PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

Transcription

1 PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: ISPT Pty Ltd v Brisbane City Council & Anor [2017] QPEC 52 PARTIES: ISPT PTY LTD (ACN ) (appellant) v BRISBANE CITY COUNCIL (respondent) and FILE NO/S: 4513 of 2016 DIVISION: PROCEEDING: ORIGINATING COURT: CONIAS CORPORATION PTY LTD (ACN ) (co-respondent) Planning and Environment Court Appeal DELIVERED ON: 11 September 2017 DELIVERED AT: HEARING DATE: JUDGE: ORDER: CATCHWORDS: LEGISLATION: Planning and Environment Court, Brisbane Brisbane 24, 25, 26, 27 and 28 July 2017 and further written submissions and evidence provided by on 15 August 2017 Kefford DCJ The appeal is allowed. The development application is refused. PLANNING AND ENVIRONMENT APPEAL appeal against approval of a development application seeking a preliminary approval for building work for partial demolition of a local heritage place whether there is conflict occasioned by the partial demolition whether the demolition diminishes the cultural heritage significance whether there are sufficient grounds to approve the proposed development despite conflict with the planning scheme whether the court has power to grant the approval without consent of parties who benefit from easements over the subject land Acts Interpretation Act 1954 (Qld), s14b(1)(c) Building Act 1975 (Qld), s 2, s 3, s 5, s 6, s 11, s 65

2 2 CASES: COUNSEL: Planning Act 2016 (Qld), s 311 Planning and Environment Court Act 2016 (Qld), s 76 Planning and Environment Court Rules 2010 (Qld), r 23 Property Law Act 1974 (Qld), s 181 Queensland Heritage Act 1992 (Qld), s 20, s 114, s 116, s 117, s 122, s 123 Sustainable Planning Act 2009 (Qld), s 13, s 244, s 246, s 263, s 314, s 324, s 326, s 369, s 372, s 375, s 376, s 387, s 440, s 457A, s 457B, s 462, s 493, s 495, s 704 Uniform Civil Procedure Rules 1999 (Qld), r 430 Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55; [2016] QPELR 963, followed Body Corporate for Mayfair Residences Community Titles Scheme v Brisbane City Council & Anor [2017] QPEC 22; (2017) 222 LGERA 136; [2017] QPELR 487, followed Eucalypt Group Pty Ltd v Robin [2003] QSC 63; [2003] 2 Qd R 488, considered Gascoyne v Whitsunday Regional Council & Anor [2010] QPEC 150; [2011] QPELR 373, cited Jedfire Pty Ltd v Council of the City of Logan & White [1994] QPEC 47; [1995] QPLR 41, followed Kennedy v Gold Coast City Council & Edward Campbell, Chief Executive of Local Government and Planning [2002] QPEC 86; [2005] QPELR 638, considered Mahaside Pty Ltd v Sunshine Coast Regional Council & Ors [2010] QPEC 70; [2011] QPELR 23, cited Multi Span Australia Pty Ltd v Department of Main Roads & Anor [2008] QPEC 14; [2008] QPELR 509, followed. Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, applied Parsons v Redland City Council [2011] QPEC 62; [2011] QPELR 691, followed Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82; [2014] QPELR 686, applied D R Gore QC with M F Johnston for the appellant B D Job for the respondent

3 3 C L Hughes QC with A N S Skoien for the co-respondent SOLICITORS: HopgoodGanim for the appellant Brisbane City Legal Practice for the respondent Thomson Geer for the co-respondent Table of contents Introduction... 4 The subject site and surrounding locality... 4 The Embassy Hotel and the proposed development... 5 The Original Embassy Hotel... 5 The Substantial Alterations to the Hotel... 7 The proposal... 8 The decision framework... 9 The issues General town planning context - City Plan Assessment criteria in City Plan Relevant context regarding development in the City Centre and of heritage places Is there conflict with the Heritage overlay code? Identification of the relevant cultural heritage significance Assessment of impact on cultural heritage significance Is there conflict with the strategic framework? Is there conflict with the City Centre neighbourhood plan code? PO PO Conclusion regarding merits of the proposed development Easement issue Does s 65 of the Building Act 1975 apply to the court? What is the effect of s 65 of the Building Act 1975? Does the court have power to overcome the prohibition in s 65(2) of the Building Act 1975? Even if the excusatory power is available, it should not be exercised Conclusion... 64

4 4 Introduction [1] This is a submitter appeal commenced by ISPT Pty Ltd ( ISPT ). The appeal is against the decision of the respondent, Brisbane City Council ( Council ), to approve a development application made by the co-respondent, Conias Corporation Pty Ltd ( Conias ) to facilitate the partial demolition of the Embassy Hotel, a local heritage place located at 178 Edward Street, Brisbane ( the subject site ). [2] The statement of significance for the Embassy Hotel in the heritage citation is as follows: 1 As a four-storey corner hotel erected during the CBD building boom of the 1920s; it is important in demonstrating the evolution or pattern of the City s or local area s history. The subject site and surrounding locality [3] The subject site is located on the corner of Edward Street and Elizabeth Street, in the central business district ( CBD ) of Brisbane. 2 [4] The subject site is improved by the Embassy Hotel and a number of retail tenancies at the ground floor, within a building that varies in height from two storeys to five storeys. 3 [5] The pedestrian entry to the Embassy Hotel is off Elizabeth Street and entry to the retail tenancies is off Edward Street. Cantilevered awnings exist over both street frontages. 4 [6] Three sets of easements traverse the southern and western boundaries of the subject site. A series of two easements were granted for access purposes along the southern boundary of the subject site (easements B and C), while two further easements for access have been granted along the western boundary of the subject site (easements F and G). A utilities easement (easement H), in favour of Energex Limited, runs the full length of the western boundary of the subject site. 5 1 Brisbane City Council Heritage Citation - Exhibit 1. 2 Town Planning Joint Expert Report Exhibit 11 p 4 [8]. 3 Town Planning Joint Expert Report Exhibit 11 p 4 [9]. 4 Town Planning Joint Expert Report Exhibit 11 p 5 [10]. 5 Affidavit of Benjamin Rix Exhibit 4 p 99.

