A recent court case has put the spotlight on the ability to question a building’s listed status when developing a heritage site.

Cowan v Brisbane City Council & Ors [2012] QPEC 81 involved an appeal against Brisbane City Council’s refusal to approve the demolition of a 1930s two-storey mock Tudor style residence known as ‘Gwandoben’, located in New Farm in Queensland.

Partner David Nicholls and associate Olivia Williamson outline the arguments put forward in the appeal, and explain what you need to be aware of if you are considering developing a heritage listed site.

Key Points

  • The decision of His Honour Judge Rackemann in this case gives developers an avenue to test the validity of a building’s heritage status when appealing against the refusal of their application to develop a heritage site.
  • Evidence that a listed heritage building does not satisfy the listing criteria, and therefore lacks heritage significance, is sufficient grounds to approve an application to demolish the building, even if the decision to approve is in conflict with the planning scheme.

The facts of the case

The appellant in this case sought to establish that Gwandoben had no cultural heritage significance at all, and on that basis, argued that the appeal against the Council’s refusal of its application should be allowed.

The debate in this case focused on:

  • the relative ‘importance’ of the building;
  • the extent to which the building represents something ‘rare’ or ‘uncommon’;
  • the building’s ‘aesthetic significance’ and whether that makes it ‘important’; and
  • whether the architect or the original owner were ‘of importance’, and if so, whether the building has a ‘special association’ with their life or work.

In resolving these issues, the Court benefitted from evidence given by historians and heritage architects.

The appellant was unable to demonstrate that Gwandoben was devoid of any cultural heritage significance, and so the Court had to dismiss the appeal, as the proposed demolition would substantially conflict with the provisions of the Heritage Place Code. The case is interesting, however, in that the Court accepted that the validity of a heritage listing, which forms part of a planning scheme, may be questioned.

Arguing against a heritage listing

It is usually only possible to argue that a planning scheme is flawed if it can be clearly demonstrated that the relevant provision of the planning scheme has been overtaken by events, and is no longer appropriate. An example would be a sport and recreation zoning of land where the sporting use has ceased and land and building have been disused and derelict for years[1]. Countering this is the well-established principle that the correct approach of the Court to conflict with planning schemes is one of restraint, as the Court is not the planning authority and cannot make planning policy[2].

It appears that His Honour’s foray into the merits of the City Plan’s heritage listing of Gwandoben arose from the way in which the planning scheme deals with such listings. Properties are listed through an amendment to the Heritage Register Planning Scheme Policy, which then has the effect of calling up the Heritage Place Code for deciding development applications for an affected site. It may also have the effect of altering the level of assessment for development.

Properties may be listed without any heritage citation. The planning scheme states that in those circumstances, the Council will obtain a heritage report when a development application is made, and if that report demonstrates that the property has no heritage significance, it will amend the Register.

The Brisbane City Council seems to have accepted, in this case, that the Heritage Register is fallible on the basis of those provisions:

As Mr Trotter, who appeared for the Council, pointed out, the focus of the performance criteria is on the cultural heritage significance the building possesses, rather than on the significance which might have been attributed to it in a citation (if any) in support of the earlier listing. Accordingly the court, in considering the appeal, is called upon to consider the cultural heritage significance of the place and the content of that significance, in order to determine whether the performance criteria are met. Mr Trotter therefore accepted that it was legitimate for the appellant to call into question whether the building now has such significance, whatever might or might not have been the position at the time it was entered on the Register. I accept that”.[3]

His Honour was prepared to proceed with a forensic examination of the heritage significance of the building to see whether the result might give sufficient grounds for departing from the planning scheme.

The passage from the judgment which particularly excited our interest is as follows:

If the evidence established that the building has no cultural heritage significance, then its entry on the Register would not be an insurmountable hurdle to approval of the application for demolition. I accept that, in those circumstances, there would either be no conflict or that any remaining conflict with the Planning Scheme would be “textual” rather than substantive and there would be a sufficient basis to grant an approval”.[4]

In light of the Court of Appeal’s recent judgment in the Westlink series of cases[5], finding that no conflict arose in these circumstances would likely constitute an error of law. The better view, based on the Court of Appeal’s recent judgment, would be that there is a textual conflict with the scheme - the extent of which depends on evidence about the issue the scheme provision seeks to address. In those circumstances, the absence of any meaningful heritage impacts would lead to a finding that there are sufficient grounds to approve the application despite the conflict.

The judgement in Cowan provides a potential means to test the effectiveness of a local heritage listing, bearing in mind that there is no direct right of appeal to the Court against such a listing, and that the only avenue to by-pass the listing, a development application (superseded planning scheme), arises only during a very limited window of opportunity after a planning scheme is amended to heritage list a property.

It should be remembered, however, that the judgment in this case is specific to the Brisbane City Plan and to particular facts and circumstances of the case. In our view, evidence that a listed building lacks heritage significance would need to be compelling in order to overcome the Court’s natural reluctance to give a judgment which would result in the demolition of a listed heritage building.