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- Unreported Judgment
PLANNING AND ENVIRONMENT COURT OF QUEENSLAND
Goldicott House Pty Ltd v Brisbane City Council & Ors  QPEC 11
GOLDICOTT HOUSE PTY LTD ACN 618 926 800 AS TRUSTEE FOR GOLDICOTT HOUSE TRUST
BRISBANE CITY COUNCIL
(first co-respondent by election)
(second co-respondent by election)
(third co-respondent by election)
(fourth co-respondent by election)
(sixth co-respondent by election)
ROBIN BAILEY AND TRACEY BAILEY
(seventh co-respondent by election)
ANDREW CARLTON AND NATALIE CARLTON
(eighth co-respondent by election)
(ninth co-respondent by election)
(tenth co-respondent by election)
(eleventh co-respondent by election)
CHIEF EXECUTIVE, DEPARTMENT OF STATE DEVELOPMENT, MANUFACTURING, INFRASTRUCTURE AND PLANNING
(twelfth co-respondent by election)
3224 of 2018
Planning and Environment
Planning and Environment Court, Brisbane
21 April 2020
15 and 16 April 2019, 20, 21, 22, 23 and 24 May 2019, 29, 30 and 31 July 2019, 1, 2, 26, 27, 29 and 30 August 2019, 3 and 9 September 2019 with further written submissions received to 22 October 2019
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for development permits – where a development permit was sought to enable a material change of use to a former convent as a dwelling house – where the land is within the Community Facilities zone and an Education Purposes zone precinct – whether a compensatory community benefit has been demonstrated to justify a use of the building other than for a community facility – whether the material change of use component of the application should be approved
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for development permits – where a development permit was sought to reconfigure the lot to create two lots – where the proposed subdivision was opposed on grounds relating to heritage, access and planning issues – where the subdivision may constrain the utility of the site in circumstances where nothing is currently known about its intended future use – whether the reconfiguration of the lot component of the application should be approved
PLANNING AND ENVIRONMENT – APPEAL – appeal against refusal of a development application for development permits – where a development permit was sought to demolish a music room situated near the entrance to the site–– whether demolition of the music room would offend State Code 14: Queensland Heritage or the provisions of City Plan 2014 – whether the music room contributes to the cultural heritage significance of the place – whether the demolition of the music room component of the application should be approved on its merits – whether refusal of the other components of the development application led to a lack of utility in approval of the demolition component
Planning Act 2016 (Qld) ss 8, 45, 60, 282, Sch 2
Planning and Environment Court Act 2016 (Qld) ss 43, 45, 46, 47
Planning Regulation 2017 (Qld) s 31(1), Sch 10
Queensland Heritage Act 1992 (Qld) ss 31(3), 34(1), (2)
Sustainable Planning Act 2009 (Qld) s 326
Ashvan Investments Unit Trust v Brisbane City Council & Ors  QPEC 16
Barnes & Anor v Southern Downs Regional Council & Ors (No 2)  QPEC 119
Brookside Estate Pty Ltd v Brisbane City Council & Anor  QPEC 33
Corporation of Sisters of Mercy of Diocese of Townsville v Queensland Heritage Council (No 2)  QPELR 391
ISPT Pty Ltd v Brisbane City Council & Anor  QPEC 52
Jedfire Pty Ltd v Council of the City of Logan & Anor  QPLR 41
Multi Span Australia Pty Ltd v Department of Main Roads & Anor  QPELR 509
Newing & Ors v Silcock & Ors  QPELR 692
Walters & Ors v Brisbane City Council & Anor  QPEC 3
R Litster QC and K Wylie for the appellant
R Traves QC and K Buckley for the respondent
D Purcell for the first, second, seventh, eighth and ninth co-respondents by election
The fourth co-respondent by election appeared on her own behalf and on behalf of the third co-respondent by election
The sixth co-respondent by election appeared on his own behalf
The tenth co-respondent by election appeared on her own behalf
The eleventh co-respondent by election appeared on her own behalf
A Skoien for the twelfth co-respondent by election
Hopgood Ganim Lawyers for the appellant
City Legal – Brisbane City Council for the respondent
Corrs Chambers Westgarth for the twelfth co-respondent by election
Table of Contents
Table of Contents 5
The MCU Component8
The Reconfiguration of a Lot Component21
(i) Heritage issues 21
(ii) Access issues 25
(iii) Planning issues 29
Demolition of the Music Room35
(i) State Code 1435
(ii) City Plan45
(iii) Relevant matter51
(iv) Alternative findings 51
- This appeal is against the Council’s refusal of a development application for development permits in relation to a 12,340 m2 site at 65 Grove Crescent, Toowong on which stands a significant building known as Goldicott House, together with a small timber building known as the music room and a carport. Goldicott House, the music room and the carport lie within that part of the site which is a State heritage place. The whole of the site is a local heritage place. Development permits were sought to:
- (a)use Goldicott House as a dwelling house;
- (b)demolish the music room, and
- (c)reconfigure the site to create two separate lots with one lot of 4,617 m2, including Goldicott House and its curtilage, in the northern part of the site (proposed Lot 21) and a balanced lot to the south (proposed Lot 22).
- The development application underwent public notification which attracted 112 submissions. The first to eleventh co-respondents by election were adverse submitters who are opposed to the development application and resist the appeal. The twelfth co-respondent by election (the Chief Executive) approves of the proposal from a State heritage perspective.
- The land in question is an ‘L’ shaped lot situated at the eastern end of a ridgeline that extends along Grove Crescent between St Ignatius Catholic Church and School to the north and north west, a playing field to the east, Brisbane Boys College to the south and south east and two dwelling houses accessed from Grove Crescent to the south west. The elevated northern part of the site is subject to the State heritage listing and is improved with Goldicott House, the music room and carport. The southern part of the site has a modest, relatively level, grassed area, but otherwise falls away steeply to the south. The site is also burdened by an easement benefitting the adjoining St Ignatius School, to provide access between Grove Crescent and the playing field. The site is situated at the head of the cul-de-sac in Grove Crescent, to which it has a frontage of approximately 19.5 m.
- The development application was impact assessable and, by reason of proposing development on a Queensland heritage place, triggered referral to the Chief Executive who was satisfied that the proposal could comply with the relevant code (State Code 14) and advised conditions which should attach to any approval. Those conditions included archival recording, comprising photographs and measured drawings, of the music room and its surrounds. The Chief Executive maintained the position that, insofar as State heritage issues are concerned, there is no reason to refuse the development application, but that the Chief Executive’s conditions should be attached to any approval.
- It is for the appellant to establish that the appeal should be upheld. The appeal proceeds by way of hearing anew. Section 45 of the Planning Act (PA) applies as if the Court were the assessment manager for the development application. In deciding the appeal the Court must decide to do one of the things provided for under s 47 of the PECA. It may confirm the decision appealed against or change it or set it aside and make a decision replacing it, or return the matter to the entity that made the decision with directions the Court considers appropriate.
- The appellant seeks orders upholding the appeal, setting aside the Council’s decision and replacing it with one approving each component of the development application, subject to reasonable and relevant conditions. In the alternative, to the extent that the Court is not satisfied that the appeal should be allowed with respect to one or more of the components of the development application, it seeks orders allowing the appeal in part and approving, subject to conditions, such part or parts of the development application in respect of which the Court is satisfied. It does not however, seek approval of the reconfiguration component in the event that the Court is not minded to grant the demolition approval, since the demolition of the music room is sought in order to provide access to proposed Lot 22.
- Impact assessment:
- must be carried out against the relevant assessment benchmarks;
- must be carried out having regard to any matters prescribed by regulation;
- may be carried out against or having regard to any other relevant matter, other than a person’s personal circumstances, financial or otherwise;
- must be assessed against, or having regard to, the statutory instrument or other document as in effect when the development application was properly made, but the assessment manager may give such weight as the assessment manager considers is appropriate to an amended or replacement instrument or document or to another statutory instrument that has come into effect.
- Having carried out impact assessment as required, the decision-maker has a discretion as to whether to approve, in whole or in part (conditionally or otherwise), or to refuse the application. Unlike the previous regime under the Sustainable Planning Act, neither the decision-maker at first instance, nor the Court on appeal, is required to refuse a development application in circumstances where approval would conflict with a relevant instrument and there is an absence of sufficient grounds to justify the decision despite the conflict. The new statutory regime provides greater flexibility in decision making. In that regard, I respectfully adopt the observations of Williamson QC DCJ in Ashvan Investments Unit Trust v Brisbane City Council & Ors, Jones DCJ in Brookside Estate Pty Ltd v Brisbane City Council & Anor, and Kefford DCJ in Walters & Ors v Brisbane City Council & Anor.
The MCU Component
- The appellant applied for approval for both a subdivision and for a material change of use. The note to s 22.214.171.124(2) of City Plan 2014 states that if reconfiguring a lot is proposed in conjunction with a development application for a use or uses that require assessment, the subdivision application will not be approved until the development application for the intended change of use has been determined. I will therefore first deal with the proposed material change of use.
- The appellant seeks a development permit to enable Goldicott House to be used as a dwelling house. The appellant makes much of the fact that this would return the building to its historical use. The building is a substantial single storey concrete residence which was erected in 1885 for an engineer, Mr Depree and his family, using a construction method patented by him in 1871. The Depree family only resided at Goldicott for five years from 1885 before returning to England. The house was let to others and was vacant for a time. It was ultimately purchased in 1902 by the Sisters of Mercy who took up residence in the house, as a convent, in 1903, having renamed it Mount St Mary’s Convent. It remained in the ownership of the Sisters of Mercy until being sold to the appellant in 2018.
- Notwithstanding the construction of the building as a private residence and its subsequent use as a convent, the land is not within one of the residential zones under the relevant town planning scheme, namely City Plan. It instead lies within the Community Facilities zone and, more particularly, within an Education Purposes zone precinct. The land had been zoned Community Use under the preceding City Plan 2000 and had, under earlier planning schemes, been zoned Special Uses with the zoning under the 1987 town plan being Special Uses (church, school and convent) zone.
- Part of the western boundary of the site adjoins character residential zoned land on the southern side of Grove Crescent. Otherwise however, the land is surrounded by land in the Community Facilities zone and within the same Education Purposes zone precinct. Within that land is to be found St Ignatius Catholic Church and School to the north and north west, the local playing field (to the east) used by that school (but also managed for wider community use) and Brisbane Boys College to the south and south east. Although not presently used for any community facility, the written submissions on behalf of the first, second, seventh, eighth and ninth co-respondents by election rightly described the subject land as “part of an established community facilities area in Toowong primarily used for educational purposes within a broader residential area”.
- The City Plan specifies use terms which fall within certain activity groups. Community Facilities – Education Purposes is one of the defined activity groups. It encompasses the uses of childcare centre, community care centre, community use, educational establishment and place of worship. Other defined activity groups include Community Facilities, Community Facilities – Cemetery, Community Facilities – Community Purposes, Community Facilities – Emergency Services, Community Facilities – Health Care Purposes, Community Facilities – Major Health Care and Community Facilities – Major Sports Venue. A dwelling house does not fall within the activity group of Community Facilities – Education Purposes or indeed any of the community facilities activity groups.
- It was submitted, against the appellant, that whatever be its past use, the contemporary planning strategy for the site is for its future use for community facilities and, in particular, for education purposes. Its use for a dwelling house would, it was contended, fly in the face of this. It was submitted, on behalf of the appellant however, that the zoning of the land does not preclude the use of Goldicott House as a dwelling house.
- One of the strategic outcomes for the city is that it have a broad range of community facilities. One of the specific outcomes of Element 2.4 – Brisbane’s community facilities, services, open space and recreation infrastructure, is that the city’s existing and planned community facilities and services are protected and appropriately located. Such an outcome obviously depends upon the allocation and protection of sufficient land for those purposes. Such land is, of course, a finite resource. In that regard land use objective L2.2 is that:
“Development protects the land allocated for community facilities such that if uses cease:
(a) where the community purpose is still required by the community, it is returned by integration with the new use;
(b) the land is re-used for another community purpose needed by the local community;
(c) the land is only to be used for another purpose where it can be shown that the use has relocated or is absolutely no longer required by the Brisbane community.”
- The appellant also drew attention to land use strategy L2.3 which provides as follows:
“The redevelopment of government and institutional sites for a use not fulfilling a community facilities purpose is to ensure that the use integrates with the surrounding area and provides greater and direct compensatory community benefits that meet identified needs.”
- The purpose of the Community Facilities zone is stated, in s 126.96.36.199(1), as to provide for community-related uses, activities and facilities, whether publicly or privately owned. That purpose will, it is said, be achieved through overall outcomes for, amongst other things, development location and uses and the Education Purposes zone precinct.
- The development location and uses overall outcomes in s 188.8.131.52(4) include:
“(4) Development location and uses overall outcomes are:
(a) Development provides for the continued use of the land for community facilities identified as appropriate for the particular Community facilities zone precinct.
(b) Development enables community facilities to play a key role in developing and maintaining community networks, services and community health and wellbeing and contributes to the city being well served with community buildings, facilities, spaces and activities meeting the diversity of community needs.
(c) Development provides for both privately owned community facilities and community facilities that are owned or operated by federal, state or local government.
(d) Development ensures that where a use within a Community facilities zone precinct ceases and is no longer fulfilling the intended purpose of the relevant zone precinct, that it is replaced with another community facility.
(e) Development that limits the ongoing operation and expansion of an existing community facility or prejudices the establishment of a new community facility appropriate to the relevant zone precinct is not accommodated.
(f) Development in a particular zone precinct is predominantly for community facilities that are envisaged in that zone precinct, unless an appropriate adaptation of the premises for another community facility use can be demonstrated.
Note – Where a community facility ceases or redevelopment occurs, the limited number of sites within the Community facilities zone must be protected for public rather than private use. Not every site within the Community facilities zone is appropriate for every use within the community facilities group, however, where a use that is described as suitable within a particular Community facilities zone precinct ceases, its replacement may be another community facility that would typically be located in a different Community facilities zone precinct. For example, a premises formerly used as a school, and included within the Education purposes zone precinct, may be transitioned to accommodate an arts and or cultural services hub, which would usually be included within the Community purposes zone precinct.
(h) Development for a use not anticipated in the relevant zone precinct may be accommodated where it is demonstrated that the proposal is safe, well designed, integrated with the surrounding area and offers compensatory community benefits.”
- The Education Purposes zone precinct overall outcomes are:
“(a) Development provides premises for training and instruction designed to impart knowledge and develop skills.
