Reelaw v Queensland Heritage Council - [2004] QPEC 79

PLANNING & ENVIRONMENT COURT OF QUEENSLAND

CITATION: Reelaw v Queensland Heritage Council [2004] QPEC 079

PARTIES: REELAW PTY LTD. (ACN 080 614 428)
(Appellant)
v
QUEENSLAND HERITAGE COUNCIL
(Respondent)

FILE NO: 126 of 2004

PROCEEDING: Appeal

DELIVERED ON: 29 November, 2004

DELIVERED AT: Townsville

HEARING DATES: 11, 12, 13, 14 & 15 October, 2004

JUDGE: C.F. Wall Q.C.

ORDER: 1. The appeal is allowed.
2. The decision of the Respondent of 27 February 2004 to enter the T&G Building, 420 Flinders Street, Townsville permanently in the Heritage Register is reversed.
3. The entry of the T&G Building, 420 Flinders Street, Townsville in the Heritage Register is to be removed forthwith.

CATCHWORDS:
ENVIRONMENT PROTECTION - heritage conservation - entry of commercial building in heritage register - wh. building of cultural heritage significance - wh. relevant criteria for entry satisfied - architectural, aesthetic & historical significance of the building - wh. any prospect of the cultural heritage significance of the building being conserved.

Legislation referred to:
Queensland Heritage Act 1992, ss 3, 23(1) & (3), 26(3), 30(1), (2), (5) & (6), 33, 39, 40

Cases referred to:
Advance Bank Ltd v Queensland Heritage Council [1994] QPLR 110 and 229 (CON)

COUNSEL: C. Hughes SC & E. Morzone - Appellant
M. Hinson SC & R. Jones - Respondent

SOLICITORS: Suthers Taylor - Appellant
Crown Law - Respondent

Introduction

This is an appeal against a decision of the Queensland Heritage Council made on 27 February 2004 to enter the T&G Building, 420 Flinders Street, Townsville permanently in the Heritage Register under the Queensland Heritage Act 1992.

The appellant is the owner of the building.

The minutes of Heritage Council meeting number 157 of 27 February 2004 are as follows:

“The Heritage Council resolved in accordance with Section 30(1) of the Queensland Heritage Act 1992 to enter the T&G Building, 420 Flinders Street, Townsville permanently in the Heritage Register.”

The Heritage Council must have acted under s. 30(2) of the Queensland Heritage Act and the reference to s. 30(1) is clearly a mistake because the appellant had made an objection to the proposed entry of the building in the Heritage Register on a permanent basis. Nothing though turns on this mistake.

Legislation

The relevant legislation is the Queensland Heritage Act 1992. In part the object of the Act is to make provision for the conservation of Queensland’s cultural heritage and for that purpose to provide for the maintenance of a register of places of significance to Queensland’s cultural heritage (the “heritage register”), see s. 3(1).

The Act establishes the Queensland Heritage Council which consists of a representative of each of the National Trust of Queensland, the Local Government Association of Queensland, the Queensland Council of Unions, an organisation representing the interests of property owners and managers in Queensland, an organisation representing the interests of rural industries in Queensland and seven persons with appropriate knowledge, expertise and interest in heritage conservation. The Council is thus a specialist body and its decisions are deserving of weight.

The following are relevant provisions of the Act:

“23 Criteria for entry in the register

(1) A place may be entered in the heritage register if it is of cultural heritage significance and 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;

(c) the place has potential to yield information that will contribute to an understanding of Queensland’s history;

(d) the place is important in demonstrating the principal characteristics of a particular class of cultural places;

(e) the place is important because of its aesthetic significance;

(f) the place is important in demonstrating a high degree of creative or technical achievement at a particular period;

(g) the place has a strong or special association with a particular community or cultural group for social, cultural or spiritual reasons;

(h) the place has a special association with the life or work of a particular person, group or organisation of importance in Queensland’s history.

…

(3) A place does not satisfy the criteria for entry in the heritage register if there is no prospect of the cultural heritage significance of the place being conserved.

26. Objections

(3) An objection to the proposed entry of a place in the heritage register on a permanent basis may be made only on the basis that the place is not of cultural heritage significance or does not satisfy the criteria for entry in the register.”

Section 30(5) provides for the appellant’s right of appeal in the present case. Section 30(6) provides:

“If the appeal is against a decision to enter a place in the heritage register on a permanent basis, the appeal may only be made on the basis that the place is not of cultural heritage significance or does not satisfy the criteria for entry in the register.”

“Conservation”, “cultural heritage significance” and “aesthetic significance” are defined in the Act as follows:

“conservation” includes protection, stabilisation, maintenance, preservation, restoration, reconstruction and adaptation.

“cultural heritage significance” of a place or object, includes its aesthetic, architectural, historical, scientific, social or technological significance to the present generation or past or future generations.”

“aesthetic significance” of a place includes its visual merit or interest.

“Place” includes a building and “building” includes furniture, fittings and other objects –

a) associated with the building; and

b) that contribute to the building’s cultural heritage significance

Both parties, perhaps influenced by the decision in Advance Bank Australia Ltd v Queensland Heritage Council [1994] QPLR 110, proceeded on the basis that the onus of proof was on the appellant. The issue was not argued before me. I am prepared to proceed on that basis but that is not to be taken as necessarily signifying assent that the provisions of the Act should be interpreted that way.

Before a place may be entered in the heritage register

(a) it must be of cultural heritage significance which includes its aesthetic architectural, historical, scientific, social or technological significance to the past, present or future generations; and

(b) it must satisfy one or more of the criteria listed in paras (a) – (h) of s. 23(1); but

(c) if there is no prospect of its cultural heritage significance being conserved (which includes protected, stabilised, maintained, preserved, restored, reconstructed and adapted), it will not satisfy the criteria for entry.

The decision of Row DCJ in Advance Bank Ltd v the Queensland Heritage Council[1994] QPLR 229 where His Honour dealt with the merits of the appeal in that case provides some guidance as to how parts of s.23(1) may be interpreted. Counsel were unable to refer me to any other decisions bearing on the issue. As a result of this decision the Act was amended in a number of significant respects. What follows is unaffected by but also takes into account those amendments.

His Honour said, in relation to the definition of “cultural heritage significance” that the word “social” in that definition is a word of ordinary parlance and should be given its ordinary meaning; the word has a relationship to people or human society. To possess social significance a building ought to be identified in the mind of past, present or future generations with some aspect of an organisation of members of the public or of some undertaking which had a public connotation.

His Honour also said, in relation to “cultural groups” (see s.23(1)(g)) that “cultural” in its ordinary meaning in the context pertains or relates to the sum total of the ways of living built up by a group of human beings of a particular race or nature.

Dr Macarthur, Reader in Architecture at the University of Queensland, assessed the building’s architectural and aesthetic significance and its significance in the history of architecture in Queensland and Australia for the respondent. To him “aesthetic” in the definitions of “cultural heritage significance” and “aesthetic significance” means “to the senses” and the question raised is whether or not the building produces a pleasing or rewarding sensory experience. Whilst conceding a degree of subjectivity in such an assessment, Dr Macarthur said he tried to be objective and that in such matters expertise is accorded to experts in the particular field, for him, architecture.

I will deal later with the issues involved in interpreting s.23(3).

Heritage Register Entry

So far as is particularly relevant to the T&G Building, the following are extracts from the Heritage Register entry in relation to the building.

“Heritage Significance

The former T & G Building is a place of cultural heritage significance and satisfies one or more of the criteria in s.23(1) of the Act as evidenced by, but not exclusive to, the following statement of heritage significance, based on criteria a, b, d, e, f, g & h:

The former T&G Building which was completed in 1959 is important as evidence of the development of Townsville after the Second World War and marks the economic importance of the city in north Queensland. The building is illustrative of the consolidation and expansion of insurance services during the mid twentieth century in north Queensland.

