Taglietti and Ors & Act Heritage Council (Administrative Review)
[2011] ACAT 14
•18 February 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
TAGLIETTI AND ORS & ACT HERITAGE COUNCIL (Administrative Review) [2011] ACAT 14
AT 63 of 2010
Catchwords: heritage significance criteria – outstanding design or aesthetic qualities – valued – highly valued – the community – a cultural group – strong or special – educational association – social association – development or cultural phase – local or national history – satisfied – reasonable grounds – may provisionally register – may have heritage significance – Burra Charter – corporate veil – interested person
Legislation:ACTCivil and Administrative Tribunal Act 2008, ss 22Q and 29
Heritage Act 2004, ss 3, 8, 10, 11, 13, 20,32,112 and 114
Human Rights Act 2004, s 6
List of Regulation: Heritage (Decision about Registration of Flynn Primary School, Pre-school, Health Centre and relevant parts of George Simpson Park) Notice 2010 (No 1) (Notifiable Instrument NI2010–330)
List of cases: Advance Bank of Australia v The Queensland Heritage Council (1994) QPLR 229
Re Truswell and Minister for Communications and the Arts (1996) 42 ALD 275
Cairns and ACT Heritage Council (2010) ACAT 48
Pettersson and ACT Heritage Council & Anor (2010) ACAT 28
Cummings v Lewis & Ors (1993) ATPR (Digest) 46-103
Tribunal: Mr A. O’Neil, Senior Member
Mr J. Ashe, Senior Member
Date of Order: 18 February 2011
Date of Reasons for Decision: 18 February 2011
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 63 of 2010
BETWEEN:
ENRICO TAGLIETTI
1st Applicant
JOHN FLYNN COMMUNITY GROUP INC.
2nd Applicant
AND:
ACT HERITAGE COUNCIL
Respondent
TRIBUNAL: Mr A O’Neil, Senior Member
Mr J Ashe, Senior Member
DATE: 18 February 2011
ORDER
- The Tribunal orders that the Flynn Primary School Parents and Citizens Association Inc. be removed as an Applicant in this matter.
- The Tribunal orders that the decision of the ACT Heritage Council be affirmed.
………………………………..
Mr A. O’Neil
Senior Member
REASONS FOR DECISION
Decision under review
This is an application to review a decision of the ACT Heritage Council (‘the Council’) on 24 June 2010, under section 32 of the Heritage Act 2004 (‘the Act’), not to provisionally register in the ACT Heritage Register the Flynn Primary School, Pre-School, Health Centre (together called ‘the school’) and relevant parts of George Simpson Park (together called ‘the place’). The place occupies Blocks 6 and 7 of Section 18 in the suburb of Flynn.
The nomination (T188) refers to ‘relevant parts of George Simpson Park’. Other papers also use this expression without defining it, but nothing turns on this lack of clarity.
The Applicants seeking review under the Act of the Council’s decision are
Mr Enrico Taglietti, the John Flynn Community Group Incorporated (‘the Community Group’) and the Flynn Primary School Parents and Citizens Association Incorporated (‘the P&C’).
Background
Mr Enrico Taglietti designed the school in accordance with a brief prepared by the National Capital Development Commission (‘NCDC’) so as to facilitate, in a transitional form, the adoption of the open-plan learning philosophy of education, which was then being introduced into ACT schools. The school was built in two stages.
The pre-school, which is a stand-alone building, and the first stage of the primary school, incorporating a health centre, were opened at the beginning of 1974. The second stage was added in 1976. A fire destroyed one of the pavilions in 1994, which was rebuilt as a resource centre during 1995. The P&C contributed funds to the rebuilding project, principally it appears for the purchase of computers. A community artist, students and parents have created a number of murals, mosaics and artworks throughout the school.
At the initiative of the Flynn school, a national memorial to the Very Reverend John Flynn OBE, DD (1880–1951) (‘John Flynn’), designed by Mr Taglietti, was installed in front of the school and unveiled at a ceremony on the centenary of Flynn’s birth on 22 November 1980.
In November 1991 the Minister for the Capital Territory announced that the oval and adventure playground adjacent to the school would be named the George Simpson Park because of the very long association between John Flynn and Dr George Simpson OBE. A memorial plaque was installed at the adventure playground.
In 2006 the ACT Government announced the closure of the Flynn Primary School as part of the Government’s Schools Revitalisation Policy set out in the document, Towards 2020: Renewing Our Schools. Despite strong resistance from the Flynn community to the closure, the primary school closed at the end of 2006. The pre-school has continued to operate. It appears that the health centre within the school ceased to operate at some time in the late 1990s.
Following the closure of the school, the Government initiated studies and a community consultation process relating to the future use of the closed schools. The P&C took part in this process. In 2009 the P&C and the Community Group did a joint submission on the future of the school.
In June 2010 the ACT Chief Minister announced that a new Flynn Child Care Centre would be developed on the site of the former primary school. The proposal involves the merger of two existing child care centres currently located in Charnwood and Evatt and their relocation to the Flynn school site. An amount of $4 million dollars has been included in the 2010–2011 Budget for creation of the new, refurbished facility. The Chief Minister’s press release said that the Government would continue to work with the community to further develop the Flynn site with a view to turning it into a community precinct offering a range of services.
The Functional Design Brief for the child care centre, dated 10 August 2010, states that the child care centre will occupy only part of the former school buildings, with the remainder to be refurbished at a later date. The brief requires that the adaptive re-use of the former school into a child care centre retain or complement the more significant features of the original design. This design requirement, the brief says, recognises that the former school buildings and surroundings are of some community and architectural value, even though they have been determined not to meet the threshold for listing on the ACT Heritage Register. The brief notes that the Heritage Council decision is under review in this Tribunal, and states that the brief may need to be amended depending upon the outcome of the review.
Heritage nomination process
The Community Group nominated the place to the ACT Heritage Register by nomination form and a covering letter dated 20 December 2007. The nomination included a request for an urgent decision on the grounds that the significance and future use of the place were under imminent threat from the process then in train to determine the future use of school sites. The covering letter claimed that only one of the two short-listed options for the site put forward to the ACT Government by the planning consultants retains the integrity of significant buildings and grounds. The letter added that public consultation processes confirmed the strong ongoing community support for the buildings and grounds to be retained in their entirety for heritage value and for future community use.
The nomination states that the place meets five of the heritage significance criteria in section 10 of the Act to a high degree and meets three other criteria. The nomination includes a statement of heritage significance and a substantial body of supporting documentation.
Among the supporting documents attached to the nomination was a letter dated 17 December 2007 from the ACT Chapter of the Royal Australian Institute of Architects (RAIA), now the Australian Institute of Architects, to the Chair of the Heritage Council asking that a citation be prepared by the Heritage Council to assess the cultural significance of the school. The letter said that the RAIA believed that the school is of local heritage significance and has cultural significance in the ACT. The RAIA offered support for interim listing once the cultural significance was confirmed by the Council. An attachment to the RAIA’s letter provided an assessment of the school against some of the heritage significance criteria, which are similar to but not identical with those in
section 10 of the Act.
At its meeting on 20 February 2008 the Register Taskforce––a subcommittee of the Heritage Council––agreed to accept the nomination. It discussed the need for a comparative assessment of other schools designed by Mr Taglietti; the history of the educational philosophy at the time and how this was realised in the architect’s design; and the threshold for ‘formative works’. It noted that the assessment could occur concurrently with that for the Giralang Primary school, also designed by Mr Taglietti.
On 6 March 2008 the Council confirmed the decision of the Taskforce that the nomination be accepted. In his letter of 3 April 2008 the Council Secretary informed the Community Group that the Council intended to consider the nomination in the context of its existing work in relation to the Giralang School.
In September 2008 the Heritage Unit and the RAIA signed a Deed of Grant under the ACT Heritage Grants Program to provide funds for a comparative assessment of the architectural work of Enrico Taglietti. The conditions attached to the deed required the assessment to:
·consider as a priority school buildings in the ACT designed by Enrico
Taglietti (including Flynn and Giralang primary schools)
·undertake two comparative assessments:
o one that deals specifically with Taglietti’s schools in the ACT
o the other to cover Taglietti’s domestic body of work in the ACT
· provide an indicative ranking of the places within the body of the architect’s work; and places of exceptional or high indicative value to be considered against the heritage significance criteria
· undertake an assessment of the heritage significance for each place against the criteria at section 10 of the Heritage Act
· for each place found after assessment to have sufficient values against the heritage criteria, prepare a draft Provisional Heritage Register entry
· for a place found not to meet the criteria, to prepare a statement of reasons.
