ACT Chapter of Royal Australian Institute of Architects and ACT Heritage Council [2003] ACTAAT 18 (11 April 2003)

Last Updated: 14 April 2003

AUSTRALIAN CAPITAL TERRITORY

ADMINISTRATIVE APPEALS TRIBUNAL

CITATION: ACT CHAPTER OF ROYAL AUSTRALIAN INSTITUTE OF ARCHITECTS AND ACT HERITAGE COUNCIL & ANOR [2003] ACTAAT 18 (11 APRIL 2003)

AT03/02

Catchwords: Land and planning - application for the inclusion of a place in an interim heritage places register - whether building on place demonstrated a high degree of technical or creative achievement - whether other criteria for the assessment of heritage significance of places were met - whether conservation measures are "prudent and feasible" - whether viable commercial/urban planning alternatives for development of land existed - relevance of Burra Charter.

Administrative Appeals Tribunal Act 1989, s. 28, 37

Land (Planning and Environment) Act 1991, ss. 17, 52, 54, 56, 229, 231, 237, Divs 2.3, 4.2, Sch 2

Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70

Friends of Hinchinbrook Society Inc v Minister for Environment and Resources & Ors (No.2) (1997) 69 FCR 28

Re Truswell and Minister for Communications and the Arts (1996) 42 ALD 275

Yates Security Services Pty Ltd v Keating [1990] FCA 432; (1990) 98 ALR 21

Tribunal: Mr M H Peedom, President

Ms P O'Neil, Senior Member

Dr D McMcMichael, Member

Date: 11 April 2003

AUSTRALIAN CAPITAL TERRITORY )

ADMINISTRATIVE APPEALS TRIBUNAL ) NO: AT03/02

LAND AND PLANNING DIVISION )

RE: ACT CHAPTER OF

ROYAL AUSTRALIAN

INSTITUTE OF

ARCHITECTS

Applicant

AND: ACT HERITAGE

COUNCIL

Respondent

AND: MARIA ENTERPRISES

PTY LTD, GADKKA PTY

LTD & JPK PTY LTD T/A

MGJ PROPERTIES

Party Joined

DECISION

Tribunal : Mr M H Peedom, President

Ms P O'Neil, Senior Member

Dr D McMichael, Member

Date : 11 April 2003

Decision :

The decision of the respondent is set aside and substituted by a decision that the application for the inclusion of Block 61 Section 8 Division of Phillip in an interim heritage places register be refused approval.

................................

President

AUSTRALIAN CAPITAL TERRITORY )

ADMINISTRATIVE APPEALS TRIBUNAL ) NOS: AT02/124 & 126

LAND AND PLANNING DIVISION ) AT03/02

RE: WODEN VALLEY

COMMUNITY COUNCIL

Applicant in AT02/124

RE: ROYAL AUSTRALIAN

INSTITUTE OF

ARCHITECTS

Applicant in AT02/126

RE: ACT CHAPTER OF

ROYAL AUSTRALIAN

INSTITUTE OF

ARCHITECTS

Applicant in AT03/02

AND: COMMISSIONER FOR

LAND & PLANNING

Respondent in AT02/124

& AT02/126

AND: ACT HERITAGE

COUNCIL

Respondent in AT03/02

AND: MARIA ENTERPRISES

PTY LTD, GADKKA PTY

LTD & JPK PTY LTD T/A

MGJ PROPERTIES

Party Joined

REASONS FOR DECISION

11 April 2003 Mr M H Peedom, President

Ms P O'Neil, Senior Member

Dr D McMichael, Member

Background

Guardian House is a building located at Block 61 Section 8 Division of Phillip and is described as of structuralist style. The lease of Block 61 was acquired from the Commonwealth in June 2000 by MGJ Properties, the party joined, together with the lease of the adjoining Block 57 Section 8 Division of Phillip. Block 57 is presently an open paved and landscaped area which forms part of the Woden Town Centre.

2. On 11 March 2002 MGJ Properties lodged a development application with the planning authority ("PALM") which proposed the consolidation of Blocks 57 and 61 as well as an additional area of unleased land, Block 56 Section 8 Division of Phillip, which adjoined Block 57. The development application also proposed the demolition of Guardian House, the construction of a 6 storey office block on the consolidated lease, and the construction of 2 air level bridges from the new office block to an existing office block named Juliana House on Block 60 Section 8 Division of Phillip.

3. At the time of the purchase of the leases of Blocks 57 and 61 the land the subject of the leases was national land and a Development Control Plan ("DCP") agreed to by the National Capital Authority which reflected the provisions of the Territory Plan and specific requirements of the National Capital Plan applied to it. The DCP provided that the land was to be used for a number of specified purposes including offices and a variety of other commercial uses at ground floor level. A maximum gross floor area ("GFA") for Block 57 was specified as 8000m² and for Block 61, 4000m². Building design was required to reflect the design themes of the Woden Town Centre and building height was restricted on Block 57 to 8 storeys and on Block 61 to 4 storeys. The DCP also required existing pedestrian access to be provided in accordance with specified plans, for the effects of wind turbulence to be carefully considered and overshadowing, as far as practicable, to avoid increasing on the main pedestrian area to the west of the site or to minimise unacceptable overshadowing of other public open spaces.

4. Following the sale of Blocks 57 and 61 they ceased to be national land to which a development control plan applied. Prior to lodging the development application representatives of MGJ Properties had discussions with PALM about the kind of development that should be undertaken on the acquired and nearby land and a preliminary assessment of the site was undertaken in accordance with the requirements of Division 4.2 of the Land (Planning and Environment) Act 1991 ("the Land Act"). In the discussions with PALM agreement was reached, inter alia, that Blocks 57 and 61 each be permitted to be developed to a building height of 6 storeys with a total GFA of 12,000m² and 120 underground car parking spaces.

5. In October 2001, the Chair of the Register of Significant Twentieth Century Architecture Committee of the Royal Australian Institute of Architects ("the RAIA"), Mr G Trickett, informed the architects for the project, Woods Bagot, that the RAIA was in the process of preparing a citation for Guardian House. However it was not until 28 March 2002 that Mr Trickett advised the Heritage Council that the RAIA wished to nominate Guardian House to an Interim Heritage Places Register ("interim register"). The nomination was received by the Heritage Council on 9 April 2002.

