overall size. He described it as “not a significant loss”.

4. He also agreed in cross examination that now that there was one long house, the church manse, built on Block 5 and the original intended dwelling arrangement of two houses, one on Block 14 and one on Block 15 had changed, there was no longer a symmetry with the east/west axis. The north/south axis symmetry remained.  He agreed that Sulman’s plan for detached cottages on separate blocks with landscape between them had been lost as a result of this one house, but said that this was only one component from Sulman’s design and it was not fully lost.

5. Professor Taylor did not think size was an important characteristic. His view was that the precinct did have a distinct physical entity stating “I can see it in my mind’s eye.”

6. Further, in cross examination he said that he did not consider that the siting of the church manse and the consolidation of two blocks into church land at the apex of Holder Street, detracted from the symmetry of the place as a physical entity.  He did not agree that the symmetrical pattern had been lost. His value judgment was that “we can accept that level of change.” He acknowledged that others may have value judgments different to his.

The Respondent’s evidence

1. Mr Marshall said that the proposed precinct was only part of the Turner subdivision bounded by Northbourne Avenue to the east, David Street to the north, Nicholson Street and Barry Drive to the South with Masson Street and Condamine Street the significant east and west boundaries.  He agreed that adding Sections 46 and 57 and Sections 63 and 62 to the north of the precinct, would make it much bigger. His evidence was that increased size gave advantages in terms of symmetry including the capacity for curvilinear geometry in the road pattern characteristic of Garden City design.

2. Dr Jarvis submitted that the Tribunal must ask why sections 46 and 63 were not included in the application as they are not only part of the Turner subdivision, but are connected to the precinct itself. There was no reason to draw the precinct border down the middle of Macleay Street. On the eastern side of Macleay Street there are near intact Garden City cottages and diagonal houses on the corners. The Baptist church, situated in section 48, appears to be sited to provide a vista at the end of Hartley Street, which is in Section 63. This suggests that this section was intended to be with the Turner precinct as part of a whole.

3. Mr Marshall also gave evidence that the small size of the subject precinct was further diminished by two major changes in Section 48, namely, the loss of blocks 14 and 15 due to consolidation and the exclusion of three former blocks now forming the Provence multi-unit development on what is now Block 24. Although the Applicants had, in their application, excluded Block 24 from the precinct, he considered these consolidations were a significant detriment made more significant because of the small size of the proposed place.  

4. Dr Jarvis submitted that the excising of Block 24 from the application impacted negatively on an assessment of whether the precinct was notable. The original design was not intended to have a piece taken out; it is not notable if it has to have a piece taken out of it.  The Council has already rejected an application to list section 47 only.

5. He said that consolidation of blocks 14 and 15 and the subsequent building of a long low single storey building (the Manse), broke the rhythm of the scale of housing on the Section 48 side of the park. He added that it would be regarded as ‘redevelopment’ and that it does detract from the Garden City qualities of this precinct. He did not agree with the PLA report that this redevelopment was a sympathetic development.

6. Mr Marshall, when cross examined, disputed that the central reserves of blocks 49 and 50 created a distinct physical entity for the whole precinct. He considered there was not the strength of expression of physical presence in the precinct. He conceded that the central part alone could constitute a distinct physical entity. He considered the precinct may once have had a distinct social entity – occupied by middle to higher level professionals that originally represented a stratification – but that there had been a dilution of this stratification since construction. He did not agree that a strong sense of social entity remains today.  

   ·      Road Hierarchy

7. In his oral evidence, Mr Marshall said that the reference to ‘absence of road hierarchy’ should be replaced by ‘a poor example of road hierarchy’.

The Applicants’ evidence

1. Both Mr Martin and Professor Taylor gave evidence that a road hierarchy did exist, with wider perimeter streets, but acknowledged that this was not on the same scale as, for example, the Braddon precinct because the Turner precinct was a relatively small scale heritage precinct.

The Respondent’s evidence

1. Mr Marshall said that the road hierarchy was quite inconsistent with what Sulman proposed. In this precinct Condamine Street was wide in order to carry traffic and there were narrower streets giving access to dwellings. However, Macleay Street below Condamine Street was also a wide street. Mr Marshall described this as a remnant of planning when Macleay Street was intended to be a main thoroughfare. He said, “so it is wide by accident and not intended to be a wide thoroughfare. Therefore that part of the road hierarchy is inferior.”

   ·      Presence of fences to some front boundaries

The Applicants’ evidence

1. Mr Martin’s evidence was that front fences in the Turner precinct were low and not intrusive. Professor Taylor noted that fences were allowed at law. He did not consider the fences in the precinct were visibly intrusive. During the view on 25 November 2013 the Applicants pointed out to the Tribunal the plantings which softened the fences.

2. The PLA report on which the Applicants rely noted[31] ‘an absence of front fences’.

The Respondent’s evidence

[31] Exhibit A2, at page 6

1. Mr Marshall noted a number of examples of fences to some front boundaries which he pointed out to the Tribunal during the view on 25 November 2013.  Sulman’s Garden City design included an absence of front fences.

   ·      Original utilitarian housing

The Applicants’ evidence

1. Mr Martin’s evidence was that the housing stock was not a primary element in Garden City design.  The buildings were not meant to be dominant. He considered the modest houses of a standard design size did not diminish the Garden City design of the precinct. In cross examination, he agreed the housing stock was undistinguished. He also agreed with the comment in the PLA report[32]  that the housing stock ‘lacks design quality and intactness’ but considered this only one element of Garden City design.