The RAIA engaged Mr Ken Charlton to undertake the comparative assessment. On 30 July 2009 the RAIA sent Mr Charlton’s draft assessment to the Heritage Unit. The draft assessment found that the school had high heritage value and met three of the criteria for heritage listing [(b), (c) and (h)]. It also found that the Giralang school had the highest heritage value of the four schools in the ACT designed by Mr Taglietti.
The nominations for the school and for the Giralang school were considered by the Council at its meeting on 10 December 2009. The agenda papers indicate that the members of the Register Taskforce were all agreed that both the school and the Giralang school were over the threshold for listing. The Council decided, however, that the Taskforce should make a site visit to the school and make a recommendation to Council for its meeting in March 2010.
The members of the Taskforce visited both the school and the Giralang school on the morning of 18 February 2010, prior to a formal meeting of the Taskforce later that day. The minutes record discussion at the meeting in relation to school as follows:
·A tentative beginning for an architectural approach to an education
philosophy
·Giralang is a better expression of educational philosophy
·Seek further clarification of educational philosophy; is there a great difference between Flynn and Giralang (as expressed in the building layout and classrooms
·Arrange meeting with Alan Foskett to discuss.
The members of the Taskforce met with Alan Foskett on 20 May 2010. The purpose of the meeting was to discuss his recollections of the educational philosophies and policies in place, particularly as they related to the school and the Giralang school. The notes of the meeting record the following recollections:
·Mr Foskett had been involved at a senior level with the ACT education system from 1967 to 1979.
·Up until 1971 the NSW Department of Education was responsible for the curriculum and teaching, with the Commonwealth providing funding and the buildings.
·Planning and building were tied to NSW concepts and curriculum.
·Responsibility for ACT primary and secondary education became the responsibility of the interim ACT Schools Authority in 1973.
·Mr Foskett prepared a new educational brief for ACT schools in late 1973 following his trip to the UK to consider schooling approaches. This brief proposed the adoption of the UK approach to open-plan learning.
·There was a shift after 1973 from open-plan learning based on the US model, with large open spaces and 2–3 teachers using team teaching, to the UK model, using small spaces around a central resource area.
·In the early part of the 1970s a number of schools (Campbell high school, and Duffy and Weetangera primary schools) were making use of open-plan learning and school design based on the US model as adopted by the NSW education system.
·The new primary schools built from 1975 onwards reflected the adoption of the UK approach. Hawker was the first, and Giralang was considered to be the model school under the new system.
·Mr Foskett had no clear recollection of the Flynn school, although he noted that it was constructed under the NSW system using the US open-plan model.
At its meeting on 3 June 2010 the Taskforce decided that it would recommend to the Council that the Giralang school be provisionally registered and the school not be provisionally registered. On 24 June 2010 the Council accepted the recommendations of the Register Taskforce. Its decision in relation to Flynn school was formally notified in Heritage (Decision about Registration of Flynn Primary School, Pre-school, Health Centre and relevant parts of George Simpson Park) Notice 2010 (No 1) (Notifiable Instrument NI2010–330).
The applicable legislation
The Heritage Act includes the following provisions:
Section 3Objects of Act
(1)The main objects of this Act are as follows:
(a)to establish a system for the recognition, registration and conservation of natural and cultural heritage places and objects, including Aboriginal places and objects;
…
(2)A function under this Act must be exercised—
(a)to preserve the heritage significance of places and objects; and
(b)to achieve the greatest sustainable benefit to the community from places and objects consistent with the conservation of their heritage significance.
…
Section 8Place and object
(1)In this Act:
place includes the following:
(a)a site, precinct or parcel of land;
(b)an item at the place;
(c)a building or structure, or part of a building or structure, at the place;
(d)an object at the place that could be registered separately;
(e)an item historically or physically associated with the place, if the primary importance of the item derives, completely or partly, from that association;
(f)equipment, furniture, fittings and articles at, or historically or physically associated with, the place.
Section 10 Heritage significance
A place or object has heritage significance if it satisfies 1 or more of the following criteria (the heritage significance criteria):
(a)it demonstrates a high degree of technical or creative achievement (or both), by showing qualities of innovation, discovery, invention or an exceptionally fine level of application of existing techniques or approaches;
(b)it exhibits outstanding design or aesthetic qualities valued by the community or a cultural group;
(c)it is important as evidence of a distinctive way of life, taste, tradition, religion, land use, custom, process, design or function that is no longer practised, is in danger of being lost or is of exceptional interest;
(d)it is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations;
…
(f)it is a rare or unique example of its kind, or is rare or unique in its comparative intactness;
(g)it is a notable example of a kind of place or object and demonstrates the main characteristics of that kind;
(h)it has strong or special associations with a person, group, event, development or cultural phase in local or national history;
…
Section 11 Registered
A place or object is registered if it is—
(a)provisionally registered under division 6.1; or
(b)registered under division 6.2.
Section 20Establishment of heritage register
(1)The council must keep a register of heritage places and heritage objects (the heritage register).
(2)The heritage register must include the registration details for each registered place or object.
Section 32Decision about provisional registration
(1)The council must decide whether to provisionally register each place or object nominated for provisional registration.
(2)The council also may decide to provisionally register a place or object that has not been nominated for provisional registration.
(3)The council may provisionally register a place or object only if satisfied, on reasonable grounds, that the place or object may have heritage significance.
Standing of the P&C
The question whether the P&C may properly be an Applicant in the matter was raised by the Respondent. Relevant arguments were set out in the submissions by the Respondent and the Applicants although the matter was not canvassed in the closing submissions.
The question is whether the P&C is ’an occupier’ within the meaning of
section 13(1)(d)(ii) of the Act and is thus an ‘interested person’ within the meaning of section 114 of the Act. If the P&C is not an ‘interested person’ then it cannot be an Applicant for review of the decision before the Tribunal. Flynn Primary School closed in 2006 and ceased to exist so the P&C is not a current occupier of the nominated place.
The Applicants argued that ‘occupier’ includes all former occupiers. In the Macquarie Dictionary (4th Ed.) occupier means ‘a person having legal right to reside or a person who is residing’. This suggests that ‘occupier’ does not include former occupiers. The definition of ‘occupier’ in the Act is limited to section 77 which deals with enforcement and is not relevant to section 13.
Further support for the view that ‘occupier’ refers only to the current occupant is given by the introductory words to section 13(1) which are ‘Each of the following is an interested person’ (emphasis added). The use of the present tense of the verb ‘to be’ shows that the intent of the subsection is to focus on the present occupier rather than former or previous occupiers.
The Applicants also argued that former occupiers should have access to the Act because of past relationships, practices, processes, associations and the like as set out in sections 10(c) and 10(h). But the Act does permit such access. Indeed section 28(1) places no restrictions or qualifications on those who may seek provisional registration of a place or object.
The Human Rights Act 2004 does not apply to the P&C because it is an artificial entity. The Applicants nevertheless sought to invoke it by reference to the human rights of its individual members. The Tribunal is not prepared to interpret the Human Rights Act in such a way so as to lift the corporate veil to grant standing to an artificial entity. There is no evidence before the Tribunal of which members of the P&C may have had their human rights affected.
If the Applicants’ argument were to be accepted then it could also apply to all previous owners, lessees and sub-lessees. If the P&C is an occupier by virtue of its use of premises within the former Flynn Primary School, this may mean that all former students, teachers and other staff are similarly occupiers. The Tribunal does not accept that it was the intention of the Act to allow former occupiers to apply for review of the decision of the Respondent. The intention of section 13 of the Act is to specify and limit rather that expand the class of persons who may seek review.
Section 29(6) of the ACT Civil and Administrative Act 2008 forbids the Tribunal from joining a person as a new applicant if the person is not entitled to apply under the authorising law, which in this matter is the Act. The Tribunal finds that the P&C is not entitled to seek review of a decision under section 114 of the Act. The P&C is thus not entitled to be joined as an applicant.