The former T&G Building is important as an example of a Modernist building in Queensland designed before the Second World War and is regarded as being progressive for its time. It is the only example of its particular building type built in Queensland.

The building is significant for its association with the Melbourne architectural practice, A & K Henderson & Associates, and for its association with the Australian Temperance and General Mutual Life Society. The building is also important for its association with the community of Townsville as a landmark and social focal point. The building is important as a landmark in Flinders Street, Stanley Street and within the general townscape of Townsville with its imposing vertical tower and adjoining street elevations making a major contribution to the Townsville CBD townscape.

History

As Australia emerged from the Depression the T&G Society engaged in an extensive program of expanding its network and building substantial offices in major centres throughout Australia. A branch was established in Townsville during the 1930s and in May 1939 the Society purchased a property on the corner of Flinders and Stanley Streets. However, plans to construct a north Queensland branch office on the Flinders Street site were delayed. Extensive designs were prepared between May and October 1939 but construction documents were delayed by the Second World War. Construction was then delayed by a shortage of building materials after the war.

Post war prosperity saw the company again planning the construction of a branch office in Townsville. From the late 1920s the T&G Society had employed Melbourne architects A & K Henderson and Associates to prepare plans for their offices. At the time Melbourne was leading the introduction of the Modern movement in Australia and A & K Henderson and Associates (formerly Henderson, Alsop and Martin) were a respected firm. A & K Henderson documented the Townsville building. T&G offices had distinctive characteristics - multi storey buildings on corner sites, with a tower motif and signage declaring unambiguously the building’s occupants. Construction of the Townsville office was supervised by Townsville architects Rooney and Freer and was completed in 1957. This was probably one of the last buildings designed by A & K Henderson and Associates for the T&G Society who were to commission the services of another Melbourne architectural firm Stephenson and Turner between 1959 and 1960.

The building was constructed for a mixture of commercial tenancies, the T&G Society Chamber (with supporting offices) and shopfront retail. A dress shop, established by Mrs Pat Washington in the building in 1959, occupied the whole of the ground floor until at least the mid 1980s. In more recent times a music shop has operated from the ground floor on Flinders Street. The Migrant Resource Centre, which has occupied offices at the rear of the ground floor since 1996, has recently expanded into the area fronting Flinders Street.

By 1980 the industry began to decline as a result of government regulations against heavy rate cutting. Soaring property values, share prices and interest rates impacted on the profit margins of the deregulated industry forcing many companies out. The T&G Society was one company to feel the impact of deregulation and in 1983 it amalgamated with the National Mutual Life Association. Rationalisation of personnel and resources saw the building became superfluous to the latter’s requirements and it was subsequently sold.

Description

The T&G Building is a part three and part two storeyed structure with tall clock tower bounded by Flinders, Stoke and Ogden Street. At ground level are large shopfront windows surrounded by what appears to be a dark grey polished stone facing. A suspended awning extends around the building on the Flinders and Stoke Street frontages. The first and second floors on the Flinders Street façade had, until recently, additional sun protection of vertical aluminium fins.

The building was designed for natural light and ventilation with three internal light courts which also provided light, through large cast glass tiles, and ventilation by a venturi type system to the ground floor. Louvred glass surrounds the courts on the office floors. Additional floor space was planned and an additional lift shaft, to the operational shaft, constructed.

The tower rises above on Flinders and Stanley Street corner and its verticality is emphasised with a series of narrow vertical openings. The letters T&G are displayed prominently on four sides below a clock with faces on each side. The clock tower is topped with a ziggurat effect and a flagpole.

The building is prominent in both major city streets and compliments the former AMP Building and former State Government Offices on the opposite corners.

The style of the building reflects the introduction of Modernism in Australia with its clean horizontal lines contrasting with the vertical clock tower. The clock tower is finely detailed to emphasis its height and terminates in a pinnacle. The design showed adaptation to climate with its vertical fin sun-screening used to enhance and protect the north west façade.”

The Building

The following photographs show the building in the 1990’s (with the external louvres) and as it now is.

Assessment History of the Building

This is taken in part from the report of Dr Peter Bell, the architectural historian called by the appellant and the report of Mr Michael Gunn, the architect appointed as assessor to consider the appellant’s objection to the decision of the Heritage Council to permanently enter the building in the Heritage Register.

The earliest form of recognition of heritage significance in Queensland came with the formation of the National Trust of Queensland in 1963. The T&G Building has not been entered in the Trust’s Classified List.

In 1977 a report on the conservation of historic areas in Townsville identified the T&G Building as one of 12 “Landmark Buildings Visible Beyond Their Immediate Surroundings” and one of 32 “Buildings of Special Historical, Architectural and Landscape Significance” in the Townsville city centre. The report did not specify which of these forms of significance it attributed to the T&G Building, but in the light of the map identifying the building as a “landmark” it was probably held to be of “landscape significance”. No action was taken as a result of these observations.

In 1988 the Royal Australian Institute of Architects commissioned a national study of significant twentieth century architecture. In the Queensland component of this study the T&G Building was included in the list of 178 modern buildings throughout Queensland noted as significant. The reasons why significance was attributed to the building were summarised as:

• an excellent example of a commercial building designed to accommodate the tropical climate with sun shading to windows

• significant as one of a number of buildings designed to forcefully display the presence of the T&G Insurance Company throughout Australia

• an important element in the townscape of Townsville; situated at an important intersection the tower is a dominant element in Flinders Street.

In 1997 the Australian Heritage Commission considered the building for inclusion in the Register of the National Estate (RNE) under the Australian Heritage Commission Act 1975. An assessor’s report concluded that the building qualified for entry in the RNE as being important in exhibiting particular aesthetic characteristics valued by a community or cultural group because of its significant “aesthetic contribution” to the streetscape (particularly the clock tower). The Commission disagreed and concluded that the building did not meet this criteria. Anecdotal evidence suggests this was because “the Commissioners did not feel the listing could be sustained on the strength of a tenuous association with one criterion”. The Commission acknowledged that the building probably had National Estate value aesthetically but felt this wasn’t adequately demonstrated through the assessments made at the time. The Commission considered the clock tower was the main aesthetic contributor to streetscape whilst the rest of the building was “seen as more of an extension of the clock tower than of value in its own right”. The building was removed from the RNE interim list in 1997.

A Townsville City Council commissioned heritage survey of the central business district in 1999 identified 63 places of cultural heritage significance, among them the T&G Building. The report did not use any criteria in making its assessments but summarised the significance of the building as follows:

• as demonstrating the development of Townsville in the 1950s with the consolidation and expansion of insurance services in North Queensland

• for its association with the T&G Mutual Life Society

• for its landmark qualities and major contribution to the CBD townscape.

In December 1999 apparently on the basis of this survey, the building was nominated for entry in the Queensland Heritage Register by the Heritage Officer employed by the Townsville City Council (probably Dr Tom Blake). Notwithstanding that the Heritage Register Advisory Committee recommended entry in the Register on the basis of criteria a, e and h, of s.23(1) the Queensland Heritage Council concluded that the building “did not satisfy one or more of the criteria in Section 23(1) of the Act”. The Council further resolved to advise the Townsville City Council that the building had “local heritage values”.

In May 2003 the appellant purchased the building. It had no intention to refurbish it. Shortly afterwards it entered into a contract to sell the building and the adjoining site to a developer for development purposes. As part of the redevelopment it was intended to demolish the building and construct a multi-storey building containing home units and shops. Apparently as a result of the proposal to demolish the building, a local architect nominated the building for entry in the Register on 24 September 2003. That entry has led to the present appeal. The contract with the developer did not proceed because of that entry.

Structural Condition of the Building

Whilst apparently good in some respects, the evidence indicates significant problems requiring at least further engineering investigation. The building is unoccupied and in its current condition is uninhabitable and untenantable.