(b) Development may provide for recreation opportunities and ancillary administrative and catering functions to serve students and staff.”
The proposed change of use does not accord with the overall outcomes of the zone precinct.
- Leaving sub-paragraph (h) to one side, the remainder of the development location and uses overall outcomes (and, indeed, the note) contemplate use of community facilities zoned land for a community facility. The preference is for development envisaged in the particular zone precinct, although there are circumstances in which another community facility is acceptable. The proposal is not for any form of community facility.
- It was pointed out, for the appellant, that both land use strategy L2.3 and Overall Outcome 4(h) refer to circumstances in which there is compensatory community benefit. The appellant submitted that this is a case where there is such benefit.
- There was debate about the construction of s 184.108.40.206(4). The appellant submitted that sub-paragraph (h) is an alternative to the preceding sub-paragraphs such that compliance with it, by the demonstration of compensatory community benefit would, in this case, justify a use which is not a community facility. The respondent, on the other hand, submitted that sub-paragraph (h) must be read with the other overall outcomes, so as not to obviate the need to otherwise establish whether a community facility use (first within the range of precinct uses and then outside) could be achieved.
- It may be noted that sub-paragraph (h) does not refer to development for a use not anticipated in the zone, but rather to that not anticipated in the relevant zone precinct. Further, it is evident from sub-paragraph (i) (which relates to development requirements) that not all sub-paragraphs operate as alternatives. The drafting could be clearer, but it is unnecessary for me to resolve the construction issue because, for the reasons which follow, I am not persuaded that the appellant has demonstrated compensatory community benefit in any event.
- It was submitted, for the appellant, that the Court would find a compensatory community benefit after weighing the relevant loss and benefit. It was submitted that the loss to the community through authorisation of the use of the proposed northern lot (Lot 21) for something other than a community facility is so minor that it does not warrant refusal, particularly set against what was submitted to be the benefit to be gained by returning the use of Goldicott to a dwelling.
- There was some attempt to paint the ‘loss’ as no loss at all, since approval of the material change of use would authorise the dwelling house use without removing the opportunity for the site to be used for a community facility if that is ultimately pursued. The observation is correct, because the development permit for the material change of use would not alter the underlying zoning, but it is without weight because:
- (i)in assessing the acceptability of the proposal it must be assumed that, if granted, the permit will be acted upon, and
- (ii)as Mr Reynolds conceded, it is unlikely that the premises would return to a community facilities use after being put to a residential use.
- There was an attempt to minimise the contribution which Goldicott and proposed Lot 21 on which it stands, was intended to make, or could make, in providing for a community facility. In the joint report of the town planners, Mr Reynolds (the town planner called by the appellant) acknowledged that the proposal does not satisfy what he referred to as the broad intent of the zoning, but contended that, in this case, the non-compliance has low consequence because, in his view, the northern portion of the land (proposed Lot 21) is poorly suited to provide for community facility purposes.
- It was submitted that it would be reasonable to infer that the zoning has, in effect, been carried over from the zoning of Special Uses (church, school and convent) zone under the 1987 town plan and reflects the potential for the balance land, not affected by the State heritage listing, to be used for some educational purpose, rather than an intention that the State heritage place in the northern part of the site be put to an education purpose. It was submitted that the zoning is illogical given the Sisters’ long use of the land as their residence. I reject that submission.
- The zoning under the current City Plan was applied to the whole of the land despite the State heritage listing and presumably in the full knowledge that the site was not then being used for educational purposes. The zoning represents the planning intention for the future use of the site. The zoning is consistent with that which applies to surrounding land used for educational purposes. There is no basis to approach the provisions of the planning scheme on the basis that the zoning provisions, or the planning objectives which they serve, are irrelevant to the State heritage listed part of the site or are not soundly based.
- Mr Reynolds opined that the site history demonstrates that the need for the land to be retained for use for community facilities is low. In his view it is possible, but unlikely, that another community use, consistent with its heritage values, would be found for Goldicott. Indeed he contended that the northern part is no longer required for such purposes.
- Mr Reynolds noted that when the site was considered surplus to the requirements of the Sisters and put to open market it was not purchased by a community facilities provider. That the Sisters no longer required the convent does not establish that the property has no value for any community facility provider. That the appellant, with whatever its expectations or aspirations were, was the successful purchaser, does not mean that there was, or will be, no interest by a community facility provider in establishing a facility on the subject site, including by using Goldicott House. The evidence does not justify such a finding. Indeed the appellant did not call evidence of any attempts to pursue the use, or to attract or gauge the interest of others in using, the site (including Goldicott) for a community facility.
- The only evidence of interest or otherwise by the operator of a community facility is a resolution of the Presbyterian and Methodist Schools Association (PMSA – responsible for BBC) of 11 April 2017 authorising the Executive Manager to enter into negotiations for the purchase of the property for a price up to $6.25 million, apparently being the amount then estimated by a valuer. That is notwithstanding Mr Reynolds’ view that the property is poorly integrated with BBC. That apparent interest is unsurprising given, as Mr Buckley attested, schools will generally look at opportunities that may arise to secure adjoining land, given that such opportunities do not come along all that often. There was no evidence of what happened thereafter or what the PMSA’s current or future interest might be, but it suggests that the fact of the sale to the appellant, rather than to a community facility provider, cannot, without more, be taken to establish a lack of interest in the site as a whole (including Goldicott) from any community facility provider.
- Mr Perkins’ evidence, which I accept, is that within the life of the planning scheme, there will be a need for community purposes that can be accommodated on the site. The evidence does not justify a conclusion that, absent the approval of the material change of use, the site, including proposed Lot 21 will not, or is unlikely to, be put to a use consistent with its zoning.
- It was submitted that the northern portion of the land is significantly constrained by the heritage listing and its cul-de-sac access, such that there is only a limited amount of built form which could, in any event, be put to a community facility use. The heritage listing obviously constitutes a development constraint, at least in the area covered by the State listing, and, as Mr Perkins acknowledged, there is probably more scope for achieving greater gross floor area on proposed Lot 22 than proposed Lot 21. Mr Reynolds himself however, said “this is not to say it is not capable of community facility use”. Mr Perkins made the point that different sites have different constraints but he did not consider that the constraint meant that the site was unsuitable for its zoned purpose.
- There are, of course, well known examples of heritage buildings being used by educational establishments. The significance of the development constraint would depend on what is intended as a community facility use, which is presently unknown, but the potential use of the northern part of the site for a community facility cannot be dismissed. Further, as Mr Perkins attested and is discussed later in the context of considering the application for subdivision, the site, in its current unsubdivided state, presents greater scope for flexibility for future development consistent with the zoning. It has areas beyond the State heritage place which might provide options for achieving a development across the site which incorporates Goldicott in the north and areas beyond the State heritage place in the south.
- The current access is a potential constraint, the extent of which also depends upon the intended use. The access constraints and the way in which they are proposed to be addressed are discussed later. For the reasons given later the reconfiguration of a lot component will be refused, but the demolition component approved. The access for the site will become less constrained.
- Whilst there are constraints to development, I do not accept Mr Reynolds’ overall assessment of the effective loss of land for community facilities as of low consequence. The evidence fell short of establishing that.
- In looking at the supposed benefits, the Court was urged to have regard to what was said to be benefits arising from the proposed subdivision and the proposed demolition of the music room. In particular it was said that:
- (i)demolition of the music room would afford greater opportunity for public appreciation of Goldicott House from Grove Crescent, and
- (ii)the subdivision would make use of the proposed southern lot for a community facility more achievable.
- Those asserted benefits do not flow from the proposed material change of use. It was submitted, for the appellant, that they are relevant because s 220.127.116.11(4)(h) speaks of “the proposal” offering compensatory community benefits and the demolition and reconfiguration are components of the appellant’s broader proposal. In my view however, the reference to ‘proposal’ should be construed as the proposal in relation to the development for a use not contemplated in the relevant zone precinct. My ultimate conclusion is not however, dependent on that.
- The demolition of the music room and its benefit of opening up the view of the State heritage place is discussed later. I accept it is a benefit, but not one which tells in favour of the proposed material change of use. The claimed benefit for the use of proposed Lot 22, said to be obtained by reason of the reconfiguration and the consequent ability for it to be dealt with independently of the proposed northern lot, does not justify the northern part of the land being given over to a use other than a community facility. Further, and in any event, I am not persuaded that the appellant has established that the creation of Lot 22 would have the beneficial effect asserted. Indeed I consider it likely that it would have the detrimental effect to which Mr Perkins pointed and which is discussed below.
- The supposed benefit to come from the reconfiguration relies on Mr Reynolds’ evidence that:
- (i)the burden of the Goldicott’s (and its grounds) heritage constraints will be substantially removed from the new southern lot, and
- (ii)the size of the new southern lot will be a lesser investment commitment.
It should be noted that the appellant does not propose, at this time, to develop proposed Lot 22 for any community facility. Indeed, through its Senior Counsel, it expressly disavowed any present intention in relation to the post-subdivision development of Lot 22.
- Whilst the heritage considerations represent a development constraint, the extent to which that represents a burden to those who might otherwise wish to use the site for a community facility was not established. Some might see the potential to incorporate Goldicott House and its grounds into a broader development of the site as something of an opportunity. There was no evidence that the presence of the heritage listed Goldicott and its grounds had substantially inhibited, or was inhibiting, interest for using the site for community facilities, far less the extent to which it had or was having such an effect. On the state of the evidence, I am not prepared to find that it is likely to have a substantial adverse effect.
- Insofar as the second proposition is concerned, Mr Reynolds is not a valuer and so could not give evidence about value, or assumed relative value, or what the quantum of that might be, in order to express a view about how material that might be in affecting the likelihood of a community facility establishing on the proposed new southern lot.
- On the other hand, as Mr Perkins pointed out, the effect of the reconfiguration would be to reduce the area available for a community facilities use within the bounds of any one lot, which adds a constraint to the range and extent of community facilities uses that can be accommodated. Further, as is discussed in the context of the reconfiguration of a lot component, the proposed reconfiguration, by separating, in a titling sense, Goldicott from the land to the south potentially affects options for community facilities development across the site which incorporates Goldicott and its grounds on the State heritage place land and ancillary or other parts of a development on the land not so listed. Senior Counsel for the appellant did not cavil with that proposition. As Mr Perkins attested, there is more flexibility for development outcomes if the land is treated as whole than if it is treated as two lots.
- Much was sought to be made of the fact that the proposed use was consistent or compatible with the past use of Goldicott as a family residence and convent. Indeed it was submitted that the residential use of Goldicott by the Sisters fitted within the description of ‘dwelling house’. Little turns on that. Mr Buckley conceded that, from a town planning perspective, he could imagine Goldicott’s use as a dwelling house being an acceptable outcome once an analysis of the opportunities for community facilities had been exhausted. The potential compatibility of the use, from a first principles town planning perspective however, must be seen in light of the statutory planning intent as reflected in the zoning of the land. There are no matters which would cause me to conclude that the zoning is unsoundly based, has been overtaken by events, or ought otherwise be put to one side. The fact that the use which is proposed may well be a compatible use, from a general town planning perspective, does not constitute a compensatory benefit which justifies approval of a use not contemplated in the zone.
- It was also submitted that use of Goldicott as a dwelling house would likely have less impact on the character and amenity (including as to traffic) of Grove Crescent than a use consistent with the zoning. I accept that a dwelling house use would likely have little impact on Grove Crescent. Community facilities might generally be expected to generate higher activity, but the extent to which a particular facility would do so would depend on what it was. Those who reside in Grove Crescent should however, reasonably expect (from the zoning) that the site could be put to such a use. The evidence does not justify a conclusion that the zoning of the site is inappropriate by reason of potential impacts on Grove Crescent. Further, as Mr Perkins pointed out, the use of Goldicott as a dwelling house would locate a residential use proximate to a community facility, in the form of the sports field, with which there might be some conflict. I have not however, placed significant weight on either of the amenity arguments which, in my view, are not particularly strong.
- The supposed compensatory benefit upon which the appellant appeared to place greatest reliance is the contention that the proposed use represents the most compatible use for Goldicott House, given its heritage significance and thereby advances the intent and purpose of the Heritage Overlay Code (HOC) and associated Strategic Framework provisions. In particular, Overall Outcome 2(b) of the HOC is that re-use of a heritage place is compatible with its heritage significance. It was also submitted that approval would advance the purpose of the PA and, more specifically, ecological sustainability, by conservation of a place with special cultural, historic or social significance, being its cultural heritage significance.
- It was submitted, on behalf of the appellant, that the benefit meant that there is no inconsistency with the zoning provisions, because s 18.104.22.168(4)(h) of the CFZC is met. It was further submitted that if there is conflict with the zone provisions, because the use is not contemplated in the zone, but is nevertheless encouraged by the HOC and State Code 14, then the latter prevails.
- It may be noted that, at this stage, the appellant only seeks approval to allow the existing building to be used as a dwelling. It does not propose any works to restore or otherwise treat the building. The compensatory community benefit, in this respect, is said to be the fact that someone will be able to use the building as their residence.
- Section 1.5 of City Plan provides a hierarchy of assessment benchmarks. The effect of that, in this case, is that, to the extent of any inconsistency, the Strategic Framework, State Code 14 and Heritage Overlay would all prevail over the CFZC. It was submitted that there is relevant inconsistency.
- Zones organise the planning scheme area in a way that facilitates the location of preferred or acceptable land uses. City Plan does that by tables with categories of assessment for uses and by zone codes. In the case of the Community Facilities zone, it has already been noted that its purpose is to provide for community-related uses, activities and facilities. The function of overlays are different. They identify areas that reflect State and local level interests that have certain characteristics. The subject site is included in the Heritage Overlay and is subject to the HOC, the purpose of which is to implement the relevant policy direction in the Strategic Framework and to provide for the assessment of the suitability of development on land in the Heritage Overlay. That purpose is said to be achieved through overall outcomes which relate solely to heritage concerns.
- It was submitted, in the outline of argument for the appellant, that both the CFZC and the HOC purport to provide clear and exclusive guidance as to the type of use to which Goldicott should be put and that, in particular, the HOC purports to ‘cover the field’ with respect to re-use of a heritage place. I do not agree. That its provisions deal only with heritage considerations tells against the notion that the acceptability of the re-use of a particular place is comprehensively determined for the purposes of City Plan by reference to that code. If the appellant were correct, then it would be quite possible to have an otherwise inappropriate industrial use in a residential area, simply because its establishment was by way of the re-use of a heritage place for a use that was one of many that are compatible with its cultural heritage significance even though there were others which were also consistent with the zoning controls. I do not consider that is the intent or effect of the provisions.