The Tribunal has examined the Principles, Functions and Objectives set out in Part B of the constitution of the P&C. There is nothing in Part B to suggest an intention that the P&C could extend its activities to heritage listing under the Act. The focus is quite properly the well-being of the school community and the support of public education in the ACT. The Tribunal finds that the P&C is not a person whose interests are affected as contemplated in section 22 Q(2) of the ACAT Act.
The Tribunal finds that the P&C is not an interested person within the meaning of section 13(1)(d)(ii) of the Act and is not entitled to be an applicant for review in this matter.
As a comment only, the Tribunal notes that the constitution of the P&C seems to be predicated on the continued existence of the Flynn Primary School in that the membership consists of ‘all parents of students at the school’ together with ‘other citizens who elect to be members’ of the P&C. The effect of the closure of the Flynn Primary School on the then membership of the P&C is unclear. It may be that there are now no ‘parents of students at the school’ and hence no members who qualify under section D1(1)(a) of the constitution. Membership does not contemplate the position of parents of former students. No evidence was given as to whether there were any citizen members under
section D.1(10(b) of its constitution. The quorum for all general meetings is twelve members and this may present difficulties in the election of office bearers and the conducting of the business of the P&C. The questions raised in this paragraph were not argued before the Tribunal and the Tribunal, while noting them, does not believe it can make any findings about them.
The hearing
The Tribunal heard this matter on the 4th and 5th November and the 15th and 16th December 2010. Mr Robert Clynes appeared for the three Applicants and
Mr Geoff McCarthy appeared for the Respondent. Mr Enrico Taglietti, Mr Peter Freeman, Mr Roger Nicoll, Ms Jan Berryman, Ms Rhonda Foley and Ms Cathy Nicoll gave evidence for the Applicants, and Dr Michael Pearson gave evidence for the Respondent.
The following evidence of the witnesses has been recited at length to reflect what was said. No attempt has been made to exclude those parts of the evidence that may be irrelevant, speculative or outside of the direct knowledge of the witness. In evaluating the evidence the Tribunal will only accept that which is of probative value. The expert witnesses at times expressed a view as to how the Act should be interpreted in the light of their experience. That is, of course, the role of the Tribunal.
The Applicants’ evidence
Enrico Taglietti’s evidence
Mr Taglietti has been a practising architect since 1953, initially in Italy and since 1955 in Canberra. His work includes a wide range of domestic, commercial and public buildings, including four Government primary schools in Latham, Flynn, Giralang and Gowrie. Mr Taglietti has received a large number of awards and other forms of recognition for his architectural achievements, including the RAIA Gold Medal in 2007.
The school was the only public building in the suburb of Flynn, Mr Taglietti said, and was designed to function as a ’village’ as well as a school by meeting other community needs, including the provision of medical, dental and mothercraft services to the whole community. There was no shopping centre in the suburb, which until then had been the normal NCDC practice. The design of the school included a communal room and associated facilities intended for use by the community as well as the school. Mr Taglietti thought that the school was the most important building he had designed ‘to that point’ and he regards it as ‘one of his best works’.
Mr Taglietti agreed that open-plan learning was an educational philosophy that developed in different ways during the early 1970s, including the US model and the UK model that were adopted in the ACT education system at different times, and in different ways in different schools. He did not lead the educational philosophy; he followed it, and designed the Flynn school to respond to the brief.
Mr Taglietti was reluctant to accept the description by Mr Charlton and others that Flynn was a semi open-plan school. He also disagreed with the description by the RAIA (T205) of Flynn as a school with semi-open-plan classrooms. A further area of disagreement was with the description of the school as being in the ‘Organic style’.
Mr Taglietti had a continuing connection with the school up until its closure in 2006, including discussions with the students about architecture. He was ‘totally taken’ by the positive reaction of the inhabitants of the school–– students and teachers–– and from the parents. An example of the enthusiasm of the students was their belief that the school was like an aeroplane. Mr Taglietti said that he did not design the building to have the shape of an aeroplane, but saw no problems if the students imagined that to be the case because of the connection with John Flynn.
Peter Freeman’s evidence
Mr Freeman is a conservation architect and planner with a degree in Architecture and a Diploma in Town and Regional Planning. He was a Member of the ACT Heritage Council in 2002–2005, including over three years as Chair of the Council. Mr Freeman is a Fellow of the RAIA, has held office in the ACT Chapter of the RAIA and is a member of other relevant professional organisations. He was an Adjunct Professor at the University of Canberra in 2002–2006. Mr Freeman provided evidence in relation to criteria 10(b), 10(d) and 10(h).
Criterion 10(b)
Mr Freeman agreed with the assessment by Mr Charlton that:
‘…the aesthetic quality of the exteriors of the Flynn Primary School and Pre-School Complex is considerable’. These buildings constitute an important example of the Late Twentieth Century Organic Style of architecture, which is rare in the ACT and exhibits the design principles of that style. The more dramatic and spectacular aspects of organic architecture are seen here to good effect, with the exterior being the result of free massing expressing functions naturally … The place meets the threshold for heritage listing in relation to this criterion.’
He added that ‘this iconic work of the RAIA Gold medallist Dr Enrico Taglietti, is highly valued by the architectural community not only within the ACT but nationally and internationally.’ Mr Freeman noted that the citation for the RAIA Gold Medal that Mr Taglietti received in 2007 referred to the significance of the body of work completed by Taglietti and his reputation nationally and internationally. Mr Freeman agreed that a building would need to have special qualities to warrant registration in addition to the fact that its creator was an eminent, awarded architect.
Mr Freeman’s view was that the Flynn site is relatively complex in terms of its levels, because there are two types of level change—down the site and across the site. Mr Taglietti, he said, had produced a building that marries a number of very different functions, typically small functional areas within a school like service areas and offices etc, with the large open-plan spaces that are the hallmark of this school. This was a very intelligent way of dealing with a complex site and a complex brief, involving the creation of a series of pavilions with different floating roofs that create volumetric spaces suitable for those functions. The school, he said, comes within his definition of exhibiting outstanding design and/or aesthetic qualities.
Mr Freeman considered that the Heritage Council had made a fundamental error by ‘picking and choosing’ from Mr Taglietti’s body of work and deciding that ‘this one is better than that’. He thought the notion of picking and choosing between individual places in order to determine which one will meet the threshold for registration to be a very strange way of interpreting the Act. His view was that under the Act the Council is not asked to judge whether this one is better than that one; each place is to be assessed in its own right.
Mr Freeman was unwilling to accept that the absence of the school from the RAIA lists of significant architecture was evidence the RAIA did not regard the school as significant. He agreed that the RAIA had not nominated Flynn of its own volition, but thought that the Institute’s letter of 17 December 2007 represented an up-to-date view by the RAIA and support for listing.
Criterion 10(d)
Mr Freeman said that In terms of cultural, educational or social associations and significance the place is clearly valued by the Flynn (and wider) community. He thought that the reasons for this community identification with the school and its grounds, and for the important place the school occupies in the cultural and social fabric of Flynn, may be due, in large part, to the fact that there was no other ‘public’ cultural or social ‘meeting place’ for the Flynn community (i.e. no neighbourhood shopping centre etc).
Mr Freeman said that there are many in the Flynn community who hold the school in deep affection despite the fact that the school is closed. The strong cultural and social linkages to the place could be seen in the desire to have the heritage of the school formally recognised. He took exception to the comments in Dr Pearson’s witness statement indicating that the Heritage Council did not accept that the Community Group and the P&C do not represent the Flynn community.
Mr Freeman found curious the statement in the Heritage Council statement of reasons for not registering the school that all communities feel attachment to their local community facilities; the attachment that the Flynn community has to the school is for the amenity offered by the school; and that the strong community attachment claimed is not unique and could be demonstrated at any local primary school.
Criterion 10(h)
Mr Freeman agreed with the assessment by Mr Charlton that the school is important for its special association with the move towards open-plan education and for its strong associations with Enrico Taglietti. He thought it not relevant that the school is not the primary example of either Taglietti’s Canberra school designs or of an open-plan approach to school design. He contended that ‘the relative order of Taglietti’s architectural works or relative success or otherwise of that work is of little consequence in heritage and significance terms'. What is important, he said, is that the educational work that Taglietti created, in conjunction with the NCDC, in the mid to late 20th century ‘is now part of an oeuvre which has been nationally and internationally recognised. The school thus has strong and special associations with a person [important] in local or national history’.