5 5 [7] The Embassy Hotel is currently used for a range of hotel activities, including the sale of liquor for consumption on and off the premises, dining, entertainment, poker machines and some limited short-term accommodation. 6 [8] The subject site is in a very heavily trafficked part of the Brisbane CBD and is surrounded by a wide range of retail and commercial buildings, generally much taller than the one on the subject site. The subject building is one of only few original older buildings in the CBD. 7 [9] The adjoining site to the immediate west is the Wintergarden and Hilton Hotel complex: it extends between Queen Street, Edward Street and Elizabeth Street. It is owned by ISPT. To the immediate northwest is a commercial office building owned by 190 Edward Street Pty Ltd. 8 The Embassy Hotel and the proposed development The Original Embassy Hotel [10] The Embassy Hotel was originally constructed in Its original design 9 reflects a Commercial Palazzo building, with four storeys, broken into the base, the shaft and the cornice. 10 [11] The expert historians agree that the key elements of the fabric of the Embassy Hotel that demonstrate that it is a four-storey corner hotel erected in the 1920s are: (c) the building being constructed in four storeys, with a later addition; the main external façade addressing both Elizabeth and Edward Streets, which highlights the corner location; and the use of a broad approach to the inter-war Commercial Palazzo style, which indicates that it is a building of the 1920s Town Planning Joint Expert Report Exhibit 11 p 5 [11]. 7 Town Planning Joint Expert Report Exhibit 11 p 5 [12]. 8 Town Planning Joint Expert Report Exhibit 11 p 5 [13] and Affidavit of Benjamin Rix Exhibit 4 pp as demonstrated by the original plans obtained from the Fryer Library at the University of Queensland - see Book of Plans Exhibit 2 pp See the annotated photograph - Report of Dr Blake Exhibit 7 p Joint Expert Report of Historians Exhibit 5 p 11. See also Report of Dr Blake Exhibit 7 p 2 [2].

6 6 [12] The expert historians also agree that the function of the building as a hotel is demonstrated in various elements, including: (c) (d) the upper levels exterior that demonstrate the original use for accommodation; the cantilevered awnings; the main entrance from Elizabeth Street; the corner entrance (which was formerly the entrance to the public base but is now the entrance to a retail store); and (e) the carriageway on the Elizabeth Street elevation. 12 [13] It was the uncontested evidence of Dr Blake that the original design of the Embassy Hotel also involved other key design features indicative of a hotel building in Brisbane in the 1920s, namely: 13 (c) (d) balconies or balconettes (for guests in some rooms of the hotel); an open rooftop space (for guests of the hotel); public and private entrances; and a lift. [14] As Dr Blake explained, the cantilevered awnings were a direct result of the introduction of a Council policy in 1922 to preclude structures in the footpath supporting verandahs over the footpaths. This resulted in a requirement to provide alternative access to outdoor space for hotel residents (on limited balconies and, more broadly, on the open rooftop). 14 [15] The original plans show a building, effectively the same at all four levels, which is essentially L shaped. The length of the L is along, and parallel to, Elizabeth Street, almost all the way to the southern boundary of the subject site. The toe of the L is perpendicular to Elizabeth Street, jutting into the western half of the subject site. It is well removed, and obscured from view, from the street frontages. 12 Joint Expert Report of Historians Exhibit 5 pp See also Report of Dr Blake Exhibit 7 p 2 [2]. 13 Report of Dr Blake Exhibit 7 p 4 [7]. 14 Report of Dr Blake Exhibit 7 pp 2-4 [3] - [7].

7 7 [16] It was this toe of the L, at the rear, southern end of the original building, which enclosed, on the ground floor, the original private bar, which was the subject of a great deal of evidence in the case. [17] Contemporary documentary evidence, including the original plans, shows that the ceiling of the private bar was originally constructed in silky oak and plaster, in the form of a wooden coffered ceiling. 15 This original private bar ceiling was the subject of considerable contemporary discussion in both the Courier Mail in 1928 and the Architecture and Building Journal in 1928 and The wooden detail of the ceiling was consistent with the wooden panelling throughout much of the original Embassy Hotel. 16 The Substantial Alterations to the Hotel [18] There is no dispute that the Embassy Hotel has undergone substantial alterations since It is acknowledged that most of those alterations occurred in the last 60 or 70 years. [19] A dispute exists about when the existing ceiling in the private bar, in an Art Deco design, was put in place. Much of the time during the hearing was spent investigating this factual dispute between the heritage architects and historians about the age of the ceiling. Mr McDonald and Dr Bell, the heritage architect and historian called by ISPT, put the most likely time for the ceiling to have been added as during renovations in Witnesses for Council 18 and for Conias 19 disputed that and suggested some later time (after the conclusion of World War II in 1945). There is no longer any suggestion that the Art Deco ceiling was original, or even that it was installed in the 1920s. At the earliest, it was installed in That ceiling is illustrated, for example, on pages 24 and 28 of the Book of Plans Exhibit 2. See both original drawings and a plan of the coffered ceiling shown on the original plans prepared by Conias heritage architect, Mr Kennedy. 16 Joint Expert Report of Historians Exhibit 5 pp Supplementary Joint Expert Report of Historians Exhibit 6 p 3 (Bell); Report of Mr McDonald Exhibit 13 p 13 [2.9]. 18 Supplementary Joint Expert Report of Heritage Architects Exhibit 9 p 3 [6] (Scott). 19 Joint Expert Report of Heritage Architects Exhibit 8 p 9 [20.1.3] (Kennedy); Report of Dr Blake Exhibit 7 p 8 [22]. 20 See evidence summarised in the Schedule to the Outline of Submissions for the Appellant Court Doc 13 pp