   [32] Exhibit A2, at page 84

2. Professor Taylor disputed that the ‘utilitarian’ description of the housing was deprecating. He considered the houses were utilitarian but in the sense of ‘consisting or based on utility’ (citing the Oxford English Dictionary) and their plainness was no mark of their heritage value. In cross examination he said that such ‘utilitarian design’ is not a major detriment. He said that the houses themselves are not the main aspect; they are an element because that is where people live but they are not ‘the overall be all and end all’ when assessing heritage significance.

3. The PLA report, on which the Applicants rely, makes two comments about the quality of the housing stock in the precinct:[33]

   The housing stock is typical of lower cost standard types built between the late 1930s and late 1950s. It is architecturally undistinguished and is only moderately intact.

   [33] Exhibit A2, at page 78

4. Further at page 80:

   When compared broadly to the other examples of this type the Precinct has excellent values with regard to street layout, verge and block plantings and views, but is let down by its housing stock which lacks design quality and intactness. In this respect the heritage listed Garden City Suburbs such as Ainslie, Reid and Barton are far better examples.

The Respondent’s evidence

1. Mr Marshall gave the following evidence in his statement [34]about the housing stock:

   “...In the case of the houses, this was and remained an unresolved aspect of the Philip Leeson Architects’ study which Councillors wrestled with through the assessment process”[35]  

   [at paragraph 55]:

   “In the case of the housing, rather than being an interesting example of ongoing development, Council correctly argued the utilitarian houses were ‘an erosion of Garden City qualities; and that even if they were a positive quality, the integrity of the houses, especially in Section 48, has been substantially diminished’ (T Doc 9).”

   ·      Degradation of the pocket parks

The Applicants’ evidence

[34] Exhibit R10, at paragraph 51

[35] T 743-T744, T784, T1093, T1220

1. Mr Martin’s evidence was that the pocket parks were not degraded. Professor Taylor gave evidence that from his examination the parks were not degraded.

2. The PLA Report, on which the Applicants rely, says of the pocket parks:[36]

   “The two small islands carry a mix of evergreen and deciduous trees. Section 50 contains a mature London Plane, 2 small Claret Ash, 2 young Acacias and a Robinia. The setout is quite haphazard and only the Plane tree appears to be original.” 

The Respondent’s evidence

[36] Exhibit A2, at 76

1. Mr Marshall’s evidence was that the size of the pocket parks was a consideration of the Council when comparing the precinct with the size of open spaces in the other registered Garden City precincts. The quality of plantings was also a consideration. He said that the strength of the planting pattern was a ‘very mixed bag’ – mixed age, mixed exotic. Some had been replanted while some had been lost and not replanted. He said that the planting framework was absent and the parks had an undesigned and random quality to them.

2. In cross examination he defended his view that the size of the parks was a consideration saying that larger parks in a precinct allow a framework planting which provides the opportunity for preserving structure and form.

   ·      Presence of high hedge lines to some front boundaries

The Applicants’ evidence

1. Mr Martin’s evidence was that most of the front hedges in the Turner precinct are 1.2 metres and some were 1.8 metres. It is still possible to see built form behind the existing hedges. He said he had seen hedges in other registered Garden City precincts overgrown above 1.2 metres.

2. Professor Taylor’s evidence was that the presence of high front hedges also applied in some of the registered Garden City precincts. Regardless, he was not aware that Sulman in his Garden City design had laid down how high hedges should be. He said the accepted set height of 1.2 metres arose from Department of Interior trimming practice when it trimmed hedges for residents up to the 1970s.

The Respondent’s evidence

1. Mr Marshall, in his evidence, noted a number of high hedge lines which he said detracted from the Garden City qualities of the precinct.

   ·      Garages in front of some dwellings

The Applicants’ evidence

1. Mr Martin conceded in his evidence that building garages in front of some dwellings in the Turner precinct had evolved over time but he did not consider this detracted significantly from the precinct’s Garden City values. He suggested that this could be because this precinct had not had the benefit of heritage control as other heritage listed precincts had had. He said the early houses had the garages at the back of the houses. When car use increased the need for garages changed. He was not aware if garages had been provided to all houses in this precinct initially.

2. In cross examination, he agreed that space between detached cottages was typical of Sulman’s planning stating that one should see ‘dwelling/space/dwelling”.  He did not agree that there were many more examples of front garages and carports as compared with other registered Garden City precincts. He had seen similar examples of sideways expansion into the side buffer of open space between dwellings in Macleay Street and in other precincts such as the Reid Heritage precinct.

3. Professor Taylor conceded there were garages in front of some dwellings.

The Respondent’s evidence

1. Mr Marshall, in his oral evidence, referred to garages in front of dwellings at Block 8 Section 47 (steel pole and tension shade structure obscuring and impacting the streetscape), Blocks 7 and 8 Section 48 in Macleay Street (carports obscuring) and Block 11 Section 47 (another carport forward of the building line). In cross examination, he gave evidence that the effect of such garages and carports was to ‘convert’ private open spaces from connecting with public open spaces which was a connection needed to constitute a Garden Suburb.

   ·      Predominantly single verge crossings

The Applicants’ evidence

1. Mr Martin’s evidence was that shared verge crossings were one of the principles of Garden City design but that single driveways do not detract.

2. Professor Taylor’s evidence was that while there were predominantly single verge crossings in the precinct, evidence of double verge crossings in other Garden City precincts such as Reid had disappeared over time.

3. The PLA report, on which the Applicants rely, says [Exhibit A2, at page 67]:

   Verge crossings are mostly single width, with a few paired crossings. These are bitumen. The extent of original fabric is difficult to determine. This is typical of Turner Streets and not remarkable.

