Cowan v Brisbane City Council & Ors [2012] QPEC 81 (2013) QPELR 228

PLANNING & ENVIRONMENT COURT OF QUEENSLAND CITATION: Cowan v Brisbane City Council & Ors [2012] QPEC 081 PARTIES: BEN COWAN AS TRUSTEE FOR THE PRATES- COWAN FAMILY TRUST (Appellant) V BRISBANE CITY COUNCIL (Respondent) And JOHN GEARING AND OTHERS (Co-respondents) FILE NO: 4514 of 2011 PROCEEDING: Appeal ORIGINATING COURT: Planning and Environment Court, Brisbane DELIVERED ON: 14 December 2012 DELIVERED AT: Brisbane HEARING DATE: 13, 14 and 17 August 2012 JUDGE: Rackemann DCJ ORDER: Appeal dismissed CATCHWORDS: PLANNING AND ENVIRONMENT – Demolition of building on Brisbane Heritage Register - Appeal against refusal – Compliance with Heritage Place Code – Can Cultural Heritage of a listed property be questioned – Is the building of importance in demonstrating the evolution or pattern of the City‟s or local area‟s history – Does the building demonstrate rare, uncommon or endangered aspects of the City‟s or local area‟s cultural heritage – Is the building important because of its aesthetic significance – Does the building have a special association with the life or work of a particular person, group or organisation of importance in the City‟s or local area‟s history COUNSEL: Mr S. Fynes-Clinton for the appellant Mr T. Trotter for the respondent Mr R. Quirk for the co-respondents -- 1 of 26 -- 2 SOLICITORS: H. Drakos and Company for the appellant Brisbane City Legal Practice for the respondent HWS Lawyers for the co-respondents Introduction [1] This appeal is against the Council‟s refusal of an application for a development permit to facilitate the demolition of a residential building, known as “Gwandoben”, located at 42 Maxell Street, at the intersection with Dodwell Lane, New Farm. The building was once a single residence but has subsequently been converted to flats and extended. New Farm is an older, inner city suburb of Brisbane, which features a range of housing types and styles from different eras. [2] Gwandoben was first constructed as a quality two-storey 1930s mock Tudor style residence. It was designed by the architect James Collin for a local businessman, Mr Mervyn Dodwell. The residence was extended only a few years after its initial construction. That extension was sympathetic to, and well integrated with, the initial construction. In the mid-1940s, after the Dodwells departed, the building was converted into flats. Much later, in the 1960s, a three-storey extension for flats was attached to the south-eastern side of the building, facing Dodwell Lane (which took its name from the Dodwell family). The building, as a whole, is currently used as residential units. [3] Demolition or removal of a building is not always assessable development pursuant to Brisbane‟s City Plan. This proposed demolition is impact assessable development – generally inappropriate, by virtue of the building being entered on the Register of Heritage Places and Precincts in Schedule 1 of the Heritage Register Planning Scheme Policy („Policy‟). The entry describes the building as “flats”. There are two other listed buildings in the street. [4] The application for permission to demolish the building provoked a substantial number of submissions, almost all of which were from those opposed to the application. On the whole, the submissions appear to be well informed and conscientiously formulated. To varying extents, the submissions stray beyond -- 2 of 26 -- 3 matters of relevance,1 but they also contain observations germane to the issues at hand. A perusal of the submissions reveals, amongst other things: (i) Support for the building as a demonstration not only of construction, in this area, of relatively expensive architect-designed houses in the inter-war period, but also of the evolution in building form and accommodation type that occurred in New Farm in the 20th Century. (ii) An appreciation of the aesthetic attributes of the building, as viewed not only from New Farm, but from the Shafston Reach of the Brisbane River. (iii) An appreciation of the building for the relative rarity or uncommonness of its type and style. (iv) Support for the building as a product of the design of the architect James Collin. (v) Rejection of the assertion, made in support of the application, that the 1960s addition compromised the building‟s value. [5] A significant proportion of the submitters elected to become co-respondents to the appeal. A number made written statements, which were admitted into evidence. I have had regard to those submissions2 and the statements of evidence. The statutory planning provisions [6] The Heritage Place Code applies in assessing proposed building work (including demolition) on premises that includes a heritage place. The purpose of the Code is to:  “Ensure that development does not detract from the cultural heritage significance of a heritage place or heritage precinct.  Ensure re-use of a heritage place is compatible with the premise cultural heritage significance.” 1 Eg. They included concern about the earlier demolition of a non-listed building in the street and also expressed concern about the development which might occur on the subject site if the present building is demolished. 2 Which are part of the „common material‟ to be considered in assessing the application (s 314(3)(a) of the Sustainable Planning Act 2009 (Qld)). -- 3 of 26 -- 4 [7] The performance criteria and acceptable solutions in the Code include the following: [8] It was accepted by counsel for the appellant that the acceptable solutions are not satisfied merely by the production of a report, unless that report is found satisfactorily to establish the relevant matters. Can cultural heritage significance be debated? [9] The performance criteria generally assume that the heritage place or precinct has cultural heritage significance and contemplate development which respects that significance. At first blush, the provisions do not appear to sit well with an application, such as the subject, for complete demolition of the whole of a building listed in the Register. For example, the fabric of the heritage place would be demolished rather than be protected (contrary to P3), and any cultural heritage significance of the place would be lost, rather than protected (contrary to P1). The co-respondents place some reliance upon that. [10] The case for the appellant rests, not on the basis of respectful and sympathetic redevelopment of the heritage place, but rather on the assertion that Gwandoben has no cultural heritage