8 8 [20] It is not necessary for me to resolve this factual dispute as all heritage architects made it clear that whether the ceiling was installed in 1939 or at some later time was not material to their views as to the cultural heritage significance of the ceiling. 21 [21] The internal alterations to the Embassy Hotel have seen the use of various parts of the building change with time. There has been incorporation of buildings to the west of the original building, along with the expansion of the uses into such additional areas. 22 Internal walls, toilets, bathrooms, kitchens, doors, hallways and stairs have all been shifted and altered dramatically over time. 23 [22] In addition, changes to the hotel have seen: the enclosure of the open roof top by the addition of a fifth storey, which is readily apparent to anyone looking at the Embassy Hotel from either Edward Street or Elizabeth Street; and changes to the façade of the building in Elizabeth Street, by way of the addition of four new windows in the façade and the closing of part of two other windows on that external wall. 24 The proposal [23] The development application seeks a preliminary approval for building works for partial demolition of a local heritage place. The proposal involves: (c) demolition of those parts of the existing building that adjoin the local heritage place (and which are not the subject of this appeal); demolition of the rear section of the original Embassy Hotel building (including one of the original bar areas); demolition of the 1970s added top floor of the building (with retention of the original lift overrun); 21 See T2-16/L29-33 (Blake); T3-15/L10-16 (Kennedy); T3-28/L45-47 (Kennedy); T3-29/L23-26 (Kennedy); T3-39/L14-25 (Scott); T3-44/L23-29 (Scott); T3-80/L40-46 (McDonald). 22 See the plan in Report of Dr Blake Exhibit 7 p 10 and also pp See the analysis of Mr Kennedy showing the full extent of the alterations to the internal layout over time Book of Plans Exhibit 2 pp Book of Plans Exhibit 2 p 9.

9 9 (d) (e) (f) conservation work to the original building façades in Elizabeth and Edward Streets, including restoration and reconstruction to return them closer to their original 1928 state; retention of the original suspended street awnings in Elizabeth and Edward Streets; retention of the added 1958 bottle shop fronting Edward Street; and (g) installation of new rear walls (where rear demolition occurs). 25 [24] The proposal can be summarised as involving: conservation (as that term is properly understood) by way of the renovation and replacement and reinstatement of fenestration of the Elizabeth Street façade of the Embassy Hotel, to return that façade to its original condition, and the demolition of the fifth floor enclosure of the roof top area; and the partial demolition of the existing building, being the removal of structures in the rear portions of the original hotel and, as stated above, the removal of the entire fifth floor of the hotel, which was a much later (1979) addition to the hotel. [25] All relevant experts agreed that the proposed changes to the external components of the Embassy Hotel are positive. [26] ISPT, and its experts, effectively take issue with only two aspects of the internal changes occasioned by the proposed demolition of the toe of the L of the original building, namely the loss of the current ceiling in the private bar and the loss of the original timber flooring and rendered masonry walls on upper levels 02, 03, and 04. The decision framework [27] The appeal was commenced by ISPT under s 462 of the Sustainable Planning Act 2009 (Qld). Pursuant to s 311 of the Planning Act 2016 (Qld), the appeal is to be decided under the provisions of the Sustainable Planning Act Town Planning Joint Expert Report Exhibit 11 p 5 [15]. See also Book of Plans Exhibit 2 and Joint Expert Report of Heritage Architects Exhibit 8 p 2 [9].

10 10 [28] Under s 495 of the Sustainable Planning Act 2009, the appeal proceeds by way of hearing anew. It must be decided based on the laws and policies applying when the application was made, but the court may give weight to any new laws and policies the court considers appropriate. Two of the provisions of Brisbane City Plan 2014 ( City Plan ) with which there is alleged conflict (performance outcomes PO4 and PO28 of the City Centre neighbourhood plan code) are no longer in effect. [29] The development application was made on or about 11 May 2016 under City Plan. 26 [30] As the development application was impact assessable, it is to be assessed having regard to s 314 of the Sustainable Planning Act 2009 and decided in accordance with s 324 and s 326. Pursuant to s 326, a decision must not conflict with City Plan unless, relevantly, there are sufficient grounds to justify the decision despite the conflict. [31] Conflict means at variance or disagree with. 27 [32] The word grounds is defined in Schedule 3 of the Sustainable Planning Act 2009 as: 1. Grounds means matters of public interest. 2. Grounds does not include the personal circumstances of an applicant, owner or interested party. [33] It is for Conias to establish that the appeal should be allowed and the development application approved. 28 The issues [34] The issues to be determined in this appeal are: whether approval of the proposed development conflicts with: (i) (ii) the purpose and performance outcomes PO1, PO2, PO3 and PO4 of the Heritage overlay code; specific outcome SO19 in s of the strategic framework; 26 Town Planning Joint Expert Report Exhibit 11 p 6 [17]. 27 Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 286 [23]; Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63, 72 [16]; [2012] QPELR Sustainable Planning Act 2009, s 493.