6. Consideration of the development application was completed before the Heritage Council had resolved its position in relation to the nomination of Guardian House to an interim register. On 11 September 2002 the delegate of the Commissioner for Land and Planning approved the development application subject to conditions. One of the conditions required that before demolition of Guardian House a heritage documentation report be prepared by an appropriately qualified person and lodged with a number of specified repositories.

7. Following its consideration of the RAIA nomination the Heritage Council resolved on 12 September that Guardian House be included in an interim register. Its decision was notified on 21 December 2002.

8. The decision of the delegate of the Commissioner is the subject of appeal by the RAIA in matter No. AT02/126. It is also the subject of appeal by the Woden Valley Community Council ("WVCC"), which had objected to the development application on a range of planning grounds, in matter No. AT02/124.

9. The decision of the Heritage Council to enter Guardian House on an interim register was the subject of appeal by the RAIA in matter No. AT03/02. The WVCC did not apply to be made a party to that appeal. In that appeal the case for the RAIA was that one of the specific requirements included in the interim register by the Heritage Council would, in circumstances which are explained below, have permitted the demolition of Guardian House whereas it should only have contained requirements which prevented that occurrence because of its heritage significance.

10. With the agreement of the parties to each of the appeals, the Tribunal directed that they be heard together and that a decision be given in matter No. AT03/02 before any decision was given in matters Nos. AT02/124 and AT02/126. To do otherwise could render any decision in respect of the decision the subject of appeal in matter No. AT03/02 otiose.

The Interim Heritage Places Register

11. The interim register was expressed in the following terms:

LOCATION OF PLACE:

Bowes Place, Phillip ACT 2606

Block 61 Section 8 Phillip

FEATURES INTRINSIC TO THE HERITAGE SIGNIFICANCE OF GUARDIAN HOUSE

The features intrinsic to the heritage significance of the `place' and required for conservation comprise

(i) All of the original building fabric, including structural systems;

(ii) The dining area space/volume and its relationship to the entry and kitchen,

(iii) The original internal finishes of the dining area,

(iv) The building's address to the concourse, including original landscaping.

Note that the introduced fabric associated with the adaptation of the building as a records office is not considered to be culturally significant.

TERMINOLOGY

Late 20^th Century Structuralism

Buildings in this style celebrate, utilise and express the structural characteristics of their design. `Structuralist' buildings adopt a diversity of forms, however their common factor is an endeavour to obtain the `most from the least' of a structural system. Notable Canberra examples (in addition to Guardian House) include The Australian Academy of Science headquarters (now known as the Shine Dome) by Roy Grounds and the Bruce Stadium by Philip Cox. Throughout the 1960s and 1970s the use of materials to obtain the `most from the least' was a major design theme of modern architecture.

STATEMENT OF SIGNIFICANCE

Guardian House is an excellent example of Late 20^th Century Structuralist architecture. Its long-span steel trusses, cantilever steel trusses, reinforced concrete supporting structure, triangulated boxed plywood beams and use of Aus-10 50 steel demonstrate the use of innovative design techniques and materials. The design of the building takes advantage of its `island' site to successfully resolve functional and urban design requirements. Its controlled scale, aesthetic expression and particularly fine resolution of detail resulted in its receipt of the Canberra Medallion in 1970. The building clearly demonstrates the past function of Government canteens.

It is associated with the important Australian architect Ian McKay and, because of the building's architectural resolution of design, structure and brief, it has additional potential as a teaching site.

SPECIFIC REQUIREMENTS FOR THE CONSERVATION OF GUARDIAN HOUSE

In accordance with s.54(1) of the Land (Planning and Environment) Act 1991, the following specific requirements are identified as essential to the conservation of the heritage significance of the place. These specific requirements are prepared to implement the following conservation policy for the place.

The intrinsic features of Guardian House, including its original form, fabric, scale and setting should be managed in a manner appropriate to conserving its significance.

Any action relating to these specific requirements is development for the purposes of the Act and will require approval prior to undertaking the activity. To undertake development without approval may be an offence.

CONSERVATION OBJECTIVE 1

To conserve the significance of Guardian House

Specific Requirement 1.1:

Conserve the architectural form of Guardian House, restore its exterior and interior, and incorporate the building as a feature in future development of the Woden precinct.

Specific Requirement 1.2:

Any applicant for development of the site shall demonstrate that full and professional consideration has been given to the options for the retention and use of the building in the context of any proposed development.

CONSERVATION OBJECTIVE 2

To record the significance of Guardian House should its conservation be deemed by the Approval Authority not to be prudent and feasible.

Specific Requirement 2.2:

Should the Approval Authority be satisfied by a development applicant, after seeking the advice of the Heritage Council, that conservation of the building is not feasible and prudent, the building shall be fully documented photographically, its history documented, original building plans and historical photos gathered before any demolition occurs, and this information included in a Heritage Documentation Report, copies of which shall be lodged with the Woden Library, the ACT heritage Library, and the ACT Heritage Unit.

Heritage Significance of Guardian House

12. In preparing an interim register an assessment is required to be made of the place in accordance with criteria which are specified in schedule 2 of the Land Act. Those criteria considered of relevance by the Heritage Council and expert witnesses who gave evidence to the Tribunal are as follows:

(a) a place which demonstrates a high degree of technical, creative achievement, or both by showing qualities of innovation or departure or representing a new achievement of its time; or

(b) a place which exhibits outstanding design or aesthetic qualities valued by the community or a cultural group; or

(c) a place which demonstrates a distinctive way of life, taste, tradition, religion, land use, custom, process, design or function which is o longer practised, is in danger or being lost, or is of exceptional interest; or

(d) a place which is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations; or

(e) a place which is the only know [sic] or only comparatively intact example of its type; or

(f) a place which is a notable example of a class of natural or cultural places or landscapes and which demonstrates the principal characteristics of that class; or

(g) a place which has strong or special associations with person, group, event, development or cultural phase which played a significant part in local or national history; or

...........

