JL Smallcombe As Trustee For The Cotton Tree Trust v. Queensland Heritage Council
[2009] QPEC 65
•5 August 2009
PLANNING & ENVIRONMENT COURT OF QUEENSLAND
CITATION:
JL Smallcombe As Trustee For The Cotton Tree Trust v Queensland Heritage Council [2009] QPEC 65
PARTIES:
JL Smallcombe As Trustee For Cotton Tree Trust (Appellant)
AND
Queensland Heritage Council (Respondent)
FILE NOS:
222/08
DIVISION:
Planning and Environment
PROCEEDING:
Appeal
ORIGINATING COURT:
Planning and Environment Court of Queensland, Maroochydore
DELIVERED ON:
5 August 2009
DELIVERED AT:
Maroochydore
HEARING DATE:
27, 28 July 2009
JUDGE:
Judge J.M. Robertson
ORDER:
Appeal allowed and order that the entry in the Queensland Heritage Register of Star Flats as a State Heritage place be removed.
CATCHWORDS:
Appeal against entry of building in State Heritage Register; whether any of the nominated cultural heritage criteria apply to the building; whether building does represent a rare or uncommon class of cultural place; whether the lack of internal intactness of the building is relevant to the application of the cultural heritage criteria
Legislation:
Queensland Heritage Act 1992 (Qld)
Integrated Planning Act1997 (Qld)
Cases Considered:
Advance Bank Australia Ltd v Queensland Heritage Council [1994] Q.P.L.R. 110; Reelaw v Queensland Heritage Council [2005] Q.P.E.L.R. 335
Lonie v Brisbane City Council & Ors [1998] Q.P.E.L.R 206
Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2003] Q.P.E.L.R 624
Advance Bank Ltd. v Queensland Heritage Council [1994] Q.P.L.R. 229COUNSEL:
Mr. A. Skoien for Applicant
Mr. M. Hinson SC for RespondentSOLICITORS:
Watson & Quinn Lawyers for Applicant
Crown Law for Respondent[1] These proceedings concern an appeal by JL Smallcombe as Trustee for The Cotton Tree Trust (the appellant) against a decision of the Queensland Heritage Council on 31 July 2008 to enter its property know as the Cotton Tree Backpackers at 15 The Esplanade Cotton Tree on the State Heritage Register under the Queensland Heritage Act 1992 (the Act). The building is a timber twin gable structure which was erected between 1935 and 1937 by Mr. Hubert Hoare, and operated as the Star Flats until at least the end of World War II. The use of the property after that is not clear on the evidence, however it is common ground that by 1969 it was being used as a boarding house. Mrs. Helen Gregory, a historian who gave expert evidence on behalf of the Council, referred to sighting some advertisements in the 1950s suggesting that the building was still being used as flats but she did not produce this evidence. The citation of the building (at p.3 of 8) states that it was “still known as Star Flats in July 1954”, but no evidence was produced to support that statement.
HISTORY OF CITATION
[2] As a result of a third party application to the Cultural Heritage section of the Environmental Protection Agency made on the 31.01.07 to enter the property in the Queensland Heritage Register, the Agency undertook investigations and, on 19.06.08, the Chief Executive recommended to the Queensland Heritage Council that the property not be entered into the Heritage Register as a State heritage place. Contrary to this recommendation, on 31 July 2008 the Strategic Registry Committee resolved (as delegate of the Council) to enter the building in the Queensland Heritage Register.
[3] The appellant’s solicitor was notified of the decision on 08.08.08 and was then provided with a copy of the entry in the Heritage Register. This appeal was lodged on 09.09.2008.
[4] Relevantly the entry (at p.1) is in these terms:
“Star Flats (former) is a place that satisfies one or more of the criteria specified in s.35(1) of the Queensland Heritage Act 1992 as evidenced by, but not exclusive to, the following statement of cultural heritage significance, based on criteria, A B and D
Criteria AStar Flats, constructed between 1935 and 1937, is important in demonstrating the growth in popularity of seaside resorts on the Sunshine Coast (formerly know as the North Coast), one of Queensland’s major tourist destinations, and the evolution of tourist accommodation in Queensland prior to World War II
One of the few extant early timber buildings constructed on the Maroochy River, Star Flats provides important evidence of the development of the resort area of Maroochydore, in particular the resulting increase in tourism in the region facilitated by improved road access to the North Coast during the 1930s.