11 11 (iii) performance outcomes PO4 and PO28 of the (now superseded) City Centre neighbourhood plan code; (c) whether there are sufficient grounds to justify approval of the proposed development notwithstanding conflict with City Plan; and whether the court has power to grant a preliminary approval for building work, given there is no consent to the building work by third parties who have the benefit of certain easements over the subject land as required by s 65 of the Building Act General town planning context - City Plan [35] Under City Plan, the subject site is, relevantly: (c) located in the City centre zone precinct of the Principal centre zone; included in the City Centre neighbourhood plan area and identified within the Retail precinct; and subject to the Heritage overlay, which identifies: (i) (ii) an irregularly shaped part of the subject site, which corresponds with the original Embassy Hotel as well as some parts of the Embassy Hotel that have been added well after the original construction, 29 as a local heritage place; and the balance of the subject site as an area adjoining a heritage subcategory. 30 [36] The part of the subject site that is designated as a local heritage place is also included on Council s Heritage Register. [37] That part of the subject site that is listed as a local heritage place was also allocated transferrable site area under Table E of City Plan. Transferrable site area is 29 For example, see the extent of the Heritage Overlay on the drawings for the proposed works. The drawings show inclusion of the building fronting Edward Street on the northern side of the original Embassy Hotel is part of the local heritage place. 30 Appeal Book - Exhibit 3 Vol 2 Tab 13.

12 12 able to be used on other sites to increase the development potential of other sites (subject to certain limitations). Assessment criteria in City Plan [38] For impact assessable development, City Plan requires development to be assessed against all identified codes in the assessment criteria column (where relevant) and the planning scheme, to the extent relevant. 31 [39] The codes that are relevant to an assessment of the proposed development in the context of this appeal are the City Centre neighbourhood plan code and the Heritage overlay code. The Strategic Framework is also relevant. [40] There is a hierarchy of assessment criteria under City Plan, pursuant to which: (c) (d) (e) the strategic framework prevails over all other components to the extent of the inconsistency; state-wide codes prevail over all other components (other than the strategic framework) to the extent of the inconsistency; overlays prevail over all other components (other than the strategic framework and state-wide codes) to the extent of the inconsistency; neighbourhood plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency; and zone codes prevail over use codes and other development codes to the extent of the inconsistency. [41] Insofar as codes are concerned, City Plan contemplates that compliance may be achieved by compliance with the acceptable outcome or the performance outcome or the purpose and overall outcomes of the code. 32 In a neighbourhood plan code, compliance with acceptable outcomes is deemed to achieve the associated 31 See s 5.3.3(d) of City Plan. 32 See s 5.3.3(c) of City Plan. Although this section relates to determining the assessment criteria for code assessable development, it provides guidance on the means of demonstrating compliance with a code.

13 13 performance outcomes and compliance with performance outcomes is deemed to achieve the overall outcomes. 33 Relevant context regarding development in the City Centre and of heritage places [42] In Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82; [2014] QPELR 686, Morrison JA observed at 94 [52] that [t]he same principles which apply to statutory construction apply to the construction of planning documents. As such, it is necessary to consider the context of the provisions that are being construed. 34 [43] At 95 [56] of that judgment, Morrison JA also observed that: The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes. (footnotes omitted) [44] Council submits that City Plan has objectives that promote the development of the City Centre. 35 neighbourhood plan code, which: They are evident in the overall outcomes of the City Centre (c) promote the City Centre as Brisbane s principal commercial and administration centre; 36 promote the City Centre as the State s largest office employment area and the location of the highest order of business and professional services and government administration; 37 seek to maximise the return on significant existing and planned investment in infrastructure; 38 and 33 See s 7.1(6) of City Plan Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, 95 [55]; [2014] QPELR Submissions of the Respondent Court Doc 12 p 6 [22]. 36 Overall Outcome (3) of the City Centre neighbourhood plan code Appeal Book - Exhibit 3 Vol 2 Tab 17 p Overall Outcome (3)(j) of the City Centre neighbourhood plan code Appeal Book Exhibit 3 Vol 2 Tab 17 p Overall Outcome (3)(k) of the City Centre neighbourhood plan code Appeal Book Exhibit 3 Vol 2 Tab 17 p 57.