The Respondent’s evidence

1. Mr Marshall’s evidence was that there was an absence of shared verge crossings in the precinct.

• Degradation of the stylistic consistency of housing through unsympathetic alterations and redevelopment

The Applicants’ evidence

1. Mr Martin considered Section 47 had retained a higher level of integrity than Section 48. In cross examination he was asked about the effect of consolidating Blocks 14 and 15 adjacent to the apex of the Block 49 pocket park. He disputed that a very important aspect of the Garden City design precinct was lost as a consequence. He agreed that the effect on block layout was a loss, but he did not categorise this as a significant loss. He also agreed that it was part of the symmetrical plan to have detached cottages on each separate lot but he did not consider the one loss out of 16 blocks a significant loss.

1. He agreed that the siting of the Baptist Church in the precinct did not follow Sulman’s prescription,[37] however said that Sulman had prefaced his prescription with the words “Whenever possible”.

   [37]    Town Planning in Australia, John Sulman, at page 121 Exhibit R4 “Wherever possible they (public buildings such as churches) should be allotted an open space surrounded by roads and terminating a vista, instead of being jammed in between dwellings to the detriment of both......[words within brackets added]”

2. Mr Martin was asked whether he would rate Section 48 very lowly in terms of intactness. His evidence was that the diminished intactness in Section 48 is one component, but not the only component. If the buildings alone were looked at he agreed it rated poorly in terms of intactness, but on overall heritage values he maintained Section 48 had a high level of value.  

3. Professor Taylor’s evidence was that in spite of the degradation of stylistic consistency in housing through unsympathetic developments over time there was still a sense of harmony and not of disruption in the landscape and that a degree of harmony and unity remained. He said the houses were not museum pieces. They were places where people lived. They needed to be looked at in the context of their setting with regard to their bulk, mass and the plantings around them. He added that he was a town planner, not an architect. He said that the church was a focal point for Hartley Street even though it has houses around it. In fact, Sulman had cited instances of churches in suburbs integrated within the housing.[38]

   [38] E.g. Daceyville; page 112, Town Planning in Australia, John Sulman

4. The PLA report, on which the Applicants rely, makes a number of comments on the housing stock. It says[39] of the housing stock in Section 48:

   [It] has been compromised by the replacement of 6 houses including the construction of new, predominantly, 2-storey housing and 2-3 storey flats across some 30% of the total area. ....

[39] Exhibit A2, at pages 58 and 59

1. It further says:[40]

   The Department of Works and Housing’s stock on Section 48 has been intrusively re-developed over much of the section, with some 2-3 storey development, impacting on both the external streetscapes as well as the internal spaces (sections 49-50), shared with houses on Section 47. Although the housing stock on Section 47 remains single-storey, with some intact examples, adaptation and the replacement of some houses has begun to impact on its garden suburb character. In 2004 Dowling identified 11 original and 12 modified houses and 1 new house on Section 47, with 8 original, 8 modified and 3 new houses on Section 48.

   Individual houses often relate uncertainly to their neighbours and the streetscape, the whole lacking a distinctive character other than that suggested by the common use of brick and tile. This is particularly the case with Greenway Street on the southern side of Section 47.

   [40] at page 59

2. It concludes:[41]

   Of the 24 original houses built on Section 47, 11 are largely intact, having undergone only minor alteration, 9 have undergone alteration and additions but are sympathetic to the original character, 3 have undergone significant unsympathetic alteration such that the original form is not recognisable, and 1 has been demolished and re-developed as a single house.

   Of the 19 original houses built on Section 48, 3 are largely intact, having undergone only minor alteration, 4 have undergone moderate alteration and additions but are sympathetic to the original character, 7 have undergone significant unsympathetic alteration such that the original form is not recognizable, 3 have been demolished and redeveloped as the two and three storey apartment complex known as “Provence” (these 3 blocks are not part of the study area but are relevant to a discussion of intactness) and 2 have been demolished and redeveloped as single houses.

The Respondent’s evidence

[41] Exhibit A2, at page 64

1. Mr Marshall’s evidence was that the stylistic consistency of the housing had been degraded to such an extent that the intactness of the Garden City design qualities had been lost. He identified that the church was intended to relate to the broader town planning design, not just the Turner precinct. He pointed to the Manse, built in the 1980’s and the development of the Provence apartments on Condamine Street as evidence of degradation. In his Witness Statement he said that the Council had correctly argued the utilitarian houses were an erosion of Garden City qualities, and even if they were a positive quality, the integrity of the houses, especially in section 48 has been substantially diminished.

CONSIDERATION

1. The Tribunal is required to consider whether there are reasonable grounds that can support heritage significance, based on probative evidence, despite the use of the word ‘may’. There must be more than a theoretical possibility. In Taglietti[42] the Tribunal said in relation to section 32(3) of the Act:

   “The Council therefore considers the place’s potential values against each criterion and whether the place meets it. Without this assessment filter at the provisional registration stage every nomination would be provisionally registered on the grounds that it may have values. There is no presumption of registration without the application of the criteria.”

   [42] Taglietti [2011], at [87]

2. The Respondent submitted,[43] and the Tribunal concurs, that the threshold considerations, as a matter of discretion, may include the economic effect of registration on a property owner, subject to the Act.

   [43] Respondent’s Summary of Submissions, at [4]

3. The Applicants defined the Turner precinct as an example of a Canberra Garden Precinct or Suburb in the Sulman Style [44] and submitted that such Canberra Garden Suburbs are a ‘distinctive design’ strongly associated with the early development of Canberra. The Applicants submitted[45] that the distinctive design is of exceptional interest; (a) as a particular manifestation of garden suburb planning and development and (b) to the history of Canberra; as the design, together with the overarching geometry of Griffin’s plan, underpinned Canberra’s early residential development.