significance at all. It is on this basis that the appellant contends -- 4 of 26 -- 5 that the proposal either is not in conflict with the Code (since it only seeks to protect cultural heritage significance) or that any conflict is “textual” only and the lack of cultural heritage significance, in fact, provides a sufficient ground to warrant approval notwithstanding any residual conflict. [11] The debate, at least between the appellant and the respondent, therefore ultimately centred on whether Gwandoben had been demonstrated to lack cultural heritage significance on any basis. The appellant bears the onus in the appeal. [12] The co-respondents, for their part, contended that it was not appropriate for the court to permit the appellant to use this proceeding as a de-facto merits review of Council‟s much earlier decision to enter the building on the Register. It was argued that the Register should be accepted3 and that in the absence of any subsequent event which may have reduced, extinguished or lessened the cultural heritage significance ascribed to the building in the relevant citation, the application for demolition should be refused. [13] It was pointed out, on behalf of the appellant, that Brisbane‟s City Plan acknowledges that the Register is fallible. In that regard, the Heritage Place Code provides, in part, as follows (emphasis added): “Citations need not be prepared prior to inclusion of sites in the Heritage Register. However, Council will prepare a heritage report when an application is lodged over a site listed in the Heritage Register, to assist in assessment of the proposal against the Heritage Place Code. This report may demonstrate that the site is not worthy of retention on the Heritage Register. Council will then initiate the process of amending the Planning Scheme Policy to remove the site from the Register. The preparation of such a report does not override the need for the Heritage Place Code to be addressed as part of a development proposal.” [14] The provision does not expressly contemplate approval of an application to entirely demolish a place on the Register. Rather, it: 3 In the absence of any Wednesbury unreasonableness or other judicial review type ground concerning the listing -- 5 of 26 -- 6 (1) Contemplates that, if Council‟s heritage report demonstrates that the site is not worthy of retention, the Council will initiate an amendment of the Register; and (2) Provides that the preparation of a report does not override the need for the Heritage Place Code to be addressed. The provision does however, bear out the appellant‟s point about the fallibility of the Register. [15] There is nothing to which my attention was drawn which would require the entry of the place on the Register to be regarded as precluding subsequent argument that the place does not have relevant significance. Further, it must be remembered that, as the abovementioned provision alludes to, places may be entered on the Register without any citation informing the owner, or anyone else, of the content of the supposed significance. Even where citations are prepared, there is nothing, to which my attention was directed, which would prevent an applicant from disputing that the place has the significance attributed to it in the citation. [16] In short, whilst the entry of the place in Schedule 1 of the Policy triggers the requirement for an application for (in this case) demolition, it does not provide conclusive evidence that the place does indeed have cultural heritage significance, or that the content of any significance is in accordance with the citation (if any) prepared by the Council in support of the listing. [17] 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. -- 6 of 26 -- 7 [18] Even if that were incorrect, consideration would need to be given to whether a demonstrated lack of cultural heritage significance, in fact, would provide a sufficient ground to approve the application notwithstanding any conflict with the planning scheme. Reference was made to statutory guideline 05/09, which concerns sufficient grounds for decisions which conflict with a relevant instrument. It sets out a non-exhaustive list of matters which may be considered in determining whether sufficient grounds exist. That list includes where: “The relevant instrument is incorrect in terms of its substance or underlying assumptions.” [19] A difficulty which might arise in establishing that the listing of a building in the Register has been overtaken by events or proceeded, at the time, on an incorrect assumption lies in the extent to which the relevant criteria require subjective judgment. If, for example, a building was listed on the basis that it had a special association with the work of an architect of importance, but was later shown to be the work of someone else, then the listing may be seen to have proceeded on an incorrect assumption. In this case however, the debate was more about the importance or significance of the matters which are said to give the building cultural heritage significance. [20] The Policy provides that a place or precinct “may” be entered in the Register where it meets one or more specified criteria. Not every place or precinct which meets one or more of the criteria must be entered. The satisfaction of one or more of the criteria enlivens the discretion to enter the place on the Register. A sensible exercise of the discretion is important in achieving a balanced approach to the implementation of heritage controls across the City, but I was not invited (nor would I have been prepared in the context of the appeal) to re-visit the question of whether, at the time the place was entered on the Register, the Council should or should not have exercised its discretion differently. Instead, I was invited to find that none of the criteria are met in order to conclude the place has no cultural heritage significance within the meaning of the applicable code. [21] 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 -- 7 of 26 -- 8 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. [22] It was also pointed out that, in opposing a development application for the construction of a seven storey unit building on nearby land, the present owner had sought to rely on the status and importance of 42 Maxwell as a Heritage Place. That debating point is, however, not probative of the issues in dispute and I have placed no weight upon it. The criteria for significance [23] The Heritage Place Code provides that, to determine whether a place has cultural