14 14 (d) intend a compact City Centre with built form characterised by high rise office and residential towers, complemented by higher order retail, entertainment, cultural and tourism facilities. 39 [45] Council submits 40 that City Plan also intends, at various levels, that heritage, including built heritage, is appropriately appreciated, protected and managed. 41 It submits that City Plan does not place an embargo on development of heritage places. City Plan contains support for the adaptation or re-use of heritage places where the significance of the heritage place is retained. 42 The Heritage overlay code itself contemplates development of such places. I agree with these submissions. Is there conflict with the Heritage overlay code? [46] ISPT alleges conflict with the purpose and performance outcomes PO1, PO2, PO3 and PO4 of the Heritage overlay code. [47] The purpose of the Heritage overlay code is as follows: Purpose (1) The purpose of the Heritage overlay code is to: Implement the policy direction in the Strategic framework, in particular Theme 2: Brisbane s outstanding lifestyle and Element 2.1 Brisbane s identity. Provide for the assessment of the suitability of development on land in the Heritage overlay. (2) The purpose of the code will be achieved through the following overall outcomes: Development on or adjoining a heritage place does not detract from the cultural heritage significance of that heritage place, including any Aboriginal cultural values. Re-use of a heritage place is compatible with its cultural heritage significance, including any Aboriginal cultural values and retains its heritage significance. 39 Overall Outcome (3)(o) of the City Centre neighbourhood plan code Appeal Book Exhibit 3 Vol 2 Tab 17 p 57. See also (3)(d) of the City Centre neighbourhood plan code Appeal Book Exhibit 3 Vol 2 Tab 17 p Submissions of the Respondent Court Doc 12 p 6 [23]. 41 Strategic Framework, Strategic Outcome 3.4.1(1)(c) Appeal Book Exhibit 3 Vol 2 Tab 16 p 46; Specific Outcome SO19 - Appeal Book Exhibit 3 Vol 2 Tab 16 p 49. Also City Centre neighbourhood plan code Overall Outcomes (3)(l), (n), (y); and (18)(c) Appeal Book Exhibit 3 Vol 2 Tab 17 pp 57, 58 and Strategic Framework, Land Use Strategy Appeal Book Exhibit 3 Vol 2 Tab 16 p Appeal Book Exhibit 3 Vol 2 Tab 18 p 102.

15 15 [48] Performance outcomes PO1 to PO4 of the Heritage overlay code are as follows: 44 PO1 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. PO2 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. PO3 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. PO4 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. [49] No corresponding acceptable outcomes are prescribed. [50] Each of performance outcomes PO1, PO2, PO3 and PO4 of the Heritage overlay code refer to the Burra Charter. [51] The Burra Charter advocates a cautious approach to change. 45 Article 3 of the Burra Charter provides: 46 Article 3. Cautious approach 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. 3.2 Changes to a place should not distort the physical or other evidence it provides, nor be based on conjecture. [52] The Burra Charter defines Cultural significance to mean aesthetic, historic, scientific, social or spiritual value for past, present or future generations. 47 The 44 Appeal Book Exhibit 3 Vol 2 Tab 18 pp Burra Charter p 1 Appeal Book Exhibit 3 Vol 2 Tab 22 p Burra Charter Article 3 p 3 Appeal Book Exhibit 3 Vol 2 Tab 22 p Burra Charter Article 1.3 p 2 Appeal Book Exhibit 3 Vol 2 Tab 22 p 177.

16 16 term Fabric means all the physical material of the place including elements, fixtures, contents and objects. 48 Fabric is not limited to external fabric. The term Conservation means all the processes of looking after a place so as to retain its cultural significance. 49 [53] Article 5.1 of the Burra Charter provides: 50 Conservation of a place should identify and take into consideration all aspects of cultural and natural significance without unwarranted emphasis on any one value at the expense of others. [54] Article 10 of the Burra Charter provides in part: 51 [55] Article 15.4 states: 52 Contents, fixtures and objects which contribute to the cultural significance of a place should be retained at that place. The contributions of all aspects of cultural significance of a place should be respected. If a place includes fabric of different periods emphasizing or interpreting one period at the expense of another can only be justified when what is left out, removed or diminished is of slight cultural significance and that which is emphasised or interpreted is of much greater cultural significance. [56] The Explanatory Note to Article 3 records that the traces of addition 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. 53 Identification of the relevant cultural heritage significance [57] In determining whether the proposed partial demolition of the Embassy Hotel would conflict with the Heritage overlay code, it is necessary to identify the cultural heritage significance of the local heritage place. [58] A note in s of the Heritage overlay code identifies that the Heritage planning scheme policy provides guidance on the preparation of a heritage impact assessment report, as well as describing the process by which local heritage places have been 48 Burra Charter Article 1.3 p 2 Appeal Book Exhibit 3 Vol 2 Tab 22 p Burra Charter Article 1.4 p 2 Appeal Book Exhibit 3 Vol 2 Tab 22 p Burra Charter Article 5.1 p 4 Appeal Book Exhibit 3 Vol 2 Tab 22 p Burra Charter Article 10 p 5 Appeal Book Exhibit 3 Vol 2 Tab 22 p Burra Charter Article 10 p 5 Appeal Book Exhibit 3 Vol 2 Tab 22 p Burra Charter Article 10 p 5 Appeal Book Exhibit 3 Vol 2 Tab 22 p 178.

