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ACT CIVIL & ADMINISTRATIVE TRIBUNAL
212 NORTHBOURNE PTY LIMITED v ACT HERITAGE
COUNCIL & ANOR (Administrative Review) [2016] ACAT 30
AT 22 of 2015
Catchwords: ADMINISTRATIVE REVIEW – heritage listing – Late
Modern style of architecture – whether Territory level
significance is sufficient in order to decide to register a place
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 68
Australian Capital Territory (Self-Government) Act 1988 (Cth)
s 22
Environment Protection and Biodiversity Conservation Act
1999 (Cth) at ss 12, 13, 15B, 15C, 324C, 324D
Heritage Act 1977 (NSW) ss 4, 4A, 10
Heritage Act 2004 ss 3, 7, 8, 10, 17, 18, 28, 32, 34, 35, 36, 37,
38, 39, 40, 41, 111, 112, 114, 114A, 119 sch 1
Heritage Legislation Amendment Act 2014 s 202
Legislation Act 2001 ss 122, 255
Subordinate
Legislation: Environment Protection and Biodiversity Conservation
Regulations 2000 (Cth) s 10.01A
Heritage Regulations 2006 s 10
Cases cited: Eastman v Director of Public Prosecutions (2003) 214 CLR
318
McDonald v Director-General of Social Security (1984) 1 FCR
354
Tan v Vocational Registration Appeal Committee (1996) 71
FCR 405
List of
Texts/Papers cited: Apperly, Richard, Robert Irving and Peter Reynolds, A
Pictorial Guide to Identifying Australian Architecture: Styles
and Terms from 1788 to the Present (Angus & Robertson,
Sydney, 1994)
Bennion on Statutory Interpretation A Code (6th edition, 2015)
Boer, Ben and Graeme Wiffen, Heritage Law in Australia (2006)
2
Canberra: An Architectural Guide to Australia’s Capital, (Royal
Australian Institute of Architects, ACT Chapter, 1982)
Committee of Inquiry into the National Estate Report of the
National Estate (1974)
Goad, Philip and Julie Willis The Encyclopedia of Australian
Architecture (Cambridge University Press, 2012)
Pearce, D C and R S Geddes Statutory Interpretation in
Australia (7th
edition, 2011
Taylor, Jennifer, Australian Architecture since 1960, (The Law
Book Company, Sydney, 1986); second edition (Royal
Australian Institute of Architects, Canberra, 1990)
The Future Canberra, (Angus & Robertson, Sydney, 1965)
Tribunal: Senior Member R. Orr (Presiding)
Senior Member R Pegrum
Date of Orders: 14 April 2016
Date of Reasons for Decision: 14 April 2016
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 22/15
BETWEEN:
212 NORTHBOURNE PTY LIMITED
Applicant
AND:
ACT HERITAGE COUNCIL
Respondent
AUSTRALIAN INSTITUTE OF ARCHITECTS
Party Joined
TRIBUNAL: Senior Member R Orr (Presiding)
Senior Member R Pegrum
DATE: 14 April 2016
ORDER
The Tribunal Orders that:
1. The decision of the ACT Heritage Council on 12 February 2015 under section
40 of the Heritage Act 2004 concerning the building on Block 3 Section 3
Braddon (the former AAA building) is set aside, and is substituted by a decision
under section 40 that the former AAA building has heritage significance by
operation of section 10(g) and should be registered on that basis.
2. The Council should register the former AAA building in accordance with this
decision.
………………………………..
Senior Member R Pegrum
for and on behalf of the Tribunal
2
REASONS FOR DECISION
1. On 12 February 2015 the ACT Heritage Council (Heritage Council or
Council) decided to register the former AAA building, on Block 3 Section 3
Braddon, at 212 Northbourne Avenue (Building or former AAA building, and
sometimes former CSC building), on the ACT Heritage Register.
2. The decision was made under section 40 of the Heritage Act 2004 (ACT)1
(Heritage Act) and that Act relevantly provided that the Heritage Council could
decide to register a place, which included a building, if:
(a) it demonstrates a high degree of technical or creative achievement, by
showing an exceptionally fine level of application of existing techniques or
approaches (section 10(a) of the Heritage Act);
(b) it is important as evidence of a distinctive design that is of exceptional
interest (section 10(c)); or
(c) it is a notable example of a kind of place or object and demonstrates the
main characteristics of that kind (section 10(g)).
3. The owner of the Building, 212 Northbourne Pty Limited (applicant),
challenges this decision.
Summary of Tribunal decision
4. The applicant raised a range of issues in relation to the process towards the
decision of the Heritage Council to register the Building, including that the
applicant did not receive appropriate notice and was denied an opportunity to be
properly involved in the process.2 Because of the issues raised by the applicant,
the Tribunal sets the decision aside. The Tribunal does not think it appropriate
to remit the decision to the Heritage Council for a further decision, and
therefore makes a substitute decision itself.
5. A key issue in the hearing was whether Territory level heritage significance is
sufficient in order to decide to register a place, or whether national or world
1 In the relevant form as it stood immediately prior to 3 October 2014, see paragraph 13 below 2 Applicant’s closing submissions at [24]
3
level heritage significance is required. The Tribunal finds that Territory level
heritage significance is sufficient.
6. In relation to the criterion in section 10(a), the Tribunal finds that the Building
shows a high level of application of existing techniques or approaches, but is
not convinced that it reaches the required exceptionally fine level. This criterion
is not met.
7. In relation to the criterion in section 10(c), the Tribunal finds that the Building
is evidence of the Late Modern style, but is not convinced that the style is of
exceptional interest. This criterion is not met.
8. In relation to the criterion in section 10(g), the Tribunal finds that the Building
is in the Late Modern style, demonstrates the main characteristics of that style,
and is a notable example of that style. This criterion is met. The decision of the
Tribunal is that the Building should be registered on this basis.
9. These reasons describe the Building in part A, the legislative framework for the
decision in part B, and the process of consideration by the Heritage Council in
relation to its decision to register the Building in part C. Part D summarises the
Tribunal’s consideration. The Tribunal then considers the key issues raised by
the applicant in relation to the Heritage Council’s process, and sets out its
reasons for setting the Heritage Council’s decision aside (part E). The Tribunal
then discusses some key general issues in relation to the decision whether to
register the Building, including the level of heritage significance required (part
F). The evidence in relation to the Building and criterion (a) are considered in
part G, followed by that for criterion (c) in part H, and criterion (g) in part I.
A. The Building
10. The Building at 212 Northbourne Avenue was opened in September 1979 as the
national headquarters of the Australian Automotive Association, which
represented the interests of Australian motorists and motoring organisations
nationally and internationally. Northbourne Avenue is the main approach road
to Canberra from the north. Between 1957 and 1989, development in the central
areas of Canberra was under the control of the National Capital Development
Commission (NCDC) who placed emphasis on the “architectural merit of
4
buildings, based on the enduring qualities of appropriate scale, good proportions
and fine materials.”3
11. The prominent Adelaide architecture practice of Cheesman, Doley, Neighbour
and Raffen (later Raffen Maron) were appointed as architects for the Building.
Guy Maron joined the Cheesman office as a partner in 1973. The NCDC
nominated Mr Maron to be architect in charge of the building project because he
had been one of six finalists in the 1972 two-stage competition for the design of
the High Court in Canberra. The chief architect of the NCDC noted at the time
that “although the building is quite small, its form could still be determined by
an imaginative structure. I can envisage a fairly delicate structural cage with
largish areas of glass and not too much blank wall.”4
12. Evidence was given to the Tribunal that the Association sought a building
identity appropriate to its function and membership. The architects were
instructed to “combine maximum office space and low maintenance cost to
maximise the return to the client.” When the Building was completed, the
Association noted that:
a number of innovative features have been incorporated in the design, not
only enhancing the building’s appearance and flexibility, but achieving
significant savings in energy requirements … the building is expressed as
a curved wall of clear anodised aluminium sheeting and continuous strips
of frameless hermetically sealed windows, tinted grey to reduce the
penetration of sunlight and heat.5
In summary, this is a three-story office building on the east side of Northbourne
Avenue, which curves away from the Avenue on a north-west to south-east
orientation, with services contained in towers at either end, and a basement
parking area.6 The style and key features of the Building are discussed further
below.
3 Exhibit R4, statement of David Flannery, report at [68] and attachment C, NCDC, The Future
Canberra, (Angus & Robertson, Sydney, 1965), page 42 4 Exhibit R16, statement of Michael Queale, report at [17] and [19]and appendix pages 37-38,
minute from Paul Reid dated 19 April 1977, and appendix pages 62-68, Goad, Philip and Julie Willis The Encyclopedia of Australian Architecture (Cambridge University Press, 2012)
5 Exhibit R16, statement of Michael Queale, report, appendix pages 13-27, brochure for official opening of the Building on 10 September 1979, at page 24; and appendix page 58, Architecture Australia, Volume 71, No. 1, January 1982, page 52
6 Exhibit T1, T documents, pages T46 and T365
5
B. Legislative context
13. The relevant legislation is the Heritage Act as it stood immediately prior to
amendments made by the Heritage Legislation Amendment Act 2014 (ACT)
(2014 Amendment Act), which came into operation on 3 October 2014.
Section 202 of the current Heritage Act, which was inserted by the 2014
Amendment Act, provides for that version of the Heritage Act to continue to
apply to certain decisions in relation to registration and states as follows:
This Act, as in force immediately before the commencement day,
continues to apply to the following:
…
(b) if the public consultation period has begun under section 37
for a decision about registration under section 40 – the
decision under section 40 and any matter under part 6
(including a decision or action by the council or any other
person) resulting from the decision;
…
The ‘commencement day’ is defined in section 200 of the current Act as the
day the 2014 Amendment Act, section 23 commenced. The public
consultation period for the decision about registration of the Building began
on 18 September 2014.7
14. The main objects of the Heritage Act include “to establish a system for the
recognition, registration and conservation of natural and cultural heritage places
and objects, including Aboriginal places and objects.”8 The key concepts for
registration are a ‘place or object’ of ‘heritage significance’. Section 8(1)(c) of
the Heritage Act provides that place includes “a building or structure, or part of
a building or structure, at the place.” The Building is therefore a place for the
purposes of the Act.
15. Section 10 then provides that a place or object has heritage significance if it
satisfies one or more criteria, known as the heritage significance criteria. It was
agreed in these proceedings that the relevant criteria are:9
7 Exhibit T1, T documents, pages T158-159; section 37 of the Heritage Act; Outline of
respondent’s submissions at [2] 8 Section 3(1)(a) of the Heritage Act 9 Applicant’s closing submissions at [6]; Outline of respondent’s submissions, discussed
generally at [22]-[77]
6
(a) it demonstrates a high degree of technical or creative achievement
(or both), by showing qualities of innovation, discovery, invention
or an exceptionally fine level of application of existing techniques or
approaches;
…
(c) it is important as evidence of a distinctive way of life, taste,
tradition, religion, land use, custom, process, design or function that
is no longer practised, is in danger of being lost or is of exceptional
interest;
…
(g) it is a notable example of a kind of place or object and demonstrates
the main characteristics of that kind;
…
16. Another main object of the Act is to establish a Heritage Council,10
which is the
relevant decision making body. The members of the Council are the conservator
of flora and fauna,11
the chief planning executive,12
three public
representatives13
and six experts.14
The Council therefore has both public
representatives and expert members.
17. The procedure for heritage listing is a two stage process; provisional
registration15
and then registration.16
A place can be nominated for provisional
registration,17
and the Heritage Council must decide whether to provisionally
register each place nominated.18
The Council may also decide to provisionally
register a place that has not been nominated for provisional registration.19
Section 32(3) provides:
(3) The council may provisionally register a place or object only if
satisfied, on reasonable grounds, that the place or object may have
heritage significance.
18. Provisional registration must be notified20
and the notice must include an
invitation to make comments.21
A report which identifies issues raised in
10 Section 3(1)(b) of the Heritage Act 11 Section 17(1)(a) of the Heritage Act 12 Section 17(1)(b) of the Heritage Act 13 Section 17(1)(c) and (3) of the Heritage Act 14 Section 17(1)(d) and (4) of the Heritage Act 15 Division 6.1 of the Heritage Act 16 Division 6.2 of the Heritage Act 17 Section 28 of the Heritage Act 18 Section 32(1) of the Heritage Act 19 Section 32(2) of the Heritage Act 20 Section 34 of the Heritage Act 21 Section 37 of the Heritage Act
7
comments and includes a copy of those comments must be given to the
Minister.22
The Minister may require further consideration.23
19. Section 40 then provides:
(1) If a place or object is provisionally registered, the council must
decide whether to register it under this division.
(2) The council must register the place or object only –
(a) after complying with any direction by the Minister under
section 39;
(b) if satisfied, on reasonable grounds, that it has heritage
significance.
20. Under section 41(2) the Council may register a place only if there is no appeal,
or any appeal is finally decided and the registration is consistent with any
decision on the appeal. Appeal is defined in the Dictionary to mean an
application to the Tribunal to review the decision.
21. Another main object of the Act is “to establish enforcement and offence
provisions to provide greater protection for heritage places and objects.”24
And
another “to provide for a system integrated with land planning and development
to consider development applications having regard to the heritage significance
of places and heritage guidelines.”25
It is sufficient to note in this context that
registration of a building can have significant legal consequences, in particular
for the owner of the building.
C. Consideration of the Building by the Heritage Council
22. In 1999 the Royal Australian Institute of Architects (RAIA) accepted a Heritage
Council grant for a project entitled ‘Register of Significant Twentieth
Architecture – to prepare 5 nominations to the ACT Heritage Register’.26
The
RAIA indicated in 2000 that the Building would be studied for the writing of
the five citations under the grant.27
Work was done on a nomination for the
22 Section 38 of the Heritage Act 23 Section 39 of the Heritage Act 24 Section 3(1)(d) of the Heritage Act 25 Section 3(1)(e) of the Heritage Act 26 Exhibit T1, T documents, pages T400-409, see especially T409 27 Exhibit T1, T documents, letter from RAIA, page T399
8
Building. The RAIA appeared to believe that the Building had been nominated,
as noted in a document provided to the Heritage Council in January 2009.28
23. At its meeting on 7 July 2011, the Council noted that a nomination was received
for ‘CSC Building, 212 Northbourne Avenue completed in 1979 and designed
by Adelaide firm of Raffen Maron Architects,’ which is the Building.29
The
Council then proceeded to consider the nomination as set out below. There is a
range of other references to the nomination in the T documents. 30
No document
in the form of a nomination was provided to the Tribunal. However the
document in relation to the Building contained on the Register of Significant
Twentieth Century Architecture (RSTCA) is contained in the T documents,31
and it seems likely that what was called the nomination (or sometimes the draft
citation) was the RSTCA entry for the Building.32
There was an issue before the
Tribunal as to whether there had in fact therefore been a nomination, and a valid
provisional registration.
24. The Heritage Act provided, for a period, for an application under the previous
regime to be taken to be a nomination for provisional registration of the place
(section 127, which expired on 9 March 2006). It is unclear if the RSTCA entry,
or anything else, in relation to the Building fell within this provision.33
Section
119 of the Heritage Act provides that the Minister may, in writing, approve
forms for the Act, and that if the Minister approves a form for a particular
purpose, the approved form must be used for that purpose.34
A nomination form
was approved on 9 August 2006.35
The RSTCA entry is not in this form.