- It was also submitted that this is a case of provisions with fundamentally different objectives, compliance with one of which could meaningfully alter, impair or detract from compliance with the other. The provisions do have different objectives, but they operate as layers of cumulative controls within the one planning scheme, so that a proposal, to be consistent with City Plan, must respect both, save to the extent that one yields to the other where there is inconsistency.
- Overall Outcome (2)(b) of the HOC does not require the re-use of a heritage place for its most compatible use from a heritage perspective. In the case of Goldicott it does not provide, nor on the evidence have the effect of requiring, that the place should be put to use as a dwelling house notwithstanding its zoning. In the course of oral submissions, Senior Counsel for the appellant accepted that the HOC does not apply to the exclusion of all else and that if compliance with both can be achieved then there is no inconsistency, but submitted that it would be “highly difficult” to imagine a community use of the kind contemplated in the precinct that would satisfy the statements of significance. That is a shift from the submission based on the most compatible use argument. The evidence does not persuade me that Goldicott could not be used consistently with its zoning and the HOC (discussed further below). I do not consider that this is a case of relevant inconsistency. I do not consider that there is inconsistency with State Code 14. I have considered the evidence in relation to the relative compatibility of the proposed use however, in the context of the appellant’s case on compensatory community benefit.
- The contention that a dwelling house use would be the most compatible, from a heritage perspective, for Goldicott House was put on the basis that it would resume residential use and respect Goldicott’s fabric. Goldicott has not been used as a conventional private dwelling house for more than a century. The convent involved residential use, but whilst Mr Marquis-Kyle described the Sisters’ pattern of occupation as being usual for a large family house, I accept Mr Perkins’ assessment that the use, which provided for the housing and spiritual life of the Sisters of Mercy and boarding for students, was more institutional in nature. In any event, there is nothing in the statements of significance (extracted later) of the place which suggest that the use of the building as a private residence once more is of importance to the retention of its significance.
- The statements of significance include that Goldicott is important in illustrating the retention of the ridge above Kensington Terrace and Sherwood Road as an area of substantial homes situated within extensive grounds, this pattern having been established in the early 1860s and that it is a rare example of an 1880s house in Toowong which has retained substantial grounds and outlook. Those things are demonstrated by Goldicott and its grounds notwithstanding that it was only used for a conventional private dwelling for a relatively short period of time. Goldicott is also important for its special association with the Sisters of Mercy and their work, but it is difficult to see why returning the place to use as a private dwelling is required to maintain that significance. I do not accept the submission on behalf of the appellant that the use of Goldicott as a dwelling is the only realistic means of conserving the attributed significance in relation to heritage criteria A, G and H.
- Mr Marquis-Kyle’s support of the proposal as the most compatible use appeared to be more on the basis of its likely respect for the building’s fabric. In his earlier 1997 conservation study for Goldicott, Mr Marquis-Kyle expressed the view that the most compatible use for the building was as a dwelling house and, in the joint report for this appeal he affirmed that view. The reason for that was explained in his individual report.
- Mr Marquis-Kyle is impressed by the “intactness” of Goldicott as a specimen of its type. He considers that the building’s character has remained that of a large family house notwithstanding its use as a convent and what he describes as the minor changes which have occurred from time to time and which he says have not taken away the fundamental attributes of the house. His opinion is that if Goldicott reverts to its original use as a family house then he would expect to see the pattern of minor changes to continue. He considers that maintenance of the fabric and adaptation to accommodate the taste and functional requirements of the resident as not difficult in such a building and easily regulated through normal heritage controls. He expected that the house would be bought by someone who valued it. In contrast he thought that the plan form and room arrangements within the house were unlikely to be appropriate for a community use and that uses involving public access would likely involve changes, such as ramps for equitable access and on site car parking provision, with adverse impacts.
- Under cross-examination, Mr Marquis-Kyle acknowledged that there are examples of important old homes that have become part of school campuses, but he considered that they have experienced a more extreme level of change. He also acknowledged that there are many community facilities which could adopt Goldicott House and its grounds as part of their fabric and operation, although he adhered to the view that a dwelling would be a more compatible use.
- Ms Woods (the heritage expert called by the respondent) pointed out that Goldicott had only been used as a family dwelling for a short period of time before becoming an institution for the housing and spiritual life of the Sisters and for boarding students. Changes were made to reflect that use. Goldicott presently has a dormitory with 11 bedrooms. It has 4 separate toilet cubicles, two shower rooms, two bathrooms and two kitchens. She expects that the return of Goldicott to a family dwelling would bring change. There may be a desire to demolish walls and open up space, insert ensuites and the like. Mr Perkins also observed that the internal layout is “a bit different to what anybody would expect when they walked into a house”. Whilst a community use might also bring some change, Ms Woods’ experience is that whilst architects can usually find uses for different sized rooms in community facilities, the requirements of people with respect to their homes can be more strident. She did not share the same level of concern as Mr Marquis-Kyle about the consequences of accommodating a community use, including equitable access. She did not regard a dwelling house as necessarily the most compatible use. Mr Kennedy agreed with Ms Woods, saying that whilst a residential use could be compatible, there are others that could be more so.
- The current application does not seek to make any changes to the fabric of Goldicott, but I accept that it is likely that some changes to the building would be sought by someone wishing to use the building for either a dwelling house or for a community facility. Senior Counsel for the appellant conceded that someone would likely apply to make some changes were the material change of use granted and acted upon. The extent and content of those changes are unknown and speculative. As Mr Marquis-Kyle pointed out, the fact of the heritage listing means that what happens to Goldicott’s fabric in the future will be controlled by that regulatory regime. It would be expected that the statutory controls would be exercised in such a way as to ensure that future development is compatible with Goldicott’s significance. It is not, in my view, possible to say that the use of Goldicott as a dwelling house is necessarily the most compatible or that use of Goldicott for a community facility would be incompatible or substantially less compatible.
- Even had I accepted (which I do not) that it is likely that a dwelling house use would prove to be more compatible, that would neither mean that a community facility would be inappropriate nor establish a benefit of any particular magnitude sufficient to persuade me that it was sufficiently compensatory to permit the material change of use, even accepting, for the purposes of argument, the construction of the relevant provisions of City Plan contended for on behalf of the appellant. Similarly, the proposed change of use is not justified by reference to the purpose of the PA, since the change of use is not demonstrated to be required for, or even to be significantly advantageous for, conservation of the place.
- For the reasons given, the material change of use is significantly in conflict with City Plan and the gravity of that conflict is, in my view, substantial. This component of the development application should be refused.
The Reconfiguration of a Lot Component
- The proposed subdivision was opposed on grounds relating to:
- (i)heritage issues;
- (ii)access issues, and
- (iii)planning issues.
(i) Heritage issues
- Heritage issues were raised both in relation to the proposed subdivision and in relation to the proposed demolition of the music room. The heritage controls are discussed in greater detail in the context of the demolition component because it became the primary focus of the debate on the heritage issues. Indeed at least insofar as the respondent is concerned, it was conceded that if the Court were to come to the view (as I have) that the music room could be demolished then “the other issues would not be sufficient to win the heritage point”. There were however, other parties who did not make that concession.
- The statement of significance for the place is set out later in dealing with the demolition component of the application. It focuses on Goldicott, but the grounds are also of relevance to aspects of Goldicott’s significance. The boundary of the proposed subdivision does not follow the boundary of the State heritage listing. If the subdivision proceeds the State heritage place would mainly be within the proposed Lot 21, but would partly be within proposed Lot 22. Ms Woods and Mr Kennedy were concerned that this would impact on the extensive grounds of the State heritage place. Those extensive grounds are referred to in the statement of significance, particularly in relation to criteria A and B.
- Ms Woods and Mr Kennedy considered that the proposed subdivision should follow the boundary of the heritage listing and pointed to PO2.2 of State Code 14 which provides, in cases where open space, or the relationship between built and open spaces at a State heritage place is identified as forming part of its cultural heritage significance, that development maintains a lot size and layout which permits viable adaptive reuse or conservation of significant heritage buildings and open spaces. Ms Woods and Mr Kennedy were concerned that the proposed boundary does not allow Goldicott’s extensive grounds to remain wholly within a single lot (which they saw as best practice). They also thought that the proposed subdivision would facilitate development on proposed Lot 22 which could have a detrimental impact.
- It was emphasised, on behalf of the appellant, that the subdivision does not affect the boundary of the State heritage place. The part of the place proposed to be included in proposed Lot 22 would remain on the Heritage Register and retain its protection. It would be excised from the lot on which Goldicott sits, but not from the heritage control. Concerns about future development on proposed Lot 22 can, it was pointed out, be addressed through assessment of future applications. Mr Marquis-Kyle considered that any future development made possible by the creation of Lot 22 could be properly managed by application of State Code 14 and City Plan. The following passage from the cross-examination of Ms Woods is relevant:
“Now, when the term “extensive grounds” is used there, you accept that there is no heritage significance attributed to anything outside the State heritage boundary, don’t you? ---In the State citation, yes, that’s correct.
And have you seen any local citation attributing significance to those areas outside the State citation? ---No, I haven’t.
No. So you would accept that when we’re considering this – and indeed, this is a reference, in any event, to the State citation – what you’re dealing with is the prospect that there would be detrimental impact on that part of lot 22 that would otherwise be within the State heritage listing boundary? ---That’s correct, yes.
And can I suggest to you that nothing about this application will alter the existence of the State heritage boundary? ---That’s correct.
And the extent of land otherwise covered by that boundary? ---That’s correct.
And nothing about this application will mean that future options for lot 22 will not have to be assessed by reference to the cultural heritage significance, not only of the part of the land that’s within the State heritage boundary, but also the land that falls within lot 21 within the State heritage boundary? ---Yes, the area, that slither of land that is common to both---
Yes?--- --- yes, will be assessed, yes.
It will be assessed. And it will be assessed, taking into account matters associated with the entire State heritage boundary. Do you agree?---I would hope so. Yes, I agree.
You would expect it to be, would you not?---Yes.
And in that context can I suggest to you that the highest you can place it is that something might be approved in the future that might result in some impact within that slither of land?---That is correct, looking at the future protection of the place, yes.
But that will be assessed by the relevant authorities by reference to consideration as to the cultural heritage significance not only of the slither of the land, but also the balance of the State heritage listing boundary?---That is correct, but by that time, if the application is successful, it will be on a different lot and will have access requirements - - -
Yes?--- - - - that may give light to impact. And those haven’t been looked at to assess whether that configuration is actually protecting the place.
Well, it will be required to protect the place if that’s thought necessary when an application is made?---That’s correct.
Thank you?---But under the guidelines you are supposed to look at future protection.
Yes. And you would agree, would you not, therefore, that any potential impacts on that slither of land, as you call it, can be properly managed by application of State Code 14 and the provisions of City Plan?---I would hope so, yes.
- To say that the subdivision does not affect the underlying heritage control will not always be a satisfactory response. The focus of PO2.2 of State Code 14 is lot size and layout. Subdivision, by creating lots of particular sizes and layout capable of separate disposition, can compromise the viability of adaptive reuse or the conservation of significant heritage buildings and open spaces. In this case the proposed subdivision keeps the majority of the State heritage place in proposed Lot 21 and only includes a slither, to the south of Goldicott, in the adjacent area of proposed Lot 22. Whilst the preference of Ms Woods and Mr Kennedy for the northern boundary of proposed Lot 22 to follow the boundary of the State listing is understandable, that is, as Senior Counsel for the appellant pointed out, impracticable and having regard to the extent to which land within the heritage place is proposed to be included in Lot 22 and its contribution which I accept, having regard to the evidence of Mr Marquis-Kyle, is relatively low, I do not consider that the proposal results, in the circumstances, in conflict with PO2 of State Code 14 or adverse impact on the cultural heritage significance of the place such as to cause conflict otherwise with the provisions of either State Code 14 or with City Plan (the provisions of which are dealt with in greater detail later in the context of the demolition component of the application).
- Apart from the fact that the identified Ficus and Mango trees, for which some concern was expressed, are protected by a Council Natural Assets Local Law listing, Ms Woods maintained a concern that the proposed development would adversely impact upon those trees. However, it became apparent that the concern related not to the subject proposed development, but to future potential development that might occur on Lot 22. In this context, in cross-examination Ms Woods confirmed that the Mango tree would remain on proposed Lot 21, and that her concerns were limited to the impacts upon that tree from future potential development of proposed Lot 22, with Ms Woods explaining that “it is the lack of information that doesn’t allow me to assess the future impact, which is why I continue to raise it.”
- As to the Ficus tree, Mr Healey (the traffic engineer engaged by the appellant) confirmed that a driveway to proposed Lot 22 could be constructed without adversely impacting that tree. Ms Woods could give no cogent evidence of risks to the Ficus, explaining that “we don’t know what the impact – future impacts on the tree will be”.
- Mr Kennedy could point to no adverse consequences that would be realised should the proposed reconfiguration of the lot proceed, but instead expressed concern about the consequences of future development on proposed Lot 22 depending upon what eventuated, explaining in his oral evidence:
“MR LITSTER: I don’t want to dwell on it so let’s try and get through it. In terms of the aesthetic aspect, you are concerned about the prospect of the reduction of the extensive grounds. And based on what you’ve said earlier today - - -?---Mmm.
- - - you are particularly concerned about the prospect of the reduction of those grounds in the context of development on proposed lot 22?---Yes.
Thank you. If we look at exhibit 2 – if the witness can see exhibit 2.
HIS HONOUR: And I – do I take your position to be that it doesn’t really matter what developed ultimately, as he wouldn’t want to see any development there; is that your?---No, no, no, no, I don’t. But you – I don’t want to see a couple of high-rise buildings behind the building when you’re trying to make it picturesque, it’s not going to look very good at all.
So some form of development might be okay in your view, but - - -?---Yeah, sure, sure.
I just wanted to understand what your view was?---Something that doesn’t impact, that’s all.
MR LITSTER: All right. So your position is not no development on proposed lot 22, your position is some development on proposed lot 22, but needs to be assessed?---We need to know what the development is - - -
Yes?--- - - - to assess it, yes.
Yes. And so you are not saying that proposed lot 22 should not be developed?---No.”
- The subdivision does not conflict with the provisions of the heritage controls and would not, in any event, have a significant adverse effect. The subdivision component of the development application ought not be refused for heritage-related reasons.
