PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

Transcription

1 PLANNING AND ENVIRONMENT COURT OF QUEENSLAND CITATION: GBW Investments Pty Ltd v Brisbane City Council [2018] QPEC 33 PARTIES: GBW INVESTMENTS PTY LTD ACN (appellant) FILE NO/S: 859 of 2018 DIVISION: PROCEEDING: ORIGINATING COURT: DELIVERED ON: DELIVERED AT: HEARING DATE: JUDGE: ORDER: CATCHWORDS: v BRISBANE CITY COUNCIL (respondent) Planning and Environment Appeal Planning and Environment Court, Brisbane 8 June 2018 (ex tempore) Brisbane 17, 18 May 2018 and written submissions received 21, 23 and 28 May 2018 and hearing of oral submissions on 8 June 2018 Kefford DCJ The appeal is dismissed. I confirm the decision of the Council to refuse the change. PLANNING AND ENVIRONMENT APPEAL appeal against refusal of a change application to a development approval granted with respect to a multi-unit dwelling and adjacent heritage building where council refused the change on the basis that it was not minor whether the proposed change increases the severity of known impacts on the heritage place whether the proposed change results in a dramatic change to the built form in respect of scale and bulk LEGISLATION: Planning Act 2016 (Qld), s 68, s 78, s 81, s 229, s 286 CASES: Planning and Environment Court Act 2016 (Qld), s 43, s 45 Queensland Heritage Act 1992 (Qld), s 23 ISPT Pty Ltd v Brisbane City Council & Anor [2017] QPEC 52; [2017] QPELR 1117, distinguished Kirkham v Brisbane City Council [2007] QPEC 106; [2008] QPELR 290, cited

2 2 COUNSEL: SOLICITORS: R Litster QC for the appellant J Houston for the respondent McCullough Robertson for the appellant City Legal - Brisbane City Council for the respondent TABLE OF CONTENTS Introduction... 2 Background... 2 The nature of the refused change... 4 The decision framework... 6 The issues The Heritage Place Will there be an increase in the severity of known impacts? Will the change result in a dramatic change to the built form in respect of bulk and scale? Conclusion Introduction [1] This is an appeal commenced by GBW Investments Pty Ltd against part of a decision of the respondent, Brisbane City Council ( Council ). Council s decision related to a change application for a development approval granted with respect to a multi-unit dwelling and adjacent heritage building at 2 Scott Sreet, Kangaroo Point. Council refused one of several proposed changes on the basis that it was not a minor change. The other proposed changes were approved. This appeal is about Council s decision to refuse one of the proposed changes. [2] The subject land is improved by a heritage listed building, which was constructed around The part of the subject land occupied by the heritage listed building, as well as curtilage around the building, is included on both the Queensland Heristage Register and the local heritage register. The identified areas for each entry is identical. [3] The subject land is also improved by a partially constructed 15 level multi-unit residential building. The partially constructed building is cantilevered from its third level to overhang the heritage building. The multi-unit building is the subject of a development approval granted by Council. It is this approval to which the refused change underlying this appeal relates. Background [4] On 14 June 2014, the appellant made a development application seeking: a preliminary approval to carry out building work (heritage place demolition, heritage place, heritage place adjoining);

3 3 (c) a development permit for material change of use (multi-unit dwelling); and a preliminary approval to carry out building work (multi-unit dwelling). [5] At the time, City Plan 2000 was in force. [6] The proposed development involves a 15 level residential tower comprising 14 single level apartments and restoration of the heritage listed building. [7] When the development application was made, the Sustainable Planning Act 2009 (Qld) was in force. The Chief Executive for the Sustainable Planning Act 2009 was a concurrence agency for Queensland heritage places. [8] Council approved the development application on 13 October The decision notice approved development in accordance with Revision 20 of the architectural drawings. [9] On 23 November 2017, Council approved changes to the development approval in relation to the roof level of the multi-unit building. [10] The application for change the subject of this appeal was lodged on 22 December 2017 under s 78 of the Planning Act 2016 (Qld). [11] On 26 February 2018, Council approved ten aspects of the change application, namely: (c) (d) (e) (f) (g) (h) (i) (j) relocation of the central staircase and lift core; additional carparking spaces in the basement; separation of the direct access from the lobby to the existing heritage house; relocation of the visitor (including parking with disability) parking spaces and refuse collection area at ground level; addition of fire emergency egress points at ground level along Main Street; relocation of the services room from the side boundary to adjacent lift core; relocation of the pedestrian entry to the building from Main Street; adjustments to the articulation zone along the side and front boundary of the building; internal changes to the apartments including removing the rumpus room and creating a media room along the Main Street frontage; and alterations to the planters along the Main Street frontage. [12] Council refused that part of the change application that relates to the extent of the slab towards the Western elevation on all floors. [13] Council refused the change on the basis that it was not minor. [14] This appeal is against that decision. The appeal was lodged on 7 March 2018.

