A contemporary issue of increasing significance is the extent to which the views of a heritage place are relevant to the place’s cultural heritage significance. This issue is particularly problematic because it lies at the interface between town planning and heritage conservation. The issue may be framed in terms of the following question:

“When is a view or views of a heritage place part of the place’s cultural heritage significance and thus important to the place’s conservation?”

If the answer to this question is that the view is not culturally significant, then the protection of the view becomes a matter for town planning regulation rather than heritage conservation. Unfortunately these issues are starting to become confused because of the way in which the conservation of places of local heritage significance is regulated through planning schemes.

The distinction between the respective ambits of town planning and heritage conservation in relation to views is most readily illustrated by a place which is heritage listed solely because it is important in demonstrating the evolution or pattern of the history of a local area or the state. In those circumstances views of the place or lack thereof have no bearing upon the conservation of the place’s cultural heritage values. The values are solely historical and remain unaffected notwithstanding that external views of the place will inevitably change over time.

There are two listing criteria out of the eight available under the Queensland Heritage Act 1992 (QHA) pursuant to which architectural / aesthetic matters are relevant to a place’s cultural heritage values. These are often referred to as criteria D and E and are taken from section 35(1)(d) and (e) of the QHA.

If a view of a listed place is of cultural significance, it will be identified in the heritage citation which is the part of the listing instrument that states why the place, including particular views of it are culturally significant. It is the statement of significance, or citation, to which resort must be had in determining impacts upon cultural heritage values. Other elements of an entry in the heritage register which identify the location and boundaries, supply a narrative of the history of the place and give a general description of it, are not part of the citation. The citation identifies the cultural heritage values which are important to the State or the local area.[1] This is an important point of principle because legal rights are affected by the statement of significance. If there is a legal challenge to a heritage listing it must focus on the validity of the citation.

Against the above background, the recent decision of the Planning & Environment Court in James Russell Architects Pty Ltd v Brisbane City Council (2016) QPEC43 will be of interest to the owners of heritage places and of land adjoining heritage places. The case involved development on the site of the former Wesleyan church building and the adjoining church hall, constructed in the late 19th century, at Brookes Street, Fortitude Valley. The surrounding visual context was found by the court to comprise modern multi-level buildings of various uses constructed within the last decade. The proposed development involved a five level commercial building on a narrow base containing a lift well which is described in the judgment as something like an airport control tower. The proposed structure emerged from the vestry of the former church and was to be partly cantilevered over the main roof of the church building. The proposed building was 35 metres tall and exceeded the height of the church’s spire by 14 metres.

Although SARA and the DEHP had given conditional concurrence approval to the project, and there were no objections, the council refused it principally on the basis of conflict with the City Plan 2000’s Heritage Place Code. The council’s position was that the development would have a detrimental impact on the cultural heritage values of the listed place. Essentially, the impacts involved changes to the way in which the church building would be viewed, mainly because of the proximity of the modern tower to the church’s roof and spire.

The Court preferred the evidence of the council’s heritage and town planning witnesses and dismissed the applicant’s appeal.

The Court accepted, based upon the expert evidence, that the nature and form of the proposed development impacted upon the aesthetic characteristics of the listed place as described in the heritage citation. However there are two aspects of the court’s judgment which are of some concern and warrant closer examination.

The first is a finding by the court that the cultural heritage values cited for criterion D would be impacted by the development. Criterion in D is as follows:

“The place is important in demonstrating the principle characteristics of a particular class of cultural places.”

In respect of that criterion, the citation said:

“The 1888 building demonstrates the principle characteristics of a substantial, ornate, brick church of the late 1880s, in Brisbane.”

No element of Criterion D involves aesthetic considerations and the citation does not mention any setting or views of the place. The conventional approach to this criterion is to ask whether the principle characteristics of a class of places are able to be read in the fabric of the place. If the place is sufficiently intact, the principle characteristics are able to be read in the fabric of the place, and the place is an important demonstration of the class of places, the place may be entered on the heritage register.