Importantly the form requires information as to the current owner; asks if the
28 Exhibit T1, T documents, letter and submission from RAIA dated 29 January 2009, pages
T372-382, see esp. T374 29 Exhibit T1, T documents, minutes of ACT Heritage Council meeting, 7 July 2011, pages
T345-356, see esp. T351. The acceptance had been recommended by the Register Taskforce, see exhibit T1, T documents, minutes of Register Taskforce meeting, 21 April 2011, pages T357-359, see esp. T357
30 In addition to those noted, see for example Exhibit T1, T documents, pages T339 and T342 31 Exhibit T1, T documents, Register of Significant Twentieth Century Architecture in relation
to the Building, pages T365-369 32 Exhibit T1, T documents, email from Mary Gleeson, ACT Heritage dated 19 January 2010,
page T364; email from Jennifer Dunn dated 7 February 2011, page T360; email from Fiona Moore dated 18 November 2014, page T111
33 Mr Martin submitted that the ‘nomination’ predated the Heritage Act, see Transcript of Proceedings 19 October 2015, page 21, line 40 and following
34 Section 119(1) and (2) 35 ACT Heritage Register – Nomination Form, AF2006-241
9
current owner is aware of the nomination; and does the owner support the
nomination. Use of the form may therefore have raised for consideration the
views of the applicant at an appropriately early stage. The Legislation Act 2001
(ACT) (Legislation Act) also provides for a range of rules in relation to forms
in section 255.
25. But, as the Council argued, it is not necessary to resolve whether a proper
nomination was made, since the Council may also decide to provisionally
register a place that has not been nominated for provisional registration under
section 32(2)). Even if not nominated, the Council could proceed to consider
and provisionally register the Building, even where it mistakenly thought it was
doing so in response to a nomination. As a general proposition, the validity of
an administrative act is unaffected by mistaking the source of the power; rather,
validity depends on whether a relevant power existed.36
The applicant did not
press the issue of the invalidity of the nomination.37
26. A letter was sent to the Building Manager, 212 Northbourne Avenue, Braddon
advising of the nomination.38
The applicant indicated that it did not receive this
notification;39
the Heritage Council did not dispute this.
27. A draft decision that the Building not be provisionally registered40
was
considered by the Register Taskforce on 16 January 2014, but the Taskforce
requested that “the draft citation be further developed.”41
The Building was
considered at subsequent meetings. In this period information was sought from
Guy Maron.42
Further, the Chairperson of the Heritage Council, Duncan
Marshall, was involved in rewriting the draft decision.43
He wrote in an email of
5 July 2014 that he had inverted the outcome of the analysis in the case of some
36 Eastman v Director of Public Prosecutions (2003) 214 CLR 318, at [124] Heydon J, with whom
Gleeson CJ, Gummow, Kirby, Hayne and Callinan JJ agreed 37 Transcript of Proceedings 19 October 2015, page 12, line 13 38 Exhibit T1, T documents, letter from ACT Heritage Council, page T336 39 Exhibit T1, T documents, letter from Meyer Vandenberg dated 9 December 2014, page T98;
Applicant’s closing submissions at [24(i)] 40 Exhibit T1, T documents, draft decision and statement of reasons, pages T305-310 41 Exhibit T1, T documents, minutes of Register Taskforce meeting, page T302 42 Exhibit T1, T documents, letter from Guy Maron dated 11 April 2014 with attachments,
pages T268-274; email correspondence with Guy Maron, pages T277-291 43 Exhibit T1, T documents, email from Duncan Marshall dated 5 July 2014 which attaches a
revised decision, pages T233-239
10
criteria and was suggesting provisional registration.44
Another member of the
Council, Pam O’Neill, replied that if Mr Marshall was really persuaded about
the excellence of the Building she would go along with his view.45
The matter
was finally considered at the meeting of the Register Taskforce on
7 August 2014. The minutes of that meeting noted that “Mr Marshall considered
that…[the Building] may reach the threshold for registration” and that the
“analysis was considered by the Taskforce who agreed that the matter proceed
to Council for consideration.” Further comments were to be provided with a
view to consideration by the Council at its next meeting.46
28. At its meeting on 22 September 2014 the Heritage Council decided to
provisionally register the AAA Building.47
The provisional registration stated
that the Building met the criteria in paragraphs (a), (c) and (g) of section 10 of
the Heritage Act. The terms of the provisional registration were very similar to
those for the later registration, which are set out and discussed below.
29. The provisional registration was notified in a range of ways. The notices invited
written comments on the provisional registration by 22 October 2014.48
30. Meyer Vandenberg, Lawyers made a submission to the Heritage Council on
behalf of the applicant. This indicated an intention to make a further
submission; that this would take some time to prepare; asked that the process be
delayed to consider the issues; and set out arguments as to why criteria (a), (c)
and (g) in section 10 were not met.49
An extension was granted, to enable a
further submission, to 11 November 2014,50
and then to 14 November 2014.51
Representatives of the applicant met with officials of the Council on
10 November, and with members and officials of the Council on 27 November
44 Exhibit T1, T documents, email from Duncan Marshall dated 5 July 2014, page T233 45 Exhibit T1, T documents, email from Pam O’Neill dated 6 July 2014, page T232 46 Exhibit T1, T documents, minutes of Register Task Force meeting of 7 August 2014, T204 47 Exhibit T1, T documents, Heritage (Decision about Provisional Registration of The Former
AAA Building, Braddon) Notice 2014, and provisional entry to the Heritage Register, NI2014460, T-docs, pages T158-170; Minutes of ACT Heritage Council meeting of 18 September 2014, page T179
48 Exhibit T1, T documents, pages T145-157 49 Exhibit T1, T documents, letter from Meyer Vandenberg of 22 October 2014, pages T127-
130 50 Exhibit T1, T documents, email from Anna Gurnhill dated 23 October 2014, page T125 51 Exhibit T1, T documents, email from Fiona Moore dated 23 October 2014, page T112
11
2014.52
No supplementary submission was provided, but there was a letter from
Meyer Vandenberg to the Minister for Planning dated 9 December 2014 which
argued that as there was no nomination which met the requirements, and that
many of the factual assumptions upon which the provisional listing was based
were under challenge, the Minister ought to direct the Council to consider
dismissing the nomination.53
31. There were three other responses to the notification of provisional registration.
The RAIA supported the registration, an individual suggested the Building
should make way for newer public housing, and another individual stated that
they did not understand why the Building needs to be registered as it is well
maintained, and registration will encumber the owner with arguably
unreasonable restrictions.54
32. In response to the submissions, the Minister requested that the Council give
further consideration to the issues raised in the public consultation.55
The
Minister also asked to receive a detailed response to the matters noted in the
letter from Meyer Vandenberg and that the owner or its representative be given
time to provide a response to this detailed response.56
A further submission was
provided by the Council to the Minister and received on 19 December 2014.57
The submission refers to a draft letter, which is not attached to the submission in
the T documents, but the Minister did not agree to this draft letter and asked for
further consultation.
33. On 12 February 2015 the Heritage Council considered the matter; in the minutes
of the meeting it was noted that the applicant had had two meetings, and that
representatives of the applicant had advised that they were not interested in
further consultation. The Council reviewed each issue raised in the summary of
52 Exhibit T1, T documents, minutes of meeting on 27 November 2014, pages T101-102 53 Exhibit T1, T documents, letter from Meyer Vandenberg dated 9 December 2014, pages
T97-99 54 Exhibit T1, T documents, public consultation submissions, pages T131-134; summary of
public consultation submissions, pages T92-96 55 Exhibit T1, T documents, submission received 16 December 2014, pages T74-T96, see esp.
T78 56 Exhibit T1, T documents, letter from the Minister dated 17 December 2014, page T73 57 Exhibit T1, T documents, pages T69-72
12
consultation submissions; the Council agreed its prior decision to provisionally
register was accurately made; and the Council decided to register the Building.58
34. The statement which accompanied the notice of decision provided:59
The former AAA building within its open park like setting stands out as a
bold and sleek metal-clad beacon of modernity amidst a setting of
conventional brick and concrete structures nearby. It is an exemplar of
the Late Twentieth Century Late Modern style with its supremely simple
and elegant form and finish, expressing not just a high-tech quality but
also considerable design skill. [Criterion (c) and (g)]
Designed in 1978 by Guy Maron, its bespoke wall cladding and glazing
system completed in a high quality finish helps to extend the creative
achievement of the design making it still appear as a modern building
over three decades after its completion. [Criterion (a)]
…
Further parts of the statement are discussed below in consideration of the relevant
criteria in section 10.
D. Review by the Tribunal
35. An application for review of the decision of the Heritage Council to register the
Building was made by the applicant to the Tribunal on 12 March 2015. Under
section 111 and schedule 1, column 1, item 3 of the Heritage Act a decision to
register a place under section 40 is a reviewable decision, which is subject to
review by the Tribunal on the application of anyone who made comments to the
Council about the decision.60
As noted above, the applicant did so. By order
made on 24 May 2015 the Australian Institute of Architects was joined as a
party to the proceedings.
36. The hearing of this matter was conducted on 19-22 October and
5 November 2015. A view of the Building was undertaken on the first day of
the hearing. The T documents provided by the Heritage Council in relation to its
decision were admitted as evidence (exhibits T1 and T2). The applicant
provided a statement of facts and contentions dated 18 June 2015 and a reply
58 Exhibit T1, T documents, minutes of Heritage Council meeting of 12 February 2015, draft
form, pages T51-57, see esp. page T55; Heritage (Decision about Registration of The Former AAA Building, Braddon) Notice 2015, NI2015-73, pages T39-50; Exhibit R8, minutes of Heritage Council meeting of 12 February 2015, final form
59 Exhibit T1, T documents, page T41 60 Sections 112 and 114
13
dated 12 October 2015, and relied principally on a bundle of documents
(exhibit A1); a statement dated 18 June 2015 and reply dated 13 October 2015
by Jennifer Hill (exhibits A2 and A3); a statement dated 20 August 2015 and
reply dated 12 October 2015 by Andrew Metcalf (exhibits A4 and A5); and a
statement dated 18 June 2015 and reply dated 13 October 2015 by Juliet Landler
(exhibits A6 and A7). These expert witnesses gave further oral evidence in the
proceedings and were cross-examined. The applicant also provided written
closing submissions, supplemented by oral submissions.
37. The Council as respondent relied on a statement of facts and contentions dated
1 October 2015; a bundle of documents (exhibit R1); a statement by David
Flannery dated 29 September 2015 (exhibit R4); and a statement by Michael
Queale dated 30 September 2015 (exhibit R16). These expert witnesses gave
further oral evidence in the proceedings and were cross-examined. The Heritage
Council also provided a written outline of closing submissions, supplemented
by oral submissions.
38. The RAIA as a party joined relied on a statement of Eric Martin dated
1 October 2015 (exhibit PJ1), who gave oral evidence and was cross-examined,
and provided a written closing submission. The RAIA generally supported the
position of the Heritage Council and the decision to register the Building.
E. Issues with the decision-making process of the Heritage Council
39. The applicant raised a range of issues in relation to the decision-making process
of the Council. In its submission, the applicant argued that the decision should
be set aside and not remitted to the Council, and further that the Tribunal should
decide that the Building not be registered.61
The Council argued for its decision,
and appeared to agree that if set aside the decision should not be remitted, but
that the Tribunal should decide that the Building be registered.62
The Tribunal
first considers the issues raised about the decision-making process.
61 Applicant’s closing submissions at [15], [26] 62 Transcript of Proceedings 22 October 2015, page 306, line 36 to page 307, line 6
14
E.1 Nomination
40. One of these concerned whether there was a nomination, though this was not
pursued by the applicant. At any rate this has been considered above at
paragraphs 23-25.
E.2 Notice
41. A second issue was the failure to notify the applicant of the proposal for
provisional registration, resulting in a denial of procedural fairness.63
As
discussed above the applicant did not receive notice of the process until
provisional registration. The failure to require a nomination in the approved
form may have contributed to this. The Tribunal agrees that this was a poor
administrative process which showed little concern or respect for the legitimate
interests of the applicant. Provisional registration was only one step in the
process, and the applicant did have some opportunity to be heard before the
decision to register was made. However, initially the applicant had only a month
to provide written comments in response to the provisional registration,64
although some minor extensions were granted. The Council had in contrast been
formally considering the Building since July 2011, that is for over three years
and to some extent before then, and the RAIA had been looking at it since
1999.65
This placed the applicant at a significant, inappropriate and unnecessary
disadvantage in having its views heard in the assessment process.
E.3 Expertise
42. A third issue the applicant raised was the failure to ensure that adequate
expertise in architecture and architectural history was brought to bear in the
decision-making process.66
The Council does appear to have relied principally
on the ‘nomination’ by the RAIA, and its own expertise, rather than seeking any
other experts. As noted above, under section 17(1)(d) six people are appointed
to the Council as experts, and architecture is one area of expertise.67
Duncan
Marshall as Chair of the Council had expertise in architecture, but further issues
in relation to his involvement are noted below; Dianne Firth was another
member who had expertise in architecture; Pamela O’Neil had expertise in
63 Applicant’s closing submissions at [24(i)] 64 Exhibit T1, T documents, letter to the applicant dated 22 September 2014, page T154 65 See paragraphs 22-23 above 66 Applicant’s closing submissions at [24(ii)] 67 Section 17(4)(d) of the Heritage Act
15
heritage, land and planning law.68
Fiona Moore, a staff member in the ACT
Heritage Unit, has an architecture degree.69
Information was collected from Guy
Maron, the architect.70
It does not appear that any attempt was made to obtain
independent expert advice from outside the Council; but such advice has been
obtained for these proceedings.
43. There was no legal requirement to obtain independent expert advice for the
decision-making process; as noted the Heritage Act establishes the Council in
such a way that it contains significant expertise; and the Tribunal does not think
that there are generally grounds for concern in relation to the process simply on
this basis. However, in this case it is now clear that the owner, the applicant,
objects to the registration. If the applicant had been notified earlier, it would
have no doubt voiced its concerns earlier. Where the application is opposed,
independent expert advice would improve the process.
E.4 Role of Mr Marshall
44. The applicant also raised a number of issues in relation to the role of Duncan
Marshall in the process.71
Mr Marshall was involved in researching and writing
the citations for the RSTCA and which formed the basis for consideration for
registration.72
It appears that this was however principally in relation to another
nominee, Churchill House.73
45. Mr Marshall was the Chair of the Register Taskforce and the Heritage Council
throughout the process concerning the Building. Also, as noted above, it is clear
that Mr Marshall was heavily involved in rewriting the draft decision to provide
for provisional registration, and in supporting this registration.
46. At meetings of the Taskforce and the Council, Mr Marshall declared, in various
terms, his previous role with the RAIA and “a possible association with the
68 Exhibit R9, Heritage Council member qualifications; Exhibit R11, cv for Pamela O’Neil 69 Exhibit R13, cv for Fiona Moore 70 Exhibit T1, T documents, emails and documents from Guy Maron, pages T277-291 71 Applicant’s closing submissions at [24(iii)-(v)] 72 Exhibit T1, T documents, ACT Heritage Grants Program, Final Report as at 31 August
2006, pages T388-397, see esp. page T391 73 Exhibit T2, Supplementary T documents, invoices from Graeme Trickett, page ST27, and
Duncan Marshall, page ST29
16
AAA Building,” more specifically through research of the Building, and its
inclusion on the RSTCA.74
47. Under regulation 10(1) of the Heritage Regulations 2006 (ACT), if a member of
the Council has a material interest in an issue being considered, or about to be
considered, by the Council, the member must disclose the nature of the interest
at a Council meeting as soon as practicable after the relevant facts come to the
member’s knowledge. Further, unless the Council otherwise decides, the
member must not be present when the Council considers the issue, or take part
in a decision of the Council on the issue.75
‘Material interest’ is broadly defined
in regulation 10(4). There is no indication in the minutes of the meetings that
Mr Marshall absented himself from discussion or decision-making in relation to
the Building, nor of any relevant decision of the Council.