4 4 [15] There is no suggestion that there is a relevant relationship between those changers which were approved and the one that was refused. The only issue in this appeal relates to whether the refused change is a minor change. Both parties accepted that consideration of that issue is not dependant on the viewing the changes as an entire package. Rather, whether the change in issue constitutes a minor change is to be determined in the context of the development form with those approved changes. The nature of the refused change [16] The proposed change the subject of this appeal relates to the extension of the slab of the multi-unit building on its western elevation on all floors. [17] Council s Grounds for Refusal are advanced initially by reference to an allegation that the refused change would result in substantially different development. [18] To understand the nature of the refused change it is necessary to appreciate what has been approved and the difference involved as a consequence of the proposed change. [19] I have had regard to the drawings that were approved in October 2015, bearing in mind that changes related to the roof level were approved in November 2017, and to the drawings that were approved in February 2018 to the extent those drawings were approved. [20] I have considered Document 3(c) of Exhibit SMT-1 to the first affidavit of Mr Tocchini (noting that these versions were not relevantly changed in November 2017). Relevant extracts from that document are found as Document 4 in Exhibit 2 (at pages 15 to 21). [21] I have compared those drawings with Document 4 of Exhibtit SMT-2. [22] I have also considerd Document 5 in Exhibit 2. The refused change is identified on each of those pages by the by the words (in red) Additional slab and screen extent of the building towards the Western Elevation on all floors is not part of this approval. [23] The diffrence between the maximum extent to which the slab elements of the multiunit building extend beyond the eaves of the heritage listed building are specifically depicted in Exhibit 2 at pages 29 and 30. [24] The difference between the maximum extent to which the supporting angle elements of the multi-unit building extend beyond the eaves of the heritage listed building are specifically depicted in Exhibit 2 at pages 31 and 32. The supporting angle element is a steel plate that is fixed to the slab edge and integral to the fitting of moving screen elements on the western elevation of the multi-unit building. [25] The relationship and interface between the lower levels of the multi-unit building and the heritage listed building are depicted more closely in Document 6 of Exhibit LCP- 1. [26] Mr Probert s first affidavit describes these matters in paragraphs 19 to 22 as follows: 19 The relationship and interface between the lower levels of the tower and the Scott Street Flats is depicted in Document 6 of Exhibit LCP-1 which shows:

5 5 the cross section for the October 2015 Development Approval; and the cross section for the Refused Change. In Document 6, the screen on the northern façade has been removed to allow a better appreciation of the space between the tower at the lower levels and the Scott Street Flats. The screen can be seen in the first two renders in Document 4 or in those in Document The extent to which the tower projects over the roof of the Scott Street Flats is not uniform because the floor plate for each level is different. The extent of the overhang measured from the line of the eastern eaves of the Scott Street Flats to the outermost western slab edge is shown (in elevation) in Document 7 of Exhibit LCP-1 as: for the October 2015 Development Approval, a maximum of 1220mm (this appears in Drawing 302A, Revision 20 in Document 7); and for the Refused Change, a maximum of 2120mm (this appears in Drawing 302A, Revision 21 in Document 7); (i.e. in simple terms the maximum as built dimension to the outermost western slab edge exceeds the maximum as approved dimension by 900mm). 21 The extent of the overhang measured from the line of the eastern eaves of the Scott Street Flats to the outermost western edge of the steel supporting angle is shown (in elevation) in Document 8 of Exhibit LCP-1: for the October 2015 Develeopment Approval, a maximum of 1670mm (this appears in Drawing 302A, Revision 20 in Document 8); for the Refused Change, a maximum of 2630mm (this apears in Drawing 302A, Revision 21 in Document 8); (i.e. in simple terms the maximum as built dimension to the outermost western edge of the steel supporting angle exceeds the maximum as approved dimension by 960mm). 22. At the lower levels of the tower, the extent to which the outer line of the slab for Refused Change extends to the west beyond the outer line of the slab for the October 2015 Development Approval is shown (in plan) in Document 9 of Exhibit LCP-1 as: (c) on level 1, 464mm at the south western corner and 5mm at the north western corner; on level 2, 473mm at the south western corner and 4mm at the north western corner; on level 3, 768mm at the south western corner and 342mm at the north western corner. [27] The floor plate for each level is different. That has implications for how the multiunit building presents in terms of articulation. [28] Only a maximum of 75 per cent of each level on the western façade of the building can be screen at any one time.