(ii) Access issues
- Somewhat belatedly the tenth and eleventh co-respondents by election raised concerns about access which led to the following order on 4 June 2019:
“1. The issues in the appeal are to include Overall Outcome 2(j) of the Subdivision Code (at City Plan 2014, s. 22.214.171.124), limited to whether the reconfiguration to create proposed Lot 22 could compromise the safe and efficient operation (including for pedestrians) of the driveway that provides access to 47 and 49 Grove Crescent.
2. By 6 June 2019, the Appellant is to notify any solution in response to paragraph 1 of this Order upon which it intends to rely in the appeal.”
- Overall Outcome 2(j) of the Subdivision Code provides:
“Development for reconfiguring a lot ensures safety and amenity of the intended uses and does not compromise the safe and efficient operation of existing and future lawful uses and activities in the vicinity of the site.”
As a consequence of the issue being raised, the appellant proposed an amended lot configuration boundary at the north-eastern boundary between proposed Lot 21 and Lot 22 and submitted a proposed driveway layout.
- The properties at 47 and 49 Grove Crescent obtain access to the head of the cul-de-sac of Grove Crescent via a concrete driveway which, in part, extends to the north in front of part of the frontage of the subject site. The concrete driveway provides access not just for 47 and 49 Grove Crescent, but for the existing easement across the subject site. As Mr Healey pointed out, the arrangement effectively consumes a significant amount of the head of the cul-de-sac.
- The application as lodged assumed that the concrete driveway would also be traversed by the new access for proposed Lot 22. The appellant’s amended proposal is to shift the proposed boundary between proposed Lots 21 and 22 further north, so that the extent of any overlap between the proposed new access for proposed Lot 22 and the existing concrete driveway is minimal. That is to be achieved by reducing the frontage of proposed Lot 21. That is beneficial, insofar as the use of the concrete driveway is concerned, because it reduces the potential for traffic movements to result in conflict.
- The appellant and Council appointed traffic experts who produced a joint report on 28 June 2019. They considered certain concepts for the purposes of determining whether an appropriate access solution is achievable. The joint report records as follows:
“18. The experts agree that:
(i) If the Court decides that the proposal should be approved in full, including the MCU for Goldicott House to be used as a dwelling, then the revised access driveway proposal as shown in Appendix C … would be satisfactory and would address Mr Holland’s concerns.
(ii) If the Court decides that the proposal should be generally approved, but with refusal of the proposal for Goldicott House to be used as a single dwelling, then neither of the driveway proposals (Appendices B and C) would be acceptable, and in those circumstances an access arrangement having a combined single driveway for Lots 21 and 22 would be required, together with appropriate access easements.”
- Consistent with that recommendation, the appellant contended for the adoption of conditions which:
- (a)replace the line of subdivision to the north-western corner of the Lot 21/Lot 22 boundary to that considered by the traffic experts; and
- (b)place a future obligation on Lot 22 to provide any easement that is reasonably necessary for vehicular access in favour of proposed Lot 21 from Grove Crescent through proposed Lot 22 at such time in the future as proposed Lot 21 is developed for community facilities.
- Having regard to the decision on the material change of use component, the relevant recommendation in the event of subdivision is for a single driveway with appropriate easement access. Mr Healey’s evidence, which I accept, is that that is readily achievable. It is unnecessary for me to deal with the terms of the condition since, for the reasons given later, the subdivision will be refused on other grounds.
- The joint report went on to deal with:
- (i)the tenth co-respondent by election’s concerns as particularised in a document dated 12 June 2019;
- (ii)the eleventh co-respondent by election’s concerns as particularised in a document dated 12 June 2019, and
- (iii)the respondent’s particulars in relation to risk to pedestrians.
None of those matters caused them to alter their view that appropriate access can be achieved via whichever is the applicable option of those referred to in paragraph 18 of the joint report.
- The views of the traffic engineers were not contradicted by any evidence of like experts. Mr Price, who appeared as agent for Ms Costello and Ms Musgrave at various junctures, was permitted to give some evidence, but that was as a lay witness. The evidence of the experts also withstood cross-examination, including by Mr Price. I accept their evidence.
- On 2 September 2019, after all parties had closed their cases and completed oral submissions, the eleventh co-respondent by election wrote to the Court attaching a document entitled Respondent’s Consolidated Grounds for Refusal, and which included, in “tracked changes”, an additional matter which she indicated had been incorporated by the tenth co-respondent by election and her, namely:
“6. That the approval of the Reconfiguration of Lot 2, without approval of the Material Change of Use application, would, (sic.) be contrary to sound town planning principles:
(c) It fails to comply with Overall Outcome 2(b), (c) & (j) of section 126.96.36.199 The Subdivision Code (sic.), relevant to the creation of suitable allotments: The revised proposal for reconfiguration has the effect of limiting the locations and design of future driveway access for both Lot 21 and Lot 22, so that they could only be in direct conflict with the CityPlan Transport, Access, Parking and Servicing Code and Policy, thus not allowing future access to allotments to be deemed either safe or efficient (PO1 Table 188.8.131.52 page 223) and demonstrating that the allotments do not have suitable dimensions. (note: details included, as the 10th and 11th co-respondents (sic.) final submission on this subject omits to include a concise statement).”
Despite being raised in an unconventional manner, the appellant expressly did not oppose the Court considering the new contention.
- This issue reflects an area of attack on the evidence of the traffic engineers that they failed to give sufficient regard or weight to the extent to which the concepts which they considered would represent a departure from the Transport, Access, Parking and Servicing Code (TAPS Code) and supporting planning scheme policy (TAPS Policy). Indeed it was submitted, in the written submissions of the tenth and eleventh co-respondents by election, that the appellant had failed to demonstrate that a lawful and approvable access could later be provided to the proposed allotments.
- It should be remembered that the purpose of the joint report of the traffic engineers was not to assess, against the TAPS Code and TAPS Policy, an application for approval to construct an access for a particular development, but rather to consider a lately added issue which was confined to whether the reconfiguration could compromise the safe and efficient operation of the driveway that provides access to 47 and 49 Grove Crescent.
- Further, and in any event, it is not the case that non-compliance with the TAPS Code or TAPS Policy necessarily renders a proposal unacceptable and incapable of being approved. The PA contains provisions which contemplate that applications with relevant non-compliance may still be approved irrespective of whether the applications are subject to code assessment or impact assessment. Given the evidence of the traffic engineers, there is no reason to conclude that approval for appropriate access could not be achieved in the event the subdivision was approved. The subdivision ought not be refused on the basis of access issues.
(iii) Planning issues
- The core concern with the subdivision, from a planning perspective, is its potential to constrain the utility of the site, particularly in circumstances where nothing is currently known about its intended future use. It was contended that the proposal, by failing to identify the proposed use of Lot 22, does not:
- (a)Ensure the continued range of accessible community facilities and protect the land allocated for community facilities, contrary to the Strategic Framework, Table 184.108.40.206, Element 2.4, SO1, SO2, L2.2;
- (b)Ensure that the use integrates with the surrounding area and provides greater and direct compensatory benefits that meet identified needs, contrary to the Strategic Framework, Element 2.4, SO2, and L2.3;
- (c)Enable community facilities and services to provide broad community access to their facilities, contrary to the Strategic Framework, Element 2.4, SO2, L2.4;
- (d)Achieve the purpose in paragraph 220.127.116.11(1)(a) of the Community Facilities zone code or provide for, enable or ensure or otherwise achieve the overall outcomes of the Community Facilities zone code, paragraphs 4(a), (b), (c), (d) and (f), or the note to paragraph 4 thereof, or Overall Outcome (8);
- (e)Comply with Overall Outcomes 2(a), (b) and (c) of the Subdivision Code and PO1, AO1.1 and AO1.2 of the Performance Outcomes and Acceptable Outcomes and Table 18.104.22.168 B, Part 4;
- (f)Permit the proposed use to be known before or at the time of consideration of the reconfiguration application, which makes difficult the assessment of the desirability of the reconfiguration proposal.
Particular attention, in this regard, focused on (e) and (f).
- The subdivision would create two new lots (i.e. Lots 21 and 22). The applicant sought approval for a particular use of proposed Lot 21 (dwelling house). That proposed change of use was refused and the appeal against the Council’s decision in that respect will, for reasons already given, be refused. The appellant still wishes its subdivision to be considered but did not nominate any alternative intended use for Lot 21. In such circumstances, nothing is known about the future intended use of proposed Lot 21. In that context, the respondent contends that to permit the subdivision where the material change of use has been refused would be contrary to sound town planning principles because it would also constrain the utility of Lot 21.
- Overall Outcome (a) of the Subdivision Code provides as follows:
“(a) Development for reconfiguring a lot facilitates the creation of suitable lots for their intended use while not adversely impacting on the lawful use or identified values of other premises.”
- It was contended that the appellant cannot show compliance with the overall outcome because nothing is known of the intended use. It has already been observed that nothing is known of the intention for Lot 21 given that the dwelling house use will be rejected. Insofar as proposed Lot 22 is concerned, the appellant, in its development application, described the intended use as simply “as per the Community Facility zoning for the site”. It is unnecessary to dwell on the difficulty with that description (particularly given the range of uses contemplated by the zoning) however, because, in the course of the appeal, Senior Counsel for the appellant confirmed that it was not contended that his client had any intention at all in relation to the development of proposed Lot 22, including for any of the purposes consistent with its zoning. It would, instead, look at its options.
- It was contended, for the appellant, that it is not necessary to identify the actual use to which the lot is intended to be put post-subdivision, but that it is, instead, sufficient to consider the suitability of the proposed lot for uses consistent with its designation within the scheme. It was submitted that it is appropriate to treat the reference to ‘intended uses’ as the “objectively measurable intentions” of the scheme. I disagree.
- Overall Outcome (a) must be read in context, including in the context of Overall Outcomes (b) and (c) which are as follows:
“(b) Development for reconfiguring a lot creates a lot of an appropriate size, dimensions and arrangement consistent with the outcomes of the zones, zone precincts, neighbourhood plans and overlays which apply to the site.
(c) Development for reconfiguring a lot provides lots and an arrangement of lots for lawful uses consistent with the uses, zones, zone precincts, neighbourhood plans and overlays which apply to the site and that meet the provisions of the planning scheme and responds to the patterns of development in the locality.”
- Overall Outcome (b) deals with lot size, dimensions and arrangements, whilst Overall Outcomes (a) and (c) deal with use, but do so in different ways, using different terms. Overall Outcome (a) is concerned with the suitability of lots for “their intended use” while not adversely impacting on the lawful use or identified values of other properties. Overall Outcome (c), on the other hand, is concerned not with the identification of an intended use, but with the provision of lots (and an arrangement of lots) for “lawful uses” which are both consistent with the relevant planning scheme provisions and responsive to the patterns of development in the locality. There is, in my view, no warrant to read Overall Outcome (a) as if the reference to “their intended use” was a reference to uses consistent with the site’s zoning such as are contemplated in Overall Outcome (c). They are different concepts dealt with differently in different provisions.
- The conclusion in relation to the overall objectives is strengthened by a consideration of Performance Outcome 1 and its corresponding acceptable outcomes, which relevantly provide as follows:
Section A – General performance outcomes and acceptable outcomes for reconfiguring a lot
Development creates a lot with dimensions which enable lawful uses appropriate to the intended use and consistent with zones, zone precincts, neighbourhood plans and overlays which apply to the site and are intended for the locality under the planning scheme.
Development provides lots which enable the relevant outcomes and standards required by the planning scheme to be complied with for the intended use.
Development provides lots with dimensions in compliance with Table 22.214.171.124.B.
Table 126.96.36.199.B sets out minimum lot dimensions and size for various zones.
- Performance Outcome 1 requires development to create lots with dimensions which enable lawful uses:
- appropriate to the intended use; and
- consistent with zones, zone precincts, neighbourhood plans and overlays which apply to the site, and
- are intended for the locality under the planning scheme.
All three are required in order to comply with the performance outcome. The creation of lots which enable lawful uses consistent with the provisions of the planning scheme is insufficient.
- It may also be observed that the note to s 188.8.131.52(2), which refers to circumstances where a subdivision application is made in conjunction with an application for a material change of use and provides that the subdivision will not be approved until the application “for the intended change of use” has been determined, is consistent both with the intended use being that which is proposed upon subdivision and with the Council’s concern to know of that for the purposes of determining the subdivision application.
- It was submitted, for the appellant, that its construction ought be preferred for reasons which may be summarised as follows:
- (i)there is no clear instruction in City Plan, that an application for a material change of use be made contemporaneously with an application for reconfiguring a lot;
- (ii)interpreting Overall Outcome (a) as relating to a specific intended use may cause inconsistency with Overall Outcomes (b) or (c);
- (iii)even where a material change of use approval for the ‘intended use’ is given, there is no requirement that it occur following the subdivision;
- (iv)a condition of the subdivision which sought to confine the subsequent use of the land to a lesser range of uses than that permitted by the zoning would be unlawful,
- (v)the requirement to identify an intended use would encourage sham applications.
- It is, with respect, difficult to maintain the last of those submissions given that there is already such a requirement, albeit not in City Plan. The form, approved pursuant to s 282 of the PA, for making a development application specifically asks the question “for this development, how many lots are being created and what is the intended use of those lots”. The form has a space for the applicant to indicate the number of lots for ‘residential’, ‘commercial’, ‘industrial’ or ‘other, please specify’ use. That is a straightforward question. It does not call for an examination of the intention of the relevant planning scheme. It is for the applicant to advise of the intention. The form provides for a declaration, by the applicant as to the truth of the information provided and a note that it is unlawful to intentionally provide false or misleading information. It should not be assumed that the requirement to identify the intended use of the subdivided lots is being dishonestly answered or that it encourages sham applications.
- The second submission is put on the basis that:
- (a)there might be an inconsistency between the requirements for the intended use and the provisions of the planning scheme referred to in Overall Outcome (b), and
- (b)the focus is on ‘uses’ in Overall Outcome (c), but on the respondent’s construction, a specific intended use in Overall Outcome (a).
- It must be remembered that these overall outcomes are not alternatives. There is nothing surprising in the proposition that the draftsperson of these provisions made provision for lots which, upon subdivision, would have utility both for their then intended use following subdivision and, more generally, for uses consistent with the relevant provisions of the planning scheme. There is nothing troubling about the different focus of the provisions. That hypothetically a situation might arise in which it is impossible to comply with all three is not a satisfactory basis to adopt the appellant’s construction. It is a matter to be resolved in assessing the particular development application.