   [44] Applicants’ Opening Statement, 25 January 2013, at [14]

   [45] Applicants’ Opening Statement, 25 January 2013, at [16]

4. The Respondent submitted[46] that ‘design’ is to be distinguished from ‘construction’, adding that the construction, or execution of the design, is relevant to the evaluation of the design because it represents its physical embodiment; its end product. But it is not the same thing as construction which may occur at a much later time than design, as in fact happened in the Turner precinct.

   [46] Respondent’s Summary Submissions, at [13]

5. The Applicants relied on the PLA report and the evidence from Mr Martin and Professor Taylor. The attributes or significant features referred to in the PLA report are set out in paragraph 66 above. The PLA report summarised[47] the ‘high heritage value’ of the precinct as follows:

   ·Sections 47-50, Turner, outlined in planning form in 1940 and developed from 1947, are unusual as one of three, new, garden suburb subdivisions endorsed by the NCPDC in 1940. The three garden suburbs are late expressions of the suite of garden-suburb features, comprising planning, layout and design, espoused by John Sulman in the late 1920s;

   ·Sections 47-50, Turner, better represent the continuity of Sulman’s ideas, in their planning, layout, and design, when compared to the other two subdivisions, Hackett Gardens, Turner and Bannister Gardens and Meehan Gardens Griffith and Narrabundah;

   ·Sections 47-50, Turner, was the last subdivision to employ almost the full suite of garden-suburb features;

   ·The planning, layout and design of sections 47-50, Turner, has features characteristic of garden suburbs of the wartime and early post-war years and illustrates the standards applied in the post-war years in suburbs housing government staff and professionals.

   [47] Page 61, T217

6. The Applicants also referred to the Draft Citation for Provisional Registration which had been prepared by the Heritage Unit for discussion at Council meetings. The Council did not accept the Draft Citation. The Draft Citation[48] stated under Assessment against the Heritage Significance Criteria in relation to criteria (c) and (g):

   [48] Version 4, 9 July 2013, pages 4-6

   (c) it is important as evidence of a distinctive way of life, taste, tradition, religion, land use, custom, process, design or function that is no longer practised, is in danger of being lost or is of exceptional interest;

   Turner Housing Precinct meets this criterion as a distinctive design in danger of being lost.

   The Precinct is important as a modified expression of the Garden City precinct, as espoused by John Sulman, as implemented under constrained circumstances arising from WWII and the Great Depression.

   The Precinct, planned in 1940 and developed from 1947, is important as one of the three Garden City suburb subdivisions built during the era of the National Capital Planning and Development Committee (NCPDC) 1938-57, which followed the Federal Capital Advisory Committee (FCAC) in its first planning of Garden City suburbs for Canberra in the early 1920s.

   The three subdivisions, comprising Hackett Gardens, Turner, Bannister Gardens, Griffith and Turner Housing Precinct, are revived expressions of Garden City planning principles, comprising planning, layout and design, espoused by John Sulman in the 1920s, and developed as newly planned sections within the geometry of Walter Burley Griffin’s Gazetted Plan of 1925.

   In comparison to the other two subdivisions the Precinct represents the continuity of Sulman’s ideas and was the last subdivision to employ almost the full suite of Garden City planning principles. Garden City planning principles include the use of a hierarchical road system. Due to the small scale of the Turner Housing Precinct, it does not allow this attribute to be fully demonstrated.

   The planning, layout and design of the Precinct demonstrates most of the features of Garden City planning principles espoused by Sulman including:

   ·The street layout including curved corners, pedestrian walkways across common areas, Holder Street lay-bys and the pocket parks (Sections 49 and 50)

   ·Uniform street furniture, including original NCPFC era lamp posts and fire hydrants

   ·Mature verge plantings

   ·Paired verge crossing

   ·Large verges

   ·Houses set diagonally to the corners

   ·Alternating front setbacks and varied building orientation and front entry

   ·Generous side setbacks to allow for landscaping on all sides

   ·Low hedge lines on front boundaries

   ·Power lines relegated to the sides and rear of blocks

   ·The stylistic consistency of houses

   ·Garages sited to the rear of the block.

   (g) it is a notable example of a kind of place or object and demonstrates the main characteristics of that kind

   Turner Housing Precinct meets this criterion.

   The Precinct is a notable example of the modified expression of a Garden City precinct, as espoused by John Sulman, as implemented under constrained circumstances arising from WWII and the Great Depression.

   The Precinct, planned in 1940 and developed from 1947, is important as one of the three Garden City suburb subdivisions built during the era of the National Capital Planning and Development Committee (NCPDC) 1938-57, which followed the Federal Capital Advisory Committee (FCAC) in its first planning of Garden City suburbs for Canberra in the early 1920s.

   The three subdivisions, comprising Hackett Gardens, Turner, Bannister Gardens, Griffith and Turner Housing Precinct, are revived expressions of Garden City planning principles, comprising planning, layout and design, espoused by John Sulman in the 1920s, and developed as newly planned sections within the geometry of Walter Burley Griffin’s Gazetted Plan of 1925.

   The planning, layout and design of the Precinct demonstrates most of the features of Garden City planning principles, such as common space laybys and walkways, alternating street frontages and generous side setbacks, illustrating the standards applied during the wartime and early post war years in the ACT such as the reduction in block sizes from the 1920s standards.