Roger Nicoll’s evidence
Mr Nicholl’s evidence was as follows. Mr Nicoll has been a resident of Flynn since 1991 and lives there with his wife and children. He has been an active member of the local community and is currently Coordinator of Flynn Neighbourhood Watch, President of the P&C and Vice-president of the Community Group. There is overlapping membership between the P&C, the Community Group and Neighbourhood Watch. Both the P&C and the Community Group have regular contact with the Flynn community and the two organisations have a joint website.
In 2007 the P&C launched a case in the Supreme Court against the closure of the school. The P&C raised $50, 000 as surety plus additional funds to cover legal costs. The P&C also took part in the ‘Purdon’ process in 2007 concerning future use of school sites.
Mr Nicoll greatly values the legacy of John Flynn that is embodied in the buildings, national memorial, the naming of the suburb and schools at Flynn, and the shape of the building. This he said, is ‘something that we deeply appreciate and don’t take for granted. That value is physical, spiritual, cultural and emotional’. Historical P&C records show the value the community places on the Flynn school, including as a community hub. From the school’s establishment in 1974 the school community had encouraged its students to learn about John Flynn and the RFDS. He believes that events and activities during the first 20 years of the school demonstrated the unique heritage value and the extent the community values the nominated places.
The national memorial to John Flynn at the school is of special significance to the community which worked hard for two years to establish it and later to restore it after it had been removed.
The pioneering role of the school in open-plan design for ACT schools is something the community is proud and appreciative of. The school was showcased by the NCDC and studied by University of Canberra architecture students. The open-plan spaces and innovative internal and external architecture are something that Mr Nicoll and the community, students, teachers and children have always valued for their functionality, creativity, flexibility and aesthetics. Mr Nicoll and others in the Flynn community appreciate the innovative and revolutionary architecture across the site by the acclaimed architect, Enrico Taglietti.
After one wing of the school was damaged by fire in 1995 the Flynn community contributed financially to the rebuilding of the community resource centre and insisted that Enrico Taglietti oversaw the design.
As Flynn’s only community facility activities the school was the focal point of family and neighbourhood activity and is the ‘glue’ of the Flynn community. The activities included Family Day Carers groups, playgroups, music and dance tutoring (to children from outside Flynn as well as Flynn children), aerobics, church services, Girls Guides, Men ‘n’ Kids programs, Neighbourhood Watch meetings and community arts projects. Each week the facilities were used by several hundred people.
Confirmation of the extent of community appreciation of the school buildings and heritage was found in the response to a suburb-wide door knock in September and October 2010 when 96–97 per cent of people approached across the suburb (33 per cent of households) supported its heritage listing and signed a petition.
Mr Nicoll did not agree that the future of the school is secure despite the Government’s plans to redevelop part of the school as a child care centre. He did not agree that the heritage value would be protected under the proposed redevelopment because the design brief contemplates the destruction of some parts of the current building. He acknowledged that heritage listing could constrain the future use of the building.
The Community Group opposes the use of the school exclusively as a child care centre but supports a child care centre as part of a cohesive proposal that meets the needs of all generations. Mr Nicoll argued that the Government’s child care proposal is not a good use of the school for the Flynn community because most people who will use it will not be from Flynn. Mr Nicholl wants the Government to redevelop the school as a multi-use, multi-generational centre, with a child care centre smaller than the current Government proposal, but he agreed that re-use of the building is better than no use.
Mr Nicoll thought the percentage of Flynn children attending Government schools who attended the school before its closure compared favourably with other suburbs. He claimed that even people whose children did not attend the school made use of it as a community facility and are passionate about it.
Jan Berryman’s evidence
Mrs Berryman’s evidence was as follows. She is a long-term member of the Flynn community, and her children attended the school in 1974–82. Mrs Berryman was also associated with the school through various community groups, including the Catholic Church, the Girl Guides and Neighbourhood Watch, She gave evidence illustrating the ways in which these organisations made use of the school.
Mrs Berryman said ‘the design of the school is something we all valued’. The open-plan design meant that it was easy to navigate within the school because there weren’t confusing corridors everywhere. The design also helped to build the community because parents met there informally as well as for formal meetings.
Flynn was a very close-knit community, she said. For fundraising they used to run dinners, Melbourne Cup luncheons and dances that were open to the whole community. These functions were well attended and people came from everywhere.
The community valued and still values the connection with John Flynn and the RFDS, Mrs Berryman said. Her children learnt about John Flynn and the Flying Doctors at school and were there when the memorial to John Flynn was installed. Many of the activities by the Girl Guides involved the Flying Doctor theme. A community artist painted a ‘very striking’ picture of a Flying Doctor aeroplane in a bus shelter adjacent to the school.
Mrs Berryman is aware of the Government’s decision to establish a child care centre at the school. She agreed that this is a good thing, but was concerned that the child care proposals will not leave any capacity for general community use after the child care centre is built. Mrs Berryman thought that the Government should await the outcome of the case in this Tribunal before making final decisions.
Rhonda Foley’s evidence
Mrs Foley’s evidence was as follows. She and her husband have lived in Flynn since 1980 or thereabouts and their children attended the pre-school and the primary school. Her husband had moved to Flynn in 1972 with his family, and he and his siblings took part in various activities held at the school, although not attending the school as students.
Mrs Foley’s connection with the school began shortly after her daughter was born, when she regularly attended the baby clinic in the health centre at the school. Families with babies and small children under school age were encouraged to participate in appropriate activities at the school, truly making the primary school the focus of the Flynn community. These connections made it easier for children to make the transition to ‘big school’ when the time came.
Mrs Foley took up a school administrative position at the school at the beginning of 2005, having previously worked in four other schools. In her experience the school was different in that there was a much higher parent involvement than in other schools. Her experience was that in other schools people did not feel as free to be involved in the school as in Flynn. A possible reason was that other schools did not have a health centre, although the Tribunal notes that the Flynn health centre appears to have closed some time ago.
There was a strong awareness and connection with John Flynn and the Flying Doctor service, she said, and gave evidence about this - for example, staff and family tours to significant RFDS locations in outback Australia.
Part of the charm and inclusive nature of the school was in its design, said Mrs Foley. She had worked in upwards of seven primary schools in Canberra, both of an open-plan design and the traditional ‘box’ classrooms, and believed that the open-plan schools seemed more community orientated, friendly and more secure for students. In her witness statement, Mrs Foley expressed with great eloquence her disappointment at what she saw as the loss to the community arising from the closure of the school.
Mrs Foley did not agree with the suggestion that the relevance of the school to the Flynn community declined as the numbers reduced. She agreed, however, that the great majority of the people who were involved in the school had children at the school, and that community involvement is greater when there are children at a school. She agreed, in response to Mr McCarthy, that about
50 per cent of the children in Flynn go to private schools, some 38 per cent of those of those who attended Government schools before closure of the Flynn school attended out of area schools, and that the importance of the school to the community is a function of the number of children at the school. She thought views differed about the importance of the school and that there were a variety of reasons why parents would prefer an out of area school. She thought the reason for the declining enrolment at Flynn before its closure was ‘demographics’.
Cathy Nicholl’s evidence
Mrs Nicholl’s evidence was as follows. She has been a resident of Flynn since 1971 and is a member of both the P&C and the Community Group, but is not an office-holder in either of those two organisations. Her children attended the school.
Mrs Nicoll said that the P&C was the de facto community group for the suburb of Flynn before the establishment of the Community Group. The P&C continues to provide support for the pre-school.
She thought that the figure of 62 per cent for the number of students who live in the –enrolment area for Flynn school and who attend Government schools and were enrolled at Flynn in 2006 was ‘not bad’ compared with other schools. She referred to data in the P&C submission to the schools closure inquiry in November 2006, indicating that Flynn was in the middle of the range of
11 Government schools in north west Belconnen in terms of ‘in-area loyalty’ to Government schools.
Mrs Nicoll and her husband prepared the petition in support of the heritage application and was one of the petition canvassers. She was present when her husband briefed other canvassers over the phone. She and other canvassers were generally surprised at the degree of support for the petition. She disagrees with the child care proposal in its current form.
Other witness statements
In addition to the statements provided by those who gave evidence at the hearing, another 18 statements were provided in support of the Applicants’ case. There is considerable commonality between these statements and evidence given at the hearing. Taken collectively the statements support the oral evidence of the Applicants’ witnesses at the hearing.