- The balance of the submissions relate to whether the subdivision could, in any event, be effectively ‘tied’ to an intended use at the application, approval or post-subdivision stage. Insofar as the application and approval stages are concerned there are indications, in the notes to the Subdivision Code, that it contemplates applications for a material change of use for the intended post-subdivision use occurring prior to, or in conjunction with, the subdivision application and for the latter to be able to be conditioned having regard to the former. Reference has already been made to the note which provides that the material change of use component of applications made in conjunction with subdivision applications will be assessed first. There is a further note in the Subdivision Code that reads:
“Note – This code may be applied in conjunction with or subsequent to a material change of use and the sealing of a plan of subdivision may be subject to matters relating to the material change of use.”
- Further, to the extent that a development permit for a material change of use is required for the intended use following subdivision, it might be difficult to comply with the requirement of PO1 for lots with dimensions which enable “lawful uses” appropriate to the intended use unless approval for the intended use is sought prior to, or in conjunction with, the subdivision.
- It is unnecessary to dwell further on these issues or to explore the extent to which a subdivision approval can be conditioned in a way which relates to a particular proposed use. Even if all of the appellant’s propositions about the inability to tie a subdivision approval to an intended use are accepted, they do not compel the construction contended for. There is, as already observed, nothing troubling about the proposition that a subdivision may be required to be suitable not just for a range of possible uses, consistent with the planning scheme provisions, but also for the use to which it is then intended to be put following subdivision, even if it is possible that such a use might not eventuate or, having eventuated might, at some future time, cease. I reject the construction contended for on the appellant’s behalf.
- Whilst the above provisions apply generally, the particular characteristics of the Community Facilities zone are relevant. As Mr Buckley pointed out, the uses in the Community Facilities category are variable and rarely homogenous and not easily anticipated compared with land included in a more conventional land use zone. This is reflected in Table 184.108.40.206.B which, for most zones, specifies minimum lot dimensions and sizes. The Community Facilities zone however, falls under the “other zones” category for which the minimum dimensions and area is described as “use/activity specific”. In this case nothing is known about the likely post-subdivision use of either Lot 21 or Lot 22, save that Lot 21 will not be used as a dwelling house, since the appellant’s appeal in that regard will be dismissed. Community facilities covers a very wide range of possible uses. Even the precinct activity group “education purposes” encompasses a significant range of options. No detailed analysis has been done of the suitability of the proposed lots for any particular community facility.
- Mr Reynolds said that it is reasonable that not all lots will be suitable for all purposes and, for a range of reasons, he saw proposed Lot 22 as having utility for future use consistent with its zoning. Mr Perkins and Mr Buckley did not cavil with the proposition that proposed Lot 22 could, if created, be put to some use consistent with its zoning. They were however, concerned about the potential adverse impact on the utility of the site by proceeding with subdivision in the absence of knowledge of intended post-subdivision use. Whilst the appellant can establish that, post-subdivision, Lot 22 could potentially be put to some possible use consistent with its zoning, it has not established that it would be suitable for anything for which there is any intention for the land being used post-subdivision. Proceeding to subdivision as proposed in those circumstances risks adversely affecting utility, by curtailing options.
- The focus, pre-trial, was on the appellant’s failure to nominate an intended use for Lot 22 and on that lot’s post-subdivision utility, since the appellant applied to use proposed Lot 21 for a dwelling house. The impact which the proposed subdivision may have on the utility of proposed Lot 21, cannot however, be ignored, particularly as the appellant seeks approval of the reconfiguration even if (as is the case) its material change of use is refused. In this regard, the appellant’s efforts to justify the material change of use by reference, in part, to the development constraints on proposed Lot 21 arising by reason of the State heritage listing becomes something of a double-edged sword. It did not mount an alternative case of the utility of proposed Lot 21 for a community facility purpose other than to say that its proposed access arrangements would provide for that.
- An effect of the subdivision would be to leave Goldicott on a lot which is covered with the State heritage constraint, whilst putting the land which is mostly not the subject of that listing in a separate lot capable of separate disposition and so potentially beyond use as part of a community facility development which incorporates Goldicott. As Mr Perkins pointed out, it might be, for example that, absent the proposed subdivision, Goldicott could be part of a community facilities use across the site with ancillary facilities or other parts of the development, such as on-site car parking, being constructed on land beyond that in the State heritage place. That illustrates his point that subdivision may affect the utility of proposed Lots 21 or 22 or both and that the site as a whole is more suitable for community facilities than in its proposed subdivided state.
- The reconfiguration does not comply with the Subdivision Code, particularly Overall Outcome 2(a) and Performance Outcome PO1. The gravity of the non-compliance is, for the reasons given, substantial. The reconfiguration of a lot should be refused.
Demolition of the Music Room
- There is a modest timber building, proximate to the Grove Crescent entrance to the site, which was, in the past, used for teaching music as well as speech and drama. It is referred to in the history section of the site’s entry in the Queensland Heritage Register as having been moved onto the site by 1967, but the evidence now is that it was there by 1936. The appellant wishes to demolish it, so as to achieve better site access. The Chief Executive approves of that. None of the grounds of refusal of the application related to the proposed demolition, but the Council and the other parties now resist it on heritage grounds.
(i) State Code 14
- The Chief Executive’s assessment, as the referral agency, was carried out against the State Development Assessment Provisions. Within those provisions the relevant code is State Code 14: Queensland Heritage.
- The purpose of State Code 14 is as follows:
“The purpose of this code is to regulate development on and adjoining a state heritage place to:
1. conserve cultural heritage significance for the benefit of the community and future generations
2. minimise or mitigate unavoidable impacts on cultural heritage significance
3. maintain or enhance the setting and streetscape adjoining the state heritage place, and views to and from the state heritage place, where these aspects form part of its cultural heritage significance.
In addition, if it is demonstrated that there is no prudent or feasible alternative to development on a state heritage place destroying or substantially reducing the place’s cultural heritage significance, ensure that the place’s significance is interpreted and incorporated as appropriate.”
- There are notes to that statement of purpose. The first note refers the reader to the entry in the Queensland Heritage Register (the Register) for the description of the cultural heritage significance of a State Heritage Place (SHP). The applicable criteria for development on a SHP differ depending on whether the development proposes to destroy or substantially reduce the cultural heritage significance of the SHP. It was common ground that the demolition of the music room would not have that effect. Consequently PO1 – PO3 are the applicable criteria. Of those PO1 and PO2 are in issue. They provide as follows:
PO1 Development of a state heritage place:
a. minimises and mitigates unavoidable detrimental impacts on its cultural heritage significance
b. provides opportunities for public appreciation of its cultural heritage significance
c. where adaptive reuse is proposed, is compatible with its ongoing conservation management.
No acceptable outcome is prescribed.
PO2 Where open space, or the relationship between built and open spaces at a state heritage place is identified as forming part of its cultural heritage significance, development:
No acceptable outcome is prescribed.
- Central to the assessment of compliance or otherwise with each of the provisions in dispute is the identification of the cultural heritage significance of the SHP. The central dispute was whether the music room makes, or should be regarded as making, any, and if so what, contribution to the cultural heritage significance of the place such that demolition of the music room may have a detrimental impact on that significance.
- The Code contains a glossary of terms which relevantly provides that:
“Cultural heritage significance of a state heritage place is described in the entry for the place in the Queensland Heritage Register…”
That is consistent with the note referred to earlier.
- The glossary says that the Queensland Heritage Register is the list of places that have State-level cultural heritage significance. A note states that places in the Queensland Heritage Register have been assessed as satisfying one or more of the heritage criteria and have been entered in accordance with the requirements of the Queensland Heritage Act 1992.
- Pursuant to the Queensland Heritage Act 1992, an entry in the Register for each SHP must contain certain things. They include a description of the place, information about its history and, most relevantly, a statement about the cultural heritage significance of the place related to the cultural heritage criteria (a statement of significance). Whilst the Chief Executive can make some changes to the entry in the Register to, amongst other things, correct errors or update information, a statement of significance must not be changed, by the Chief Executive, other than in a minor way, without the agreement of the owner of the place and the Queensland Heritage Council.
- The effect of those provisions is that the cultural heritage significance of a SHP, for the purposes of the Code, is that described in the statement of significance in the entry for the place in the Register, which has statutory constraints on the Chief Executive’s power to change it. In this case the entry in the Register (the entry) contains a description of the place, information about its history which, it seems, was updated as recently as 11 December 2018 and a statement of significance. It is the statement of significance which describes the cultural heritage significance of the place. It makes no mention of the music room.
- It was pointed out, for the respondent, that the music room is referred to in other parts of the entry and appears in a photograph and on a plan in the entry. That shows an awareness of the music room, but does not mean that the entry ascribes any importance to it in terms of the cultural heritage significance of the place. Attention must ultimately focus on the statement of significance, although the other parts of the entry may be relevant if they assist in the proper construction of the statement of significance. I would not, with respect, follow Barnes & Anor v Southern Downs Regional Council & Ors (No 2) to the extent that it suggests to the contrary.
- In addressing the cultural heritage significance of the place the heritage and history experts discussed the same heritage criteria as those addressed in the statement of significance, but they sought to themselves identify the features of the place that demonstrate those criteria. That is not appropriate to the extent that it seeks to, in effect, alter the statement of significance.
- The experts turned their attention, in particular, to the music room and to its importance in relation to the heritage criteria notwithstanding the failure of the statement of significance to make any reference to it. Mr Marquis-Kyle explained that, at the time he prepared a conservation study in 1997, he believed the music room to have been moved to the site in the 1960s. That is consistent with what is said in the history section of the entry in the Register. The conservation study concluded that the music room “is not considered to be sufficiently important to warrant its retention”. Having been engaged in this appeal however, he looked at historical aerial photography not available to him in 1997. That showed the music room as already in place in 1936. He duly passed this information onto the other experts. He noted that the Burra Charter provided, in an explanatory note, that an understanding of cultural significance may change over time as a result of new information. He thought it appropriate to re-examine the music room’s significance, which is what the experts did. Having done so there was agreement amongst the heritage experts that the music room has cultural significance but disagreement about the degree of its significance.
- Mr Marquis-Kyle described the cultural significance of the music room as of a very low order, slight, minor or very small and as not requiring its retention. There was some speculation about whether the failure of the statement of significance to refer to the music room was the result of the information then available as to the date of its appearance on the site, although, as has already been noted, the history section of the entry has been otherwise updated. The other heritage experts disagreed with Mr Marquis-Kyle’s assessment of the importance of the music room. They attributed greater importance to it and to its retention. The historians also disagreed with one another about the music room, with Mr Bell ascribing it no importance, especially in the absence of any reference to it in the statement of significance. Ms Hill disagreed. For the reasons given later I prefer the assessment of Mr Marquis-Kyle.
- It was submitted, for the appellant, that the exercise carried out by the experts, particularly in relation to the music room, was irrelevant and that, in identifying the cultural heritage significance of the SHP attention should not have waivered from the statement of significance. Similarly, it was submitted, on behalf of the Chief Executive, that the matters of cultural heritage significance are to be ascertained from the statements of significance in the Register and that this Court’s role in interpreting those statements and assessing potential impacts does not involve it undertaking its own assessment of cultural heritage significance, whether by reference to assessments of experts or by reading the entry in the Register to try to determine whether there are additional matters of cultural heritage significance which are not already reasonably reflected in the statements of significance. It was submitted for the respondent, on the other hand, that the experts were right to carry out a re-assessment in light of the new information. Attention was drawn to the following:
- (i)the purpose of the Code, which, amongst other things seeks to “conserve” cultural heritage significance;
- (ii)the glossary which refers the reader to the Burra Charter for “conservation” and contains a note that “conservation means all the processes of looking after a place so as to retain its cultural heritage significance”, and
- (iii)provisions of the Burra Charter, particularly Articles 6.1 and 6.5 under the heading “conservation principles”. Article 6.1 describes the Burra Charter process as first understanding cultural significance then development of policy and finally management in accordance with the policy. Article 6.5 provides that: “changes in circumstances, or new information or perspectives, may require reiteration of part or all of the Burra Charter process.” There was also reference to part of an explanatory note to Article 5 (which deals with values) which says that a cautious approach is needed, as understanding of cultural significance may change.
- Insofar as the note to the glossary for “conservation” refers to the “processes” for looking after a place, it may be noted that those articles fall within conservation principles rather than conservation processes. In any event, I do not accept the above provisions justify, in effect, revisiting the statement of significance in the context of assessing a development application in circumstances where the Code expressly ties cultural heritage significance to the description in the entry and where there are statutory controls regarding changes to the statement of significance.
- It was submitted that even if the cultural heritage significance of the place is to be ascertained from the statement of significance, that statement ought be construed as extending to the music room. I accept that the statement of significance is for the place and that the place has significance. That does not mean however, that every feature within the place contributes to its significance. The place includes the music room but that does not mean that the music room is necessarily of consequence in terms of the cultural heritage significance of the place or is relevant to any particular criterion any more than the presence of the carport within the place means that it necessarily is of consequence. Attention must focus on the statement of significance. It was submitted on behalf of the Chief Executive (and similarly for the appellant) that, properly construed, the statements of significance for the place are directed to Goldicott House and to certain parts of the land (its extensive grounds, trees and terraces) which extend the significance to the limits of the place, but they do not ascribe importance to the music room, even though it lies within the boundary of the place.
- The statement of significance is as follows:
“Statement of Significance
Mount St Mary’s Convent is a place that satisfies one or more of the criteria specified in s.35(1) of the Queensland Heritage Act 1992 as evidenced by, but not exclusive to, the following statement of cultural heritage significance, based on criteria:
The place is important in demonstrating the evolution or pattern of Queensland’s history
Mount St Mary’s Convent [Goldicott] was erected during the second phase of Toowong’s development, following the opening of Toowong railway station in 1875, and is important in illustrating: 1. the retention of the ridge above Kensington Terrace and Sherwood Road as an area of substantial homes situated within extensive grounds, this pattern having been established in the early 1860s. 2. the emergence of ribbon development along Brisbane’s late 19th century railways.
The place demonstrates rare, uncommon or endangered aspects of Queensland’s cultural heritage
Mount St Mary’s Convent [Goldicott], erected in 1885, was the first poured concrete house in Brisbane, and probably in Queensland. It is significant as an early and very rare Queensland experiment in concrete housing, and is important in demonstrating a high degree of technical achievement. The concrete construction was innovative and remarkable for its time. The place is significant for its association with engineer Charles Lambert Depree, and his contribution to concrete construction implementation and technology in 19th century Queensland.
Mount St Mary’s Convent [Goldicott] has retained a considerable proportion of its original grounds which allow the house to remain remote in the midst of extensive development. This is a rare example of an 1880s house in Toowong which has retained substantial grounds and outlook.