7. The Tribunal noted that Sulman identifies[49] -

   The special characteristics which differentiate [garden suburb or garden city] from the ordinary town or suburb are the allocation of special quarters or sites for each kind of building, the absence of congestion of dwellings and their better arrangement, the better provision of parks, playgrounds and open spaces, the planting with trees and grass of part of the width of the roads where not required for traffic and the provision of greater opportunities for social intercourse. [words within square brackets added]

   [49] at page 106

8. While the Garden City design includes a variety of elements, the Tribunal agrees with the Respondent’s submission that the main elements are:

   i.segregation of types of buildings;

   ii.the street layout, including road hierarchy;

   iii.the arrangement of blocks;

   iv.the siting or spacing of form on the blocks;

   v.the provision of landscaped open space; and

   vi.consistency in style of the built form.

9. The Tribunal noted that the Council’s list of attributes include road patterns and block layout, neither of which were considered as attributes in the PLA report, and, the subdivision arrangement of blocks which was very important to Sulman and to the Council. The Tribunal is satisfied that these attributes should also be considered in this matter.

10. The Tribunal has considered the identified heritage criteria, with particular focus on the qualifying words, ‘important’ example for criterion (c) and ‘notable’ example for criterion (g) and assessed the Turner precinct with the evidence and other examples to ascertain if the precinct meets the threshold.

11. The Tribunal has considered all of the evidence to determine if, when compared with other relevant registered precincts, the Turner precinct meets the threshold of being important evidence of a design both in terms of an intact design and its expression in built form and/or whether it constitutes a notable example of the relevant kind of design. The Tribunal first considered the design of the precinct in terms of intactness and expression in built form.

12. The precinct the subject of the nomination is a part of the original Turner subdivision. The nomination is limited to Sections 47, 48 excluding Block 24, 49 and 50. It does not include Sections 46 and 57 and Sections 63 and 62.  The Respondent submitted that the precinct, as defined by the Applicants, does not constitute important evidence or a notable example of a design because it excludes important parts of the design[50].  Mr Marshall’s evidence that Sections 63 and 48, the subdivision around the school reserve and the walkway giving pedestrian access from section 61 to the school reserve, were part of a broader design was not challenged.

    [50] Respondent’s Summary of Submissions, 28 November 2013 [25]

13. Mr Marshall’s evidence, which was also unchallenged, was that section 57 reflected the Sulman characteristic that different types of buildings, office and apartment buildings, are sited separately. He identified the transition at Forbes Street, which is the eastern boundary of Section 46, into residential buildings. The Tribunal observed, during the view, that Section 46 had block layouts and siting of houses similar to Sections 47 and 48.

14. It was also not in dispute that Sections 62, 63 and 64 included considerable redevelopment. The Tribunal observed that two blocks on Macleay Street (Section 46) were undergoing redevelopment. The relevant plan allows medium density development in Sections 46 (RZ4) and in the proposed precinct (RZ3).[51]

    [51] RZ stands for Residential Zone in Territory Plan.

15. The Applicants took issue with the Respondent’s submission that the precinct had been defined down to an area that had the best prospects of meeting the heritage criteria as the other sections had redevelopment and multi-unit development which would negatively impact on a heritage assessment.

16. Mr Gardner said that the Applicants did not include other sections of Turner because the precinct boundaries relied on in the nomination are clear. He observed that other registered precincts are ‘parts of suburbs’ and not the whole suburb. He objected to the Respondent submitting that the Applicants had cut out parts of the precinct in their application to achieve a precinct with minimal alteration. The Applicants and the Party Joined are all residents of the nominated precinct. Mr Gardner said that the nomination was made by the Turner Residents Association. The way heritage works is that it is driven from below. People nominate precincts, they do not cut away.

17. The Tribunal is not satisfied, from considering all of the material before it, that the Applicants had deliberately selected the precinct in the nomination by cutting out or omitting parts to have a precinct with the best chance of being registered.

18. Nevertheless, the Tribunal finds itself in the position where Mr Marshall has given compelling evidence that the nominated precinct is part of a much larger subdivision that has the Sulman characteristics referred to above, particularly, the allocation of sites for each kind of building which, apart from the Church, are not found in the nominated precinct.

19. The Tribunal noted Professor Taylor’s evidence that the church was probably sited at the end of Hartley Street to provide the vista, which suggests that Section 48 was intended to be part of a broader design including Section 63. The PLA report also identified[52] that the church block may not be part of a Garden City design, but a remnant of a different form of neighbourhood planning that was later abandoned.  The evidence about the church’s location is persuasive evidence that the nominated precinct is not an example of a design; rather it appears to be an example of part of a design. This inevitably impacts negatively on an assessment of the integrity of the design of the precinct. 

    [52] at T 30 and 40

20. In relation to the nominated precinct’s small size, the Tribunal is satisfied that this has contributed to the physical changes within the precinct being accentuated. The Precinct has suffered two significant diminishments.

21. The first diminishment was to the original Garden City design in the late 1940s/early1950s when two Section 48 blocks in its centre in Holder Street were consolidated with church land and when an unsympathetic Church Manse was subsequently built on that land in the 1980s. This development has departed from Sulman’s plan for detached cottages on separate blocks with landscape in between and broken the rhythm of the scale of housing on the Section 48 side of the park. The Tribunal finds that it does detract from the Garden City qualities of the precinct and negatively impacts on the assessment of the heritage significance of the precinct.

