Planning and Environment Court of Queensland allows appeal against conditions imposed restricting alterations to the interior of a State heritage building on the basis that such interior is not part of the building's cultural heritage significance

In brief

The case of G Global 180Q Pty Ltd v Brisbane City Council & Anor [2023] QPEC 5 concerned an appeal to the Planning and Environment Court of Queensland (Court) against conditions imposed by the Brisbane City Council (Council) on a development permit for building work involving partial demolition, internal alterations, and on a development permit for a material change of use of premises for centre activities (Proposed Development) in respect of the National Australia Bank building situated at Queen Street, Brisbane (Subject Building). The Co-Respondent was the Chief Executive of the Department of State Development, Infrastructure, Local Government and Planning.

The Subject Building, and the premises on which it stands, is a State heritage place under the Queensland Heritage Act 1992 (Qld) (QHA) and is also mapped in the Heritage Overlay under the Brisbane City Plan 2014 (City Plan). The Heritage Overlay Code in the City Plan, supported by the Heritage Planning Scheme Policy, thus applies to the Subject Building.

The Subject Building is seven storeys. The specific conditions appealed against had the effect of preventing the Applicant from altering the internal layout of Levels 2 and 3 of the Subject Building, which, at the time of appeal, presented as individual and confined tenancy spaces, to create a more open design.

It was agreed by the parties that the only issue for the Court to determine was whether, on a proper construction of the entry in the Queensland Heritage Register (QHR), under the QHA, the layout and finishes of Levels 2 and 3 of the Subject Building are part of the cultural heritage significance of the Subject Building (at [5]).

The parties agreed that if this issue was answered affirmatively, the Proposed Development would have a detrimental or unacceptable impact on the cultural heritage significance of Levels 2 and 3 of the Subject Building, such that the disputed conditions would be lawful under section 65(1) of the Planning Act 2016 (Qld) (Planning Act). If answered negatively, the Proposed Development would not have a detrimental or unacceptable impact on the cultural heritage significance of Levels 2 and 3 of the Subject Building, such that the disputed conditions would be unlawful under section 65(1) of the Planning Act (at [6]).

The Court found that the layout and finishes of Levels 2 and 3 of the Subject Building are not part of the cultural heritage significance of the Subject Building, and therefore allowed the appeal.

Background

The Court had to consider the "statement about the cultural heritage significance of the place related to the cultural heritage criteria" (Statement of Significance) relating to the Subject Building (at [13]). The Statement of Significance is required as part of an entry into the QHR under section 31(3)(e) of the QHA.

The Court identified that only Criterion D of the Statement of Significance was relevant to determining whether the layout and finishes of Levels 2 and 3 of the Subject Building are part of the cultural heritage significance of the Subject Building (see [13] to [15]). Criterion D states that: "The National Australia Bank is a fine example of a 1920s bank with Classical elements reflecting the solidity of a financial institution" (at [11]).

The Court noted the following propositions from Goldicott v Brisbane City Council [2020] QPEC 11; [2020] QPELR 1153 (at [10]):

• The cultural heritage significance of a place is determined by the description in a Statement of Significance, rather than by expert opinion based on a fresh assessment.

• Not every feature within a place necessarily contributes to its cultural heritage significance as described in a Statement of Significance.

• Other parts of an entry in the QHR, such as the description about the place and information about the history of the place, might provide context in assisting the construction of the Statement of Significance, but a reference to a particular feature does not necessarily ascribe cultural heritage significance to it.

Court finds the Proposed Development would not have a detrimental impact on the cultural heritage significance of Levels 2 and 3 of the Subject Building

The Council and Co-Respondent submitted that the Statement of Significance attaches significance to the Subject Building under Criterion D as a fine example of a 1920s bank because of the characteristics it shares with 1920s bank buildings more generally, that are not mentioned in the Statement of Significance for Criterion D, and, distinctly, for its "Classical elements" (at [17]).

The Council and Co-Respondent's submissions separated Criterion D into two limbs being, first, "the National Australia Bank is a fine example of a 1920s bank" and, second, "with Classical elements reflecting the solidity of a financial institution" (at [17]). The Council and Co-Respondent relied on expert evidence to support their contention that Levels 2 and 3 of the Subject Building are identifiable as part of what makes the Subject Building pertinent under the first limb only.

The Applicant submitted that to separate Criterion D of the Statement of Significance into two limbs is wrong and inconsistent with the definition in the Macquarie Dictionary of the term "with" which means "characterised by or having" (at [19]). The Applicant therefore asserted that the Classical elements are the significant characteristics of a 1920s bank building.

The Council and Co-Respondent submitted in response that if the Classical elements are the only matters of significance, then the Statement of Significance need not have referred to the Subject Building as a 1920s bank at all.

The Court disagreed with the latter submission and observed that there was a connection between the Subject Building's Classical elements and the fact that it was one built in the 1920s for a bank, having regard to the context provided by the history section of the QHR entry (at [20]). The Court observed that the history section cites that the Subject Building's neo-classical style was pervasive in commercial and civic buildings of a consistent scale and materials during the period, and that the use of a neo-classical style reflected the solidity of a financial institution, which was the effect referred to in the Statement of Significance (at [20]). As a consequence, the Court was of the view that the fact that the building was built in the 1920s for a bank and that it has Classical elements with the identified effect, work together.

In the history section of the QHR entry, there are references to the upper floors being occupied by professional tenants and, in the description section, Levels 2 and 3 retaining their original office layout and finish. The Council and Co-Respondent submitted that, if their construction of Criterion D is not accepted, these parts of the text in the history section and the description section would be irrelevant.

The Court did not accept this submission on the basis that both the history part and the description part observe the respective requirements of section 31(3)(b) and section 31(3)(c) of the QHA, to include information about the history of the place and to include a description of the place (see [23] and [24]). In this respect, the Court observed that not everything described in these parts of the entry need necessarily be an aspect of the Statement of Significance, and thus they remain relevant (at [24]).

Court finds expert evidence is not warranted in determining cultural significance

The parties sought to rely on the expert opinion evidence of historians to determine with respect to Criterion D of the Statement of Significance whether the layout and finishes of Levels 2 and 3 are part of what makes the Subject Building a fine example of a 1920s bank. Such findings would be relevant if the two-limb construction of Criterion D contended for by the Council and Co-Respondent was accepted.

There was no consensus between the historians on whether Levels 2 and 3 are significant elements of the Subject Building and the Court was not persuaded that the expert opinion evidence established that Levels 2 and 3 were aspects of the Subject Building which make it a fine example of a 1920 bank per se, for the purpose of Criterion D (at [42]).

However, this finding was not relevant because the Court found that the importance of the Subject Building, with regard to Criterion D, "…lies in it being a fine example of such a building having (i.e. with) Classical elements reflecting the solidity of a financial institution…" and that "[t]here is no need or warrant for the recourse to the view of experts, as to whether, in their view, the place is also important in demonstrating things that buildings built for banks in the 1920s otherwise had. It is the Statement of Significance which is the effectual identification of the cultural significance of the place related to the criterion" (at [28]). Upon this basis, the Court held that the appeal ought to be allowed.

Conclusion

The Court held that Levels 2 and 3 were not a part of the cultural heritage significance of the Subject Building and allowed the appeal. The disputed conditions were deleted.