The place has potential to yield information that will contribute to an understanding of Queensland’s history
It is significant as an early and very rare Queensland experiment in concrete housing, and is important in demonstrating a high degree of technical achievement. The concrete construction was innovative and remarkable for its time.
The place is important because of its aesthetic significance
Established trees and terraces contribute to its aesthetic significance by contributing to the building’s picturesque qualities. The house has a number of early fittings, including the entrance hall light fitting and various joinery items.
The place is important in demonstrating a high degree of creative or technical achievement at a particular period
Mount St Mary’s Convent [Goldicott], erected in 1885, was the first poured concrete house in Brisbane, and probably in Queensland. It is significant as an early and very rare Queensland experiment in concrete housing, and is important in demonstrating a high degree of technical achievement. The concrete construction was innovative and remarkable for its time. The place is significant for its association with engineer Charles Lambert Depree and his contribution to concrete construction implementation and technology in 19th century Queensland.
The place has a strong or special association with a particular community or cultural group for social, cultural or spiritual reasons
Mount St Mary’s Convent [Goldicott] is significant also for its special association with the Sisters of Mercy and their important educational, cultural and pastoral work in Toowong parish for well over 90 years.
The place has a special association with the life or work of a particular person, group or organisation of importance in Queensland’s history
Mount St Mary’s Convent [Goldicott] is significant also for its special association with the Sisters of Mercy.”
- The statement of significance commences by saying that the place satisfies one or more of the criteria as evidenced by “but not exclusive to” what follows. The respondent sought to make something of that, to the extent that what follows makes no mention of the music room. Senior Counsel for the appellant attempted to demonstrate that those words were an unauthorised bureaucratic addition, but it is unnecessary for me to address that because, in my view, the statement of significance should, at least for present purposes, be confined to what follows.
- There is a statutory requirement that the entry on the Register include a statement about the cultural heritage significance of the place related to the cultural heritage criteria. That is what is done in what appears after the introductory words. It is there that one finds the description of the cultural heritage significance of the place for the purpose of State Code 14. There is no basis to seek to identify such significance by reference to matters not described in the statement of significance and it would be wrong to use the ‘but not exclusive’ words either to, in effect, review and change the statement of significance in a way not otherwise authorised by the legislation or to carry out a de novo consideration of the significance of the place having regard to new information. Some significance was attributed to the same words in Barnes & Anor v Southern Downs Regional Council & Ors (No 2) (supra), but I respectfully remain of the view just expressed.
- A perusal of the statement of significance related to the cultural heritage criteria supports the submission for the Chief Executive that they attribute significance to the place because of Goldicott House and aspects of it and its grounds and its associations, but not because of the music room. In that regard:
- (i)Criterion A: The statement of significance relates to Goldicott House and its importance in illustrating certain things, rather than to the music room or anything it illustrates. The description refers to Goldicott illustrating retention of the ridge as an area of substantial homes situated within extensive grounds, a pattern which established in the early 1860s. The music room is situated within the grounds but it is the extensive nature of the grounds rather than the later placement within them of the music room which is of relevance.
- (ii)Criterion B: The statement of significance again refers to Goldicott “erected in 1885” and makes no mention of the music room. The first paragraph relates to Goldicott’s method of construction and association with the engineer, Mr Depree. The second paragraph relates to the extent to which the ‘house’ has retained a considerable proportion of its “original grounds” which allow it to remain remote in the midst of extensive development and a rare example of an “1880s house in Toowong which has retained substantial grounds and outlook”. The focus is on the extent of retention of the original substantial grounds, not the music room which was later located within them.
- (iii)Criterion C: The statement of significance can only be referring to the Goldicott building, as it speaks of its concrete construction. It was suggested by Ms Hall, Ms Woods and Mr Kennedy that the music room could help fulfil the criterion as having potential to yield information about early outbuildings, their use, transportability, construction type and also potential to yield information about Auchenflower House, if that is where it came from. That is irrelevant to the statement of significance.
- (iv)Criterion E: The statement of significance refers, in the first sentence, to the “building’s picturesque qualities” and what contributes to them. The second refers to the early fittings of the ‘house’. The statement is properly understood as not extending to the music room. The first sentence does not identify the music room either as that which holds the picturesque qualities (Goldicott House) or one of the things which contributes to them. The music room is obviously irrelevant to the second sentence. Ms Woods thought that the music room “adds to the aesthetic significance of the house by contributing to the picturesque quality of the western terrace … by providing privacy as a visual screen”. The statement of significance does not attribute aesthetic significance to Goldicott because of the picturesque quality of the western terrace to which the music room contributes. Rather, it attributes aesthetic significance because of the building’s (Goldicott’s) picturesque qualities to which the established trees and terraces contribute. The statement of significance says nothing about privacy or visual screening. Mr Kennedy sought to make something of the partial screening effect of the music room on Goldicott House as contributing to Goldicott’s picturesque qualities. That is dealt with and rejected further later, but again finds no reflection in the statement of significance. Ms Woods also thought that the music room made a contribution as an outbuilding. There is also no foundation for that in the statement of significance. Whilst the statement of significance does not particularise “the building’s picturesque qualities”, it does refer to the elements beyond the building itself (the established trees and terraces) which contribute to those qualities. They do not extend to the music room. I do not accept that the music room contributes to the aesthetic significance attributed in the statement of significance.
- (v)Criterion F: The statement of significance refers only to the Goldicott building “erected in 1885”, its concrete construction and association with the engineer Depree. The music room is irrelevant.
- (vi)Criteria G – H: Each of these statements of significance speak of a ‘special association’ with the Sisters of Mercy. Criterion G also speaks of a special association with their important educational, cultural and pastoral work in Toowong parish for well over 90 years. It was submitted, against the appellant, that these statements of significance are not confined to Goldicott House and its grounds and that criterion G in particular should be seen as embracing the music room in light of its reference in other parts of the entry, including the reference in the history section, to its use in the context of cultural pursuits such as music and speech lessons.
In each case the significance is said to reside in “Mount St Mary’s Convent [Goldicott]”, which is the same description used in relation to the descriptions of significance for criterion A, B and F. Further, each of the descriptions of significance for Criteria G and H state that Mount St Mary’s Convent [Goldicott] is significant “also” for those reasons, suggesting that the thing of significance is the same as that which was the subject of the previous descriptions of significance, none of which related to the music room. Although the draftsperson otherwise distinguished between Goldicott the house/building and other elements of the broader place, particularly its extensive grounds, trees and terraces, which contribute to its significance, no mention is made, in respect of these criteria, to any element other than Goldicott.
That reference in the statement of significance in relation to Criterion G to a special association between the subject matter of the significance and the Sisters and their work more broadly, described as their “educational, cultural and pastoral work in Toowong parish for well over 90 years” suggests that the reference was to the convent proper rather than to the music room. It is the convent which served as the base for the Sisters and their work as a whole, throughout the parish over that nominated period. The music room was one building used by some Sisters for some purposes at one location for a part of that period.
Whilst it is true that other parts of the entry acknowledge the presence of the music room, it is in those other parts of the entry clearly distinguished from the convent proper and is not referred to in the statement of significance. The description of the place commences by saying that “Mount St Mary’s Convent is a substantial one-storeyed concrete house…” before referring to the fact that “a simple timber building dominates the entrance”. The history commences by saying “this substantial single-storeyed concrete residence was erected in 1885”, before going on to record that it (the residence) was named Goldicott and that “Goldicott was Brisbane’s first poured concrete house”. Later the Sisters “took up residence in Goldicott, which was renamed Mount St Mary’s Convent in 1903”. It then records that “by 1967 a small weatherboard building had been moved onto the convent grounds for use as a music room”. The site plan separately annotates the primary building as Goldicott and the small building at the entrance as the music room. The photographs, from 1995 and 2009, of the main building are described as “Mount St Mary’s Convent” whilst the photograph from 2009 which shows the music room is described as (underlining added) “Mount St Mary’s Convent, view of complex from entrance gate”.
- The statement of significance, properly construed, attributes no importance to the music room in terms of the cultural heritage significance of the place related to the cultural heritage criteria. That is consistent with the positions of the appellant and the Chief Executive. Given my conclusion it is difficult to see how the proposed demolition of the music room offends any of the relevant provisions of the Code.
- Learned Senior Counsel for the respondent submitted that it is possible for demolition of something not referred to in a statement of significance (the music room) to affect the significance of something which is (Goldicott). He drew attention, in particular, to that part of the joint report of the heritage experts where they agreed with Ms Hill (with whom Mr Bell disagreed) that the features of the convent which demonstrate the statement of significance in the entry with respect to criterion G include the music room. It must be noted however, that the list of things said by Ms Hill to demonstrate that part of the statement of significance also include the former convent (Goldicott) itself including the dormitory extension and its grounds. It is evident that the experts were looking to see what it is about the whole of the place that could now be said to demonstrate its significance in terms of criterion G and H according to their fresh assessment. In so doing they impermissibly went beyond the statement of significance as I have construed it.
- For the reasons which have been given, the proposed demolition of the music room does not offend the relevant State Code. Attention next turns to the provisions of City Plan.
(ii) City Plan
- City Plan has a number of provisions relating to the appropriate protection of heritage places. The strategic outcomes for an outstanding lifestyle city include that the city’s built cultural heritage is appreciated, protected and managed. The specific outcome and land use strategies in relation to the city’s identity include the following:
Brisbane’s important buildings and places that are important to the city’s history are protected.
Heritage places and precincts of important local, city-wide or State cultural heritage significance or special significance to Aboriginal people are identified and protected in accordance with the principles of The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance.
The adaptation or re-use of heritage places for purposes that retain the significance of the place is supported.
Development in or adjacent to identified heritage places or precincts protects the cultural heritage significance of the place or precincts.
- That strategy is implemented by application of the Heritage Overlay and HOC. Overlays identify areas in the planning scheme that reflect State and local level interests and have one or more of the following characteristics:
- (a)there is a particular sensitivity to the effects of development;
- (b)there is a constraint on land use or development outcomes;
- (c)there is the presence of valuable resources;
- (d)there are particular opportunities for development.
- The purpose of the HOC is to:
“(a) Implement the policy direction in the Strategic framework, in particular Theme 2: Brisbane’s outstanding lifestyle and Element 2.1 – Brisbane’s identity.
(b) Provide for the assessment of the suitability of development on land in the Heritage overlay.”
- That purpose will, it is said, be achieved through the following overall outcomes:
“(a) Development on or adjoining a heritage place does not detract from the cultural heritage significance of that heritage place, including any Aboriginal cultural values.
(b) Re-use of a heritage place is compatible with its cultural heritage significance, including any Aboriginal cultural values and retains its heritage significance.”
- Land in the Heritage Overlay is identified in the Heritage Overlay map and is included in sub-categories one of which, the state heritage place sub-category, applies to part of the site and another of which, the local heritage place sub-category, applies to the whole of the site. The performance outcomes and acceptable outcomes for development in the local heritage place sub-category include the following:
Section A – If in the Local heritage place sub-category
Development provides for the future protection of the heritage place and does not damage or diminish its cultural heritage significance.
Note – Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with The Australia ICOMOS Burra Charter.
No acceptable outcome is prescribed.
Development is based on and takes account of all aspects of the cultural significance of the heritage place.
Note – Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter – Cultural Significance.
No acceptable outcome is prescribed.
Development protects the fabric and setting of the heritage place while providing for its use, interpretation and management.
Note – Where necessary, a heritage impact assessment report is prepared verifying the proposal has been prepared in accordance with the Guidelines to the Burra Charter – Conservation Policy.
No acceptable outcome is prescribed.
Development is based on the issues relevant to the conservation of the heritage place.
Note – Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter – Procedures for Undertaking Studies and Reports.
No acceptable outcome is prescribed.
- The provisions require the identification of a place as a heritage place, the sub-category or sub-categories it falls within and the content of its cultural heritage significance. The expression cultural heritage significance is not defined in the HOC. It is defined in the PA by reference to the schedule to the Queensland Heritage Act in which it is defined as:
“cultural heritage significance, of a place or feature of that place, means its aesthetic, architectural, historical, scientific, social, or other significance, to the present generation or past or future generations.”
- The HOC is supported by the Heritage Planning Scheme Policy (the HPSP). The HOC includes a note that it is the HPSP which describes the process by which local heritage places have been included in the overlay and gives guidance on the preparation of a heritage expert assessment report. The HPSP states that it:
“(a) provides advice regarding the criteria for including premises in the Heritage Overlay, and
(b) outlines the information to be included in a heritage impact assessment report for a development application.”
- The criteria for premises to be included in the Heritage Overlay mirror the criteria under the Queensland Heritage Act, save that they have been changed to refer to the city or local area rather than Queensland. As for an entry in the State register, a citation is to include a description of the place, a statement of its history and a statement of its cultural heritage significance. The policy acknowledges that a citation may not have been prepared prior to including premises in the overlay, but states that the Council will prepare a citation when a development application is lodged, to assist in assessment against the HOC. A heritage impact assessment report is to take into account existing documentation, including an entry in the State register and any citation or documentation prepared by the Council. A note states that where a citation exists for a site in the local heritage place sub-category, the heritage impact assessment need only address the cultural significance items listed in the citation.
- In ISPT Pty Ltd v Brisbane City Council & Anor, Kefford DCJ, having traversed the above provisions as well as those in the Queensland Heritage Act relating to a local heritage register, concluded that in a case where there is a citation for a local heritage place, for the purpose of assessment, it is the statement of significance upon which attention should focus. I respectfully agree.
- In this case no separate citation was prepared by the Council to support the site’s identification on the overlay in the local heritage sub-category. None was done at the time of its entry. None was done when the development application was made and none has been done since. The evidence was that is not unusual where the site is already on the State register and so is the subject of a statement of significance in the entry on that register which is accepted and used by the Council. A landowner should not be left in doubt about the basis on which the land is included in the overlay. If the Council wishes to adopt the State’s statement of significance then it would not seem to be too much to expect it to do so in a clear and express way in a citation.