There was substantial agreement between the engineers called by both parties as to the condition of the building. They were Patrick Murray, whose report is exhibit 6, and Max Kilmister, whose report is exhibit 7.

Mr Murray said his inspection was preliminary only and relatively superficial, not extensive. Substantial on-site work and further testing is required before the building can be certified as structurally adequate.

He observed some water seeping through the basement retaining walls. On the upper levels, there were some areas of local cracking in the walls and considerable distress was present in the infill walls around the light courts, most likely from rain water ingress. These, though, are non-structural walls. Water damage was also observed in the main chamber below the light courts.

In the clock tower, Mr Murray observed sections of slab soffit in which the reinforcing was visible in the columns and the slabs raising considerable long-term durability issues. This damage, he said, may be representative of a more widespread issue with inadequate concrete cover to the reinforcing leading to spalling of the concrete and ultimately a dramatic reduction in its strength.

In general, given the age of the building, he thought it most likely that the concrete used was of low strength by today’s standards and that the concrete cover provided to the reinforcing may well limit its life expectancy. Durability doubts exist as to the vertical concrete fins of the tower as a result of possible long-term corrosion to the underlying reinforcing and strength failure of the fins could result. The fins are not, though, structural features of the building.

Significant on-site verification and testing is necessary to assess the viability of conserving the existing building envelope in a manner that allows it to be used in accordance with modern building standards, with or without redevelopment. Fire safety issues may also require significant changes to stairs and stairwells and the application of protective coatings to structural members. Underground car parking would not be feasible. If the deterioration of the building is allowed to continue unchecked, there is, he thought, a possibility that lesser weather events than extreme ones could cause damage before the building could be adapted or used. It would need to be extensively investigated and assessed.

Mr Kilmister’s inspection was visual and relatively superficial only. He observed peeling paint associated with underlying spalling concrete, generally at high levels. There is clearly significant water leakage associated with the central light well.

At the fourth level, three of the four corner columns were exhibiting signs of rusting reinforcement near floor level. Above the fifth floor in the tower, the reinforcement has rusted, causing concrete to spall off.

The beams connecting the lift shafts together and stair walls to joint columns and the third floor roof beams around the clock tower are 40-80 per cent deficient under design wind load, which means they are over-stressed in that the steel has theoretically reached its yield stress and the members will accept no more load. The columns supporting the clock tower may, on testing, be found to be over-stressed.

Deficiencies in the original building strength design are apparent at some locations. The building does not in significant respects satisfy current concrete durability requirements and eventually major maintenance of the façade concrete will be required.

Mr R A Pemberton, an experienced Townsville architect called by the appellant said that his observations of the building lead him to conclude that there are “massive areas that are going to progressively fail, particularly the tower” which he considered “has a very limited life.” There is also concern about whether the building was built according to plan particularly in relation to the placement of reinforcing steel to the concrete formwork. This was also a concern of Mr Murray. At the time the building was constructed there was, Mr Pemberton said, “a fairly lackadaisical attitude about the placement of steel.”

Prospect of conserving the building and cost to do so

If it is to remain, the building clearly needs at least maintenance, restoration, reconstruction and adaptation.

Mr Pemberton expressed the initial opinion that none of the criteria in s.23(1) were satisfied but if they were he listed at p.18 of his report, exhibit 5, the work he said needed to be done to conserve the building. His opinion is that the building “having been designed in Melbourne for more temperate conditions, has permanent non-functional elements that render it unsuitable for conversion, upgrading or adaptation to produce for the future a viable commercial or residential building.”

These include

• the external fenestration – an attempt to provide sun shading to louvre windows

• the internal light courts – these have created a totally intolerable climatic situation, internal thermal and water penetration problems and have rendered the expansion of internally divided spaces into functional future spaces improbable and totally unviable.

Mr Pemberton amplified these design faults and their practical consequences in his evidence at pp 184-191.

To the extent that his opinion is at odds with that of Mr Gunn I prefer Mr Pemberton. He is experienced in Townsville conditions and I thought his views and opinions were more realistic; also Mr Gunn did not give evidence.

The sunshading and internal light courts are said by Dr Macarthur (and Mr Gunn) to warrant entry of the building in the heritage register. For reasons which will shortly become apparent I cannot accept this opinion. In a practical architectural sense I consider Mr Pemberton to be much more experienced than Dr Macarthur who is an academic with no or very little practical experience. Dr Macarthur is not registered as an architect and has not designed a building which has been constructed. In reaching this conclusion, I mean no disrespect to Dr Macarthur, rather that in my view, practicability in an architectural sense is a factor to consider in determining “architectural significance” in the context of the definition of “cultural heritage significance” and the criteria listed in s.23(1). Dr Macarthur also conceded he did not have “much experience with architecture in North Queensland and Townsville” and has not spent much time in Townsville. He said his “involvement in architecture is in theory and teaching.”

The appellant retained Mr Christian Marais, a quantity surveyor of Rider Hunt, Queensland, to cost the work listed by Mr Pemberton most of which Mr Peter Roy, the respondent’s architect, agreed with. He did that in his report, exhibit 11. In addition he costed disabled access, fireproofing existing slabs and refurbishing the basement to provide usable space. He did not specifically cost (as opposed to recommending a contingency amount) any remedial work required for concrete cancer to the external walls and the clock tower but allowed only for testing of both areas and rendering and painting the external façade. I am satisfied from the evidence of Mr Murray and Mr Kilmister that it is likely that extensive remedial work to both areas will in fact be required.

Before costing the work Mr Marais conferred with Mr Pemberton and Mr Murray. The total cost of the work would be $5,808,000. The actual cost would, I find, be much higher. I accept the opinions of Mr Marais; no other quantity surveyor was called. He said there is “definite conservatism” in the scope of the work he costed because he priced what he could see; he didn’t price any latent conditions (other than in the contingency amount) and did not cost any work required to “suit any particular tenant” or end user; usually a residential development is more expensive than a commercial one; costs would be “far higher to fit the building out for a specific end user”. He simply “tried to fix up what is there now in a way to meet local Council requirements”.

Mr Pemberton said that Mr Marais’ figures are conservative because the extent of structural remedial work required is not, at this stage, known. In cross-examination Mr Marais agreed the cost was about $2,100 per square metre excluding GST and the basement but he considered it “dangerous” to take a square metre rate. (Mr Pemberton independently arrived at the same square metre rate.) I accept his reservations: such an approach can be dangerous, there is no such thing as an average rate and each building is very different.

After carrying out the work he costed, Mr Marais didn’t think the building would be suitable for any end user compared to other buildings available around Townsville; much more work at a greater cost would be required to change the internal layout “which is a bit of a patchwork quilt”.

It is clear to me that if the work costed by Mr Marais was carried out some of the features relied upon in support of the entry of the building in the heritage register would have to go. It is also clear that it would not be an economic proposition for the appellant or any owner to spend some $6 million in carrying out that work. Mr Hinson submitted that there is no evidence about what the potential yield would be if the works costed by Rider Hunt were carried out but I think the evidence is sufficient for me to conclude that it would not be an economic proposition to carry out that work.

Mr Pemberton said it would be impossible to get a return on $6 million spent refurbishing the building.

The appellant purchased the building and the adjoining property for the land value - $750,000. It has not been able to rent the building, even by offering very low rental. The adjoining property was rented to a restaurant. Prospective tenants were not interested once they saw the building. The appellant is not prepared to spend money refurbishing and redeveloping the building because it is not a financially viable proposition. I agree that this is not an unreasonable attitude particularly in view of the enquiries Mr Adams, a director of the appellant, made about the building’s heritage status before the appellant purchased the site. In real terms the site, not the building, was purchased and restoration or refurbishment was never seriously contemplated.