48. The applicant did not seek a finding that Mr Marshall had a conflict of interest
or that there was a breach of regulation 10. Further inquiry would be necessary
to consider this. The applicant did argue that the fact that Mr Marshall may have
been involved in the RAIA considerations and the ‘nomination’ of the Building,
and was then heavily involved in the consideration of that nomination by the
Council, was an additional issue in relation to the process. Also, the Council
relied heavily on the work of the RAIA, which either nominated, or at least
proposed for consideration, the Building (see paragraphs 22-23 above) and
consulted Mr Maron, who was the architect for the Building being considered
for registration (see paragraph 27 above). The Tribunal agrees that these are
relevant factors, especially when combined with the absence of the involvement
of the applicant in the provisional registration decision, and the absence of other
independent architectural expertise in the process.
E.5 Heritage Assessment Policy
49. The applicant also raised the failure to ensure that it was informed of the
adoption by the Council of a new Heritage Policy in 2014, and also the failure
to apply the Policy in any event.76
74 Exhibit T1, T documents, pages T177, T201, T250, T292, and T300 75 Regulation 10(2) 76 Applicant’s closing submissions at [24(vi)-(vii)]
17
50. David Flannery, now Chairperson of the Heritage Council, referred in his report
to the Heritage Assessment Policy which was adopted by the Council in
February 2014 (Heritage Assessment Policy), with an updated version adopted
in February 2015. Mr Flannery in particular noted that the Heritage Assessment
Policy provided that a place may be entered to the Register only if it has
Territory level significance, or higher; he stated that this is consistent with the
Act; and that a place has Territory level significance if its heritage values
contribute to our understanding and appreciation of the broad pattern and
evolution of the ACT’s history and heritage. National heritage places are those
that are of outstanding heritage significance to Australia as a nation, while
world heritage properties are important to everyone. Mr Flannery noted that this
can be visualised as a pyramid; the pyramid he shows, which is also included in
the Policy, has personal or family heritage, interest group heritage and local
heritage below Territory heritage, and below what is described as the ‘heritage
criteria threshold’.77
The concept of Territory heritage significance is considered
further below, but first consideration needs to be given to the role of the Policy.
51. The Heritage Council tendered the minutes of a meeting of the ACT Heritage
Council on 6 February 2014 which notes that the Council endorsed a Heritage
Assessment Policy and Information Sheet.78
It would seem that the Policy
existed from this time, but there are some curious issues in relation to its role
from then on.
52. First, notwithstanding the comments of Mr Flannery, there is no reference to the
Heritage Assessment Policy in the documentation for the provisional
registration79
or registration,80
nor in any of the decision-making documents of
the Council. It is not referred to in the proposed entry for the Heritage Register,
which is, in effect, a statement of the reasons for the decision of the Council.81
Indeed the applicant submits there is no evidence that the Council ever applied
the Policy.82
77 Exhibit R4, statement of David Flannery, report at [24]-[29] 78 Exhibit R5 79 Exhibit T1, T documents, pages T159-195 80 Exhibit T1, T documents, pages T39-57 81 Exhibit T1, T documents, pages T39-50 82 Applicant’s closing submissions at [54]
18
53. More significantly for these proceedings, the Policy is not in the T documents
before the Tribunal.83
These T documents were provided under an order by the
Tribunal to the Council which required production of “every document or part
of a document that is in the respondent’s possession or under its control and is
considered by it to be relevant to the review of the decision by the Tribunal.”84
54. Further, a statement was provided to the Tribunal by Michael James Phillis, an
employed solicitor with Mills Oakley, who now act for the applicant, dated
21 October 2015.85
Mr Phillis stated that the previous solicitors for the applicant
requested on 14 October 2014 all documents on which the Council based its
decision to provisionally register the Building. He stated that the records he had
showed that there was no reply to this request;86
however there was an email
response from the Heritage Council on 14 October 2014, in which a link was
provided to a list of references;87
it was not suggested that the Heritage
Assessment Policy was included in the list. An email confirmed that this list
was the documents the Council had reference to when making its decision.88
Next those solicitors made a request under the Freedom of Information Act 1989
(ACT) for access to the entire file that the Heritage Council holds in relation to
the provisional listing of the Building. These documents were provided but did
not include the Heritage Assessment Policy.89
55. The Heritage Council indicated at the hearing that the Heritage Assessment
Policy had been published on the Council’s website since around June 2014.
Emails were tendered which showed some elements of the process towards
doing so.90
Another email from Anna Gurnhill to ‘stakeholders’ dated
17 July 2014 advised of the Heritage Assessment Policy and noted that it was
on the ACT government’s website.91
The statement of Mr Phillis indicated that
his search on 19 October 2015 of the relevant site of the ACT Environment and
Planning Directorate did not find a link or reference to the Heritage Assessment
83 Exhibits T1 and T2 84 Orders of 16 March 2015 85 Exhibit A9 86 Exhibit A9, statement of Michael Phillis at [5] 87 Exhibit T1, T documents, email dated 14 October, 2014 from Anna Gurnhill, pages T136-
T137 88 Exhibit T1, T documents, pages T135-136 89 Exhibit A9, statement of Michael Phillis at [6]-[7] 90 Exhibit R10, emails regarding Heritage Assessment Policy 91 Exhibit R6, email from Anna Gurnhill dated 17 July 2014
19
Policy. Further, by using an internet site known as the Internet Archive Way
Back Machine to do a number of searches, he concluded that the Heritage
Assessment Policy was never accessible by a publicly visible link on the ACT
Environment and Planning Directorate website.92
Mr Phillis did find that a
document entitled ‘Heritage assessment policy factsheet’ was available on the
searches for 7 July and 14 September 2014; this document was found through a
search result for 8 September 2014, and it refers to the Heritage Assessment
Policy and states that it is available by contacting the ACT Heritage Unit.93
He
also found the Heritage Assessment Policy of February 2015 on the search for
3 March 2015.94
A similar search by the Heritage Council however showed that
at least in July 2014 the Policy was available on the website;95
Mr Phillis agreed
that this appeared to be the case.96
56. This means that it seems likely that the Heritage Council did have a Heritage
Assessment Policy at the relevant times, but it did not have regard to that Policy
in making the provisional registration and registration decisions, and that this
was not provided to the applicant and the Tribunal despite various requests to do
so until filing and service of the statement of Mr Flannery. The Policy was, at
very least, not easily available to the public and the applicant. Even when the
applicant was informed of the provisional registration decision, it was not
informed of the existence or possible relevance of the Policy; in the process
towards the registration decision, it was not informed of the existence or
possible relevance of the Policy.
57. The applicant also raised a range of issues in relation to the substance of the
Heritage Assessment Policy. The applicant submitted that while the Council
could have a policy on relevant issues, it could not have a policy which was
inconsistent with the terms of the Act.97
The Tribunal agrees with his
proposition. The applicant argued that the Heritage Assessment Policy was
inconsistent with the Act. We return to this issue below, but given that the
92 Exhibit A9, statement of Michael Phillis at [11]-[27] 93 Exhibit A9, statement of Michael Phillis at [18]-[19] and annexure H to the statement 94 Exhibit A9, statement of Michael Phillis at [21] and annexure I to the statement 95 Exhibit R15, ACT Heritage Council website print out as at 6 July 2014 96 Transcript of Proceedings 21 October 2015, page 194, line 12 97 Applicant’s closing submissions at [7]-[9]
20
Tribunal does not appear to have had regard to the Policy, it is not necessary to
consider it here.
E.6 Conclusion concerning the process of the Heritage Council
58. The applicant raises other issues in relation to the substance of the decision of
the Council. We consider these below. In particular the Tribunal does not think
that the evidence supports a finding of heritage significance under the criteria in
section 10(a) and (c). But the issues noted in relation to the process of
consideration by the Council have led the Tribunal to set aside the decision of
the Council.
59. In such circumstances, under section 68 of the ACT Civil and Administrative
Tribunal Act 2008 (ACT) the Tribunal may substitute its own decision for that
of the Council or remit the original decision to the Council. The applicant
argued that there were significant problems in remitting the decision to the
Heritage Council for its consideration.
60. The applicant argued that if the decision were remitted, the Council would not
be able to deal with the matter. This is because in order for the Council to
decide whether to register a place, it must be provisionally registered,98
and it
was said that provisional registration had ended because section 35(2) provides
that “provisional registration ends if the place…is registered under division
6.2.” It is not correct that provisional registration has ended on this basis. While
the Council has decided to register the Building, section 41(2) provides that it
can be registered only if, relevantly, the appeal period has ended and no appeal
has been made, or any appeal has been finally decided and the registration is
consistent with any decision on the appeal. Section 41 has now been omitted
from the Heritage Act, and in effect replaced by section 114A, but in this case it
continues to operate.99
These requirements in section 41(2) are additional to
those in section 40(2). While some of the materials talk of the Council
registering the Building, this cannot be legally correct in light of section 41(2).
Therefore the provisional registration has not in law ended under section 35(2).
98 Section 40(1) of the Heritage Act 99 By operation of section 202(b) of the 2014 Amendment Act, until this expires under section
204, see paragraph 13 above
21
61. However, in addition, the provisional registration is only for five months, or for
such further extended period as the Minister decides, though the Minister can do
so only on limited grounds which are not relevant here.100
The five month
period has now passed. However, section 41(2) is also relevant here, since it
provides that the Council may register a place if any appeal has been finally
decided and the registration is consistent with any decision on the appeal. Such
registration does not require an existing provisional registration. This would
allow the Council to implement a decision by the Tribunal. It is not clear that
this extends to the Council making a fresh decision on remittal, though it may
do so, otherwise the appeal process could be futile.
62. At any rate, the applicant also argued that the matter should not be remitted
because the Council would not be free from the appearance of bias in
undertaking any reconsideration, it having taken an active role in the Tribunal
proceedings, and has at no time acknowledged the flaws in the decision making
process.101
Another reason is that the Tribunal has had available to it not just the
documents from the Heritage Council’s process, but also extensive further
expert evidence on this issue. The applicant has also had a full opportunity to
participate in these proceedings, in contrast to the Council’s considerations. The
Council itself did not argue for remittal if the decision is set aside.102
63. On this basis the Tribunal is of the view that the decision should not be remitted
to the Heritage Council, but the Tribunal should decide the matter itself in light
of the extensive evidence before it. The Tribunal agrees with the applicant that
given the nature of the decision under the Heritage Act, the Tribunal can decide
to register the Building only if it reaches the required state of satisfaction that
the criteria in the Act are met.103
F. Issues relevant to the criteria in section 10
64. There are a number of general issues which were relevant to the application of
the criteria in section 10. The Tribunal considers these before addressing the
specific relevant criteria.
100 Section 36 of the Heritage Act 101 Applicant’s closing submissions at [23] 102 Transcript of Proceedings 22 October 2015, page 306, line 36 to page 307, line 6 103 Applicant’s closing submissions at [64]-[68], see esp. [68]; McDonald v Director-General of Social
Security (1984) 1 FCR 354
22
F.1 Style of the Building
65. The Heritage Council found the former AAA building to be “an exemplar of the
Late Twentieth-Century Late Modern style.”104
66. The architectural style known as ‘Late Twentieth-Century Late Modern 1960-’
(Late Modern) has been described by Richard Apperly et al (Apperly) as
follows:105
By the end of the 1970s it was clear that Post-Modern was a recognisable
style which was not going to go away, however much its opponents attacked
what they felt were its superficiality and obsession with historicism…with
modernism now proclaimed dead and with post-modernism starting to gain
ground, a style name was needed to identify a new breed of buildings which
seemed to owe more to the deceased modern movement than anything else.
The label Late Modern was therefore created.
Late Twentieth-Century Late Modern buildings avoided most of the allusions,
irony and self-mockery of post-modernism, although they sometimes paid
homage to Inter-War Functionalism. They also modified the uncomplicated
predictable matchbox shapes of the International style by slicing, chamfering
or serrating them, by stressing the 45-degree angle in plan and elevation, or
by relinquishing the rectangular prism in favour of pyramidal, cylindrical or
free-curved shapes. Late Modern architecture was nothing if not sleek and
glossy. It strove to convey the image of the formidable technology of the
computer and the satellite, a technology that was not yet practical for
everyday use in the building industry even though it appeared overseas in such
tours de force as the Hong Kong and Shanghai Bank and the Lloyds of London
Building.
An Australian strand of late modernism emerged. It could be seen in the
carefully detailed, minimalist, metallic houses of Glenn Murcutt and others.
Precision, lightness and elegance characterised these buildings, with a
refreshing absence of the rather empty slickness found in so many examples of
the Late Modern commercial idiom. [Emphasis in the original.]
67. With the exception of Mr Metcalf, the expert witnesses before the Tribunal
accepted the classification of the Building as an example of the Late Modern
style.106
Mr Metcalf argued that ‘Late Twentieth-Century Late Modernism’
should be seen only as a period within the style known as Modernism and that
104 Exhibit T1, T documents, pages T41 and T45 105 Exhibit R 16, statement of Michael Queale, report, appendix pages 71-73, Apperly, Richard,
Robert Irving and Peter Reynolds, A Pictorial Guide to Identifying Australian Architecture: Styles and Terms from 1788 to the Present (Angus & Robertson, Sydney, 1994) page 260
106 Exhibit A2, statement of Jennifer Hill, report pages 10-14; Transcript of Proceedings 19 October 2015, page 25, line 10; Exhibit R4, statement of David Flannery, report at [50]-[73]; Exhibit R16, statement of Michael Queale, report at [47]-[67]. Juliet Landler principally gave evidence on the curtain wall technology
23
the appropriate architectural style of the former AAA building is Modernism.
He suggested that “periodising architectural history with the construction of a
convoluted category like Late Twentieth-Century Late Modern may be
expedient but not particularly productive. Its use in the case of the former AAA
building implies membership of an elite category which may or may not be
warranted.” In his opinion, “the whole 20th
century was a period of the ‘modern’
residing in architecture in different ways in different parts of the world, even
differently in different parts of Australia”. Mr Metcalf concluded that the
“specificity of the subject building is more relevant than the claim that it has
status from the assertion that it belongs to any stylistic category.”107
68. The Tribunal notes the opinion of Ms Hill that Modernism as a whole was
“incredibly important” in the history of architecture. Ms Hill did not think that
Late Modern is more important “than the principles of Modernism generally,
which were being debated from the middle sixties.”108
The Council contended
that the Late Modern style was of exceptional interest in the ACT because it
was “the form of architectural modernism embraced by the NCDC for
Canberra’s major post-war expansion.”109
69. Notwithstanding the statements of Mr Metcalf, on the basis of the views of the
other experts the Tribunal accepts that the Building is in the Late Modern style.
The applicant acknowledged that the evidence supported this view.110
70. The Tribunal discusses further below the styleof the Building in its
consideration of the criteria for the assessment of the heritage significance.
F.2 Territory heritage significance
71. As noted, the Building can be registered only if the decision-maker is satisfied,
on reasonable grounds, that it has heritage significance.111
A place has heritage
significance if it satisfies one or more of the criteria in section 10 of the
Heritage Act. There are a number of important adjectives and adverbs used in
the section 10 criteria, in particular ‘high’ degree, ‘exceptionally fine’ level (in
paragraph (a)), ‘exceptional’ interest (in paragraph (c)) and ‘notable’ example
107 Exhibit A4, statement of Andrew Metcalf at [13] 108 Transcript of Proceedings 19 October 2015 page 42, line 38 and following 109 Outline of respondent’s submissions at [66] 110 Applicant’s closing submissions at [117] 111 Section 40(2)(b) of the Heritage Act
24
(in paragraph (g)). These terms, in part, import a comparison between the place
under consideration and other places. As Mr Metcalf noted in his oral evidence,
to make a heritage assessment of a building in the ACT, “you need to, amongst
other things, have reference to comparison, other buildings.”112
There was
considerable argument as to how these adjectives and adverbs and the
comparisons they suggest should be assessed. But it is important to keep in
mind that, as Mr Metcalf indicated and as discussed further below, such
comparisons are only one aspect of the application of the criteria.