(k) a place which demonstrates a likelihood of providing information which will contribute significantly to a wider understanding of natural or cultural history, by virtue of its use as a research site, teaching site, type locality or benchmark site.

13. In making its decision the Heritage Council took into account reports which it had received from Mr E Martin and Mr R Pegrum as well as the nomination to the interim register which was prepared by Mr G Trickett. Mr Martin, Mr Trickett and Mr Pegrum are all registered architects with specialist qualifications and expertise in the assessment and conservation of buildings with heritage qualities. Mr Martin and Mr Pegrum are former members of the Heritage Council and Mr Martin was its first chairperson.

14. In evidence given on behalf of the RAIA Mr Trickett said that the historical significance of Guardian House had been well documented over many years. Its architectural importance had been recognised by winning the RAIA ACT Chapter Canberra Medallion in 1970, the highest award for architectural excellence in the ACT, awarded annually to the best recent ACT building. That award was not given unless the building was of outstanding architectural quality. The building had been recorded in the publication `Canberra - An Architectural Guide to Australia's Capital' produced in 1992 by the RAIA. It had also been included in the book `Identifying Australian Architecture - Styles and Terms from 1788 to the Present' where it was cited as a specific example of the late 20^th century structuralist style. Mr Trickett claimed that the Australian Heritage Council was also to accredit Guardian House at its first meeting in 2003, identifying it as having national estate values.

15. Mr Trickett said that the innovative design of the canteen building in 1969 using 24.4 metre long fabricated triangular plywood beams combined to form a "folded plate" roof/ceiling system which was of unusual construction and demonstrated a high degree of creative achievement at the time of construction. The roof system was believed to be one of the few types in Australia where plywood had been engineered to roof such a large space. The refined light-weight long span parallel cord boxed trusses had a delicate complexity and allowed a high degree of visual and spatial continuity between the indoor and outdoor spaces. The trussed system provided support to the light-weight roof in a way that gave the impression of the roof floating above its supports. The roof cantilevered out at the ends to support the roof as it turned down at the entry corridors and extended along the front at a level above the occupant's eye level to allow the use of frameless sliding glazing that extended the full width between each concrete buttress thus negating the need for structural mullions and providing unobstructed views to the outside. The trusses supported the fixed glazing with framing members to provide an homogenous detail and supported the front angled sun shading glass. The incorporation of `AUS-10 50' steel in the trusses represented new technology at the time. Guardian House was a rare example of its use in Australia and the finish of the material had resulted in it being maintenance-free. The trusses and plywood roof/ceiling satisfied the structuralist principle of making the most out of the least materials.

16. Mr Trickett considered that the building took advantage of the island site to produce a dramatic effect. The authors of `Identifying Australian Architecture - Styles and Terms from 1788 to the Present', Richard Apperley, Robert Irving and Peter Reynolds, regarded Guardian House as a key example of a style of architecture. Its complex angular geometry, clearly expressed structure and horizontality of the late 20^th century organic style added to its architectural significance. As a low rise building it contrasted with adjacent larger office structures. Mr Trickett considered the building was advanced for its time, well planned and held in high regard by the RAIA for its architectural excellence.

17. Mr Trickett said that the use of canteens for public servants was an integral part of Commonwealth office development in the 1970s and 1980s. Guardian House demonstrated the provision of large-scale food services that was one aspect of the way of life at this time in Canberra's first satellite town centre at Woden. However the need for canteens had changed and the small number that had been built were now used for other purposes. Guardian House was one of Canberra's few comparable examples of the large canteen of the 1960s. Other examples had less architectural complexity and Guardian House was believed to be the only small scale non-residential structuralist building in Canberra of this quality.

18. The building, Mr Trickett said, had strong associations with its architect, Mr I McKay, who was influential in the advancement of Australian architecture in the late 20^th century. Through its architectural style and as a rare example of a large canteen Guardian House could be a valuable education resource for designers. It provided information about technology, design and custom of the time. In Mr Trickett's opinion, in order to understand the three-dimensional form of Guardian House, it had to be experienced and looked at from all sides and experienced from inside and outside. He considered that demolition and recording of Guardian House would not enhance the ACT's heritage.

19. In his evidence given on behalf of the applicant, Mr Martin said that Guardian House demonstrated a high degree of technical and creative achievement, particularly the truss which expanded across each end of the building supported on large off the form concrete buttresses, the use of AUS-10 50 steel and the use of prefabricated triangular plywood trusses which were of an unusual construction rarely used with only one other known example now demolished.

20. In addition to the publications to which reference to Guardian House had been made by Mr Trickett, Mr Martin said that the building was one of 12 Canberra buildings included in `Architecture in Steel' - Ogg as a good example of steel in buildings. Mr Martin said that the use of canteens for public servants was an integral part of Commonwealth office development in the 1970s and 1980s. The use of all of them had since changed, including Guardian House but they remained as reminders of that way of life and custom.

21. Mr Martin said that in his view the spatial elements of the building and how its components worked could not be conveyed by a 2 dimensional form such as a photographic record. In his view the design was manifested by the building itself and that drawings and other records would be an inaccurate representation of it.

22. Mr Robert Irving, MArch., FRAHS, a chartered architect, architectural historian and heritage consultant, also gave evidence on behalf of the applicants. He said that Guardian House was a remarkable and distinguished structure both in its own right and as a direct exemplar of a forthright architectural mode. It had been included in `Identifying Australian Architecture', a manual of which he was co-author, after a search all over Australia for worthy examples which explicated the evolution and manifestation of all aspects of architectural styles in Australia. Its purpose was to categorise the making of Australian architecture in the context of world architecture, discovering buildings which not only belonged to the international mainstream but also characterised the evolution of building here.

23. The particular style of which Guardian House was an example of what was designated by the authors as structuralist. The style was a late 20^th century successor to the adventurist structures that exploited and expressed new materials in dramatic forms invented in the 19^th century. It was the development of the completely new materials and methods that facilitated the style. Mr Irving said that the best Australian structuralist design had reached as high a standard as work anywhere else in the world. Guardian House could be measured against that standard. He contended that it was an effective national component of a world style.