22. The second diminishment was the loss of three Section 48 blocks which were consolidated into Block 24 when the ‘Provence’ multi-unit complex was built in Condamine Street in the early 2000s. While Block 24 has been excluded in the nomination, and other registered precincts have had blocks excluded, the Tribunal could not help but observe the significant and negative  impact of this large complex on Section 48 and thus on the nominated precinct as a whole. The reality is, and the Tribunal finds, that the ‘Provence’ development is surrounded by the Precinct. The development’s existence, both in its scale and design, significantly negatively impacts on the intactness of the precinct and its Garden City qualities and ultimately, on the assessment of the heritage significance of the precinct.

1. In considering the social entity of the precinct the Tribunal finds that it was, as stated by Mr Martin, designed for a certain type of public servant. However, the Tribunal also finds that, as stated by Mr Marshall, there has been a washing out of that social stratification, and that what was once a strong sense of social entity does not remain today.

2. It was apparent to the Tribunal when considering the physical entity of the precinct and comparing it with Meehan and Bannister Gardens, as the PLA report had done in comparing examples of a 1940s Garden City design, that there was an absence of curvilinear design and there were no incidental left over green spaces in the precinct.  While the precinct included the small reserves of Blocks 49 and 50, the Tribunal is not satisfied that these reserves created a distinct physical entity for the whole of the precinct.

3. In relation to the road hierarchy the Tribunal has found that the precinct was part of a larger precinct. Having observed the road hierarchy at the view and considered the material before the Tribunal, it finds that the road hierarchy within the precinct is a remnant of the planning for the larger precinct of which it is a part. The Tribunal finds that this negatively impacts on the physical entity of the precinct. The Tribunal is also satisfied that road hierarchy within the precinct is inferior.

4. The quality of the original housing stock is an important consideration in determining heritage significance. The housing stock is variously described as ‘lacking design quality and intactness’, ‘modest’, ‘architecturally undistinguished’ and representing ‘an erosion of Garden City qualities’. Its poor design quality diminishes the heritage significance of the precinct.

5. The Tribunal concurred with the PLA Report’s findings[53] that in Greenway Street, on the southern side of Section 47, the individual houses related uncertainly to their neighbours and the streetscape and as a whole lacked a distinctive character other than that suggested by the common use of brick and tile. This diminishes the heritage significance of the precinct.

   [53] at page 61

6. The degradation of stylistic consistency of housing is an important consideration in determining heritage significance. If the degradation is of such an extent as to diminish overall intactness then heritage significance is effectively lost. While the Tribunal accepts that houses are not required to be museum pieces for heritage listing consideration, the Tribunal finds, in this precinct, this diminishment is significant, particularly in Section 48 and to a lesser degree in Section 47.

7. Given the small size of the precinct, the redevelopment, replacement and modification of the houses is particularly apparent as is the resulting negative impact of that modified or replaced housing on the external streetscapes and the internal pocket parks. This has all diminished the heritage significance of the precinct.

8. In relation to the presence of fences the Tribunal noted the presence of fences to some front boundaries at the view and the plantings that had softened some of these fences. The Tribunal cannot ignore that Sulman’s Garden City design included an absence of front fences.

9. The Tribunal finds that the pocket parks (Sections 49 and 50) were degraded in the sense that a planting framework was absent and the set-out was quite haphazard. This is possibly the result of the small size of these parks which appear not to have provided an opportunity for preserving structure and form. Some of the trees have been replanted and some have been lost. This has contributed to parks having a reduced quality and to the diminishment of the heritage significance of the precinct.

10. The Tribunal finds that garages and carports have been built in front of some dwellings in the precinct and accepts Mr Marshall’s evidence in this regard. On the view the Tribunal also observed these garages and carports, and noted that they did interrupt the connection between private open spaces and public open spaces.

11. The Tribunal observed and is satisfied that there were predominantly single verge crossings in the precinct and not the shared verge crossings which was one of the principles of Garden City design.

12. The Tribunal finds that there are some hedges in the precinct which exceed 1.2 metres, however, the Tribunal is not satisfied that Sulman’s design laid down how high hedges are to be. The Tribunal was not satisfied that the high hedges detracted from the Garden City qualities of the precinct.

13. While the Tribunal is satisfied that the Precinct is an example of a modified expression of a Garden City precinct, as espoused by John Sulman, for the reasons set out above the Tribunal is also satisfied that the design of the precinct, in terms of intactness and expression in built form, is significantly diminished.

14. The Tribunal then considered the Continuity of Garden City Design versus late example of Garden City Design or Phase.

15. A lot of evidence was devoted to the Turner precinct being part of the continuum in the planning and administration from Griffin to the FCAC[54] to the Department of Interior and then to the National Capital Planning and Development Commission. The Applicants submitted that the Turner precinct was important evidence of a ‘late’ example of the Garden City design or phase in the Garden City development through the 1940’s, which ended with the 1955 Senate inquiry and the subsequent 30 years of the National Capital Development Commission from 1958.

    [54] Federal Capital Committee

16. The Applicants urged the Tribunal to consider that this is important historical evidence and to note that the PLA report states that the built fabric in the north is under threat. Essentially, the Applicants submit without provisional heritage registration evidence of this phase of Garden City design is in danger of being lost.

17. The Respondent submitted that a notable or important example of design depends on the quality of the design, not its chronology.

18. Both of the Applicants’ witnesses said that the Garden City design had been applied from about 1925 to 1955. The Tribunal noted that the PLA report identified much of the design of the Turner precinct occurring between 1925 and 1940. While the precinct block layout design was done in 1947 and 1949, it is almost identical to a design around a central semi-circular park, drawn by Sulman before 1921.[55]  This would appear to support the Tribunal finding that the Turner subdivision is not a ‘late’ design as the Applicants submit.