Criteria BStar Flats is now an uncommon example of pre-World War II purpose-built timber waterfront flats on the Sunshine Coast, an historically important region for the development of seaside tourism in Queensland. Timber flats in waterfront locations were once a common form of holiday accommodation in coastal resorts throughout the State. The great intensity of development of medium to highrise accommodation buildings at Queensland coastal resorts during the latter part of the twentieth century has meant much pre-World War II holiday accommodation no longer exists.
Criteria DStar Flats is an example of a pre-World War II flat building purpose-built as Sunshine Coast holiday accommodation. Its principal characteristics as beach holiday accommodation are its prime location on the esplanade overlooking the Maroochy River at Cotton Tree and its ready access to a regional road network. Star Flats’ original division into four dwellings is reflected in the intact fenestration pattern, in the building’s overall massing, and in the generally intact interior layout.
THE RELEVANT LAW
[5] The Council’s decision is made under s 53 of the Act on the basis of its decision, pursuant to s 35 (1) of the Act, that the property satisfied criteria (a) (b) and (d) of s 35(1).
[6] s 35(1) (relevantly) states:
“(1)A place may be entered in the Queensland heritage register as a State heritage place if it satisfies 1 or more of the following criteria --
(a) the place is important in demonstrating the evolution or pattern of Queensland's history;
(b) the place demonstrates rare, uncommon or endangered aspects of Queensland's cultural heritage;
…..............................................
(d) the place is important in demonstrating the principal characteristics of a particular class of cultural places;”
[7] The appellant’s right of appeal as owner is limited by the Act:
s 162(1) is in these terms:
“(1) An appeal by a person mentioned in section 161(1)(a) or (b) may only be made on the ground that the place the subject of the appeal does or does not satisfy the cultural heritage criteria.”
[8] Mr. Skoien, on behalf of the appellant, accepts that his client bears the onus: Advance Bank Australia Ltd v Queensland Heritage Council [1994] Q.P.L.R. 110; Reelaw v Queensland Heritage Council [2005] Q.P.E.L.R. 335.
[9] As Mr. Hinson SC for the Council correctly submits, in order to succeed the appellant must satisfy me that the building does not satisfy any of the criteria (a) (b) and (d) to s 35(1) of the Act.
[10] It is also common ground that whether or not the building satisfies any or all of the relevant criteria, is to be assessed by the Court from the perspective of “the average person walking the street and looking about, with a perception which falls somewhere between that of a PhD in architectural history on the one hand and that of a philistine on the other.” These memorable words come from Senior Judge Skoien in Lonie v Brisbane City Council & Ors [1998] Q.P.E.L.R 206 at 212. That case did not concern a listing under the Act, rather his Honour was referring to a appeal against a refusal of the local authority to permit the demolition of 1914 workers cottage in Wooloowin and to issues of visual character and amenity of the local streetscape and heritage value as part of the applicable planning scheme. As the intactness of this building internally has loomed large as an issue in this appeal, I would respectfully add to his Honour’s words after “walking the street”, the words “and entering a building” in formulating the appropriate perspective from which to view the relevant criteria in light of the evidence in this appeal.
[11] This Act provides no guidance as to how in a practical sense the criteria are to be applied to a particular property. The Council has developed and promulgated a booklet for this very purpose called “Using the criteria: a methodology” and a copy is exhibit 14. This may be a useful tool for those charged with investigating a proposed listing but the document has no legal effect and is not created by reference to the Act.
[12] It is common ground that the appeal is a hearing de novo based on the evidence placed before the Court, and that the Council’s decision is not to be viewed in the way in which Council decisions under the Integrated Planning Act1997 (Qld) are viewed, because the Court under this Act does not in any legal sense stand in the place of Council. In Reelaw (supra) at 336, Judge Wall QC. observed that the Council “is … a specialist body and its decisions are deserving of weight.” Mr. Hinson SC did not refer to or rely upon this observation in his submissions. The recommendation not to list made by Council’s delegate has no evidentiary value in this appeal. It is simply part of the historical narrative leading up to the decision to list. To again quote with approval the words of Senior Judge Skoien (albeit in a different context): “It is the Court that must decide, on the evidence properly placed before it, whether the onus has been satisfied”: Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2003] Q.P.E.L.R. 624 at 628.