6 6 [29] In March 2018, Council approved the façade elevations in terms of the visual appearance of the screens that are an integral component of the design of the multiunit building. A letter from Council confirming compliance approval makes it plain that only the slab extension and additional form is not approved. An understanding of the visual effect of the screens is afforded by Document 10 in Mr Probert s first affidavit. [30] The refused change is depicted on a level by level basis in the Revision J drawings. [31] Exhibit 7 shows the outcome of an overlay of Drawing 302, Revision 20, and Drawing 302, Revision 21, which illustrates the maximum extent to which the building outline of Drawing 302, Revision 21, protrudes past the building outline of Drawing 302, Revision 20. The difference is, in some locations, as little as a few millimetres. [32] In referring to Exhibit 7, I accept that it should be understood as providing a two dimentional representation of maxima which are not uniform across the western façade. [33] It is only the additional slab and screen extensions towards the western elevation (as distinct from the extension on the other sides of the multi-unit building) that is in issue. Council submits that this is consistent with the importance placed by Council on conservation of the cultural heritage significance of the heritage building. I accept that to be so. The decision framework [34] The original application was made and approved under the now repealed Sustainable Planning Act 2009 (Qld). [35] The Planning Act 2016 (Qld) commenced on 3 July [36] Under s 286 of the Planning Act 2016, the development approval continues to have effect. [37] The change application was made and decided under the Planning Act [38] The subject appeal is a Planning Act appeal. It was commenced after 3 July 2017 under s 229 and Schedule 1, table 1, item 2 of the Planning Act The appeal is to be heard and determined under the Planning Act 2016 and the Planning and Environment Court Act 2016 (Qld). [39] The appeal is generally by way of hearing anew: 1 the court is to determine the appeal standing in the shoes of the assessment manager and generally on the law as it presently stands subject to those qualifications that appeal in section 81 of the Planning Act [40] Pursuant to s 45 of the Planning and Environment Court Act 2016, the appellant has the onus of establishing that the appeal should be upheld. [41] Under s 47 of the Planning and Environment Court Act 2016, the court must: confirm the decision; 1 Section 43 of the Planning and Environment Court Act 2016.

7 7 (c) change the decision; or set it aside and: (i) (ii) make a decision replacing it; or return the matter to the entity that made the decision appealed against with directions it considers appropriate. [42] The appellant s change application was lodged under s 78 of the Planning Act That provision states: 78 Making change application (1) A person may make an application (a change application) to change a development approval. (2) A change application must be made to the responsible entity. (3) The responsible entity is for a change application for a minor change to a development condition that a referral agency imposes the referral agency; or the P&E Court, if (i) (ii) (iii) the change application is for a minor change; and the development approval was given because of an order of the court; and there were any properly made submissions for the development application; or (ba) for a change application to change a condition imposed by the Minister under section 95 the Minister; or (bb) for a change application to change a development approval given by the Minister for an application that was called in under a call in provision the Minister; or (c) (emphasis added) otherwise the assessment manager. [43] Section 81 of the Planning Act 2016 guides the assessment of, and decision with respect to, minor changes. It states: 81 Assessing and deciding application for minor changes (1) This section applies to a change application for a minor change to a development approval. (2) When assessing the change application, the responsible entity must consider the information the applicant included with the application; and if the responsible entity is the assessment manager any properly made submissions about the development

8 8 (c) (d) application or another change application that was approved; and any pre-request response notice or response notice given in relation to the change application; and if the responsible entity is, under section 78(3)(ba) or (bb), the Minister all matters the Minister would or may assess against or have regard to, if the change application were a development application called in by the Minister; and (da) if paragraph (d) does not apply all matters the responsible entity would or may assess against or have regard to, if the change application were a development application; and (e) another matter that the responsible entity considers relevant. (3) For subsection (2)(d) and (da), the responsible entity must assess against, or have regard to, the matters that applied when the development application was made; and may assess against, or have regard to, the matters that applied when the change application was made. (4) After assessing the change application, the responsible entity must decide to make the change, with or without imposing development conditions, or amending development conditions, relating to the change; or refuse to make the change. (5) If there is no affected entity, the responsible entity must decide the application within 20 business days after receiving the application. (6) If there is an affected entity, the responsible entity must not decide the application until (i) the responsible entity receives a pre-request response notice, or response notice, from each affected entity; or (ii) the end of 20 business days after the responsible entity received the application; but must decide the application within 25 business days after receiving the application. (7) However, the responsible entity and the applicant may, within the period stated in subsection (5) or (6), agree to extend the period. [44] Clearly, for an application to be assessed and decided under s 81 of the Planning Act 2016, it must be seeking a minor change to a development approval. [45] Further, pursuant to s 46(4) of the Planning and Environment Court Act 2016, the court cannot consider a change to the development approval the subject of a change