72. The Council’s position was that these comparisons, and the issue of heritage
significance, should be assessed at the ACT level, though this did not prevent
comparisons also at the national or international levels.113
That is whether the
Building is a notable example of a kind of place should be assessed in relation
to other buildings in the ACT (Territory heritage significance), though it
could also be assessed in relation to other buildings in Australia (national
heritage significance) or even the world (world heritage significance). In
effect, if a building was a notable example when compared to others around the
world, or in Australia, it was likely also to be a notable example in the Territory,
and could demonstrate heritage significance in this way. But it could also
demonstrate heritage significance if it was a notable example only within the
Territory.
73. The applicant’s position was that the assessment could not be at just the ACT
level, that is on the basis of Territory heritage significance. It argued that the
words in the criteria are intended to be left unaffected by any geographical
limitation to the ACT locality, and invoke a scale of measurement and
comparison of achievement that goes beyond the ACT.114
The applicant was not
always precise about how far beyond; generally this was expressed as Australia,
but it could be the world. In its submission a building could not demonstrate
heritage significance if it was a notable example only within the Territory, but
needed to be of national or world heritage significance.
112 Transcript of Proceedings 20 October 2015, page 72, lines 28-30 113 Outline of respondent’s submissions at [6], and then the discussion of each criteria 114 Applicant’s closing submissions at [30]
25
74. The issue is therefore whether the assessment or comparison can be undertaken
at only the ACT level; both parties agreed it could be done at the national or
world level.
Place or object
75. Both the applicant and the Heritage Council agreed that the place or object
needed to be in the ACT.115
In the Tribunal’s view it seems clear that the
Heritage Act does not intend to enable the registration of a place or object
outside the ACT, even if ACT legislation was able to do so. There is no express
provision to this effect in the Act. But this limitation arises from section 18(a) of
the Heritage Act, and from section 122 of the Legislation Act, and if necessary
the equivalent common law presumption, and from the nature of the Heritage
Act as a law of the ACT.
Adjectival terms
76. As noted, there was no such agreement in relation to the adjectival or adverbial
terms which suggest comparison of the place under consideration with other
places. There is no definition of these terms in the Heritage Act.
Section 122 of the Legislation Act
77. The respondent argued that section 122 of the Legislation Act is relevant.
Section 122(1) provides:
122 Application to Territory
(1) In an Act or statutory instrument—
(a) a reference to an entity or position by name or description
is a reference to the entity or position of that name or
description in or for the Territory; and
(b) a reference to a place, jurisdiction or anything else by
name or description is a reference to the place, jurisdiction
or thing of that name or description in or for the Territory.
78. In relation to paragraph (a), the concept of ‘entity’ is defined in the Legislation
Act to include “an unincorporated body and a person (including a person
occupying a position)”, and ‘position’ includes “office”.116
In relation to
paragraph (b), ‘place’ is not defined in the Legislation Act. In the Heritage Act
115 Applicant’s closing submissions at [29]; Outline of respondent’s submissions at [4] 116 Dictionary to the Heritage Act
26
it includes buildings. Here buildings may be a place, but would at least be
within ‘anything else’.
79. A ‘notable example’ is a reference to a thing by name or description. The
concepts of ‘high degree of creative achievement’ and ‘exceptionally fine level
of application’ in paragraph (a) and ‘design of exceptional interest’ in paragraph
(c) are less obviously a reference to a thing by name or description, though this
is still possible. However the concepts clearly involve comparators of the place
under consideration. Application of the presumption in this context would
require a high degree of creative achievement in the Territory, so that criterion
(a) catches a thing in the Territory, which demonstrates a high degree of
creative achievement when compared with other things in the Territory.
80. At any rate these criteria are defining the concept of ‘heritage significance’.
This can also be the name or description of a thing, and section 122(1)(b) would
give rise to the presumption that this is heritage significance in or for the
Territory, that is that the relevant place in the ACT has significance compared to
other places in the ACT.
81. The applicant argued that section 122 was concerned with things that have a
geographical location; not adjectives or adverbs.117
The applicant pointed to the
fact that the criteria set out the qualities that need to be identified in a place or
object located within the ACT that is a candidate for heritage registration; those
qualities, such as creative achievement or design, are not themselves understood
by reference to the ACT; they do not denote physical things, but rather describe
standards against which a place or object is to be measured.118
82. Section 122 of the Legislation Act is a non-determinative provision which may
therefore be displaced expressly or by a contrary intention.119
The applicant also
argued that if section 122 did apply, there was a contrary intention which
displaced it.
83. This contrary intention, it was argued, arose because some of the criteria in
section 10 do indicate a level of geographic scope: paragraphs (b) and (d) refer
117 Applicant’s statement of facts and contentions in reply at [4]-[5] 118 Applicant’s closing submissions at [30] 119 Sections 5 and 6 of the Legislation Act
27
to ‘community or cultural group’; paragraph (e) refers to ‘significant to the
ACT’; paragraph (h) to ‘local or national history’; and paragraph (j) to the
‘natural or cultural history of the ACT’. The applicant argues that this suggests
that elsewhere the presumption is rebutted and a national or international
heritage significance is implied.120
It is important to note that this submission
involves two steps. First, it must be argued that the presumption is displaced,
that is that the comparisons, and the issue of heritage significance, can be
assessed at the national or international level, as well as at the Territory level.
The Council to some extent agreed with this argument, provided that assessment
at the Territory level can be sufficient. But second, it must be argued that the
presumption is not just displaced, but that it is replaced by the opposite position,
namely that these comparisons, and the issue of heritage significance, cannot be
assessed at the Territory level, but must be assessed only at the national or
international level.
84. However there is at best only a weak indication of this second step of legislative
intent in the paragraphs identified in section 10.121
None of these paragraphs is
relevant in this case. They are all in a different form. If an implication is to be
drawn from them for the other paragraphs, it is unclear what form that
implication should take. For example paragraph (e) states “it is significant to the
ACT because of its importance as part of Aboriginal tradition”; if this suggests
that other paragraphs without geographic indicators must have an alternative
reach, there is a range of such alternatives including local, national, or world, or
a combination of these, with or without Territory level. Alternatively, paragraph
(e) could simply be making clear that the concept of heritage significance is in
fact focused on the ACT, and not other geographical areas which might
otherwise be thought relevant to Aboriginal tradition, and therefore this
criterion. Similarly, paragraph (j) refers to a place or object that “will contribute
significantly to a wider understanding of the natural or cultural history of the
ACT”; this allows for items of primarily local significance to be protected
where they also have this wider significance. The use of these terms seems to be
clarifying potential ambiguities which might arise for the particular criteria,
120 Applicant’s statement of facts and contentions in reply at [5]-[9] 121 Applicant’s closing submissions at [31]-[37]
28
rather than suggesting that elsewhere Territory heritage significance is
irrelevant.
85. The applicant also relies on the use of the phrase ‘promote places and objects in
the ACT’ in section 18(a) (see also 18(c)).122
But there are many examples in
the Act where this express geographic link is absent, but the link to the Territory
is clear: see for example the long title to the Act; the objects of the Act in
section 3; and the definitions of places and objects in sections 8 and 9. There are
also the other paragraphs in section 18 with an express geographic link and,
contrary to the submissions of the applicant, it seems that the references to
public interest,123
public education124
and tourism125
are references to these
things in and for the ACT.126
This suggests that the reference to the ACT in
section 18(a) and (c) is not an indication that elsewhere there is no link to the
Territory.
Common law
86. There is also a common law presumption that a provision is not to have
extraterritorial effect, which is given some legislative effect by section 122 of
the Legislation Act, and that general words are presumed not to extend to cases
governed by foreign law.127
This presumption has been described generally as
that “an enactment applies to all persons and matters within the territory to
which it extends, but not to any other persons and matters.”128
These
presumptions can also be rebutted. They add little to resolving the issue.
Purpose of the Heritage Act
87. In applying the section 122 and the common law presumption much depends on
the nature and purpose of the legislation concerned. In Tan v Vocational
Registration Appeal Committee (1996) 71 FCR 405, Carr J rejected a
submission that in relation to matters of qualifications, training and experience,
these had to be read as if the words ‘in Australia’ were inserted, and stated that
“given the overall objectives of the Act…no such restrictive approach should be
122 Applicant’s closing submissions at [36] 123 Section 18(f) of the Heritage Act 124 Section 18(g) of the Heritage Act 125 Section 18(h) of the Heritage Act 126 Applicant’s closing submissions at [36] 127 Pearce, D C and R S Geddes Statutory Interpretation in Australia (7th edition, 2011) at [5.9]-
[5.12] 128 Bennion on Statutory Interpretation A Code (6th edition, 2015), page 339
29
taken.” In that case failure to apply the presumption meant training in Australia
or overseas could be considered. More generally, section 139(1) of the
Legislation Act provides that in working out the meaning of an Act, the
interpretation that would best achieve the purpose of the Act is to be preferred
to any other interpretation. It is important to turn therefore to the purpose of the
Heritage Act.
88. The long title of the Heritage Act is “to provide for the recognition, registration
and conservation of places and objects of natural and cultural significance, and
for other purposes”. As noted above, the objects of the Act include “to establish
a system for the recognition, registration and conservation of natural and
cultural heritage places and objects, including Aboriginal places and objects”129
,
and a function under the Act must be exercised “to preserve the heritage
significance of places and objects”, and “to achieve the greatest sustainable
benefit for the community from places and objects consistent with the
conservation of their heritage significance.”130
Section 18(a) provides that the
Heritage Council has the function “to identify, assess, conserve and promote
places and objects in the ACT with natural and cultural significance.” The
Revised Explanatory Memorandum for the Bill which became the Heritage Act
stated that it “presents a new set of principles and processes for conserving
significant heritage and places in the ACT.”
89. These indicators of purpose do not expressly address this issue. But they
provide a basis for doing so when the legal context in which they occur is noted.
First this is heritage legislation. The term ‘heritage item’ is defined in the
Macquarie Dictionary online to mean, in relation to law: “landscape, place,
work, building or relic of such significance for past, present, or future
generations that it is deemed worthy of being preserved”. The general term
‘heritage’ is defined more broadly and refers to “the culture, traditions and
national assets preserved from one generation to another”; as discussed below
the reference to national assets is only one example of the level of generality at
which the concept can be applied. The 1974 Report of the National Estate,
which was central to the development of Australian heritage law, noted a
description of the similar concept of the national estate as “the things that you
129 Section 3(1)(a) of the Heritage Act 130 Section 3(1)(a) and (2) of the Heritage Act
30
keep”.131
Therefore the purpose of heritage laws in general, including the
Heritage Act, is to provide for the identification of buildings, and other things,
of such significance that they are deemed worthy of being kept. This should
inform how the Heritage Act is read.
90. Second, it is important to remember that the Territory Assembly makes laws for
the peace, order and good government of the Territory, that is with respect to
the Territory and the people in it.132
Therefore the Heritage Act is to provide for
the identification of buildings, and other things, of such significance that it is
deemed worthy of being kept for the benefit of the Territory and the people in it.
91. Third, the modern regime for the protection of heritage exists at a number of
levels. It is relevant to note these briefly. The Convention for the Protection of
the World Cultural and Natural Heritage [1975] ATS 47 (World Heritage
Convention) defines ‘cultural heritage’ as “monuments, architectural works,
works of monumental sculpture and painting, elements or structures of an
archaeological nature, inscriptions, cave dwellings and combinations of
features, which are of outstanding universal value from the point of view of
history, art or science” (emphasis added).133
It then provides a regime for
protecting these things.
92. The Commonwealth Parliament has implemented its obligations under the
World Heritage Convention. In summary, the Environment Protection and
Biodiversity Conservation Act 1999 (Cth) (Environment Protection and
Biodiversity Conservation Act) at section 12(1) provides, subject to
exceptions for approved actions, that a person must not take an action that has,
will have or is likely to have a significant impact on the world heritage values of
a declared World Heritage property (defined in section 13). A property has
world heritage values only if it contains natural heritage or cultural heritage
within the meaning of the World Heritage Convention.134
93. The Commonwealth regime importantly goes further. The Environment
Protection and Biodiversity Conservation Act provides in sections 15B and 15C
131 Committee of Inquiry into the National Estate Report of the National Estate (1974) at [1.1] 132 Section 22 of the Australian Capital Territory (Self-Government) Act 1988 (Cth) 133 Article 1 134 Section 12(3) and (4) of the Environment Protection and Biodiversity Conservation Act
31
for the protection and management of National Heritage places (defined in
section 324C(3)). A place has a National Heritage value only if the place meets
one of the criteria (the National Heritage criteria) prescribed by the
regulations.135
94. But the Australian heritage regime has generally recognised that heritage, or the
national estate, extends beyond heritage of the world, and heritage of the nation
in the sense of the whole of Australia, to heritage of a State or Territory, and a
third Australian level of local areas.136
States therefore have related regimes,
which generally cover their jurisdiction and local areas within this. The ACT
does not provide in any significant way for local heritage, since its size has been
said not to justify this layer of heritage administration.137
For example, the
Heritage Act 1977 (NSW) (NSW Heritage Act) deals with ‘environmental
heritage’, which is defined in section 4(1) as “places, buildings, works, relics,
moveable objects, and precincts that are of State or local heritage
significance” (emphasis added). State or local heritage significance means
significance to the State or an area, respectively.138
An item can be of both State
heritage significance and local heritage significance.139
The NSW criteria are
similar, though not identical to those in the Heritage Act.
95. The Heritage Act should be interpreted on its own terms and in accordance with
the principles of statutory interpretation. However, relevant to its purpose is the
fact that it is heritage legislation for the ACT and sits within the Australian legal
regime for protecting world heritage, national heritage and State, Territory and
local heritage, with some level of co-operation between the levels of
government on this issue.140
Conclusion concerning Territory heritage significance issue
96. These considerations lead the Tribunal to agree with the position argued for by
the Heritage Council in these proceedings, namely that the comparisons called
for in section 10 of the Heritage Act, and the issue of heritage significance, can
135 Section 324D of the of the Environment Protection and Biodiversity Conservation Act 136 Committee of Inquiry into the National Estate Report of the National Estate (1974) at [2.7];
Boer, Ben and Graeme Wiffen, Heritage Law in Australia (2006), page 183 137 Boer, Ben and Graeme Wiffen, Heritage Law in Australia (2006), page 183 138 Section 4A(1) of the NSW Heritage Act 139 Section 4A(2) of the NSW Heritage Act 140 Boer, Ben and Graeme Wiffen, Heritage Law in Australia (2006), pages 99-100 and 313
32
be assessed at the ACT level. This does not prevent assessment and comparison
also at the national or international level, at least on the basis that national or
international significance will generally result in Territory significance. The
statutory presumption in section 122 of the Legislation Act and its common law
equivalent suggests that only ACT heritage significance is relevant. We do not
think that there is a sufficient textual basis for reversing the presumption and
finding that only national and international significance is relevant. Most
significantly, such a reversal would be contrary to the purpose of having
heritage legislation for the ACT, which is to provide for the identification of
buildings and other things in the Territory of such significance to the Territory
that they are deemed worthy of being preserved. This is particularly so in the
context of laws for the protection of word heritage and national heritage at the
Commonwealth level, and other State and Territory laws for heritage protection
at the State, Territory and local level. To give as one example, it would seem
best to achieve the purpose of the Act to enable registration of a building which
is a notable example in the ACT of a kind of building and demonstrates the
main characteristics of that kind, even though there may be better examples in
Adelaide or Shanghai. It would not seem to achieve the purpose of the Act if the
existence of a better example in Adelaide, or even more so, Shanghai, prevented
registration in the ACT. Indeed if buildings outside the ACT prevented
registration of buildings within it, this would render the Heritage Act of little
utility, since generally it would only enable registration of things which are or
could be protected, if they are in Australia, under Commonwealth laws.
