Gary Cairns v ACT Heritage Council (Administrative Review) - [2010] ACAT 48

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

GARY CAIRNS v ACT HERITAGE COUNCIL (Administrative Review) [2010] ACAT 48

AT 85 of 2009
Catchwords: “Heritage Act – private residential property – property substantially altered – heritage significance criteria – differing views of expert architects – significance of original architect in evaluating criteria – Heritage Council decision set aside.”

Legislation: Heritage Act 2004 ss 3, 8, 10, 40

Heritage (Decision about Registration of 24 Arthur Circle, Forrest) 2009 Notice No 1 (Notifiable Instrument NI 2009–403)

Authorities: ACT Chapter of Royal Institute of Architects and ACT Heritage Council [2003] ACTAAT 18 (11 April 2003)

Pashalidis and ACT Heritage Council [2003] ACTAAT 53 (18 December 2003)

Tribunal:Mr C.G Chenoweth, Member (Presiding)
Mr J. Ashe, Senior Member

Date of Orders: 18 August 2010
Date of Reasons for Decision: 18 August 2010

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 85 of 2009

BETWEEN:

GARY CAIRNS
Applicant

AND:

ACT HERITAGE COUNCIL
Respondent

TRIBUNAL:Mr C.G Chenoweth, Member (Presiding)
Mr J. Ashe, Senior Member

DATE: 18 August 2010

ORDER

The decision of the Heritage Council of 20 August 2009 to place the property at 24 Arthur Circle at Forrest on the Heritage Register is set aside, and is substituted by a decision that the property is not to be entered on the Register.

………………………………..

Mr C.G Chenoweth
Member (Presiding)

REASONS FOR DECISION

Decision under review

This is an appeal against a decision of the ACT Heritage Council (‘the Council’) on 20 August 2009, pursuant to section 40 of the Heritage Act 2004 (‘the Act’), to enter 24 Arthur Circle, Forrest (Block 14, Section 44) ( ‘the property’) in the ACT Heritage Register (‘the register’) . The owner of the property, Mr Gary Cairns, has applied to the Tribunal for a review of the Council’s decision, pursuant to section 114 of the Act.

Heritage registration

The property was originally the subject of the “Heritage (Decision about Provisional Registration of 24 Arthur Circle Forrest) Notice 2008 (No.1)”. This was made on 7 April 2008 by notifiable instrument NI 2008-100. Attached to the notice was an entry of the property on the register, prepared by the Council. The applicant objected to this registration by a letter dated 23 May 2008, setting out the objections of himself and his wife.
There was then correspondence between the Council and the Chief Minister, as Minister responsible for Arts and Heritage. After considering the issues raised by the Chief Minister, the Council decided to exercise its powers under section 40 of the Act to register the property. This power of the Council may only be exercised under section 40 (2) (b) "if satisfied, on reasonable grounds that (the property) has heritage significance."
On 20 August 2009, notifiable instrument NI 2009–403, entitled "Heritage (Decision about Registration of 24 Arthur Circle, Forrest) 2009 Notice (No. 1)" was made. This replaced the earlier provisional registration, and registered the whole of the property on the register. As part of the registration, the Council set out the reasons that it considered that the property satisfied some of the criteria under section 10 of the Act.

Section 10 of the Act provides as follows:
"A place or object has heritage significance if it satisfies one or more of the following criteria (the heritage significance criteria.)" There are then set out a number of criteria. The Council in its reasons for registration considered that the property had heritage significance under five of the heritage criteria. These are discussed later in these reasons for decision.

The applicant was notified of the decision of the Council by letter dated 25 August 2009. An application objecting to the decision of the Council to register the property under section 40 of the Act was made by the applicant. It was lodged with the Tribunal on 2 October 2009. The respondent objected to the application as being out of time, and there were proceedings in the Tribunal by the respondent challenging the jurisdiction of the Tribunal to determine the matter.
It is not necessary to go into the detail of these proceedings beyond noting that, on 12 April 2010, Presidential Member Spender made an order determining that there were reasonable grounds for extending the time for making of the application for review, and extending that time to the date of filing of the application. This order has not been appealed. The Tribunal is therefore proceeding on the basis of the order made by Presidential Member Spender.
If a property is registered on the register, then the Council has power under part 10 of the Act to provide advice to the planning and land authority about the effect of any development on the property that bears on the heritage significance of the place. The Council's advice must be considered by the planning and land authority in approving or refusing to approve a development application. The Council may under section 61 of the Act set out proposed conditions on any development of the property including conditions to conserve the heritage significance of it.
Under part 11 of the Act, the Minister may give a heritage direction to the owner or occupier of the place or property that is registered on the register. A breach of that heritage direction is an offence under section 65 of the Act. These provisions go beyond those that apply to development applications that are made for a property that is not on the register, and certainly in the applicant's view, may go to the commercial value of the property for any future alteration or development. Against this, it may be said (as is spelt out in section 3 of the Act) that the purpose of the Act is to preserve for the benefit of the community as a whole property or objects that have significant heritage value, and that this that justifies the registration under the Act with its subsequent possible restrictions.