The Respondent’s evidence
Michael Pearson’s evidence
Dr Pearson is the Managing Director of Heritage Management Consultants Pty Ltd and is the Adjunct Professor of Cultural Heritage Management at the University of Canberra. Dr Pearson holds a BA(Hons) and a PhD in Prehistoric and Historical Archaeology. He has extensive experience in the heritage field, including senior positions in the Australian Heritage Commission and the NSW Parks and Wildlife Service and as a heritage consultant. Dr Pearson has been a member of the ACT Heritage Council since 2002 and its Chair since 2005.
Dr Pearson gave evidence about the role of the Council and the basis on which the Council made its decision not to list the nominated places. His evidence was as follows.
Dr Pearson said that the Council recognised the school as an example of the Late Twentieth Organic style of architecture and as one of the architectural achievements in the portfolio of Enrico Taglietti’s Canberra works. It considered, however, that the further development of the style exhibited at Giralang School satisfied the criterion (b) requirement that the place ‘exhibits outstanding design or aesthetic qualities’ but that the school did not meet that criterion.
The Council also assessed the school in the context of the developments in the history of open-plan learning design in Canberra, as this helped it address criteria other than those focused on architectural design. A number of Canberra schools demonstrated the rise and decline in open-plan principles (such as Fisher, Rivett, Holder, Latham, Hawker, Campbell, Duffy, Weetangera, Flynn, Giralang and Gowrie). While all showed some evidence of this process, Giralang was considered to exhibit the most important evidence of the short-lived phase of open-plan schooling in Canberra.
Places may fit into a context of evolving design or technical development that is represented by many other examples (as in the case of schools reflecting evolving educational concepts). In applying the criteria the Council has to determine which, if any, of the places in that evolving context merit registration. Nearly every building in the ACT could be said to fit into a story of a particular design or planning context, or historical trend, but this does not mean that every place meets the threshold imposed by the criteria. The Heritage Register only has validity because it establishes that a level of significance exists that is above the ordinary.
The Council commissioned a comparative assessment by the RAIA, and took this into account when assessing the Flynn nomination. But it chose to apply a higher threshold of significance against the criteria than had the RAIA assessment. There was no presumption in carrying out the comparative assessment that only one school could be registered. The comparative assessment was to aid the Council in deciding which schools satisfied the criteria. Such comparisons, Dr Pearson said, go to the heart of making judgments about the thresholds applied to heritage criteria. The decision to provisionally register Giralang did not influence the Council’s decision on Flynn, but the history of Giralang and the other schools did inform its consideration of relevant thresholds within the assessment criteria.
In relation to the Council’s judgment on the thresholds for the criteria,
Dr Pearson stressed that emphasis has to be placed on the qualifying words used in the Act. Places have, variously: to be ‘outstanding’; to be ‘highly valued’; to have ‘strong or special associations’; to be ‘important as evidence’; to be ‘significant for understanding’; or to ‘contribute significantly’.
Having regard to previous Tribunal decisions, the Council judged that the RAIA did not constitute a ‘cultural group’ as specified in criteria (b) and (d). Nor, said Dr Pearson, was there any evidence that the Community Group or the P&C reflected the views of ‘the community or a cultural group’ rather than a small group of concerned citizens within the community.
Responding to the witness statement provided by Mr Freeman, Dr Pearson commented that, while the RAIA Gold Medal may have been awarded for the ‘body of Taglietti’s work’ that approach is not appropriate to the development of the ACT Heritage Register. The Council acknowledges and values
Mr Taglietti’s contribution to the architecture of Canberra, but the Act requires the Council to assess each individual place against the assessment criteria not to assess the overall relative worth of a designer’s whole output.
Dr Pearson disagreed with the contention by the Applicants that there is a ‘presumption’ in favour of provisional registration. He argued that, at the stage of provisional registration, the Council has to be satisfied on reasonable grounds that a place may have heritage significance (s32(3)). However, the Act makes it clear that a place only has heritage significance if it satisfies one or more of the criteria. The Council therefore considers the place’s potential values against each criterion and whether the place meets it. Without this assessment filter at the provisional registration stage every nomination would be provisionally registered on the grounds that it may have values. There is no presumption of registration without the application of the criteria.
Dr Pearson agreed that, after receiving Mr Charlton’s report, the Registration Taskforce initially thought that the school should be registered but changed its mind later. This was because the Taskforce had concerns about what were seen as internal contradictions and other deficiencies in Mr Charlton’s report. There was concern that the report did not give conclusive evidence for registration purposes.
The Taskforce visits to Flynn and Giralang schools, Dr Pearson said, led them to recognise that they were dealing with quite different places, and they decided that they needed to have better understanding of the educational context of the two places, hence the meeting with Alan Foskett, who was seen as an authoritative source regarding ACT education in the early 1970s. The Council was substantially influenced by Alan Foskett’s evidence and interpretation that Giralang was the first and best interpretation of the open‑plan system and that, although there were earlier examples, they were not fully integrated.
Dr Pearson’s understanding of the place of Flynn in the development of open-plan learning was that the design brief required the school to have open-plan elements but it was not a fully open-plan design. The Flynn design lacked the flexibility seen at Giralang, he said. At Flynn there were larger teaching spaces but the other rooms used a standard approach.
The threshold to be applied in assessing whether a place meets a criterion is not predetermined, Dr Pearson said, and cannot be determined out of the context of the body of places that you are looking at. There could be more than one place that commemorates, reflects, or demonstrates that phase in ACT history. This was why the Council commissioned the RAIA comparative assessment process.
The Council was also concerned about the architectural quality of the building when considered against the relevant criterion. It had not appeared on the RAIA’s own lists of significant architecture over the years, and the comments about the relative position of the building within the material before the Council were equivocal. The Council considered the material concerning the range of places that reflected the style and the period of that phase of architecture and concluded that although the building was a prominent example of the style, the material in front of the Council stopped short of saying it was outstanding. This was to be compared with Giralang about which there was no doubt.
Dr Pearson said that the Council takes the view that ‘the community’ means the ACT community. It is necessary to demonstrate that the value of the place is sufficiently important to a component of the community as to be important to the whole ACT community. The key words are ‘strong’ and ‘special’ and if they are strong or special enough to the local community they are likely to be valued by the wider community.
But this is not an easy judgment to make and is an issue that heritage organisations have found difficult for a long time. Defining or recognising a cultural group can be easier, he said. Professional organisations such as the RAIA are, however, generally not regarded by the Council as cultural groups.
The other schools that are on the register are different from the school, Dr Pearson said, in that they all come from an earlier period, they have wider associations with development of Canberra and are valued by the wider ACT community. The Council thought that the relationship between the Flynn community and its school was no different from that of any other suburb, so the association is not strong or special. The Council thought that there was no convincing case that the school heritage value was any greater than that of any other school. The Council wants to preserve only those places that are ‘above the ordinary’, and the school does not meet this test. He did not deny that the school has amenity value, but amenity value is different from heritage value.
Dr Pearson said the reference to ‘education’ in criterion (d) is interpreted by the Council to refer to the value of a site for teaching and training in relation to the values a place has, e.g. a place may have educational value for architectural teaching purposes as the exemplar of an architectural style. This criterion is also used to capture places that are important for indigenous educational purposes and for natural heritage educational purposes.
With respect to ‘social’ associations, Dr Pearson said that some terms are in the criteria for Indigenous reasons and that the term ‘social associations’ in (d) is not clearly defined and is not defined in the Act. Guidelines exist in some jurisdictions for interpreting the criteria but not in the ACT at present, although they are being developed. He said that although the school may be valued by the Flynn community for its social associations, the purpose of the Act is to reflect heritage value to the ACT community.
Dr Pearson agreed that the term ‘cultural phase’ in criterion (h) encompasses the open-plan learning phase in the ACT. But open-plan learning is better seen as a development rather than a cultural phase in the ACT, he said, which had its rise and then its fall. The Council considered whether the phase was significant enough to be commemorated and whether the Flynn school was significant within that developmental phase. A large number of schools experimented with open-plan learning and partially implemented it; then there was the fully blown example at Giralang. Open-plan learning quickly dropped off and was not adopted as a long-term solution. It was a relatively tight and narrow phase within ACT education and indeed Australian education.