97. This brings us back to the issue of the territorial operation of the Act. The
interpretation that would best achieve the purpose of the Act is one which
recognises that the Heritage Act can protect buildings only if they are in the
ACT, and therefore that regard should be had to the buildings in the ACT in
deciding which ones to keep.
98. The applicant argued that because the ACT is small in geographic size and
population, with therefore a small number of buildings, that such an approach
would ‘lower the standard’ and enable ‘easy registration’.141
But given that the
141 Applicant’s closing submissions at [41]-[44]
33
ACT Assembly has chosen to have a Heritage Act, the Tribunal does not think
that this observation can affect its operation.
99. Two final points on this issue need to be made. First, as discussed above, the
Tribunal accepts that the Building is in the Late Modern style for the purposes
of applying the criteria. The acceptance of Territory level heritage significance
does not suggest that the Late Modern style must be a product of the Territory to
be relevant. There are buildings throughout the world; the Late Modern style
was an international development; there are Late Modern style buildings
throughout the world. Notwithstanding some of the arguments of the applicant,
this does not prevent, or make irrational, the consideration of Territory level
heritage significance of a building in the ACT in the Late Modern style.
100. Second, the Tribunal agrees with the applicant to the extent that it cannot be that
if there is only one example of a type of building in the ACT, this therefore
demonstrates a high degree of technical achievement, or that it is a notable
example of a kind of place. Comparisons are one way of considering this issue.
As Mr Metcalf noted in his oral evidence, to make a heritage assessment of a
building in the ACT, “you need to, amongst other things, have reference to
comparison, other buildings” (emphasis added).142
This is also a matter for
assessment by experts as to whether the relevant qualities are present.143
The
Council acknowledged that regard should be had to the inherent qualities of
things.144
The absence of local comparators cannot of itself give a building these
qualities. But the underlying question is whether the building has heritage
significance in and for the Territory.
F.3 Recognition
101. The former AAA building has received a range of recognition. The Building
was included in the 1982 handbook Canberra: An Architectural Guide to
Australia’s Capital in which it was described as “Canberra’s first high tech
142 Transcript of Proceedings 20 October 2015, page 72 143 Boer, Ben and Graeme Wiffen Heritage Law in Australia (2005), page 125 144 Respondent’s statement of facts and contentions at [44]
34
architecture, aluminium faced sandwich panels and flush glazing stretched over
sinuous form.”145
102. In 1982, the Building received a Commendation in the annual awards of the
ACT Chapter of the Royal Australian Institute of Architects. The Building did
not receive the Chapter’s highest award, the Canberra Medallion, which went to
the Belconnen public library. The report of the Institute jury said inter alia of
the former AAA building that “the curved façade and stairs are carefully
moulded together to provide a strong and sophisticated architectural
statement”.146
103. The applicant’s expert witnesses placed considerable emphasis on the fact that
the Building was not awarded the Canberra Medallion, the highest award. In the
opinion of Ms Hill, the ACT Chapter of the Royal Australian Institute of
Architects “did not share Mr Maron’s enthusiasm for the building’s response to
siting, noting an uncomfortable relationship with neighbours.”147
Ms Hill refers
to and quotes from an article in the Canberra Times in August 1982 by Frank
Longhurst, City Reporter, which misleadingly combines quotations from the
report of the jury with the opinions of the reporter. In the following extract from
the article written by Mr Longhurst, the words underlined are taken from the
report of the Institute jury and the remaining words are those of
Mr Longhurst:148
One of the most visually striking buildings in Canberra, the AAA Building
in Northbourne Avenue, was commended but also criticised. The judges
found that Mr Maron “has achieved both success and failure” with the
curving metal-clad building. The success related to the strong form and
“silver skin” appearance but the failure came with the “uncomfortable
relationship” it created with its precast concrete neighbours and “self-
inflicted siting problems” which had resulted in the sweeping curve of the
main façade of the building addressing the carpark of the adjoining
Gowrie Private Hotel rather than Northbourne Avenue.
145 Exhibit R16, statement of Michael Queale, report, appendix pages 59-61, Canberra: An
Architectural Guide to Australia’s Capital, (Royal Australian Institute of Architects, ACT Chapter, 1982), page 11
146 Exhibit R16, statement of Michael Queale, report, appendix page 58, Architecture Australia, January 1982, Volume 71, No.1, page 52
147 Exhibit A2, statement of Jennifer Hill, report page 5 148 Exhibit T1, T documents, page T412, Canberra Times, 11 August 1982, page 35; Exhibit R16,
statement of Michael Queale, report, appendix page 58, Architecture Australia, Volume 71, No. 1, January 1982, page 52
35
A copy of the full report of the Institute jury was not included with Ms Hill’s
statement and was not provided to the Tribunal by the parties or by any witness.
104. The former AAA building, together with a photograph of the building by Max
Dupain, was included by Professor Jennifer Taylor in her book Australian
Architecture since 1960, published in 1986 with a second edition in 1990.149
In
her book Jennifer Taylor states:
High finish, metal clad buildings were uncommon in Australia before the
eighties. Such examples that did appear were usually of conventional
construction and rarely accompanied by displays of technological
ingenuity. The 1979 Australian Automobile Association Building,
Canberra, by the Adelaide firm of Raffen and Maron provides one
example. It is a streamlined building with a curved façade that
emphasises its horizontal sweep by its flush skin of contrasting bands of
aluminium panels and frameless, grey-tinted glass. Its imagery relates
more to Mendelsohn’s buildings and the curved geometry romantically
associated with the automobile in the 1930s than the ‘high-tech’ language
of today.
In the hearing this paragraph was the subject of the type of analysis usually
reserved for sacred texts. The Tribunal discusses the evidence in relation to it
further below.
105. As evidence of non-recognition, the work Canberra Architecture by Andrew
Metcalf does not include the Building. Further evidence about this is also
discussed below.
106. The Building was entered in the RAIA ACT Chapter Register of Significant
Twentieth-Century Architecture in 2006.150
As noted above, this entry had a
role in the process towards the Council’s decision to register the Building. The
entry states that the Building “is an example of significant architecture and an
educational resource. The three storey office building is a good example of, and
is one of the first in Australia of, ‘high-tech’ architecture, which is a part of the
149 Exhibit R1, documents relied on by the respondent, Taylor, Jennifer, Australian Architecture
since 1960, (The Law Book Company, Sydney, 1986); second edition (Royal Australian Institute of Architects, Canberra, 1990), page 195
150 Exhibit R1, documents relied on by the respondent, RSTCA no. R113, CSC Building, (n.d.)
36
Late Twentieth-Century Modern Style (1960-), with its plain smooth wall
surfaces incorporating flush glazing and anodised aluminium panelling”.151
F.4 Current suitability for purpose
107. The NCDC prepared development conditions for the site which limited the
height of the Building to three storeys and required it to be raised above natural
ground level to protect against 100-year flood levels. All car parking for
employees and visitors was to be provided on site or in a basement. The
architects were advised that the Australian Automobile Association would
occupy the ground floor and intended to lease the upper two floors with
tenancies as small as 45 sqm. The lease for the site allows a maximum gross
floor area for the building of 3540 sqm. The Building as constructed has a
ground floor area of 720 sqm, with a net lettable area of 1,213 sqm on each of
the two upper office levels. 152
Mr Metcalf gave evidence that the floor plate
areas were “typical for the period of construction in Canberra.”153
108. It was argued by the applicant that the Building is not currently suitable for use
as an office building and that “inefficiencies in functioning of the building as an
office, as designed, indicates that it does not display design skill.” The applicant
argued that the design ‘failures’ included the need for the large external steel
screen at the rear of the building to control solar heat gain. The applicant
contended that this screen diminishes the “visual impact of the building.” It was
also argued that “the location of the windows is not the best response to the site”
and that “slab deflection detracts from achieving its purpose as an office
building.”154
No evidence was given to the Tribunal as to deflection of the floor
slab and the Tribunal has accordingly placed no weight on the applicant’s
contention in this regard.
109. Mr Metcalf gave evidence that “the future position of the former AAA building
in the commercial office leasing market could be compromised by a
combination of…a curved floor plate…three rows of internal columns…cross
151 Exhibit R1, documents relied on by the respondent, RSTCA no. R113, CSC Building,
(n.d.), page 1 152 Exhibit R16, statement of Michael Queale, report, appendix page 30, Conditions of
Lease (n.d.) 153 Exhibit A4, statement of Andrew Metcalf at [34] 154 Applicant’s closing submissions at [89]
37
sectional dimension of 25 metres…lifts, fire escape stairs and toilets at the
extreme end points of the plan.”155
110. Ms Hill stated that “the building did not achieve the aspirations of the owner”
but no evidence was given to support this claim. Ms Hill also said “the use of a
curved floorplate results in a restrictive use of the space. The curved plan in
other examples of the style are generally larger and avoid these problems”.
Ms Hill provided no evidence of other examples to support this contention.156
111. Evidence was given that the Building was recently upgraded to a 4.5 NABERS
Energy rating. Reliable Controls, the subcontractor responsible for the
installation of new equipment and services monitoring, noted that the property
is “widely considered one of the finest commercial buildings in the Australian
Capital Territory.” The Building was described as a “High Profile A-Grade
Opportunity” by Colliers International, who referred to it as an “iconic design”
with secure basement parking and said that “212 Northbourne Avenue is one of
the finest buildings in Canberra and its location affords excellent exposure…the
low rise architect designed building offers refurbished accommodation to 4.5
NABERS standard featuring open floor plates with good natural lighting and
high quality amenities”.157
112. The Tribunal has considered the arguments of the applicant and the applicant’s
expert witnesses that the Building does not meet current expectations for high
quality office accommodation in Canberra. But the Tribunal notes that the
Building is presently tenanted, and no evidence of difficulties in obtaining
tenants was provided. Rather, as noted, the evidence was that it is one of the
finest commercial buildings in the ACT. The criteria for registration in the
Heritage Act do not contain references to the suitability of the building to a
particular use, and the Tribunal has therefore not given significant weight to this
matter in its deliberations.
155 Exhibit A4, statement of Andrew Metcalf at [34] 156 Exhibit A2, statement of Jennifer Hill, report pages 6 and 13 157 Exhibit T1, T documents, Project profile for Reliable Controls, page T440; Colliers
International documents, page T441
38
113. Further, the Tribunal is of the view that the alterations made to the Building
have had no significant impact on its heritage significance.158
The Tribunal
notes that the Building has been obviously well cared for, including by the
current owner.
F.5 Heritage Assessment Policy
114. As discussed above, the Council purported to have a Heritage Assessment
Policy at the relevant times, but it did not have regard to that Policy in making
the provisional registration and registration decisions, indeed as the applicant
argues there is no evidence it ever had regard to the Policy. As noted earlier, the
applicant argues that the Council can have a policy, but the policy cannot be
inconsistent with the terms of the Heritage Act.159
The Tribunal agrees with this
submission.
115. The applicant submits that the failure of the Council to have regard to the
Heritage Assessment Policy is evidence that the Policy was in fact not in
operation.160
The applicant also submits that if it exists and is in operation, the
Tribunal on review must have regard to it as a relevant consideration, provided
it is valid, and the Tribunal can depart from the policy, though any departure
should be cautious and sparing.161
The Tribunal also agrees with this
submission, but notes that the Tribunal can only have regard to the policy if it is
relevant to the decision.
116. The applicant also argues that the Heritage Assessment Policy is invalid as it is
inconsistent with the Heritage Act. There are two basic reasons for this. First,
the Policy provides that Territory heritage significance is sufficient to enable
registration. The applicant argues that this approach is inconsistent with the
Heritage Act. Second, the applicant points to a range of additional
inconsistencies between the provisions of section 10 and the formulations in the
Policy.162
158 Transcript of Proceedings 20 October, 2015, page 132 (David Flannery); Transcript of
Proceedings 22 October, 2015, pages 231-236 (Michael Queale) 159 Applicant’s closing submissions at [7]-[9] 160 Applicant’s closing submissions at [48] 161 Applicant’s closing submissions at [10]-[13] 162 Applicant’s closing submissions at [59]-[63]
39
117. The Council argued generally for Territory level heritage significance under the
Act, and noted that this position is reflected in the Policy document. The
Council did not refer to any other relevance for the Policy.163
118. The issue of Territory level significance has been extensively discussed above,
and the Tribunal’s view is that Territory level significance is sufficient under
section 10. This flows from the Act, not the Policy. The Policy is not invalid for
reflecting this view, but nor is it relevant to this issue. As to the other matters,
the basic proposition of the applicant that the Policy cannot be inconsistent with
the terms of the Heritage Act is clearly correct. But here the Council has not
suggested that the Policy is relevant to determining other issues in this decision;
this seems also to follow from the failure of the Council to have any regard to
the Policy in the original decisions. Given that the Council did not apply the
Policy, that the Council has not suggested a way in which it is relevant to the
decision (except on the issue of Territory heritage significance), and that the
applicant has argued that it is invalid, the Tribunal does not think it could or
should apply the Policy. It is not necessary to determine the validity of the
Policy to take this approach.
G. Criterion (a) high degree creative achievement
119. Criterion (a) requires that the Building demonstrate:
(a) a high degree of technical or creative achievement (or both),
(b) by showing:
(i) qualities of innovation,
(ii) qualities of discovery,
(iii) qualities of invention, or
(iv) an exceptionally fine level of application of existing techniques or
approaches.
120. The parties agreed that the criteria could be satisfied with a high degree of
creative achievement by showing an exceptionally fine level of application of
163 Exhibit R4, statement of David Flannery, report at [27]-[29]; Outline of respondent’s
submissions at [7]
40
existing techniques or approaches, and this was the focus of the consideration of
criterion (a).164
121. ‘Exceptionally fine’ is not defined in the Heritage Act but the Macquarie
Dictionary online defines ‘exceptional’ as “1. forming an exception or unusual
instance; unusual; extraordinary 2. extraordinarily good, as of a performance or
product 3. extraordinarily skilled, talented, or clever.” Therefore an
extraordinarily fine level of application is required.
122. The Heritage Council decided that the former AAA building met this criterion.
The Council found the Building to be “an early example” and “an exceptionally
fine example of…a creative achievement in the Late Twentieth-Century Late
Modern style.”165
The decision of the Heritage Council found a high degree of
both technical and creative achievement. The technical achievement related to
the external wall cladding and glazing system, which was said to be a one-off
design, built specifically for the former AAA building so that it could include
long uninterrupted strip windows. In these proceedings the Heritage Council did
not contend that there was a high degree of technical achievement. The creative
achievement found by the Council was said to rest on the Late Modern style of
the Building, whose “design is a supremely simple and elegant form and finish,
expressing not just a high-tech quality but also considerable design skill.”166
This is the position defended by the Council in these proceedings.167
123. As noted above, the Council argued and the Tribunal accepts that the Building
is in the Late Modern style. The Council argued that the Late Modern style was
an existing approach for criterion (a), and the applicant appeared to agree with
this.168
Evidence was given that the Building demonstrates a number of the
‘Style Indicators’ and ‘Style Keys’ identified by Apperly as representative of
the Late Modern architectural style. The relevant Apperly ‘Style Indicators’
include shape of principal masses determined by simple geometry (item 1);
164 Applicant’s closing submissions at [69] and [74]; Outline of respondent’s submissions at [72] 165 Exhibit T1, T documents, page T42 166 Exhibit T1, T documents, page T42 167 The Australian Institute of Architects appeared to argue that the Building demonstrated both
technical and creative achievement, but in light of the position of the Heritage Council, the Tribunal does not consider the issue of technical achievement in detail, see exhibit PJ1, statement of Eric Martin
168 Outline of respondent’s submissions at [73]; Applicant’s closing submissions, see for example at [82]
41
three-dimensional (ie non-planar) façade treatment (item 2); rounded corner
(item 4); aluminium curtain wall (item 6); reflective glass cladding (item 7);
patent glazing (item 8); and windows suggesting space age technology (item
13). 169
The Apperly ‘Style Keys’ also include the broad characteristics of sleek,
glossy commercial buildings; cylindrical or free-curved shapes; precision,
lightness and elegance; by minimalist construction in metallic materials; with
exterior characteristics of principal masses determined by simple geometry;
three-dimensional façade treatments; glass and metal curtain walls and cladding
panels; and reflective glass cladding.170
124. The applicant argued that the criterion (a) requires more than establishing the
Building is in a particular style;171
this is clearly correct. An exceptionally fine
level of application of this style is required.