17 17 included in the Heritage overlay map. 54 It provides important context for the phrase cultural heritage significance. [59] Section 2(1) of the Heritage planning scheme policy provides that a premises can be included in the Heritage overlay in the Local heritage place sub-category if it has one or more of the following cultural heritage values: 55 it is important in demonstrating the evolution or pattern of the city s or local area s history; (c) (d) (e) (f) (g) (h) it demonstrates rare, uncommon or endangered aspects of the city s or local area s cultural heritage; it has potential to yield information that will contribute to the knowledge and understanding of the city s or local area s history; it is important in demonstrating the principal characteristics of a particular class or classes of cultural places; it is important because of its aesthetic significance; it is important in demonstrating a high degree of creative or technological achievement at a particular period; it has a strong or special association with the life or work of a particular community or cultural group for social, cultural or spiritual reasons; it has a special association with the life or work of a particular person, group or organisation of importance in the city s or local area s history. (emphasis added) [60] Section 2(2) of the Heritage planning scheme policy states: 56 When a citation is prepared documenting these cultural heritage values, it is to include: (c) a description of the local heritage place; a statement of the history of the local heritage place; a statement of the cultural heritage significance of the local heritage place. [61] The citation is intended to assist in the assessment of a proposal against the Heritage overlay code. 57 Where a citation exists, the Heritage planning scheme policy states that it is only necessary to assess the impact of a proposed development by reference to the culturally significant items listed in the citation Appeal Book Exhibit 3 Vol 2 Tab 18 p Appeal Book Exhibit 3 Vol 2 Tab 20 p Appeal Book Exhibit 3 Vol 2 Tab 20 p Section 2(3) of the Heritage planning scheme policy - Exhibit 3 Vol 2 Tab 20 p Note to s 4(1) of the Heritage planning scheme policy - Exhibit 3 Vol 2 Tab 20 p 143.

18 18 [62] Conias submits that this process for assessing impacts of a proposal on the cultural heritage significance of a place is directly comparable with the process for registering a heritage place under s 20 of the Queensland Heritage Act 1992 (Qld). Conias also made reference to the following findings of this court in Body Corporate for Mayfair Residences Community Titles Scheme v Brisbane City Council & Anor [2017] QPEC 22; (2017) 222 LGERA 136; [2017] QPELR 487 with respect to the identification of the heritage significance of a place: [121] Athol Place was entered in the Queensland Heritage Register on 21 October Section 20(4) of the Queensland Heritage Act 1992 (Qld), as it applied at the time, provided: An entry in the Heritage Register in relation to a registered place must- adequately identify the place- (i) (ii) by reference to a certificate of title or an official plan of survey; or by survey information that enables its boundaries to be clearly and accurately ascertained; and contain a description of the place; and (c) contain a statement of the history of the place; and (d) contain a statement of the heritage significance of the place related to the criteria in this Act by which its heritage significance is determined. [122] It is clear from s 20 that the matters by which the heritage significance of a place are to be determined is limited to the statement of the heritage significance. This is not the approach adopted by Mr Elliott. [63] I agree that the process for entering a premises on a local heritage register is directly comparable with that for entering a premises on the State heritage register. Section 116 of the Queensland Heritage Act 1992 permits a local government, on its own initiative, to propose to enter a place in its local heritage register, if it is in the local government s area and the local government reasonably considers the place to be of cultural heritage significance. However, before it does so, pursuant to s 117 of the Queensland Heritage Act 1992, the local government must first give the owner of the place notice that identifies, amongst other things, the reasons for the proposed entry. 59 Joint Expert Report of Heritage Experts - Exhibit 4 p 41.

19 19 [64] Under s 114 of the Queensland Heritage Act 1992, the local heritage register must include: enough information to identify the location and boundaries of the place; and a statement about the cultural heritage significance of the place. [65] Section 123 of the Queensland Heritage Act 1992 permits the local government s planning scheme to apply, adopt or incorporate its local heritage register. [66] Once the entry is made in the local heritage register, pursuant to s 122 of the Queensland Heritage Act 1992, the local government cannot, without the written agreement of the owner of the place, change a statement about the cultural heritage significance of the place unless the change is only to correct a minor error or make another change that is not a change of substance. [67] This legislative framework reinforces the intention that is evident from the Heritage planning scheme policy, namely that the cultural heritage significance of a place, for the purpose of assessment, is limited to that identified in the statement about the cultural heritage significance of the place contained in the register. [68] The Embassy Hotel is identified as a local heritage place. A heritage citation was prepared for the Embassy Hotel in June 2006 and was amended in January [69] The provisions of the Queensland Heritage Act 1992 with respect to local heritage registers did not commence until 31 March On their commencement, pursuant to s 194 of the Queensland Heritage Act 1992, a place identified in a local government s local planning instrument as a place of cultural heritage significance for the local government s area was taken to be a local heritage place under the Queensland Heritage Act [70] Consistent with the Heritage planning scheme policy and the requirements of an entry on a local heritage register under the Queensland Heritage Act 1992, Council s heritage citation includes a statement of the cultural heritage significance of the local heritage place.

20 20 [71] The statement of significance for the Embassy Hotel in the heritage citation is as follows: 60 As a four-storey corner hotel erected during the CBD building boom of the 1920s; it is important in demonstrating the evolution or pattern of the City s or local area s history. [72] The heritage architects agreed to primarily rely on the statement of significance set out in the revised 2008 Brisbane City Council heritage citation. 61 Following a joint meeting with the expert historians, the heritage architects and the historians agreed that related matters of cultural heritage significance (such as rarity, aesthetics, creative significance and architectural typologies) can also be considered under this criterion. 62 [73] When the statement of significance is considered in light of the values for which a premises can be included in the Heritage overlay, it is apparent that the Embassy Hotel was included in the Heritage overlay because it is important in demonstrating the evolution or pattern of the city s or local area s history. The Embassy Hotel is not identified as significant either in demonstrating rare, uncommon or endangered aspects of the city s or local area s cultural heritage or because of its aesthetic significance. 63 [74] Accordingly, despite the agreement of the relevant experts, it is the statement of significance, and the assessment of the proposed development s impact on such matters, upon which attention should ultimately focus to determine whether there is conflict with the Heritage overlay code. Assessment of impact on cultural heritage significance [75] Mr McDonald, the heritage architect called by ISPT, considered that the proposed development conflicts with performance outcomes PO1, PO2, PO3 and PO4 of the 60 Brisbane City Council Heritage Citation - Exhibit Joint Expert Report of Heritage Architects Exhibit 8 p 2 [5]. 62 Joint Expert Report of Heritage Architects Exhibit 8 p 2 [5]. 63 See s 2(1) and s 2(1)(e) of the Heritage planning scheme policy Appeal Book Exhibit 3 Vol 2 Tab 20 p 142.