    [55] Respondent’s Summary of Submissions, 28 November 2013, at [38]

19. Mr Marshall gave evidence that the Council had looked for something, by way of evolution of the design and not degradation, that might make the period from the 1930’s “worthy in quality” rather than just “trailing off” the Garden City design period.[56] Mr Marshall said he himself had investigated one of the PLA Report’s claims that smaller blocks were evident in the late Garden City design and had found no evidence to support this. His evidence was not challenged.

    [56] Respondent’s Summary of Submissions, 28 November 2013, at [39]

20. The Respondent has placed 10 Heritage precincts on the register for their Garden City attributes. The Applicants submit that as Braddon was the first of the precincts developed in the Garden City design and as the Turner precinct is perhaps the last, it should be registered by the Council to ‘bookend’ this period of development. The Respondent did not agree that the Turner precinct was ‘perhaps the last’.

21. The Respondent submitted that the Turner sub division was not a “late” design at all.  Elements of the design (the main streets) were present in Turner in 1925. Condamine Street was included in the design in 1939. While the construction of the houses occurred during the late 1940’s, the Garden City design was in existence much earlier.

22. The Tribunal is satisfied that the Garden City design existed in and was applied from the 1920’s and was implemented throughout the 1920’s, 1930’s and 1940’s. It is clear from the evidence that Turner Garden City design was not developed in the 1940’s and while the housing in the precinct was constructed during this period, that, of itself, does not make it significant.

23. The Tribunal has carefully considered all of the evidence and is not satisfied that the Garden City design is divisible into early, middle and late phases; rather the Tribunal is comfortably satisfied that Sulman’s Garden City design was a continuum from the 1920’s.

24. If the Tribunal is wrong in determining to assess the precinct as part of a continuum and not as a ‘late’ phase as the Applicants sought, the Tribunal notes that in Taglietti the applicants submitted that the school was the first to be designed to meet open plan learning objectives and requirements, and that the respondent in that case did not dispute that the school was the first school to be purpose built for open planning. That Tribunal said at [153] “The school was not the first to adopt open plan learning, nor was it the last. Nor can it be said to be the best….” and “The issue is whether the school has a strong or special association with that development or phase.” What the Council was looking for in that matter was ‘quality’ not ‘time’. Likewise, the Tribunal is looking for quality of the precinct, not time, in considering the heritage criteria in the present matter.

25. It is true that Trevor Gibson resided at 18 Greenway Street in the precinct from 1949 to 1980 and that he was Canberra’s first town planner.  Paul Reid states in “Canberra Following Griffin”[57] that modern planning arrived for Canberra in May 1949 with Trevor Gibson’s appointment.  He was Head of Town Planning from 1949 to 1958. He brought an alternative planning philosophy. His work provided the planning rationale for the settlement pattern of modern Canberra that replaced Griffin’s Organic City[58].

    [57] A Design History of Australia’s National Capital 2002, National Archives of Australia, page 212

    [58] A Design History of Australia’s National Capital 2002, National Archives of Australia, page 217

26. However the Respondent submitted, and the Tribunal accepts, that planning of the Turner precinct predated Trevor Gibson’s involvement and that this association is neither strong nor special. The Tribunal is also satisfied from the evidence that there was nothing remarkable about the house in which he lived. The Tribunal is not satisfied that Mr Gibson’s residence in the precinct, of itself, while an interesting observation, is a strong or special association or an historically important fact that assists the Tribunal in assessing the criteria relied on by the Applicants. 

27. The Applicants also submitted that Lindsay Pryor, who was Director of Parks and Gardens from 1944 to 1958, oversaw the planting of the precinct during this time and that the precinct is important as it demonstrates some of the attributes of his work. Lindsay Pryor was noted for his work on Eucalyptus taxonomy and his role in the landscape design of Canberra. The precinct includes evidence of his experimentation with Eucalyptus species. However, his work in Turner is typical of many inner Canberra suburbs at the time. The Tribunal is not satisfied that this association is either strong or special or an historically important fact that assists the Tribunal in assessing the criteria relied on by the Applicants. 

28. The Applicants did not put evidence to the Tribunal of any other relevant factual historical material that could satisfy the Tribunal that the Turner precinct was associated with an historically important phase. While it is true that the Turner precinct was built during one of the Territory’s bureaucratic periods, there was no evidence that could satisfy the Tribunal that that was historically important.

29. The Tribunal considered the evidence against the two selected section 10 heritage significance criteria, with particular emphasis on ‘important evidence’ and ‘notable example’ in the criteria in determining the intactness of the precinct. This inevitably required the Tribunal to make a comparative assessment with other evidence or examples[59] and to ascertain whether the area the subject of the nomination meets the threshold.

    [59] Taglietti [84, 11-134]

30. In assessing the quality or importance of this evidence, the Tribunal has noted that the Applicants’ expert witnesses and Mr Marshall disagreed.
    Professor Taylor confirmed that assessing significance is a value judgment and that different experts or assessors will have different value judgments. Mr Marshall said[60]:

    It is not uncommon for one expert to hold strong views about heritage values, but for Council to decide otherwise. This can occur in the case of external experts, expert staff in the Heritage Unit, or indeed individual expert Council members. The process requires the expert and community members of Council to come together to make a decision, and this is part of the strength of the process.

    [60] Duncan Marshall Witness Statement  [52]

31. The Tribunal has weighed up all of evidence when considering and comparing the nature and strengths of the heritage values of the Turner precinct with comparable registered precincts. The Respondent states that the Turner precinct is an undistinguished example of Garden City qualities and better examples are found in the registered heritage precincts of Alt Crescent, Barton, Blandfordia 4 and 5, Braddon, Corroboree Park, Forrest, Kingston/Griffith, Reid and Wakefield Gardens.