125. The Council’s position in these proceedings was that an exceptionally fine level
of design approach is demonstrated by a combination of elements, in particular
the form of the Building and the aluminium cladding. Adding to this are the
strip windows and elevation on pilotis.172
Consideration of this criterion focused
on these key features of the Building.
G.1 Simple and elegant form
126. Mr Queale noted that the Building is an example of the Late Modern style, and
that it is the earliest known building of the style erected in the ACT and one of
the early collection of such buildings in Australia.173
He did not think that the
Callam Offices in Woden, which were designed earlier, could be compared to
the former AAA building because the Callam Offices were not aluminium
clad.174
While the applicant queried this approach,175
as noted the relevant
Apperly ‘Style Indicators’ for the Late Modern style include aluminium curtain
walls (item 6) and the ‘Style Keys’ also include the broad characteristics of
169 As agreed by the applicant’s expert, Jennifer Hill, Transcript of Proceedings 19 October
2015, page 49. There was some discussion about whether item 4, rounded corner, was present, but the Tribunal thinks that it is at least in part
170 Exhibit R16, statement of Michael Queale, report, appendix pages 71-73, Apperly, Richard, Robert Irving and Peter Reynolds, A Pictorial Guide to Identifying Australian Architecture, Styles and Terms from 1788 to the Present (1994), pages 262-3
171 Applicant’s closing submissions at [81] 172 Outline of respondent’s submissions at [74] 173 Exhibit R16, statement of Michael Queale, report at [72] 174 Transcript of Proceedings 21 October 2015, page 210, lines 1-19 175 Applicant’s closing submissions at [86]-[87]
42
sleek, glossy commercial buildings; minimalist construction in metallic
materials; and glass and metal curtain walls and cladding panels. The Tribunal
therefore thinks Mr Queale’s approach reasonable.
127. Mr Queale gave evidence that, in his view, the design solution illustrates an
exceptionally fine level of application of Late Modern style design precepts
(approaches) and demonstrates a high degree of creative achievement. This was
particularly evident in the three-dimensional curved building form and the fact
that the internal functions of the building, offices, stairs, lift and services are
each expressed externally in a mix of linked forms. Together with the cladding,
the effect is one of a modern sculpture; the curved form is dynamic and reflects
the original function of the place as the offices of the Australian Automobile
Association. The use of ‘pilotis,’ that is perimeter columns supporting the upper
level offices and standing clear of the building entrance and the ground floor
accommodation, allows an interaction between vehicles and the Building and
landscape. The curved façade also provides an urban design response to the
broader Northbourne Avenue context.176
128. Mr Queale did not think that current alleged inefficiencies in the Building
affected this position. He accepted that the Late Modern style had as a tenet that
‘form follows function’, though the Tribunal notes that this is not mentioned by
Apperly, but not that this was particularly relevant here.177
As discussed above,
the Tribunal also doubts that the Building does not meet current expectations for
high quality office accommodation in Canberra, and even if it did that this is
particularly relevant to this issue.
129. Mr Flannery stated that the significance of the Building lies principally and
fundamentally in it being an important and rare example of the style known as
Late Modern. “Its design excellence is achieved and provided by its form
(particularly the interplay of simple, solid geometric forms), its powerful
massing (as exhibited on all four sides) and its overall streamlined use of
176 Exhibit R16, statement of Michael Queale, report at [84] 177 Applicant’s closing submissions at [88]; Exhibit R 16, statement of Michael Queale, report at
[88]-[89]
43
materials - rather than any technical ingenuity or inventiveness in the fabrication
of any of its component parts.”178
130. The applicant conceded in effect that the appearance of the Building is
attractive, but submitted that it “does not show an exceptionally fine level of
simplicity and elegance in its form and finish, particularly when viewed in close
proximity”.179
Mr Metcalf stated that, in his opinion, the Building is “an above
average exemplar of an office building, but it is not sufficiently distinctive as a
creative achievement to elevate it to a high level of significance.”180
As to the
failure by Mr Metcalf to include it in his book Canberra Architecture,
Mr Metcalf stated that the Building had remained a contender “because of its
unusual architectural form in a precisely designed and executed building but as
a creative work of architecture, it was too engaged with precedents set by others
- which placed it in a different category - when it could have been more self-
determining.”181
In his oral evidence, Mr Metcalf noted that he did not set out to
have examples of particular styles, such as the Late Modern style, in the
book.182
131. Ms Hill stated that the Building “is not an exceptionally fine example of
creative achievement”, the design has “a simple and elegant form and finish,
expressing a high-tech quality aesthetic but not necessarily technical
innovation.” She disagreed with the assessment of the Heritage Council that the
Building is an early example of the Late Modern style, saying that “numerous
examples of the style exist dating from the 1970s.”183
G.2 Aluminium cladding
132. Various opinions were offered by the expert witnesses as to the significance of
the materials and construction system for the exterior curtain walls of the
Building. It was agreed by the parties that the term ‘curtain wall’ refers to an
external wall of a building fixed to the main structural frame but not supporting
any part of the building.
178 Exhibit R4, statement of David Flannery, report at [72] 179 Applicants closing submissions at [82] 180 Exhibit A4, statement of Andrew Metcalf at [49] 181 Exhibit A4, statement of Andrew Metcalf at [50] 182 Transcript of Proceedings 20 October 2015, pages 75 and 77 183 Exhibit A2, statement of Jennifer Hill, report pages 16 and 17
44
133. The Council had obtained comments from Mr Maron himself during the
assessment process, and Mr Maron had noted that many architects had enquired
about the construction and detail of the metal cladding for application in their
buildings nationally, but that the curtain wall was a one-off design “we invented
and developed from the ‘ground-up’ and it could not easily be copied as the
sections were specially adapted for us.” He went on to state that curtain walls
are not new in the world but the former AAA Building, while looking like a
curtain wall, is actually unique in that the aluminium part was independently
supported off the end of the slab with the glass ‘slung’ between them unlike
traditional curtain walls.184
134. Mr Metcalf and other witnesses noted that, in the development of the design of
the Building, the architect had considered two alternative façade materials –
aluminium and asbestos cement (now fibre cement) – and that the association of
metal with the client’s key business may have been the reason that aluminium
was chosen. However in Mr Metcalf’s opinion, the Building “would have
looked substantially the same if asbestos cement sheeting had been used.”185
In
cross-examination, Mr Metcalf qualified this by saying that his opinion related
to the Building when “viewed from Northbourne Avenue, which is one of the
primary ways to look at this building, not close up because close up you would
tell.”186
135. The Tribunal cannot easily accept the opinion of Mr Metcalf that the appearance
of the Building would have been “substantially the same” with either asbestos
cement or aluminium cladding. Mr Metcalf thought it unlikely that the materials
and methods of construction would need to be changed were the façade to be
covered in fibre cement sheeting. Mr Queale noted that “curves and aluminium
cladding are direct and skilful references” to the functions of the Australian
Automobile Association. He also stated that the ‘aluminium sheet façade is a
creative solution…as a ‘space age’ type of material that allows an economic,
seamless treatment of the exterior skin and its unique curvaceous form”. 187
The
Tribunal doubts that the sleek sensual façade and frameless glazing achieved by
184 Exhibit T1, T documents, email from Guy Maron dated 3 March 2014, page T139 185 Exhibit A4, statement of Andrew Metcalf at [16] 186 Transcript of Proceedings 20 October 2015, page 89, lines 4-7 and page 92, line 20 187 Exhibit R16, statement of Michael Queale, report at [84]
45
Mr Maron would have been possible with a façade of large painted sheets of
fibre cement.
136. Mr Metcalf stated that he had viewed the shop drawings for the curtain walling
and had concluded that the “design of the curtain walling at the former AAA
building is…conventional; the Comalco framing members are standard
extrusions, the double glass units and aluminium panels are standard, the way
they are assembled is standard…”. He strongly disputed the claim in the
statement of heritage significance that the Building has a “bespoke wall
cladding and glazing system”. The applicant submitted that it does not
constitute “a ‘bespoke’ application of the cladding technique simply because the
structural form to which the system was applied was not identical to that of
some existing building.”188
137. Under the heading ‘design philosophy’, Ms Hill borrowed from Professor
Taylor and noted that the former AAA building evokes ‘”the 1930s buildings of
Mendellson’s (sic) Schocken department stores particularly in Chemnitz.” She
noted that the architect chose to use a ‘silver skin and flush aluminium façade’
rather than “to express the curved form in off form concrete typical of the
Canberra environment and adjacent buildings.” Ms Hill makes little further
reference to the external design of the former AAA building. She dismisses as
“contradictory” the juxtaposition of the “sleek aesthetic of the silver skin” with
the concrete base as one finish evokes the purism of the 1930s while the other
finish evokes the brutalism of the 1950s.189
Ms Hill noted that the sleek skin
cladding is not unusual and is also seen in the Academy of Science (1958) and
the Mount Druitt Hospital (1976-1982), and much later in ABS House (2001).
She also noted others.190
138. Ms Landler looked specifically at the technological significance of the Building
enclosure and cladding. In summary she stated that the Building represents a
good example of 1970s curtain wall technology; its designers employed a range
of conventional techniques appropriate to the era, but displayed no notable
technological ingenuity in the development of its systems. Ms Landler stated
188 Exhibit A4, statement of Andrew Metcalf at [19], [22], [23] and [49]; Applicant’s closing
submissions at [70] 189 Exhibit A2, statement of Jennifer Hill, report page 8 190 Exhibit A2, statement of Jennifer Hill, report page 18
46
that “all elements of the construction appear to have been used elsewhere”
before their application in the Building. In particular the hybrid pressure-
equalised curtain and wall system would have been considered state of the art in
1978, but it was not the first application of such a system in Australia, which
included Allendale Square in Perth (1976) and Eagle House in Melbourne
(1972).191
139. In her report, Ms Landler stated that she reviewed “original prints of Comalco
Fabricators Limited’s curtain wall system shop drawings (nearly complete set
dated 23 June-4 October 1978).” She attached to her report copies of two
Comalco drawings. These are numbered 1724-3 and 1724-12, which suggests
that there were at least 12 drawings in the set. Unfortunately these copies are of
poor quality and are not easy to read. She stated that she also reviewed
“Cheeseman (sic) Doley Neighbour & Raffen Pty Ltd architectural drawings
(partial set, dated 4 November 1977 and March 1978)”. She attached to her
report copies of only five architectural drawings – a site plan, a landscaping
plan, floor plans at the ground floor and second floor levels and a ground floor
fitout plan. These are all preliminary plans and are not marked ‘for
construction’.192
140. The Tribunal is reluctant to conclude from the absence of architectural sections
or construction details that the design of the external wall cladding and glazing
was undertaken solely by Comalco. In Ms Landler’s view, “the three key
players in the design and construction of 212 Northbourne Avenue were the
architects, the aluminium suppliers and the builder.” Ms Landler nevertheless
concludes that her review of the drawings “suggests that much of the detail
design for the cladding and curtain wall system originates with Comalco as it is
their drawings that show both the façade set-out and typical joint details…the
curtain wall and cladding system is well detailed.”193
The two Comalco
drawings provided by Ms Landler support most of her conclusions but a number
of issues are not fully explained.
191 Exhibit A6, statement of Juliet Landler, report pages 1 and 18 192 Exhibit A6, statement of Juliet Landler, report page 3 193 Exhibit A6, statement of Juliet Landler, report pages 13 and 18
47
141. Ms Landler reported that the Comalco drawings show “single chamber
interlocking male/female mullions designed for flat façade conditions.” The
Tribunal notes that these flat façade conditions exist only at the north and east
ends of the main building block, which accounts for less than 10% of the
Building perimeter. All other building facades are facetted. For these conditions
Ms Landler has identified on the Comalco drawings “modified single chamber
interlocking male/female mullions that have been slightly altered to allow for
facetted conditions of two different radial dimensions” (emphasis added).194
142. The Tribunal finds this information misleading. The number of different façade
radiuses on the Building is not two but at least five, each one of which must be
differently ‘modified’ or ‘altered’ to navigate its curve. Comalco drawing 1724-
3 shows one such condition at stair 2 (detail 9) with an angle of 120 degrees
between adjacent facets. Detail 7 on the same drawing shows an angle of 178
degrees and 28 minutes between adjacent facets on the long south west wall to
Northbourne Avenue. A note on this drawing says the north east wall is
similarly segmented but in the ‘opposite direction’ and with a ‘greater
angularity’ of 182 degrees and 80 minutes.195
143. The Comalco drawings do not clearly show how these angled junctions are
made. It may be that there is sufficient tolerance in the mullion extrusions to
accommodate the shallower angles on the long facades of the building but the
Tribunal is doubtful that this is possible elsewhere. Certain of the aluminium
sections appear to have been bent to mate with the adjoining extrusion and some
of the extrusions show an extended arm on one side. The Tribunal reasonably
concludes that the architect recognised that it was possible to use or modify
available aluminium extrusions to support a smooth facade of aluminium panels
and double glazed window units and worked with the builder and the aluminium
supplier to deliver a crisp modern building image for the client. In that sense
alone, the Tribunal considers that the façade of the former AAA building meets
the common meaning of the term ‘bespoke’ as made to measure for a particular
purpose, and that this demonstrates dedication and creativity at very high level.
194 Exhibit A6, statement of Juliet Landler, report page 6 195 Exhibit A6, statement of Juliet Landler, report page 8, figure 5.2 and attached drawing
48
144. Ms Landler also noted that there is little evidence that the design has been used
as a precedent for other projects in Australia; and that the curtain wall system
was more popular during the 1970s and 1980s, but is less common today.196
Ms
Landler also noted that other significant architectural works built in Canberra in
the 1970s such as the School of Music, the High Court of Australia, the
National Carillon, the Edmund Barton Building, the National Library and the
National Gallery of Australia have concrete facades.