Once a place is entered on the register the question then becomes whether a particular cultural heritage value, in this case importance in demonstrating the principle characteristics of a class of cultural places, will be compatible with, or diminished, because of proposed development. In other words, can the principle characteristics still be sufficiently read in the fabric of the place if the proposed changes were to happen? That however is not the way the Court approached the issue. Rather the Court appears to have conflated Criteria D and E by treating the former as involving aesthetic considerations.

The second aspect warranting consideration is the way in which the court dealt with the issue of the “setting” of the place in order to arrive at a conclusion that approving the development application would conflict with the planning scheme.

City Plan 2000 correctly stated that State and local heritage places are protected in accordance with the principles of the Burra Charter.[2]

The International Council on Monuments and Sites (ICOMOS) is an international organisation sponsored by UNESCO with members and national organisations in over 50 countries. Australia ICOMOS was founded in 1976 and is attached to the international organisation through its national committee. The original Burra Charter was drawn up at Burra in South Australia in 1976 and has since been revised many times. It defines the principles, processes and practices which should be applied by conservation practitioners in Australia.

The Burra Charter was the genesis of statutory heritage conservation under State and Commonwealth law. However, it is not in and of itself a binding legal document, but only has effect through domestic legal instruments which apply its principles.[3] Those domestic legal instruments all do so in varying ways and are legally binding according to their own terms. The Burra Charter also operates as a heritage conservation manual that is used and applied by architects and historians who are undertaking the assessment and conservation of heritage places.

The court appears to have assumed that the Burra Charter is wholly incorporated into City Plan 2000, but that assumption is not correct. City Plan’s strategic framework merely recounts that cultural heritage places have been identified in accordance with Burra Charter principles, and that those principles have been applied, through the provisions of the plan, to places so identified.

City Plan 2000 references the Burra Charter by means of acceptable outcomes which require the provision of reports accompanying development applications to be prepared in accordance with the Burra Charter by qualified heritage consultants. A report so prepared will express opinions regarding the cultural heritage values of the place and how they are impacted by proposed development. The council may disagree with a heritage consultants’ conclusions and may form the view that the report has not been prepared in accordance with the principles of the Burra Charter. The point is arguable, because opinions may differ, but at best it simply results in the acceptable solution not being satisfied which, of course, cannot result in a conflict with the planning scheme.[4]

Once the assessment of a development application is in the hands of the court, the question of whether the conservation report that accompanied the development application satisfied the principles of the Burra Charter is irrelevant, because the court is undertaking a hearing de novo. At that point the only relevant question is whether approval of the development application would conflict with applicable performance outcomes relating to the conservation of the heritage values of the place.

The Burra Charter, as noted by the court, defines “setting” as the immediate and extended environment of a place that is part of or contributes to its cultural significance and distinctive character”. That setting is a component of the place’s cultural heritage value that must be identified at the time the place is heritage listed. It cannot legitimately be left to be tacked on later, according to generalised contemporary opinions as to the importance or otherwise of particular views. A place can only be listed if it is important in the context of a place’s cultural heritage significance. In other words, each aspect of the place’s cultural heritage values has to reach the level of importance, either to the State or locally, and that includes the place’s setting.

The statement of significance identified the setting of the subject place as follows:

“Criterion E: the place is important because of its aesthetic significance.

The buildings exhibit aesthetic characteristics which are valued by the community, in particular; their aesthetic cohesion due to their complimentary scale, form, detail and materials, their contribution to both the Brookes Street townscape and the precinct of Gothic‑influenced church buildings which includes the Holy Trinity Church and Rectory, the modest but fine quality of the detailing of the 1871 building and the fine and elaborate quality of the crafted elements of the 1888 building, in particular the stained glass windows and ornaments to the building’s fabric in timber, stone and plaster.” (my emphasis)

With respect to this statement of significance, the court said

“It is true that ‘setting’ does not explicitly form part of the heritage citations at either State or local level, but it would be incorrect to proceed on the basis that the setting is not relevant to an assessment of the impact or on cultural heritage significance. The Burra Charter states, ‘cultural significance is embodied in the place itself, its fabric, setting, use, associations, meanings, records, related places and related objects’. Subsequently in the charter “setting” is defined as “the immediate and extended environment of a place that is part of or contributes to its cultural significance and distinctive character”.