24. Mr Irving said that the aesthetic harmony arising out of an array of straight lines and planes in the building was notable. The hovering character of the roof offered strong contrasts of light, shadow, transparency and reflectivity, and was one of the strongest elements of the design. The visual separation of the substantial concrete supporting structure from the spaces below was highly dramatic. Aesthetic qualities such as those were found in very few buildings and the product was seldom expressed as well as it was in the case of Guardian House. When it was erected the complex was rightly regarded, in his view, as extraordinary.

25. Although Ian McKay, the architect of Guardian House, had been somewhat overshadowed by the reputations of others Mr Irving considered that his place in the development of modern architecture in Australia was assured by such work as Guardian House. Mr McKay had designed a number of other buildings in Sydney, one of which was of considerable interest because of its rectilinear structuralist design and which had been recognised as an example of Organic style. He believed that McKay was an under-rated architect despite having received some architectural awards in Canberra because he had chosen to opt out of the profession at various times.

26. In evidence given at the hearing Mr Irving emphasised the spatial dimensions of the interior of the building that had been achieved by the design. He believed that those spatial qualities could not be recorded in photographs or otherwise although individual components of the structure could be so recorded.

27. In contrast to Messrs Trickett, Martin and Irving, in his advice to the Heritage Council Mr Pegrum said that, in his opinion, Guardian House was not of sufficient architectural significance to support its nomination to the ACT Heritage Places Register. In his evidence given to the Tribunal, he noted that although reference was made to Guardian House in `Identifying Australian Architecture' no suggestion had been made in that manual that it was an example of best Australian structuralist design or that it was comparable to international works of the same style. He also noted that the Apperley book did not suggest that Guardian House or any of the other buildings cited in it were significant for any reason other than exhibiting one or more of the characteristics of structural expression in architecture. Only a small number of those buildings, in his opinion, demonstrated a high level of architectural creativity and design resolution. He considered that Guardian House was not a good example of the structuralist style because it lacked clarity of structural expression and there was a confusing external aggregation of various building materials that made the building ponderous and heavy. He was also critical of a number of other aspects of its design. He said that Guardian House had been nominated to the Australian Heritage Commission for assessment but the Commission had made no assessment of it as the place was no longer in ownership of the Commonwealth. Mr Pegrum considered that much of the setting and balance of the original building had already been lost with the addition of toilets and change rooms on its northern side.

28. Mr Pegrum also said that although reference had been made to Guardian House in a number of architectural publications, they contained little comment about it. Other well known publications which he referred to made no reference to it. He said that, although Guardian House had been awarded the Canberra Medallion, that award was of lesser significance than an award made by the Institute on a 25 year basis. He had chaired that award and doubted that Guardian House would have qualified for it. His view was that, although Guardian House demonstrated some of the attributes that warranted consideration of it against criteria (a), (b) and (f) of schedule 2 of the Land Act, it was not of sufficiently high level of achievement to satisfy those criteria.

29. Mr Pegrum did not consider that there was anything particularly unusual or innovative about the length of the steel truss used in the construction of Guardian House. Its greatest achievement was, in his view, in the use of plywood as a primary structural material. Such a technique had not previously been exploited in Australia and was a break-through. He did not think, however, that its use in this particular situation gave rise to a satisfactory architectural outcome.

30. In relation to the measures that might, if appropriate, be taken for the conservation of the heritage significance of Guardian House, Mr Pegrum said that, in his view, the reality of a building could not be captured by recording it, even using modern technology such as video cameras. However a lot of information about a building and what it was like can be gained from documents and photographs, so long as the recording is well done and thoroughly researched. He had already located many of the relevant documents and knew that other were available, including photographs of the building at various stages during its construction.

Conclusions

31. In making an assessment of a place nominated for entry on an interim register against the criteria specified in schedule 2 of the Land Act it will, in the Tribunal's view, often be a question of degree as to whether the place demonstrates any of the relevant qualities to an appropriate standard. The conferral of a local award such as the RAIA ACT Chapter medallion may be some evidence that the place is valued by a group in the community. Such recognition may be insufficient for the purpose of meeting the criterion specified in clause 1(b) of schedule 2 of the Land Act, however, unless the inherent design or other aesthetic qualities of the building in question are of sufficiently high standard to justify the conclusion that they were outstanding in these respects . Questions also arise as to the extent of any community or relevant group support which there may be for the qualities necessary to be demonstrated. Widespread community support may satisfy the test more readily than support which is only limited.

32. There was little evidence of community support in this case. Mr Martin suggested that if a building was valued by architects it followed that it would also be valued by the community, however, we do not accept that is so.

33. The evidence of Mr Trickett, Mr Martin and Mr Irving provides support for the conclusion that the design and aesthetic qualities of Guardian House are valued by a number of architects. To the extent to which cultural heritage is that which is inherited by a society or group about its customs, achievements, products and outlook, its artistic and intellectual development and its forms, stages and types of intellectual development or civilisation (see Re Truswell and Minister for Communications and the Arts (1996) 42 ALD 275), we consider that a number of architects sufficiently related could be regarded as a cultural group. The evidence before us, however, does not make clear whether the witnesses who, according to their evidence, value the design or aesthetic qualities of Guardian House are sufficiently related to be properly described as a group. Nor does the evidence clearly establish the identity or size of any group which supported or endorsed the entry of Guardian House to the Register of Significant Twentieth Century Architecture or the nomination to the interim register. In the result we do not consider that the evidence establishes that either criterion 1(b) or 1(d) has been satisfied.

34. Support for the inclusion of Guardian House on an interim register was also claimed to derive from its use during the 1970s and 1980s for the provision of large-scale food services as an integral part of Commonwealth office development. Conservation of Guardian House was said to be important as a reminder of that way of life and custom, thus meeting the requirements of criterion 1(c). Canteens of the same kind in other areas had since been converted to different uses, as had Guardian House, consequently it was claimed to meet the requirements of criteria 1(e) and 1(f).

35. Criterion 1(c), 1(e) and 1(f) do not, by way of contrast with 1(b) and 1(d), place emphasis on the characteristics they identify needing to satisfy any requirement that they be valued by a cultural group or the broader community. Nevertheless, it is inherent in any requirement for conservation that some demonstrated public benefit derives from the measures for conservation that are imposed. Little explanation of such benefit was provided to the Tribunal. Nor does the evidence satisfy the Tribunal that there is anything about the way of life that was identified which makes it distinct from that which was practised elsewhere. Accordingly, we conclude that Guardian House does not meet criteria 1(c), 1(e) or 1(f).