The Council considered what would provide the best example of that short lived phase in Australian history - the ‘seminal’ example, the best example or the last example? For a short phase like open-plan learning, the Council thought that the most appropriate example was the one that best demonstrated that phase in educational philosophy in the ACT, and that was the Giralang school. Other places reflected the phase but to lesser degree.
In considering whether there is a strong or special association between the school and open-plan learning, there must necessarily be a comparative assessment. That involves a judgment depending on the importance of that phase. A comparison may be drawn with democracy as a cultural phase. There will be a much greater range of places associated with democracy than open-plan learning because it is a very major phase in Australian history.
Dr Pearson said that, in the ordinary course of events when considering whether there is a strong or special association with a person in local or national history, the Council would look for a strong or special association between the place and that person’s place in or contribution to history, for example, where they lived or did their work. Examples given were Manning Clark House where Manning Clark wrote his books and Captain Cook’s landing place at Botany Bay.
The secondary association between the Flynn school and John Flynn,
Dr Pearson, said, is no different from that of any other suburb in Canberra which is named after a historical personage. The fact that there is a memorial to a person does not establish a special association between the place and the person. The existence of a physical link with the person is the most obvious evidence of an association. But the association is weak if the place is one that he never visited or which did not exist in his lifetime.
There are memorials to people on heritage registers, Dr Pearson said, but very often they will be places where there is a historical association between the person and the place, for example, the statue to Sir John Franklin in Hobart outside the building where he ‘ran the Government’ of Tasmania. This is also a fine piece of sculpture and is listed for that reason as well. The existence of a memorial at a place is not evidence of a special relationship with a person but the act of memorialisation itself may be important in history, justifying the listing. For example, the memorial by the bandsmen of Ballarat to the bandsmen on the Titanic does not establish a special association between the bandsmen of Ballarat and those on the Titanic, but the act of memorialisation itself was significant event in Australian history justifying listing of the memorial.
The petition
The value of the petition (Exhibit A11) tendered in these proceedings is limited. Mr Clynes, for the Applicants, accepted that it was not a perfect indication of the views of the signatories. Mr McCarthy, for the Respondent, considered that it should not be received into evidence, but that if it was it should be given little weight. The petition was said by the Applicants to represent the view of 33 per cent of Flynn households.
The words of the petition are those of Mr Roger Nicholl with some input from his wife Mrs Cathy Nicholl. Mr Nicholl said that he explained the petition, sometimes by telephone and sometimes in person, to some 15 persons who then canvassed for signatures. The signed copies of the petition were returned to Mr Nicholl who ‘debriefed’ the canvassers. Mr Nicholl said that most people who were approached signed the petition although approximately 2-4 per cent refused to sign. Only a few signatories asked questions about the wording. Neither Mr nor Mrs Nicholl told the canvassers or petitioners that if Flynn Primary School was given provisional heritage registration the redevelopment of the school site as proposed by the ACT Government might be put at risk. They considered that this information was not relevant to the hearing before the Tribunal. To what extent, if any, this knowledge would have affected the numbers of petitioners is unknown.
In the view of the Tribunal the petition provides some evidence that 33 per cent of households in the suburb of Flynn were probably in support of heritage listing but that they may well have given that support without a proper appreciation of the consequences of provisional registration. The Tribunal does not rely on the petition except to the extent that it broadly conveys a view of some of the residents of Flynn.
Provisional registration and the heritage significance criteria
The Tribunal's role in this case is to determine whether the Heritage Council made the ‘correct or preferable decision’ in deciding not to provisionally register the school. The Tribunal, standing in the shoes of the Council, must decide on the evidence whether there are reasonable grounds for being satisfied that the school may have heritage significance. If the school satisfies one or more of the criteria set down in section 10 of the Act, the Tribunal must set aside the Council’s decision and provisionally register the school. If the Tribunal is not so satisfied it must confirm the Council’s decision.
Registration of a place has implications for protection of a place under the Act and may lead to constraints on its redevelopment. If a place is registered, whether provisionally or finally, the Council has power under part 10 of the Act to provide advice to the planning and land authority about the effect of any development at the place that bears on the heritage significance of the place. The Council's advice must be considered by the planning and land authority in approving or refusing to approve a development application. Under section 61 the Council may set out proposed conditions on any development at the place, including conditions to conserve its heritage significance.
Under part 11 of the Act, the Minister may give a heritage direction to the owner or occupier of a registered place. A breach of that heritage direction is an offence under section 65 of the Act for which the maximum penalty is $110,000 for an individual and $550,000 for a corporation. Listing a building does not, however, guarantee its retention or protection in its original state. The consequences of a place being registered are thus of some considerable moment. Powers are given to the Minister and the Council which could not be exercised were the place not registered. A decision-maker must be rigorous in applying the criteria because the effect of registration is to impose significant limitations on the owner, lessee or occupier of a place, which may result in inconvenience and substantial financial detriment.
To provisionally register a place, the three requirements of section 32(3) of the Act need to be met. The Tribunal must (a) be satisfied, (b) on reasonable grounds, (c) that the place may have heritage significance. There are 12 criteria of heritage significance set out in section 10 of the Act. The Tribunal needs only to find that one of those criteria is made out to set aside the decision of the Council.
The Tribunal adopts the view expressed in Pettersson and the ACT Heritage Council and Anor [2010] ACAT 28 at paragraph 18 that to be satisfied the decision-maker should have reached a ‘clear conclusion’, a state of ‘actual persuasion’.
The requirement to be satisfied ‘on reasonable grounds’ requires an examination of evidence of probative value rather than assertions of facts or situations on the basis of a strongly held belief. It is ‘the overall circumstances of the case that will provide more reliable guidance’: Cummings v Lewis & Ors (1993) ATPR (Digest) 46-103 at 53, 447. The use of the word ‘only’ before the phrase ‘on reasonable grounds’ reinforces the approach that the decision-maker must focus purely on grounds that are reasonable and on no other grounds. Each criterion must be objectively assessed on the evidence, otherwise the decision-maker cannot be satisfied on reasonable grounds that the object or place may be of heritage significance.
Mr Clynes argued that the introductory words of section 32(3) of the Act - the ‘Council may provisionally register a place or object’ become operative after the Council is satisfied on reasonable grounds that a place may meet a criterion for listing. The Tribunal accepts this interpretation. Mr Clynes then said that the onus for not listing then shifts to those opposing registration. The Tribunal would prefer to say that, at that point, there must be reasonable grounds before the decision-maker for not provisionally listing the place.
Each of the 12 criteria in section 10 of the Act comprises several elements and the decision-maker must be satisfied on reasonable grounds, that is, on the evidence, that each element is made out. Thus in criterion 10(b) the object or place must first exhibit outstanding design or aesthetic qualities. Second, those qualities must be valued. Finally the community or a cultural group must value the object or place. If any part of a criterion is not established on the evidence then the object or place cannot be provisionally placed on the Heritage Register.
When the criteria are examined it becomes apparent that the object of the Act is to register significant places or objects. Section 10 uses words such as ‘exceptional’, ‘outstanding’, ‘distinctive’, ‘rare’ and ‘unique’. This suggests that places and objects that could be characterised as usual, normal or ordinary are not places for which the Heritage Register is intended. When the criteria are interpreted they must be interpreted with this objective in mind. This is reinforced by the words of the Burra Charter (1999) ‘Guidelines: Cultural Significance’ which Mr Freeman quoted:
‘Cultural significance is a concept which helps in estimating the value of places. The places that are likely to be of significance are those which help an understanding of the past or enrich the present, and which will be of value to future generations.’
In Cairns and ACT Heritage Council [2010] ACAT 48, the Tribunal acknowledged that:
‘The heritage significance criteria set out in section 10 of the Act are necessarily in wide terms, and involve subjective judgments about the degree of excellence, significance or uniqueness of a particular property or object. … These are not matters capable of precise definition, and they are ones upon which experts familiar with the subject may have different opinions. …. Nevertheless, the role of the Tribunal is to evaluate that evidence as best it can, and make what it considers to be the correct or preferable decision on the wording of the Act.’
Criterion 10(b) requires that the place be ‘valued by the community or a cultural group’. Criterion 10(d) requires the place to be ‘highly valued by the community or a cultural group’. What then is meant by ‘the community’? What then is meant by a ‘cultural group’?