145. Mr Queale stated that the aluminium sheet façade was a creative solution, not as
a technically bespoke curtain wall system, but as a ‘space age’ type of material
that allows an economic, seamless treatment of the exterior skin and its unique
curvaceous form. That is, he agreed with others that the cladding and glazing is
not a particular technical achievement, but is of architectural significance in
achieving a slick, polished skin façade which allows seamless treatment of the
exterior skin. He thought it was clear that the curtain wall system was developed
by the architect, engineer and fabricator as a collaborative effort.197
G.3 Park-like setting
146. The NCDC had stated that “a high quality landscape proposal is required and
shall be submitted with sketch plans…in any scheme submitted for the
development of the Northbourne Avenue road verge and possible address entry
zone, maximum effort shall be taken to preserve existing trees.”198
147. The Council’s decision noted in this respect that the Building “is set in an open
park-like setting that enables the elegant curved western elevation to be
appreciated from Northbourne Avenue”, and that it was NCDC policy “to give
visual prominence to the main entry to Canberra.”199
148. Mr Queale did not place much emphasis on this feature. He noted that the
setting of the place facing Northbourne Avenue appears compromised, or
unresolved in concept, as the curved façade finishes close to the southern
boundary; that the intent was to curve the façade to face the open space adjacent
196 Exhibit A6, statement of Juliet Landler, report page 1 197 Exhibit R16, statement of Michael Queale, report at [84] and [85] 198 Exhibit R16, statement of Michael Queale, report, appendix page 33 199 Exhibit T1, T documents, page T42
49
to Fenner Hall; and that this has been compromised in part due to the poor
amenity of the landscape surrounding Fenner Hall.200
149. Mr Queale was questioned about the impact of the shop in Lowanna Street. He
stated that it has a negative impact on the setting of the Building, but does not
affect the creative design solution; he thought the shop a low-scale element
adjacent to the Building, and he did not think that it blocked much of the view
to it or its aesthetic values; he did not think the shop sufficiently an issue to
compromise the values of the Building. 201
150. Mr Metcalf thought that the park-like setting can be interpreted as a somewhat
providential by-product of other design moves at the conceptual stage of the
project wherein the arc building form was configured to curve away from the
Northbourne Avenue setback; it is space left over after planning that
fortuitously combined existing trees with new landscape rather than being a
park as such. The architectural and landscape arrangements are typical for
Northbourne Avenue in the immediate vicinity and more broadly.202
151. Ms Hill stated that the Building is not set in an open park like setting, rather it
borrows space from the adjacent car park which does not guarantee its setting.
She noted the comment of the RAIA jury which identified siting problems
resulting in the main façade addressing the carpark rather than Northbourne
Avenue; that the Building is not a key component of Northbourne Avenue; and
that the landscape setting is not integrated, nor is it executed as an open treed
wood. In her opinion, landscaped parkland settings for office buildings was a
goal of the 1950s and not new to the 1970s.203
152. The Tribunal has considered the various comments and criticisms as to the
siting of the Building and its address to Northbourne Avenue, the main thrust of
which seems to be that the manner in which the curved facade addresses the
carpark on the adjacent site is unfortunate and detracts from the heritage
significance of the place. Ms Hill gave evidence that “the poor siting detracts
200 Exhibit R 16, statement of Michael Queale, report at [90] 201 Transcript of Proceedings 22 October 2015, pages 223-224 202 Exhibit A4, statement of Andrew Metcalf, report at [28]-[29] and [51] 203 Exhibit A2, statement of Jennifer Hill, report page 18
50
from the success of the finely detailed façade and elegant form”.204
The
Tribunal notes that the car park and the buildings of the former Gowrie Private
Hotel (now Fenner Hall) were there when the former AAA building was
designed and constructed. The Tribunal is of the opinion that the design of the
Building responded appropriately to the buildings and car park of the adjacent
property. The Tribunal notes the possibility of future development on the
adjacent site, but is of the opinion that such development will not detract from
the heritage significance of the Building.
G.4 Conclusion concerning criterion (a)
153. Criterion (a) requires that the Building demonstrate a high degree of creative
achievement by showing an exceptionally, that is extraordinarily, fine level of
application of existing techniques or approaches. The Council argued that the
Late Modern style was an existing approach for criterion (a), and that an
exceptionally fine level of the design approach is demonstrated by a
combination of elements, in particular the form of the Building and the
aluminium cladding.
154. Mr Queale concluded that criterion (a) applies because the Building is a
“notable design exemplar of aluminium clad Late Modern style architecture of
high creative achievement within the Australian Capital Territory.”205
Mr Metcalf stated that, in his opinion, the Building is “an above average
exemplar of an office building, but it is not sufficiently distinctive as a creative
achievement to elevate it to a high level of significance.”206
Ms Hill conceded
that the Building has “a simple and elegant form and finish, expressing a high-
tech quality aesthetic” but was “not an exceptionally fine example of creative
achievement.”207
The Tribunal is of the view that Mr Queale took a more
considered and thorough approach to this issue. But the evidence of the other
experts cannot be ignored. As discussed, in particular at paragraph 100 above,
while the Tribunal is of the view that Territory level heritage significance is
sufficient, the evidence of experts as to the quality of the Building is relevant,
and under this criterion, the standard is a very high one, that is exceptional.
204 Exhibit A2, statement of Jennifer Hill, report page 18 205 Exhibit R16, statement of Michael Queale, report at [91]-[92] 206 Exhibit A4, statement of Andrew Metcalf, report at [49] 207 Exhibit A2, statement of Jennifer Hill, report page 17
51
Similarly, while there is significant recognition of the Building, as discussed
above at paragraphs 101-106, this does not generally suggest recognition at the
exceptional standard required by this criterion.
155. Mr Queale stated that the curtain wall system in particular was a creative
solution that achieves a slick, polished skin façade which allows seamless
treatment of the exterior skin and its form. The Tribunal agrees that in this
respect the Building demonstrates creativity at a high level. This is important
because the relevant Apperly ‘Style Indicators’ for the Late Modern style
include aluminium curtain walls and the ‘Style Keys’ also include the broad
characteristics of sleek, glossy commercial buildings; minimalist construction in
metallic materials; and glass and metal curtain walls and cladding panels. The
Tribunal queries some aspects of her report, but it also notes the general views
of Ms Landler that while the Building represents a good example of 1970s
curtain wall technology it displayed no notable technological ingenuity,208
which we take to involve creative achievement. In this regard, none-the-less,
Ms Landler does support Mr Queale’s view of the Territory level significance of
the Building as a rare metal clad 1970s construction in the ACT.
156. Whilst the ‘park-like setting’ does not add to the quality of the Building, the
problems identified in this regard do not detract from the form and finish of the
Building.
157. Therefore, the Tribunal concludes that the Building demonstrates a high degree
of creative achievement by showing a very fine level of application of existing
techniques or approaches, but on balance does not think the evidence supports
the exceptionally, that is extraordinarily, fine level required to satisfy this
criterion.
H. Criterion (c) important as evidence of a distinctive design
158. Criterion (c) requires that the Building is:
(a) important as evidence,
208 Exhibit A6, statement of Juliet Landler, report page 1
52
(b) of a distinctive way of life, taste, tradition, religion, land use, custom,
process, design or function,
(c) that is:
(i) no longer practised,
(ii) in danger of being lost, or
(ii) of exceptional interest.
159. The parties agreed that the criterion could be satisfied where the Building is
important as evidence of a distinctive design that is of exceptional interest. As
noted above, exceptional means “forming an exception or unusual instance;
unusual; extraordinary.” In this context, extraordinary interest appears the
appropriate meaning.
160. The decision of the Heritage Council found the design of the Building rests on
the Late Modern style, of which it is an early example, and which it extended
with its supremely simple and elegant form and finish. It found it much superior
in design to other examples in Canberra, such as the Royal Australian Mint and
Toad Hall. The open park like setting was referred to again as enabling the
Building to be appreciated.209
161. The position of the Heritage Council in these proceedings was that the Building
is important evidence in the ACT of a distinctive form of architectural design,
Late Modern, and that the Late Modern style is of exceptional interest.210
162. Mr Queale placed the Building within its historical context, in particular the
significant growth of Canberra in the NCDC period (1958-89) when almost all
public, government and commercial buildings were Modernist in design style,
though there were variants including International Style, Brutalism,
Organic/Regional and Late Modern. Modernist style buildings are therefore, he
stated, of exceptional interest in the ACT. Although one of many, he thought the
former AAA building is of exceptional interest as an early, extant, local
exemplar of aluminium clad Late Modernism. He concluded that in his view it
was of exceptional interest as an exemplar of Late Modern architecture within
the ACT.211
As noted, the Tribunal agrees that criterion (c) can be met by
209 Exhibit T1, T documents, pages T42-43 210 Outline of respondent’s submissions at [59] 211 Exhibit R16, statement of Michael Queale, report at [97]-[101]
53
Territory level significance as discussed by Mr Queale, that is that the
exceptional interest is in and for the Territory. But notwithstanding the
significance of the NCDC period, the importance of the Modernist buildings
within this period, and the rarity of aluminium clad Late Modern buildings, it is
not clear that this of itself makes the Late Modern style of exceptional, that is
extraordinary, interest.
163. Mr Metcalf thought that there are numerous buildings in the ACT that the
Building could be compared to such as the Cameron Offices, Parliament House,
the School of Music and Dickson Library, which are approximately
contemporaneous to the Building. There is further discussion of the relevance of
such comparisons in the consideration of criterion (g) below, but generally
whilst these are examples of Modernist style, the Tribunal doubts these are
appropriate comparators of the Late Modern style. In his view the Building is
not of a design that is of exceptional interest. It is now a commercial office
building; open plan offices with curtain wall cladding were and remain common
building types.212
Ms Hill agreed that the Building provides evidence of the Late
Modern style, but did not think it is of exceptional interest. She stated that key
features of the Building and style can be found in other examples.213
The
Tribunal notes that this criterion does not seem to require the Building to be of
exceptional interest, rather it is the design, in this case the Late Modern style,
which needs to meet this standard. But the comments of Mr Metcalf and Ms Hill
still indicate views that the style of the Building is not of exceptional interest.
These views cannot be ignored.
164. The Tribunal does not think that the Council has demonstrated that the Building
meets this criterion. The Building is evidence of the Late Modern style, it may
be important as evidence, but on balance the Tribunal does not think that the
evidence supports a finding that the Late Modern style is of exceptional, that is
extraordinary, interest.
I. Criterion (g) notable example
165. Criterion (g) requires that the Building is:
212 Exhibit A4, statement of Andrew Metcalf at [54]-[56] 213 Exhibit A2, statement of Jennifer Hill, report page 20; Exhibit A3, statement in reply by
Jennifer Hill at [29]
54
(a) a notable example,
(b) of a kind of place or object, and
(c) demonstrates the main characteristics of that kind.
166. ‘Notable’ is not defined in the Heritage Act. The Macquarie Dictionary online
defines it as “1. worthy of note or notice; noteworthy: a notable success 2.
prominent, important, or distinguished, as persons”. The Shorter Oxford
Dictionary also refers to “1. Worthy or deserving of note” and adds “esp. on
account of excellence, value, or importance; remarkable, striking eminent.” An
example which is worthy of note or notice for positive reasons, such as its
importance, is required. This is a lower test than ‘exceptional’. The Tribunal is
of the view that any one of the criteria can provide heritage significance, and
that the terms of criterion (a) are not a basis for reading down other criteria,
such as criterion (g).
167. The decision of the Heritage Council stated that the Building is an example of
the Late Modern Style, in particular because the shape of the building is
determined by simple geometry, and the use of an aluminium curtain wall. The
Council stated that it is a notable example because the design extends the style
“with a supremely simple and elegant form and finish, expressing not just a
high-tech quality but also considerable design skill.”214
I.1 Kind of place
168. As noted above, the Tribunal is of the view that it is appropriate to treat the
Building as of the Late Modern style, and that this is the relevant ‘kind of
place.’ Mr Metcalf stated that in his view the ‘kind of place’ was an office
building.215
The Tribunal does not think that Mr Metcalf’s is the appropriate
way to assess the Building. The applicant in effect indicated that his was
unlikely to be the correct approach.216
I.2 Main characteristics
169. As also noted above, evidence was given that the Building demonstrates a
number of the ‘Style Indicators’ and ‘Style Keys’ identified by Apperly as
214 Exhibit T1, T documents, page T43 215 Transcript of Proceedings 20 October 2015, page 97, lines 11-17; Exhibit A4, statement of
Andrew Metcalf at [59] 216 Transcript of Proceedings 22 October 2015, page 284, lines 15-21
55
representative of the Late Modern architectural style. The relevant Apperly
‘Style Indicators’ include shape of principal masses determined by simple
geometry (item 1); three-dimensional (ie non-planar) façade treatment (item 2);
rounded corner (item 4); aluminium curtain wall (item 6); reflective glass
cladding (item 7); patent glazing (item 8); and windows suggesting space-age
technology (item 13). The Apperly ‘Style Keys’ include the broad
characteristics of sleek, glossy commercial buildings; cylindrical or free-curved
shapes; precision, lightness and elegance; by minimalist construction in metallic
materials; with exterior characteristics of principal masses determined by simple
geometry; three-dimensional façade treatments; glass and metal curtain walls
and cladding panels; and reflective glass cladding.217
The Building has these
features.
I.3 Notable example
170. The applicant contends that the Building is not a notable example of the Late
Modern style because it lacks “the technological ingenuity that distinguishes
notable examples from other examples of work in the style” and because “flaws
in the siting of the building…preclude it from being a notable example.” The
applicant further argues that this judgment is reflected in the failure of the
Building “to win awards other than the Canberra Chapter Award of Merit’
together with ‘its exclusion from authoritative texts and guides on architectural
styles.”218
171. The term ‘technological ingenuity’ does not appear in the Apperly Style
Indicators or Style Keys, nor does it appear in criterion (g). As noted earlier at
paragraph 66, Apperly states that Late Modern architecture “strove to convey
the image of the formidable technology of the computer and the satellite”
(emphasis in the original),219
and while Jennifer Hill argued this suggested a
characteristic of technological innovation in such buildings the Tribunal does
not agree.220
The words “rarely accompanied by displays of technological
ingenuity” were used by Professor Taylor to qualify her description of “high
217 Exhibit R 16, statement of Michael Queale, report, appendix pages 71-73, Apperly, Richard,
Robert Irving and Peter Reynolds, A Pictorial Guide to Identifying Australian Architecture, Styles and Terms from 1788 to the Present (1994) pages 262-3
218 Applicant’s statement of facts and contentions at [64] 219 Exhibit R 16, statement of Michael Queale, report, appendix pages 71-73 220 Transcript of Proceedings 19 October 2015, page 33
56
finish, metal clad buildings”, which she stated were “uncommon in Australia
before the eighties”. Professor Taylor does not list the buildings to which she
refers when using the term ‘technological ingenuity’ nor does she clarify her use
of the word ‘rarely’. She offers the Building as an example of a “high finish,
metal clad building” but suggests its origins may lie more with the facades of
Mendelsohn’s department store buildings and the “curved geometry” of 1930s
automobiles than with “the ‘high-tech’ language of today.”221
It would appear to
the Tribunal that the applicant has misunderstood Professor Taylor by
suggesting that the former AAA building is not a notable example of the Late
Modern style because it lacks ‘technological ingenuity’.
172. In this context, the Tribunal notes that Professor Taylor’s book Australian
Architecture since 1960 was first published by the Law Book Company in
Sydney in 1986. The book to which reference has been made by the parties in
these proceedings is the second edition published in Canberra in 1990 by the
Royal Australian Institute of Architects. The text concerning the former AAA
building was not changed with the second edition but Taylor’s use of the word
‘today’ in the phrase “‘high-tech’ language of today” should be read to refer to a
time around 1986 rather than around 1990.
173. Ms Hill argued that the former AAA building is a “good but not exceptional
example of the style”. She then combines Taylor’s phrases “rarely accompanied
by displays of technological ingenuity” and “high-tech language of today” and
concludes of the Building that “its sleek curving facade portrays a high-tech
aesthetic without the displays of technological ingenuity of the better examples
of buildings in the Late Twentieth-Century Late Modern style.” The linking of
two unrelated modifiers misleadingly suggests that Professor Taylor considers
the former AAA building is not a notable example of the Late Modern style on
the grounds that it lacks ‘technological ingenuity’. Moreover, having introduced
the new term ‘better examples’, Ms Hill fails to identify any buildings that are,
in her mind or in the mind of the late Professor Taylor, “better examples of the
221 See above at paragraph 104; Exhibit R1, documents relied on by the respondent, Taylor,
Jennifer, Australian Architecture since 1960 (2nd edition), page 195
57
style.”222
It is true that Professor Taylor goes on to discuss other buildings, and
we note these below.