36. The special association which was claimed for Guardian House for the purpose of criterion 1(g) was with its designer, Mr Ian McKay. His work was said by Mr Trickett to be influential in the advancement of Australian architecture during the late 20^th century and highly regarded by another architect. Mr Martin described his work as notable and having won a number of awards. Mr Irving provided some support for these views. Criterion 1(g), in our view however, imposes a requirement for the person with whom the special association is claimed to have played a significant part in local or national history. Such evidence was not forthcoming and we conclude that the criterion has not been met.

37. The strongest case to be made in support of the entry of Guardian House to an interim register, in the Tribunal's view, is in respect of criteria 1(a). Although the Tribunal found Mr Pegrum's evidence, supported by comprehensive research of the original design brief and other material, to be strong, we note that he was prepared to accept that Guardian House had some of the attributes identified in criterion 1(a), even if not to a sufficiently high degree. Whatever might have been the basis of the evidence given that the Australian Heritage Commission proposed to "accredit" Guardian House at its first meeting in 2003, there was no corroborating evidence as to whether this had or would happen. We are of the view, however, that considerable weight is entitled to be given to the expert evidence advanced on behalf of the RAIA, particularly that of Mr Irving who expressed his opinions in a well balanced manner. We accept that the issue under consideration is a matter upon which the views of experts may differ and that there are elements of subjectivity involved in arriving at a view. We conclude that the weight of opinion in this case supports a conclusion that Guardian House demonstrates the degree of technical and creative achievement required by criterion 1(a) by showing qualities of innovation and new achievement of its time.

38. We consider that the qualities which enable Guardian House to meet criterion 1(a) also suggest some potential capacity for it to provide information that would contribute to a wider understanding of its cultural history in the ways described in criterion 1(k). The absence of any evidence of such use or proposed use for that purpose since it was constructed, however, does not suggest that any such contribution would necessarily be significant. We are not satisfied that this criterion has been met.

39. Nevertheless, the fact that Guardian House satisfies one of the criteria (1(a)) necessary for a place to be entered in an interim register is sufficient for it to have been determined to be worthy of such registration.

Whether conservation measures are prudent and feasible

40. The evidence relied upon by MGJ Properties in relation to this issue was given by Mr G Lyons, Mr P Sarris, Mr R Purdon and Mr Pegrum.

41. Mr Lyons is the regional director, Capital Markets, Jones Lang LaSalle, licensed real estate agents. In a letter written by him to Mr P Sarris, a representative of the lessee, Mr Lyons said that he had an extensive knowledge of both public and private sector tenant requirements in Canberra over the last 19 years. Based on his experience he said that the size and layout of the floor plate of any building on the site would be critical when leasing to both private and public sector tenants. Larger office users were no longer prepared to remain in aging office buildings with small (less than 1000m²) floor plates. They were looking for modern workplace environments provided in campus-style or large low rise office developments where larger floor plates provided flexibility in fit out, design and operation. The floor plate of 2000m² proposed by the development application would, in his opinion, meet the demands of potential large scale tenants seeking modern office accommodation in the Woden Town Centre. Block 57, if developed in isolation, would result in floor plates of approximately 1000m² or less and provide more of the same office accommodation currently provided in Woden. There would, in his view, be no long term demand for such accommodation. If refurbished Guardian House would have very little appeal to the leasing market due to its inefficient lay out, lack of street frontage, road access and on site parking. Effectively it was only suitable for storage space. The 120 car parking spaces proposed by the development application would provide an excellent amenity for tenants that was not generally available in Woden.

42. Mr Sarris is a director of Maria Enterprises Pty Ltd, one of the companies that trades as MGJ Properties and is also the development manager and director of the company responsible for delivery of the proposed development. He said that MGJ Properties made inquiries about the site in early 2000 and had been provided with a report by the Commonwealth of Australia, which the owned the property. The report verified that the property had no heritage status. The property was purchased in June 2000 with the intention that Blocks 57 and 61 be developed for office use with a gross floor area of 12,000m² which was permitted by the Crown lease and the Territory Plan. Following preliminary discussions with PALM in early 2001 a contract had been let, following tender, for the development.

43. Mr Sarris said that a number of development options were considered in consultation with experts engaged by MGJ Properties. The conclusion had been reached that the only large scale user was a government tenant and a major requirement of such a tenant was to maximise the size of floor plates to improve operating efficiency. In the development now proposed, the floor plate of more than 2000m² would allow for flexible and functional office layouts sufficient to cope with changes in organisational structure for larger organisations. That could not be achieved by development of Block 57 alone because the floor plate would only be 1000m² and to achieve the permitted gross floor area of development building height guidelines would be exceeded. Also, if Block 57 were to be developed alone, the depth of excavation required to provide 120 car parking spaces would also affect the financial viability due to the added construction cost. Other options considered included the construction of a new office building above Guardian House and a land swap or purchase of adjacent public land. The proposal to build above Guardian House was considered to be not a prudent option from an architectural point of view nor from a commercial point of view, while both a land swap or purchase of adjacent land were unacceptable to the Territory.

44. Mr Sarris said that his views as to the commercial viability of the project were based upon advice from experts and his own assessment made as a manager of 22 buildings in Canberra as well as inquiries made of prospective tenants of any proposed development.

45. Mr Purdon is a qualified town planner whose company was involved in the preparation of the development application and a preliminary assessment on behalf of the lessees of the site. He also prepared a report which examined development options for the site which took account of the commercial considerations identified to him by the company responsible for the delivery of the development.