[13] The Court should not create a gloss on the words in the relevant criteria, however the use of the words “important” in criteria (a) and (b) and “rare, uncommon or endangered” in (b) clearly takes the application of the criteria beyond the common place. Mrs. Gregory (at 9.1 of her report) purports to rely on Advance Bank Ltd. v Queensland Heritage Council [1994] Q.P.L.R. 110 as authority for the proposition that the use of the word “important” implies that the qualities of a place must be out of the ordinary, even exceptional, to satisfy those criteria. Apart from the criteria being different in the then version of the Act, that case is not authority for the proposition she advances. Nor is the later merits hearing decision: Advance Bank Australia Limited v The Queensland Heritage Council [1994] Q.P.L.R. 229.
[14] “Important” is defined (inter alia) in the Macquarie Dictionary as “of much significance or consequence.” The use of words such as “important” and “rare, uncommon or endangered” in the criteria is entirely consistent with the object of the Act “to provide for the conservation of Queensland’s cultural heritage for the benefit of the community and future generations.”
[15] It is important to note that at the time of the Reelaw decision, the relevant provisions were different, in that the criteria for entry in the register required (as it were) a two stage test: the place could be entered “if it is of cultural heritage significance and satisfied one or more of the (similar criteria to s 35(1)(a)-(h)” (my emphasis).
THE EVIDENCE
[16] Dr. Bell (historian) and Mr. Michael Kennedy (architect) gave expert evidence on behalf of the appellant and Mrs. Gregory and Dr. Riddel (architect) gave evidence on behalf of the Council. It was not suggested that any of these eminent experts were untruthful rather the differences between them were more of emphasis. For example, Mrs. Gregory described herself as a social historian and suggested that her approach was broader than that of Dr. Bell, whose evidence she implied over emphasised the architectural features of the building. The architects differed significantly as to the level of internal intactness of the building, and there were also differences between the experts about the importance of flats in demonstrating the historical growth of seaside tourist accommodation in Queensland. In the citation under “Criteria B (sic)” it is stated: “Timber flats in waterfront locations were once a common form of holiday accommodation in coastal resorts throughout the State.”
THE UNCONTENTIOUS HISTORICAL EVIDENCE
[17] Although I understand Mrs. Gregory’s desire to place the development of the Star Flats in a complete historical and social context (of which Mr. Skoien was somewhat critical). I think that the emphasis should be on the application of the criteria to the building, and the more important historical context, in my view, is the obvious growing popularity of the Sunshine Coast as one of Queensland’s major tourist destinations in the 1930s and in particular the emphasis on waterfront destinations (such as the Esplanade, Cotton Tree) for holiday makers. The popularity of these destinations increased along with the improvement in transport infrastructure and the availability of “leisure time” to working families. Mr. Hubert Hoare was a soldier settler who was obviously successful enough as a pineapple farmer to be able to build the flats from 1935 – 37, and his own home on the adjoining block.
[18] The flats were constructed as purpose-built holiday accommodation. They consisted originally of a twin gabled timber building containing (2) three bedroom sets of flats on the lower and upper story each with a living room, a dining room, a bathroom and a shower. There are no extant copies of the original plans. All that remains are a few photographs from tourist advertisements showing one perspective of the external features of the building with its fenestration. There are no photographs of the internal layout so Dr. Riddel has made an “educated guess” and produced a floor plan of both floors with which Mr. Kennedy had some problems to which reference will be made later in these reasons.
[19] The flats also provided garages in the rear of the property to cater for the increasing use of privately owned motor vehicles for holiday purposes.
[20] In 1945 the Hoare family sold the flats. As I have noted, the history of the building’s use is then clouded until 1969 when it was functioning as a guest house. What is certain is that the property has not been used as flats for the last 40 years at least.