The absence of proper air conditioning also makes renting the building difficult – at any rate the appellant is not prepared to spend $1.4 million (the Rider Hunt estimate) to rewire and air condition the building on the off chance of getting a tenant. Mr Pemberton’s opinion is that it would be “impossible to tenant the building without air conditioning” and that in a modern commercial environment air conditioning would require removal of the louvres.

The appellant’s view also is that the alternative uses suggested by Mr Roy in his report, exhibit 8, are likewise uneconomic and are not financially viable. I accept the evidence of Mr Adams, in this respect recognising that his company when it purchased the building neither intended to nor had the capacity to redevelop it. The appellant purchased the building to on-sell to make money and for no other reason. One of the options was to first demolish the building.

When the appellant purchased both properties they were returning a gross income of $75,000 pa but only $35,000 came from the T&G building. Outgoings on the properties were $85,000 p.a.

At the time of purchase Knight Frank Valuers, reported that the building “had been poorly maintained over the previous 15 years”. The evidence of Mr Murray and Mr Kilmister supports that opinion and it is consistent with my own observations when I inspected the building on the first day of the hearing. Knight Frank also reported that the building required “car parking (which it doesn’t have at all) contemporary presentation and fit out and relocation of the central core area”. The central core area was a part of the building which influenced the opinion of Dr Macarthur.

In his report Mr Roy listed a number of “possible uses for the building” (including civic uses) and said that “it is possible to make an adaptive re-use for a range of activities without destroying the integrity of the building” and that “there is great scope for imaginative adaptations which maintain the heritage values”. To an extent I accept that this may be so if one ignores costs and returns.

Mr Roy said, like others, that the building does not, but in any redevelopment would have to, “comply with the contemporary requirements of the Building Code of Australia in the areas of fire services, communication and security systems, fire escapes, and equitable areas” as well as “contemporary standards of amenity” i.e. air conditioning. He said the building services (including wiring and air conditioning) have deteriorated to the extent that none are worth keeping.

Notwithstanding that Mr Roy’s list of building “shortcomings” (most highlighted by Mr Pemberton) is greater than his list of “advantages” he said (p.4, exhibit 8) that the shortcomings “can be easily overcome”. Again that may be so, but at a cost with no reasonable likelihood of any economic return. It would not be cost effective. He conceded that any use of the building would not be “with commercial expectations of on site car parking” and that it “does have some difficulties with achieving car parking in an expected town planning sense”. (The draft 2004 Townsville City Plan does propose cash contributions in lieu of on site car parking but without on site car parking it would be difficult to market the building). He also conceded that his list of adaptive re-uses was “based on a purely abstract sense that these were uses that if somebody had the will and the market was there they could fit into the building without destroying the heritage issues identified by Dr Macarthur”.

I am unable to accept Mr Roy’s opinion that the cost to build residential or commercial accommodation of an equivalent area to the building would be almost the same as the cost stated by Mr Marais to redevelop or restore the building. Mr Roy takes no account of end user requirements and costs. Mr Marais said that his costs did not allow for changing any of the internal layout which he described as “pretty daunting at the moment”. I prefer the evidence of Mr Marais to that of Mr Roy. I thought the former was more realistic and commercial whereas Mr Roy was somewhat altruistic in his approach; in fact he conceded it was “abstract” and that there are dangers (hidden costs) in refurbishing old buildings. In its present condition Mr Roy agreed though that the building is not suitable for human occupation.

According to Mr Pemberton it is non-tenantable at the moment and his view also was that it would cost more to restore the building than to build a replacement commercial building.

This is not a well maintained functional building where there is no doubt about its cultural heritage significance being conserved at the time of entry. That is the relevant time so far as s.23(3) is concerned, taking into account though the reasonably foreseeable future. On the contrary the building is old and run-down and not capable of being conserved if the costs of doing so are any indication.

Mr Pemberton agreed in cross-examination that a purchaser of the building could be interested in restoring it but that in my view is highly unlikely and would require an altruistic benefactor with money to throw away.

Meaning of Section 23(3)

On the appellant’s case this must of necessity involve economic considerations including the cost of conserving the building. On the other hand the respondent’s case is that the economics of conservation are an irrelevant consideration.

The place must first have cultural heritage significance. Mr Hughes submitted that s.23(3) recognises that if property remains in private ownership there will be occasions where there is simply no prospect of these values being conserved if the building is in a state of deterioration and there is no prospect of any economic return. The present building he submits, is one which has never really worked and there is no prospect that anyone will come along and spend money on it.

Advance Bank Australia Ltd v Queensland Heritage Council [1994] QPLR 110 was referred to by the respondent. In that decision Row DCJ was dealing with the nature of the appeal and the onus of proof. After referring to s. 26(3) His Honour said at p 111:

“Those two aspects similarly are the matters under s. 30(6) whereby an appeal against the decision to enter a place in the register on a permanent basis may be made. On the appeal, I am satisfied the appellant cannot go outside the matters set out in s. 30(6) of the Act. Other matters which may have been material in the consideration by the Council of the application, for example, private or public economics are not matters which are justifiable before the Court.”

I am not sure what is meant by these remarks. They were not said in the context of either s. 23(1) or s. 23(3) as neither are referred to in the judgment. In the circumstances I am unable to accept that they support the exclusion of the economics of conservation as a relevant consideration under s. 23(3).

On the substantive hearing in the Advance Bank case s. 23(3) was clearly raised but it is not clear from the judgment what evidence was called on the issue. His Honour said:

“The appellant called evidence of no prospects. However, the various reports failed to establish facts on which those reports were founded. The reports and evidence called from such witnesses are of no weight as the primary facts on which the opinions were expressed have not been established. On the evidence I am satisfied that the appellant has not made out a case under s. 23(3) of the Act.”

See Advance Bank Ltd v The Queensland Heritage Council [1994] QPLR 229 at 239.

The respondent argued that “no prospect” meant “impossible” to conserve, “cannot be conserved” and the appellant’s evidence did not go this far. The appellant argued that if it is not a realistic economic proposition to conserve the building there is then no prospect or no reasonable prospect of its cultural heritage significance being conserved. As to this the respondent submitted that the sub-section says “no prospect” not “no reasonable prospect”.

The respondent relied on s. 33 of the Act which is in the following terms:

“33 Criteria for assessing development applications under the Integrated Planning Act 1997

(1) If, under the Integrated Planning Act 1997, the council is the assessment manager or a referral agency for a development application, the council must assess the application against the objects of this Act.

(2) If the council is satisfied the effect of approving the development would be to destroy or substantially reduce the cultural heritage significance of a registered place, the council must, if it is satisfied there is a prudent and feasible alternative to carrying out the development --

(a) if the council is the assessment manager for the application -- refuse the application; or

(b) if the council is a concurrence agency for the application-- tell the assessment manager to refuse the application.

(3) In deciding if there is a prudent and feasible alternative to carrying out the development, the council must have regard to--

(a) safety, health and economic considerations; and

(b) any other matters the council considers relevant.”

“Development” means “development as defined under the Integrated Planning Act1997”.Under that Act “development” includes “carrying out building work” which in turn includes “demolishing a building”, see ss. 1.3.2 and 1.3.5.

It was submitted by Mr Hinson that it is only in the case of a development application of the type referred to in s. 33(2) that regard may be had to economic considerations. He submitted that because s. 33 specifically refers to economic considerations and s. 23(3) does not, Parliament obviously intended that such considerations are only relevant on a s.33(2) type application and not when considering the issue involved in s. 23(3).

His argument, whilst superficially attractive, has an element of duplicitous circuity about it. A building could of course satisfy the criteria for entry in the heritage register and later deteriorate to the extent where it is no longer a prudent and feasible proposition to conserve it by reason of economic considerations. On the other hand Mr Hinson’s argument envisages a building in a state such that by reason of economic considerations there is no prudent and feasible alternative but to demolish it, being entered in the heritage register followed by the heritage council approving an application to demolish it on the basis that there is no prudent and feasible alternative to that course because it is not an economic proposition to conserve it. In other words as there is some prospect of the cultural heritage significance of the building being conserved it must be entered in the heritage register but on economic grounds as there is no prudent and feasible alternative to demolishing the building its demolition will therefore be approved.