21 21 Heritage overlay code. In forming his opinion, Mr McDonald relies on the demolition of internal fabric, namely: the Art Deco ceiling and the original private bar area and space that embodies that ceiling; and the original timber flooring and rendered masonry walls on upper levels 02, 03, and 04. [76] Mr McDonald regards each of these elements of the internal fabric of the building to be an important aspect of the place s cultural heritage significance which closely relates to the Embassy Hotel as a CBD hotel of the inter-war period. 64 It is Mr McDonald s view that any early surviving fabric which relates to the inter-war era is likely to be of, at least, some cultural heritage significance and any early surviving fabric which relates to key hotel functions (such as bars and rooming accommodation) is likely to be of, at least, considerable cultural heritage significance. 65 [77] The existing Art Deco ceiling in the private bar area is depicted in photographs before the court. 66 It is described by Mr McDonald as follows: 67 incorporates elaborate moulded cornices; sweeping curves, bulkheads and pelmets; and a complex but elegant interplay of lines and levels is highly (although not completely) intact is highly attractive is rare (if not unique) in Brisbane hotels is an excellent example of Art Deco-style plaster decoration. [78] As I have noted in paragraph [19] above, the Art Deco ceiling is not original. At the earliest, it was installed in Joint Expert Report of Heritage Architects Exhibit 8 p 6 [20.1(d) and (e)]. 65 Joint Expert Report of Heritage Architects Exhibit 8 p 6 [20.1(c)]. 66 Report of Mr McDonald Exhibit 13 pp 7 and 8 Figures 7 10 and Book of Photographs Exhibit Joint Expert Report of Heritage Architects Exhibit 8 p 7 [para 20.1(i)]. 68 See evidence summarised in the Schedule to the Outline of Submissions for the Appellant Court Doc 13 pp

22 22 [79] Nevertheless, Mr McDonald considers the Art Deco ceiling to be relevant to the cultural heritage significance of the Embassy Hotel because: 69 the surviving Art Deco ceiling in the original rear (saloon/private) bar area is consistent with inter-war hotel design and, if not original, is certainly early fabric related to key hotel functions. This fabric and the space which embodies it are considered to be of, at least, considerable cultural heritage significance and are proposed to be demolished. Such demolition would destroy an important aspect of the place s cultural heritage significance which closely relates to the Embassy Hotel as a CBD hotel of the inter- War period. (emphasis added) [80] Mr McDonald also opines, with respect to the Art Deco ceiling, that: 70 such an early, intact, rare and important characteristic element of the Embassy Hotel as the Art Deco bar ceiling could not reasonably be considered as having little or no cultural heritage significance. Even if one were to adopt Mr Kennedy s graded scale of relative significance of the various hotel elements (ie. A: elements of cultural heritage significance / B. elements of minor or no cultural heritage significance / C: elements that are intrusive at point 31.3), the Art Deco bar ceiling forming a highly conspicuous part of the original saloon/private bar space would certainly not be considered to be an intrusive C element or a minor or non-significant B element but would rightly and fairly be assessed as being an A element of cultural heritage significance. By Mr Kennedy s own accepted practice (with which I concur), A elements should be preserved, maintained, restored or reconstructed as appropriate. They should not be demolished as is proposed. (emphasis added) [81] Mr McDonald explained in his individual statement, 71 consistently with his opinion in the extracts from the Joint Report above: For the reasons set out in the heritage architects joint report and supplementary joint report and further elaborated on in this statement of evidence, I am of the opinion that: (c) (d) the existing rear bar (originally the Private Bar) continues to operate as a bar in the original bar space the existing rear bar is a key hotel function which has been in continuous use since 1928 the existing rear bar contains significant early fabric in the form of an elaborate and intricately detailed Art Deco ceiling it is not necessary for fabric to be original in order to be significant and subsequent alterations can and (in the case of the rear bar ceiling) do engender cultural heritage significance 69 Joint Expert Report of Heritage Architects Exhibit 8 p 6 [20.1(d)]. 70 Joint Expert Report of Heritage Architects Exhibit 8 p 7 [20.1(l)]. 71 Report of Mr McDonald Exhibit 13 p 16 [4.1].