Background

In 1939, the original owners of the property, Mr and Mrs G Lea, commissioned the Canberra architect, Kenneth Oliphant, to design the house at 24 Arthur Circle. Plans were submitted for approval in March 1940 and approved in July 1940. It appears that construction was completed in 1941. The Tribunal heard that Mr Oliphant was given free rein in the design of the house, subject only to the proviso that it should include two bay windows.
Mrs Lea occupied the house from the time of its construction until 1995, when it was sold to the current owners, Mr and Mrs Gary and Judith Cairns. The house was unaltered during that time. At the time of purchase it was badly run down.
It appears from the T documents that at some time in or before March 1995 a Preliminary Heritage Advice (PHA) was prepared for the property. An amended version of the PHA was issued under the signature of the Heritage Council Chairperson, Mr Eric Martin, on 8 June 1995. This stated among other things that:
Although the house was designed by Oliphant, it’s [sic] architectural significance is regarded as low. While this house is on the Heritage Council’s Heritage Places Indicative List for assessment as part of a larger area, it does not of itself have sufficient heritage value to prevent it from being demolished.
At some time in mid-1995 the current owners, Mr and Mrs Cairns, acquired the property. Mr Cairns said that they purchased the property with the intention of renovating the house. Mr Cairns told the Tribunal that during the negotiations to purchase the property he was given a copy of the PHA dated 8 June 1995 by the real estate agent selling the property.
On 14 March 1995 the occupant of 22 Arthur Circle, Mr John Metcalfe, had written to Mr Eric Martin, urging the Heritage Council to review its assessment of 24 Arthur Circle. In annotations dated 10 May 1995 on Mr Metcalfe’s letter, Mr Martin said that the heritage significance of the property was:
considered low as it is not a good example of early modern architecture. It has some characteristics but not fully developed or well executed.
Oliphant was an important ACT architect but not all his houses warrant inclusion in heritage register for architectural merit.
The annotations also said:
Forrest study underway to investigate merit of the area [and] individual houses. … My view doesn’t change unless Forrest Study proves otherwise.
The Preliminary Report of the Forrest Housing Precint II Heritage Assessment was completed in November 1995. It identified 24 Arthur Circle as one of a number of ‘notable’ buildings that ‘provide excellent examples of high quality, architectural variety’ and ‘introduce a highly contemporary style to the Study Area’. The report assessed the house along with several others as having ‘considerable cultural significance’ and recommended that draft citations be prepared for these houses to further assess their importance.
Having purchased the property, Mr and Mrs Cairns engaged Mr David Boughton to draw up plans for renovations and substantial extensions to the house. Mr Cairns told the Tribunal that he wanted to change the façade of the house because he thought it was too stark, and he wanted to change the house so that it would better suit his family’s lifestyle. In particular he wanted to open up the interior of the existing house and substantially increase the size of the house.
During the preparation of the plans for the proposed renovations and extensions Mr Boughton consulted officers of the Council. The purpose of these discussions it appears was to assist Mr Boughton in preparing plans to meet Mr and Mrs Cairns’s requirements and objectives while being sympathetic to features of the existing house that were seen as having heritage significance.
A Record of Conversation dated 3 January 1996 prepared by an officer of the ACT Heritage Section records a discussion with Mr Boughton, indicating that the proposals involved:
·retention of the existing house and extensions to the rear in a ‘sympathetic manner’
·internal alterations with some walls removed
·opening part of the rear to the new extension
·relocation of one window on the north side
·extension of the patio across the front of the building and along the north side of the house
·replacement of defective timber windows with new timber to match
·probable replacement of the front door
·‘finishes to match existing (although some possibility of painting and rendering was mentioned by David there was no decision by client. I expressed a view that retention of face brick for the existing house was preferable but some [alternative] option may be considered for the new section’.

The current Chair of the Council, Dr Michael Pearson, told the Tribunal that ‘the Heritage Council supported what was a very sympathetic design that retained the important streetscape character of that part of the building visible from the street’. However, in a letter dated 14 February 1996 an officer of the ACT Heritage Section, acting under instructions from Mr Martin, informed Mr Boughton that:
It should be noted that face bricks and window type and detail should match the existing and that the development of the patio be sympathetic to the existing house.
A building application for the proposed extensions and renovations was lodged in May 1996.
On 7 August 1996 Mr Graeme Trickett wrote to the ACT Planning Authority enclosing a copy of a heritage citation for the house at 24 Arthur Circle prepared by the Royal Australian Institute of Architects (‘RAIA’) and expressing concern that the alterations and extensions proposed in the building application would result in the loss of some of the more important and significant architectural elements and would significantly lessen its architectural integrity. Among other things he said that the proposed extended porch which would continue along the front of the residence would greatly diminish the important semi-circular wing of the main bedroom. The letter said that the form extends to the ground and should remain so, and that any structure in front of this would detract from its important form and massing. On 21 August 1996 the RAIA submitted its citation to the Council and nominated the house for inclusion in the Interim Heritage Places Register.
Despite the concerns raised by Mr Trickett, the Planning Authority approved the renovations and extensions on 13 September 1996, including the construction of a raised pathway along the front of the house and in front of the main bedroom.
Despite the wish of the Council that the face brick finish on the existing house should be retained, the brickwork of the existing house was painted and rendered to match the finish in the new section of the house. Mr Cairns told the Tribunal that the renovation were done in accordance with the plan attached to his witness statement (Attachment C), which had been approved by the Planning Authority. The Tribunal notes, however, that this plan does not identify any requirement for the face brick walls of the existing house to be rendered and painted.
The Secretary of the Council acknowledged the RAIA’s nomination in September 1996, indicating that the assessment might take some time because of the existing workload. This proved to be an accurate prediction because it was not until April 2008 that the Council completed its assessment and approved the provisional registration of the property.
Mr and Mrs Cairns objected to inclusion of the property in the register. They commented that at the time they purchased the property in the mid 90’s the assessment by the Council was that, although the building was designed by Kenneth Oliphant, it was not of sufficient architectural significance to prevent it being demolished. It was their view that placing their home on the register would significantly reduce the value of the property. They argued that the property failed to meet the criteria for listing.
On 5 August 2008 the Council submitted a report to the Chief Minister on the public consultation in relation to the provisional registration of several properties, including 24 Arthur Circle. In response, the Chief Minister, on 4 September 2008, noted the public consultation that had been undertaken in relation to 24 Arthur Circle and three other properties, expressing concerns as follows:
I note the public consultation that was undertaken … and request you to give further consideration to the validity and reasonableness of the objections expressed by the owners of these properties. I am also concerned at the perception that objections are discussed without regard to objective criteria.
On 19 June 2009 the Council informed the Chief Minister that it had considered his request and was of the view that the assessment of 24 Arthur Circle against each of the heritage criteria was sufficiently robust to meet the threshold for listing in the register. The Council was of the view that the place should proceed to registration.
On 20 August 2009 the Council formally decided that 24 Arthur Circle should proceed to registration. The decision was notified in Heritage (Decision about Registration of 24 Arthur Circle, Forrest) 2009 Notice (No 1) (Notifiable Instrument NI 2009–403).

The entry in the ACT Heritage Register

The register includes the following statement about the heritage significance of 24 Arthur Circle:

Statement about the heritage significance of the place

The house at 24 Arthur Circle, Forrest, is an example of the earliest moves towards the introduction of modern architectural styles to Canberra. It is a relatively rare example of an early 1940s house and is illustrative of modern architecture. The curved street setting combines with the architecture to produce a place of integrity.
The house is important for its association with the introduction of modern architecture to Canberra prior to and at the beginning of WWII.
24 Arthur Circle exhibits the principal characteristics of modern residential architecture in a planned neighbourhood suburb; appropriate human scale and well sited. As a design in the Inter-war Functionalist style of architecture it has special interest in being one of the earliest in Canberra of this modern ideal by one of Canberra’s important architects.
The house exhibits creative and artistic excellence as an entity possessing an architectural theme of modern architecture in European ‘Modern Movement’ principles. The house is aesthetically significant for its asymmetrical massing of simple geometric shapes free of decorative elements
The place has been acknowledged as a distinctive example of architecture by professional bodies.