- An editor’s note in the HOC refers the reader to the Council’s heritage database for a statement of local cultural heritage significance for mapped local heritage places. The entry for the subject site is as follows:
Mount St Mary’s Convent – Goldicott House (601601)
Other heritage statuses:
Queensland Heritage Register
At 50 Grove Street, TOOWONG, 4066
Ritual – Religious Order
Accommodation – House
Construction in 1885
Boom (1880 – 1892)
Walls – Masonry – Concrete
Roof – Corrugated iron
Association – Sisters of Mercy
Association – Charles Lambert Dupree
Queensland Heritage Register - 601601
- Although the boundary of the local heritage sub-category on the subject site does not follow the boundary of the State listing, there was no suggestion that the place has any local significance of a different kind or extent than its State significance. Council’s heritage database entry for the place contains a link to the relevant entry in the State register. Senior Counsel for the respondent was content for the Court to proceed on the basis that the Council’s database incorporates, by reference, the State register and, in particular, that the basis for the place’s local significance is the same as its significance on a State basis. More specifically, Senior Counsel was content to proceed on the basis that, for the purposes of the note to the HPSP, a citation exists for the site by reason of the incorporation, by reference, of the State’s statement of significance such that the note would only require the heritage impact assessment report to address the cultural significance items in the statement of significance. The argument proceeded on that basis. Accordingly, Kefford DCJ’s approach in ISPT Pty Ltd v Brisbane City Council (supra) is apposite.
- Senior Counsel for the respondent again pointed to the provisions of the Burra Charter, but this time in the context of the provisions of City Plan. It must be remembered however, that the Burra Charter is a document which describes a process not all aspects of which will fall to applicants for development approval or assessment managers or, on appeal, this Court, to implement. The Charter is prepared for a range of entities that provide advice, make decisions or carry out works. The Charter describes a process which has an understanding of cultural significance as a prelude to the development of policy. In that regard it promotes the preparation of written statements of cultural significance, which, it says, should be periodically reviewed.
- In the context of Brisbane, it is the Council that, pursuant to City Plan and the HPSP, decides whether premises meet the criteria to be included in the Heritage Overlay and it is the Council that is responsible for preparing a citation which includes a statement of significance which, in this case, it says it did by incorporation, by reference, of the entry in the State register. Those are not things the Council does in its capacity as assessment manager nor are they things for which an applicant for development approval is responsible. Such an applicant is expected, under the HPSP, to address the citation. The references to the Burra Charter should not be taken to require the applicant to, in effect, undertake a review of the statement of significance.
- Accepting that the local heritage place citation is the State’s entry, read with necessary changes to refer to the city or local level, and adopting the same construction as has previously been determined, I am satisfied that the proposed demolition of the music room does not detract from the cultural heritage significance of the heritage place for the purposes of City Plan. It does not offend the strategic outcome, specific outcomes or land use strategies referred to and is consistent with the purpose and overall outcomes of the HOC.
- The proposal does not conflict with PO1 of the HOC. Whilst PO1 speaks of protecting the heritage place, I do not consider that necessarily requires retention of everything that is on the site. If I am wrong about that then the conflict is one without any significant adverse impact and would not lead me to refuse the demolition. The proposal does not conflict with PO2 or PO4, given my approach to the identification of the cultural significance of the place.
- PO3 requires protection of the fabric and setting of the heritage place. Setting is the immediate and extended environment of a place that is part of, or contributes to, its significance and distinctive character. The music room is not part of nor does it contribute to the significance of the place for the purposes of City Plan. I do not consider that the provision should be read as referring to elements of the fabric of a building that is situated on the place but to which no significance attaches and which does not contribute to significance of the place. If there was said to be some non-compliance in this respect, it would, again, be non-compliance without significance and would not cause me to refuse the demolition.
(iii) Relevant matter
- It was submitted, for the respondent, that the “new information about the importance of the music room” is at least a “relevant matter” for the purposes of the PA. I accept that new evidence of the music room having some cultural significance or, more relevantly, of contributing to the cultural heritage significance of the place notwithstanding the failure of the statement of significance to recognise that and, consequently, the failure of the State Code or City Plan to make it relevant, is capable of being a relevant matter. That does not require the Court to take in into account. Section 45(5)(b) provides that impact assessment ‘may’ be carried out against, or having regard to, any other relevant matter. There is a discretion as to whether or not to take such a matter into account. I have decided to exercise my discretion against taking it into account given that the effect of doing otherwise would be to go behind a statement of significance, which potentially has important consequences for the applicant land owner and which the State Code adopts and which the Council was also content to adopt (and has never sought to supplement or change for the purposes of its citation) and which, at a State level, has never been sought to be changed and in respect of which there is a statutory regime which regulates the circumstances in which it can be changed. Had I taken it into account I would have for those reasons, declined to give it significant weight.
(iv) Alternative findings
- My ultimate conclusion, that the demolition of the music room ought be approved, would not have altered even had I:
- (i)construed the statement of significance as extending to the music room;
- (ii)accepted that the relevant provisions otherwise required assessment of the importance of the music room notwithstanding its omission from the statement of significance, or
- (iii)exercised my discretion to have regard to (and give some weight to) the evidence of the significance of the music room, beyond anything in the statement of significance.
In that regard I prefer Mr Marquis-Kyle’s opinion in relation to the level of importance of the music room, even assessed afresh, in the better knowledge of the length of time it has been on the place.
- Attention focused mostly on heritage criteria (g) and (h) although the experts also dealt with the music room in relation to criteria (c) and (e). Insofar as (c) is concerned, Ms Woods and Mr Kennedy contended in the joint report, that the music room “should be included” under this criterion as having potential to yield information about early outbuildings, their use, transportability, construction type and also as having potential to yield information that will contribute to an understanding of Auchenflower House.
- The prospect of the building being found to have originated from Auchenflower House is speculative and based on slight evidence. In any event, as Mr Marquis-Kyle said, the information the building might yield about Auchenflower House would likely be trivial. It is difficult to see the potential of the building to yield significant information about the other things referred to given that, as Mr Marquis-Kyle said, its fabric demonstrates nothing more than the ordinary and typical mode of building construction of the early 20th century. Ms Hill confirmed that there is nothing about the music room that would help inform anyone about any connection with Auchenflower House. Ms Woods eventually made a similar concession. Mr Kennedy, in cross-examination, said that he did not see the music room as meeting the threshold on its own. I do not consider that the music room makes any significant contribution to the significance of the place in relation to criterion (c).
- Insofar as criterion (e) is concerned it has already been observed that the statement of significance did not identify the music room as the subject matter of aesthetic significance nor one of the things it mentioned (established trees and terraces) as contributing towards that which is of aesthetic significance. There is no reason to suppose that the new information about the length of time over which the music room has been on the site would alter that.
- It has already been observed that Ms Woods considered that the music room holds some importance in providing privacy to the western terrace. In the joint report she and Mr Kennedy agreed with Ms Hill’s opinion that the music room may have been located in its present position for privacy as well as convenience. Ms Hill’s statement to that effect followed her observation that the music room’s location “seems rather pragmatic, but its siting may also have had other benefits.” As Mr Bell pointed out in his individual report however, the notion that the music room was positioned so as to provide privacy is entirely speculative, being based on no evidence. I do not accept Ms Woods’ proposition, even if, for the purposes of argument, it was accepted that the provision of privacy went to aesthetic significance.
- In his testimony, Mr Kennedy called in aid the published guidelines for assessing cultural heritage significance to contend that the extent to which the music room screens the view of Goldicott House contributes to its picturesque qualities. He did so in order to contend that a ‘grand view’ provided by demolishing the music room would not be picturesque. That argument is addressed and rejected later in the context of the appellant’s reliance on the benefit of demolition in opening up the view to Goldicott.
- There is, in my view, no convincing basis to find that the existence of the music room as an outbuilding or the extent to which the music room currently screens the view of Goldicott or the western terrace positively contributes to the importance of the place because of its aesthetic significance.
- Criteria (g) and (h) relate to a “special association” with, in this case, the Sisters of Mercy and in the case of criteria (g) for social, cultural or spiritual reasons which, in the statement of significance has been said to be “their important educational, cultural and pastoral work in Toowong parish for well over 90 years”. A “special” association is not one which is ordinary, common or usual. I accept the point made by the fourth co-respondent by election to the effect that the special association, although one with the Sisters and their work, may be appreciated by others (not just the Sisters). I also accept the submission on behalf of the Chief Executive to the effect that the fact that the music room formed part of the history of the use of the land by the Sisters and may have some nostalgic value for individuals who were taught there does not necessarily constitute any aspect of cultural heritage significance.
- The evidence was that:
- over the entire period that Goldicott was used as a convent approximately 50 nuns would have lived there with about 10 being in residence at any given time.
- not all sisters were involved in teaching activities. Some were involved in supporting roles at the convent, or in other works in the broader parish.
- not all of the sisters who were involved in teaching taught music (or the other activities for which the music room was used) and the music room was not the only place at which music was taught. There was evidence of music having been taught in the under-croft school entrance and in the convent.
- because of its small size, the music room would not have been suitable for “mass education” classes in music.
- the music room was not on the grounds when Goldicott was turned into a convent, but was moved onto the site by 1936.
- there is no evidence of the music room being used beyond the mid-1980s.
- There is nothing about the built form of the music room which assists in demonstrating the relevant special association. It is, as Mr Marquis-Kyle pointed out, an ordinary and unremarkable building. It is not apparent from its fabric that it was either originally intended, or later adapted, for teaching music. As was submitted for the appellant, it is “a plain and non-descript building that tells nothing of its past use”. As Mr Marquis-Kyle also pointed out, whereas there are things about the fabric of Goldicott which can be positively appreciated with the benefit of knowledge of historical use by the Sisters, that is not so in the case of the music room.
- Under cross-examination Mr Marquis-Kyle accepted that it is not a necessary precondition of cultural heritage significance that the fabric be evocative of an association, although he thought it would be rare for there to be significance in an element that is, itself, completely unevocative.
- Ms Woods and Mr Kennedy placed a deal of weight on the length of the association between the music room and the Sisters and that music was part of the Sisters’ cultural and educational mission. Mr Marquis-Kyle acknowledged that length and regularity of use are relevant factors. They are not however, determinative.
- Whilst the Sisters made use of the music room over a substantial period of time, the activities therein were conducted by some of them only, were of a kind otherwise carried out and represented a subset of the broader range of work conducted by the Sisters in the Toowong parish over the much longer (> 90 years) period of time that they were based in the convent at Goldicott. As Mr Marquis-Kyle attested the music room is only part of the story, it is not central in the way that Goldicott House is.
“… the music room is such an ordinary and unremarkable building … that gives evidence of something ordinary and unremarkable every – every school conducted by the Order, probably, had places where music was taught. And we don’t go looking at – at them for this kind of special significance by association.”
- Goldicott, a substantial and important building which served as a satellite convent for the Sisters of Mercy and the base from which they carried out their work in Toowong parish for over 90 years, has been recognised as having not only an association, but a special association with the Sisters of a kind which meets heritage criteria (g) and (h). The music room, on the other hand is a small, plain, unremarkable building which was used by some of the Sisters for part of the period of their occupation of Goldicott for part of their ordinary work in teaching certain cultural pursuits. Whilst the music room is part of the association between the place and the Sisters, it is difficult to see that it makes any or any substantial contribution to the relevant special association which, I am satisfied, resides, or at least overwhelmingly resides, in Goldicott House. Accordingly demolition of the music room would not detrimentally affect the cultural heritage significance of the place or would not do so to any meaningful extent.
- I also accept, as I was urged to do both by the appellant and the Chief Executive, Mr Marquis-Kyle’s evidence to the effect that demolition of the music room would likely have some positive effect by opening up the view to and from the heritage place. Presently the view from the cul-de-sac is dominated by the view of the music room. This inhibits the opportunity to observe Goldicott and its grounds in order to appreciate, or better appreciate, some of the things which gives it cultural heritage significance.
- Mr Marquis-Kyle explained the benefits of enabling views in his evidence:
“So the music room does harm to the significance of the site?---In this respect, that it blocks a view to and from the site, it makes – it obscures the house from the view on the street and it, to some extent, blocks views from the house out into the setting, and that aspect of the way the house relates to its setting because it’s sitting on the top of the hill, that – that’s an attribute of significance. That’s why Depree, the designer and owner of the house, took some pains to buy that piece of land and build exactly where he did. So the music room that may have come – did come later – may have been positioned there in an opportunistic way, although we don’t have clear evidence about why it was put exactly where it was, but the effect is that it does harm – did harm to that aspect of views to and from the site – to and from the house.
Now, if – if you – if you stand in Grove Crescent in – in the cul-de-sac and look at the house, your view is blocked by the music room. So that’s – well, yes, you can walk to a different spot, and you can squint around the end and get a bit of a view. So it’s – it’s not like you’ve walled it off completely. But it has a detrimental effect. And the Burra Charter would call the removal of the building restoration. I mean, that’s not the way restoration is used in ordinary speech. But removing something is restoring the fabric to an earlier state.”
- He also explained, in re-examination:
“What part of the story of this place, in heritage terms, does that view tell?---The view as revealed?
Yes?---Mostly it’s – it – having that view available, revealing the view makes it more apparent – easier to understand the historical significance of the place as an example of a large villa built, as they tended to be, on the best site in the suburb.
So that’s what – the Mr Depree side of the story. Does it tell any other part of the story?---You can see the connection with the – with the – with the parish church nearby, but you can also see, as we see in page 10, the – the dormitory wing, to the south of the – the priest’s [sic] villa.”
- Mr Kennedy considered that the opened up view would be a ‘make-up’ view of not much merit in terms of heritage. It was also pointed out that, at the time Goldicott was built Grove Crescent did not exist and that the view which would be opened up by demolition of the music room would be to the western side of Goldicott and the boarding house extension, rather than to the front of the building. None of that however, dissuades me from concluding, having regard to the evidence of Mr Marquis-Kyle, that the extent to which the view would be opened up by the removal of the music room would afford a materially better opportunity to now observe the heritage place and that the better opportunity would be of material benefit.
- Mr Kennedy pointed to the published guidelines for assessing cultural heritage significance which give the following explanation of picturesque attributes:
- picturesque attributes
Picturesque attributes emanate from experiential contact with a place, unfold from a number of viewpoints and rely on the composition, silhouette or texture to provoke a strong emotional response. Having picturesque qualities implies that a place holds a sense of mystery, intrigue or complexity.
Homesteads that have developed over a long period, are often described as illustrating a picturesque system of values, largely because of the patina of age and ad hoc composition of elements, including materials and forms.”
- He suggested that the way that the view of Goldicott opens up as you walk and look around the corner of the music room is quite mysterious and interesting, whereas a grand view would not be picturesque.