9 9 application under s 78 of the Planning Act 2016 unless the change is only a minor change to the approval. [46] A minor change is defined in Schedule 2 of the Planning Act The definition relevantly states: minor change means a change that for a development approval (i) (ii) would not result in substantially different development; and if a development application for the development, including the change, were made when the change application is made would not cause (A) (B) (C) (D) (E) (emphasis added) the inclusion of prohibited development in the application; or referral to a referral agency, other than to the chief executive, if there were no referral agencies for the development application; or referral to extra referral agencies, other than to the chief executive; or a referral agency to assess the application against, or have regard to, matters prescribed by regulation under section 55(2), other than matters the referral agency must have assessed the application against, or have had regard to, when the application was made; or public notification if public notification was not required for the development application. [47] Schedule 1 of the Development Assessment Rules, promulgated by the Minister under s 68 of the Planning Act 2016, provides as follows: Schedule 1: Substantially different development 1. An assessment manager or responsible entity may determine that the change is a minor change 2 to a development application or development approval, where amongst other criteria a minor change is a change that would not result in substantially different development. 2. An assessment manager or responsible entity must determine if the proposed change would result in substantially different development for a change made to a proposed development application the subject of a response given under section 57(3) of the Act and a properly made application; made to a development application in accordance with part 6; (c) made to a development approval after the appeal period. 3 2 For a definition of minor change, see schedule 2 of the Act. 3 For changing development approvals, see chapter 3, part 5, division 2, subdivision 2 of the Act.

10 10 3. In determining whether the proposed change would result in substantially different development, the assessment manager or referral agency must consider the individual circumstances of the development, in the context of the change proposed. 4. A change may be considered to result in a substantially different development if the proposed change: (c) (d) (e) (f) (g) (h) (i) (emphasis added) involves a new use; or results in the application applying to a new parcel of land; or dramatically changes the built form in terms of scale, bulk and appearance; or changes the ability of the proposed development to operate as intended; 4 or removes a component that is integral to the operation of the development; or significantly impacts on traffic flow and the transport network, such as increasing traffic to the site; or introduces new impacts or increase the severity of known impacts; or removes an incentive or offset component that would have balanced a negative impact of the development; or impacts on infrastructure provisions. [48] There is no stated legislative requirement to consider these matters. They are also not an exhaustive statement of the circumstances that might be relevant to the determination of whether something is substantially different development. Nevertheless, applying a purposive approach to the reading of the planning legislation, both parties accepted that it was appropriate to have regard to them. I accept that it is appropriate that I do so. [49] Whether the proposed change is a minor change is a matter of fact and degree. It should be considered broadly and fairly, with guidance found in Schedule 1 of the Development Assessment Rules. The issues [50] The prayer for relief in the Notice of Appeal seeks: an order that the part of the decision against which the appellant appeals is set aside; and a decision which: (i) replaces that part of the decision; and 4 For example, reducing the size of a retail complex may reduce the capacity of the complex to service the intended catchment.

11 11 (ii) approves the aspect of the change application that was refused by the Council s delegate. [51] The grounds of appeal are: the decision of the delegate records only that the delegate was not satisfied the application to change the exisiting approval accords with the requirements of the Planning Act 2016 ; and the decision notice does not state any reason for not making the refused change. [52] If the issues to be determined were defined by reference to that document, given the appellant has the onus, it would have needed to demonstrate that: the change is a minor change effectivley establishing that the change could be dealt with under s 81 of the Planning Act 2016 and s 46(5) of the Planning and Environment Court Act 2016; and that the change ought be made having regard to those matters listed in s 81(2) and (3) of the Planning Act [53] However, the ambit of the dispute as identified in the Notice of Appeal was overtaken by the order of His Honour Judge Williamson QC made on 9 April It states that: by 9 April 2018, Council must provide the reasons on which Council s delegate relied to refuse the aspect of the change application the subject of the appeal and upon which it will rely on the appeal; and the issues for determination of the court are the reasons so provided. [54] In accordance with the order, Council provided a document titled Ground for Refusal. It records that the reasons for refusal as follows: 1. The proposed change the subject of this proceeding is not considered to be a minor change as defined in Schedule 2 of the Planning Act 2016, as the proposed change would result in substantially different development. In particular: a. the proposed change would increase the severity of known impacts, being the impact of the development on the heritage place. The increased intrusion of the development within the heritage place renders the heritage place less prominent and further diminishes the cultural heritage significance of the place. b. the proposed change would result in a dramatic change to the built form in respect of scale and bulk. c. the proposed change is inconsistent with the Heritage Overlay Code (the Code) under City Plan 2014, in that it is contrary to: i. Overall Outcome (2) of the Code in that the change would detract from the cultural heritage significance of the heritage place;

