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
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
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
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
You may read the full text of David's paper by following
If passed by the Parliament in its current form, the Retail Leases Amendment (Review) Bill 2016 will represent a significant update to the Retail Leases Act 1994 (Act).
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