46. One of the options which had been considered for development of the site was the construction of an office building above Guardian House. Mr Purdon said that this would require supporting pillars at one end of Guardian House and would result in a design that was neither cohesive nor attractive as a design solution. It would be preferable for there to be a continuous unbroken façade of any proposed development. Buildings of a different era and colour would be inappropriate. Building over Guardian House would also have an adverse impact on the admission of light to that building. He said that the options of a land swap with adjacent public land had been raised with the Territory during the early part of the planning process but had not been accepted. Guardian House, he said, was not, in its current form, an energy efficient design by present day sustainable design and workplace standards. The external form of Guardian House would have to be compromised to maximise the flexibility of alternative and commercially viable land uses if it was to be retained. Consideration had been given to a development which preserved some part of the façade of Guardian House. This would, in his view, have resulted in a building of inappropriately contrasting design to that required of a modern office development as well as contrasting building materials. A further proposal which had been considered to consolidate Blocks 57 and 58 would not give a sufficient sized floor plate and, in any event, the Territory was not willing to give a lease of Block 58.

47. Mr Pegrum was also asked about possible alternative forms of development on the site. He said that if Guardian House was left in situ and development occurred on the adjacent block, it would leave Guardian House with little "breathing" space and give rise to a serious question as to whether conservation was desirable. If it was built over it would demean the building and make it look silly. If it became necessary for commercial reasons to build a higher building on a smaller footplate of an adjacent block it would result in a doll's house effect. Either of these options would engulf Guardian House entirely and result in it losing all reference to its original concept as a free-standing pavilion.

Conclusions

48. Critical to a resolution of the issue under consideration is the correct interpretation of the provisions of the Land Act dealing with the process of entering a place on an interim heritage places register and any subsequent variation of the Territory Plan to include the entry on the heritage register, with or without amendment.

49. It is clear enough that the purpose of including a place in an interim register is to enable effective measures to be taken for the conservation of the place (see for example section 54(1)(d) Land Act). The word "conservation" is defined in section 52(1) of the Land Act as including preservation, protection, maintenance, restoration and enhancement. As an inclusive definition, ordinary meanings of the word "conservation" are open to be applied.

50. On behalf of the RAIA Mr Cohen submitted that the ordinary meaning of "conservation" involved the preservation of something from destructive influences, decay or waste (see Shorter Oxford English Dictionary) or the preservation of the natural environment and objects (see The Australian Concise Oxford Dictionary). The word "conservation" did not, in his submission, extend to permitting demolition or other destructive measures as would be permitted by specific requirement 2.2 of the interim register. To permit a building assessed as meeting the criteria specified in schedule 2 of the Land Act to be destroyed and with only a requirement for its significance by some means to be recorded would involve no more than commemoration of the building. It was not the function of the Heritage Council, Mr Cohen contended, to address broader planning issues, except to the extent that it was given the opportunity to make comment to the authority responsible for approving or refusing approval to development applications which related to a place specified in a heritage places register or an interim register (see sections 229(4)(a) and 231(1)(a) Land Act).

51. To the extent, he submitted, that the Land Act allowed a place included by the Heritage Council in an interim register to be dealt with in ways other than those that would result in its conservation, that was a matter to be resolved initially by the planning authority, to whom the Heritage Council was required to submit any interim register, which was free to agree or to not agree with the interim register or part of it (see section 17 Land Act). Ultimately it was a matter to be resolved by the Executive (see Division 2.3 Land Act). Mr Cohen further submitted that the inclusion of specific requirement 2.2 in the interim register was inconsistent with the approach to conservation of cultural heritage outlined in the Burra Charter.

52. Dr Jarvis, who represented the Heritage Council, submitted that where a measure otherwise considered appropriate for the conservation of a heritage place was, in the circumstances of the case, not a prudent and feasible measure, section 56(b) of the Land Act precluded the imposition of such a measure in the requirements for conservation of a place that needed to be specified in accordance with section 54(1)(d). The evidence in this case, he contended, demonstrated that a requirement that Guardian House be conserved and restored was not a prudent and feasible measure. He was supported in these submissions by Mr Tsirimokos, who represented MGJ Properties.

53. The Burra Charter, to which Mr Cohen made reference in his submission is a document which sets a standard of practice for those who provide advice, make decisions about, or undertake works to places of cultural significance, including owners, managers and custodians. It was adopted by the Australian National Committee of the International Council on Monuments and Sites. The charter was first adopted by the National Committee in 1979 and has since been revised. It is sufficient to say in respect of it that whether the demolition of Guardian House would be contrary to its principles or guidelines is not a matter for the Tribunal to resolve. Its task is to determine the correct or preferable decision to make in respect of the nomination of the place in question having regard to the criteria set out in section 56(b) of the Land Act.

54. The apparent incongruity of the inclusion in an entry in an interim register of specific requirements which accept the prospect of demolition of a structure which has been identified as worthy of conservation gives some force to Mr Cohen's submission. The power to specify requirements for the conservation of the heritage significance of a place is not, however, unqualified. Section 56(b) acts as a constraint, in our view, upon the specific requirements that are able to be included in an interim register pursuant to section 54(1)(d). In determining what those specific requirements should be, the Heritage Council is obliged to consider whether any measures directed towards the conservation of the place are prudent and feasible. This may dictate the need to modify or to omit any specific requirement otherwise considered to be appropriate.

55. The question remains, however, as to whether the measures identified in the interim register, there being no others suggested as appropriate by the parties, are prudent and feasible measures.

56. In ordinary usage the word "prudent" means being careful to avoid undesired consequences; circumspect (see The Australian Concise Oxford Dictionary). It is defined in the Macquarie Dictionary as wise, judicious, or wisely cautious in practical affairs. "Feasible" is defined as .........capable of being done, effected or accomplished .......

57. To those meanings we would add that, in general, legislation which seeks to protect the environment should be read in a way that promotes that end and not so as to frustrate achievement of proper protection (see Australian Conservation Foundation v Minister for Resources (1989) 19 ALD 70). Section 56 of the Land Act should be interpreted in that way. Further, we note that in the context of environmental protection legislation it has been said that mere economic considerations cannot determine what are feasible and prudent alternatives. If so interpreted, a proposal ought not be regarded as unfeasible or imprudent merely because it was more costly or less profitable (see Yates Security Services Pty Ltd v Keating [1990] FCA 432; (1990) 98 ALR 21 at 57-58). That is not to say, however, that economic considerations are irrelevant (see Friends of Hinchinbrook Society Inc v Minister for Environment and Resources & Ors (No.2) (1997) 69 FCR 28 at 74).