12 12 ii. iii. iv. Overall Outcome (2) of the Code in that the change would compromise the compatibility of the heritage place with the tower above; PO1 of the Code in that the cultural heritage significance of the heritage place would be diminished by the proposed change; PO2 of the Code in that the proposed change does not take account of all of the cultural significance of the heritage place; v. PO3 of the Code in that the setting of the heritage place would be compromised, not protected, by the proposed change; and vi. PO4 of the Code in that the proposed change does not conserve the heritage place d. the change is inconsistent with Strategic Outcome (1)(c) of Theme 2 of the Strategic Framework in that it does not appreciate, protect and manage part of Brisbane s built cultural heritage. e. the change is inconsistent with Element 2.1 (Brisbane s Identify) of Theme 2 of the Strategic Framework, specifically: i. it is contrary to SO19 and L19.3 in that the cultural heritage significance of one of Brisbane s important buildings and places is not protected; ii. iii. it is contrary to L19.1 in that it does not protect a place of State and local cultural heritage significance in accordance with the principles of the Burra Charter; it is contrary to L19.2 in that the adaptation and re-use of the heritage place no longer retains the significance of the place. [55] The issue raised in the reasons focuses on whether the change in relation to the extent of the slab towards the western elevation on all floors is a minor change. Council seeks to substantiate its position by reference to the guidance on what is substantially different development in the Development Assessment Rules and a number of provisions of City Plan [56] The hearing proceeded on the basis that Council s Grounds for Refusal identify all matters on which Council wishes to rely, and that Council is not alleging that the refused change offends against matters which applied at the time when the development application was made (i.e. on 16 June 2014). [57] During final submissions, I raised a concern with the parties about the disparity between: Council s Grounds for Refusal in court document 15 and what, pursuant to the order of his Honour Judge Williamson QC, I was to determine in this appeal; as compared to the matters canvassed during the hearing and the ultimate relief sought by the appellant, namely that the change be approved.

13 13 [58] I was concerned about such matters because, in its written submissions, Council submitted: 62. If the Court determines that the extension of the slab towards the western elevation is not inconsistent with the identified provisions of City Plan 2014 and that the change is minor, it would follow that the Appeal would be allowed and the minor change approved. 63. It is at least possible that the Court might find some inconsistency with the identified provisions of City Plan but that the change was nonetheless minor. In that case, the Court would need to assess whether or not the minor change should be approved. [59] After a brief adjournment the parties requested the court to determine the appeal on the following basis: the proposed change is not a minor change for the reasons identified in paragraphs and of Council s Grounds for Refusal taking into account the matters identified in paragraphs (c), (d) and (e) of Council s Grounds for Refusal. (This is the effect of the order of His Honour Judge Williamson); and if the change is a minor change, the acceptability of that change be assessed on the basis that it is inconsistent with the provisions identified in paragraphs (c), (d) and (e) of Council s Grounds for Refusal. That is the extent of the justiciable issues in terms of the assessment of the acceptability of the proposed change. [60] The provisions referred to by Council are in City Plan 2014, which commenced on 30 June 2014, a very short time after the development application was lodged and prior to its approval. [61] The appellant (through its Counsel) accepted that it is appropriate for the court to give weight to City Plan It also accepted that in determining whether the change is a minor change, it is appropriate to have regard to the provisions of City Plan 2014 identified by Council. [62] The provisions of City Plan 2014 relied on by Council provide are in its Outline at para 74. They are as follows: strategic outcome (1)(c) of Theme 2 of the Strategic Framework, which states: Brisbane has locations within the city which have cultural heritage significance to a broad range of groups and individuals. Character housing provides a link with Brisbane s history and helps to reinforce a strong sense of place and community identity. Brisbane s character elements and built cultural heritage are appreciated, protected and managed. Locations of cultural significance for Aboriginal people are recognised and protected

14 14 (c) (d) specific outcome SO19 and land use strategy L19.1, L19.2 and L19.3 in Table , Element 2.1, Theme 2 in the Strategic framework, which state: Specific Outcome Heritage, character and cultural values SO19 Brisbane;s important buildings and places that are important to the city s history are protected. (emphasis added) Land use strategy L19.1 Heritage places and precincts of important local, city-wide or State cultural heritage significance or special significance to Aboriginal people are identified and protected in accordance with the principles of The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance. L19.2 The adaptation or re-use of heritage places for purposes that retain the significance of the place is supported. L19.3 Development in or adjacent to identified heritage places or precincts protects the cultural heritage significance of the place or precincts. overall outcome (2) and of the Heritage overlay code, which state: Development on or adjoining a heritage place does not detract from the cultural heritage significance of that heritage place, including any Aboriginal cultural values. Re-use of a heritage place is compatible with its cultural heritage significance, including any Aboriginal cultural values and retains its heritage significance. (emphasis added) performance outcomes PO1, PO2, PO3 and PO4 of the Heritage overlay code, which state: PO1 Development provides for the future protection of the heritage place and does not damage or diminish its cultural heritage significance. Note Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with The Australia ICOMOS Burra Charter. PO2 Development is based on and takes account of all aspects of the cultural significance of the heritage place.