174. As noted previously, Mr Metcalf does not accept the narrow classification of the
former AAA building as Late Twentieth-Century Late Modern and prefers to
see it only as an example of the Modern style. He suggested it can no longer be
regarded as a building that represents purpose built accommodation for a trade
or industry peak body. He stated: “it may be regarded as an above average
exemplar of an office building however for (the) reasons set out…it suffers
from design limitations that detract from its utility.” Mr Metcalf said “there are
numerous buildings in the ACT that the former AAA building could be
compared to…such as Cameron Offices, Parliament House, the School of Music
and the Dickson Library, all of which are approximately contemporaneous.”223
175. The Tribunal finds Mr Metcalf’s examples not well-chosen - Cameron Offices
and the Canberra School of Music are large and complex structures in expensive
exposed concrete; and the Dickson Library is a single level suburban building in
off-form concrete, generally seen as belonging to a more organic sub-set of the
Late Twentieth-Century style. The Tribunal has considered the scale, purpose,
form and finishes of the permanent Parliament House and can see no sense in
attempting to compare Parliament House with the former AAA building.
176. Although Professor Taylor does not name a particular building or buildings with
which the former AAA building might be fairly compared, she discusses at
some length three metal-clad buildings of the period - the Education Department
Building by Cameron, Chisholm and Nicol in East Perth (Education Building
in Perth), and two buildings by Lawrence Nield, the David Maddison Clinical
Sciences Block of the School of Medicine at the University of Newcastle
(Maddison Clinical Sciences Block in Newcastle) and the Mount Druitt
Hospital in western Sydney (Mount Druitt Hospital).
177. Professor Taylor describes the Education Building in Perth as “an accomplished
building showing confidence in the handling of its particular aesthetic”. The
Education Building is significantly larger and more expensive than the former
222 Exhibit A3, statement in reply of Jennifer Hill, at [9] 223 Exhibit A4, statement of Andrew Metcalf at [34], [55], and [59]
58
AAA building. The design of the Education Building was the result of an
invited competition in August 1979 and construction was completed in April
1982. The design of the former AAA building was approved by the NCDC in
December 1977 and the Building was completed and occupied in September
1979, that is, at about the same time as the competition for the design of the
Education Building in Perth.224
The Education Building in Perth is not curved
like the former AAA building but uses the same materials in its external
cladding - grey tinted glass and natural anodised aluminium. Taylor says that
“the tight exterior skin…and its suppressed detailing indicate the designers’
interests in the minimal qualities of Foster’s buildings in England.”225
178. Taylor says the two metal-clad buildings of Nield are “more exploratory” than
the Education Building in Perth. She writes that the Maddison Clinical Sciences
Block in Newcastle presents “a progressive image attuned to the scientific
nature of the activities housed” but, in her opinion, Nield’s Newcastle building
“lacks the finesse of finish and detail of Cameron, Chisholm and Nicol’s
building”. She notes that the cladding at Newcastle is not aluminium but
stainless steel in response to the corrosive industrial and seaside location. Taylor
describes the curving aluminium walls of Nield’s Mount Druitt Hospital as
“quite sensuous”. She says this is a “satisfying work” that shares a “spirit of
inventiveness” with the Newcastle building.226
179. Mr Queale gave evidence that the former AAA building “is notable as a skilful
representation of Late Modern style architecture within the ACT.” He noted
particularly that “the sculptural properties of the interconnecting building forms
enhance the play of light over curved facades and are dramatic and sensual in
effect”. He noted also the urban design response of the Building to the broader
context of Northbourne Avenue, and the dynamic curved form of the Building
as providing “a non-rectilinear internal environment of interest.”227
He also
mentioned features referred to under the other criteria: the pilotis; the three-
224 Exhibit R1, documents relied on by the respondent, Taylor, Jennifer, Australian Architecture
since 1960 (2nd edition), pages 195-196 225
Exhibit R1, documents relied on by the respondent, Taylor, Jennifer, Australian Architecture
since 1960 (2nd
edition), pages 195-196 226 Exhibit R1, documents relied on by the respondent, Taylor, Jennifer, Australian Architecture
since 1960 (2nd edition), pages 196-197 227 Exhibit R16, statement of Michael Queale, report at [113] and [114]
59
dimensional curved building form; the internal functions expressed in a mix of
forms; the flush windows and aluminium sheet cladding. He noted again that the
curved form is dynamic and reflects the function of headquarters for the
Australian Automobile Association; and that the aluminium façade is a space
age type of material that allows an economic, seamless treatment of the exterior
skin and a unique curvaceous form.228
180. Mr Queale gave evidence that there is nothing to support the claim of Andrew
Metcalf that the Callam Offices in Woden is a better representation of the Late
Modern architectural style than the former AAA building, and he noted that the
Callam Offices project was never completed. As to the former AAA building
being a ‘notable example of a kind of place or object’, Mr Queale referred again
to the peer recognition awarded to the Building and its inclusion in a number of
academic publications.229
181. Mr Queale disputed also the arguments of Ms Hill that the place is not of
‘technical innovation’. It is his belief that “the place is of architectural merit, not
technical merit.” He rebuts the suggestion of Jennifer Taylor of a ‘romantic
association’ of the Building with the aesthetics of 1930 automobiles, saying that
“212 Northbourne Avenue is clearly a Late Modern building in architectural
style, featuring exaggerated, curvaceous, interlocking functional forms and a
seamless, space-age façade of aluminium and flush glass.” Motor cars in the
1930s, he says, “were curvaceous but bulky, painted in finish and trimmed with
chrome ornaments and bumpers.” He concluded his consideration of the
Building against this criterion with the statement that “there are further notable
examples of Late Modern architecture in Australia, but I believe that 212
Northbourne Avenue is the earliest, most complete and most notable of its type
within the ACT.”230
182. Mr Flannery supported the position of Mr Queale, and stated that “the former
AAA building is an important Canberra example of the Late Twentieth-Century
Late Modernism holding exceptional architectural, urban planning and heritage
conservation interest.” He continued that it is “a rare example of the style in the
228 Exhibit R16, statement of Michael Queale, report at [114] 229 Exhibit R16, statement of Michael Queale, report at [114] and [115] 230 Exhibit R16, statement of Michael Queale, report at [41], [116] and [118]
60
Australian Capital Territory”, “exhibits many of the characteristics of the style”,
and “an important…example of it.”231
183. To return to Ms Hill’s evidence, she seems to require technical innovation
which, as discussed above, is not a feature, or at least a necessary feature, of the
Late Modern style, nor is it called for by criterion (g). She stated that the
Building does not indicate “exceptional design skill”, which is not the relevant
factor or the level required by this criterion. She placed emphasis on the siting;
as discussed above at paragraph 152, in the Tribunal’s view the siting does not
detract from the Building’s notable feature. She relies on the analysis of Jennifer
Taylor, but as discussed above the Tribunal is not convinced that she does so is
appropriatly. She relies on Mr Metcalf’s book to suggest that the Building is not
an “outstanding example of the style”, but again this is not the level required by
criterion (g). Mr Metcalf himself noted the “unusual architectural form in a
precisely designed and executed building,” quoted at paragraph 130 above,
suggesting some support for the Building as a notable example.232
184. One of the comparators for the Building raised by the parties and others was the
Australian Antarctic Division Headquarters in Kingston, Tasmania, designed in
1978. The Statement of Eric Martin for the Australian Institute of Architects
noted that this is listed on the Tasmanian Heritage Register on a number of
bases, but one of these is that it meets the equivalent to criterion (g) under the
Tasmanian heritage scheme, namely that the “place is important as
demonstrating the principal characteristics of a class of place in Tasmania’s
history”. The relevant citation states that that building “has the ability to
demonstrate the principal characteristics of a Late Twentieth-Century Modern
style building complex” with the characteristics of “the determination of
principal masses within the complex of simple geometry” and “aluminium glass
curtain walls”, amongst others.233
I.4 Conclusion concerning criterion (g)
185. The Tribunal is of the opinion that the Building meets this criterion. It is an
example of a building in the Late Modern Style. The views of Mr Metcalf that
231 Exhibit R4, statement of David Flannery, report, pages 16-17 232 Exhibit A2, statement of Jennifer Hill, report page 22 233 Exhibit PJ1, statement of Eric Martin at [4] and attachment B
61
the relevant kind of building is an office building are inconsistent with that of
the other experts, and the Tribunal does not think this is the appropriate
approach.
186. The Building demonstrates the main characteristics of that kind. The Tribunal
doubts that technical ingenuity is a characteristic of that style, or at least that
this is an essential or main characteristic. At any rate there are significant
elements of technical ingenuity and creativity in the Building, as discussed
under the consideration of criterion (a) above.234
187. It is notable example for a range of architectural features, in particular the three
dimensional curved form and the aluminium sheet cladding and flush windows,
all features of substance mentioned by Apperly. Mr Queale’s analysis is
preferred to that of Ms Hill. There are significant problems with Ms Hill’s
approach, outlined above, especially at paragraph 183. Mr Metcalf’s approach,
as noted above at paragraph 168, is not accepted. While the Tribunal does not
think that there is sufficient evidence to support the Council’s argument that the
very high ‘exceptionally fine’ standard in criterion (a) is met, the Tribunal does
think it is clear that there is sufficient evidence that the ‘notable example’
standard in criterion (g) is met.
188. In addition, because of its original role as the national headquarters building for
the Australian Automobile Association, the Building is a notable example of
architectural achievements in the development of Canberra in the NCDC period
and of the architecture of Mr Guy Maron, an eminent Australian architect. As to
the first point, Mr Metcalf noted that the NCDC was “very self-consciously
trying to get architecture from around the country to bring in people who they
thought would make a contribution in the architectural sphere.”235
Mr Flannery
agreed, and stated that it was an objective of the NCDC to produce “modern
buildings of the highest calibre designed by architects from all States and
Territories and to try and create thereby a palette of architectural
expression…that was striving for excellence”.236
The Tribunal agrees that the
Building is important because of its contribution to the history and architectural
234 See paragraphs 126-145, esp. 143 235 Transcript of Proceedings 20 October 2015, page 80, lines 41-43 236 Transcript of Proceedings 20 October 2015, page 123, lines 24-28
62
story of the ACT.237
As to the second point, it is relevant that Mr Maron received
the Sir Zelman Cowan Award, the highest award of the Royal Australian
Institute of Architects, for his design of the Bicentennial Conservatory at the
Adelaide Botanic Garden and that the Conservatory has been placed on the
South Australian Heritage Register. It is relevant also that Mr Maron’s
contribution to architecture in Australia has been recognised by his appointment
as a Member in the Order of Australia.
189. Neither of the parties nor the party joined provided evidence of further places
that might be seen as a more notable relevant example than the former AAA
building. From the evidence provided, it appears to the Tribunal that the former
AAA building enjoys a measurable degree of comparability with the three
metal-clad examples discussed by Taylor. The Tribunal finds comparison of the
former AAA building with large concrete and steel buildings of the period in
Canberra inappropriate, unrealistic and unproductive (High Court 1979; School
of Music 1976; Callam Offices 1981). The Tribunal is similarly disinclined to
compare the former AAA building with buildings of a similar scale but with
lesser quality painted fibre cement sheet facades (Garden Island 1982; AIS
Swimming Hall 1984). As noted by Apperly, aluminium curtain walls and
construction in metallic materials are primary markers of the Late Modern
Style. The applicant argued that it was not appropriate to limit the comparators
to only those with particular characteristics of the style, such as ‘aluminium
curtain walls’ or ‘construction in metallic materials’.238
But these are clearly
main characteristics of the Late Modern style. It is true that there are other
stylistic indicators or characteristics mentioned by Apperly, but it does not seem
appropriate to require all the characteristics, indeed this would not be possible.
Further, it does not seem appropriate to treat other examples as more notable
simply because they have different characteristics.
190. The former AAA building predates the comparable buildings only slightly
(former AAA building 1979; Maddison Clinical Sciences Block in Newcastle
1981; the Mount Druitt Hospital and the Education Building in Perth 1982).
Various elements and characteristics of Late Modern architecture in Australia as
described by Apperly are evident in all of these buildings: sleek, glossy, free
237 Transcript of Proceedings 20 October 2015, page 129, lines 19-21 238 Applicant’s closing submissions at [30]
63
standing buildings; principal masses determined by simple geometry; precision,
lightness and elegance; minimalist construction in metallic materials; glass and
metal curtain walls and cladding panels.
191. The former AAA building is the only one of these four buildings in the ACT.
As discussed, in the Tribunal’s view, Territory heritage significance is
sufficient. The Tribunal is of the view that the Building has Territory heritage
significance under criterion (g). The skilful representation of the Late Modern
style by the Building and rarity of the relevant elements of the style in the ACT
support this finding. The fact that there are few comparable buildings in the
ACT does not of itself mean that this criterion is met, but nor does it prevent it
doing so. In this case there are assessments by experts that the relevant quality is
present, with no credible evidence to the contrary. A comparable building in
Tasmania has been held to have State heritage significance on this basis. Indeed
in the Tribunal’s view there is some evidence that the Building also has national
heritage significance in the context of this criterion.
192. The various forms of recognition of the Building discussed above support a
finding that the Building is a notable example. The fact of its inclusion in
Jennifer Taylor’s seminal publication indicates that the Building became a
notable example of Late Modern architecture not only in Canberra, but also in
Australia as a whole.
193. The Tribunal has noted previously the testimony of Mr Metcalf that the
specificity of the former AAA building “is more relevant than the claim that it
has status from the assertion that it belongs to any stylistic category.”239
The
evidence before the Tribunal is nevertheless that the characteristics of Late
Modern architecture in Australia are present in the former AAA building at a
very high level of competence and integrity. The Tribunal finds that the former
AAA building is a notable example of Late Modern architecture and that it
demonstrates the main characteristics of that style. Accordingly the Tribunal
finds that the former AAA building meets the requirements of criterion (g) for
registration as a place of heritage significance.
239 See paragraph 67 above
64
194. As the applicant correctly states, meeting one of the criteria does not mandate
registration; it simply enables it.240
The Heritage Council argues that the refusal
to decide to register a place which is of heritage significance should be rare
having regard to section 3(2)(a) of the Heritage Act.241
Section 18(a) of the Act
also provides that it is a function of the Council to conserve places with cultural
heritage significance, and section 18(b) to encourage the registration of heritage
places.
195. The applicant argues that if the discretion under section 40(2) arises, it should
be exercised to decide not to register the Building.242
No basis for doing so is
set out in the applicant’s statement of facts and contentions. Given that the
criterion is in the Tribunal’s view met, the Tribunal does not see a basis for
deciding not to register. The Tribunal therefore decides to register the Building.
.....................................
Senior Member R Pegrum
for and on behalf of the Tribunal
240 Applicant’s closing submissions at [4] 241 Outline of respondent’s submissions at [78] 242 Applicants statement of facts and contentions at [66(iv)]
65
HEARING DETAILS
FILE NUMBER: AT 22/15
PARTIES, APPLICANT: 212 Northbourne Pty Limited
PARTIES, RESPONDENT: ACT Heritage Council
PARTY JOINED Australian Institute of Architects
COUNSEL APPEARING, APPLICANT MS Allars
COUNSEL APPEARING, RESPONDENT Dr Jarvis
SOLICITORS FOR APPLICANT Mills Oakley Lawyers
SOLICITORS FOR RESPONDENT ACT Government Solicitor
TRIBUNAL MEMBERS: Senior Member R Orr, Senior
Member R Pegrum
DATES OF HEARING: 19-21 October 2015; 5 November
2015
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