32. While the Tribunal is satisfied that the criteria are not constrained by the number of heritage precincts currently listed comparison with existing Garden City precincts is warranted.

33. The PLA report on which the Applicants rely invites[61] such comparison saying ‘the planning, layout and design of sections 47-50, Turner, has features characteristic of garden suburbs of the wartime and early post-war years and illustrates the standards applied in the post-war years in suburbs housing government staff and professionals; but notes “that the original, undistinguished, single-storey housing stock has undergone substantial, sometimes intrusive re-development, adaptation and change detracting from streetscape and heritage values”. The Applicants assert that the precinct stands on its own Garden City heritage values as its meets the bulk of the attributes and should be provisionally registered. Nonetheless the Tribunal observed, at its view of the Corroboree Park, Alt Crescent, Reid and Braddon Heritage precincts, that the diminished integrity of the heritage values in the Turner precinct is a significant detriment. 

    [61] at [4.4.6]

34. The Tribunal is satisfied that while the precinct meets many of the heritage attributes, they are minor heritage values and are significantly and detrimentally impacted upon by the lack of intactness and substantial diminution of the integrity of housing, especially in Section 48 and, to a lesser extent in Section 47. The block consolidations in Section 48 are evidence of further substantial diminution of the integrity of the design.   Where the evidence of Mr Martin, Professor Taylor, the PLA report and Mr Marshall differ in assessing these values, the Tribunal prefers the evidence of Mr Marshall. The precinct is also detrimentally impacted upon by the significant diminution of the attributes (excluding the front hedges) referred to in paragraph 69 above.

35. What remains in the precinct, when compared with other registered precincts especially Ainslie, Reid and Barton, is not important as evidence of Garden City design or a notable example of the expression of Garden City design. To the extent that the Applicants relied on the precinct as being important evidence of the austerity arising post-World War II, the Tribunal first, finds that the Turner precinct was nominated for its Garden City planning, not for its post war housing development and, secondly, accepts the Respondent’s evidence that this austerity is well represented by the Tocumwal Housing Precinct and the Beaufort Steel House in the Wakefield Gardens complex.

36. The Tribunal noted that the PLA report focussed largely on assessing Turner in the context of other post-war housing developments in Canberra. Because of the Garden City planning theme which extended much earlier in Canberra’s history, the Council considered the assessment should be made in the context of the overall theme of Garden City planning extending back to the 1920’s and not be limited to assessment in the context of post-war housing developments.

37. The Tribunal is satisfied, when considering the Garden City planning theme relied on by the Applicants, that it was not reasonable to limit assessing the Turner precinct in the context of only post-war housing development in Canberra. The Tribunal concurred with the Council determining that, because the Garden City theme extended much earlier in Canberra’s history, the assessment of the Turner precinct should be made in the context of the overall theme of Garden City planning extending back to the 1920’s.[62]

    [62] Duncan Marshall, Witness Statement, Exhibit A2, at [51]

38. The Tribunal is not persuaded, having considered all of the matters before it, and for the reasons set out above, that the Turner precinct meets the threshold of being important evidence of a design both in terms of an intact design and its expression in built form as is required to meet criterion 10(c). The Tribunal is also not persuaded that the Turner precinct meets the threshold of being a notable example of a kind of place that demonstrates the main characteristics of Garden City design in Canberra as is required to meet criterion 10(g).

CONCLUSION

1. As required by section 32(3) of the Act, the Tribunal has considered all of the evidence before it and considered the meaning of criteria (c) and (g) in
   section 10 of the Heritage Act, either one of which needs to be satisfied to give a place heritage significance.

2. The Tribunal concluded that from considering all of the documents, the evidence and oral and written submissions, it could not be satisfied that it is actually persuaded, or is able to reach a clear conclusion, that the precinct meets the criteria for heritage significance in section 10. Nor were there reasonable grounds, as required by subsection 32(3) of the Act, for the Tribunal to exercise the discretion to provisionally register the Turner precinct.

3. The Applicants will understandably be disappointed with this decision. They have invested a significant amount of time and energy into pursuing their nomination. While they may see an adverse decision as some reflection on their being self-represented in this matter, the Tribunal assures the Applicants that this is not the case.  The Tribunal acknowledges the Applicants’ considerable research and thorough commitment to the preparation of their case which was apparent from the high standard of presentation. 

4. Choosing examples that meet criteria categories must be underpinned by a quality of importance as understood through the criteria. The Tribunal reiterates that the threshold to be met is not low.[63] The threshold has not been met here.

   [63] Taglietti [122]

   ………………………………..

   Ms E. Symons - Presidential Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A

FILE NUMBER:	AT 13/64, AT 13/65
PARTIES, APPLICANT:	Henry Gardner, Nicola Watson
PARTIES, RESPONDENT:	ACT Heritage Counsel
PARTIES, PARTY JOINED  AT 13/64 & AT 13/65	Henavine Pty Ltd
PARTIES, PARTY JOINED  AT 13/64 & AT 13/65	Ramesh & Rashmi Malik
COUNSEL APPEARING, RESPONDENT	Dr D. Jarvis
SOLICITORS FOR RESPONDENT	ACT Government Solicitor
TRIBUNAL MEMBERS:	Ms E. Symons, Dr T. Foley
DATES OF HEARING:	26, 27 & 28 November 2013
PLACE OF HEARING:	Canberra