- The guidelines do not provide that something is not picturesque if it can be observed without visual screening or obstruction. The guidelines give, as examples, well known and visually accessible places which have picturesque qualities related to the built form. They are St John’s Cathedral which is a gothic revival style building with picturesque qualities and Maryborough Customs House and Residence, which manifests a complexity of composition and texture associated with the picturesque. The guidelines also draw attention to the garden at El Arish, Stanthorpe as an example of something designed to be appreciated from a multiplicity of positions as the viewer moves through its components, but Goldicott is unlike that example.
- In this case it is Goldicott House which is identified as having picturesque qualities. As the description in the entry says, the house is situated on a ridge and the property is terraced and has established vegetation. The established trees and terraces have been identified as contributing to the building’s picturesque qualities. The cultural heritage significance of the place otherwise includes that it illustrates the retention of the ridge as an area of substantial homes situated in extensive grounds and is a rare example of an 1880s house in Toowong which has retained substantial grounds and outlook. There is no sufficient basis to conclude that the cultural heritage significance of Goldicott House is, in some way, enhanced by using the simple timber building known as the music room to impede views of it and its grounds or, more particularly, that by performing that role, the music room has since its arrival on the site, come to contribute to the picturesque qualities of Goldicott or that those qualities would be adversely affected by the music room’s demolition. I do not accept that the extent to which the music room screens the view of Goldicott contributes, in any positive, meaningful way, to Goldicott’s picturesque qualities. Indeed I accept Mr Marquis-Kyle’s evidence to the effect that its demolition would be beneficial in this respect.
- It was also submitted that the demolition of the music room would not secure an open view of the heritage place in the long term, as there is still the carport and as other things may occur which affect that view over time. Whilst that may be so, the music room currently presents a very significant visual barrier and its removal offers a not insignificant immediate improvement in visual access which should be taken into account.
- It was also submitted by the tenth and eleventh co-respondents by election in particular that the music room could potentially be moved rather than demolished or that, at the least, the appellant had not investigated that alternative. That was not something that was squarely raised in the issues or considered by the heritage experts in their joint report. A relocated music room was noted on some drawings produced by Mr Price and were used at various times to argue and examine witnesses, including about access arrangements. In the course of his evidence Mr Kennedy made it clear that whilst he would not rule out a relocation of the music room, he would have to consider it in the light of an overall development. Having been shown the Price drawings, Ms Woods said that the relocation of the music room would need to be very carefully considered. Mr Marquis-Kyle was also shown the Price drawings and whilst saying that he did not find the concept obnoxious, made it clear that was on the basis that an assessment of the relocation was carried out.
- The suggestion that the music room could acceptably be relocated, rather than demolished is little more than a hypothetical possibility. It does not change the fact that the proposed demolition offers some benefit which can be taken into account.
- Accordingly, had I taken account of the evidence of the extent of importance of the music room beyond the statement of significance I would have concluded that:
- the music room makes no or very little contribution to the relevant ‘special association’ for the purpose of criteria (g) and (h) and makes no contribution for other criteria;
- demolition of the music room would have no or no significant impact on the cultural heritage significance of the place and would not materially adversely affect conservation or protection of the heritage place;
- there is no offence to the relevant provisions of the State Code or City Plan. In that regard, expressions in planning instruments such as “does not detract” or “does not diminish” are conventionally not interpreted in an absolute way;
- if, contrary to 3, an insignificant effect gives rise to conflict, I would, given the lack of gravity of the consequences of non-compliance, exercise my discretion to approve the demolition component in any event. In that regard the legislation does not require the assessment manager or, on appeal, the Court to refuse an application in the event of conflict;
- whilst there is no longer a requirement to establish grounds to justify approval in the face of conflict, I would nevertheless conclude that, in the circumstances, the public interest in enforcing the provisions to prevent demolition is, in this case, low and outweighed by the public interest in gaining greater visual access which would flow from demolition of the music room.
- The appeal against the refusal of the other components of the development application will, for the reasons given elsewhere, be dismissed. It was submitted that, in those circumstances, the appeal against this component ought also be dismissed, since the proposed demolition, absent approval of the other components, would lack utility. It was submitted, for the appellant, that there is no requirement to establish utility but that it is relevant that the demolition in this case would have some utility.
- Reference was also made to the Burra Charter and, in particular to Article 3 of the conservation principles which provides for what it calls a cautious approach and to Article 3.1 which states:
“3.1 Conservation is based on a respect for the existing fabric, use, associations and meanings. It requires a cautious approach of changing as much as necessary but as little as possible.”
- Similarly the preamble to the Burra Charter under the heading “why conserve” states:
“The Burra Charter advocates a cautious approach to change: do as much as necessary to care for the place and to make it useable, but otherwise change it as little as possible so that its cultural significance is retained.”
- These provisions might conceivably be of relevance to the proposition, discussed earlier, that it is not necessary to demolish the music room because it could potentially be moved, as well as to the contention that its demolition in the context of the refusal of the other components of the development application is unnecessary as lacking utility. Read in context however, the provisions are aimed at respecting and taking a cautious approach to changing that which is of cultural significance or contributes to cultural significance. So, for example, if Goldicott House is used for a community facility in the future then it might become necessary to make some changes (e.g. for equitable access) but one would, consistently with the principle, limit the changes to as little as possible.
- Article 3 follows Article 2 which is the first of the articles dealing with conservation principles. Article 2 provides as follows:
“2.1 Places of cultural significance should be conserved.
2.2 The aim of conservation is to retain the cultural significance of a place.
2.3 Conservation is an integral part of good management of places of cultural significance.
2.4 Places of cultural significance should be safeguarded and not put at risk or left in a vulnerable state.”
- The explanatory note to Article 3 is consistent with its concern being in relation to the significance of a place. It provides:
“The traces of additions, alterations and earlier treatments to the fabric of a place are evidence of its history and uses which may be part of its significance. Conservation action should assist and not impede their understanding.”
- The passage from the preamble expressly identifies the purpose of the ‘cautious approach’ as the retention of cultural significance. The note to Article 5 (referred to earlier) states that the article should not be used to justify actions which do not retain cultural significance.
- For the reasons given earlier the music room should be taken to make no contribution to the cultural heritage significance of the place. In those circumstances, I do not regard its demolition as contrary to conservation principles. If that is wrong, and the principle is offended such that there is consequent offence either with the State Code or with City Plan, and most particularly, the HOC, then for the reasons previously given, it is non-compliance without significant adverse impact, given the, at best, very low level of contribution that the music room makes to the cultural heritage significance of the place. I would not have refused the demolition component of the application on that account.
- Insofar as the utility point otherwise is concerned, there was no provision of the legislation or City Plan to which the Court’s attention was directed which required demonstration of utility, but Senior Counsel for the appellant relied upon the utility of the demolition in certain respects as a factor weighing in favour of the exercise of discretion to approve that component of the development application.
- It was contended, for the appellant, that the demolition of Goldicott has utility in two respects even if the other components of its development application are refused. One of those is the benefit to be obtained by opening up the view into the heritage place, which has already been discussed. The other is the benefit of assisting to facilitate future development of the site by making better provision for access. It was submitted, against the appellant, that the asserted utility for access cannot be sustained in the absence of knowledge of the future use and having regard to the example of the playing field, which obtained access via an easement, without the need to demolish the music room.
- The traffic engineering evidence has been discussed in the context of the proposed subdivision component of the development application. The existing arrangement and, in particular, the presence of the music room proximate to the head of the cul-de-sac presents a not insignificant constraint to achieving access which would facilitate the development of the site, including the vacant southern part of the site, for its zoned purpose. Mr Healey’s evidence, which I accept, was that a 6 m driveway would be required for a community facilities use unless it was a very low traffic generator, in which case the driveway could be 4 m, but it would be difficult even to achieve a 4 m driveway in the area to the south of the music room.
- As has already been observed, the area at the head of the cul-de-sac is effectively restricted, not least by the access arrangements for the driveway to 47 and 49 Grove Crescent. Significantly increasing traffic movements by using the existing shared crossover for access to a new community facilities use would obviously be undesirable. The potential solution lies in pushing the access sufficiently to the north as the appellant proposed, but the music room stands in the way. An access to the north of the music room to a driveway which snakes around the music room before providing access to development in the southern part of the lot would potentially intrude to a greater extent on the State heritage place.
- In the circumstances and notwithstanding that the particular intended use has not yet been identified, it can be concluded that the demolition of the music room would have utility in facilitating better provision for access to the site and thereby would assist in improving the site’s suitability for uses consistent with its zoning. That is not something which overcomes or outweighs an otherwise inappropriate demolition. Rather the approval of an otherwise acceptable demolition application has a degree of utility in this respect, notwithstanding refusal of the other components of the development application.
- The demolition component ought be approved notwithstanding the refusal of the other components of the development application.
- For the reasons stated:
- the appeal is allowed in part;
- the Council’s decision insofar as it refused the application for building work (demolition) is set aside and will be replaced with a decision to approve that component of the development application subject to conditions to be fixed after hearing from the parties;
- the appeal is otherwise dismissed.
Disregarding those who withdrew.
Section 45 Planning and Environment Court Act 2016 (PECA).
Section 43 PECA.
Section 46 PECA.
Section 45(5) PA.
Section 60 PA.
Section 326 Sustainable Planning Act 2009.
 QPEC 16 at -.
 QPEC 33 at -.
 QPEC 3 at -.
Notes are part of the planning scheme – see s 1.3.2(3) of City Plan.
Ex 4 para 18.
Ex 2 pg 6.
and that the proposal is safe, well designed and integrated with the surrounding area zone.
T10-32, 33 – see also Perkins T13-40.
Ex 4 para 76.
Ex 4 para 74(b)(ii).
Ex 7 para 22.
Ex 4 para 77(f).
Ex 4 para 74(b)(ii), para 77(c); Ex 7 para 22.
Ex 7 para 22.
The town planner called by the 1st, 2nd, 7th, 8th and 9th co-respondents by election – T13-64.
Although the whole of the site is listed under the town plan, the evidence does not suggest any heritage significance beyond the area of the State listing.
Ex 4 para 74(c).
Ex 4 para 71(c).
Ex 4 para 78(c).
If the land is sold to different interests.
Ex 3 pg 109.
Ex 3 pg 116.
Ex 9 para 3.3
Ex 5 para 7.57.
The criteria are set out later in the context of the demolition component of the application.
Ex 5 para 7.55.
Ex 9 section 3.
Ex 5 para 7.10, 7.19; T4-45, 86.
T6-36, l 7 to T6-37, l 11.
Ex 9 pg 9 para 3.
T6-49, ll 23-30.
T6-49, ll 32-43.
T6-50, ll 1-2.
T8-63, ll 10-25.
T6-68, ll 23-26.
T7-21, l 36 to T7-22, l 16.
Appendix B to the joint report (Ex 32).
Mr Holland was appointed by the Council.
Having regard to my conclusion that, for other reasons, the subdivision ought not be approved, there will be no need to ultimately have any easement arrangement for site access.
Ex 1 pg 69.
Ex 4 para 121(b); T13-62.
See Community Facilities – Education Purposes – Ex 3 pg 188 read with the definitions of the uses described therein – Buckley T13-68.
Perkins T13-57; Buckley Ex 4 para 121.
See also T13-57.
It not complying with AO1.1 or AO1.2 and not otherwise complying with PO1.
More detail about the history of the use of the music room is contained in the joint report of the historians – Ex 6.
The 1st, 2nd, 7th, 8th and 9th co-respondents by election did not press matters in relation to State Code 14 but rather relied on the provisions of City Plan in relation to heritage issues.
The appellant pointed out that is not an assessment benchmark, but conceded that it is at best a matter the Court must have regard to: s 45(5)(a)(ii) of the Planning Act and s 31(1)(a) and Schedule 10 of the Planning Regulation.
Ex 5 pg 33.
Available at a specified website.
s 31(3) or s 20 of the Act as in force after the time of the entry.
See process statement – Ex 1 pg 53.
 QPEC 119.
Ex 9 para 2.12.
Ex 5 para 6.4.
Ex 5 para 7.51.
Ex 5 para 7.31.
Which, of itself, would seem to have little if anything, to do with aesthetics or a picturesque quality.
Which post-dates the decision to list the site.
Ex 5 para 7.49.
See Marquis-Kyle T5-21.
See also SO5 relating to local identity and land use strategies L5.1 and L5.2.
s 8.1(1) of City Plan.
Applied by reason of s 1.3.1(1) of City Plan.
Schedule 2 of the PA.
A planning scheme policy is a local planning instrument – s 8(3) of the PA.
 QPEC 52.
Ex 5 para 1.18.
Even leaving to one side any consideration of the statutory provisions relating to local heritage registers.
There is a note to the effect that the database entry provides “general reference source information” and is not an “official report”.
Ex 16 pg 1.
That is so even though one option is for it to prepare the citation when a development application is made.
See Burra Charter.
Ex 5 para 7-27.
Ex 5 para 6.7.
Ex 6 para 3.61.
Ex 8 para 2.4.
Corporation of Sisters of Mercy of Diocese of Townsville v Queensland Heritage Council (No 2)  QPELR 391 at .
Ex 6 para 3.55, T3-77, 79, T4-14.
T3-90 – The joint report of the historians referred in para 3.69 to the music room being used over more than 80 years but, as Ms Hill conceded (T4-11), that should be 50 years.
Ex 9 para 2.12.
Woods T5-94, 95, T6-51, 52, 63, 75, 76; Kennedy T6-90.
Woods T5-95; Kennedy T6-90.
Criterion (G) refers to strong or special association. In this case Goldicott was identified as having a special association. My conclusion would not alter if attention focused on ‘strong’.
See Ex 5 para 8.16; Ex 9 pg 7.
Jedfire Pty Ltd v Council of the City of Logan & Anor  QPLR 41 at 43; Multi Span Australia Pty Ltd v Department of Main Roads & Anor  QPELR 509 at 510; Newing & Ors v Silcock & Ors  QPELR 692. Senior Counsel for the respondent did not argue against the proposition T15-72, 73. Mr Marquis-Kyle said that removal of the music room would not “seriously damage” the cultural heritage significance of the place or cause it ‘serious harm’ (Ex 5 para 7.62, 7.66). I do not think that serious damage or harm is required in order to conflict with the provisions. Mr Marquis-Kyle’s description of the importance of the music room and his evidence as to the impact of its loss otherwise satisfy me that any impact would be insignificant – see e.g. Ex 5 para 8.16, 8.33, T4-45.
Submissions for the first, second, seventh, eighth and ninth co-respondents by election paras 88-91.
- Published Case Name:
Goldicott House Pty Ltd v Brisbane City Council & Ors
- Shortened Case Name:
Goldicott House Pty Ltd v Brisbane City Council
 QPEC 11
21 Apr 2020