58. By including provision in specific requirement 2.2 of the interim register for measures to be taken for the conservation of the heritage significance of Guardian House in the event that approval is given by the relevant approving authority to its demolition, the Heritage Council adverted to the possibility that conservation of the structure may not, on the information available to it, be a prudent and feasible measure but left the resolution of that issue to the authority responsible for approving the development application. The function of the Tribunal in the appeal is to determine the correct or preferable decision for it to make having regard to the evidence presented to it and submissions made to it on behalf of the parties. It is not necessary for that purpose for the Tribunal to reach a view as to whether, on the material available to it, the Heritage Council made the correct or preferable decision.

59. The WVCC was not a party to the appeal in matter No. AT03/02. No submission was made on behalf of the RAIA that a viable development option for the site existed. It relied upon the submission that section 56 of the Land Act only empowered the Heritage Council to specify requirements for the conservation of a building found to meet one or more of the criteria in schedule 2 of the Land Act. As we have already concluded, however, should a specific requirement considered appropriate for the conservation of a place be found to be not prudent or feasible, section 56(b) of the Land Act would require such a requirement to be not imposed or to be modified. The Heritage Council submitted that, in the absence of contrary evidence, the Tribunal should accept the evidence of the witnesses called on behalf of MGJ Properties and find that there was no viable alternative proposal to the development application either on town planning, urban design or commercial grounds with the result that any specific requirement for its retention would not be a prudent and feasible alternative.

60. The evidence given in the appeal on behalf of MGJ Properties demonstrates, in our view, that development of the site in the manner proposed by the development application is commercially prudent. The extent to which it satisfies planning policies and guidelines is the subject of further consideration in appeals Nos. AT02/124 and AT02/126 which follows. No development options other than those identified by MGJ Properties have been suggested. We are satisfied by the evidence presented in the appeal that those options which would involve the retention of Guardian House or part of it would not result in satisfactory commercial or planning outcomes. Specific requirement 1.1 would not, in our view, be a prudent and feasible measure for the conservation of the heritage significance of Guardian House. It should not, therefore, be included in any interim register as a requirement specified for its conservation. The question remains as to whether "recording" of the building would be a prudent and feasible means of conserving the heritage significance of Guardian House.

61. Although Mr Pegrum considered that some of the components of Guardian House could be recorded, his view was that the building was not of heritage significance when tested against the criteria in schedule 2 of the Land Act. His evidence does not support a conclusion that some form of recording of Guardian House would conserve its heritage significance. Mr Irving also accepted that some components of the building could be recorded but his evidence did not go so far as to say that such a measure would conserve the heritage significance of the building. Both Mr Trickett and Mr Martin rejected the suggestion that a measure of the kind specified in specific requirement 2.2 would be effective in conserving the heritage significance of the building.

62. The weight of the evidence in the appeal does not support a conclusion that the heritage significance of Guardian House would be conserved by the imposition of specific requirement 2.2 or a requirement of that kind.

63. We therefore conclude that the decision of the Heritage Council should be set aside and substituted by a decision that the place should not be entered in an interim heritage places register.

The development application

64. Approval of the development application was opposed by the RAIA in appeal No. AT02/126 and the Woden Valley Community Council in appeal No. AT02/124.

65. The RAIA did not rely on any grounds additional to those relied upon in appeal No. AT03/02. That is, it contended that the entry on the interim register should be confined in its specific requirements to a requirement for the conservation and restoration of Guardian House, thereby preventing its demolition and resulting in a refusal to approval the development application. For the reasons outlined above, we do not accept that submission.

66. The WVCC lodged with the Tribunal a statement of facts and contentions in which it objected to the development application on a number of planning grounds and the claimed failure of the development application to satisfy a number of procedural requirements, particularly those which involve consultation by the development proponent with members of the community who were affected by the development application. The Council's representative, Mr D Menzel, informed the Tribunal at the hearing that it did not intend to present any evidence to the Tribunal but was content to rely upon the material in the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1989 ("the T documents") and answers to questions asked by him of the witnesses who gave evidence for the other parties.

67. The WVCC contended that the development application, if approved, would result in overshadowing of the main pedestrian spine adjacent to the development site, particularly during winter, resulting in the area becoming cold and unattractive. In cross-examination by Menzel, Mr Purdon agreed that a shadow diagram prepared on behalf of the developer showed that the proposed office building would cast a shadow across a part of the pedestrian area at 12 midday in mid-winter. He said, however, that the extent of overshadowing would retreat from the pedestrian area during the normal lunch break period and that the area affected by shadowing would be planted with trees.

68. The Tribunal notes that the shadow diagram referred to by Mr Menzel shows the shadow cast across the pedestrian area covers about one third of the width of that area for a length equal to that of the proposed building. Having regard to the limited extent of the overshadowing and to Mr Purdon's evidence as to the existence of vegetation in that area and the path of the shadow, we do not consider that the overshadowing that will occur is unacceptable.

69. The WVCC contended that the proposed building would create a wind tunnel effect which was not adequately taken into account. In relation to that issue, the T documents include a report of a wind assessment undertaken by consultants on behalf of the developers. It concluded that there would only be a moderate amount of additional wind flow at ground level as a consequence of the proposed development and that wind conditions at ground level would be within the criterion of walking comfort. Those conditions would be significantly better than those around existing buildings in the Woden Town Centre. The report identified the east-west link through the proposed office building at ground level as an area of a potential wind problem. The consultants' assessment was that the proposed link could be within the criterion for walking comfort but would be well in excess of the desirable criterion for short term stationary activities in a main entrance. It was recommended that the position be assessed in full scale when the building was completed but that it should contain provision for two sets of doors which could be installed if found to be necessary after some months of full scale assessment in the windy months from late winter to early summer. Doors, if fitted, would be able to be closed in adverse wind conditions.

70. We note that the east-west pedestrian link is not designed to encourage stationary activity and that it is a condition of the respondent's approval that automatic sliding doors at each end of the link be included in the design proposal without opportunity first being given to the conduct of tests to determine the requirement for them. We consider that compliance with this condition will result in an outcome that does not justify, by itself, refusal of the development application.