heritage values, one may use the Policy. The criteria for a place (or precinct) to be eligible for entry on the Register by reason of its cultural heritage significance are set out in section 2.1 of the Policy. The relevant criteria for the listing of Gwandoben, and the brief explanation of the basis upon which Gwandoben was thought to meet the criteria, according to the Council‟s citation, are as follows:  It is important in demonstrating the evolution or pattern of the City’s or local area’s history – as an example of the evolutionary nature of accommodation at New Farm, being a residence constructed during the interwar period, which was later converted to flats;  It demonstrates rare, uncommon or endangered aspects of the City’s or local area’s cultural heritage – as a visual remnant of the residential pattern and style of development of Maxwell Street and New Farm, in close proximity to the Brisbane River;  It is important because of its aesthetic significance – as an impressive mock Tudor style structure;  It has special association with the life or work of a particular person, group or organisation of importance in the City’s or local area’s history – as a residence originally designed by James Collin. [24] Mr Trotter pointed out that, in the context of an appeal, the Council is not limited to the particulars relied upon in the earlier citation. In this case the Council also relies -- 8 of 26 -- 9 upon the building‟s “special association” with the Dodwells as an aspect of its cultural heritage significance. [25] In its reasons for refusal, the Council addressed the cultural heritage significance of the place as follows: “42 Maxwell Street remains important in demonstrating the evolutionary change of accommodation types found in New Farm, spanning the decades before and after World War II. Its origin as a substantial private 1930s residence, later converted into a large number of individual flats, makes it uncommon in New Farm. While some of the original single residential design intent has been lost, this is not in conflict with the heritage value of the building. As such, the New Farm „Flats‟ remain a place of local heritage significance and continue to meet more than one of the criteria contained within the Planning Scheme Policy for entry in the City Plan Heritage Register.” The expert evidence [26] The debate, in this case, focused on matters of evaluation and judgment, such as the relative “importance” of the building in demonstrating the evolution or pattern of the City or local area; the extent to which the building, or part of it, represents something “rare” or “uncommon” in the relevant sense; its “aesthetic significance” and whether that makes it “important”; whether either the architect or the original owner (or their family) were “of importance” and, if so, whether the building has a “special association” with their life or work. In order to resolve those issues, I had the benefit of evidence from expert historians and heritage architects.4 Mr Veal, the heritage architect called by the appellant, was inclined to regard the debate on these issues as involving available differences of professional opinion,5 although the appellant‟s submissions took a different approach. [27] Dr Bennett (who was called by the respondent) produced a careful and detailed examination of the relevant history of Brisbane and, in particular, of New Farm. She displayed a particular appreciation for the history of New Farm and its built form, a topic which she has previously researched. Ms Donovan (who was called by the appellant), to her credit, freely acknowledged that she had simply not been 4 The parties also engaged town planners, but their evidence did not assist, given the nature of the issues in dispute. 5 T2-32 l 25. -- 9 of 26 -- 10 given enough time and resources to comprehensively prepare her evidence. She ultimately accepted the matters of history identified in Dr Bennett‟s report, but thought that Dr Bennett had attached too much significance to certain matters. Dr Bennett‟s evidence reflected a greater appreciation of the significance of the building. [28] Mr Veal‟s evidence was, at least to some extent, problematic. His report for trial, which was, in large measure, a “cut and paste” of the report which he earlier wrote in support of the development application, is replete with references to pre or post 1946 buildings and to an assessment of streetscape issues. Such considerations would have been highly relevant to an assessment of an application for demolition within a “demolition control precinct”, under City Plan. That designation does not apply to the subject land. I found his explanation for delving so much into those issues unconvincing.6 Similarly, it is difficult to understand why his report commented on whether the urban and landscape character of the street would be complemented should a new residential unit development be constructed on the subject site. [29] Mr Veal‟s trial report referred to the extension, modifications and conversion of the building as having “destroyed the original aesthetic importance of the pre-1946 building”,7 “destroyed the original importance and character of the original house”,8 and “destroyed the cultural significance of the original house”.9 Similarly, in his evidence in chief, he said that the new work has “distorted the significance” of the place.10 When asked, in cross-examination, to describe the significance which had been distorted by the new work, he did not do so, but instead claimed that the building never had any significance in the first place. [30] Further, Mr Veal‟s treatment of Mr Collin and Mr Dodwell was, in some respects, less than careful and complete. For example, in his report which accompanied the application, he attempted to make something of the fact that Mr Collin is not to be 6 T2–35-38; T2–46. 7 Page 43b. 8 Page 44. 9 Page. 50. 10 T2–21. -- 10 of 26 -- 11 found in a book about Queensland architects of the 19th century.11 That is unsurprising since Mr Collin was born in the 20th century. That part of the report was not repeated in his trial report, which describes Mr Collin as a “minor architect”, an expression which also tends to undersell his contribution (which is discussed later). Mr Veal described Mr Alexander Dodwell somewhat underwhelmingly as “a manager of a car dealership”,12 when, in fact, he was more notable (the Dodwell family is discussed in greater detail later). [31] I found Mr Scott‟s evidence to be generally more balanced and considered. Indeed, I generally found the evidence of Dr Bennett and Mr Scott more impressive than that of Mr Veal and Ms Donavon, although, for the reasons which follow, I have not adopted all of their conclusions. [32] Perhaps unsurprisingly, given the relative performance of the experts called by the appellant, Counsel for the appellant submitted that the issues should not be resolved by preferring the evidence of some experts to others. He submitted that the conclusion that the building has no cultural heritage significance flows from a process of reasoning on the basis of a proper interpretation of the relevant criteria applied to uncontested facts. Further, he submitted that the experts called by the respondent had fallen into error in their approach to the relevant criteria. His submissions are considered below, in the context of the relevant criteria. Importance [33] Two of the criteria within the Policy refer to whether the place is “important” in a specified way. Another refers to a “special association” with the life or work of someone of “importance”. It was submitted, for the appellant, that in assessing such matters, the court should bear in mind the serious restrictions which listing a place in the Heritage Register places on the land owner. I respectfully agree with the following approach to similar criteria in the Queensland Heritage Act 1992 (Qld) which was adopted by Robertson DCJ in JL Smallcombe as trustee for the Cotton Tree Trust v Queensland Heritage Council [2009] QPEC 065 at [13]: 11 Exhibit 1, p 319. 12 Exhibit 3, p 53. -- 11 of 26 -- 12 “The Court should not create a gloss on the words in the relevant criteria, however the use of the words „important‟ in criteria (a) and (b) and „rare, uncommon or endangered‟ in (b) clearly takes the application of the criteria beyond the common place.” [34] The criteria are similar to those which appear in the Queensland Heritage Act. A significant difference however, lies in the description of the level at which importance must be demonstrated. The State-wide legislation is focussed upon importance to Queensland, while the focus of City Plan is at a different level. That is reflected expressly in 3 of the 4 criteria discussed below, which each refer to the “City‟s or local area‟s history”. What is of „importance‟ at one level (eg local level) will not necessarily be of importance at another (eg State level). The importance „bar‟ is set differently for the City Plan. The history of Gwandoben [35] Dr Bennett‟s report summarises the history of Gwandoben itself as follows:  Gwandoben, at 42 Maxwell Street, was erected in 1933-1934 as a private home for Mervyn and Betty Dodwell. They were young, newly-wed, middle- class and well known in social and sporting circles. Mervyn was particularly well known for his competition success in early American Studebaker motor vehicles.  The Maxwell Street site was part of the Linden Estate, a 1929 subdivision of Mervyn Dodwell‟s parents‟ property at 119 Moray Street.  The two-storey residence was designed in the Tudor style by a rising young Brisbane architect, James Musgrave Collin. He incorporated modern practicalities into the design, while accommodating his client‟s desire for a popular style of home which would make a dramatic statement in the landscape, and take advantage of a site with extensive river and city views. The house was considered extremely fashionable at the time, and was featured in the Sunday Mail of 4 November 1934. -- 12 of 26 -- 13  The construction of Gwandoben illustrated the sustained popularity of New Farm for middle class housing during the inter-war period.  In the mid 1940s, after the Dodwell family had left the building, Gwandoben was converted to tenements. That such a fine family home could be pressed into use as a tenement house, little more than a decade after its construction, was illustrative of the intense housing shortage existing in Brisbane during World War II and in the immediate post war years.  In the early 1950s Gwandoben appears to have functioned principally as a residence, with separate flats. The multiple occupancy use made comparatively little impact on the original fabric.  Since the mid 1950s the whole of the building has been used variously as tenements, flats, and more recently, strata title dwelling units. The addition by the early 1960s of a substantial wing comprising five or six self contained flats at the south-eastern end of the 1930s building consolidated the use of the place as flats. Is Gwandoben important in demonstrating the evolution or pattern of the City’s or local area’s history? [36] Dr Bennett regards Gwandoben as important in demonstrating the evolution or pattern of New Farm‟s history. The key points which she relies upon are summarised in her report as follows:- “● New Farm south-west of Brunswick Street was transformed through the first half of the 20th Century from an elite, middle class suburban precinct on the periphery of the town centre, into a densely populated inner suburb and Brisbane‟s premier flat district.  From the early 1900s New Farm, so close to the City centre, attracted the subdivision of the older estates for middle class residential development and the conversion of older homes into boarding and guest houses, nursing and convalescent homes, private hospitals and hostels. -- 13 of 26 -- 14  In the 1920s New Farm also attracted some of the earliest purpose-built blocks of flats in Brisbane, and the conversion of older homes into flats and tenements.  In the 1920s and 1930s New Farm continued to attract the construction of modern, well-appointed, fashionably-styled, middle-class residences.  A flat building boom during the 1930s further transformed New Farm. By 1942 new blocks of flats visually dominated many residential streets, and the old social order had been replaced by a more eclectic social mix.  Maxwell Street which was created between 1911 and 1929 as part of the subdivision of older residential estates fronting the Brisbane River, epitomised the process of infill development to which New Farm was subjected at this period of its history. From the 1910s the street, with its views over the Brisbane River and across Kangaroo Point to the City Centre, attracted middle class housing, including some particularly fine 1930s houses: Gwandoben (1933-1934); 41 Maxwell Street (1935); and Neville Court (c 1937). Each of these has been entered in the Brisbane Heritage Register as a place of local heritage significance.  