THE CENTRAL FACTUAL ISSUES
(a) The importance of timber flats on the waterfront
[21] A key emphasis in Mrs. Gregory’s evidence is on the importance of Star Flats as representing a “key stage” in the evolution of tourism in Queensland. In Appendix 1 to her report she sets out details of tender notices for flats in seaside areas 1934 – 1938. Her emphasis, and indeed the emphasis in the citation, is on the alleged importance of flats, on the waterfront in holiday locations such as Cotton Tree to the development of the State’s tourism industry. What has struck me is that the evidence suggests quite strongly that in fact flats did not play much of a role at all in the development of seaside tourist accommodation in Cotton Tree, or indeed on the Queensland coast, prior to World War II. The evidence suggests that guest houses and detached housing predominated in this period. In the Sunshine Coast area the evidence establishes that there were probably only another four flat buildings in waterfront locations apart from Star Flats, namely Riverside Flats on the Maroochy River, Surfview Flats at Cotton Tree, and Ocean Court Flats and Kairpara Flats at Caloundra. It is not certain that the later building was on the waterfront. By reference to a contemporaneous architectural publication and to tender notices, Dr. Riddel in his report indicates that between 1934 and 1938, 22 flats designed by architects in seaside locations were built in the whole of Queensland. Exhibit 11 contains extracts from a draft survey of tourism on the North Coast of Queensland from the 19th Century to 2007 undertaken by the EPA. The survey commences with the pre-railway era (up to 1880s) and proceeds through to the motor transport and mass tourism era post-World War II. It uses a methodology which includes reference to “the physical evidence” which deals with the various forms of accommodation used by tourists in the various periods. What is immediately obvious is that “flats and holiday units” are not mentioned in this category until the post-World War II era, when these are described as “the main form of holiday accommodation after World War II.” Under “the Steam era – interwar period”, “guest houses” are described as “the most common form of accommodation” during this period, and although holiday homes and hotels are mentioned, flats are not. Although the survey is a draft neither of the historical experts challenged its general findings.
[22] Mrs. Gregory, for the first time in her oral evidence, and when confronted with the draft survey, described Star Flats as a very early example of flats which proliferated later. Of course this shift in emphasis departs from the focus of the citation on the building being “an uncommon example” of timber flats which “were once a common form of holiday accommodation in coastal resorts throughout the State.” Mr. Kennedy also provided helpful evidence which supports my firm conclusion that timber waterfront flats did not play an important part in demonstrating the growth in popularity of seaside resorts pre-World War II. He obtained an aerial map of the Maroochydore/ Cotton Tree area from 1940 (Exhibit 15) and took the trouble to make a rough count of river or beach front buildings (120) and other buildings (215). He then put together a panorama of photographs taken from the northern side of the river showing waterfront development along the river in the mid 1930s. The Riverside Flats are there as is another large but unidentified building with (apparently) separate stairs and (possibly) twin gables; but what is clear, when this evidence is assessed in the light of the aerial map and the other evidence, is that flats were not common at least in this particular part of the Maroochy River.
[23] This evidence comfortably satisfies me that timber flat buildings like Star Flats were not a common form of holiday accommodation prior to World War II, or were particularly important in demonstrating the growth in popularity of seaside resorts on the Sunshine Coast. This finding alone would be enough to satisfy the onus upon the appellant that the building does not satisfy the cultural heritage criteria in s 35(1)(a) and (b).
[24] The evidence also established that there are a number of extant “early timber buildings” (some on the river) constructed prior to World War II. These buildings, most of which are detached houses, are shown in the photographs in exhibit 16. One of those buildings (photograph D) appears to be flats but quite unlike the Cotton Tree Backpackers.
(b) Intactness
[25] Intactness of the building both external and internal is an important issue particularly in considering criteria (d) in that it “is important in demonstrating the principal characteristics of a particular class of cultural places.” My conclusions in relation to the historical evidence above leads me to conclude that timber flats in waterfront locations simply did not form “a particular class of cultural places” prior to World War II so the appellant is entitled to succeed in its appeal in relation to (d) on that ground alone.