Mr Pemberton said that in his opinion s. 23(3) “implies a level of reasonableness and therefore the commercial climate should determine if the place can be conserved for some functional and viable use,” ex. 5, p. 18.

Dr Macarthur said he always understood s. 23(3) “narrowly, as an issue of whether or not the building can be maintained on its site”. He conceded that “if the structural integrity of a building is so compromised that it is likely to collapse and remedial work is not possible” this could be relevant to whether there is no prospect of its cultural heritage significance being conserved. He did not consider the building’s future viable use a relevant consideration.

The Act imposes no obligation on the owner of a building entered in the heritage register to conserve it.

Dr Bell said that “the idea of a building simply sitting empty in order to preserve its physical form is completely unacceptable in modern heritage practice.”

As a matter of common sense one would think that economics (or costs) is involved in the issues of protection, stabilisation, maintenance, preservation, restoration, reconstruction and adaptation on the basis that it is relevant to know what it would cost to carry out such work but Mr Hinson submitted no, if it is possible to carry out such work no matter how much it costs that is the end of the matter; that decision is made without reference to economics. Mr Hughes criticised this argument on the basis that the legislature cannot have intended merely a purely hypothetical preservation of a building and that one cannot sensibly construe the plain meaning of the words “no prospect” having regard to the definition of “conservation” without taking into account economics.

Section 23(3) directs attention to the cultural heritage significance of a place being conserved. It is likely that conservation will require the expenditure of money in the sense that it is likely to cost money to protect, stabilise, maintain, preserve, restore, reconstruct or adapt a building more so if the building is old and run-down. An owner considering whether to expend money on the conservation of a building is likely to be influenced by economic considerations including whether it is an economic proposition to do so. It would, I think, be quite artificial if such considerations were to be ignored in deciding whether there is any prospect of the cultural heritage significance of the building being conserved. In these circumstances it would seem sensible to interpret “no prospect” in s. 23(1) as meaning “no prospect that it will happen”. In the present case the evidence establishes that there is no prospect that the building will be conserved. In those circumstances there is therefore no prospect of any cultural heritage significance that it may have being conserved.

Architectural Significance of the Building

In my view there is none.

Dr Macarthur relied on criteria d, e, f and h of s. 23(1) and said that a and g were outside his expertise. He said he limited his consideration to matters of aesthetic and architectural significance. Realistically he didn’t have different reasons why the building was of cultural heritage significance and satisfied criteria d, e, f and h rather his reasons were the same or some of the same in relation to each matter. Mr Pemberton considered only the s.23(1) criteria but had the building satisfied any of those it would be of cultural heritage significance.

As I have already said I prefer the evidence of Mr Pemberton to Dr Macarthur. The building has the design failures already mentioned; its Melbourne design is non-functional in north Queensland; it does not work; a sauna-type situation has resulted; it is totally unsuitable for the tropics; it displays a complete disregard for the functional requirements of a building in north Queensland; from a usable point of view it isn’t functional; the sun shading and climate control features fail completely; the glass bricked ceiling above the chamber generates heat; the intended cross-ventilation didn’t work; its climatic design is not skilled; the external sun-control devices were eventually removed because they never worked from the start; the internal heat generated by the light courts destroy any benefits from the intended natural ventilation which in any event didn’t work; the light courts cause the interior to overheat with no solution for dissipating the heat; air-conditioning was required because of the inadequacy of the sun control devices; the storm water downpipe system cannot cope with heavy rain.

The experts are unable to agree on the style of the building:

• Pemberton - primarily Art Deco

• Macarthur - Art Deco with Modernist features

• Allom Lovell Architects - Commercial Palazzo

• Gunn - early Modernist

• Bell - Art Deco/late Modernist

• Heritage Register entry - Modernist (presumably taken from the Gunn report)

The building was not designed as an institutional building but as a commercial office building. When constructed it was 20 years old in architectural design and carried the aesthetics of a past era. The variations in the original design provide, according to Mr Pemberton, “little more than a variation within the art deco theme.”

Economics probably drove the design changes which reflected a modernist style. As designed it had light wells onto Stanley Street but not as constructed, more limited and reduced massing on the Flinders Street frontage and no sun control devices. The glass areas to the facades were increased, massing of the building to the Flinders Street frontage occurred and internal planning was changed to incorporate the light courts.

The facades were simplified, the external light courts to Stanley Street were repositioned to the interior and the rear elevation to Ogden Street is very basic with limited window openings.

The light courts, glass ceiling and sun control devices were all architectural failures and exacerbated the already existing tropical non-functional design features of the building. The result, in my view, is an architectural mistake, an architectural failure of no merit, importance or significance whatsoever.

It was not designed or constructed to function in its north Queensland tropical environment; the architects had little regard for the environment that the building would be operating in; it was clearly designed for more temperate climatic conditions and not for Queensland. It was a standard building design with concrete construction. Its pre-war design was dated when the building was constructed. The respondent’s attempt to cloak unsatisfactory non-workable internal and external features with architectural merit fails at the threshold.

The building displays a complete disregard for the design requirements of a functional north Queensland building; in architectural terms it is a technical failure however one dresses up the features which commended themselves to the respondent; it contributes nothing to Queensland’s architectural history other than as an old, failed, commercial building constructed of painted off-form concrete. The clock tower cannot save it; it was, to adopt Mr Pemberton’s description, an “advertising ploy”. I also agree with him that the building’s architects would most probably be amazed to hear it described by Dr Macarthur as “notionally a classical reference to the mausoleum of Halicarnassos”. Such a description of this tower takes architectural academic licence to a new level. In my view the tower is nothing more than a high extension of a less than average building. It is not a building which demonstrates the principal characteristics of mid-20th century office buildings, far from it.

The building fails as a modernist building because it was not functional and cannot be made functional. It has no enduring aesthetic significance because it doesn’t and never has worked and it has no visual merit or interest. It may have had visual merit or interest when constructed but it quickly lost such significance. Mr Pemberton said the building lacks aesthetic significance because it is non-functional and viable. Functionability is not, in my view, excluded as a factor relevant to “aesthetic significance” by the terms in which that expression is defined. On the other hand merely because a building never worked properly or failed to live up to its intended function doesn’t for that reason alone mean it cannot have cultural heritage significance, it is merely one of many factors which impact on the issues which have to be considered in the assessment process. Many old buildings of cultural heritage significance may not have worked properly according to today’s standards but that doesn’t exclude them from entry in the heritage register.

When built the art deco period was over, replaced by modern architecture (the modernist style). The MLC building at the corner of Edward and Adelaide Streets, Brisbane constructed in 1955/56 is an example of modernist architecture. In this sense Mr Pemberton is correct in saying that the building has no association with any significant architectural event or phase in Queensland’s history and presents only basic character in simple form for an average commercial and retail office building. It is not a rare or scarce example of such buildings. I agree with Mr Pemberton that the building’s architects would likely be surprised at the features which commended themselves to Mr Gunn in his recommendation to the Heritage Council. The clock tower is a T&G advertising symbol or logo identifying its original owner; it is not a useable part of the building and access to it is from the roof.

In my view the building has no enduring qualities or importance to the architectural history of Queensland, on the contrary it is testament to how buildings should not be designed and constructed in the tropics. The stripped back Flinders Street façade relied upon by Mr Gunn was a simplification of the original design and was probably cost driven. At the time it was constructed the building did not demonstrate or contribute any practical solution to technical problems or the development of technology, on the contrary the features relied upon for entry didn’t work and were a technological failure. It was an obsolete design when constructed. The light courts never worked.