From the 1930s, as a housing shortage in Brisbane intensified, Maxwell also attracted purpose-built pairs of residential flats and the conversion of several of the detached residences into flats and tenements.  In the 1940s and 1950s, during and in the aftermath of, World War II, New Farm experienced a second wave of intensive flat development, particularly in the conversion of detached dwellings into flats and tenements.  Gwandoben, erected in the 1930s as a single family detached house for a prominent young middle class couple (Mervyn and Betty Dodwell), was used from the mid 1940s as a tenement building, private residence, or residential flats. Its function as a multiple occupancy dwelling was consolidated in the early 1960s with the construction of a substantial block of purpose-designed flats as an addition to the south-east side of the original residence.  Gwandoben exemplifies how, in the mid 20th century, there was an intensification in the evolution of New Farm from a suburban residential rhetoric to a densely populated inner suburb noted for its infill inter-war housing and its numerous flats and tenements, both house conversions and purpose-built.” [37] In her evidence13, Dr Bennett made it clear that the importance of the place, in this respect, rests not simply on the fact that one can discern the 1930s fabric of 13 T2-7. -- 14 of 26 -- 15 Gwandoben, as a former middle-class residence of good quality constructed as part of infill inter-war housing, but also in its conversion and extension. [38] It was submitted, on behalf of the appellant, that, accepting the history of New Farm and of Gwandoben as detailed in Dr Bennett‟s report, the building does not demonstrate any evolution or pattern. It is neither an intact 1930s large residence nor a post-war purpose-built flat. It was submitted that Gwandoben is “an unexplained anomaly which happens to exhibit some residual aspects of one historic pattern and an intact but unremarkable instance of another”. It is, it was submitted, neither fish nor fowl. [39] Insofar as the first of these observations is concerned, it is true that Gwandoben is not an „intact‟ inter-war house, given the 1960s extension in particular, but, as is discussed later, the 1930s core of the building is readily recognisable, such that the building continues to demonstrate that part of the evolution or pattern of the local area‟s history which was characterised by infill inter-war housing of middle class residences of good quality. The alteration and extension of the building does not detract from its significance and, for the reasons given by Dr Bennett, demonstrates relevant evolution. [40] The second of those observations concerns the „intact‟ 1960s extension for flats. Gwandoben, as a whole, is not a set of purpose-built flats, however the history of New Farm in the 20th Century includes the adaptive conversion and extension of existing houses to facilitate multiple occupancies. That history includes pre-WWII conversion of older housing as well as post-war conversion of other former single detached houses. It should be noted that the conversion of Gwandoben to multiple tenancy commenced well before the later attachment of the south-east wing. [41] Counsel for the appellant acknowledged that the patterns of residential development in New Farm and their evolution include the construction of expensive residences in mock Tudor and other popular styles of the time in the inter-war period, as well as pre and post-war conversion of family homes to multiple dwellings. He contended however, that that the family homes which where converted post-WWII were the small to medium homes, rather than the expensive inter-war homes like -- 15 of 26 -- 16 Gwandoben. He pointed out that Dr Bennett had not pointed to another example “where a 1930s upper-class large residence has been converted by attachment to it of a flat building or a new building component from a later architectural era with or without the partial demolition of the earlier house”.14 When asked about this in cross-examination, Dr Bennett responded that she could not say that others did not exist. She had not tried to identify them. [42] Mr Veal said that he had done a drive-by in New Farm as far as Teneriffe and had not seen anything else quite like it.15 When asked about other examples of “a situation where a high-quality 1930s residence similar in style and appointments and scale to Gwandoben has been attached to a 1960s-style flat block building”, Mr Scott responded that this particular form of construction is not typical,16 but went on to say that the “particular strategy” adopted in this building is of interest because the 1930s part of the building remains easily defined.17 [43] The evidence did not satisfy me that sufficiently thorough research has been conducted to determine that no other inter-war grand houses had ever been converted in some way.18 In any event, that the experts did not identify other examples where conversion had occurred in relation to a similar house in a similar way to Gwandoben does not, in my view, undermine Dr Bennett‟s conclusion. The relevant evolution should not, in my view, be so narrowly defined that one must identify an evolution by conversion of a particular type of house in a particular kind of way. The conversion of Gwandoben is demonstrative of the broader evolution, including by conversion of houses into multiple dwellings, which occurred in New Farm. [44] Gwandoben is, as Mr Scott attested, “readable”. That point was also made in the submissions lodged in response to the application. The components of the building have importance in telling a story of relevance to the evolution or pattern of New Farm‟s history. One can, from viewing the place, readily appreciate that Gwandoben brings together, in the one building, aspects of the evolution or pattern 14 T2–4. 15 T2–18 ll 40-50. 16 T2–91. 