This statement appears to be factually incorrect. The statement of significance for Criterion E does describe the setting of the place that makes it aesthetically important, particularly the cohesive contribution the buildings make to the Brookes Street townscape and the precinct of Gothic – influenced Church buildings. But even if the quoted passage is correct and the citation does not describe the setting, resort to the Burra Charter in order to “rewrite” the citation is not permissible.

Ultimately the court went on to find that:

“[70] The cultural heritage significance of Gregory Place is aesthetically expressed by the presence of open space above the hall of the church and as a result of the spire remaining substantially set back from any adjoining development. This allows Gregory Place to visually present as a separate entity in its own right. The appellant, incorrectly in my view, submits that the cultural heritage significance of Gregory Place is maintained simply because the proposed development will be located behind the front façade of Gregory Place, thereby enabling the ornate detailing, stained glass windows, buttress and spire to be viewed from Brookes Street.

[71] It is the volume of uninvaded space around Gregory Place, projecting to the sky above the church, will allows an observer, from any point along Brookes Street, to fully appreciate the aesthetic value and therefore the cultural heritage significance of Gregory Place.

[72] It is relevant therefore, in assessing the DA against the heritage place code under City Plan 2000, to have regard to article 8 of the Burra Charter which states ‘conservation requires the retention of an appropriate setting …’. The proposal will plainly infringe upon the setting of Gregory Place to a far greater magnitude than any of the surrounding developments.”

These findings do not relate well to the setting of the place as expressed in the statement of significance. The setting expressed in the Statement of significance relates to both buildings and their collective contribution to the Brookes Street townscape. The findings seem, with respect, to be a distraction from the real issue of whether approval of the development would conflict with the various performance criteria of the Heritage Place Code, of which protecting the setting of a place is but one element. The statement of significance wraps the setting of the place into the aesthetic characteristics that were considered important enough to warrant heritage listing of the place. The evidence that was accepted by the court may have been sufficient to support a finding that those cultural heritage values would be damaged or diminished by the proposal. However the difficulty with the reasons is that they appear to afford weight to the Burra Charter, which is a non-statutory instrument that is only made relevant by an acceptable solution within the Heritage Place Code, and even then it only identifies the Burra Charter as guiding the way in which a heritage conservation report is to be prepared.

City Plan 2014 was only relevant as to weight in the case, and the Council submitted that there was no material difference between the two schemes – the proposal failed under both. Under City Plan 2014, the references to the Burra Charter in the Heritage Overlay Code have been moved from the AO’s to the PO’s but only as “Notes”. They are nevertheless part of the planning scheme.[5] PO1 references the Burra Charter; PO2 references the Guidelines to the Burra Charter – Cultural Significance; PO3 references the Guidelines to the Burra Charter – Conservation Policy; and PO4 references the Guidelines – Procedures for undertaking Studies and Reports. In each instance, the “Note” requires the report, so prepared, to verify that the proposal is in accordance with the Charter or the aspect of the Guidelines. Under City Plan 2014 the issue remains whether the proposal conflicts with the text of the relevant performance outcome, rather than whether the report submitted with the development application meets the relevant standards of the Charter or Guideline.

The court’s decision in this case might be thought to have implications for development on land adjoining heritage places. It must be remembered however, that the physical context and the applicable cultural heritage citation will differ from place to place, and that a generalised contemporary approach to what constitutes a place’s setting should not be accepted as correct in legal principle. The correct legal approach is to consider the setting as described in the heritage citation because it is that component of the places cultural heritage values which is to be conserved.

The reasons for judgment in this case appear to cast aside the content of the cultural heritage citation for a place in favour of contemporary opinions as to what constitutes the setting of the place. The Court’s reasons also appear to suggest that a conclusion, based on opinion, that a report accompanying the development application was not prepared in accordance with the guidelines of the Burra Charter may constitute conflict with the planning scheme. In both respects the Court’s reasons are open to challenge, and the judgment ought to be seen as confined to its particular facts rather than as establishing any wider principles regarding the proper approach to analysing impacts on heritage values involving the setting of a heritage place.