I agree with Mr Pemberton that to have any chance of achieving commercial viability (which in any event it doesn’t have) any refurbishment or restoration of the building) would require the removal of the sun control devices (which have in fact been removed) and the light courts which are two of the most important aspects of the building relied upon for its entry in the register.

The light courts were ineffective, also generally non-functional for providing internal lighting and in my view, never really had the attributes relied on by Dr Macarthur.

For all of these reasons I am unable to accept Dr Macarthur’s opinions that “the building shows a high level of skill in architectural design and is of value in and of itself as a work of architectural and aesthetic significance”.

Likewise his opinion that exemplary concern was shown throughout for climatic design with techniques employed to ventilate the building and to decrease heat load while maintaining daylight (“… it demonstrates a high degree of creative and technical skill on the part of the architects” and “the building is a highly skilled application of climatic design attending to sun-shading, day lighting and ventilation”) is not supported by the other evidence which I accept. In fact I consider the design features relied on by Dr Macarthur to have been a complete failure and impractical for the tropical location of the building. The modernist changes to the original art deco design, while well meaning, display an ignorance of the requirements of practicality and, in my view, represent a low, not a high point, in architectural design and history and certainly do not, as Dr Macarthur says, represent technical achievements of architectural merit.

The “branding” of the building in the T&G design was for commercial not architectural reasons and does not in my view represent an aspect of architectural significance. To describe the building as “one of the most architecturally accomplished of the set” is just not correct and displays a fundamental lack of appreciation of the respects in which the building failed as a building. It is almost as if Dr Macarthur is describing a different building. In my view Dr Macarthur has elevated a failed design to a level unwarranted by its operating existence.

I agree that the clock tower is part of the townscape of the city but I am unable to agree that it is a “landmark” of striking imagery or that its contribution in these respects is significant or “great”. Dr Macarthur concedes that if the only landmark significance of the building was to assist in finding one’s way around the city it would not, aesthetically, have cultural heritage significance and to this extent at least, he agrees with Dr Bell. That in my view is in fact its only aesthetic significance and to further dress that up in spatial terms as helping in experiencing Townsville as a design place and contributing to the overall aesthetical appreciation of Townsville as a landscape or townscape is to attribute characteristics to the building which I am unable to agree it possesses.

To say that the building is “important in demonstrating the principal characteristics of mid-twentieth century office buildings” is to overlook the significance of “importance” in the criteria and has the potential to encompass all such buildings. In my view the building is not important in this respect rather it may be important in demonstrating how things should not be done.

In my opinion the building does not have cultural heritage significance or satisfy the criteria for entry as related to architectural and aesthetic significance and to the history of architecture.

In its letter to the appellant dated 26 September 2003 the Heritage Council advised that the Council

“…considered this matter at its meeting of 26 September 2003 and due to its concerns about the future of this building, approved (its) provisional entry in the Heritage Register.”

The Council’s “concerns” related to the proposed demolition of the building. The distinct impression I got from reading the reports of Mr Gunn and Dr Macarthur and listening to the evidence of the latter is that they approached the matter from the standpoint of “why should the building be entered in the register” rather than “should the building be entered in the register” or “is the building of cultural heritage significance and does it satisfy the criteria for entry in the register?” In this sense I had the feeling that they were supporting or justifying a decision already made, namely the provisional entry in the case of Mr Gunn and the permanent entry in the case of Dr Macarthur.

Dr Macarthur conceded that if the building failed as a building in the tropics (and he agreed in cross-examination that it had failed dramatically) that would diminish its architectural significance to some extent but it would nevertheless remain of architectural significance, because the architects “attempted this pattern of climatic control whether or not they were successful.” I am unable to agree. The climatic controls – external sun shading and the cross ventilation system – were not part of the original design. The original design “would have been substantially worse climatically.”

The attempts at climatic control failed and the building was still completely unsuitable for its tropical location and no significance whatsoever can be attributed to it either as originally designed or as modified. The glass ceiling added to the heat in the building and the suspended ceiling below that was installed to alleviate the heat but in turn adversely affected the cross ventilation system. Overall the building was poorly designed for its location. Alterations “completely stopped the building operating in the way it was intended to” but the way it was designed to operate was never adequate in the first place.

Dr Macarthur’s inexperienced opinion doubting “very much that the glass block ceiling in the T&G chamber would have contributed to the heating of the chamber” cannot, with respect, stand against the experienced opinion of Mr Pemberton or the objective facts. At its highest Dr Macarthur’s opinion was that “in principle” he could see no reason why the building wouldn’t have worked; in fact it didn’t. He conceded the light courts “might well” exacerbate problems with heavy rain.

Dr Macarthur said in his report that the removal of the exterior sun-shading system has compromised the architectural and aesthetic significance of the building and that the system should be recreated. In evidence he said the removal had severely compromised the aesthetic significance of the building and “for its cultural heritage significance to be clear (the system) would have to be recreated”. The respondent’s case based on this system is a little difficult to understand in circumstances where the louvres have been removed and the respondent cannot, as I understand the position, compel the appellant to recreate or reinstate them. A heritage agreement between the Minister and the owner of a registered place may require specified work to be carried out in the registered place but an owner cannot, as I read ss. 39 and 40 of the Act, be forced to enter into such an agreement. Dr Macarthur agreed in cross-examination that if the adapted re-use of the building involved the non-replacement of the sun shading and the loss of the T&G chamber and the three upper level light courts his argument for entry on the heritage register fails. Where this would leave the aesthetic significance of the building as a landmark Dr Macarthur was not asked and did not say. I accept Mr Pemberton’s opinion that if the building was restored, external vertical louvres would not be practical or suitable and if louvres were to be installed they should be horizontal. I also accept that for any restoration to have any prospects of being commercially viable (which I consider would not be the case) then the T&G chamber and the light courts would also have to go.

Finally, Dr Macarthur said that the building’s architects had no particular connection to Queensland and were no different from other “southern” architects occasionally doing work in Queensland.

Historical Significance of the Building

Evidence was given by two historians, Dr Peter Bell for the appellant and Mrs Helen Gregory for the respondent. Dr Bell focuses on architectural history (or the history of buildings) and has spent much of his life in North Queensland. Mrs Gregory was Adjunct Professor of History at the University of Queensland from 1998-2004 and Chair of the Queensland Heritage Council from 1992-1994. Both are well qualified but I thought Dr Bell more so particularly when it comes to buildings and this building and its historical context. Mrs Gregory tended to be more general and (apart from references to the building as a Townsville landmark and a local boutique as a tenant) presented an interesting discourse on the early development of the insurance industry in Australia, life insurance in Queensland and Queensland and Townsville in the 1930s rather than a compelling case for the entry of the building in the heritage register. I also felt she was subjectively influenced by the threat of demolition of the building to the extent that she presented a case against demolition rather than for entry of the building in the heritage register.

Like the architectural experts there was here a merging of the reasons for entry by Mrs Gregory. She considered the building to be of cultural heritage significance in a historical and social sense and the reasons for that are also relied on for concluding that it satisfies criteria a, b, g and h of s.23(1). On the other hand Dr Bell considered it difficult to distinguish between cultural heritage significance and the criteria and considered that if one or more of the criteria were satisfied the building would be of cultural heritage significance.

It is important, I think, to have a starting or reference point which can be used to confirm or verify or test the objectivity of what may initially be confused as purely subjective opinions. This is not of course to be used instead of “cultural heritage significance” or the criteria listed in s.23(1) but rather as a guide to how the assessment of those matters may be undertaken or approached.