17 T2–91; T2–92. -- 16 of 26 -- 17 of the local area‟s history referred to by Dr Bennett. As Dr Bennett and Mr Scott pointed out, while there are many houses in New Farm which were converted into flats,19 the way in which that has been done in the case of Gwandoben is particularly evocative.20 Gwandoben is demonstrative of, rather than just a part of, the local history, and is of importance in the relevant sense. [45] The appellant has not persuaded me that Gwandoben fails this criterion. Does Gwandoben demonstrate rare, uncommon or endangered aspects of the City’s or local area’s cultural heritage? [46] Dr Bennett‟s evidence was that the 1930s part of the building demonstrates an uncommon aspect of New Farm‟s cultural heritage for two reasons. The first is that: “Despite the conversion to flats in the mid 20th Century, Gwandoben retains the ability to demonstrate many of the qualities of a substantial, middle class residence designed in a popular style of the period (1930s Tudor) to impress and to take advantage of a riverside site, in a suburb which has been substantially redeveloped in the last two decades, such that riverside houses of this period and nature in New Farm are becoming increasingly uncommon.” [47] It was submitted, on behalf of the appellant that, accepting that the scale, form and setting of grand 1930s residences are an aspect of cultural heritage, those matters are not demonstrated by drawing attention to something which once formed part of that heritage, but now is very different by reason of alteration. Mr Veal contended that the extensions and alterations have “destroyed the architect‟s original design and intent”. I prefer the evidence of Dr Bennett and Mr Scott however,21 to the effect that the 1930s part of the building is quite “readable” notwithstanding the later alterations, such that Gwandoben remains demonstrative of the things referred to by Dr Bennett. 18 Such houses might, for example, have been later demolished or later restored to single dwellings. 19 Not all of which would necessarily qualify under this criterion. 20 T2–8; T2–92. 21 Which is also consistent with observations in some of the submissions lodged in response to the application. -- 17 of 26 -- 18 [48] It was also pointed out, on behalf of the appellant, that housing of this general type was constructed in a number of affluent suburbs of Brisbane during the relevant period (including Ascot, Clayfield, Hamilton, Indooroopilly and the high part of Windsor). It was submitted that it could be supposed that a reasonable number of intact examples remain across Brisbane, such that rarity or uncommonness could not be demonstrated. [49] I accept that it has not been demonstrated that this type of house is uncommon on a city-wide basis, but the criterion is satisfied if the premises demonstrates uncommon aspects of the local area‟s cultural heritage. That is what Dr Bennett‟s evidence focused upon and her analysis is correct. [50] The appellant has not persuaded me that Gwandoben fails to meet the criterion. [51] That conclusion does not depend on the second basis upon which Dr Bennett and Mr Scott saw this criterion being satisfied. In that regard particular attention was placed on Maxwell Street itself and the role of Gwandoben, and the other two listed buildings in that street, as a „surviving remnant‟ of the evolution in the street. It must be borne in mind however, that the building is listed as a discrete heritage place, rather than as part of a heritage precinct. Further, the focus of the criterion is on aspects of the “local area‟s” cultural heritage. Maxwell Street is part of the local area, but does not constitute it. I have therefore considered Gwandoben in the context of aspects of the local area‟s cultural heritage. Is Gwandoben important because of its aesthetic significance? [52] “Aesthetic significance” involves a concept of something which makes a positive visual contribution. Matters of situation and context are relevant in assessing whether a building is important because of its aesthetic significance. The question is not whether all attractive 1930s mock Tudor-style houses (with or without subsequent extension) wherever situated are important in this regard, nor is the question as to whether this is the most intact or best surviving mock Tudor house anywhere in Brisbane. Rather, the question is whether this building is important because of its aesthetic significance. -- 18 of 26 -- 19 [53] Aesthetic value is described in the Burra Charter (which is referenced in the acceptable solutions to the Heritage Place Code in the City Plan) as follows: “Aesthetic value includes aspects of sensory perception for which criteria can and should be stated. Such criteria may include consideration of the form, scale, colour, texture and material of the fabric; the smells and sounds associated with the place and its use.” The reference to „smells‟ and „sounds‟ in the consideration of aesthetic value is surprising, but I do not have to pause on that because, in this case, debate on the aesthetic value of Gwandoben centred upon its visual presentation. That is consistent with the ordinary meaning of aesthetic which, when used to describe a thing, relates to its pleasing appearance. [54] A relevant factor in assessing the importance of a place because of its aesthetic significance (if any) is the extent to which the appearance of the place can be appreciated. The riverside elevation of the 1930s part of the building, which was relied upon by Mr Scott for Gwandoben‟s aesthetic significance, cannot be appreciated from Dodwell Lane, because of the orientation of Dodwell Lane and because of the 1960s south-eastern extension which fronts that lane. The visibility of that elevation from Maxwell Street is also restricted. The better vantage point is from the west, including the river and Kangaroo Point. As Mr Haydon‟s statement of evidence attests, this view is available to many people. A photograph of this elevation of the house is attached to these reasons for judgement. The significance of this elevation was underestimated by Mr Veal, who focused on what he referred to as the dominance of the extension in the view from Maxwell Street. [55] It was pointed out, on behalf of the appellant, that the extent to which the elevation to the river can be appreciated might be adversely affected by future high rise development between 42 Maxwell Street and the riverfront. Mr Veal contended that that view will become irrelevant.22 The criterion however, calls for an assessment of the cultural heritage significance that the place (currently) has. 22 T2–43. -- 19 of 26 -- 20 [56] Mr Veal also dismissed the significance of this elevation on the basis that, in his view, the alterations render Gwandoben a “composite building” and have “destroyed the original aesthetic importance” of the older part of the building. I have already observed that, consistently with the evidence of Mr Scott, I find that the 1930s aspect of the building is readily readable. It presents, as the Council‟s citation states, as an impressive mock Tudor structure. The extensions do not destroy that. I prefer Mr Scott‟s evidence to that of Mr Veal in this regard. [57] I accept Mr Scott‟s description