There is a distinction, which is not well understood, between legitimate protection of views and vistas under planning schemes on the one hand and views of heritage places which are protected because of their heritage value on the other. In the language of heritage conservation, a view may be part of the "setting" of a heritage place because it is an important component of the relevant cultural heritage value of the place that is significant enough to warrant the place's heritage protection.
The linked paper, written by Partner David Nicholls, examines this issue in detail and comments upon the reasoning in a recent judgment of the Planning and Environment Court which considered the setting of a State and locally listed heritage place. The paper draws attention to a tendency on the part of some heritage practitioners to seek to expand upon what the citation for the relevant cultural heritage states as being significant in relation to the setting of a place.
The paper also draws attention to what ought to be the correct legal approach to the use of the Burra Charter when interpreting and applying it to State legislation and statutory instruments, such as planning schemes.
The key take out points from the paper are:
- A setting will most likely be expressed in a citation or statement of significance for an entry pursuant to the aesthetic significance criterion. For most of the other significance criteria, a setting will not be relevant.
- It is only the component of the citation dealing with the setting of a place that is available for consideration in relation to defining or applying the setting for conservation purposes.
- Other parts of the entry in the register which may contain a general description of a place cannot be substituted for the citation.
- The citation is the font of legal rights regarding validity and application of the entry in the register.
- The Burra Charter and its guidelines have not been generally incorporated by reference into either City Plan 2000 or City Plan 2014.
- In James Russell Architects Pty Ltd v Brisbane City Council, the Planning and Environment Court erred in finding conflict with City Plan 2000 based on the way a heritage impact report submitted with a development application dealt with the place's setting.
You may read the full text of David's paper by following this link.
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