In considering “how one should go about assessing the heritage value of a building” Dr Bell in his report, Exhibit 4, uses as a starting point the approach of Professor Graeme Davison an historian, who he says is the principal Australian author to address this issue. He also says that Davison’s analysis of “historic value has been widely accepted by Australian heritage practitioners”. The respondent did not challenge these statements and I am content to accept them. It is important though, for the reasons given by Row DCJ in the Advance Bank case [1994] QPLR 229 not to confuse “historic” and “historical”. I think that both Dr Bell and Mrs Gregory sometimes used the words interchangeably as conveying the same meaning which in fact they do not.

In “What Makes a Building Historic?” a paper published in 1986 and reproduced in A Heritage Handbook, 1991, Davison distinguished between architectural and historical values:

“The underlying assumptions of the architectural historian’s approach are similar to those of an art historian or literary critic. The individual building is placed, like a picture or a poem, within a taxonomic framework of authorship, style, period and so on, and then ranked according to its relative importance. Connoisseurs will sometimes differ in their ranking of individual buildings, but everyone accepts the assumption that such a ranking is, or ought to be, possible. But no such consensus has yet developed for the critical assessment of historic significance.

…When architects appraise buildings … they implicitly adopt the standpoint of a connoisseur, grading buildings according to a scale of relative excellence. But when historians say a building is historically important they are not giving it a rank amidst a range of other possible candidates, but making a judgement of its significance in relation to a wider context of social, political or intellectual history. The architect’s method of assessment is primarily intrinsic and comparative, relating to the specific qualities of the building or structure itself; the historian’s is primarily contextual, relating to the society of which the building is a physical relic. When architects wish to argue for the significance of a building, they are inclined to locate it in a taxonomy of styles – Georgian, Victorian, Federation, etc. When historians argue for its significance they are inclined to tell its human story or to locate it in its past social and geographical context (Davison 1991)”

Both Dr Bell and Mrs Gregory agreed with this approach.

In the Advance Bank case [1994] QPLR 229 Row DCJ said that “historical” is related to facts concerning history and events which make up history. His Honour also equated “significance” with “importance” and I think that is correct.

In my view an assessment of the historical significance of a building would normally start by referring to past facts or events in history (be they social, geographical, political, intellectual or personal) and the place of the building in those facts or events. This involves placing the building in the context of the times and society that created it or out of which it arose and then assessing its contribution or role in those times and society including whether it provides information about those times and society.

More than mere presence or existence at the relevant times is required otherwise all buildings would qualify. Any contribution, role, involvement or information must be more than existential, it must be significant in the sense of being important. A passing, passive presence would not be sufficient. Something more is required. It is in this context that a determination should be made as to the building’s significance to the past, present or future generations.

It is not sufficient that the building may contribute evidence, insight or information of a historical nature as any building can do that. The evidence, insight or information which it contributes must be of significance to past, present or future generations.

Dr Bell is, I think, correct in what he says about the criteria listed in s. 23(1). In this context he says (Exhibit 4, p 8):

“There are words in the criteria which stress that the values identified by the assessment must be strong ones: “important in demonstrating”, “important because of”, “high degree”, “strong or special association”, “special association” and “organisation of importance”. Every building probably makes a small contribution to understanding the evolution or pattern of history, but to qualify for the Register a place must make an important contribution to that understanding. … Likewise it is not sufficient for a building to have been built by or for an organisation, or to have been occupied by hat organisation. For a start, the criteria say that the organisation must have been of importance. Then there must be a special association. Any large organisation owns and occupies many properties in its lifetime, and the historically important ones are certainly no exception. They mostly had brief, incidental or routine associations with a great number of places, and very few such associations will be special.”

Mrs Gregory agreed that

“‘important’ means it is out of the ordinary, it isn’t just an ordinary phenomenon, and ‘strong’ means there is some extra quality there as well as ‘special association’”.

When she spoke of “special” she said

“There has to be something special and extra about a building, something more, something that is really particular and (which) says something significant about a community at particular times.”

To satisfy criteria a it is not sufficient that the building was part of the evolution or pattern of Queensland’s history. It must be important in demonstrating one of those things. I agree with Dr Bell that something more than a generic inclusion in historical processes is required before a building can be regarded as part of Queensland’s history otherwise most buildings would qualify.

In relation to criteria b an application to demolish a building does not make the building endangered. The building must first demonstrate aspects of Queensland’s cultural heritage which are rare, uncommon or endangered. Such a building would most probably be of cultural heritage significance.

Criteria d directs attention to the principal characteristics of not just places but of a particular class of cultural places. The Act is silent as to what a cultural place is. Dr Bell thought that the criteria

“was intended to apply to a broad sweep of places of a generally similar type, such as suburban timber Gothic churches, or corrugated iron woolsheds, which as a type are common and encountered every day. While the type or class of building may be unremarkable as a whole, the criterion enables a particular example to be singled out as an especially good representative of that class.”

Mrs Gregory’s opinion was that

“A class of cultural places to me would be places which share characteristics. They wouldn’t necessarily need to be characteristics of size. It could be characteristics in the sense that they all demonstrate health services in the instance of hospitals or in some cases the work of a particular company, Burns Philp buildings around north Queensland and the Pacific would be an example. That’s the sort of thing I understand by class of cultural places.”

What is required in either case is that the place have a cultural connection, that it demonstrates the principal characteristics of that connection and that it be important in doing so.

For criteria e I agree with Dr Bell that merely because a building may be a prominent landmark does not automatically make it aesthetically significant let alone important because of that significance.

Dr Bell says of the building

• when finished it was visibly archaic in appearance, expressing the design ethos of the Art Deco era 20 years earlier; it was an anachronism, a building constructed in the wrong era; it was designed for construction 20 years earlier; it must have looked very old-fashioned when it was completed

• the company history makes clear that the building was regarded as a pre- war project long delayed

• the T&G society occupied the building for only 24 years

• the company’s heyday was long over by the time the building was completed

• in 1983 T&G and National Mutual merged to form the National Mutual Group, the T&G name disappeared and the Townsville office was closed

• the building had been designed for retail tenancies on the entire ground floor

• the part played in Queensland’s history by the building is of no more importance than many other buildings

• the building is simply one of many commercial buildings constructed in the city centre during the 1950s post war development boom

• the building as a whole is a plain two and three storey rectangular block with a clock tower

• the visual dominance of the clock tower would have been reduced had the originally designed four storey building been constructed

• few buildings in Australia have been the subject of as many heritage assessment reports as this one.

Mrs Gregory said the building was, for historical reasons, of cultural heritage significance and satisfied criteria a, b, g & h of s. 23(1). In my view Mrs Gregory has overstated the significance of the T&G company and the Townsville T&G building in the context of s.23(1). At the time it was constructed the company was in decline and what was built was less than what was originally designed. Far from demonstrating persistence on the part of the company and recognition of Townsville’s importance as Queensland’s second largest city and most independent regional centre, the building represents, to use Dr Bell’s words “something of an afterthought happening in the last generation of the company’s life.”

In my view Dr Bell’s assessment is more in objective conformity with the requirements of s. 23(1). The part played in Queensland’s history by the T&G company was no greater than other large companies and is no more important than them, in fact it was less important than companies such as AMP and National Mutual. The building no more expresses the history of the insurance industry in North Queensland and competition between the major companies than do those of other insurance companies and is of no particular importance or significance in these respects.

As Dr Bell says “it was only one of many insurance companies active in the industry”. The fact that it took a long time to build may demonstrate persistence to some extent but does not exhibit any strong or special association with Townsville. Dr Bell, like Dr Macarthur agrees that Hendersons, the architects were of no particular importance in Queensland’s history and to the extent that Mr Gunn and Mrs Gregory say the contrary I cannot accept their views. The building does not demonstrate the development of Townsville in the 1950s any more strongly than any other building built in Townsville in the 1950s. Even if the building was, as Mr Gunn reports, “the only substantial CBD building erected in the post-war period apart from the city power station in 1953 and the General Hospital in 1949” that is not, in this case, a sufficient reason to conclude that the requirements of s.23(1) have been satisfied. Likewise I am not satisfied that any relationship between the building and Queensland’s history was a special one. It did not, in my view, go beyond a commercial involvement in an historical setting. To adopt the language of Professor Haskell in the Advance Bank case [1994] QPLR 229 at 235 “…it was merely part of the continuum of historical events”.