of this elevation as being of “pleasing appearance”. The pleasing nature of its appearance is appreciated in its context, on the riverside slope of New Farm, within which it is, as has already been observed, historical development of a type which is now uncommon and stands in visual contrast to what otherwise prevails. [58] Assessing the importance of a place due to its aesthetic significance is necessarily somewhat subjective. Like Mr Scott, I have struggled with whether the building is „important‟ because of its aesthetic significance. Ultimately, Mr Scott considered that “this building is impressive enough to get over the line”.23 It is, as his evidence suggests, a marginal case, but in its context, I consider that Gwandoben does have some importance in this respect. Ultimately, the appellant has fallen short of persuading me that the building fails this criterion. Does Gwandoben have a special association with the life or work of a particular person … of importance in the City’s or local area’s history [59] This criterion requires the identification of (relevantly) a person of importance in either the City‟s history or the local area‟s history and, in addition, a “special association” between the heritage place and either the life or work of that person. [60] In this case, the person of “importance” referred to in the Council‟s citation is the architect James Collin. The first issue is whether he is a person of importance in the city‟s or local area‟s history. 23 T2–103. -- 20 of 26 -- 21 [61] Mr Veal regards James Collin as a “minor architect” who was not of the same level of importance as Robin Dodds or F D G Stanley, who completed major works including churches and large buildings. The question is not however, whether Mr Collin was of importance to Queensland‟s history, but whether he is of importance in terms of the history of the City or the local area. [62] Dr Bennett‟s research demonstrates the following, in relation to Mr Collin: “● James Collin began his career in the 1930s as a sole practitioner. He was at that stage, a young man in his 20‟s. ● In 1935 James Collin took out double “firsts” in a competition, sponsored by the Royal Australian Institute of Architects, Queensland Division, to design model homes. He was judged by his peers for the excellence of his work. ● James Collin promoted modernism in architecture, and the blending of modernist elements and modern practicalities with more traditional house designs. In the 1930s his work, including Gwandoben, was featured often in local newspapers. ● In 1938 Mr Collin entered into partnership with A H Job and, in 1946, was a co-founder of one of Brisbane‟s most enduring architectural practices, known in 2012 as Fulton Trotter Architects. ● In 1952-1954, James Collin served as president of the Royal Australian Institute of Architects, Queensland Chapter. During this period he co-hosted the Australian Architectural convention held in Brisbane in November 1952. ● James Collin is believed to have suffered a number of health problems. He retired from practice during the 1960s and died in 1974.” [63] I do not accept that Mr Collin is adequately described as simply a “minor architect”. He was a highly competent architect of some standing and of some note. I do not consider however, that this necessarily leads to the conclusion that he is a person of importance in the history of Brisbane or the local area. [64] To take a different example in another professional discipline, I would think that every silk who has been president of the Bar Association of Queensland could be said to have been regarded as a highly competent professional of some standing and of some note but, with due respect to them all, I do not think that each and every one of them would, on that account alone, be regarded as a person of importance in history, such as to render any place having a special association with their life or work (their chambers perhaps) liable to entry on the Register. -- 21 of 26 -- 22 [65] Mr Collin, for all his contribution as a notable architect of his time, does not appear to be of any particular importance in the history of Brisbane or the local area. Being a domestic architect he was not responsible for any monumental building. Further, as a domestic architect, he was not, for example, responsible for any particular advancement in domestic architecture. He held the position of president of the Queensland chapter of the RAIA, but the evidence did not disclose anything of importance, in the relevant sense, that he achieved in that position. That he began his professional life in New Farm and later co-founded an enduring firm of architects is not, in my view, sufficient to satisfy the criterion. [66] Had I concluded that Mr Collin was an important person, in the relevant sense, then the next issue would have been whether Heritage Place has a “special association” with his life or work. The “special association” relates to his work as an architect. [67] It is not every work of an important architect which will necessary have the requisite “special association”. For example, in Advance Bank Australia Limited v The Queensland Heritage Council [1994] QPLR 229, the building known as “Ascot Chambers” was held not to have any “special association” with the architects who designed it and who were important, at a State level, or their other work, being City Hall and Tattersalls Club. [68] James Collin‟s contribution to architecture in Brisbane and in New Farm related primarily to his domestic work. Mr Scott thought that the mere fact that Gwandoben was a house designed by Mr Collin was sufficient to establish a “special association”. It is unnecessary for me to form a concluded view on that however, because, as Dr Bennett pointed out, Gwandoben was more than just one of his routine pieces of work. It was his first private commission (following the design of his parents‟ home at New Farm). It was a significant commission, to design a quality and notable residence, for a family of means, on a site overlooking the river. As Dr Bennett noted, it was an achievement for such a young architect to be entrusted with such a commission on such a site. In my view, Gwandoben has a “special association” with the work of Mr Collin. -- 22 of 26 -- 23 [69] There was a further basis upon which it was said that Gwandoben has a special association for a particular person or group of importance in a city‟s or local area‟s history namely, its “special association” with the Dodwell family. [70] In this respect, Dr Bennett‟s research reveals the following:  Mervyn Dodwell, who commissioned the design and construction of Gwandoben, was the son of a family well known in Brisbane at the time.  They were “moderns” whose exploits, entertainments and commercial ventures were recorded in the local press over several decades.  Mervyn‟s father Alexander Dodwell, became a champion amateur cyclist and Captain of the Brisbane Bicycle Club in the 1890s. In 1897, he was appointed manager of a new Brisbane agency selling and servicing Massey-Harris Bicycles.  In December 2005 he took over that business as the Canada Cycle and Motor Agency Limited and immediately incorporated automobile styles into the business, becoming one of the pioneers in motor vehicle retailing in Queensland. He imported the first Darracq cars, which arrived on the steamer “Linden” on 28 June 1906 and he introduced the first four cylinder car, the 1907 Humber, to the State, sold the first Ford in Queensland, and imported the first Studebaker car in Australia.  Alexander Dodwell was earlier president of the Motor Vehicle Traders Association of Queensland and later an active member of the Motor Importers Association of Queensland.  Alexander Dodwell‟s business expanded in June 1906 with the establishment of the first motor service garage in Queensland.  By September 1908 Alexander Dodwell registered a new company, the Canada Cycle and Motor Agency (Queensland) Limited to take over previous business. By mid 1911 renovations to business premises at the corner of Creek and Adelaide Street, Brisbane, were completed, the Brisbane staff numbered 154 and a brand line in taxis and rental motor vehicles had been opened and maritime motors were also being sold.  Mr Alexander Dodwell was also a keen sportsman. In the early 1900s he was variously a president or vice-president of the League of Queensland Wheelman (Cyclists), the Brisbane Bicycle Club, and the Queensland Cyclist Union. He was the first patron of the Indian Motorcycle Club, established in Brisbane in 1924, and vice patron of the Queensland Outboard Motor Club, formed in November 1926. He was also an enthusiastic golfer and, by 1934, was a life member of the Royal Queensland Golf Club, the Queensland Lawn Tennis Association and the Brisbane Cricket Ground. -- 23 of 26 -- 24  In the 1910s Mr Dodwell was particularly adept at arousing public excitement and interest in the new world of motor cars and motor cycles.  Mr Alexander Dodwell strove not just to promote motor vehicles, but promote the development of better roads and facilities for motorists. He was an early member of the Queensland Automobile Club (being the Honorary Secretary in 1907-1908), and in the early 1920s was the principal advocate for construction of the Anzac Memorial Avenue to Redcliffe.  Mr Alexander Dodwell‟s commercial interest flourished in the early 1920s but, by 1929, the company was foundering as the Great Depression hit the Australian motor vehicle retail trade.  In February 1905 Mr Alexander Dodwell married and their first child, Mervyn, born on 5 March 1906 at their Langshaw Street house in fashionable New Farm. By the time that their second child arrived in 1908, they had moved to 197 Moray Street, to a house they called “Linden”.  In 1916 the Dodwell‟s land at 119 Moray Street, New Farm was comprised of about 2 acres with a substantial frontage to the Brisbane River. On this site they erected a very fine residence, which was completed in 1918 and which they also called Linden. Perhaps unfortunately, that house has long since been demolished.  Both Mr Alexander Dodwell and his wife were constant travellers with their exploits regularly reported in Brisbane newspapers.  Mervyn Dodwell received his early education at the New Farm Private School in Moray Street before attending Armidale School in New England. In the mid 1920s, after leaving education, Mervyn, and his brother Lesley became Brisbane identities in their own right, throwing their energies into competing in motor vehicle and motor cycle trials and outboard motor boat racing. They held private dances at Linden, entertaining Brisbane‟s rising social elite.  In the 1920s Mervyn gained employment as a clerk and then as salesman, in his father‟s business promoting the firm‟s Studebaker vehicles, which he raced.  Following the collapse of CCMA (Q), Mervyn joined his father in Champion Automobiles as a shareholder and salesman. He was made sales manager and a director of the company in 1938, but after it failed in 1939, moved to Austral Motors where he remained until retiring in the 1950s when he moved to the Gold Coast.  Mervyn‟s wedding in 1933 was a prominent society wedding. -- 24 of 26 -- 25 [71] The history demonstrates that the Dodwells were a notable family and that Mr Alexander Dodwell, in particular, could perhaps be said to be important. That family held a “special association” with 119 Moray Street, New Farm, the impressive residence “Linden” which they built but which has long since gone. Insofar as Alexander Dodwell was concerned, Gwandoben was the house of his son and daughter-in-law, which was developed on part of the previous family holding. I do not accept that Gwandoben has a special association with the life or work of Mr Alexander Dodwell. [72] Mervyn Dodwell achieved a degree of prominence in his own right in social circles and in following in his father‟s footsteps in terms of his involvement with the motor vehicle but was not, in my view, a person of importance in the City‟s or local area‟s history. [73] While Gwandoben is a part of the history of the Dodwell family, it does not have a “special association” with a person of importance of the city‟s or local area‟s history. It might be thought to have a special association with Mervyn Dodwell, but he is not a person of “importance” in the relevant sense. Alexander Dodwell may be a person of importance but Gwandoben does not have that “special association” with his life or work. The Dodwell connection may be a matter of interest, but it does not fulfil this criterion. [74] I am satisfied that Gwandoben does not meet this criterion for cultural heritage significance. Conclusion [75] The appellant has not demonstrated that Gwandoben is devoid of any cultural heritage significance under any of the first three criteria discussed. Its proposed demolition would conflict with the provisions of the Heritage Place Code in a substantive way. The appellant has not discharged the onus which lies upon it. The appeal is dismissed. -- 25 of 26 -- -- 26 of 26 --