Australia: 58/11 Barnes & Anor v Southern Downs Regional Council & Ors (No. 2) [2011] QPEC 119

Planning and Environment case updates

(Robin QC, DCJ - 14 September 2011)
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Submitter appeal – Proposed demolition of part of a "heritage place" listed in Council's Cultural Heritage Planning Scheme Policy – whether external building works – whether code assessable rather than impact assessable – demolition of "service wing" held to conflict with planning scheme, which favoured retention – grounds relied on notwithstanding conflict – demolition could not occur until work to stabilise the remaining (more significant) part of the building – insufficient grounds – cultural heritage significance of "service wing" was "considerable" rather than "some" or "little or none" – s. 3.5.14(2) Integrated Planning Act 1997 – ss. 33, 44, 87 and 89 Queensland Heritage Act 1992

Facts: The Second Co-Respondent obtained a preliminary approval from the Respondent Council for building works described as "Partial Demolition of Building on the Register of Cultural Heritage Places". The Appellants were submitters opposing the development application and commenced this appeal against the Respondent's approval.

The proposed demolition related to land at 82 and 84 Fitzroy Street, Warwick. No. 84 was improved with a mid-1870s two-storey sandstone building, which was listed on the local cultural heritage register pursuant to a planning scheme policy, being the trigger for the application requiring impact assessment. At no. 82, a more modest brick and timber building had been constructed, but which was not listed on the local register. Nos. 84 and 82 were linked as components of "Plumb's Chambers", which had been entered in the Queensland Heritage Register pursuant to s.33(1)(a) of the Queensland Heritage Act 1992.

There had been some historical extensions and alterations to the original building at no. 84, including a single-storey "service wing" at the rear. The proposal was to demolish the whole of the building at no. 82 and the service wing at no. 84. The service wing was an 8 metre extension (along Haig Avenue) to the original building, and had been rendered in a grey concrete finish, quite unlike the main sandstone part of the building. There were few views of the service wing from Fitzroy Street, but it constituted about a third of the length of the building fronting Haig Avenue.

The issues for consideration by the Court related to whether the proposed demolition conflicted with the planning scheme requirements (particularly those relating to the retention of heritage places), and whether the demolition would contravene the Queensland Heritage Act 1992 by destroying or substantially reducing the cultural heritage significance of a State heritage place.

The Second Co-Respondent argued that the service wing did not demonstrate the qualities that merit recognition or protection from a heritage point of view. To overcome any alleged conflict with the planning scheme, the Second Co-Respondent argued that, by allowing the demolition of the service wing, it would undertake works to stabilise the remaining part of the building which was the more significant part but which was structurally unsound.

The heritage architect for the Appellants gave the service wing "considerable significance" in the assessment of the heritage place. The Second Co-Respondent's heritage expert considered it of "little or no significance", while the heritage expert for the Department of Environment and Resource Management (DERM) (which was a concurrence agency for the development application) gave it "some significance" to the heritage place.

The Respondent raised a separate argument that the development application should have been subject to code assessment, rather than impact assessment, thereby removing the Appellants' submission and appeal rights. The basis for the argument related to the construction of the planning scheme requirements, with the trigger for the level of assessment depending on the requirement that there be no "deleterious effect on the design integrity of the building".

A number of issues were also raised in relation to the credit of the experts engaged by the parties, including:

  1. the planning expert engaged by the Respondent Council worked for the Council, and her signature appeared on various documents in evidence;
  2. DERM's heritage expert worked for DERM and was its signing officer for the purposes of accepting the proposal for demolition;
  3. the qualifications of Appellants' heritage expert lacked the prestige of the other parties' experts, and he was also accused of having a professional relationship with one of the Appellants (which had not been disclosed); and
  4. the Appellant's town planner was accused of improperly liaising with the Appellants' solicitor while the joint report was in preparation (although evidence was given by the solicitor which effectively cleared that issue). He was also criticized for not visiting the site, but basing his opinions on photographs and street views available on the internet.

Decision: The Court held, in allowing the appeal and refusing the development application, that:

  1. The demolition conflicted with the planning scheme, which favoured retention of the service wing. It is a significant heritage place, if not a highly significant one. The loss of the service wing would detract from the heritage significance of itself and of the aggregation of the Plumb's Chambers.
  2. The proposal conflicted with the planning scheme not only because of the destruction of a heritage place intended to be retained, but also in a subsidiary way because of the impact on streetscape. It would not be compatible with the streetscape to replace the service wing with open space.
  3. The unsympathetic finish of the exterior of the service wing was a matter for regret. However, when it comes to heritage and character protection, ugliness is not a disqualifying factor.
  4. The ground raised by the Second Co-Respondent to overcome conflict with the planning scheme was tied to the Second Co-Respondent's economic interests. There was no need to demolish the service wing. Whatever had to be done to save the principal building could be done without interference with the service wing. The proposed ground did not justify ignoring the conflict with the planning scheme.
  5. The demolition would not "destroy" the cultural heritage significance of the place as a whole. However, the demolition would "substantially reduce" the cultural heritage significance, whether a qualitative or quantitative approach was taken.
  6. Properly construed, the planning scheme required the development application to be subject to impact assessment not code assessment. It was undesirable to have level of assessment depending on a value judgment.
  7. In relation to the credit of the experts, none of the professional relationships precluded the entitlement of any of the experts to give evidence. All of the experts understood and gave their evidence consistently with their duty to the Court. There is noting to prevent appropriately qualified persons giving expert evidence even if they are closely related to a party (provided the relationship is properly disclosed), or are parties themselves.
  8. It was understood that the Appellants' experts were acting on a pro bono basis. The Court ought to recognise the financial constraints that litigants confront and (unless there is a reason to take a different line) receive the evidence offered, according it appropriate weight. The use of 'in-house' experts typically produced evidence that was prepared and presented in a professional way and useful to the Court. Parties are aware of the risk that the Court may only give limited weight to an in-house or related expert's report.

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