15 15 Note Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter Cultural Significance. PO3 Development protects the fabric and setting of the heritage place while providing for its use, interpretation and management. Note Where necessary, a heritage impact assessment report is prepared verifying the proposal has been prepared in accordance with the Guidelines to the Burra Charter Conservation Policy. PO4 Development is based on the issues relevant to the conservation of the heritage place. Note Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter Procedures for Undertaking Studies and Reports. (emphasis added) [63] As such in considering these provisions of City Plan 2014, relevant extracts from the Burra Charter include those oulined at paragraph 75 of Council s Outline as follows: Article 1. Definintions For the purposes of this Charter: 1.1 Place means site, area, land, landscape, building or other work, group of buildings or other works, and may include components, contents, spaces and views. Explanatory Notes The concept of place should be broadly interpreted. The elements described in Article 1.1 may include memorials trees, gardens, parks, places, archeological sites and spiritual and religious places. 1.2 Cultural significance means aesthetic, historic, scientific, social or spiritual value for past, present or future generations. Cultural significance is embodied in the place itself, its fabric, setting, use, associations, meanings, records, related places and related objects. Places may have a range of values for different individuals or groups. Explanatory Notes The term cultural cignificance is synonymous with heritage significance and cultural heritage value. Cultural significance may change as a result of the continuing history of the place. Understnading of cultural sifgnificance may change as a result of new information. 1.4 Conservation means all the processes of looking after a place as to retain its cultural significance.

16 Compatible use means a use which represents the cultural significance of a place. Such a use involves no, or minimal, impact on cultural significance Setting means the area around a plcae, which may include the visual catchment. Consevation Principles Article 8. Setting Conservation requires the retention of an appropriate visual setting and other relationships that contribute to the cultural significance of the place. New construction, demolition, intrusions or other changes which would adversely affect the setting or relationships are not appropriate. Explanatory Notes Aspects of the visual setting may include use, siting, bulk, form, scale, character, clour, texture and materials. Other relationships, such as historical connections, may contribute to interpretation, appreciation, enjoyment or experience of the place. Conservation Processes Article 15. Change 15.1 Change may be necessary to retain cultural significance, but is undesirable where it reduces cultural significance. The amount of change to a place should be guided by the cultural significance of the place and its appropriate interpretation. Explanatory notes When change is being considered, a range of options should be explored to seek the option which minimises the reduction of cultural significance. Conservation Practice Article 27. Managing Change 27.1 The impact of proposed changes on the cultural significance of a place should be analysed with reference to the statement of significance and the policy for managing the place. It may be necessary to modify proposed changes following analysis to better retain cultural significance. (emphasis added) [64] In summary, Council alleges that the proposed change is not a minor change because it: increases the severity of known impacts on the heritage place; and

17 17 results in a dramatic change to the built form in repsect of scale and bulk (as it relates to the heritage place). [65] Both parties accept that these issues and the overall question of whether the change is minor should be determined by consideration of the Criteria and related statements in the Queensland Heritage Register Citation, in the context of the relevant identified planning provisions. The planning provisions identify the scope of impacts to be considered and provides a context for judging their severity. [66] In the strategic framework of City Plan 2014, land use strategy L19.1 identifies that protection of heritage places should be in accordance with the principles of the Burra Charter. Notes to the performance outcomes in the Heritage Overlay Code support guidance being taken from the Burra Charter, including guidelines to the Burra Charter for cultural significance conservation policy. [67] In terms of the importance of the planning provisions identified by Council to the assessment of the severity of the impacts, I am assisted by a statement made by Mr Buckley in his Statement of Evidence as follows: 35. Develoment in Brisbane is affected by many codes of the City Plan However, there are very few codes of the City Plan 2014 that apply to individual sites. Whilst there are precincts, streets, and whole suburbs affected by other codes of the City Plan 2014, there are only a handful of codes which are site specific. The Heritage Overlay Code of the City Plan 2014 is one of those. 36. This particularity of planning intent triggered by the overlay necessarily raises the assessment to a higher level and proposals, whether they be original/aprovals, warrant careful analysis. [68] This approach was accepted by his Honour Judge Brabazon QC in Kirkham v Brisbane City Council [2007] QPEC 106; [2008] QPELR 290. [69] The intent to protect and conserve heritage places is clearly site specific and, as Mr Buckley says, raises assessment to a higher level of scrutiny then might otherwise apply. [70] Before turning to each of those issues, it is convenient to consider the extent of the heritage place and its cultural heritage signficance. The Heritage Place [71] As I have already mentioned, the heritage building is on both the Queensland Heritage Register and the local heritage register. The extent of the place is identical in each register. [72] There is no evidence of a citation prepared by Council with respect to the local heritage register. There is, however, a citation for the Queensland Heritage Register. The parties accept that the question of whether the change is minor should be determined by consideration of statements in the Queensland Heritage Register. [73] The heritage building was entered on the Queensland Heritage Register on 29 April 2003.