In the phrase ‘the community’ the definite article ‘the’ is used, in contrast with the use of the indefinite article ‘a’ when referring to ‘a cultural group’. The definite article suggests a unique or individual object or thing. That is the way it is used elsewhere in the Act. Thus in section 7(2) the definition of ‘relevant person’ mentions ‘the chief officer (fire brigade)’, but ‘a’ in respect of ‘a police officer’. In section 17(1)(a) the Act refers to ‘the conservator of flora and fauna’ and in section 17(3)(a) to ‘the community’ (emphasis added).
Mr McCarthy drew attention to the Macquarie Dictionary (2nd Ed.) in which ‘the community’ is defined as ‘the public’. He also quoted from the decision of the Queensland Environment Court in Advance Bank Australia Limited v The Queensland Heritage Council (1994) QPLR 229 in which it held that ‘the community’ referred to the whole of Queensland rather than to some more limited area. A criterion for heritage listing in the Queensland Heritage Act 1992 is similar to sections 10(b) and 10(d) of the Act in that it refers to the place being ‘valued by the community or a particular cultural group’. The Advance Bank decision emphasised that the phrase ‘the community’ should be interpreted broadly in contrast with the phrase ‘a cultural group’ which has a narrower focus and contemplates the possibility of a number of cultural groups.
Mr Clynes argued that ‘the community’ could also have a more limited meaning confined to a geographical area. Thus it would not be inconsistent to consider the suburb of Flynn within the meaning of ‘the community’. The Tribunal accepts that there is a Flynn community but it does not accept that it is ‘the community’ as envisaged in the Act, for the reasons set out above.
Mr Clynes pointed to evidence which, he said, supported the view that the wider ACT community ‘valued’ (s10(b)) or ‘highly valued’ (s10(d)) the nominated places. That evidence comprises letters from the RAIA dated
17 December2007; Professor Stephen Frith, Professor of Architecture, University of Canberra dated 20 December 2007; the RFDS dated
11 December 2007; the Reverend Peter Davidson of the Presbyterian Church in Canberra dated 6 December 2007; and the National Trust in the ACT dated
7 December 2007.
The Applicants argued that the use of ‘may have heritage significance’ in section 32(3) of the Act showed a lower threshold for provisional registration than for final registration under section 40(3) of the Act which reads ‘has heritage significance’. However the words ‘on reasonable grounds’ precede and apply to ‘may have’. This means there must be more than a theoretical possibility. There must be evidence to show why the place may have heritage significance. For example, this could be evidence that further investigations might uncover relevant information to assist in satisfying a criterion for listing. In this matter, the place has already been thoroughly investigated and there is no suggestion that further evidence to assist with registration might be found.
The letter from the RFDS is not relevant as it does not suggest it represents the views of the ACT community. The letter from Rev Davidson is on the letterhead of the Presbyterian Church in Canberra but there is no suggestion that the views are other than his own. Similarly Professor Firth does not purport to speak except on his own behalf and was not called to give expert architectural evidence. The letters from the RAIA and the National Trust might be said to represent groups within the community, but they comprise only a small part of the larger ACT community. This evidence is not sufficient to persuade the Tribunal that it represents the views of the ACT community as required by the Act.
An alternative possibility offered by the Act is that the nominated places be valued or highly valued by a cultural group (sections 10(b) and 10(d)). In Truswell and Minister for Communications and the Arts (1996) 42 ALD 275, ‘culture’ and ‘cultural’ were accepted to mean ‘refinement of mind, tastes and manners, artistic and intellectual development; the artistic side of civilization’. It was not suggested that the Community Group is a cultural group. The extent to which either the RAIA or the National Trust in the ACT are cultural groups is not clear to the Tribunal. The constitutions of those bodies were not given to the Tribunal, their activities were not canvassed nor were witnesses from them called to give evidence. It is acknowledged that both groups have an interest in heritage matters, but the RAIA is also a professional association representing the interest of architects. Dr Pearson did not think that the RAIA is a cultural group. In order to form a concluded view on whether a group is a cultural group, other questions would need to be explored such as whether cultural matters must be the dominant purpose of the group or merely an ancillary activity. The evidence before the Tribunal is not sufficient to allow a conclusion that either the RAIA or the National Trust in the ACT is a ‘cultural group’ for the purposes of criteria 10(b) or 10(d) of the Act.
Criterion 10(b) of the Act requires the object or place to be ‘valued’ and criterion 10(d) requires the object or place to be ‘highly valued’. The Macquarie Dictionary (4th Ed.) defines ‘valued’ as ‘highly regarded or esteemed’ and thus a highly valued object or place would be very highly regarded or esteemed. A decision that a place or object is ‘valued’ or ‘highly valued’ must be ‘on reasonable grounds’ as required by section 32(3) of the Act. An assertion of facts or situations on the basis of a strongly held belief is not sufficient. That would require a careful examination of the evidence. The decision-maker would require some tangible evidence to demonstrate that the object or place was valued or highly valued. There are many examples of what evidence might show that a place is valued or highly valued. These could include long term promotion, substantial investigative work, the expenditure of time, effort or money and the attendance as a witness before the decision-maker. A letter asserting that a place is valued is not sufficient. It must be demonstrated more tangibly. It must provide the decision-maker with ‘reasonable grounds’. As an example, the letter from the National Trust is not of itself enough, particularly as it repeats the claim that the building is in the shape of an aeroplane, despite Mr Taglietti’s clear view to the contrary.
The Tribunal earlier decided that that none of the Applicants, or the RAIA, or the National Trust fell within the meaning of ‘the community’ or ‘a cultural group’ as required by the Act. The Tribunal is therefore not required to reach a decision whether on the evidence the nominated places are ‘valued’ for the purposes of criterion 10(b) or ‘highly valued’ for the purposes of criterion 10(d) of the Act.
The concept of a strong or special association appears in both criteria 10(d) and 10(h) of the Act. Strong, in the context of a relationship or association means ‘intense or powerful’ while ‘special’ has the meaning of ‘extraordinary’ and ‘distinguished or different from what is ordinary or usual’: Macquarie Dictionary 4th Ed. What the words convey is that the association must be something very much out of the ordinary. This is consistent with the purpose of the criteria which aim to select those places which are to be granted a special status over and above other places; those places which will ‘enrich the present and which will be of value to future generations’ (Burra Charter).
Does the place exhibit outstanding design or aesthetic qualities valued by the community or a cultural group? (Criterion 10(b))
This criterion has three parts, all of which must be met for the criterion as a whole to be met––the place (a) must exhibit outstanding design or aesthetic qualities and (b) these qualities must be valued and (c) they must be valued by the community or a cultural group.
Mr Clynes submitted that there is evidence from several sources indicating that the place has outstanding design or aesthetic qualities. These are: the statements in Mr Charlton’s draft report that the place has ‘high heritage value’ (T121) and in the draft register entry (see above); the evidence by Mr Freeman and
Mr Taglietti; and the views of the community.
Mr McCarthy submitted that the place does not exhibit these qualities. He argued that the place has never been on the RAIA’s own lists of significant
20th century architecture, and that the RAIA’s letter of 17 December 2007 to the Heritage Council did not constitute support for listing. He submitted that the Tribunal should treat Mr Charlton’s report with considerable care on the basis that Mr Charlton was not called to give evidence; his report is still a draft; and it contains internal inconsistencies and flawed reasoning as was pointed out by Dr Pearson in his evidence.
The Tribunal considers that the fact that the school was not included in the RAIA list of significant 20th century architecture in the ACT is important and suggests that the school has not been seen as deserving of recognition by the RAIA itself. At least four other Taglietti buildings are included in the RAIA’s list. The apparent absence of any initiative by the RAIA before December 2007 to seek listing of the school suggests also that the school, even if of architectural merit, was not seen by the RAIA as worthy of listing. The Tribunal is reinforced in this position by the evidence that the RAIA has an active heritage committee and has been active in nominating places to the Heritage Register.
During Mr Taglietti’s long and successful practice in the ACT, 15 of his other buildings have received awards but the school has not been the subject of any RAIA architectural awards. The citation (T212-220) for the RAIA Gold Medal awarded to Mr Taglietti in 2007 says simply that the school is an example of his work. Six buildings are referred to as ‘notable projects’ but not the school. Various houses are called ‘beautiful residential architecture’. The Town House Motel is described as ‘much lauded’ and the Giralang school is called ‘multi-award winning’, but the school is not accorded any special description or status.