23 23 (e) (f) the surviving Art Deco ceiling in the original rear bar is an early, highly intact, rare and important characteristic of the Embassy Hotel and is of considerable cultural heritage significance the surviving Art Deco ceiling in the original rear bar is a significant example of the Art Deco decorative style in Brisbane architecture and should be retained insitu. (emphasis added) [82] As to the fact that the Art Deco ceiling does not relate to the 1920 s period, Mr McDonald noted that it doesn t mean that it isn t a significant component of a 1920s hotel, meaning a hotel constructed in the 1920s. 72 [83] In addition to demolition of the Art Deco ceiling and the space of the original bar that embodies that ceiling, other internal fabric that Mr McDonald regards as of cultural heritage significance is proposed to be demolished. He observes: 73 the surviving timber flooring and the rendered masonry passageway walls on upper levels 02, 03 and 04 appear to be original. The presence of modern carpet over the timber flooring is easily reversible and does not diminish the significance of the original timber flooring. This fabric and the accommodation room layout that it demonstrates is considered to be of moderate cultural heritage significance and is proposed to be demolished. Such demolition would destroy an important aspect of the place s cultural heritage significance which closely relates to the Embassy Hotel as a CBD hotel. (emphasis added) [84] Dr Bell, the historian called by ISPT, also opined that the proposed development would result in an unacceptable impact on the cultural heritage significance of the Embassy Hotel. Dr Bell s concerns, like that of Mr McDonald, were premised on the basis that demolition of the Art Deco ceiling would unacceptably damage and diminish the cultural heritage significance of the Embassy Hotel. 74 [85] It is not necessary, under the principles of the Burra Charter or general heritage conservation practice, for fabric to be original in order to be significant. 75 The fact that the Art Deco ceiling was installed later, and not in 1928, does not necessarily demonstrate that the ceiling is of no significance. Mr Kennedy accepts that whether 72 T3-66/L27-31 (McDonald). 73 Joint Expert Report of Heritage Architects Exhibit 8 p 6 [20.1(e)]. 74 Joint Expert Report of the Historians Exhibit 5 pp Mr McDonald s opinion in the Joint Expert Report of Heritage Architects Exhibit 8 p 6 [20.1(g)]. This was accepted by Mr Kennedy during cross-examination see T3-32/L20-26.

24 24 the ceiling was installed in 1939 or 1951 it has some cultural significance. 76 He accepted that the Art Deco ceiling is probably rare for what it is. 77 [86] However, as I have observed in paragraph [74] above, in determining whether there is conflict with the planning scheme, given the existence of a heritage citation, the relevant exercise does not involve an assessment of the cultural heritage significance at large. The relevant consideration is the impact of the proposed development on the cultural heritage significance of the building identified in the statement of significance. [87] ISPT submits that the reference to the hotel encapsulates both the external façade of the hotel and the internal aspects of the hotel that identify the building as a hotel (such as the private bar). 78 It submits that the approach of Dr Bell is correct when he explained in his oral evidence as to the statement of significance: 79 I take the description of it as a four-storey hotel to mean the substantial whole of the building, normally. It certainly there s nothing here to describe the building as a façade, as street frontage or streetscape contribution or any words like that, although the citation is rather deficient in what it says about the interior of the building, but describing it as a hotel, to me means the whole of the hotel. [88] Ultimately, ISPT submits that a decision to approve the proposed demolition of the internal fabric, comprised of the Art Deco ceiling and the original timber flooring and rendered masonry walls on upper levels 02, 03 and 04, would result in conflict with: PO1 of the Heritage overlay code because the development does not provide for the future protection of the heritage place, rather it seeks to destroy significant parts of the heritage place. Further, the proposed development will damage or diminish its cultural heritage significance because internal fabric that is of cultural heritage significance is proposed to be demolished; PO2 of the Heritage overlay code because the development is not based on, and does not take account of, aspects of the cultural significance of the 76 T3-23/L10-15 (Kennedy); T3-27/L17-19 (Kennedy). See also Joint Expert Report of Heritage Architects Exhibit 8 p 9 [20.1.3], where Mr Kennedy said the Art Deco ceiling was of minor cultural heritage significance. 77 T3-26/L34 (Kennedy). 78 Outline of Submissions for the Appellant Court Doc 13 p 24 [71]. See also Outline of Submissions for the Appellant Court Doc 13 p 29 [90]. 79 T2-83/L13-19 (Bell).

25 25 heritage place, but rather destroys aspects of the Embassy Hotel s cultural heritage significance; (c) (d) (e) PO3 of the Heritage overlay code because the proposal does not protect the fabric and setting of the heritage place while providing for its use, interpretation and management, but rather destroys significant internal fabric; PO4 of the Heritage overlay code because the development is not based on the issues relevant to the conservation of the heritage place, but rather is based on demolition of parts of the heritage place; and the Overall Outcomes of the Heritage overlay code because the development will detract from the cultural heritage significance of the heritage place by destroying aspects of the cultural heritage significance. [89] There is no doubt that the proposed development involves, in part, demolition of the Art Deco ceiling and original timber flooring and rendered masonry walls. The issue is whether that results in a significant and unacceptable impact on the cultural heritage significance of the Embassy Hotel. [90] There are a number of things that should be noted about the cultural heritage significance of the Embassy Hotel. [91] First, the statement of significance in the heritage citation 80 does not expressly refer to either the external appearance or the internal fabric of the Embassy Hotel. However, the cultural heritage significance of the Embassy Hotel is not simply its status as a hotel: its cultural heritage significance is: As a four-storey corner hotel erected during the CBD building boom of the 1920s; it is important in demonstrating the evolution or pattern of the City s or local area s history. 81 [92] Second, consistently with the Heritage planning scheme policy, the heritage citation for Embassy Hotel includes a description of the local heritage place and a statement of the history of the local heritage place. That further information in the citation 80 Brisbane City Council Heritage Citation - Exhibit Brisbane City Council Heritage Citation - Exhibit 1, p 4.