18 18 [74] The online extract of the State Heritage Citation is contained in Appendix 1 to the Statement of Evidence of Mr Kennedy, which is part of Exhibit MOK-1 to his affidavit. The Heritage Citation commences: Scott Street Flats Place ID: Scott Street, Kangaroo Point [75] At the time of the listing, place was defined in the Queensland Heritage Act 1992 as follows: place means a defined or readily identifiable area of land (which may be comprised oin separate titles and in different ownership), and includes a building and such of its immediate surrounds as may be required for its conservation; a natural feature of historical significance and such of its immediate surrounds as may be required for its conservation. [76] Currently, place is defined in the Queensland Heritage Act 1992 as follows: place 1. Place means a defined or readily identifiable area of land, whether or not held under 2 or more titles or owners. 2. Place includes any feature on land mentioned in item 1; and any part of the immediate surrounds of a feature mentioned in paragraph that may be required for its conservation. [77] I have already referred to the definition of place under the Burra Character. [78] It is also relevant to identify the heritage place by reference to the heritage place mapping. [79] In terms of the citation, the Queensland Heritage Register citation attributes significance to the heritage building by reference to criteria in s 23 of the Queensland Heritage Act 1992 (Qld) (as that provision stood at 29 April 2003). The citation states: Significance Criterion A The place is important in demonstrating the evolution or pattern of Queensland s history. Scott Street Flats, a two storey building of masonry and timber built in c1925, is historically important for its association with the entry of women into the professions in Queensland, particularly into the architectural profession. Scott Street Flats is important in demonstrating the interwar residential development of Brisbane when flats appeared in inner-city suburbs, increasing the density and diversity of the city s housing stock. Criterion B The place demonstrates rare, uncommon or endangered aspects of Queensland s cultural heritage.

19 19 Scott Street Flats demonstrate rare aspects of Queensland s cultural heritage as there are few surviving intact examples of the work of pioneer woman architects in Queensland. Criterion E The place is important because of its aesthetic significance. The building has aesthetic significance as a well designed example of an early purpose-built flats building in the Tudor Revival Style. Criterion H The place has a special association with the life or work of a particular person, group or organisation of importance in Queensland s history. The Scott Street Flats have a special association with the work of Elina Mottram, the first woman to open her own architectural practice in Brisbane and Queensland s longest practising woman architect. The Scott Street Flats also have an association with Professor and Mrs Cumbrae-Stewart, prominent citizens of Brisbane in the 1910s, 20s and 30s. [80] The criteria for entry of a place in the Queensland Heritage Register is directly comparable to that for inclusion of a place in the Heritage overlay. The criteria relied on when the heritage building was entered in 2003 were those found within s 23(1),, (e), and (h) of the Queensland Heritage Act Those criteria are directly comparable to criteria found within s 2(1),, (e), and (h) of the Heritage Planning Scheme Policy. [81] In understanding this citation, it should be appreciated that the Queensland Heritage Act 1992, relevant definitions include: aesthetic significance, of a place or object, includes its visual merit or interest. cultural heritage significance, of a place or object, includes its aesthetic, architectural, historical, scientific, social or technological significance to the present generation or past or future generations. place means defined or readily identifiable area of land (which may be comprised in separate titles and in different ownership), and includes a building and such of its immediate surrounds as may be required for its conservation; a natural feature of historical significance and such of its immediate surrounds as may be required for its conservation. [82] The statements of significant in the Queensland Heritage Register citation contain no attribution of significance because of the setting of the building (for example, by reference to its curtilage or garden) or by reference to specified views to or from the heritage building. However, curtilage of the heritage place can be seen to be identified on the heritage place mapping. It extends beyond the perimeter of the building envelope itself. The statements of significance in respect of Criteria A, B and E also all involve recognition of the desirability of an ongoing opportunity to appreciate and understand the building. The impact on the visual attributes should be understood in the context of an ability to properly appreciate and understand the cultural heritage significance described in those criteria.

20 20 [83] At this juncture it is appropriate to make brief mention of my decision in ISPT Pty Ltd v Brisbane City Council & Anor [2017] QPEC 52; [2017] QPELR [84] The Appellant s submission quote the following passage from my judgment. it is the statement of significance, and the assessment of the proposed development s impact on such matters, upon which attention should ultimately focus to determine whether there is conflict with the Heritage overlay code. [85] In that case, the issue in dispute related to whether particular fabric of the building that was proposed to be demolished was of cultural heritage significance. [86] Here the consideration is an entirely different one, it relates to whether, when considering impact on cultural heritage significance, regard can be had to impact on the setting of a building when the building is what is referred to as having cultural heritage significance. [87] As I have already alluded to, when determining impact on the cultural heritage significance in issue in this case, one should have regard to impact on the opportunity to appreciate and understand the building. [88] The provisions of City Plan referred to by Council support that intention in that they seek to protect not only the cultural heritage significance, but some of those provisions also indicate a broader policy to protect the heritage place. In that respect, see, for example. specific outcome SO19, and land use strategy 19.1 in table , element 2.1, theme 2 in strategic framework, as well as performance outcome PO1 and, in particular, performance outcome PO3 of the Heritage Overlay Code which refers to development protecting the setting of the heritage place.. [89] The provisions in the City Plan draw a distinction in their terms between, in some instances, protecting the heritage place and, in other instances, protecting the cultural heritage significance. As such, I do not accept that it is that simple as saying, as the appellant does, whether the refused change is approved or not, the heritage building will remain readily capable of being appreciated for those attributes referred to in the statement of significance. That is the very issue that requires careful consideration in this case. [90] Turning then to the two specific matters relied on by Council, that is, whether the change will increase the severity of known impacts on the heritage place, and whether it will result in a dramatic change to the built form in respect of bulk and scale. Will there be an increase in the severity of known impacts? [91] Both parties called expert evidence with respect to these issues. [92] The experts called by the appellant included: (c) Mr Proberts with respect to architecture and visual considerations; Mr Allom with respect to heritage matters; and Mr Ovenden with respect to town planning.