[26] In relation to the issue of “intactness” I prefer the evidence of Mr. Kennedy to that of Dr. Riddel. Both experts agree, and I accept, that the timber pergola presently in front of the building has no relevance to any assessment under this head. The pergola is free standing with no structural or load bearing exterior connection with the building. The exterior of the building is largely intact although there are changes to the fenestration pattern as demonstrated at p. 9 of Mr. Kennedy’s report. In my opinion, Senior Judge Skoein’s “average person” would decidedly not view this building from the street as a set of flats. I strongly prefer Mr. Kennedy’s evidence on this point to the effect that the building presents as a guest house rather than a private dwelling.
[27] I strongly disagree with Dr. Riddel that the average person entering the building would be able to recognize it as formerly a set of flats.
[28] We can only now guess at the interior design as it was in 1937 and Dr. Riddel has done this (bearing in mind his expertise) and his floor plan is probably accurate. I do agree however with Mr. Kennedy’s criticism of the positioning of the staircase at the front in Dr. Riddel’s drawing. I found his analysis based on the photographs he took during a recent inspection (exhibit 17) quite convincing, and conversely Dr. Riddel’s response vague and unconvincing. It is probable I think (as Mr. Kennedy opines) that the internal party wall did extend to the front of the building which would make it unlikely that the internal stairs would have been in the position suggested in Dr. Riddel’s floor plan. In any event, I am satisfied that the building internally has been significantly altered such that the average person entering the building now would not recognize it as having been a series of self contained flats. Even Mr. Kennedy, as a professional architect, found the interior to be very confusing, in the sense of informing the average person visiting the building of its previous use as flats. Dr. Riddel was surprised at Mr. Kennedy’s confusion but I have already noted my preference for Mr. Kennedy’s opinion about the positioning of the internal stairs, and I have to say I found Mr. Kennedy’s confusion understandable, both on the basis of his analysis and the site inspection. There are still original features including some fittings, but the interior now gives very little information about the building earlier use as self contained flats.
[29] Dr. Bell referred in his evidence to the work of historian Graeme Davison who he described (without challenge) as “the principal Australian commentator” on the assessment of “the heritage value of any building”. Davison described three ways in which buildings can be viewed historically, and it is the third of these categories “as a document” that I think comes into play in assessing this building. At 6.7 of Dr. Bell’s report he writes:
“This leads to Davison’s third category: the building as document. By that Davison meant that the building contains information which tells us about its subject matter, the events which occurred there or, more commonly, the historical occupant.”
[30] Although this approach does not bear on the applicability of the criteria it is helpful I think in deciding whether the building is “important” in the sense in which that word is used in s 35(1)(a) and (d). The historians were taken in evidence to the guide produced by the Cultural Heritage Branch to which earlier reference is made in these reasons (exhibit 14) and, in particular, to a section dealing with “cultural heritage significance” which is defined in the Act as “of a place, means its aesthetic, architectural, historical, scientific, social, or other significance, to the present generation or past or future generations.” “Cultural heritage” is referred to in s 35(1)(b) but, as I have earlier noted, s 35(1) does not contain the first step requirement that a place be of cultural heritage significance as was the case when Reelaw was decided.
[31] With that caveat in mind, reference was made in the guide to a building pictured at p.19, the Ravenswood Hotel, and I found the evidence of the historians about that place helpful in assessing the intactness of the Cotton Tree Backpackers. Both agree that the description in the guide of a two-storeyed brick building which “remains highly intact and is important in demonstrating in form, layout, style and decoration the qualities of a substantial federation era hotel in Queensland,” is accurate. They differed in their response to the hypothetical proposition that if the building’s interior had been altered significantly it would be of less importance in (for example) demonstrating the evolution or pattern of Queensland’s history and/ or the principal characteristics of a particular class of cultural places.
[32] I am quite satisfied that intactness is an important issue bearing upon the applicability of particularly criteria (a) and (d).
[33] I am satisfied that the interior layout of this building has been so substantially altered as to greatly reduce its ability to inform the Queensland community about the evolution or pattern of the State’s history or to demonstrate anything important about the principal characteristics of pre-war purpose built timber waterfront flats if such a class existed (of which I am not satisfied).
[34] I am satisfied that the building does not satisfy any of the cultural heritage criteria in s 35(1)(a) (b) and (d) of the Act, and I order that the appeal be allowed and the entry in the Queensland Heritage Registry of Star Flats as a State Heritage place be removed.
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