Much is made by the proponents of entry of the building in the heritage register of the clock tower and its supposedly landmark quality. In addition to what I have already said about the tower I agree with Dr Bell that there is nothing special, important or significant aesthetically or otherwise in the tower. Its design is extremely simple, its form is not articulated in any classical sense, is consists of a series of diminishing steps like a stack of boxes. Dr Bell says its “design is unsophisticated and unremarkable” and I agree. I also agree, for reasons I have already stated, that there is nothing radical about the building’s design. Dr Bell correctly describes it as demonstrating “a low degree of creative and technical achievement for its period.” It is I find no more than an old building with a crumbling clock tower.

The building has received mixed treatment by the local community none of it amounting to a strong or special association. To attribute such a status to it because of the attachment of customers to the boutique which used to be a tenant is to devalue the assessment process and the relevant criteria. The 1989 edition of the Townsville Tourist Trails leaflet did not mention the building. The 1996 edition described it as a “striking example of 1950s architecture” which it clearly isn’t. Heritage Trails of Townsville: Trail 1 Civic Pride (Townsville City Council, 2003) describes it as “important in demonstrating the development of Townsville in the 1950s with the consolidation and expansion of insurance services in North Queensland” (a quote from the 1999 Blake report) which it isn’t. The building is also shown in the 1964-1969 publications attached to Mr Gunn’s report at pp 498, 502, 503 (a T&G advertisement), 504 (a Pat Washington advertisement) and 508 and the 1993 Townsville City Council City Centre Streetscape Strategy at pp 515 and 516 of ex 12. These show variously a new, novel and visually prominent building but no more than that. In the February 2004 Townsville City Council CBD Revitalisation booklet, ex 4A, the building site is listed as a ‘Planned and Future Development’ with a mix of residential and retail/commercial development with construction scheduled to commence in early 2004. The application to demolish the building was not opposed, conceding though that it was code assessable and didn’t have to be publicly notified. I agree with Dr Bell that “the overwhelming majority of the Townsville population had no adverse reaction to the demolition and redevelopment of the land.”

The inclusion of the building in the draft Townsville City Plan 2004 as a place having cultural heritage significance is not explained and is probably because of the present decision of the respondent. It adds nothing to the respondent’s case.

I agree with Dr Bell that no particular section of the community in terms of s. 23(1)(g) has been identified by the respondent nor has the degree of any community attachment been measured.

Motherhood statements and fairly weak generalities permeate the respondent’s case. In my view the process of critical assessment here became clouded by the threat of demolition of the building and that had a bearing on the objectivity of the various assessments supporting entry in the heritage register. I am not satisfied that any of the respondent’s witnesses were afflicted by heritage assessment syndrome rather that they have exhibited subjective sympathy for a building under threat of demolition.

After referring to the previous assessments of the building already referred to Dr Bell expressed his conclusions in the following terms with which I agree

“One must conclude that either this building is growing in significance very rapidly, or the methodology of assessment is changing over time. There is a conspicuous pattern in these reports. From 1977 to August 2003, repeated assessments of the building came to essentially similar conclusions: either (a) the building did not meet any of the criteria for entry in state or national heritage registers, or (b) it met only one, and that was because it was visually conspicuous.

All the reports which have attributed cultural heritage significance to the building have either been prepared by - or commissioned by - the Queensland Cultural Heritage Branch, and all have been written within the past twelve months, in the belief that the building is under threat of demolition. A building which did not meet any heritage criteria when it was not under threat has abruptly risen in significance to meet no fewer than seven of the criteria.

It is difficult to understand how objective processes of assessment could yield such dramatically different results, and form such a clear cut pattern.

…

I am not satisfied that the former T&G Building meets any of the criteria for entry in the Queensland Heritage Register. I have read the arguments which claim that it meets almost all of the criteria, but I am not convinced by any of them. The heritage values which these arguments attribute to the building are weak and generic ones. Similar claims could be made for a large number of buildings, both in Townsville and elsewhere.”

Dr Bell’s evidence at pp 47-52 was to the same effect. Any additional material considered by Mr Gunn was “more detail rather than new information and was insufficient to really make all that difference.” I agree with Dr Bell that the Heritage Council has “mistaken detail for significance.” In real terms the evidence before the Heritage Council in 2003-2004 was no different from that in 2001. It may have been more detailed but in substance it was the same. Mrs Gregory was somewhat disingenuous when she described it as “better research, better analysis of the research and better appreciation of what the detail means”. The historical setting did not change and the architectural plans located in Melbourne if anything merely confirmed the architectural insignificance of the building. I therefore cannot agree with Mr Hinson’s submission that since 2001 much more additional information has come to light. A different spin was put on the evidence probably influenced by the threat of demolition.

I also thought that Mrs Gregory’s opinion of the significance of the building in a historical context was perhaps unduly influenced by what she understood was its architectural significance. She described the building in her evidence as “… a quality building with innovation in the sense of time; a quality building consonant with its time and looking ahead” and for reasons which I have already expressed, I cannot agree with that description. If anything the building was looking backwards. Mrs Gregory considered that the choice of Townsville for this building in the 1930s is important. I am unable to attribute that status to the decision either in the 1930s or in the 1950s when the decision was made to proceed with construction of a much reduced building to that originally intended.

Conclusion

The appellant has established that the building is not of cultural heritage significance and that it does not satisfy one or more of the criteria in s. 23(1). In these circumstances the appeal will be allowed and the decision of the respondent to enter it in the heritage register will be reversed.

Orders

The appeal is allowed.

The decision of the respondent of 27 February 2004 to enter the T&G Building, 420 Flinders Street, Townsville permanently in the Heritage Register is reversed.

The entry of the T&G Building, 420 Flinders Street, Townsville in the Heritage Register is to be removed forthwith.

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Citations

Reelaw v Queensland Heritage Council [2004] QPEC 79

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Gladstone Ports Corporation Ltd v Queensland Heritage Council [2012] QPEC 9

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CITATION:	Reelaw v Queensland Heritage Council [2004] QPEC 079
PARTIES:	REELAW PTY LTD. (ACN 080 614 428) (Appellant) v QUEENSLAND HERITAGE COUNCIL (Respondent)
FILE NO:	126 of 2004
PROCEEDING:	Appeal
DELIVERED ON:	29 November, 2004
DELIVERED AT:	Townsville
HEARING DATES:	11, 12, 13, 14 & 15 October, 2004
JUDGE:	C.F. Wall Q.C.
ORDER:	1. The appeal is allowed. 2. The decision of the Respondent of 27 February 2004 to enter the T&G Building, 420 Flinders Street, Townsville permanently in the Heritage Register is reversed. 3. The entry of the T&G Building, 420 Flinders Street, Townsville in the Heritage Register is to be removed forthwith.
CATCHWORDS:	ENVIRONMENT PROTECTION - heritage conservation - entry of commercial building in heritage register - wh. building of cultural heritage significance - wh. relevant criteria for entry satisfied - architectural, aesthetic & historical significance of the building - wh. any prospect of the cultural heritage significance of the building being conserved. Legislation referred to: Queensland Heritage Act 1992, ss 3, 23(1) & (3), 26(3), 30(1), (2), (5) & (6), 33, 39, 40 Cases referred to: Advance Bank Ltd v Queensland Heritage Council [1994] QPLR 110 and 229 (CON)
COUNSEL:	C. Hughes SC & E. Morzone - Appellant M. Hinson SC & R. Jones - Respondent
SOLICITORS:	Suthers Taylor - Appellant Crown Law - Respondent