71. The east-west pedestrian link through the proposed building was also criticised by the WVCC because, it asserted, it would reduce the capacity for pedestrian and bicycle movement through the link. In the absence of any evidence as to the current volumes or patterns of pedestrian and bicycle movement along the existing pathway, it is not possible for the Tribunal to form a view as to whether there is substance in the Council's criticism. It occurs to us that the existence of automatic sliding doors may give rise to some reduction in access and slowing of bicycle movement but the nature of the area as a pathway through an area containing office development and adjacent to the nearby town centre makes it unlikely that it is suited to fast-moving bicycle travel so as to unduly interfere with bicycle movement. Nor does the objection take account of possible alternative routes for pedestrian and bicycle movement.

72. The WVCC expressed concern at the extent of the site cover of the proposed development and the loss of views from and shadowing of nearby office buildings and the reduction of open landscaped areas currently enjoyed by office workers in the area.

73. A significant part of the site on which development is proposed (Block 57) is currently a landscaped area. A substantial part of it will contain the proposed development resulting in a loss of some of the landscaped space which a number of office workers in the area would prefer to retain. Block 57 has, however, been leased by the Territory for the purpose of office use and such use is provided for by the Territory Plan. An examination of the plans of the proposed development shows, in our assessment, a proposal that will result in the loss of some existing landscaped area, some interruption to views from and shadowing of existing office buildings. The impact of the development in relation to these matters would not, in our view, give rise to a result that is unusual in an office precinct. We note also that there are other nearby areas of open landscaped space with seating provided and that the conditions of approval require some upgrading of public open space at the entrance to the new building. We do not consider that there is a sufficient basis for refusal of the development application in relation to these matters.

74. It is a strategic principle of the Territory Plan that "(b)road community involvement will be a key element in the pursuit of sustainable development ........." (see clause 1.1 Part A2 Strategic Principles of the Territory Plan). The WVCC referred in its statement of facts and contentions to a statement in a document circulated by PALM in May 2002 entitled `Woden Town Centre Design Options Report' and which was said to provide Woden residents with information to assist them understand the design opportunities for the Centre and to provide comments so that a shared vision for Woden was developed. Reference was also made to community effort that had been made in contributing to the development of a Woden Town Centre Master Planning process since mid-2001. The Council's complaint was that there had been a failure to invite the views of key stakeholders in relation to the development application such as local residents and users of the Woden Town Centre and the broader community as well as staff of office buildings as had been suggested by the Design Options Report and the master planning process. This suggested failure was said to be inconsistent with the strategic principle referred to.

75. Clause 9.2(a) of the Part A3 Implementation Policies of the Territory Plan requires that careful consideration be given to "any approved Master Plan applying to the land" in determining whether to approve a development application. There is, in this case, no approved Master Plan for the area, although it appears that one is in the process of development. We gather that the Woden Town Centre Design Options Report may be a preliminary step in the process to the creation of a Master Plan for the Centre. The report was not provided to us in evidence, nor was any other information about proposals for possible development or any vision in respect of the Centre by the planning authority or otherwise. We have no basis, in that event, upon which to come to a conclusion that any future planning ideal for the Woden Town Centre will be compromised by approval of the development application. It should, therefore, be considered on its merits and unaffected by speculation as to what might happen elsewhere in the Centre.

76. Whether the expectations of the WVCC and others as to the degree of community consultation prior to the lodgement of the development application has been satisfied or not, we do not find any sufficient basis upon which to refuse approval to the development application on account of any suggested deficiency in the process. Those persons wishing to object to the development application had opportunity to do so pursuant to section 237 of the Land Act. A number of them, including the Council, did so. It appears to us that the issues raised by them were given consideration by the respondent in arriving at his decision. Opportunity also exists for persons whose interests are affected by the development application to apply to become parties to the appeal (see section 28 Administrative Appeals Tribunal Act 1989). The WVCC has been given opportunity to present evidence and make submissions to the Tribunal. It does not appear to us that the issues raised by the objectors have not been considered or that there has been any lack of opportunity for them to be addressed as part of the process of the making of a decision by the Tribunal.

77. A condition of the respondent's approval (condition 23) required the preparation and retention of a heritage documentation report in relation to Guardian House. For reasons outlined above, we do not consider that the heritage significance of Guardian House would be conserved by the imposition of such a requirement in an interim register or the Heritage Places Register. Nevertheless, we consider that, in view of the assessment of the heritage significance of Guardian House which we have found to exist, it would be appropriate for such a condition to be imposed in relation to any approval of the development application. We note that MGJ Properties has indicated its willingness to have such a report prepared at its expense. We consider that condition 23 should be amended by deleting the words "for this building" and substituting the words "to record its significance".

FORM 33

PUBLICATION DETAILS

TO BE PUBLISHED

To be completed by Member's Staff

________________________________________________________________________

PART A FILE NO: AT03/02

APPLICANT: ACT CHAPTER OF ROYAL AUSTRALIAN INSTITUTE OF ARCHITECTS

RESPONDENT: ACT HERITAGE COUNCIL

PARTY JOINED: MARIA ENTERPRISES PTY LTD, GADKKA PTY LTD & JPK PTY LTD T/A MGJ PROPERTIES

COUNSEL APPEARING: APPLICANT:

RESPONDENT: DR D JARVIS

PARTY JOINED: MR A TSIRIMOKOS

SOLICITORS: APPLICANT:

RESPONDENT: ACT GOVERNMENT SOLICITOR

PARTY JOINED: VANDENBERG REID

OTHER: APPLICANT: MR P COHEN

RESPONDENT:

PARTY JOINED:

TRIBUNAL MEMBERS: MR M H PEEDOM, PRESIDENT

MS P O'NEIL, SENIOR MEMBER

DR D MCMICHAEL, MEMBER

DATES OF HEARING: 25-28 MARCH 2003 PLACE: CANBERRA

DATE OF DECISION: 11 APRIL 2003 PLACE: CANBERRA

_______________________________________________________________________

PART B

RECOMMENDATION:

FULL REPORT (X) CASE NOTE ( ) UNREPORTED DECISION ( )

COMMENTS: