Advance Bank Australia Ltd v Queensland Heritage Council [1993] QPEC 99 (1994) Q.P.L.R. 229

i.& P"-c c:r."!:)/ oq9_ 1rflii State_ Reporting Bure-au_ TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown~-Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) j - ,. - ... - . .-- REVISED COPIES ISSUED State Reporting Bureau Date I I ( 1 ~ PLANNING AND ENVIRONMENT COURT JUDGE ROW p & E Appeal No 169 of 1993 ADVANCE BANK AUSTRALIA LIMITED and THE QUEENSLAND HERITAGE COUNCIL ~, BRISBANE .. DATE 17 /12/93 JUDGMENT Appellant Respondent 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 -- 1 of 30 -- 171293 T 1/MMcG M/T CMS32/93 (Row DCJ) HIS HONOUR: For the reasons above, the appeal is allowed. I find that Ascot Chambers is not of cultural heritage significance within the meaning of that term as defined in section 4 of the Act. I further find that the appellant has established that Ascot Chambers fails to satisfy the criteria set out in section 23.1(a), (e) and (h) of the Act. I reverse the decision of the respondent. I order that the place, Ascot Chambers, be removed from the Heritage Register and that the place, Ascot Chambers, cease to be so registered. I publish my reasons. 2 JUDGMENT 10 20 • I 30 40~ ( 50 60 -- 2 of 30 -- ) IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 169 of 1993 Before Row DCJ [Advance Bank Aust. Ltd. v. The Qld. Heritage Council] BETWEEN: "'----- ADVANCE BANK AUSTRALIA LIMITED Appellant - and - THE QUEENSLAND HERITAGE COUNCIL Judgment delivered: Catchwords: Counsel: Solicitors: Hearing Date ( s) : Respondent REASONS FOR JUDGMENT 17th December 1993 J.E. Gallagher Q.C. and R. Litster for the Appellant P.J. Lyons Q.C. and R. Traves for the Respondent McCullough Robertson for the Appellant crown Solicitor for Respondent 8th-19th November 1993 -- 3 of 30 -- IN THE PLANNING AND ENVIRONMENT COURT HELD AT BRISBANE QUEENSLAND P & E Appeal No. 169 of 1993 BETWEEN: ADVANCE BANK AUSTRALIA LIMITED Appellant THE QUEENSLAND HERITAGE COUNCIL Respondent 8th-19th November 1993 REASONS FOR JUDGMENT - ROW D.C.J. Delivered the 17th day of December, 1993 Advance Bank Australia Ltd. (the appellant) appeals herein pursuant to. s. 30 ( 5) of the Queensland Heritage Act 1992 as amended ( the Act) against the decision of the respondent as notified by letter dated 18th May 1993 advising that the respondent proposed to proceed with the permanent listing in the Queensland Heritage Register of the place presently unnamed but formerly known as Ascot Chambers, situated at the corner of Edward and Queen Streets, Brisbane (Exhibit 1(E)). The appellant is the owner of the land being Lot 1 on R.P. 4170 on which is situated the building, Ascot Chambers, at the corner of Edward and Queen Streets, Brisbane. The entry in the register, Exhibit 1 (J/K) indicates that the place is entered on the register on the basis as follows:- u Ascot Chambers is a place of cultural heritage significance because it has aesthetic, historic and social significance to the present community and future generations, and satisfies one or more of the criteria specified in s.23(1) of the Act, namely:- -- 4 of 30 -- 2 1. As~ot Chambers is important in demonstrating the evolution and pattern of the development of commercial building in Brisba?e being: ( i) the tallest building in Queensland when first erected; (ii) one of the first speculative high rises commercial office tower in Brisbane· (iii) a strong illustration of the influence of the Chicag; School on Brisbane commercial architecture during the inter war years. 2. Ascot Chambers exhibits an important visual contribution to, and is an integral member of, a group of inter war buildings sited around the intersection of Queen and Edward Streets, which is valued by the community and in particular by those interested in the history of architectural development in Queensland. 3. Ascot Chambers has a special association with the work of architects Hall and Prentice, who designed a group of influential works in Brisbane in the 1920's." In the appeal, the appellant seeks an order that the place is not of cultural heritage significance; that the place does not satisfy the criteria for entry in the register; that the place be removed from the register and such further consequential orders and directions that the Court may seem just. In 1990, Ascot Chambers was included in the list of buildings contained in the Schedule to the Heritage Buildings Protection Act 1990 (the former Act). Under the transitional provisions of the Queensland Heritage Act 1992 as set out in Clause 2(c) of the Schedule, all buildings listed in the Schedule to the former Act are, on the commencement of the Act, to be taken to be places provisionally entered in the Heritage Register. The Queensland Heritage Act was proclaimed to commence on the 21st August, 1992. under the scheme of the Act once a place has been provisionally entered in the Heritage Register, the respondent must then immediately do certain things and take certain steps relative to entering the place in the Heritage Register on a permanent basis - s.24(4) - Under s.26(1) of the Act, if the respondent gives the relevant notice that it proposes -- 5 of 30 -- 3 to enter the place on a permanent basis, the owner of the place may, within a stipulated time, object, stating in detail, the grounds of the objection. If any objection is made, the respondent must, within 14 days, select an assessor and refer the objection to the assessor. After considering the assessor's report, the respondent may decide to proceed and enter the place in the Register on a permanent basis. Under s.2(2) of the Schedule, an owner of any such place may, within 60 days after the commencement of the Queensland Heritage Act, object to the entry of the place on the Heritage Register. By letters dated 9th July 1992 and 21st August 1992, the appellant was advised that the place was provisionally entered in the Heritage Register pursuant to the Act. By letter dated 22nd September 1992, the appellant, as owner of the property herein described as Ascot Chambers, objected to the inclusion of the place in the Heritage Register on the basis that it was not of cultural significance nor did it satisfy the criteria for entry in the register. By letter dated 22nd February 1993, the Director, Cultural Heritage, Queensland Department of Environment and Heritage, notified the appellant of the proposed entry on a permanent basis in the Heritage Register (Exhibit 1(c}. The entry contained details identifying the place and a statement of its cultural heritage significance as it related to the criteria set out in s. 23 of the Act. Exhibit 1 ( C) . The appellant was further advised that an assessor, Dr. Hackings, had been appointed to enquire into the objection. -- 6 of 30 -- 4 By a letter dated 29th March 1993, the appellant wrote to , Dr. Hockings clarifying and expanding upon its objection to the proposal to enter the place on the Heritage Register. (Exhibit 1(0)). On 14th May 1993, the respondent resolved that the report I and recommendations of the assessor, Dr. Hackings, be accepted and that the respondent proceed to enter the place permanently on the Heritage Register. It was further resolved that the entry in the register was to be amended in accordance with the .JJ iorrections suggested in the assessor's report. The report of Dr. Hackings, is contained in Exhibit 1 ( F) . By letter dated 18th -i 1 :,May 1993, the Director, Cultural Heritage (Queensland Department _1.; I of Environment and Heritage) advised the appellant that the respondent resolved to proceed with the permanent listing of the place. By Notice of Appeal filed on 16th June 1993, the appellant instituted an appeal against the said decision of the respondent . .;·' ~ 1, ~1 ,.1 The disputed issues pursuant to the order of the Court dated 2nd July 1993 were identified as the grounds of significance stated in the copy of the entry for the place in the Queensland I'! 'ii ( I • :~ '-·' ·Heritage Register and such further issues as may be notified in writing by the solicitors for the respondent and the solicitors for the appellant within seven days of the date of the order. By letter dated 8th July 1993, the solicitors for the respondent identified the disputed issues to include:- 1. The grounds of significance contained in the Entry in the Heritage Register, and 2. The issues raised in the Notice of Appeal dated 16th June 1993. -- 7 of 30 -- 5 By order of the Court dated 22nd October 1993, Grounds 2, 3, 5, 7 and 8 of the Notice of Appeal were struck out by consent. Further and better particulars of the Entry in the Heritage Register are identified in the Further and Better Particulars filed on behalf of the respondent on 27th October 1993. Further and Better Particulars of Ground 6 in the Notice of Appeal were filed by the appellant. The orders of the Court and the Further and Better Particulars identify clearly the issues raised relevant to the hearing of the appeal. Pursuant to s.3(1) of the Act, the object of the Act is to make provision for the conservation of Queensland' s Cultural Heritage. Section 3(1) of the Act sets out various matters which are relevant to that purpose under sub-s.(a) to (g) thereof. In exercising the powers conferred by the Act, the Minister, the Council and other bodies and persons concerned in its administration must seek to achieve (a} the retention of the cultural heritage significance of the places and objects to which it applies and ( b} the greatest sustainable benefit to the community from those places and objects consistent with the preservation of their cultural heritage significance. Pursuant to s. 4 of the Act, "cultural heritage significance" is defined as follows:- "Cultural heritage significance of a place or an object means its aesthetic, historic, scientific or social significance, or other special value to the present community and future generations." "Place" means "a defined or readily identifiable area of land (which may be compromised in separate titles and in different ownership) and includes - (a) a building or such of its immediate surrounds as may be required for its conservation; (b} -- 8 of 30 -- 6 a natural feature of historical significance and such of its immediate surrounds as may be required for its conservation." A place may be entered in the Heritage Register if it is of cultural heritage significance and satisfies one or more of certain criteria. The criteria for entry in the Heritage Register are prescribed by s.23(1)(a) to (h) of the Act including:- "(a) the place is important in demonstrating the evolution or pattern of Queensland's history; ..... . (e) The place is important in exhibiting particular aesthetic characteristics valued by the community or a particular cultural group; ... (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." Under s.23(3), a place does not satisfy the criteria for entry in the Heritage Register if there is no prospect of the cultural heritage significance of the place being conserved. A right of appeal against a decision of the respondent to enter a place in the Heritage Register on a permanent basis is given by s. 30 ( 5) of the Act. If the owner of a place is dissatisfied with a decision of the Council to enter the place on the Heritage Register on a permanent basis ... the owner may, within 30 days after notice of the decision is given to the owner under sub-s. 4, appeal to the Planning and Environment Court against that decision. Section 30(6) provides:- "If the appeal is against a decision to enter a place in the Heritage Register on a permanent basis, the appeal may only be made on the basis that the place is not of cultural -- 9 of 30 -- 7 heritage significance or does not satisfy the criteria for entry in the register." On an appeal under s.30, the Planning and Environment Court may confirm, vary or reverse the decision under appeal and may make consequential orders and directions (s.30(7)). In addition to provisions of the Act relative to registration, Part 5 relates to the development in registered places. Under s.33(1), a person must not carry out development in relation to a registered place unless the development is approved by the Heritage Council in accordance with the Act. "Development" in relation to a place is defined in fairly broad terms under s.4 of the Act. The Queensland Heritage Regulation 1992 under s.8 excludes certain classes of work from the ambit of the definition "development". An application for the approval of the Heritage Council must also be lodged with the Local Authority for the area in which the registered place is situated, unless the proposed development relates to a place owned by the Local Authority, in which case the application must be lodged with the Heritage Council. (s.34(1)). An application under the Act to carry out development in relation to a registered place may be approved unconditionally; approved subject to conditions or refused. Section 35(1). Under s.35(2) of the Act, if the effect of carrying out a proposed development would be to destroy or substantially reduce the cultural heritage significance of the registered place, the application may only be granted if there is no prudent and feasible alternative to carrying out the development. A right of appeal or review from a decision on development applications is conferred by s.36 of the Act on the Court. -- 10 of 30 -- 8 In determining whether there is a prudent and feasible alternative to development that would have the effect of destroying or substantially reducing the cultural heritage significance of a registered place, the Heritage council, the Local Authority or the Court must have regard to safety, health and economic considerations and any other considerations that may be relevant (s.38). An analysis of the Act demonstrates the broad nature of the legislative intent. The Act severely curtails the rights of a property owner to deal with the property as it sees fit. A detailed mechanism is provided relative to registration of a place. The Act specifically seeks to make provision for the conservation of Queensland's cultural heritage for the benefit of the present community and future generations. On the issues before the Court, the appellant must satisfy the Court, on the balance of probabilities, that the place is not of cultural heritage significance or does not satisfy the criteria relied on by the respondent. Under s.23 of the Act, a place may be entered in the Heritage Registry if it is of cultural heritage significance and satisfies one or more of the criteria therein stated. The relevant criteria relied upon for the listing of the place in the Register referred to s.23(1)(a); s.23(1)(e) and s.23(1)(h). The basis on which a place may be entered in the Register is to be contrasted with the basis on which an appeal may be made as prescribed under s.30(6) whereby it is provided that the appeal may only be made on the basis that the place is not of cultural heritage significance~ does not satisfy the criteria for entry in the Register. -- 11 of 30 -- 9 The scheme of the legislation establishes that the issue of cultural heritage significance is distinct from the requirement of satisfaction in relation to one or more of the criteria prescribed under s.23(1) of the Act. The two requirements are not inclusive but exclusive in nature. For the purposes of registration, the respondent is obliged to consider if the place is of cultural heritage significance and thereafter consideration is to be given as to whether it satisfies one or more of the various criterion. The same philosophy does not apply on the issue of an appeal where the basis on which an appeal may be made is disjunctively expressed so that the appellant is obliged to satisfy the Court that the place is not of cultural heritage significance or, alternatively, if it is of cultural heritage significance, that it does not satisfy the criteria for entry in the Register. Further, the Notice of appeal raised, under s.23(3), the issue as to whether there was no prospect of the cultural heritage significance of the place being conserved and, therefore, in such circumstances, the place did not satisfy the criteria for entry in the Heritage Register. The onus is on the appellant to establish there is no prospect of the cultural heritage significance of the place being conserved so that the place does not satisfy the criteria for entry in the Heritage Register. In considering the issues before the Court, it is important to have regard to the object of the Act which is to provide provision for the conservation of Queensland's cultural heritage which is limited by the definition provisions of s.4 as being related to the present community and future generations. Such -- 12 of 30 -- 10 definition of cultural heritage significance is to be contrasted with other legislative provisions of a similar nature where reference is made to past as well as present community and future generations. In those circumstances, the cultural heritage significance of a place is to be judged through the eyes of the present comrnuni ty and future generations and not past generations in Queensland. "Community" in the sense in which it has been used is to be interpreted in a wide sense and is not lirni ted within that aspect of the definition to some small or limited members of the general community. That provision within the definition is to be contrasted with the provision under s.23(1)(e) of the Act wherein reference is made to the value to a particular cultural group or, as in s.23(1)(g), to an association with a particular community or cultural group for social, cultural or spiritual reasons. The reference in s.23(1)(e) and (g) to a limited aspect of the community strengthens the view that the proper interpretation of the community to be given in s.4 within the definition of cultural heritage significance is one of a very broad context. Similarly, there is no areal limitation that ought to be given to the phrase "to the present community and future generations" so far as it may be contended effects a territorial limitation. The Act has as its object the conservation of Queensland's cultural heritage and because of that context, the present community and future generations, I am satisfied on the proper meaning, refer to the whole of Queensland, and is not limited within the definition of cultural heritage significance to a limited area of Queensland. Such a view supports what may be seen to be the scheme of the -- 13 of 30 -- 11 legislation in which it is the broad community view of the State of Queensland which is to be of concern. In addition to the object of the Act, the functions of the Council under s.9(a) and (c) are indicative that it is the broad community of Queensland whose cultural heritage is of relevance. A proper understanding of the legislative scheme is necessary as it is evident from a number of the reports tendered, and particularly the report of the assessor, that the two elements of cultural heritage significance and satisfaction of one or more of the criteria were not regarded as separate and distinct issues. Such a lack of appreciation of the legislative provisions appear to be reflected in the conduct of the ~ respondent wherein, under the statement of significance, there is no identification of the basis for asserting that the place is of cultural heritage significance, other than by restating the words set out in s. 23 ( 1 ) of the Act. Subsequent to the definition of the issues arising in the appeal and consequent upon orders made by the Court for the deli very of further particulars, the respondent provided particulars of the basis whereby the place had aesthetic, historic and social significance to the present community and future generations as set out in Exhibit 1 (P/Q.). Much evidence was given in relation to the development of Ascot Chambers. It was commissioned by an investment agent in 1923 who selected the firm of Hall and Prentice, architects, to design the proposed building. The building is, to a significant extent, in tact, including the original lift, but many internal alterations have occurred. In particular, the ground floor of -- 14 of 30 -- i 2 Ascot Chambers has been altered considerably with only a small section of shop fronts surviving on the Edward street elevation. A significant issue in relation to the determination as to whether the place (Ascot Chambers) is of cultural heritage significance revolves around the interpretation of the phrase, "cultural heritage significance" as defined in s.4 of the Act. In interpreting the Act, the Court should endeavour to give effect to the object and intent of Parliament in enacting the statute. Every statute ought to be expounded according to its manifest and express intention. The task of the construction of the Act is to ascertain the meaning of what was said and to give effect to the intention of the legislature. In interpreting the Act, the plain English meaning of words should be adopted, particularly where those words are of common parlance. However, reference to dictionaries is permissible in construing any statute. In construing any particular section of the Act, it is undesirable to read a section in isolation from the enactment by which it forms part. In interpreting the phrase, "cultural heritage significance", it was submitted by senior counsel on behalf of the appellant that historic, in the context in which that word appears, referred to an event of particular significance as distinct from the word "historical" which refers to an event that occurred in history and is part of history. The Act in s.4 uses both the word "historic'' and "historical". The reference to the definition of "place" and the use of the word "historical" qualifying significance, I am satisfied indicates a legislative intent that, where historic significance is mentioned in the -- 15 of 30 -- 1 3 definition of cultural heritage, it is not intended to have the same meaning as historical slgnificance as referred to in the definition of "place". As both words are used in the same section, I am satisfied the legislative intent was not that the words were intended to have the same meaning but that each was to be given the ordinary meaning that should be attached to each. Prima facie a change in wording is to be taken to denote a change in meaning. The use of two different words is assumed to express two different things. In R. v. Inhabitants of Great Bolton, (1828) 8 B. and c. 71 Lord Tenterden CJ. at 74 said: "Where the legislature in the same sentence uses different words, we must presume that they were used in order to express different ideas." t: Ricket v. Directors of the Metropolitan Railway Company (1867) L. R. 2H. L. 1 7 5 at 2 0 7 . Maxwell: "Interpretation of Statutes" 12th Edition p.282. Craies: "Statute Law" 7th Edition p.174. Reference to various dictionaries are indicative that "historic", in ordinary parlance, connotes a famous or important event in history, and the word "historical" to be related to facts concerning history. In some dictionaries, the words are shown as being interchangeable. "Historic", in its ordinary meaning, in my opinion, has reference to an event or events which are noteworthy or important in history, whereas "historical" merely relates to events which make up history. In accepting that interpretation, the evidence of Professor Toon and Professor Haskell, each of whom is experienced in matters associated with heritage analysis, establishes that Ascot Chambers was not associated with any event that can be considered significant or famous or important in the history of Queensland. -- 16 of 30 -- 1 4 Nor does the evidence establish that Ascot Chambers is associated with any event that was famous, important or can be considered significant to the present community or to future generations. Undoubtedly, at the time of its construction, Ascot Chambers would have attracted and did attract some public interest in relation to its method of construction, a form of which was already within Australia and in other parts of the world, particularly America. Such interest was not of the scale that could be regarded as an important event in history so as to satisfy the proper interpretation of the term "historic". Professor Haskell saw that the erection of Ascot Chambers as merely part of the continuum of historical events and was not such an event as was famous or important in Queensland history. The evidence of Mr. Allam establishes that Ascot Chambers had some significance as being the first fully framed steel tall building with non-load bearing walls (curtain wall) in Brisbane, but it was not the first tall building or indeed the first steel framed building in Brisbane. It was not the tallest building in Brisbane at the time it was constructed. There is an abundance of evidence including witnesses called on behalf of the respondent which establishes that this form of building construction was present in Melbourne and Sydney before the erection of Ascot Chambers. Such a form of development had in fact already arrived in Australia many years prior to the erection of Ascot Chambers. Undoubtedly, because of its form of construction, it generated interest in its day. The enthusiasm of the past as demonstrated by trade journals, newspapers, books, entries in architectural surveys undoubtedly point to the -- 17 of 30 -- , 5 development as being a matter of interest, but not of historic importance. The fact that Ascot Chambers may have been of interest to members of the public at the time of its construction does not necessarily demonstrate that it is of significance to the present community and future generations. The evidence further establishes that members of the public do not visit Ascot Chambers as being a building of significance. It is not in the Brisbane City Council Heritage Trail. It has no identity plaque indicating its importance nor is it the subject of special architectural study. Externally the building does not clearly identify the mode of construction. Ascot Chambers does represent a stage of development whereby commercial buildings underwent a variation in form from a traditional load bearing form of construction to the steel framed non load bearing walls. Such a change in the form of development permitted a greater height to be achieved. The form of development was representative of a change that was occurring particularly in America which had been followed in other cities of Australia many years before. The evidence of Professor Toon and Professor Haskell, which I prefer, demonstrates that Ascot Chambers has not historic significance nor has it any significance to the present community and future generations. A further aspect of the definition of cultural and heritage significance relates to aesthetic significance. The word "aesthetic" should be given its ordinary meaning. Aesthetic means pertaining to the sense of the beautiful, having a sense of beauty. The relationship of aesthetics to standards of beauty is well accepted in many dictionary meanings of the word. Such -- 18 of 30 -- 1 6 a definition generally formed the basis of the evidence of Professor Toon and Professor Haskell. Their evidence is to be contrasted with that given by Mr. Butler and Professor Brine. Professor Brine and Mr. Butler regarded the term "aesthetic" as relating to the science or philosophy of aesthetics. Professor Brine's discussion of the aesthetic significance of Ascot Chambers treated its aesthetics as having some meaning other than the ordinary meaning of the word. She appeared to regard aesthetics as being related to the style of building and as being a word substantially interchangeable with the word "social". As the word aesthetic is a word of ordinary parlance, it ought to be given its ordinary meaning and not some particular meaning adapted to particular expert ideals. In considering the aesthetics significance of the place, many descriptions such as "ugly duckling"; "sore thumb"; "rude"; "turned its back on Queen Street", "extremely pedestrian and very provincial" are indicative that the aesthetic qualities of Ascot Chambers are not of significance. I prefer the evidence of Professor Haskell and Professor Toon as each, in my opinion, adopted a proper approach to the issue of aesthetics. Such evidence further establishes that Ascot Chambers is not aesthetically significant to the present community and future generations. The further aspect of cultural heritage significance relates to the social significance of the place. Social significance in that context is a word of ordinary parlance and should be given its ordinary meaning. Dictionary definitions are indicative that the word has a relationship to people or human society. rt is in this context that it has its ordinary meaning. Whilst within -- 19 of 30 -- 1 7 the definition, the social significance within the framework of the Act should be related to that of Queensland, a number of the witnesses were prepared to treat the issue of social significance as being related not primarily to Queensland but to the people of Brisbane. The evidence establishes that Ascot Chambers was not the focus of any social movement or of any social group. To possess social significance, Ascot Chambers ought to be identified in the mind of the present community and future generations with some aspect of an organisation of members of the public or of some undertaking which had a public connotation. Professor Haskell was of the view that the matters identified in the further and better particulars did not raise matters of social significance to the present community. I accept his approach. The suggestion by Professor Brine that Ascot Chambers was of social significance because it showed a change of culture from European architecture to American architecture, in my view, cannot be accepted as of social significance to present community and future generations. If that be the criterion of social significance, then such had already been introduced into Australian and in Queensland long before Ascot Chambers was constructed. Ascot Chambers was built for a local identity and was to be used as a commercial building as were many other buildings within Brisbane at the time. The description by Professor Brine of Ascot Chambers as indicating raciness with order, repose, dignity, restfulness and discipline differs substantially to those social aspects of life in Queensland at the relevant time as described by Dr. Johnston. "Present community" doubtless refers to the existing people who constitute -- 20 of 30 -- 18 the residents of Queensland and can be contrasted with the word "group" and "organisation". The words "community" and "future generations" should be given a wide meaning. such an approach may be contrasted with some of the provisions of s.23(1) where reference is made to smaller more specialised groups. Preferring the evidence of Professor Toon and Professor Haskell, I am satisfied that the appellant has established that Ascot Chambers is not a place of cultural heritage significance within that term as defined in s.4 of the Act. Before a place may be listed on the Heritage Register, once it is established that the place is of cultural heritage significance, it is necessary to satisfy one or more of the criteria set out in s. 23 ( 1 ) of the Act. Under sub-s. (a), a place must demonstrate the evolution or pattern of Queensland history and, as such, it must be important in so demonstrating the evolution or pattern. The statement of facts in the Heritage Register as relied on by the respondent has clearly not been substantiated. On the evidence, I am satisfied that Ascot Chambers was not the tallest building in Queensland when first erected. The basis of the assertion rests primarily on commercial advertisements given at the time of its construction. Evidence of a surveying nature has quite properly demonstrated that, at the time of construction, at best Ascot Chambers would be one of the tallest buildings· in Queensland when first erected. In any event, this characteristic was not relied upon by Professor Brine as being significant in relation to demonstrating the evolution or pattern of development of commercial buildings in Brisbane. The survey results of Mr. Allom were substantially -- 21 of 30 -- 19 uncontradicted. The evidence establishes that Ascot Chambers, whilst it was a speculative high rise commercial office building in Brisbane, followed at a later point in time such developments as Preston House and Perry House, each of which had been constructed earlier than Ascot Chambers. The fact that Ascot Chambers was one of the first speculative high rise commercial towers in Brisbane does not, in itself, place it in a category as being important in demonstrating the evolution or pattern of Queensland's history. There is no reference in the statement of the listing which refers to the form of building being its steel frame curtain wall construction as a fact of importance in relation to the evolution or pattern of Queensland's history. The reference to its steel frame curtain wall construction was addressed only in relation to the alleged historical significance of Ascot Chambers. The reference that Ascot Chambers was a strong illustration of the Chicago School was not substantiated by the evidence. Professor Brine was of the view that the claim could be only substantiated in the most general way, and that it was readily apparent that the architecture of Ascot Chambers is derived from American contemporary multi-storey architecture and that it was one of the earlier buildings in Brisbane to do so. In her view, it differed in important ways from that form of American architecture developed from the Chicago School. A similar view was taken by Dr. Lewis, who regarded the connection to the Chicago School as generalised and remote, and in terms of style, it was totally misleading, in his view, to suggest any special relationship. Clearly, Ascot Chambers did not demonstrate a pattern of Queensland's history in that buildings -- 22 of 30 -- 20 such as the National Bank, the Bank of New South Wales, Macarthur Chambers amongst others were all built after Ascot Chambers and did not follow its construction form, nor are any of them representations of the influence of the Chicago School. On all the evidence I am satisfied that the appellant has established that the place is not important in demonstrating the evolution or pattern of Queensland's history. The criteria under s.23(1)(e) relates to the importance of the place in exhibiting particular aesthetic characteristics valued by the community or a particular cultural group. In addition to the importance aspect, the place must exhibit particular aesthetic characteristics. Further, such characteristics must be valued by the community or a particular cultural group. The statement of significance in the listing identifies no particular aesthetic characteristics. What is said to be important is that Ascot Chambers exhibits an important visual contribution to, and is an integral member of a group of inter war buildings sited around the intersection of Queen and Edward streets, which is valued by the community and, in particular, by those interested in the history of architectural development in Queensland. It is to be noted that the statement above gives an extended meaning to the word "place" whereby it incorporates it with a number of other buildings. The place that is listed in the Heritage Register as Ascot Chambers does not include any other buildings or land in the vicinity. That group of buildings having separate Titles and in different ownership are not listed as a precinct. To support this ground, Ascot -- 23 of 30 -- 21 Chambers would be required to be listed as a place in conjunction with those other buildings and areas of land. In considering this aspect, a number of witnesses sought to analyse the streetscape in the vicinity of Ascot Chambers both from the Edward Street and Queen Street perspectives. Reference was also made to the commercial office precinct and the retail precinct in the vicinity in which Ascot Chambers was perceived to be a component. Whilst Ascot Chambers has a retail component in relation to its ground floor, the front entrance to the building is in Edward Street. The substantial part of the building as developed was used for commercial purposes. Undoubtedly, it is of similar height to the commercial buildings in Queen Street from the Post Office towards Edward Street, but has little or no relationship in respect of style and building from to those other buildings. Ascot Chambers has little relationship to the retail buildings which are situated in Queen Street. Ascot Chambers, I am satisfied, does not relate to the pattern of retail development in Queen Street. It intrudes into the Mall and has an unadorned wall which presents an elevation of unrelieved brickwork that does not contribute to the retail character of Queen Street. The concept that Ascot Chambers forms a portal to the retail area of Queen Street and/ or to the commercial development in Edward Street and in Queen Street towards the Post Office, I am satisfied, is not a correct interpretation. Whilst Macarthur Chambers and Ascot Chambers are of a similar height, they do not, in any other way, relate one with the other in respect of style, material and building form. Macarthur Chambers, because of all the dissimilarities cannot be -- 24 of 30 -- 22 • said with Ascot Chambers to constitute a portal, entrance or gateway to Queen Street and/or Edward street. The aesthetic characteristics of Ascot Chambers were examined by a number of the witnesses. Ascot Chambers is separated by Edward Street from the commercial development between the Post Office and Edward Street. It has no relationship in scale or in building form to the retail development that occurs in Queen Street. On the evidence I am satisfied that Ascot Chambers has no particular aesthetic characteristics. The evidence in relation to its connection with the Chicago School demonstrates a lack of any particular aesthetic characteristic which is of importance. I accept that Edward Street creates a division in the streetscape of Queen Street and also a di vision between the commercial and retail areas in Queen Street. Undoubtedly, the Post Office would be seen to be the focal point and the genesis of commercial buildings in the near vicinity in Queen Street. Being on the opposite side of Edward Street, Ascot Chambers is physically separated from that group of buildings. It has no visual connection with Macarthur Chambers. Nor has it any connection or style, building form or architectural presentation. It is of different material and cannot be said to blend in with the form of commercial development on the other side of Edward Street. Because of its height, it cannot be said to fit in with the relevant development of the Stewart Dawson retail building (Wallace Bishop) on the south-western corner of Queen and Edward Streets. That building is of two storeys and of a style and built form completely foreign to Ascot Chambers. An attempt to -- 25 of 30 -- 23 link Ascot Chambers with the red brick warehouse type of development in Edward Street falls down because of the distance and different styles of development. The fact that Ascot Chambers was constructed with an awning is further indicative that it is not complementary to the commercial buildings in Queen street between Edward Street and the Post Office, all of which are devoid of awnings and are visually perceived as commercial buildings. In order to qualify for registration under criteria 23. 1 ( e), the place is required to be important in exhibiting particular aesthetic characteristics valued by the community or a particular cultural group. Evidence adduced on behalf of the appellant from persons who are interested in the history of architecture, namely Messrs. Adams, Raddacliff and Newell, establishes that such persons, if they can legitimately be considered to be part of a particular cultural group, did not regard Ascot Chambers as important, nor did they regard Ascot Chambers as exhibiting any particular aesthetic characteristics valued by each of such persons. The concept of community perception as advanced by Mr. Butler, wherein he regarded the Heritage Council as the body which is entrusted with the community perception is difficult to accept having regard to the constitution of the Heritage Council. It is of some significance that Mr. Huggard who expressed an intellectual interest in buildings involving steel framed curtain walls was not aware of the existence of Ascot Chambers prior to his engagement as an expert in the appeal despite the fact that on many occasions he had visited Brisbane. The particular cultural group was said by the respondent to be constituted by -- 26 of 30 -- 24 those persons interested in the history of architectural development in Queensland. The evidence does not satisfy me that there exists such a recognised group. Even if such a group did exist I am not satisfied that such a group could properly be regarded as a "cultural" group. Cultural in its ordinary meaning in the context pertains or relates to the sum total of the ways of living built up by a group of human beings of a particular race or nature. Further, on the evidence, it is clear that there exists a division of views of those persons interested in the history of architectural development in Queensland. On the evidence I am satisfied that the appellant has shown that the place is not important in exhibiting particular aesthetic characteristics valued by the community or a particular cultural group. The remaining criteria on which the listing was made was in respect to s.23(1)(h) of the Act. The special association with the life or work of a particular person, group or organisation was contended as being related to the architects, Hall and Prentice. Hall and Prentice undoubtedly were of particular importance in Queensland at the date of the erection of Ascot Chambers in that they were the architects for City Hall. The firm also were the architects of a number of other buildings including Tattersall's Club, Rowes Arcade, Carlton Hotel, Criterion Hotel and Lennons Ballroom. It was not as architects for those developments, but as architects for the City Hall that they were important in Queensland's history. Ascot Chambers was a commercially speculative building and did not have the notoriety, significance or importance of the City Hall or of -- 27 of 30 -- 25 other buildings of which Hall and Prentice were the architects, including Tattersall' s Club and the Catholic Church at Bowen Hills. The evidence of Mr. Kennedy and the annexure thereto indicates that a substantial part of the architectural practice was involved with alterations and renovations followed by domestic residences and general business premises. Undoubtedly, the firm's reputation would have been enhanced by the design and construction of City Hall. Mr. Newell, who has had considerable experience both as an architect and as an architectural writer, regarded the important work of Hall and Prentice as being City Hall and Tattersall's Club. He referred to the absence of Ascot Chambers in a publication, "Architecture in Brisbane", which he regarded as of some significance and importance in determining the value of buildings in Brisbane at or about the relevant time. Hall and Prentice, I am satisfied, were leading architects in Brisbane during the period of the existence of the partnership. Because of the association of the firm with the City Hall, I am satisfied that the firm could be said to be of importance in Queensland history. The somewhat self-serving statements that are to be found in journals and architects' directory do not assist, in my view, in determining the importance of the practice of Hall and Prentice relative to Ascot Chambers. Mr. Kennedy was not able to properly identify that the design concept of Ascot Chambers was one for which Mr. Hall was responsible. Ascot Chambers was an example of a style and form of building that had existed in Queensland for some time except for the steel frame non-load bearing walls. -- 28 of 30 -- 26 Mr. Hall, at or about the relevant time visited America, and undoubtedly would have become familiar with architectural developments taking place in America at the time with regard to "h. h • II kig rise ors yscraper commercial buildings. That visit does not establish that Ascot Chambers had any special association with Hall and Prentice. The fact that Ascot Chambers has been provisionally placed on the Register of the National Estate by the Australian Heritage Commission, the inclusion of Ascot Chambers in the National Trust (Queensland Chapter) List and the 1989 survey of buildings conducted on behalf of the R.A.I.A. (Queensland) does not provide any great assistance. The evidence establishes that prior to the actions relative to the National Trust (Queensland Chapter) listing and the R.A.I.A. (Queensland) survey, no inspection of the interior of the building was undertaken. It is noted that, both in the National Trust listing and the Architects' Survey, Ascot Chambers was stated to be significant for its technical innovation and was of interest for its emphasis on modelling a facade and decoration of the top and lower storey. The fact that Ascot Chambers was an example of the work of Hall and Prentice is not in itself sufficient to elevate it to a matter of importance associated with that firm in Queensland's history. I am satisfied that the evidence establishes no special association between Ascot Chambers and Hall and Prentice. Ascot Chambers undoubtedly was an example of the work of Hall and Prentice but this fact in itself does not identify any special association. On all of the evidence I am satisfied that the appellant had established that the place has not a special association with the -- 29 of 30 -- 27 life of Hall and Prentice, who were important in Queensland's history as architects for the City Hall. Under s.23(3), a place does not satisfy the criteria for entry in the Heritage Register if there is no prospect of the cultural heritage significance of the place being conserved. Assuming contrary to what I have found earlier that the place has cultural heritage significance, it was submitted on behalf of the appellant that Ascot Chambers had no prospect of its cultural heritage significance being conserved. "Conservation" is defined under s. 4 of the Act and includes protection, stabilisation, maintenance, preservation, restoration, reconstruction and adapts. The appellant called evidence of no prospects. However, the various reports failed to establish facts on which those reports were founded. The reports and evidence called from such witnesses are of no weight as the primary facts on which the opinions were expressed have not been established. On the evidence I am satisfied that the appellant has not made out a case under s.23(3) of the Act. For the reasons above, the appeal is allowed. I find that Ascot Chambers is not of cultural heritage significance within the meaning of that term as defined in s.4 of the Act. I further find that the appellant has established that Ascot Chambers fails to satisfy the criteria set out in s.23(1)(a); (e); and (h) of the Act. I reverse the decision of the respondent. I order that the place, Ascot Chambers, be removed from the Heritage Register and that the place, Ascot Chambers, cease to be so registered. -- 30 of 30 --