21 21 [93] The experts called by Council included: (c) Mr King with respect to architecture and visual considerations; Mr Kennedy with respect to heritage matters; 5 and Mr Buckley with respect to town planning. [94] The written submissions on behalf of the appellant contains extensive extracts from the expert evidence. I have considered all of the evidence referred to, as well as the other evidence. However, I am cognisant of the rather frequent reminders of the urgency of this matter and, given the need for its urgent determination, my reasons that follow will be briefer than they ordinarily might be in terms of the analysis of that evidence. [95] On the issue of increases to the severity of known impacts, Mr Allom opines in his first affidavit at paragraph 22 that in heritage terms, consideration of the refused change hinges on comparison of the extent to which the multi-unit building will project over the heritage building, the manner in which that is expressed architecturally, and a consideration of potential impacts on the aspects of significance identified in the Queensland Heritage Register citation. [96] He opines that none of the identified aspects of significance of the heritage building are affected by the multi-unit building as approved. He says that while the 2015 approval authorised changes to the heritage building, those matters do not detract from the aspects of significance identified in the Queensland Heritage Register citation. [97] In his heritage impact assessment of June 2014, Mr Allom said: Their location facing the Brisbane River has generated a response in the large bay windows to both levels at this elevation. The building is easily appreciated from the river bank and from Scott Street itself and these two elevations are of primary significance in aesthetic terms The setting of an urban context of the Scott Street Flats is part of the aesthetic significance of the place Externally, the elevations to the west and north, those identified as being of primary significance, are to remain. To the south, a deck and service undercroft is to be removed and new timber deck and swimming pool constructed. While the proposed development of the site of the Scott Street Flats will inevitably affect the setting of the listed place, the impact upon significance is acceptable. The conservation of the building itself has no impact upon cultural significance. (emphasis added) 5 In order to accommodate an urgent hearing, as requested by the appellant, Mr Kennedy s oral evidence was given from England where he was on leave.

22 22 [98] In terms of the October 2015 development approval, I consider it appropriately described by Mr Buckley as a very generous encroachment into a state heritage place/local heritage place. [99] In terms of the later approved changes to the multi-unit building, Mr Allom opined in paragraph 23 of his first affidavit that the changes to the way in which the heritage building integrates with the undercroft of the multistorey building that were approved by the decision that advised of the refused change do not detract from the aspects of significance identified in the Queensland Heritage Register citation. He would not describe the approved impact of the multistorey building on the heritage building as severe. He considers that the increase in horizontal projection of the multistorey building will be barely perceptible to most people. [100] In paragraph 24 of his first affidavit, Mr Allom says that the extension of the slabs over the heritage building on levels 1 to 14 of the multi-unit building (that Council opposes) does not physically impact upon the fabric of the heritage building. He acknowledges that extension of the slabs on those levels does extend further over the heritage building but does not consider that to have any impact on the aspects of significance identified in the Queensland Heritage Register citation. He does not consider that the extension of the slabs on those levels reduces the prominence of the heritage building when compared to the approved impact of the multi-unit building on the heritage building. He considers that the heritage building will remain a prominent element in the western part of the site when viewed from Scott Street. He considers it will be no less prominent if viewed from the west. He states that nothing in the increased projection obscures or diminishes the visible architectural expression of the heritage building. [101] In his second affidavit, when responding to Mr Kennedy Mr Allom said: While much is made by Mr Kennedy of the increasing cantilever over the roof of the listed building, it is my opinion that an appreciation of any impact of the Refused Change must consider the scheme in total, including the integration of the 2 buildings at ground or foyer level. Approval of the way in which the Listed Building is integrated with the Apartment Tower at ground level (as discussed in paragraph 18 of my first affidavit) enhances the relationship between the two buildings. Although the Refused Change (if approved) will increase the horizontal projection of the Apartment Tower over the Listed Building, that will not detract from the relationship between the two buildings. I do not agree with Mr Kennedy that the Refused Change (if approved) would significantly reduce the understanding and appreciation of the identified aspects of cultural heritage significance of the listed building. [102] Mr Allom also considered that the refused change did not make a significant difference to the setting of the building. [103] With respect to the approved development, (i.e. the October 2015 development approval) and the refused change, Mr Kennedy said, in his affidavit: The impact on the cultural heritage significance of the Scott Street Flats caused by the cantilever as proposed in 2015 development approval was already of concern. The cantilevered tower is an imposing structure as shown in the eastern elevation view of the 2015 development approval, reproduced as figure 2 of the report. Its presence impedes the view from