Insights

In brief

The case of Australian Leisure and Hospitality Group Pty Ltd v Brisbane City Council [2016] QPEC 66 concerned an appeal by the Australian Leisure and Hospitality Group Pty Ltd against the decision of the Brisbane City Council to refuse to grant a licence under the Advertisements Local Law to permit the exhibition of an advertisement on the Kedron Park Hotel, a heritage listed premises at Lutwyche, Brisbane. The proposed advertisement was a single-sided electronic or digital device with a total area of 33.5 square metres and was to be installed on the roof of the Kedron Park Hotel. 

The issue in dispute was whether the Brisbane City Council, in exercising its discretion whether to approve the exhibition of an advertisement under the Advertisements Local Law, had due regard for the criteria and conditions prescribed under the Advertisements Subordinate Local Law.

The issue in dispute was whether the advertisement would have an unreasonable impact upon the Kedron Park Hotel itself having regard to its status as a heritage place

The parties did not dispute that the environment within which the premise sat, which was within a residential zone and dominated by major road infrastructure, was consistent with the object of the Advertisements Subordinate Local Law which requires that the advertisement must not unreasonably detract from the desirable characteristics of the natural and built environment in which the advertisement is exhibited.

Rather, the determinative issue in dispute was whether the advertisement would have an unreasonable impact upon the Kedron Park Hotel itself having regard to its status as a heritage place. 

In this respect, the Court noted that the Kedron Park Hotel comprised three key components:
  1. the core structure built in 1881 on the corner and with a frontage to each of the streets;
  2. an extension built in 1920 that wraps around the 1881 core structure and has frontages to each of the streets; and 
  3. a modern extension to the south that has no significant heritage significance. 
It was common ground between the parties that the value of the Kedron Park Hotel as a landmark corner hotel was predominantly appreciated by viewing that part of the Kedron Park Hotel which presents itself to the corner - namely, by looking in a generally south-easterly direction at the Kedron Park Hotel.

It was also common ground between the parties that the principal view of the advertisement, were it to proceed, would be to those viewing the building while travelling northbound along Lutwyche Road. From this vantage point the sign would be seen against the backdrop of the rear of the side of the 1920s extension of the building, on top of the roof of the more modern extension.

The ordinary meaning of 'façade' 

On this basis, the Brisbane City Council placed significant weight and reliance upon provisions of the Advertisements Subordinate Local Law dealing with façades of heritage places, arguing that the proposed advertisement offended the following provisions:
"(a) an advertisement, including supporting infrastructure, fixing devices and services, should not detract from the appearance of a building facade;
(b) an advertisement should be considered as another design element to be incorporated in the existing elevational treatment of a building, in a manner which respects the style, scale, alignments, patterns and other architectural qualities of the building."
Australian Leisure and Hospitality Group Pty Ltd challenged this assertion on the basis that the "ordinary meaning of facade was a face or front, or the principal face, of a building" and that the wall against which the proposed advertisement would be seen wa evidently not at the front of the building, but rather the side or the rear. The Brisbane City Council contended that, because the side and rear were visible from the road, these aspects ought to be considered 'a face' of the building. 

The Court, in adopting the ordinary meaning of façade as being "the most important side, the front column, the face of the building", held that while the side of the building was not irrelevant, the façade of the building in this context was those sides of the building with frontage to each of the streets. Accordingly, the Court held that the advertisement would have no effect on the primary views of the Kedron Park Hotel as a landmark corner hotel, given that the sign was to be around the side or rear, well away from those parts of the Kedron Park Hotel which present itself to the corner.

Matters of heritage, and the extent to which development including the erection of advertisements, will impact upon such values is often a matter of subjective assessment upon which reasonable minds may differ

The Brisbane City Council also contended (at [38]) that the proposed advertisement represented "a new, large, dominant and uncharacteristic visual element, introduced into a visually sensitive place" which would have an adverse impact on the building and its setting because it would both obscure the view of the building and distract from its visual prominence.

In addressing this contention, the Court remarked (at [39]) that "[m]atters of heritage, and the extent to which development including the erection of advertisements, will impact upon such values is often a matter of subjective assessment upon which reasonable minds may differ…".

In this regard, the Court held that the proposed advertisement would not have any impact upon the appreciation of the intactness of the 1881 component on the building, nor the 1920 extension which addresses the two street frontages.

The Court ultimately found that the proposed advertisement represented a relatively minor intrusion at the least sensitive end of the least sensitive component of the Kedron Park Hotel and did not have an undue impact upon the Kedron Park Hotel and its heritage significance. 

In finding in favour of the Australian Leisure and Hospitality Group Pty Ltd, the Court allowed the appeal and granted a licence to the Australian Leisure and Hospitality Group Pty Ltd under the Advertisements Local Law to permit the exhibition of an advertisement on the Kedron Park Hotel.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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