The Tribunal considers that the RAIA’s letter of 17 December 2007, together with its attachment, should not be regarded as unequivocal or strong support for listing. In particular the text in the attachment relevant to criterion (b) is extremely brief and refers only to a ‘design with commendable aesthetic quality’. This cannot be taken as a statement that the school exhibits ‘outstanding design or aesthetic qualities’.
Mr Charlton was not called to give evidence and his report is still a draft. This reduces the weight the Tribunal can give to the report. The Tribunal notes that Mr Freeman supports Mr Charlton’s assessment and expressed the view that the school comes within the definition of exhibiting outstanding design and/or aesthetic qualities. The Tribunal has concluded, however, that the overall weight of evidence is that the school, while of considerable design and aesthetic merit, falls short of the very high threshold required to meet this criterion.
When considering the meaning of ‘the community or a cultural group’ the Tribunal concluded that evidence did not establish that the Community Group, the RAIA or the National Trust fell within those terms. Thus there is no community or cultural group within the meaning of the Act to value the school.
The Tribunal finds that the school does not meet this criterion.
Is the place highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations? (Criterion(10(d))
Mr Clynes submitted that this criterion provides the clearest grounds for listing, and that it is the social associations that are relevant in this case. In his view the have made out a very strong social association case.
For the reasons set out in the subsequent discussions of criterion (h) dealing with the development of open-plan teaching, the Tribunal does not accept that there is a strong or special educational association with the school. The school’s function in the educational sense was no more or no less than any other ACT primary school.
There has been lengthy and uncontroverted evidence of the myriad of social activities held at the school between its opening in 1974 and its closure in 2006. The school was the social hub of the suburb and was very important to the people who lived there. However the character of these activities was the same as that in most ACT schools. The social association with the school cannot be described as strong or special within the meaning of the Act. The social association that has been described in the evidence is not of a kind that should be the basis for provisional registration on the Heritage Register.
The Tribunal earlier concluded that the Community Group or the people of Flynn are not ‘the community’ or a ‘cultural group’ for the purposes of criterion 10(d) of the Act.
The Tribunal finds that Criterion 10(d) of the Act is not satisfied.
Does the place have strong or special associations with a person, group, event, development or cultural phase in local or national history? (Criterion 10(h))
The Applicants argued that the school meets this criterion because it has strong or special associations with Enrico Taglietti, John Flynn and George Simpson, who are important in local and national history. They also argued that there is a strong or special association with the introduction of open-plan learning in the ACT, which may be considered to be a development or cultural phase in local history.
Association with Enrico Taglietti
The Tribunal accepts that Mr Taglietti is an eminent architect, who is considered important in the history of architecture in Canberra and indeed nationally. The issue is whether there is a strong or special association between the school and Mr Taglietti, bearing in mind that the school is one of several hundred buildings designed by Mr Taglietti. This criterion does not contemplate the merits of the school as architecture but only the association with a person, group etc.
The school was not the first school designed by Mr Taglietti in the ACT; that was Latham. It was the first that he designed to meet open-plan requirements, but in a transitional form. Giralang was the first and only school that he designed in fully developed open-plan form. Mr Taglietti’s experience in designing the school was no doubt helpful to him in acquiring the experience and skills necessary for the design of Giralang, which is recognised as a very significant architectural achievement. The essential links between the school and Mr Taglietti are that he designed it, supervised its construction and visited it from time to time to talk to students about his design. None of these links could be described as strong or special, for if they were every one of his buildings would satisfy the association test and require registration.
The Tribunal has concluded therefore that there is no strong or special association between the school and Enrico Taglietti.
Association with John Flynn and George Simpson
The Applicants argued that a strong or special association exists principally because of the existence of the national memorial to John Flynn; the dedication of the adjoining park to George Simpson, the installation of a commemorative plaque and the large range of curricular and extra-curricular activities relating to John Flynn and George Simpson, including those relating to the RFDS. The Tribunal accepts the evidence of Dr Pearson that these associations are commemorative in nature rather than substantive and direct.
The Tribunal accepts that John Flynn is a person in national history. It notes that John Flynn died in 1951, long before the suburb of Flynn and the school came into existence. The Tribunal accepts that the suburb of Flynn was named after John Flynn in order to commemorate him and his achievements, and the school was named after the suburb. There is, however, no physical or historical connection between the suburb or the school and the life of John Flynn. In the Tribunal’s view this creates difficulties for establishing the heritage significance of a place, if as is ordinarily understood, this refers to a place that is significant because of connections during the person’s lifetime, i.e. where a person important in history was born or lived, undertook major work or where their contribution to history took place. The Tribunal doubts that George Simpson is a person in national history. When Flynn was gazetted as a Division on
9 September 1971 (T258-262), 65 members of the RDFS and the Australian Inland were selected to have streets named after them. Dr Simpson was not included in that list, which must raise questions about his historical significance. However, even if one accepts that he is a person in national history, there is, for the same reasons as discussed above in relation to John Flynn, no strong or special association between the school and Mr Simpson. Neither John Flynn nor George Simpson is a figure in local history.
In this regard the Tribunal prefers the evidence of Dr Pearson who explained in detail how these associations were assessed by the Council and what matters were considered relevant. The Tribunal also notes that Mr Charlton stated that there are special associations between the school and John Flynn, but that that they are not high enough for the school to have heritage value for those associations alone (T122). Mr Freeman only touched briefly on the question.
The Tribunal has concluded therefore that there is no strong or special association between the school and John Flynn and his colleague George Simpson.
Association with open-plan education in the ACT
The Applicants argue that there is a strong or special association between the school and the introduction of open-plan education in the ACT because it was the first to be designed to meet open-plan learning objectives and requirements. The Respondent does not dispute that this was the first school to be purpose built for open-plan learning.
Mr Taglietti is reluctant to accept the description of the school as one that combines elements of open-plan design with more traditional elements. The NCDC brief for the school however said that the open-plan concept was being introduced in a ‘transitionary form, retaining portions of the traditional school, but adapting portions of the building in line with the new concept’. Mr Taglietti said that he designed the school to respond to the brief, and there was no evidence that the school as built did not correspond to the NCDC’s stated intentions and description.
The Tribunal accepts the evidence of Dr Pearson that the open-plan phase of education in the ACT was a short-lived phase during the 1970s and that there were some 11 schools that, in varying degrees, incorporated elements of open-plan design. Mr Freeman did not deal with this matter. The evidence, based on the record of the Taskforce meeting with Alan Foskett and his history of ACT education, is that in the early part of the 1970s open-plan design was being introduced into several ACT schools by adapting and remodelling parts of those schools. The school was not therefore the first school to incorporate open-plan design, and it was only one of several that did so.
It is not disputed that the introduction of open-plan learning in the ACT constitutes a ‘development or cultural phase’. The issue is whether the school has a strong or special association with that development or phase In this regard, the Tribunal has taken the view that the open-plan development or cultural phase refers to a philosophy of education, which is facilitated by a particular form of architecture. The school was not the first to adopt open-plan learning, nor was it the last. Nor can it be said to be the best, as that honour belongs to Giralang. The school has some significance as the first purpose-built school incorporating open-plan elements. But the transitional and incomplete form of the open-plan design undermines the strength of the association.
The Tribunal considers therefore that there is no strong or special association between the school and open-plan education in the ACT.
In light of the foregoing the Tribunal has concluded that this criterion is not met.
Conclusion
In their application to the Tribunal, the Applicants claimed there were eight criteria on which the Council should have found, on reasonable grounds, the place may have heritage significance. At the hearing the Applicants pursued criteria 10(b), 10(d) and 10(h) only. The Tribunal has given its decision against those three criteria above that it is not satisfied on reasonable grounds that the place may have heritage significance. The Tribunal has also considered the remaining criteria in the light of the relevant evidence and is not satisfied on reasonable grounds that the place may have heritage significance under any of these criteria.
The Tribunal affirms the decision under review.
………………………………..
Mr A. O’Neil
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 10/63
1ST APPLICANT: ENRICO TALLIETTI
2ND APPLICANT: JOHN FLYNN COMMUNITY GROUP INC.
RESPONDENT: ACT HERITAGE COUNCIL
COUNSEL APPEARING: APPLICANT: Mr Clynes, O’Connor Harris
RESPONDENT: Mr McCarthy,
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S: Mr A. O’Neil, Senior Member
Mr J. Ashe, Senior Member
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
3
2
0