JL Smallcombe As Trustee For The Cotton Tree Trust v. Queensland Heritage Council

The case before the court was an appeal by JL Smallcombe, as trustee for the Cotton Tree Trust, against the Queensland Heritage Council’s decision to include Star Flats in the Queensland Heritage Register. The dispute centred on whether the cultural heritage criteria applied to the building, specifically whether it represented a rare or uncommon class of cultural place, and if the lack of internal intactness of the building was relevant to the application of these criteria.

The primary legal issue for the court was to determine whether the Queensland Heritage Council's decision to include Star Flats in the Queensland Heritage Register was justified under the Queensland Heritage Act 1992. This involved interpreting the relevant cultural heritage criteria and assessing the evidence presented regarding the building's significance. The court also needed to consider whether the lack of internal intactness impacted the building's heritage value, and whether the criteria had been correctly applied.

The court found that the Queensland Heritage Council had failed to adequately demonstrate that Star Flats met any of the cultural heritage criteria for inclusion in the Queensland Heritage Register. The council's assessment did not sufficiently establish the building's rarity or uniqueness as a class of cultural place, and the impact of the lack of internal intactness was not adequately addressed. The court relied on precedent cases such as Advance Bank Australia Ltd v Queensland Heritage Council and Lonie v Brisbane City Council & Ors to conclude that the council's decision was not supported by the evidence.

The appeal was allowed, and the court ordered that the entry of Star Flats in the Queensland Heritage Register be removed. This decision underscored the need for a thorough and evidence-based assessment of heritage criteria when making decisions about the inclusion of buildings in the heritage register.