The register identifies the following features as significant to the heritage significance of the property:

Features intrinsic to the heritage significance of the place

The features intrinsic to the heritage significance of 24 Arthur Circle, Forrest and which require conservation comprise:
·Site planning where the house exploits three-dimensional expression, incorporating asymmetrical massing and simple geometric shapes, and including the original scale, form and fabric of the house. Specifically the low pitched roof concealed by parapets; simple cornices; cantilevered concrete hood; plain wall surfaces; half-circular corner and bay window and doors; the curved entry porch and stairs; the entry stepped shafted brickwork; the fenestration, and original detailing and finishes..
·The setting of the place that enables its scale and form to be appreciated including the open form of the entry and general view of the house from the street.

The applicable legislation

The Heritage Act 2004 (‘the Act’) includes the following provisions:
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;
…
(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.
8Place and object
(1)In this Act:
place includes the following:
(a)a site, precinct or parcel of land;
(b)an item at the place;
(c)a building or structure, or part of a building or structure, at the place;
…
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;
…
(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;
…
40Decision about registration
(1)If a place or object is provisionally registered, the council must decide whether to register it under this division.
(2)The council may register the place or object only—
(a)after complying with any direction by the Minister under section 39; and
(b)if satisfied, on reasonable grounds, that it has heritage significance.

The Tribunal's role is to determine whether the Council in this matter has made the "correct or preferable decision." This requires the Tribunal, standing in the shoes of the decision maker, to decide on the evidence whether the property satisfies one or more of the criteria set down in section 10 of the Act. If the Tribunal is so satisfied then it should affirm the decision under review. If it is not satisfied, the decision should be set aside.
The heritage significance criteria set out in section 10 of the Act are necessarily in wide terms, and involve subjective judgements about the degree of excellence, significance or uniqueness of a particular property or object. To some extent, the criteria overlap and elements that may justify a finding of heritage significance on one criteria are also present in others. These are not matters capable of precise definition, and they are ones upon which experts familiar with the subject may have different opinions. This is the situation in this case, where the principal evidence has been provided by two highly regarded architects both with experience in the heritage evaluation of properties, but who have come to significantly different views on the heritage values of this property. Nevertheless, the role of the Tribunal is to evaluate that evidence as best it can, and make what it considers to be the correct or preferable decision on the wording of the Act.

The hearing

Mr Mark Flint appeared for the applicant and Mr Wayne Sharwood appeared for the respondent.
The applicant, Mr Gary Cairns, provided evidence in support of his application, principally concerning the circumstances surrounding the purchase of the property in 1995 and its subsequent renovation and extension.
Mr Roger Pegrum appeared as an expert witness on behalf of the applicant. Mr Pegrum is a Director of Pegrum and Associates Pty Ltd, an urban planning and architectural consultancy established in 1992. Mr Pegrum has a BA, a Bachelor of Architecture and a Masters degree in Town and Country Planning. He is Life Fellow of the Australian Institute of Architects and is a Member of the Planning Institute of Australia. Mr Pegrum was a Member of the Council in the period 1997–2000, and has received many prizes and awards throughout his career.
Dr Michael Pearson and Mr Graeme Trickett provided evidence on behalf of the respondent. Dr Pearson is the Managing Director of Heritage Management Consultants Pty Ltd and is the Adjunct Professor of Cultural Heritage Management at the University of Canberra. Dr Pearson has a BA (Hons) and a PhD in Prehistoric and Historical Archaeology. Dr Pearson has extensive experience in the heritage field, including senior positions in the NSW Parks and Wildlife Service, the Australian Heritage Commission and as a heritage consultant. Dr Pearson has been a member of the Council since 2002 and has been the Chair since 2005. Dr Pearson is not an architect and did not present evidence as an expert witness. Rather his role was to provide evidence about the functions of the Council and the heritage registration process, and the background and events leading up to the decision to register 24 Arthur Circle.
Mr Graeme Trickett provided evidence as an expert witness for the respondent. Mr Trickett has his own architectural practice and has a BSc in Architecture and a Bachelor of Architecture. He is a registered architect in the ACT and NSW and has practiced as an architect since 1988. Mr Trickett is a Fellow of the Australian Institute of Architects and has lectured at the University of Canberra and at the Institute. Throughout his career, Mr Trickett has had an extensive involvement in matters relating to architectural and cultural heritage, and has chaired several RAIA committees concerning architectural heritage. Mr Trickett has drafted several citations for Canberra’s culturally significant places, and was a member of the Institute’s committee that drafted the original citation for 24 Arthur Circle in 1996 and the nomination to the register.

The Evidence

The Tribunal has found it convenient to separate the more general evidence provided by Mr Pegrum and the comments on that evidence by Mr Trickett from the evidence that bears specifically on the heritage significance criteria in section 10 of the Act.

Evidence by Mr Pegrum

Mr Pegrum commented that the Council has included a history of the house that notes the considerable work done in accordance with the Boughton plans, but does not explain how it is possible or practicable to confer heritage status on a building whose ‘original scale, form and fabric’ no longer exists nor why it is now of such importance considering that in 1995 the Council said ‘it’s (sic) architectural significance is regarded as low’ and ‘it does not of itself have sufficient heritage value to prevent from being demolished’.
Mr Pegrum is familiar with much of the work of Oliphant and in 1996 was invited to prepare the entry for Oliphant in the Australian Dictionary of Biography. In his opinion Whitley’s cottages in Griffith and Braddon and his designs for the residences at the Forrest Fire Station, and the design by Malcolm Moir for his own house at 43 Melbourne Avenue are the outstanding examples in Canberra of residential work in the ‘functionalist’ style. In his opinion, none of Oliphant’s houses, including the original house at 24 Arthur Circle, can be compared with the Moir or Whitley designs as to their impact or importance in Canberra’s architectural history. In particular, he said, the house at 24 Arthur Circle cannot be claimed to be a good example of the ‘functionalist’ style nor can it be said to exhibit ‘creative design and artistic excellence’.
In his entry for Oliphant in the Australia Dictionary of Biography Mr Pegrum says that Oliphant was ‘ill at ease with the new styles of architecture which emerged after World War II’ . Mr Pegrum believes that Oliphant was never committed to either the philosophy or the detail of ‘modern’ architecture. This, he said, is borne out by the small number of attempts to design in this way. Mr Pegrum thought that the house at 24 Arthur Circle is neither a particularly good display of Oliphant’s ‘design skill’ nor a ‘very good example of the architecture of Kenneth Oliphant’, as stated in the register.
Mr Pegrum argued that functionalist buildings were not really suited to the Canberra climate and there was little to convince people to adopt their modern style. He thought it was not an effective or ‘innovative architectural response to the needs of the 1930s–1940s domestic lifestyle’ as stated in the register. He conceded that Oliphant was being innovative in adopting the functionalist style.
Mr Pegrum said that any suggestion that the Oliphant house flows naturally from the work of the Dutch architect Willem Dudok or is in the mainstream of the development of modern architecture cannot be supported. The integrity of the design and the value of the house as an example of ‘modern’ architecture is in doubt, he said, where consideration is given to the lack of imagination or innovation in the floor plan.
In Mr Pegrum’s opinion the claims of the 24 Arthur Circle house to architectural or heritage significance have been unreasonably exaggerated in the Council citation. He thought that it is an interesting building of its type, even in its drastically altered form, but it is not an excellent example of that type. He commented that the citation itself cites other and, in Mr Pegrum’s view, better examples of the functionalist style. The bay widow and half circular corner of the earlier building, he said, may supply visual interest, but neither element may be said to be of great ‘creative and aesthetic significance’.
Mr Pegrum disagrees with the description of the house in the register as a ‘place of integrity’. In his view this cannot be claimed for a building where the outside walls of face brick are said to be a major part of the value of the place but where these walls are lost under a coat of cement plaster and to all intents and purposes cannot be recovered.
The Council, Mr Pegrum said, has based its assessment of the heritage significance of the place on its ‘original scale, form and fabric’ but that, in Mr Pegrum’s opinion no longer exists. In the matter of scale the original house was approximately 150 sqm. The Boughton additions added about 230 square metres, so that the floor area is now 2.5 times the original floor area. The original scale, Mr Pegrum submitted, has been lost.
As to form, Mr Pegrum observed that the entry in the register notes that the ‘form of the original residence when viewed from Arthur Circle has in general been retained’. Mr Pegrum argued, however, that in relation to a free-standing building such as this, the word ‘form’ most properly refers to the entirety of the building envelope and detail not to one elevation only or to one fixed viewpoint at a distance from which an appreciation of its elements or its architectural significance is difficult.
In the matter of fabric, Mr Pegrum noted that the Council concedes that the ‘face brickwork has been rendered and painted and the protruding face brickwork is also rendered’ and the ‘internal alterations have compromised the original fabric and the southern extension has obscured the rear elevation’. In Mr Pegrum’s view, the use of ‘compromised’ and obscured’ casts a shadow over their own evaluation of the place.
Mr Pegrum noted that all original windows and doors have been replaced, although the citation does not note this fact.
In Mr Pegrum’s opinion the changes that have been made to the scale, form and fabric of the original house are so extensive that any heritage significance of the place has been inevitably removed.
Mr Pegrum acknowledged that the design of the bedroom was technically complex and that it needed to be engineered properly to avoid cracking of the brickwork. He also thought that the design of the bedroom, involving a combination of circular and cubic elements, is an engineering as well as a design achievement. Indeed, he thought that this was the major achievement–– it is one thing to draw something, he said, but another thing to make it happen.
Mr Pegrum agreed, somewhat reluctantly, that the house is a relatively rare example of an early 1940s house in the Inter War Functional style. He thought that, despite the renovations and extensions, the house still has heritage significance but questioned whether it was sufficient to be put on the register. Mr Pegrum confirmed his opinion that the house fails to meet the criteria to a sufficient degree to warrant registration.

Evidence by Mr Trickett

Mr Trickett said that the most significant aesthetic and historic value for past, present and future generations that are embodied in the place are those that are expressed in the front and side facades of the original place, which are extant. These are stated in the register and are specific to the architectural style; they include its asymmetrical massing, simple geometric shapes and roof concealed by parapets. These are style indicators, Mr Trickett said, that are fundamental and critical to the understanding of the character of this style of architecture and these were and still are present in the place.
The place has been adapted to suit the existing use, and the design of the adaptation by David Boughton respected the cultural significance of the place, Mr Trickett said, He noted that the design process involved meetings with the Heritage Unit and their advice and comments were incorporated in the design. The significant features were retained, the extension was to the rear, and where the extension joined onto the original house it was set back and or indented to articulate the new from the original. The process undertaken by the architect is exemplary, he said, and is the approach supported by the Institute and its publications when an architect designs for the adaptive reuse of a culturally significant place.
Mr Trickett commented that he understood that the Heritage Unit advice at the time was that face brick was the appropriate finish and that the house plans approved by the authorities did not show that the original house was to be rendered and painted. He understood that the architect was not engaged to administer the building contract, and if work was varied or finishes altered the architect may not have been a party to these.
Mr Trickett commented that the external finish to the Inter-War Functionalist (‘IWF’) style places are in most cases in either face brick or painted smooth render. The rendering and painting of the house, while regrettable from the viewpoint of preservation, is not at odds with the IWF style. In his view, the adaptation of the place is what might be expected when a place that has cultural significance is listed and the owner wishes to extend the place.
Mr Trickett thought that Mr Pegrum’s opinion with respect to the cultural significance of Oliphant’s houses is not borne out by the detailed research by Peter Freeman and Mr Trickett himself. He thought that the house at 24 Arthur Circle is a very good example of the functionalist style in Canberra. His view was that it has increased significance with the inclusion in its design of curved forms, which were often used in design by architects as a contrast to the cubic overall form. The original owner, Mrs Lea, he said, had told him that the form and style of the place were of Oliphant’s choosing. He said that there are few if any other examples of the IWF style in Canberra where the curved form plays such an effective contrasting role in the overall composition. He notes that Moir made limited use of curved forms.
Mr Trickett argued that Oliphant’s work flows naturally from the work of Dudok, but also from the European architect Erich Mendelsohn, and others. He thought that Oliphant and other Canberra architects––Henderson, Whitley and Moir–– gained knowledge of the IWF style of architecture via English interpretation and publications and applied it in their designs. He was of the view that their buildings are the ones in Canberra that display the development of modern architecture and are of great cultural significance to Canberra, a 20th century-designed city.
Mr Trickett disagreed with Mr Pegrum’s opinion that the IWF style of architecture is rarely attractive at the smaller scale of cottages or in suburban settings, and that functionalist architecture had a short shelf life in Canberra.
Mr Trickett commented that the citation for the place does not claim that the planning of the interior is of great significance. Neither Whitley nor Moir, he said, used open planning and there are few IWF houses in Australia that used open planning.
Mr Trickett’s opinion was that the overall area of the place, including the carefully planned extension to the rear, has little bearing on the features assessed to determine the cultural significance of the place. In his view, the side and street facades still retain their significant forms and proportions. He thought that the part of the house that extends beyond the original to the rear does not include significant fabric and would not be considered to be part of the heritage listing. He commented that the rear elevation was not assessed to have cultural significance at the time of the assessment. The openings to the original house, he said, have been replaced with like for like, which is appropriate heritage practice. In Mr Trickett’s opinion, the adaptive reuse of the place is appropriate and a good example of what he would expect for a heritage listed place in a heritage precint.

Evidence and submissions in relation to the heritage significance criteria

In this section the Tribunal considers the evidence that bears specifically on the relevant heritage significance criteria in section 10 of the Act.

Criterion (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.

The register states:
The creativity of the architect Kenneth Oliphant is apparent in the design of the original house, which was innovative when compared with other houses built in Australia in general and in Canberra in particular.
The house is of considerable architectural merit; the solution incorporating a radical form which includes geometric shapes and a flat roof concealed by parapets combined with clean lines demonstrated an innovative architectural response to the needs of the 1930s-1940s domestic lifestyle.
The house exhibits creative design and artistic excellence by virtue of its architectural themes of modern architecture in what is an early interpretation of the European Modern Movement principles.
The Royal Australian Institute of Architects Register of Significant Twentieth Century Architecture (‘RAIA citation’) states:
The elegant curved forms along the front of the house contrast with the cubic massing of the rest of the house.
The semi circular glazing and structure to the main bedroom is a notable play of volumes where the curve is not the full height of the building but is a half cylinder placed into the cubic form and allowed to protrude from the façade. This creates an element that is technically complex, which has been resolved with a degree of structural skill, unusual in domestic work, creating innovative architectural forms.
Reinforced concrete beams support the concrete hoods over the bay windows while a central steel post in the window frame to the main bedroom adds additional support to the hood.

Mr Flint’s submissions

Mr Flint submitted that it is insufficient that the house is an example of the architect; the house has to stand alone as an example of creativity. He noted the comments by the Administrative Appeals Tribunal (‘AAT’) in Pashalidis and ACT Heritage Council [2003] ACT AAT 53 (para 84) that a creative achievement results from originality of thought or expression. He submitted that there is no evidence to suggest that the IWF style was peculiar to the ACT or that local conditions required any particular technique of modification or adaptation that could be described as innovation, or a departure, or a new achievement at that time. (Pashalidis, para 85)
While the form may have been radical compared to other houses, that does not make it creative or innovative. It employed the fundamental style indicators of IWF style which were well known for many years before, and had been employed in a number of buildings in Canberra since at least 1935.
The Tribunal had been given evidence that there were numerous examples of IWF style buildings that pre-dated the house at 24 Arthur Circle. He argued the house was not a seminal house in a particular style, but rather one of a progression, there being a number in that style before this one.
The house was in the IWF style, and as such it was not innovative or creative, having emulated aspects of an existing style.
Mr Flint submitted that there was no evidence that the house demonstrated an ‘exceptionally fine level of application of existing techniques or approaches’. He noted that Mr Trickett said it was a very good example, not that it was exceptionally fine, and that Mr Pegrum said it was interesting but not a very good example and not creative.
There were and are better examples, such as Moir’s house on Melbourne Avenue and the Forrest Fire Station residences, which also demonstrate that the style is better suited to commercial buildings or grander residences.
While the basic style indicators identify the house as IWF style, Mr Flint submitted there are components that are at odds with the style, in particular the fenestration (wood), the absence of large windows, the absence of spandrels or long balconies, the curved porch and stairs, the columns in the porch window and the entry brickwork detailing. He submitted that the facetted windows do not readily emulate the curved corners or windows that are common in this style. He noted Mr Martin’s comments, in 1995, that the style was not fully developed or well executed.

Mr Flint commented that the respondent asserts that the house represents an innovative response to the needs of the 1930s and 1940s domestic lifestyle, but there is no evidence of what the domestic lifestyle might have been or what is innovative about the response to that lifestyle. He noted that Mr Pegrum gave evidence that the IWF style was not particularly popular and was not suited to Canberra conditions and never took root.
The semi circular wing does not exhibit a ‘high degree of technical or creative achievement’. It employs conventional engineering techniques to replicate an established style indicator. As such there is nothing ‘innovative’ in it, and it is not an ‘exceptionally fine level of an application of existing techniques or approaches’.
Mr Flint noted Mr Pegrum’s evidence that the half circular corner may supply visual interest but is not of creative or aesthetic interest. He also noted Mr Trickett’s evidence that infusion of a curve was notable and exhibited a degree of structural skill, but submitted that Mr Trickett did not say there is a high degree of technical achievement.
The engineering skill, involving a column behind the window, is characteristic of the style and is not innovative.
Any heritage value has been compromised because of: the rendering (thus occluding the brickwork considered so redolent of the Dudok influence it was professed to be derived from); the alteration to the cornices making them barely readable; and the construction of the raised walkway and retaining wall that prevents––to use Mr Trickett’s words—a proper reading of the geometric shapes. Mr Flint argued that the pool storage room further compromises the appearance of the geometric shape and the 3-car garage compromises any significance to be attached to the expressed chimneys.
Mr Flint noted that in the heritage listing for the Blandfordia 4 Housing Precint there is no reference to the house as being of significance or as an exemplar.

The Tribunal’s assessment

The respondent has argued that the house meets this criterion because it demonstrates a high degree of technical or creative achievement by showing a high degree of innovation.
The Tribunal notes that the Australian Concise Oxford Dictionary defines ‘high’ as great, intense; extreme; powerful or greater than normal. This indicates that the degree of achievement must be very substantial for this criterion to be met.
The Tribunal notes Mr Pegrum’s view that Oliphant was being innovative in adopting the functionalist style. We also note the evidence that the house at 24 Arthur Circle was not the first to be designed in the IWF style in Canberra and that there were several houses designed in the IWF style from the mid-1930s onwards. They include a house designed by Oliphant in 1935. Moreover, Oliphant was only one of a number of architects who were designing in the IWF style at that time. The evidence indicates that there are several superior examples of the style still in existence in Canberra.
There is no persuasive evidence that Oliphant displayed any significant degree of innovation in applying the IWF style to the site at 24 Arthur Circle. The evidence is that by 1939 the features of the style were reasonably well known in Canberra in architectural circles, and that Oliphant applied the style to the site in a relatively conventional way. There is no evidence that the site or client requirements required a highly innovative design response.
There is evidence that the design and construction of the semi-circular wing on the north-east corner of the house involved a degree of technical complexity both in its design and construction, but the Tribunal is not persuaded that this was of such magnitude as to warrant registration.

The Tribunal’s conclusion

The Tribunal is satisfied that the house displays elements of technical and creative achievement and innovation, but is not satisfied that the house demonstrates these qualities to such a degree that it satisfies this criterion.

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

The respondent has not argued that the house meets this criterion. However the RAIA citation includes the following:
The residence is a significant example of the Inter-War Functionalist Style of architecture and is notable for displaying the high design skill of the architect Kenneth Oliphant.
The residence exhibits many of the particular elements peculiar to the Inter-War Functionalist Style (1915–40)including asymmetrical massing, simple geometric shapes and roof concealed by parapet.
The following features are of additional significance: the cantilevered hoods, semi-circular wing, rounded corner, corner window, curved front porch and stairs, entry brickwork detailing, simple brick cornice, sizing and location of the glazing and the brick fireplace in the living room.
The building is valued by the RAIA as a very good example of this style of architecture and it makes a valuable contribution to the small number of surviving Inter-War Functionalist buildings in Canberra. It compares favourably with the architecture of Moir and Sutherland and the government architect Cuthbert Whitley.

The Tribunal’s assessment

The Tribunal notes that the RAIA citation does not say that the house displays outstanding design or aesthetic qualities, nor can one infer this from the citation. Moreover it does not provide evidence that such design or aesthetic qualities that it does exhibit are valued by the community or any particular cultural group other than the RAIA itself––if indeed one can regard the RAIA as a cultural group (ACT Chapter of Royal Australia Institute of Architects and ACT Heritage Council [2003] ACTAAT 18) (“RAIA case”) at para 33.

The Tribunal’s conclusion

The Tribunal finds that the house does not satisfy this criterion.

Criterion (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.

The register states:
The planning of the house is of exceptional interest and displays an important development in architectural style between the Depression and the WWII, by contrast with traditional architectural styles. The planning innovations were based on the 1920s-30s European modern architecture that emphasised functional, clean lines and an aesthetic free of historical references; Oliphant designing the form and style of the house without influence from the clients
Relatively few houses designed in the Inter-War Functionalist style were built in Canberra, and this was an early example of the style. Only a small number of these still exist in a recognisable form including 22 & 26 Arthur Circle, Forrest and 17 Tasmania Circle Forrest which are all located in the immediate vicinity of 24 Arthur Circle.
The RAIA citation states:
The design of the house demonstrates an important development in architectural style between the Depression and WWII, by contrast with traditional architectural styles. Relatively few house were built in this style in Canberra, and only a small number of these still exist in a recognizable form. Modern architecture, both the functionalist and international periods, was the most important architecture of the 20^th Century. The combination of modern architecture and urban design is of exceptional interest.

Mr Flint’s submissions

While the building is of evidence of a style of design, it is not ‘important’ because in its original form it was not a good example of the style, and as altered it is of even less evidential value.
Mr Flint argued that the style is not in danger of being lost because, of the 16‑18 houses in the style that Mr Trickett could identify, 10 are still in existence. Mr Flint argued that there are a number of buildings that represent the style and do so in a better way because they are better examples or are intact.
The style is not in danger of being lost because the style is widely recognised, is represented in more industrial sized buildings and larger residences and is better represented on that scale.
There were few buildings constructed in the IWF style to start with, and Mr Pegrum’s evidence was that the design ultimately proved inapt to the Canberra environment or was unpopular and never took root. Thus it is not of exceptional interest to the public, It is inherent in any requirement for conservation that some demonstrated public benefit derives from the measures for conservation that are imposed (RAIA case, para 35).
While the house may be of interest to architects or students of architecture there was little evidence of the size or number of people represented by the nominator.
There is nothing in the Blandfordia 4 heritage listing to indicate that the house is of exceptional interest.

The Tribunal’s assessment

The respondent has argued that the house meets this criterion because it is of exceptional interest as an example of the IWF style of which there are relatively few remaining in Canberra. The RAIA support this argument and emphasise the importance of the house as an example of the development of modern architecture in the Inter-War period.
The Tribunal notes that the Australian Concise Oxford Dictionary defines ‘important’, as relevant to this case, as: of great effect or consequence; momentous.
It is necessary, in the Tribunal’s view, for this criterion to be met to demonstrate that the house is important because it is a particularly good example of the IWF style and that evidence of the style in the form of other buildings is in danger of being lost. Alternatively it necessary to demonstrate that the house is important because it is of exceptional interest as an example of the IWF style, presumably because it is an outstanding exemplar of the style or has particular features that make it of exceptional interest.
The Tribunal is not satisfied that there is persuasive evidence that the house is a particularly good example of the IWF style. Even in its original form the Chair of the Heritage Council thought in 1995 that it lacked sufficient heritage value to prevent it from being demolished, and that it was not good example of modern architecture. Since then, the house has been extensively renovated and extended. As discussed further below in relation to criterion (f), the Tribunal finds that there has been significant damage to the heritage value of the house arising from the alterations.
As already discussed above in relation to criterion (a), there are several other examples of extant buildings in the IWF style in Canberra, possibly as many as 10, and the weight of evidence is that several of these are superior examples of the style. There is therefore little danger that evidence of the IWF style will be lost if the property is not listed in the register (assuming of course that action is taken to protect these other buildings).
Apart from its interest to the architecture profession as evidence of the IWF style, no evidence has been presented to demonstrate that the house is of interest to the wider community. In the Tribunals’ view the evidence does not support a finding that the house is of exceptional interest.

The Tribunal’s conclusion

The Tribunal finds that the house does not satisfy this criterion.
Criterion (f): it is a rare or unique example of its kind, or is rare or unique in its comparative intactness;
The register states:
24 Arthur Circle is considered to be a relatively rare example of a 1940s Inter War Functionalist style house, as few were constructed in Canberra.
It is one of only four known surviving houses Oliphant designed in Canberra in this style prior to WWII, and is otherwise an accomplished early example of an Inter-War Functionalist style building in Canberra.

Mr Flint’s submissions

Mr Flint noted that the statement of significance in the register says that the house is an example of the ‘earliest moves towards the introduction of modern architectural style in Canberra, and is a ‘relatively’ rare example of the IWF style, but it does not say it is ‘rare’.
Mr Flint argued that the respondent has applied specific criteria to describing the house, i.e. that it is a 1940s building, it is in the IWF style, it was designed by Oliphant and was designed prior to WWII. Thus the pool of buildings against which its rarity can be assessed must necessarily be limited. In his view, the ‘kind’ refers to the type of building, not who designed it or the date range of design (Pashalidis, para 109). He noted that Mr Trickett agreed that IWF style is the ‘kind’ of building being considered.
The Tribunal, Mr Flint said, had heard evidence that there were quite a number of houses designed and built in the IWF style, of which approximately 10 are still in existence .

The Tribunal’s assessment

The Tribunal accepts the argument by the applicant that the word ‘kind’ should not be defined too narrowly. For present purposes the Tribunal takes the view that ‘kind’ should be interpreted as referring to the IWF style of architecture. The issue then is whether the house at 24 Arthur Circle is a rare example of IWF architecture.
The Australian Concise Oxford Dictionary defines ‘rare’, as relevant to this case, as: seldom done or found or occurring; uncommon; unusual; few and far between.
As discussed above in relation to other criteria, there are several other examples of buildings in the IWF style in Canberra, of which possibly as many as 10 are still in existence. This does not sit comfortably with the definition of ‘rare’.
The Tribunal notes that the listing in the register describes the house as a ‘relatively rare’ example of a 1940s IWF style house. This is tantamount, in the Tribunal’s view, to an admission that the house is not a ‘rare’ example of its kind.

The Tribunal’s conclusion

The Tribunal finds that the house does not satisfy this criterion.

Criterion (f): it is a notable example of a kind of place or object and demonstrates the main characteristics of that kind.

The register states
The original house at 24 Arthur Circle, Forrest, is a very good example of the Inter-War Functionalist style (1915-40). The building exhibits asymmetrical massing, simple geometric shapes and the roof is concealed by parapets. It is notable for displaying the design skill of the architect Kenneth Oliphant.
The following design features of the original house are of additional significance; the cantilevered hoods over the front façade glazing; semi-circular wing and rounded corner form of the northeast corner and the facetted living room glazing; the curved front porch and stairs; the two expressed chimneys, and original finishes and details.
The original house was carefully planned to exploit three-dimensional massing and express clean lines free of historical references. The alterations and extension have been carefully composed to not impact greatly on the original forms.
The house is a very good example of the architecture of Kenneth Oliphant, a renowned Canberra architect, and recognised for this by the RAIA ACT Chapter in the register of Significant Twentieth Century Architecture. Oliphant is considered one of Canberra’s skilled interpreters of the ‘Modern Movement’ principles prior to WWII.

The RAIA citation covers similar ground to the register in relation to this criterion, but notes that prior to 1996 the house was unaltered. It comments that the two main changes to the front of the original residence that affect its original design are the render and painted finish to the face brickwork and the addition of the raised front curved path and support wall across the front of the house and around the lower half of the main bedroom bay window. The citation notes that the drawings approved by the Planning Authority did not show the façade was to be rendered and painted. The statement also comments that the path and support wall detract from the original design preventing the reading of the cubic form and the curved form meeting the ground plane.

Mr Flint’s submissions

Mr Flint submitted that the register again makes the mistake of referring to the ‘kind’ of building as one designed by Oliphant, and that the ‘kind’ is a reference to the qualities and characteristics that inhere in a place as distinct from the designer or creator of any building on it (Pashalidis, para 109. ) He submitted that the ‘kind’ is an IWF style building.
Mr Flint said that the building does demonstrate some of the main characteristics of an IWF style building, such as asymmetrical massing, simple geometric shapes and roof concealed by parapets, but it is not notable. It is not notable, he said, because it is not a good example of its kind, and changes to the building have compromised some of the main characteristics. Also the building has components that do not accord with the IWF style such as the round porch, the fenestration, columns in windows, the curved entrance way and detailed brickwork in evidence.
Mr Flint submitted that the style indicators have been compromised by changes: the important face brickwork has been lost and the geometric shapes such as the semi circular wing have been compromised by the raised walkway and the addition of the pool storage room nearby. The chimneys have been compromised, he said, because they are now seen against a modern 3-car garage. There have also been changes to the cornice.

The Tribunal’s assessment

As in relation to criterion (f), the Tribunal accepts the argument by the applicant that the word ‘kind’ should not be interpreted too narrowly and for present purposes should be interpreted as referring to the IWF style of architecture. The issue then for the Tribunal is whether the house is a notable example of the IWF style and demonstrates the main characteristics of the style.
The Australian Concise Oxford Dictionary defines ‘notable’ as: worthy of note, striking, remarkable, eminent.
As discussed in relation to previous criteria, the Tribunal is not satisfied that there is persuasive evidence that the house is a particularly good example of the IWF style. We note again that even in its original form the Chair of the Council thought that it was not a good example of modern architecture and lacked sufficient heritage value to prevent it being demolished. In his view, it had some characteristics of the modern style but these were not fully developed or well executed. We note again Mr Pegrum’s opinion that the house is an interesting but not an excellent example of the IWF style. On the other hand Mr Trickett thought that the house is a very good example of the functionalist style in Canberra.
However, even if the house in its original form could be described as a notable example of the IWF style, which is debatable, there have been very substantial renovations and extensions to the house. In this regard we have received conflicting evidence from Mr Pegrum and Mr Trickett as to the implications of those alterations for the heritage value of the house. Mr Pegrum’s opinion is that the changes to the scale, form and fabric of the house are so extensive that any heritage significance has been removed.
For his part, Mr Trickett’s view is that the alterations have not significantly diminished the heritage significance of the house and are a good example of adaptive re-use of a building with heritage significance. The Tribunal notes, however, that in 1996, when the proposals for the renovations and extensions had been submitted to the Planning Authority for approval, Mr Trickett submitted that the proposed alterations would result in the loss of some of the more important and significant architectural elements and would significantly lessen its architectural integrity. In particular he was concerned that the raised path along the front and northern side of the house would detract from the form and massing of the semi-circular wing of the main bedroom. The Tribunal notes that a further significant alteration that occurred during construction, which, it appears, was not identified in the building application, is the rendering and painting of the brickwork.

There is, in the Tribunal’s view, some inconsistency between the views expressed by Mr Trickett in 1996 and those he has put to the Tribunal in this case. For this reason, the Tribunal prefers to give somewhat more weight to the evidence by Mr Pegrum on this issue, and finds that there has been significant damage to the heritage value of the house arising from the alterations.
The Tribunal‘s assessment is that the evidence does not support a conclusion that the house is a notable example of the IWF style. In light of this finding, it is not necessary to consider whether the house demonstrates the main characteristics of the IWF style,

The Tribunal’s conclusion

The Tribunal finds that the house does not satisfy this criterion.
Criterion (h): it has strong or special associations with a person, group, event, development or cultural phase in local or national history.
The register states:
The house is important for its special association with the introduction of modern architecture to Canberra, the twentieth century’s most significant architecture; founded on functionalism and abstract painting. The earliest examples in Canberra are 10 Farrer Street, Braddon, built in 1936, designed by Kenneth Oliphant and 43 Melbourne Avenue, the architect Malcolm Moir’s own house built in 1937.
24 Arthur Circle is important for its association with Kenneth Oliphant. Oliphant played a significant role in the development of residential architecture in Canberra during the late 1920s through to the 1940s. Oliphant was one of Canberra’s first independent practicing architects, if not the first, and was one of the most prolific architects to practise in Canberra. He played a leading role in introducing modern architecture to Canberra. This is an important work in his career and is one of only four remaining functionalist style houses he designed before WWII in Canberra. It has an association with him being his preferred choice of style at that time.
The RAIA citation states:
The residence is important for its association with Kenneth Oliphant who played a significant role in Canberra’s cultural history.
Of all his buildings, the most significant are those he designed just before WWII, including the original section of the Canberra Milk Building, Griffith, 1937, and the house at 4 Hotham Cres, Deakin. His other functionalist designs of this period have either been demolished or extensively altered beyond recognition of their original aesthetic.
The Tribunal notes that in the hearing Mr Trickett acknowledged that there were two houses in Braddon designed by Oliphant in the IWF style that were still intact.

Mr Flint’s submissions

Mr Flint submitted that the development of modern architecture, in particular the IWF style, even if it marked a new way of practising architecture which may be described as a cultural phase, does not mean that there is a ‘strong or special association’ (Pashalidis, para 132).
He further argued that the house at 24 Arthur Circle did not introduce ‘modern architecture ‘ to Canberra and noted that there were several earlier examples of the IWF style, including a number designed by Oliphant. The style was practised by a number of architects well before this house was designed, he said. He submitted that the house at 24 Arthur Circle was neither the first nor the last manifestation of the style nor is it regarded as the best.
There is no doubt Oliphant was a significant architect, but that does not mean that this house has a strong or special association with him. He noted that in 1995 the Heritage Council assessed the heritage significance of the house as low and the Chairman observed that it was not a good example of Oliphant’s work
Mr Flint noted that in the original nomination by the RAIA no reference is made to the association between the building and Oliphant, even though there was a criterion in the former legislation similar to the present criterion.
Mr Flint commented that Mr Pegrum, who was the witness most familiar with Oliphant’s work, gave evidence that Oliphant applied himself to a range of building types and architectural styles and said that he was ill at ease with the new styles. Mr Flint submitted that the relatively small number of houses designed by him in the style indicated that he dabbled in it but was not committed.

The Tribunal’s assessment

The respondent has argued that this criterion is met because of a special association between the house and the introduction of modern architecture in Canberra and because of its association with Oliphant. The AAT in Pashalidis (para 132) took the view that even if the introduction of an architectural style could properly be regarded as a ‘development or cultural phase’ the question is whether the place has a ‘strong or special association’ with that development or phase. The AAT noted that the house under consideration in that case was not the first or last manifestation of that development or phase, nor was it the best. It concluded that the house could not be said to have a ‘strong or special association’ with that development or cultural phase. That line of reasoning is appropriate in the present case. The house at 24 Arthur Circle was neither the first not the last of the houses in the IWF style in Canberra, nor on the evidence was it one of the better buildings designed by Oliphant in that style. The Tribunal finds therefore that the house does not have any strong or special association with a development or cultural phase in local or national history.
It is not disputed that Oliphant was a significant Canberra architect and that he designed hundreds of houses in a variety of architectural styles. It is also agreed that he designed only a small number in the IWF style. However, the weight of evidence is that 24 Arthur Circle is not one of the better buildings designed by Oliphant in the IWF style. In this regard the Tribunal notes that the RAIA statement above does not identify the house as one of Oliphant’s most significant buildings.
The respondent has argued that the house has an association with Oliphant because it was his preferred style at that time. The Tribunal heard evidence that Oliphant was given a free reign in the design of the house subject only to the proviso that it should include two bay windows. However, the fact that he chose on that occasion to design in the IWF style does not constitute evidence that there was a strong or special association between the house and Oliphant, as required by the criterion.

The Tribunal’s conclusion

The Tribunal finds that the house does not satisfy this criterion.

Overall Conclusion

The Tribunal has concluded that the House at 24 Arthur Circle does not satisfy any of the heritage significance criteria in section 10 of the Act and should not be registered.

………………………………..

Mr C.G Chenoweth,
Presiding Member

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Tribunal Staff

PART A FILE NO: AT 85 of 2009

APPLICANT: Gary Cairns
RESPONDENT: ACT Heritage Council

COUNSEL APPEARING: APPLICANT:

RESPONDENT:

SOLICITORS: APPLICANT: Kellie Johnstone/Mark Flint

RESPONDENT: Lisa Tomlins/W Sharwood

OTHER: APPLICANT:

RESPONDENT:
TRIBUNAL MEMBER/S: Mr Chenoweth, Presiding Member
Mr Ashe, Senior Member

DATE/S OF HEARING: 24 June 2010 PLACE: CANBERRA

DATE/S OF DECISION: 18 August 2010 PLACE: CANBERRA

PART B

RECOMMENDATION:

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: