ISPT Pty Ltd v Brisbane City Council [2017] QPEC 52

Planning and Environment Court Rules 2010 (Qld), r 23

Queensland Heritage Act 1992 (Qld), s 20, s 114, s 116, s 117, s 122, s 123

Sustainable Planning Act 2009 (Qld), s 13, s 244, s 246, s 263, s 314, s 324, s 326, s 369, s 372, s 375, s 376, s 387, s 440, s 457A, s 457B, s 462, s 493, s 495, s 704

Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55; [2016] QPELR 963, followed

Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor [2017] QPEC 22; (2017) 222 LGERA 136; [2017] QPELR 487, followed

Eucalypt Group Pty Ltd v Robin [2003] QSC 63; [2003] 2 Qd R 488, considered

Gascoyne v Whitsunday Regional Council & Anor [2010] QPEC 150; [2011] QPELR 373, cited

Jedfire Pty Ltd v Council of the City of Logan & White [1994] QPEC 47; [1995] QPLR 41, followed

Kennedy v Gold Coast City Council & Edward Campbell, Chief Executive of Local Government and Planning [2002] QPEC 86; [2005] QPELR 638, considered

Mahaside Pty Ltd v Sunshine Coast Regional Council & Ors [2010] QPEC 70; [2011] QPELR 23, cited

Multi Span Australia Pty Ltd v Department of Main Roads & Anor [2008] QPEC 14; [2008] QPELR 509, followed.

Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72, applied

Parsons v Redland City Council [2011] QPEC 62; [2011] QPELR 691, followed

Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82; [2014] QPELR 686, applied

C L Hughes QC with A N S Skoien for the co-respondent

[1] This is a submitter appeal commenced by ISPT Pty Ltd ("ISPT"). The appeal is against the decision of the respondent, Brisbane City Council ("Council"), to approve a development application made by the co-respondent, Conias Corporation Pty Ltd ("Conias") to facilitate the partial demolition of the Embassy Hotel, a local heritage place located at 178 Edward Street, Brisbane ("the subject site").

[2] The statement of significance for the Embassy Hotel in the heritage citation is as follows:[1]

"As a four-storey corner hotel erected during the CBD building boom of the 1920s; it is important in demonstrating the evolution or pattern of the City's or local area's history".

[3] The subject site is located on the corner of Edward Street and Elizabeth Street, in the central business district ("CBD") of Brisbane.[2]

[4] The subject site is improved by the Embassy Hotel and a number of retail tenancies at the ground floor, within a building that varies in height from two storeys to five storeys.[3]

[5] The pedestrian entry to the Embassy Hotel is off Elizabeth Street and entry to the retail tenancies is off Edward Street. Cantilevered awnings exist over both street frontages.[4]

[6] Three sets of easements traverse the southern and western boundaries of the subject site. A series of two easements were granted for access purposes along the southern boundary of the subject site (easements B and C), while two further easements for access have been granted along the western boundary of the subject site (easements F and G). A utilities easement (easement H), in favour of Energex Limited, runs the full length of the western boundary of the subject site.[5]

[7] The Embassy Hotel is currently used for a range of hotel activities, including the sale of liquor for consumption on and off the premises, dining, entertainment, poker machines and some "limited" short-term accommodation.[6]

[8] The subject site is in a very heavily trafficked part of the Brisbane CBD and is surrounded by a wide range of retail and commercial buildings, generally much taller than the one on the subject site. The subject building is one of only few "original" older buildings in the CBD.[7]

[9] The adjoining site to the immediate west is the Wintergarden and Hilton Hotel complex: it extends between Queen Street, Edward Street and Elizabeth Street. It is owned by ISPT. To the immediate northwest is a commercial office building owned by 190 Edward Street Pty Ltd.[8]

[10] The Embassy Hotel was originally constructed in 1928. Its original design[9] reflects a Commercial Palazzo building, with four storeys, broken into the base, the shaft and the cornice.[10]

[11] The expert historians agree that the key elements of the fabric of the Embassy Hotel that demonstrate that it is a four-storey corner hotel erected in the 1920s are:

(a) the building being constructed in four storeys, with a later addition;

(b) the main external façade addressing both Elizabeth and Edward Streets, which highlights the corner location; and

(c) the use of a broad approach to the inter-war Commercial Palazzo style, which indicates that it is a building of the 1920s.[11]

[12] The expert historians also agree that the function of the building as a hotel is demonstrated in various elements, including:

(a) the upper levels exterior that demonstrate the original use for accommodation;

(d) the corner entrance (which was formerly the entrance to the public base but is now the entrance to a retail store); and

(e) the carriageway on the Elizabeth Street elevation.[12]

[13] It was the uncontested evidence of Dr Blake that the original design of the Embassy Hotel also involved other key design features indicative of a hotel building in Brisbane in the 1920s, namely:[13]

(a) balconies or balconettes (for guests in some rooms of the hotel);

(b) an open rooftop space (for guests of the hotel);

[14] As Dr Blake explained, the cantilevered awnings were a direct result of the introduction of a Council policy in 1922 to preclude structures in the footpath supporting verandahs over the footpaths. This resulted in a requirement to provide alternative access to outdoor space for hotel residents (on limited balconies and, more broadly, on the open rooftop).[14]

[15] The original plans show a building, effectively the same at all four levels, which is essentially "L" shaped. The length of the "L" is along, and parallel to, Elizabeth Street, almost all the way to the southern boundary of the subject site. The toe of the "L" is perpendicular to Elizabeth Street, jutting into the western half of the subject site. It is well removed, and obscured from view, from the street frontages.

[16] It was this toe of the "L", at the rear, southern end of the original building, which enclosed, on the ground floor, the original private bar, which was the subject of a great deal of evidence in the case.

[17] Contemporary documentary evidence, including the original plans, shows that the ceiling of the private bar was originally constructed in silky oak and plaster, in the form of a wooden coffered ceiling.[15] This original private bar ceiling was the subject of considerable contemporary discussion in both the Courier Mail in 1928 and the Architecture and Building Journal in 1928 and 1929. The wooden detail of the ceiling was consistent with the wooden panelling throughout much of the original Embassy Hotel.[16]

[18] There is no dispute that the Embassy Hotel has undergone substantial alterations since 1928. It is acknowledged that most of those alterations occurred in the last 60 or 70 years.

[19] A dispute exists about when the existing ceiling in the private bar, in an Art Deco design, was put in place. Much of the time during the hearing was spent investigating this factual dispute between the heritage architects and historians about the age of the ceiling. Mr McDonald and Dr Bell, the heritage architect and historian called by ISPT, put the most likely time for the ceiling to have been added as during renovations in 1939.[17] Witnesses for Council[18] and for Conias[19] disputed that and suggested some later time (after the conclusion of World War II in 1945). There is no longer any suggestion that the Art Deco ceiling was original, or even that it was installed in the 1920s. At the earliest, it was installed in 1939.[20]

[20] It is not necessary for me to resolve this factual dispute as all heritage architects made it clear that whether the ceiling was installed in 1939 or at some later time was not material to their views as to the cultural heritage significance of the ceiling.[21]

[21] The internal alterations to the Embassy Hotel have seen the use of various parts of the building change with time. There has been incorporation of buildings to the west of the original building, along with the expansion of the uses into such additional areas.[22] Internal walls, toilets, bathrooms, kitchens, doors, hallways and stairs have all been shifted and altered dramatically over time.[23]

[22] In addition, changes to the hotel have seen:

(a) the enclosure of the open roof top by the addition of a fifth storey, which is readily apparent to anyone looking at the Embassy Hotel from either Edward Street or Elizabeth Street; and

(b) changes to the façade of the building in Elizabeth Street, by way of the addition of four new windows in the façade and the closing of part of two other windows on that external wall.[24]

[23] The development application seeks a preliminary approval for building works for partial demolition of a local heritage place. The proposal involves:

(a) demolition of those parts of the existing building that adjoin the local heritage place (and which are not the subject of this appeal);

(b) demolition of the rear section of the original Embassy Hotel building (including one of the original bar areas);

(c) demolition of the 1970s added top floor of the building (with retention of the original lift overrun);

(d) conservation work to the original building façades in Elizabeth and Edward Streets, including restoration and reconstruction to return them closer to their original 1928 state;

(e) retention of the original suspended street awnings in Elizabeth and Edward Streets;

(f) retention of the added 1958 bottle shop fronting Edward Street; and

(g) installation of new rear walls (where rear demolition occurs).[25]

[24] The proposal can be summarised as involving:

(a) conservation (as that term is properly understood) by way of the renovation and replacement and reinstatement of fenestration of the Elizabeth Street façade of the Embassy Hotel, to return that façade to its original condition, and the demolition of the fifth floor enclosure of the roof top area; and

(b) the partial demolition of the existing building, being the removal of structures in the rear portions of the original hotel and, as stated above, the removal of the entire fifth floor of the hotel, which was a much later (1979) addition to the hotel.

[25] All relevant experts agreed that the proposed changes to the external components of the Embassy Hotel are positive.

[26] ISPT, and its experts, effectively take issue with only two aspects of the internal changes occasioned by the proposed demolition of the toe of the "L" of the original building, namely the loss of the current ceiling in the private bar and the loss of the original timber flooring and rendered masonry walls on upper levels 02, 03, and 04.

[27] The appeal was commenced by ISPT under s 462 of the Sustainable Planning Act 2009 (Qld). Pursuant to s 311 of the Planning Act 2016 (Qld), the appeal is to be decided under the provisions of the Sustainable Planning Act 2009.

[28] Under s 495 of the Sustainable Planning Act 2009, the appeal proceeds by way of hearing anew. It must be decided based on the laws and policies applying when the application was made, but the court may give weight to any new laws and policies the court considers appropriate. Two of the provisions of Brisbane City Plan 2014 ("City Plan") with which there is alleged conflict (performance outcomes PO4 and PO28 of the City Centre neighbourhood plan code) are no longer in effect.

[29] The development application was made on or about 11 May 2016 under City Plan.[26]

[30] As the development application was impact assessable, it is to be assessed having regard to s 314 of the Sustainable Planning Act 2009 and decided in accordance with s 324 and s 326. Pursuant to s 326, a decision must not conflict with City Plan unless, relevantly, there are sufficient grounds to justify the decision despite the conflict.

[31] Conflict means "at variance or disagree with".[27]

[32] The word "grounds" is defined in Schedule 3 of the Sustainable Planning Act 2009 as:

2. Grounds does not include the personal circumstances of an applicant, owner or interested party."

[33] It is for Conias to establish that the appeal should be allowed and the development application approved.[28]

[34] The issues to be determined in this appeal are:

(a) whether approval of the proposed development conflicts with:

(i) the purpose and performance outcomes PO1, PO2, PO3 and PO4 of the Heritage overlay code;

(ii) specific outcome SO19 in s 3.4.2 of the strategic framework;

(iii) performance outcomes PO4 and PO28 of the (now superseded) City Centre neighbourhood plan code;

(b) whether there are sufficient grounds to justify approval of the proposed development notwithstanding conflict with City Plan; and

(c) whether the court has power to grant a preliminary approval for building work, given there is no consent to the building work by third parties who have the benefit of certain easements over the subject land as required by s 65 of the Building Act 1975.

[35] Under City Plan, the subject site is, relevantly:

(a) located in the City centre zone precinct of the Principal centre zone;

(b) included in the City Centre neighbourhood plan area and identified within the Retail precinct; and

(c) subject to the Heritage overlay, which identifies:

(i) an irregularly shaped part of the subject site, which corresponds with the original Embassy Hotel as well as some parts of the Embassy Hotel that have been added well after the original construction,[29] as a local heritage place; and

(ii) the balance of the subject site as an area adjoining a heritage sub-category.[30]

[36] The part of the subject site that is designated as a local heritage place is also included on Council's Heritage Register.

[37] That part of the subject site that is listed as a local heritage place was also allocated transferrable site area under Table 7.2.3.7.3.E of City Plan. Transferrable site area is able to be used on other sites to increase the development potential of other sites (subject to certain limitations).

[38] For impact assessable development, City Plan requires development to be assessed against all identified codes in the assessment criteria column (where relevant) and the planning scheme, to the extent relevant.[31]

[39] The codes that are relevant to an assessment of the proposed development in the context of this appeal are the City Centre neighbourhood plan code and the Heritage overlay code. The Strategic Framework is also relevant.

[40] There is a hierarchy of assessment criteria under City Plan, pursuant to which:

(a) the strategic framework prevails over all other components to the extent of the inconsistency;

(b) state-wide codes prevail over all other components (other than the strategic framework) to the extent of the inconsistency;

(c) overlays prevail over all other components (other than the strategic framework and state-wide codes) to the extent of the inconsistency;

(d) neighbourhood plan codes prevail over zone codes, use codes and other development codes to the extent of the inconsistency; and

(e) zone codes prevail over use codes and other development codes to the extent of the inconsistency.

[41] Insofar as codes are concerned, City Plan contemplates that compliance may be achieved by compliance with the acceptable outcome or the performance outcome or the purpose and overall outcomes of the code.[32] In a neighbourhood plan code, compliance with acceptable outcomes is deemed to achieve the associated performance outcomes and compliance with performance outcomes is deemed to achieve the overall outcomes.[33]

Relevant context regarding development in the City Centre and of heritage places

[42] In Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82; [2014] QPELR 686, Morrison JA observed at 94 [52] that "[t]he same principles which apply to statutory construction apply to the construction of planning documents." As such, it is necessary to consider the context of the provisions that are being construed.[34]

[43] At 95 [56] of that judgment, Morrison JA also observed that:

"The fact that planning documents are to be construed precisely in the same way as statutes still allows for the expressed view that such documents need to be read in a way which is practical, and read as a whole and as intending to achieve balance between outcomes."

[44] Council submits that City Plan has objectives that promote the development of the City Centre.[35] They are evident in the overall outcomes of the City Centre neighbourhood plan code, which:

(a) promote the City Centre as Brisbane's principal commercial and administration centre;[36]

(b) promote the City Centre as the State's largest office employment area and the location of the highest order of business and professional services and government administration;[37]

(c) seek to maximise the return on significant existing and planned investment in infrastructure;[38] and

(d) intend a compact City Centre with built form characterised by high rise office and residential towers, complemented by higher order retail, entertainment, cultural and tourism facilities.[39]

[45] Council submits[40] that City Plan also intends, at various levels, that heritage, including built heritage, is appropriately appreciated, protected and managed.[41] It submits that City Plan does not place an "embargo" on development of heritage places. City Plan contains support for the adaptation or re-use of heritage places where the significance of the heritage place is retained.[42] The Heritage overlay code itself contemplates development of such places. I agree with these submissions.

Is there conflict with the Heritage overlay code?

[46] ISPT alleges conflict with the purpose and performance outcomes PO1, PO2, PO3 and PO4 of the Heritage overlay code.

[47] The purpose of the Heritage overlay code is as follows:[43]

(1) The purpose of the Heritage overlay code is to:

(a) Implement the policy direction in the Strategic framework, in particular Theme 2: Brisbane's outstanding lifestyle and Element 2.1 - Brisbane's identity.

(b) Provide for the assessment of the suitability of development on land in the Heritage overlay.

(2) The purpose of the code will be achieved through the following overall outcomes:

(a) Development on or adjoining a heritage place does not detract from the cultural heritage significance of that heritage place, including any Aboriginal cultural values.

(b) Re-use of a heritage place is compatible with its cultural heritage significance, including any Aboriginal cultural values and retains its heritage significance."

[48] Performance outcomes PO1 to PO4 of the Heritage overlay code are as follows:[44]

Development provides for the future protection of the heritage place and does not damage or diminish its cultural heritage significance.

Note - Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with The Australia ICOMOS Burra Charter.

Development is based on and takes account of all aspects of the cultural significance of the heritage place.

Note - Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter-Cultural Significance.

Development protects the fabric and setting of the heritage place while providing for its use, interpretation and management.

Note - Where necessary, a heritage impact assessment report is prepared verifying the proposal has been prepared in accordance with the Guidelines to the Burra Charter-Conservation Policy.

Development is based on the issues relevant to the conservation of the heritage place.

Note - Where necessary, a heritage impact assessment report is prepared verifying the proposal is in accordance with the Guidelines to the Burra Charter-Procedures for Undertaking Studies and Reports."

[49] No corresponding acceptable outcomes are prescribed.

[50] Each of performance outcomes PO1, PO2, PO3 and PO4 of the Heritage overlay code refer to the Burra Charter.

[51] The Burra Charter "advocates a cautious approach to change".[45] Article 3 of the Burra Charter provides:[46]

3.1 Conservation is based on a respect for the existing fabric, use, associations and meanings. It requires a cautious approach of changing as much as necessary but as little as possible.

3.2 Changes to a place should not distort the physical or other evidence it provides, nor be based on conjecture."

[52] The Burra Charter defines "Cultural significance" to mean "aesthetic, historic, scientific, social or spiritual value for past, present or future generations".[47] The term "Fabric" means "all the physical material of the place including elements, fixtures, contents and objects".[48] Fabric is not limited to external fabric. The term "Conservation" means "all the processes of looking after a place so as to retain its cultural significance".[49]

[53] Article 5.1 of the Burra Charter provides:[50]

"Conservation of a place should identify and take into consideration all aspects of cultural and natural significance without unwarranted emphasis on any one value at the expense of others."

[54] Article 10 of the Burra Charter provides in part:[51]

"Contents, fixtures and objects which contribute to the cultural significance of a place should be retained at that place."

"The contributions of all aspects of cultural significance of a place should be respected. If a place includes fabric...of different periods...emphasizing or interpreting one period...at the expense of another can only be justified when what is left out, removed or diminished is of slight cultural significance and that which is emphasised or interpreted is of much greater cultural significance."

[56] The Explanatory Note to Article 3 records that "the traces of addition ... to the fabric of a place are evidence of its history and uses which may be part of its significance. Conservation action should assist and not impede their understanding."[53]

Identification of the relevant cultural heritage significance

[57] In determining whether the proposed partial demolition of the Embassy Hotel would conflict with the Heritage overlay code, it is necessary to identify the "cultural heritage significance" of the local heritage place.

[58] A note in s 8.2.12.1 of the Heritage overlay code identifies that the Heritage planning scheme policy provides guidance on the preparation of a heritage impact assessment report, as well as describing the process by which local heritage places have been included in the Heritage overlay map.[54] It provides important context for the phrase "cultural heritage significance".

[59] Section 2(1) of the Heritage planning scheme policy provides that a premises can be included in the Heritage overlay in the Local heritage place sub-category if it has one or more of the following cultural heritage values:[55]

"(a) it is important in demonstrating the evolution or pattern of the city's or local area's history;

(b) it demonstrates rare, uncommon or endangered aspects of the city's or local area's cultural heritage;

(c) it has potential to yield information that will contribute to the knowledge and understanding of the city's or local area's history;

(d) it is important in demonstrating the principal characteristics of a particular class or classes of cultural places;

(e) it is important because of its aesthetic significance;

(f) it is important in demonstrating a high degree of creative or technological achievement at a particular period;

(g) it has a strong or special association with the life or work of a particular community or cultural group for social, cultural or spiritual reasons;

(h) it has a special association with the life or work of a particular person, group or organisation of importance in the city's or local area's history".

[60] Section 2(2) of the Heritage planning scheme policy states:[56]

"When a citation is prepared documenting these cultural heritage values, it is to include:

(b) a statement of the history of the local heritage place;

(c) a statement of the cultural heritage significance of the local heritage place."

[61] The citation is intended to assist in the assessment of a proposal against the Heritage overlay code.[57] Where a citation exists, the Heritage planning scheme policy states that it is only necessary to assess the impact of a proposed development by reference to the culturally significant items listed in the citation.[58]

[62] Conias submits that this process for assessing impacts of a proposal on the cultural heritage significance of a place is directly comparable with the process for registering a heritage place under s 20 of the Queensland Heritage Act 1992 (Qld). Conias also made reference to the following findings of this court in Body Corporate for Mayfair Residences Community Titles Scheme 31233 v Brisbane City Council & Anor [2017] QPEC 22; (2017) 222 LGERA 136; [2017] QPELR 487 with respect to the identification of the heritage significance of a place:

"[121] Athol Place was entered in the Queensland Heritage Register on 21 October 1992.[59] Section 20(4) of the Queensland Heritage Act 1992 (Qld), as it applied at the time, provided:

"An entry in the Heritage Register in relation to a registered place must-

(i) by reference to a certificate of title or an official plan of survey; or

(ii) by survey information that enables its boundaries to be clearly and accurately ascertained; and

(c) contain a statement of the history of the place; and

(d) contain a statement of the heritage significance of the place related to the criteria in this Act by which its heritage significance is determined."

[122] It is clear from s 20 that the matters by which the heritage significance of a place are to be determined is limited to the statement of the heritage significance. This is not the approach adopted by Mr Elliott."

[63] I agree that the process for entering a premises on a local heritage register is directly comparable with that for entering a premises on the State heritage register. Section 116 of the Queensland Heritage Act 1992 permits a local government, on its own initiative, to propose to enter a place in its local heritage register, if it is in the local government's area and the local government reasonably considers the place to be of cultural heritage significance. However, before it does so, pursuant to s 117 of the Queensland Heritage Act 1992, the local government must first give the owner of the place notice that identifies, amongst other things, the reasons for the proposed entry.

[64] Under s 114 of the Queensland Heritage Act 1992, the local heritage register must include:

(a) enough information to identify the location and boundaries of the place; and

(b) a statement about the cultural heritage significance of the place.

[65] Section 123 of the Queensland Heritage Act 1992 permits the local government's planning scheme to apply, adopt or incorporate its local heritage register.

[66] Once the entry is made in the local heritage register, pursuant to s 122 of the Queensland Heritage Act 1992, the local government cannot, without the written agreement of the owner of the place, change a statement about the cultural heritage significance of the place unless the change is only to correct a minor error or make another change that is not a change of substance.

[67] This legislative framework reinforces the intention that is evident from the Heritage planning scheme policy, namely that the cultural heritage significance of a place, for the purpose of assessment, is limited to that identified in the statement about the cultural heritage significance of the place contained in the register.

[68] The Embassy Hotel is identified as a local heritage place. A heritage citation was prepared for the Embassy Hotel in June 2006 and was amended in January 2008.

[69] The provisions of the Queensland Heritage Act 1992 with respect to local heritage registers did not commence until 31 March 2008. On their commencement, pursuant to s 194 of the Queensland Heritage Act 1992, a place identified in a local government's local planning instrument as a place of cultural heritage significance for the local government's area was taken to be a local heritage place under the Queensland Heritage Act 1992.

[70] Consistent with the Heritage planning scheme policy and the requirements of an entry on a local heritage register under the Queensland Heritage Act 1992, Council's heritage citation includes a statement of the cultural heritage significance of the local heritage place.

[71] The statement of significance for the Embassy Hotel in the heritage citation is as follows:[60]

"As a four-storey corner hotel erected during the CBD building boom of the 1920s; it is important in demonstrating the evolution or pattern of the City's or local area's history".

[72] The heritage architects agreed to "primarily rely on the statement of significance set out in the revised 2008 Brisbane City Council heritage citation."[61] Following a joint meeting with the expert historians, the heritage architects and the historians agreed that "related matters of cultural heritage significance (such as rarity, aesthetics, creative significance and architectural typologies) can also be considered under this criterion".[62]

[73] When the statement of significance is considered in light of the values for which a premises can be included in the Heritage overlay, it is apparent that the Embassy Hotel was included in the Heritage overlay because "it is important in demonstrating the evolution or pattern of the city's or local area's history". The Embassy Hotel is not identified as significant either in demonstrating "rare, uncommon or endangered aspects of the city's or local area's cultural heritage" or because of its "aesthetic significance".[63]

[74] Accordingly, despite the agreement of the relevant experts, it is the statement of significance, and the assessment of the proposed development's impact on such matters, upon which attention should ultimately focus to determine whether there is conflict with the Heritage overlay code.

Assessment of impact on cultural heritage significance

[75] Mr McDonald, the heritage architect called by ISPT, considered that the proposed development conflicts with performance outcomes PO1, PO2, PO3 and PO4 of the Heritage overlay code. In forming his opinion, Mr McDonald relies on the demolition of internal fabric, namely:

(a) the Art Deco ceiling and the original private bar area and space that embodies that ceiling; and

(b) the original timber flooring and rendered masonry walls on upper levels 02, 03, and 04.

[76] Mr McDonald regards each of these elements of the internal fabric of the building to be "an important aspect of the place's cultural heritage significance which closely relates to the Embassy Hotel as a CBD hotel of the inter-War period".[64] It is Mr McDonald's view that "any early surviving fabric which relates to the inter-War era is likely to be of, at least, some cultural heritage significance and any early surviving fabric which relates to key hotel functions (such as bars and rooming accommodation) is likely to be of, at least, considerable cultural heritage significance".[65]

[77] The existing Art Deco ceiling in the private bar area is depicted in photographs before the court.[66] It is described by Mr McDonald as follows:[67]

• "incorporates elaborate moulded cornices; sweeping curves, bulkheads and pelmets; and a complex but elegant interplay of lines and levels
• is highly (although not completely) intact
• is highly attractive
• is rare (if not unique) in Brisbane hotels
• is an excellent example of Art Deco-style plaster decoration".

[78] As I have noted in paragraph [19] above, the Art Deco ceiling is not original. At the earliest, it was install[68] in 1939.68

[79] Nevertheless, Mr McDonald considers the Art Deco ceiling to be relevant to the cultural heritage significance of the Embassy Hotel because:[69]

"the surviving Art Deco ceiling in the original rear (saloon/private) bar area is consistent with inter-War hotel design and, if not original, is certainly early fabric related to key hotel functions. This fabric and the space which embodies it are considered to be of, at least, considerable cultural heritage significance and are proposed to be demolished. Such demolition would destroy an important aspect of the place's cultural heritage significance which closely relates to the Embassy Hotel as a CBD hotel of the inter-War period."

[80] Mr McDonald also opines, with respect to the Art Deco ceiling, that:[70]

"such an early, intact, rare and important characteristic element of the Embassy Hotel as the Art Deco bar ceiling could not reasonably be considered as having little or no cultural heritage significance. Even if one were to adopt Mr Kennedy's graded scale of relative significance of the various hotel elements (ie. A: elements of cultural heritage significance / B. elements of minor or no cultural heritage significance / C: elements that are intrusive at point 31.3), the Art Deco bar ceiling forming a highly conspicuous part of the original saloon/private bar space would certainly not be considered to be an intrusive "C" element or a minor or non-significant "B" element but would rightly and fairly be assessed as being an "A" element of cultural heritage significance. By Mr Kennedy's own accepted practice (with which I concur), "A" elements should be preserved, maintained, restored or reconstructed as appropriate. They should not be demolished as is proposed."

[81] Mr McDonald explained in his individual statement,[71] consistently with his opinion in the extracts from the Joint Report above:

"For the reasons set out in the heritage architects' joint report and supplementary joint report and further elaborated on in this statement of evidence, I am of the opinion that:

(a) the existing rear bar (originally the Private Bar) continues to operate as a bar in the original bar space

(b) the existing rear bar is a key hotel function which has been in continuous use since 1928

(c) the existing rear bar contains significant early fabric in the form of an elaborate and intricately detailed Art Deco ceiling

(d) it is not necessary for fabric to be original in order to be significant and subsequent alterations can and (in the case of the rear bar ceiling) do engender cultural heritage significance

(e) the surviving Art Deco ceiling in the original rear bar is an early, highly intact, rare and important characteristic of the Embassy Hotel and is of considerable cultural heritage significance

(f) the surviving Art Deco ceiling in the original rear bar is a significant example of the Art Deco decorative style in Brisbane architecture and should be retained insitu."

[82] As to the fact that the Art Deco ceiling does not relate to the 1920's period, Mr McDonald noted that it "doesn't mean that it isn't a significant component of a 1920s hotel, meaning a hotel constructed in the 1920s."[72]

[83] In addition to demolition of the Art Deco ceiling and the space of the original bar that embodies that ceiling, other internal fabric that Mr McDonald regards as of cultural heritage significance is proposed to be demolished. He observes:[73]

"the surviving timber flooring and the rendered masonry passageway walls on upper levels 02, 03 and 04 appear to be original. The presence of modern carpet over the timber flooring is easily reversible and does not diminish the significance of the original timber flooring. This fabric and the accommodation room layout that it demonstrates is considered to be of moderate cultural heritage significance and is proposed to be demolished. Such demolition would destroy an important aspect of the place's cultural heritage significance which closely relates to the Embassy Hotel as a CBD hotel."

[84] Dr Bell, the historian called by ISPT, also opined that the proposed development would result in an unacceptable impact on the cultural heritage significance of the Embassy Hotel. Dr Bell's concerns, like that of Mr McDonald, were premised on the basis that demolition of the Art Deco ceiling would unacceptably damage and diminish the cultural heritage significance of the Embassy Hotel.[74]

[85] It is not necessary, under the principles of the Burra Charter or general heritage conservation practice, for fabric to be original in order to be significant.[75] The fact that the Art Deco ceiling was installed later, and not in 1928, does not necessarily demonstrate that the ceiling is of no significance. Mr Kennedy accepts that whether the ceiling was installed in 1939 or 1951 it has "some" cultural significance.[76] He accepted that the Art Deco ceiling "is probably rare for what it is".[77]

[86] However, as I have observed in paragraph [74] above, in determining whether there is conflict with the planning scheme, given the existence of a heritage citation, the relevant exercise does not involve an assessment of the cultural heritage significance at large. The relevant consideration is the impact of the proposed development on the cultural heritage significance of the building identified in the statement of significance.

[87] ISPT submits that the reference to the "hotel" encapsulates both the external façade of the hotel and the internal aspects of the hotel that identify the building as a hotel (such as the private bar).[78] It submits that the approach of Dr Bell is correct when he explained in his oral evidence as to the statement of significance:[79]

"... I take the description of it as a four-storey hotel to mean the substantial whole of the building, normally. It certainly - there's nothing here to describe the building as a façade, as street frontage or streetscape contribution or any words like that, although the citation is rather deficient in what it says about the interior of the building, but describing it as a hotel, to me means the whole of the hotel."

[88] Ultimately, ISPT submits that a decision to approve the proposed demolition of the internal fabric, comprised of the Art Deco ceiling and the original timber flooring and rendered masonry walls on upper levels 02, 03 and 04, would result in conflict with:

(a) PO1 of the Heritage overlay code because the development does not provide for "the future protection of the heritage place", rather it seeks to destroy significant parts of the heritage place. Further, the proposed development will "damage or diminish its cultural heritage significance" because internal fabric that is of cultural heritage significance is proposed to be demolished;

(b) PO2 of the Heritage overlay code because the development is not based on, and does not take account of, "aspects of the cultural significance of the heritage place", but rather destroys aspects of the Embassy Hotel's cultural heritage significance;

(c) PO3 of the Heritage overlay code because the proposal does not "protect the fabric and setting of the heritage place while providing for its use, interpretation and management", but rather destroys significant internal fabric;

(d) PO4 of the Heritage overlay code because the development is not "based on the issues relevant to the conservation of the heritage place", but rather is based on demolition of parts of the heritage place; and

(e) the Overall Outcomes of the Heritage overlay code because the development will "detract from the cultural heritage significance" of the heritage place by destroying aspects of the cultural heritage significance.

[89] There is no doubt that the proposed development involves, in part, demolition of the Art Deco ceiling and original timber flooring and rendered masonry walls. The issue is whether that results in a significant and unacceptable impact on the cultural heritage significance of the Embassy Hotel.

[90] There are a number of things that should be noted about the cultural heritage significance of the Embassy Hotel.

[91] First, the statement of significance in the heritage citation[80] does not expressly refer to either the external appearance or the internal fabric of the Embassy Hotel. However, the cultural heritage significance of the Embassy Hotel is not simply its status as a hotel: its cultural heritage significance is:

"As a four-storey corner hotel erected during the CBD building boom of the 1920s; it is important in demonstrating the evolution or pattern of the City's or local area's history."[81]

[92] Second, consistently with the Heritage planning scheme policy, the heritage citation for Embassy Hotel includes a description of the local heritage place and a statement of the history of the local heritage place. That further information in the citation provides important context that assists in understanding the statement of cultural heritage significance of the local heritage place.

[93] The summary in the heritage citation records that:[82]

"The Embassy Hotel was built in 1928 during Brisbane's interwar building boom. It is one of eight remaining pre-World War II corner hotels in Brisbane's Central Business District (CBD), and the only one erected during the interwar period. Designed in the Interwar Commercial Palazzo style, the building is an unusual example of architect Jack Donoghue's work and, along with Invicta House and Pioneer House, provides the south side intersection of Edward and Elizabeth Street with a distinct interwar presence."

[94] With respect to the history of the local heritage place, the heritage citation, relevantly, states:[83]

"... On 10 December 1928, after providing a floor-by-floor description of the building, the journal reported that the hotel expected to be ready to serve and accommodate customers by early January 1929. The hotel was built with two entrances, with the main entrance in Edward Street. The ground floor contained a bar, while the first floor contained a public lounge and a two-bedroom private suite. The third and fourth floors were devoted to guests' bedrooms and the flat roof was laid out as a garden for visitors to enjoy.

The 1920s was a period of economic prosperity in Queensland and this was refleted in the building program occurring in the state's capital, particularly its CBD. As a result, many of the CBD's hotels were refurbished and remodelled, including the Victory Hotel and the Exchange Hotel further along Edward Street. The importance of providing Brisbane with modern hotels at this time was explained in The Architectural & Building Journal of Queensland:

banks and hotels are among the chief reflectors of civic enterprise, success and stability. In the last five years, Brisbane has enlarged its business scope to an extent that finds due expression in the proportions of its new buildings.

The Hotel Embassy was specifically mentioned as one of the new buildings that reflected Brisbane's success. Indeed the construction, across from the Hotel of Invicta House in 1923 and nearby Pioneer House in 1924, gave the south side of the Edward and Elizabeth Street intersection a very modern appearance as a result of the CBD's interwar building boom.

As would be expected of a business that has to stay abreast of ever changing trends in hotel patronage, the Hotel Embassy has undergone a number of makeovers throughout the years. The main changes occurred after Brisbane's major brewery Castlemaine Perkins acquired the hotel in 1939. In 1958, a shop was added to the Edward Street side of the hotel site. Alterations and additions were made in 1951, 1953, 1963, 1968, 1970, 1977 and 1981, resulting in the gradual removal of all of the original ground floor interiors. In 1979, Castlemaine Perkins removed the roof garden to add a fifth floor to the hotel. In 1999, a $1.5 million refurbishment occurred that was designed to "reinstate the pub's 1970s reputation as the place to be".

Corner pubs within the CBD became familiar landmarks by which the public could easily identify a particular intersection. ..."

[95] The description of the Embassy Hotel in the heritage citation is in the following terms:

"This four-storey hotel is a brick, concrete-floored, steel-framed building with basement. The original roof garden was replaced by a fifth floor in 1979.

The exterior of this Interwar Commercial Palazzo style building is light brown face brick with an emphatic cornice above the original top floor. The piers are emphasised and waving balconies feature at what was originally the top floor. The first floor features decorative keystones above the window arches. All windows are vertical. In 1958 a shop in the same face brick with a contemporary façade was added to the Edward Street side of the hotel site.

The original ground floor contained public and private bars, lounges, offices and restrooms. A bottleshop was located on the Elizabeth Street side. The first floor contained a large dining room, kitchen and various offices, sitting rooms, lounges and bedrooms. The upper floors comprised bedrooms, some with private bathrooms and a lounge on each floor. Electric elevators served all floors.

A number of makeovers from 1951 caused the removal of all original ground floor interiors, changed the street-level facades and most of the pressed metal lining to the cantilevered awning. Aluminium windows have replaced the original sashes.

In particular, the Hotel Embassy retains some of its 1928 fabric: basement entrance, private bar entrance, suspended awning, a relatively intact façade, balconettes, upper floors' metal window frames and some corridor walls."

[96] The "description" given in the citation is informative. It refers to the exterior of the building in the present tense, but the internal aspects in the past tense. It also notes a number of "makeovers" from 1951 having caused the removal of all original ground floor interiors. The only internal items referenced in the description of the 1928 fabric are "some corridor walls".

[97] The text of the statement of cultural heritage significance of the Embassy Hotel, considered in the context of the overall citation, indicates that significant features of the Embassy Hotel include:

(a) the commercial palazzo style, which is associated broadly with the whole of the inter-war period from 1919-1940 and is characterised by a base, shaft and cornice;[84]

(e) the corner location of the building, with entrances off each street.

[98] Third, the features identified in the heritage citation are consistent with the undisputed expert evidence about the key design features of the Embassy Hotel that are indicative of a four-storey corner hotel erected during the CBD building boom of the 1920s. The features identified by the experts are:

(a) the building being constructed in four storeys (with the later fifth storey addition being identifiable);

(b) the main external façade addressing both Elizabeth and Edward Streets, which highlights the corner location;

(c) the use of a broad approach to the inter-war Commercial Palazzo style indicates that it is a building of the 1920s;

(d) the upper levels exterior that demonstrate the original use for accommodation;

(g) the corner entrance (which was formerly the entrance to the public base but is now the entrance to a retail store);

(h) the carriageway on the Elizabeth Street elevation;

(i) balconies or balconettes (for guests in some rooms of the hotel);

(j) an open rooftop space (for guests of the hotel);

[99] The evidence of Dr Blake explained the significance of these features, particularly with respect to how they demonstrate the "evolution or pattern or the City's or local area's history". He explained the logical rationale for the statement of significance, namely that the "use of a broad approach to the inter-war commercial palazzo style indicates that it is a building of the 1920s".[86] The other key element is that, as a consequence of a 1922 Council policy, all new awnings over footpaths in the principal business streets were to conform to the cantilever design. Consequently, the cantilevered awning was a defining feature of 1920s hotels in the Brisbane CBD. That, in turn, had other consequences for hotel design. Prior to then, hotels had awnings supported by posts, with verandahs on the upper levels. With a cantilevered awning, guests no longer had immediate access to outdoor space. That difficulty was overcome with useable roof space accessible by a lift.[87] The balconettes on the exterior are also a consequence of the cantilevered awning.[88] The inclusion of the lift in the Embassy Hotel was also a distinctive element in 1920s hotels.[89]

[100] Dr Bell, the historian called by ISPT, did not dispute Dr Blake's identification of the defining features of a 1920s CBD hotel, nor the explanation of the cultural heritage significance of the Embassy Hotel provided by Dr Blake. His concerns, like that of Mr McDonald, were premised on the basis that demolition of the Art Deco ceiling would unacceptably damage and diminish the cultural heritage significance of the Embassy Hotel.[90] During cross-examination, Dr Bell acknowledged that the heritage citation did not include, as significant, the Art Deco style bar. He regarded that as a deficiency in the Citation.[91]

[101] Considered in that context, the opinions of Mr McDonald and Dr Bell, that the demolition of the Art Deco ceiling and the original timber flooring and rendered masonry walls on the upper levels would result in an unacceptable impact on the cultural heritage significance of the Embassy Hotel, do not take appropriate account of the statement of significance.

[102] There is nothing in the statement of significance in the heritage citation that refers to the Art Deco ceiling. The citation does refer to the fact that the building is a hotel, but that does not mean that the heritage significance of the Embassy Hotel requires the retention of a bar within the building.

[103] All of the culturally significant features, other than the internal features of the lift, are external and address the corner location referred to in the statement of significance.[92] None are affected by the partial demolition.

[104] Further, with the proposed works, the original roof space will be reinstated. The lift and its over-run will also be more clearly observable externally.[93]

[105] The removal of the fifth floor is appropriately classified as restoration according to the Burra Charter, as it would restore the Embassy Hotel to its original four storeys.[94] The proposed works to façades, including the reinstatement of the original opening on the Elizabeth Street façade at the upper levels, are classified as reconstruction under the Burra Charter. Dr Blake considered those aspects to be a "clearly positive conservation outcome" and one that protects some of the key heritage values of the place.[95]

[106] The experts called by ISPT also acknowledged that the works on the façade and the removal of the fifth level were significant positives from a heritage perspective.

[107] I prefer and accept the evidence of Dr Blake, Mr Kennedy and Mr Scott. Unlike Mr McDonald and Dr Bell, they each took appropriate account of the statement of significance in their assessment.

(a) the removal of the Art Deco ceiling would not diminish the cultural heritage significance of the place as the significant fabric that demonstrates the building's value as a four-storey corner hotel built in the 1920s will be retained;[96]

(b) the proposed works include demolition, restoration and reconstruction. The principal demolition works involve the "L" wing at the rear of the building. Almost no original fabric remains in that section, apart from some timber flooring and external brickwork. Successive renovations have resulted in the loss of most fabric and the original planning. All of the original openings on the back wall have been altered. The demolition of that wing would only result in the loss of fabric of minor significance;[97]

(c) with the proposed works, the building would still be clearly understood as a 4-storey corner hotel built in the 1920's that demonstrated the pattern of development in the Brisbane CBD, particularly given the retention of the cantilevered awnings (which is a signature feature of 1920s CBD hotels);[98]

(d) "The statement of significance in the Heritage citation defines the significance of the Embassy Hotel as comprising three elements (a) a 4-storey hotel, (b) a corner hotel and (c) a hotel built during the 1920's building boom. These attributes have all been taken into account in the proposed development. Indeed, a key part of the development will be to restore it to the original four storeys and reinstate the original openings. The Heritage citation makes no reference to any significant interiors or that the heavily modified L wing is of significance";[99]

(e) "The fabric that demonstrates the significance of the Embassy Hotel will be protected. This fabric includes the Elizabeth and Edward façades, the balconettes, the private bar entrance in Elizabeth Street, the former entrance to the public bar on the corner, and the cantilevered awning. This is the fabric that substantially demonstrates the building is a four-storey corner hotel built in the 1920s";[100]

(f) the proposed development does not impact adversely on the setting. It remains a prominent and distinctive building on the corner of Edward and Elizabeth Streets;[101] and

(g) the proposal is to allow for new uses. Article 15.1 of the Burra Charter recognises that change may be necessary to retain cultural significance.[102]

[109] Mr Kennedy explained how the cultural heritage significance was demonstrated in the remaining fabric of the Embassy Hotel.

[110] The remaining original external features that Mr Kenney regarded as of cultural heritage significance include the four-storey external façades, and the corner truncation which provides the Hotel's distinctive corner qualities. Those external façades demonstrate its specific use as an inter-war corner hotel as distinct from other inter-war building types, such as banks or offices. The rear portion and rear façades, which are not obvious from the street, were considered by Mr Kennedy to make little, if any, contribution to the identified cultural heritage significance. He did not regard the top floor, added in 1979, to be of cultural heritage significance, and opined that it is intrusive.[103]

[111] The remaining original internal features include:

(a) the unaltered functional spaces including the lift, stairs and its lobby;

(b) the Elizabeth Street entry and the corner entry into the retail space;

(c) remnants of the terrazzo floor outside the bar on the ground floor;

(d) remnants of the original hotel rooms and corridors on the upper floors, which have been highly altered and, in Mr Kennedy's view, do not demonstrate in any meaningful way how the original hotel functioned;

(e) remnants of brick walls in the bar area on the ground floor, which have also been highly altered and, in Mr Kennedy's view, do not demonstrate in any meaningful way how the original bar functioned; and

(f) the ceiling, which is thought to have been constructed in the early 1950s and which Mr Kennedy regarded to be of "minor" cultural heritage significance.[104]

[112] With those matters in mind, Mr Kennedy considered that the proposal would protect the cultural heritage significance of the Embassy Hotel and not diminish it on the basis that:

"(a) the proposal will provide for the conservation of the Embassy Hotel facades in both Elizabeth and Edward Streets. Conservation actions include the restoration and reconstruction of windows, doors, brickwork and other features above the cantilevered awning ... This work will restore aspects of the Embassy Hotel's cultural heritage significance and is in accordance with Article 18, 19 and 20 of the Burra Charter.

(b) Conservation actions identified on these drawings also include the demolition of the 1979 top floor of the building which is considered to be intrusive as discussed in 20.3.1(a) above. This will allow the building to be better appreciated and understood in its original form.

(c) The demolition of rear portion (sic) of the building as shown on Cottee Parker drawings, including the demolition of portion of the remnants of the private bar on the ground floor and remnants of the original hotel accommodation above which are of minor cultural heritage significance, will not diminish the cultural heritage significance of the Embassy Hotel in any meaningful way".[105]

[113] Mr Kennedy also opined that the use of a place is of cultural heritage significance only if the components of it continue to demonstrate that use. I agree: the use must reflect the use that is of cultural heritage significance. In this case, it is as a corner hotel erected in the 1920s.

[114] As was explained by Mr Kennedy, the hotel use component is now restricted to the ground floor private bar and basement gaming room/bar, both of which display very little original fabric, and are of minor cultural heritage significance.[106] The majority of the Embassy Hotel at ground level has been adapted for retail use, and the other floors for backpacker accommodation. The internal features which were once important in demonstrating the use of the building as a hotel have all been removed. They include the main corner public bar, bar space and internal fabric; most, if not all, of the original hotel accommodation rooms; the original hotel bathrooms; the public hotel lounge; the private hotel lounges; the hotel dining room; the rooftop recreation area for guests; and the basement cellars.[107]

[115] I accept the evidence of Mr Kennedy that:[108]

"The cultural heritage significance which demonstrates the former use of the Embassy Hotel is now embodied in the remaining external features of the building as discussed in 20.3.1(c). The proposal conserves those features and is in accordance with the definition of "conservation" in the Burra Charter which means all the processes of looking after a place so as to retain its cultural heritage significance."

[116] In response to Mr McDonald's assertion that there was substantial internal fabric that was a significant aspect of the Embassy Hotel's cultural heritage significance, Mr Kennedy analysed the original 1928 floor layout (from the Fryer Library drawings); the floor layout as it existed in 1999; the 1999 renovations to the floor layout; and the 2002 renovations to the floor layout.[109] That exercise led him to the conclusion that:[110]

"The drawings show that the internal layout of the basement, ground, first, second and top floors have all been substantially altered. As a consequence most of the original internal features and fabric of the building no longer exist. This is particularly so in a section of building proposed for demolition which has been subjected to considerable change and contains only remnants of original fabric. In my opinion these remnants do not constitute 'substantial' fabric of cultural heritage significance as claimed by Mr McDonald."[111]

[117] Mr Scott, the heritage architect called by Council, noted the positive heritage outcomes of the proposal; that the changes to the ground floor Elizabeth Street façade were of little consequence, as that part of the building had been considerably changed in the past; that the internal partitions and remnant timber flooring of the accommodation levels were "unrecognisable as 1920's building fabric"; that the rear wing of the building to be demolished is not visible from either street frontage, and has no features of significance to lead to refusal; and that the resulting building form would continue to be a landmark on the street corner.[112]

[118] In the circumstances, I am satisfied that there is no conflict with the Heritage overlay code.

[119] Further, even if it were appropriate to have regard to matters of cultural heritage significance not mentioned in the statement of significance, or the heritage citation more generally, I am still satisfied that there is no conflict with the Heritage overlay code. I accept the evidence of Mr Kennedy and Mr Scott that the cultural heritage significance of the Art Deco ceiling and the original flooring and walls is no more than minor and does not warrant preservation. It is not sufficient to give rise to conflict with the assessment criteria in the Heritage overlay code, in which the notion of reasonableness is inherent.[113]

Is there conflict with the strategic framework?

[120] ISPT alleges that a decision to approve the proposed development would conflict with specific outcome SO19 of Table 3.4.2.1 of the Strategic Framework, which provides as follows:[114]

Brisbane's important buildings and places that are important to the city's history are protected.

Heritage places and precincts of important local, city-wide or State cultural heritage significance or special significance to Aboriginal people are identified and protected in accordance with the principles of The Burra Charter: The Australia ICOMOS Charter for Places of Cultural Significance.

The adaption or re-use of heritage places for purposes that retain the significance of the place is supported.

Development in or adjacent to identified heritage places or precincts protects the cultural heritage significance of the place or precincts.

[121] ISPT submits that the conflict arises for the same reasons as the alleged conflict with the Heritage overlay code. It is accepted that the Embassy Hotel is an important building and place in the City's history, and that the proposal seeks demolition of substantial internal fabric. However, for the reasons outlined in paragraphs [57] to [119] above, I am satisfied that approval of the proposed development, including the demolition of part of the original fabric of the Embassy Hotel and the Art Deco ceiling, would not conflict with specific outcome SO19 of Table 3.4.2.1 of the Strategic Framework.

Is there conflict with the City Centre neighbourhood plan code?

[122] ISPT alleges that a decision to approve the proposed development would conflict with performance outcomes PO4 and PO28 of the City Centre neighbourhood plan code.

[123] At the time the development application was made (i.e. 12 May 2016), performance outcomes PO4 and PO28 of the City Centre neighbourhood plan code were in the following terms:[115]

Building form, height, gross floor area and site cover

Development on sites allocated transferable site area in Table 72.3.7.3.E conserve those sites without altering or modifying the building and its sites.

Development involving demolition does not occur unless required to facilitate redevelopment.

Development involves demolition only if a development permit has been issued for building work for the redevelopment intended to replace the demolished building, and there is a committed program of work to undertake the development.

Note-A committed program can be demonstrated through a statutory declaration from the landowner that within 3 months of demolition, building work will commence on the site to implement an existing development permit.

[124] At the time of the development application, Table 7.2.3.7.3.E of the City Centre neighbourhood plan code was entitled "Sites allocated transferrable site area".[116] It contained the following entry:

[125] Since the development application was made, City Plan has been amended. On 23 March 2017, proposed amendments, that were advertised some seven months prior to the lodgement of the development application, came into force. Those amendments included the removal of performance outcomes PO4 and PO28 from the City Centre neighbourhood plan code.

[126] Pursuant to s 495(2)(a) of the Sustainable Planning Act 2009, this court can give weight to those amendments if it considers it to be appropriate.

[127] There is no dispute that the proposal involves "altering or modifying" the Embassy Hotel. The issue in contention with respect to performance outcome PO4 is whether it ought be construed strictly to effect a prohibition on all alterations or modifications to a building or site.

[128] Council submits that, consistent with the usual approach of the court, a notion of reasonableness ought be inferred. It says that to do so would not only be consistent with authority,[117] but would represent a logical approach that, for example, would not thereby preclude work such as the commendable restoration work associated with the façade and the removal of the fifth floor. That is, it would accord with the proper approach of construction of planning instruments in a practical and common sense way.

[129] ISPT submits that the proper construction of performance outcome PO4 is that sites, such as the present site, that are allocated transferrable site area are to conserve the site, and such conservation is achieved by not "altering or modifying the building and its sites". It submits the words are clear and unambiguous. What the scheme contemplates is that, in recognition of the burden of not altering or modifying a building on identified heritage sites, the site is allocated transferrable site area that can be sold or transferred to permit enhanced development rights for a different, receiving, site.

[130] Performance outcome PO4 appears to be drafted in absolute terms. When read in the context referred to by ISPT, one can appreciate why a qualifying adverb such as "unacceptably" or "unreasonably" ought not be inferred. However, it is appropriate to infer a notion of reasonableness given the object of the provision is the conservation of the heritage place on the subject site. A strict reading would prohibit or discourage conservation works, such as the reinstatement of the Elizabeth Street windows and the removal of the fifth floor that are proposed here.

[131] However, even if a strict approach to performance outcome PO4 was applied, in this case, for the reasons given in paragraphs [132] to [138] below, I consider that:

(a) any conflict with the provision, properly construed, would be technical and inconsequential; and

(b) there are compelling grounds to overcome the conflict and justify a decision to approve.

[132] First, Performance outcome PO4 is concerned with appropriate heritage conservation. Here, I am satisfied that the proposal does not result in any adverse heritage consequence. In fact, the proposed works will enhance the cultural heritage significance identified in the statement of significance.

[133] Second, although performance outcome PO4 may be characterised as one that allocates transferrable site area that can be sold or transferred to permit enhanced development rights for a different, receiving, site in recognition of the burden of not altering or modifying a building:

(a) the full allocation of transferrable site area for the Embassy Hotel remains unused;[118]

(b) Council has now amended City Plan to remove performance outcome PO4. This indicates that the provision is now out of date due to changing circumstances;[119] and

(c) the current scheme provisions with respect to the transferrable site area do not permit use of transferrable site area on another site if the land the subject of the allocation is substantially developed.[120]

[134] On the issue of the weight to be afforded the changes to City Plan, Mr Lyons' evidence is that the new City Centre neighbourhood plan code, which has now taken effect, might typically be given some weight in the decision-making process as "contemporary planning policy". However, he suggests that in this case it would be inappropriate to do so on two bases, namely the absence of an Urban Context Report and the absence of a redevelopment proposal.[121]

[135] Mr Lyons' rationale for his departure from the "norm" is unfounded.

[136] As to the first basis, both the Joint Expert Report[122] and his cross-examination confirms that he had proceeded on the assumption that the new City Centre neighbourhood plan code "required" the preparation of an Urban Context Report. Cross-examination, and analysis of the new City Centre neighbourhood plan code itself, confirms that there is no such requirement. An Urban Context Report is only called up as a note to several of the acceptable outcomes. Other notes within the new City Centre neighbourhood plan code do not elevate it to a requirement. Mr Lyons' suggestion in re-examination that it is common practice that one be required cannot alter a proper construction of City Plan.

[137] Mr Lyons' sought to make the point that he had not seen an assessment of the proposal against the new City Centre neighbourhood plan code including an Urban Context Report "addressing PO1".[123] Aside from the fact that the Urban Context Report is only referred to as a note to the acceptable outcome, Mr Lyons was unable to identify any conflict between this proposal and performance outcome PO1 in any event. Moreover, whilst being prepared to suggest that the court should not give weight to the new City Centre neighbourhood plan code on the basis of an absence of an Urban Context Report, Mr Lyons was unable to clearly articulate what information was lacking.

[138] The second basis for Mr Lyons urging upon the court that the new City Centre neighbourhood plan code not be attributed weight was the "absence of ... a redevelopment proposal".[124] A similar difficulty arises with that proposition. Like the Urban Context Report, there is no obligation or requirement upon a proponent to lodge an application for redevelopment at the time of application for demolition.

[139] Accordingly, I am satisfied that whatever conflict might arise with performance outcome PO4, there are more than sufficient grounds associated with this proposal to warrant approval.

[140] PO28 is of general application, rather than being specifically related to heritage issues.

[141] It is accepted by all of the parties, and their town planning experts, that acceptable outcome AO28 is not complied with.

[142] Conias has not applied for a development permit for any redevelopment, nor has it led any evidence as to the redevelopment that it intends to undertake. Conias has not outlined any intentions or work program in terms of timing of redevelopment.

[143] ISPT submits that the correct conclusion is that there is conflict with performance outcome PO28 because it is unknown whether the demolition is actually required to facilitate redevelopment and to what extent such demolition is required. It submits that one cannot sensibly consider and assess whether demolition is actually required to facilitate redevelopment, in terms of performance outcome PO28, unless one has at least some understanding of an intended redevelopment.

[144] Conias has proposed that the potential conflict with performance outcome PO28 can be adequately addressed by a condition to the effect that "no demolition occurs until a development permit is in force which allows for appropriate new redevelopment to occur on the balance of the site."[125]

[145] ISPT submits that a condition cannot resolve conflict with performance outcome PO28 of the City Centre neighbourhood plan code. It says that a condition, such as that proposed by Conias, does not address whether the demolition is actually "required to facilitate redevelopment", which is what performance outcome PO28 calls for. It submits, for example, that there may be tension between the proposed demolition and what is ultimately "required to facilitate redevelopment" consistent with any subsequent development permit. Further, the condition suggested does not address any issues about timing or the period between demolition and any redevelopment.

[146] IPST submits that Mr Lyons' opinion on this issue should be accepted,[126] including as follows:[127]

"In my opinion, the separation and reverse sequence of this assessment (for demolition) from a future assessment (for development) fetters the ability of an assessment manager to properly consider contextual matters as sought under City Plan, particularly for a site that is located in one of the most heavily trafficked areas of the City Centre and given the City Plan's identification of the importance of heritage places to the identity of the City. The interplay between heritage and site considerations are particularly complex and one can have a bearing upon the other. In a sensitive heritage context, it is important to take a cautious approach and consider any heritage demolition, at the same time as a redevelopment proposal."

[147] As is submitted by Conias,[128] the words of performance outcome PO28 should not be read as either requiring a development permit to be in place for any redevelopment of the site or requiring some defined and identified redevelopment proposal for the site.[129] To do either would be to construe performance outcome PO28 out of context and to treat acceptable outcome AO28 as the only way to satisfy performance outcome PO28.

[148] The proper construction of performance outcome PO28, in adopting the purposive approach (particularly when the heritage provision is read in context), is one that ensures that the City Centre is not impacted by derelict sites (that is, where demolition has occurred and no rebuilding has taken place). That purpose is not impacted or defeated by the proposed development, which intends to retain and reinstate the culturally significant and important parts of the Embassy Hotel.

[149] Conias submits that, given the relatively small site and the fact that the heritage place only covers an irregularly shaped part of the site, it is entirely unreasonable for the developer to be put to the delay, expense and risk of a detailed redevelopment proposal (involving construction plans) to determine the extent of new development allowable and the extent of the existing building that needs to be retained.

[150] It also submits that the approval can be conditioned, if necessary, to prevent demolition until approval of a redevelopment proposal, although it says this is not necessary to satisfy performance outcome PO28.

[151] I accept that, when read in context, the purpose of performance outcome PO28 is to ensure that the City Centre is not impacted by derelict sites. In those circumstances, a decision to approve the proposed development subject to a condition that no application for a development permit for demolition be lodged until a development permit for building work for redevelopment of the site has been received would ensure that the local heritage place does not become a derelict site. I am not persuaded that a condition is unnecessary, given it is difficult to appreciate how the remnant of the building could continue to be used (ensuring the site does not become derelict) if the proposed works were undertaken in advance of a building approval for the new development.

[152] Accordingly, I am satisfied that any conflict is at the lower end of the scale and is readily overcome by grounds, given:

(a) PO28 has no analogue in the current planning scheme;

(b) any further development application concerning the subject site will require assessment against the new City Centre neighbourhood plan code and the heritage provisions in the planning scheme;

(c) the proposed development involves improvements to the façade and the removal of the fifth level of the building. These are undoubtedly matters of considerable public interest. They are directly responsive to the identified cultural heritage significance of the place. They will enhance that cultural heritage significance. It is also a very positive outcome having regard to the range of heritage provisions that Mr Lyons pointed to as demonstrating the City Centre neighbourhood plan code approach to matters of heritage.[130] As was established during the cross-examination of Mr Lyons, those provisions have a heavy emphasis upon external appearance and streetscape character; and

(d) the proposal will facilitate the purpose and a number of the overall outcomes of the City Centre neighbourhood plan code without adverse impacts, which I regard to be a matter of public interest.

Conclusion regarding merits of the proposed development

[153] For the reasons explained above, I am satisfied that, to the extent that a decision to approve the proposed development conflicts with City Plan, there are sufficient grounds to overcome the conflict.

[154] The Appellant has raised an issue about whether the court has power to grant a preliminary approval for building work given there is no consent to the building work by third parties who have the benefit of certain easements over the subject land as required by s 65 of the Building Act 1975.

[155] Section 65 of the Building Act 1975 provides:

"Land subject to registered easement or statutory covenant

(1) This section applies if a building development application is for land subject to -

(b) a registered statutory covenant for which the registered holder of the covenant is -

(2) The assessment manager must not approve the application unless each registered holder of the easement or covenant has consented to the building work.

(3) However, subsection (2) does not apply to a building development application for a class 1, 2, 3 or 4 building on land subject to a noise covenant if a building assessment provision is expressed to apply specifically for the reduction in a class 1, 2, 3 or 4 building of noise coming from outside the building.

(4) In this section - noise covenant means a registered statutory covenant -

(a) for which the registered holder of the covenant is the State; and

(b) for the reduction in a class 1, 2, 3 or 4 building of noise coming from outside the building."

[156] The subject site is burdened by the following registered easements (as discerned from the plan of registered easements):[131]

(a) easement No. 601545548 - easements B & C on RP48792 in favour of Lots 1 & 2 on SP134044 (Hilton);

(b) easement No. 601683431 - easement B on RP48792, and Easements F & G on RP92856 in favour of Lot 28 on RP219928 (Energex Limited) and in favour of Lot 2 on RP91636 (190 Edward Street Pty Ltd); and

(c) easement No. 601683433 - easement H on RP106075 in favour of Lot 28 on RP219928 (Energex Limited) and in favour of Lot 2 on RP91636 (190 Edward Street Pty Ltd).

[157] Easement No. 601545548 and Easement No. 601683431 effectively provide rights of access.[132] Easement No. 601683433 grants, amongst other things, "full and free right and liberty at all times and from time to time" to lay, construct and use electricity cables and ducts and provides for "full free and uninterrupted access" to underground cables and ducts.[133] There are photographs in evidence of the easement areas.[134]

[158] None of the registered easement holders have consented to the proposed building work, despite Conias having requested their consent.[135]

Does s 65 of the Building Act 1975 apply to the court?

[159] Pursuant to s 65 of the Building Act 1975, if a building development application is for land subject to a registered easement, the assessment manager must not approve the application unless each registered holder of the easement has consented to the building work.

[160] Section 65 of the Building Act 1975 is part of Chapter 4. Section 3(3)(c) of the Building Act 1975 provides that Chapter 4 "regulates the assessment and approval of building development applications". Pursuant to s 2(1), the Building Act 1975 "binds all persons".

[161] For the purposes of s 65(1) of the Building Act 1975:

(a) the subject development application is a "building development application". A "building development application" is defined by s 6 of the Building Act 1975 as "an application for development approval under the Planning Act to the extent it is for building work". The "Planning Act" is defined in Schedule 2 of the Building Act 1975 (as at the date of the development application) as the Sustainable Planning Act 2009. "Building work" is defined in s 5(1)(a) of the Building Act 1975 as including "demolishing a building or other structure", which is the nature of the present development application; and

(b) the development application is for land (namely Lot 25 on RP178618) that is subject to registered easements as noted above.

[162] There is no dispute that, for the purposes of s 65(1) of the Building Act 1975, the subject development application is a "building development application" and that the subject site is burdened by registered easements, such that s 65(2) is engaged.[136] However, Conias submits that s 65 of the Building Act 1975 does not apply because, it says, "the Court is not "the assessment manager"" for the purpose of s 65(2).[137]

[163] Section 11 of the Building Act 1975 provides that, save for when a private certifier is the assessment manager for a development application, the assessment manager for a development application is the assessment manager under the Sustainable Planning Act 2009.

[164] The provisions of Division 13 of Part 1 of Chapter 7 of the Sustainable Planning Act 2009 setting out the process for appeals such as this, provide that:

(a) an appeal is a hearing anew;[138]

(b) the court is to decide an appeal based upon the laws and policies applying when the subject development application was made (giving such weight to later laws and policies as it considers appropriate). This would include the laws and policies applying to the "assessment manager" for subject development application under the IDAS process;[139] and

(c) the decision of the court (to change the appealed decision) will be taken to be the decision of the entity making the appealed decision (i.e. the assessment manager under the IDAS process).[140]

[165] Despite this, Conias submits that s 65 of the Building Act 1975 does not apply to the court. It relies on two bases for its submission:

(a) the Sustainable Planning Act 2009 does not identify the Court as the "assessment manager" for the subject development application; and

(b) the Sustainable Planning Act 2009 contains many provisions that either expressly differentiate between the "assessment manager" and the court or imply that the identified "assessment manager" does not change and/or that the court is not the "assessment manager" for a development application, namely:

(i) s 246(1), which defines "assessment manager" for a development application to be "the entity prescribed under a regulation as the assessment manager". The regulation does not prescribe the court to be the assessment manager;[141]

(ii) in relation to the court's decision in an appeal:

(A) s 495(4), which permits the court to consider and make a decision about a ground of appeal (based on a concurrence agency's response), despite the fact that the concurrence agency's response would have required the assessment manager to decide the application in a particular way;

(B) s 496(3), which specifically notes that the court's decision "is taken ... to be" a decision of "the entity making the appealed decision" (i.e. the assessment manager for a development application). Conias submits that this deeming provision is necessary to ensure that other operative provisions of the Sustainable Planning Act 2009 (such as s 244 in respect of the contents of a development approval) apply to a decision of the Court as if it were a decision of the "assessment manager";

(iii) s 13, which provides that, for a development application, a reference to "the assessment manager" is a reference to "the assessment manager for the [development] application". It does not, for instance, say that such a reference is a reference to "the assessment manager for the development application or some entity, such as the court, performing the role of the assessment manager";

(iv) s 369(1), s 372(1), s 375(6) and s 376(1), which differentiate between the court and "the assessment manager" in respect of approvals. Conias submits that the differentiation in these provisions indicates that the Sustainable Planning Act 2009 does not recognise that an approval granted by the court is an approval granted by the court as an assessment manager;

(v) s 387(4), which enables "the assessment manager" to extend the period of a development approval even if the development approval was granted by the court. Conias submits that this is another provision that depends upon the court not being identified as "the assessment manager" for a development application;

(vi) s 457A and s 457B, which maintain the distinction between the court and "the assessment manager";

(vii) s 704(1)(f), which maintains the distinction between the court and "the assessment manager"; and

(viii) s 440, in conferring upon the court a power to excuse non-compliance that "the assessment manager" does not have.

[166] I accept that the court is not the assessment manager so defined. However, I do not consider that the legislative provisions referred to by Conias demonstrate a legislative intention that the court not be bound by the constraint contained in s 65 of the Building Act 1975 when exercising its jurisdiction to decide an appeal.

[167] The starting point is s 495 of the Sustainable Planning Act 2009. It provides that the appeal is by way of hearing anew and that the court "must decide the appeal based on the laws and policies applying when the application was made ...". The laws include the provisions of the Sustainable Planning Act 2009 and the Building Act 2009 that applied to the assessment manager when the application was made.

[168] One commonly accepted example of the requirement for the court to assess and decide the appeal based on the laws that applied to the assessment manager when the application was made is the requirement in s 326 of the Sustainable Planning Act 2009. It states that "The assessment manager's decision must not conflict with a relevant instrument unless ... there are sufficient grounds to justify the decision, despite the conflict". That is a decision rule which, although stated to apply to the "assessment manager" (with no reference to the court), now applies to the court by reason of s 495(2)(a) of the Sustainable Planning Act 2009.

[169] No tension exists between the provisions referred to by Conias and the requirement, in s 495(2)(a) of the Sustainable Planning Act 2009, that the court assess and decide the application as though bound by the legislative regime that bound the assessment manager. The provisions referred to by Conias involve examples where a distinction between the court and an assessment manager prescribed under a regulation is intended and understandable, namely:

(a) where the court is not subject to a constraint applicable to an assessment manager, such as where the Sustainable Planning Act 2009 requires the assessment manager to refuse an application based on a concurrence agency response (s 495(4)(a));

(b) where the court has a power not available to a non-judicial body (s 440);

(c) where the history of an approval necessitates the distinction for the purposes of changing the approval (s 369, s 372, s 375, s 376 and s 387(4));

(d) where the court's costs power is exercised (s 457A and s 457B); and

[170] The legislative intention that the court be bound by the same constraints as that faced by an assessment manager is reinforced by the inclusion of s 495(4) of the Sustainable Planning Act 2009. Absent that provision, an appeal that challenges the decision of a concurrence agency would be robbed of its efficacy as the court, like an assessment manager, would be bound by the decision of the concurrence agency. If the court were not bound by the assessment and decision rules that applied to the assessment manager, as contended for by Conias, there would be no need for the provision.

[171] The Explanatory Notes for s 495 of the Sustainable Planning Act 2009 confirm the interpretation conveyed by the ordinary meaning of the provision. The notes state, in part:

"Clause 495 establishes that an appeal is to be heard by the court by way of hearing anew, or as if the court "stands in the shoes" of the administering authority."

[172] The proper construction of s 495 of the Sustainable Planning Act 2009 is that the court, standing in the shoes of the assessment manager, is bound to apply the same statutory provisions for assessment and decision of a development application that apply to the assessment manager (unless stated otherwise, such as in s 495(4)). That includes s 65 of the Building Act 1975. That is not surprising given that the court's decision on a merits appeal is taken to be the decision of the assessment manager under s 496(3) of the Sustainable Planning Act 2009.

What is the effect of s 65 of the Building Act 1975?

[173] Section 65(2) of the Building Act 1975 is direct and unambiguous. It requires that the assessment manager (and now the court standing in the shoes of the assessment manager) "must not approve the application unless each registered holder of the easement ... has consented to the building work". As the language of s 65(2) of the Building Act 1975 "is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning ...".[142]

[174] The proper construction of s 65(2) of the Building Act 1975 is consistent with its ordinary and grammatical meaning. The assessment manager (and now the court) "must not approve" the subject development application because the registered easement holders have not consented to the building work.

[175] Section 65(2) of the Building Act 1975 is a restriction or prohibition on the power of the assessment manager to approve development absent consent of each of the registered easement holders. It is expressed in mandatory language. It does not purport to impose any requirement on Conias with which it must comply. Sections 65(3) and (4) of the Building Act 1975 are not applicable in this case.

[176] Regard may be given to an explanatory note or memorandum in the interpretation of s 65 of the Building Act 1975 to "confirm the interpretation conveyed by the ordinary meaning of the provision".[143]

[177] The terms of s 65(1) and (2) of the Building Act 1975 were inserted by s 5 of the Building and Other Legislation Amendment Act 2006 (Qld), which amended the Building Act 1975 to introduce s 7F.[144] The terms of s 7F were the same as now seen in s 65(1) and (2) of the Building Act 1975.

[178] The Explanatory Notes to the Building and Other Legislation Amendment Bill 2006 provided at pages 38 and 39:

"New section 7F (Land subject to registered easement or statutory covenant)

Section 7F prohibits an assessment manager from approving a building development application for land in an easement or subject to a registered statutory covenant without the holders of registered interests consenting to the building work. Statutory covenant is defined as a covenant for which the registered holder of the covenant is the State, or a statutory body representing the State, or a local government."

[179] The objective legislative intention was to "prohibit" the assessment manager from approving a building development application without the consent of the registered easement holders to the building work. It is a prohibition on the power of the assessment manager to approve a building development application. It is not a matter of compliance or non-compliance for the applicant of the building work. The statement could not be any clearer and is consistent with the ordinary meaning of s 65 of the Building Act 1975.

[180] This provision was considered by Robin QC DCJ in Parsons v Redland City Council [2011] QPEC 62; [2011] QPELR 691, where his Honour relevantly said:

"No building can be permitted on the easement area: see the Building Act 1975 s.65 which contains the present equivalent of the Standard Building Regulation s.58. No "building development application" may be approved unless each registered holder of the easement has consented to the building work."

"If there is an easement, its very existence may be pointed to by some (including the Council and submitters) as a reason not to approve development. The Council may seek to exact some price for the modification. As I read s.65, it gives the owner of the dominant tenement a veto which could not be overcome by an order of this Court."

[181] In Kennedy v Gold Coast City Council & Edward Campbell, Chief Executive of Local Government and Planning [2002] QPEC 86; [2005] QPELR 638, at 639, Robin QC DCJ found it was "professional misconduct" for a private certifier to have contravened s 58 of the Standard Building Regulation 1993 which provided, in terms similar to s 65(2) of the Building Act 1975, "A development application for building work over land in an easement must not be approved unless the holders of registered interests in the easement consent to the building work".

[182] Section 65(2) of the Building Act 1975 is concerned with a real property title issue (relevant to the Property Law Act 1974 and the Land Title Act 1994), not with procedural matters relating to a planning application under the Sustainable Planning Act 2009.

[183] Accordingly, by reason of s 65(2) of the Building Act 1975, the court "must not approve" the development application, because none of the registered easement holders have consented to the building work.

Does the court have power to overcome the prohibition in s 65(2) of the Building Act 1975?

[184] In a letter dated 19 January 2017, Thomson Geer, on behalf of Conias, said that Conias "may seek either an order, pursuant to section 440 of the Sustainable Planning Act 2009 (SPA), that any non-compliance with section 65 of the Building Act 1975 be excused, or an order, pursuant to section 181 of the Property Law Act 1974, that the Easements be extinguished".[145]

[185] Section 440 of the Sustainable Planning Act 2009 provides:

"How court may deal with matters involving noncompliance

(1) Subsection (2) applies if the court finds a provision of this Act, or another Act in its application to this Act, has not been complied with, or has not been fully complied with.

(2) The court may deal with the matter in the way the court considers appropriate.

(3) To remove any doubt, it is declared that this section applies in relation to a development application that has lapsed or is not a properly made application."

[186] ISPT submits that the court's excusatory power in s 440 of the Sustainable Planning Act 2009 is not available and cannot be used to overcome s 65(2) of the Building Act 1975 because there is no non-compliance to be waived or excused. It submits that this is not a case where a provision of the Sustainable Planning Act 2009 or another Act in its application to the Sustainable Planning Act 2009 "has not been complied with, or has not been fully complied with". Conias has not failed to comply with any requirement that applies to it (for example a procedural matter with respect to giving notice). Section 65 of the Building Act 1975 does not apply to Conias or impose any requirement on Conias.

[187] In Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55; [2016] QPELR 963, Rackemann DCJ considered the extent of the power under s 440. He observed at 971 - 972:

"[38] Section 440 confers a very broad discretion of wide application. It is the product of a process of evolution from its predecessors under previous legislation in which the legislature has acted to broaden the scope of the power and to remove constraints including those which the Court of Appeal found to be inherent in its immediate predecessor.

[39] I note that the authors of Planning and Development Queensland7 expressed the hope that s 440 would not suffer the same fate as its predecessor but, of course, the limits of the provision must be respected.

[40] The process of evolution appears not yet complete. Section 37 of the Planning and Environment Court Act 2016 (P&E Court Act), which has yet to come into force, is in similar terms to s 440 of SPA, but expressly extends to non-compliance comprised of non-fulfilment and provides that, to remove any doubt, it is declared that the discretion is not limited to non-compliance with provisions under which there is a positive obligation to take a particular action. That will render explicitly in that section, the intent for s 440 as stated in the explanatory note to s 440.

[41] The explanatory note to s 37 of the P&E Court Act suggests that this change is prompted by the decision of Andrews DCJ in Maher v Fraser Coast Regional Council in which his Honour both distinguished between non-compliance and non-fulfilment of a provision and considered that there was insufficient justification to have recourse to the explanatory note. In that regard the explanatory note to s 37 of the P&E Court Act states in part, as follows:

Recent case law has identified issues with the current equivalent provision in SPA, section 440, and the transitional provision in section 820. It was held by the Planning and Environment Court that these provisions do not apply to matters of non-fulfilment, and it was unclear whether the term 'provision' also includes a definition. This clause aims to address these identified issues, to ensure the Planning and Environment Court has appropriate excusatory powers.

The term "provision" is intended to be interpreted broadly, includes a definition, and is not limited to circumstances where there is a positive obligation to take a particular action.

[42] There may be, with respect, room for argument about the correctness of the approach of Andrews DCJ. The ordinary meaning of the reference, in s 440, to a provision not being complied with, might be said to be less constrained. Further, the section should be construed in the context of the statutory history, in which the reference to a 'provision' in s 440 overtook the corresponding section in the Integrated Planning Act which spoke of a 'requirement' not being complied with (or fully complied with). Given that change in statutory language, the provisions to which s 440 refers should arguably not be seen to be limited to those which impose a requirement. Once that is accepted, it is difficult to see why the word 'provision' in s 440 should be construed as only referring to a provision which imposes a positive obligation and also difficult to maintain a distinction between non-compliance and non-fulfilment, where it relates to a provision which does not impose a requirement to do something. The explanatory note can be used to both resolve any ambiguity and to confirm the interpretation conveyed by the ordinary meaning. It is however, unnecessary for me to reach a concluded view about that, because, for the reasons which follow, there is, in this case, non-compliance with a provision which cast a positive obligation to do something."

[188] Since Rackemann DCJ's decision, the operative provisions of the Planning Act 2016 and the Planning and Environment Court Act 2016 (Qld) have commenced.

[189] By reason of s 311 of the Planning Act 2016, s 440 of the Sustainable Planning Act 2009 continues to apply.

[190] Section 76 of the Planning and Environment Court Act 2016 (Qld) also applies. It states:

(1) This section applies to a matter under repealed SPA or an enabling Act if a person -

(a) had started proceedings under repealed SPA before the commencement but the proceedings had not ended before the commencement; or

(b) had, immediately before the commencement, a right to start proceedings under repealed SPA; or

(c) has a right to start proceedings that arises after the commencement in relation to -

(i) a statutory instrument mentioned in the Planning Act, section 286; or

(ii) an application mentioned in the Planning Act, section 287; or

(iii) any provision of an enabling Act that provides for the continuation of the matter after the commencement.

(2) This Act applies to any appeal in relation to proceedings mentioned in subsection (1)(a).

Proceedings are continued under the Planning Act, section 308(2)(a). This Act will apply to an appeal in relation to the proceedings.

(6) Also, to remove any doubt, it is declared that repealed SPA, section 440 -

(a) applies also for a development approval that has lapsed; and

(i) circumstances in relation to a court proceeding under repealed SPA or a current P&E Court proceeding; or

(ii) provisions under which there is a positive obligation to take particular action; and

(c) applies as if a reference to a provision not being complied with, or not being fully complied with, is taken to include -

(i) non-fulfilment of part or all of the provision; and

[191] The observations of Rackemann DCJ in Beerwah Land Pty Ltd v Sunshine Coast Regional Council; Woodlands Enterprise Pty Ltd v Beerwah Land Pty Ltd; Sunshine Coast Regional Council v Beerwah Land Pty Ltd [2016] QPEC 55; [2016] QPELR 963 about the wide operation of s 440 have been given legislative effect.

[192] In this case, there has been non-fulfilment of s 65 of the Building Act 1975 in that Council gave a development approval despite the absence of consent of the registered holder of easements. Under s 440 of the Sustainable Planning Act 2009, the court would have the power to excuse the fact that, at the time of Council's decision, s 65 of the Building Act 1975 had not been complied with.

[193] That non-compliance with the provision requiring the consent of the holders of the easement for any development approval is no different in character to the other mandatory requirements that can be excused by s 440 of the Sustainable Planning Act 2009 (for instance, in relation to a failure to obtain a State resource entitlement or allocation for a development application[146] or a failure to obtain landowner's consent for a development application[147]).

[194] In some cases, despite the mandatory language of s 65 of the Building Act 1975, there may well be compelling reasons to excuse the non-fulfilment of the condition. For example, the consent of the registered holders of the easement may have been received after the grant of a development approval or the easements may have been extinguished.

[195] However, the difficulty in this case is that the consent of the registered holders of the easement has still not been obtained and the relevant non-compliance or non-fulfilment of s 65(2) of the Building Act 1975 will occur if the court proceeds to grant a development approval. Conias is, effectively, seeking to have the court excuse its own non-compliance.

[196] I am not satisfied that the operation of s 440 of the Sustainable Planning Act 2009 is wide enough to permit the court to prospectively waive or excuse its own failure to comply with a provision of the Sustainable Planning Act 2009 or an Act as it applies to the Sustainable Planning Act 2009. The provision does not contemplate prospective waiving or excusing of a statutory prohibition on the power of the court deciding an appeal while standing in the shoes of the assessment manager.

[197] Section 65 of the Building Act 1975 is a statutory restriction or prohibition on the powers of the court (standing in the shoes of the assessment manager) to approve a building development application where a registered easement holder does not consent to the building work. Section 440 of the Sustainable Planning Act 2009 does not afford this court a power to alter, waive or avoid a statutory restriction or prohibition on approval that applies to the court. By way of analogy, the court could not use s 440 of the Sustainable Planning Act 2009 to waive the assessment rules that the court must apply when assessing an application. As Robin QC DCJ observed in Parsons v Redland City Council [2011] QPEC 62; [2011] QPELR 691 at 697 [23], s 65 of the Building Act 1975 "gives the owner of the dominant tenement a veto which could not be overcome by an order of this Court."

[198] Accordingly, s 440 of the Sustainable Planning Act 2009 is not engaged. The provision is not available to overcome the strict statutory prohibition on the power of the court to approve the development application.

[199] Even if the court had the power to excuse the failure to comply with s 65 of the Building Act 1975, for the reasons explained below, I am not satisfied that this is an appropriate case for the exercise of the court's discretion.

[200] In relation to the second issue raised in Thomson Geer's letter of 19 January 2017, this court has no power under s 181 of the Property Law Act 1974 (Qld), or otherwise, to modify or extinguish the registered easements. Such power rests with the Supreme Court.

[201] The result is that s 65(2) of the Building Act 1975 applies and the court has no power to avoid its clear and unambiguous application leading to a necessary and mandatory refusal of the development application.

Even if the excusatory power is available, it should not be exercised

[202] Conias relies on the following grounds to justify excusal of the non-fulfilment of s 65 of the Buildling Act 1975:

(a) the provisions of the Sustainable Planning Act 2009, including s 263, when read as a whole, give a clear indication of the way in which the Sustainable Planning Act 2009 intends that development applications potentially involving interests under easements are to be dealt with. Those with easement interests should have those easement interests protected as far as reasonable;

(b) the ISPT easement has not been used for 30 years;

(c) Conias has sought consent from the three entities having the benefit of the easements and, save for ISPT, Conias has not had any response;

(d) the easements, in so far as they are for access to adjoining properties, no longer have any utility, or are not being used for access;[148]

(e) the development application seeks only a preliminary approval, not a development permit; and

(f) the proposed works are not inconsistent with the easements.

[203] Conias submits that the court has power to excuse the non-compliance and it ought to do so in the circumstances, particularly as the development proposed does not preclude any future use of the easement for their granted purposes - should the beneficiaries of the easements so choose.

[205] First, the legislature has expressed a clear intention in s 65(2) of the Building Act 1975 that a building development application must not be approved unless each of the registered easement holders consents to the building work.

[206] As was observed by the joint judgment of Gaudron and Gummow JJ in Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 81, "The power conferred by the section is to be exercised judicially, that is to say not arbitrarily, capriciously or so as to frustrate the legislative intent."

[207] This court should not lightly take steps to destroy the direct or collateral benefits that are conferred by reason of a registered easement, particularly given the court does not have jurisdiction to extinguish or modify easements.

[208] In Eucalypt Group Pty Ltd v Robin [2003] QSC 63; [2003] 2 Qd R 488 at 513 [125], Ambrose J made reference to s 58 of the then Standard Building Regulation 1993, which was in materially similar terms as the present s 65(2) of the Building Act 1975.[149] Ambrose J, after noting that provision, in the context of considering s 181 of the Property Law Act 1974 with respect to modifying or extinguishing an easement, said that the right to pass and repass is "only one benefit" of an easement and that there are other benefits to the easement holder "which are collateral or incidental to the maintenance of the unobstructed easement".[150]

[209] In other words, a collateral or incidental benefit of an easement is the right to decide whether to consent to building work under s 65 of the Building Act 1975 (which Robin QC DCJ described as a "veto" in Parsons v Redland City Council [2011] QPEC 62; [2011] QPELR 691 at 697 [23]). The court should not lightly make redundant that statutory benefit, which is collateral and incidental to an easement, and which each of the registered easement holders enjoy. Section 440 of Sustainable Planning Act 2009 should not be used to destroy that statutory benefit.

[210] Second, I do not accept that the provisions of the Sustainable Planning Act 2009, including s 263, when read as a whole, give a clear indication that those with easement interests are only entitled to have those easement interests protected "as far as reasonable".

[211] Section 263 of the Sustainable Planning Act 2009 states:

"When owner's consent is required for application

(1) The consent of the owner of the land the subject of an application is required for its making if the application is for -

(a) a material change of use of premises or reconfiguring a lot; or

(b) work on land below high-water mark and outside a canal as defined under the Coastal Protection and Management Act 1995; or

(c) work on rail corridor land as defined under the Transport Infrastructure Act.

(a) to the extent the land the subject of the application has the benefit of an easement, and the development is not inconsistent with the terms of the easement, the consent of the owner of the servient tenement is not required; and

(b) the consent of the owner of the land is not required to the extent -

(i) the land the subject of the application is acquisition land; and

(ii) the application relates to the purpose for which the land is to be taken or acquired."

[212] Section 263 of the Sustainable Planning Act 2009 imposes the constraint on a landowner's ability to effect new development on its land without the consent of the registered holder of an easement at the time of the making of a development application, where that application is for development other than building work. The limitation is also not absolute: it only applies if the development is "inconsistent with the terms of the easement".

[213] Where the development involves building work, the legislature has instead elected to impose the limitation at the point of approval. The limitation is absolute.

[214] There may well be sound reasons for the distinction. Building work often involves the construction of structures, which has a greater potential to form an absolute impediment to the enjoyment of an easement than a change of use or a reconfiguration of the servient tenement. To the extent that a change in use or a reconfiguration of the servient tenement affects an easement, the impact is more likely to be on the ease of use, for example by introducing a greater volume of traffic. Also, the time and cost involved in the assessment of an application for a material change of use or reconfiguration of a lot is often much more extensive than that involved for building work.

[215] Third, there are three registered easement holders across easements B, C, F, G and H as noted above. This is not a case of only one of several easements holders declining to give consent: none of the registered easement holders have consented.

[216] Fourth, the other registered easement holders, being Energex Limited and 190 Edward Street Pty Ltd, are not parties to this proceeding. They have not been given notice of the application for relief under s 440 of the Sustainable Planning Act 2009 or afforded a right to be heard. Conias is seeking relief which directly affects the rights and interests of Energex Limited and 190 Edward Street Pty Ltd in the sense that the relief would make redundant their collateral statutory entitlement under s 65(2) of the Building Act 1975 to refuse consent to the building work. The letters of Thomson Geer (on behalf of Conias) to Energex Limited and 190 Edward Street Pty Ltd dated 10 February 2017, which sought consent under s 65 of the Building Act 1975, made no mention that Conias would be seeking relief from the court to excuse or waive the statutory prohibition on approval.[151]

[217] Fifth, Conias has had ample opportunity to make an application to the Supreme Court pursuant to s 181 of the Property Law Act 1974 to modify or extinguish the easements. It has elected not to do so. ISPT's Notice of Appeal was filed on 15 November 2016. It raised a ground of appeal, at paragraph 15, with respect to s 65 of the Building Act 1975.[152] Conias has had eight months since then to make an application under to s 181 of the Property Law Act 1974. Thomson Geer's letter of 19 January 2017, around six months before the hearing, made specific reference to s 181 of the Property Law Act 1974.[153] Conias has elected not to make such an application. If such an application were made, it would necessarily include Energex Limited and 190 Edward Street Pty Ltd as parties.

[218] Sixth, I am not satisfied that the registered easements have no utility and that the proposed demolition work will not cause any impediment to the use of the easement, as submitted by Counsel on behalf of Conias in its opening.[154]

[219] Easement no. 601683433 (easement H) grants, amongst other things, "full and free right and liberty at all times and from time to time" to lay, construct and use electricity cables and ducts and provides for "full free and uninterrupted access" to underground cables and ducts.[155] There is a photograph in evidence of part of the area of easement H. It depicts a substation with a sign stating "EMERGENCY ACCESS KEEP CLEAR AT ALL TIMES".[156]

[220] Conias has not led any evidence as to the frequency of use of the easements, nor has it led evidence as to how the proposed demolition will be undertaken.

[221] After the final day of hearing, Conias filed an affidavit of Benjamin Rix sworn 8 August 2017.[157] It seeks leave to re-open its case to rely on the contents of the affidavit and submits that "it is not proposed to perform any of the Proposed Works within the Easements" and the works "will obviously not be inconsistent with the Easements".[158]

[222] ISPT objects to the affidavit of Mr Rix on the basis of impermissible hearsay and speculation.

[223] As to the hearsay objection, ISPT notes that Mr Rix refers to an understanding of certain alleged intentions. For example, at paragraph 6.1, Mr Rix refers to understanding an intention of Conias not to interfere with existing easement areas and built form within those areas. ISPT submits that he cannot give admissible evidence of an understanding of an alleged intention. ISPT notes that the requirements for an affidavit in r 430 of the Uniform Civil Procedure Rules 1999 have been ignored. ISPT further submits that, even if it were permissible to rely on information and belief (and, strictly speaking, it is not, because final relief is being sought), the sources of information and grounds for belief are not identified.

[224] As to the ground of objection of speculation, ISPT submits that Mr Rix, as a lawyer (and not an expert or employee of Conias), is not in a position to give evidence on the matters stated in the affidavit. For example, he purports to give evidence at paragraph 5 of his affidavit about the built form within the easement for the driveway. He speculates about such matters. A survey would be required to confirm what built form is within the easements and to overlay the easement areas with the proposed demolition plans. ISPT submits that Mr Rix's commentary about alleged errors in detailed building plans, and what is allegedly located in and out of the easements areas, is objectionable.

[225] ISPT's criticisms of the affidavit are valid.

[226] Pursuant to r 23 of the Planning and Environment Court Rules 2010, this court may at any time during a proceeding, order that the rules of evidence do not apply to proving a fact if the court considers -

(a) strict proof of the fact may cause unnecessary or unreasonable expense, delay or inconvenience in the proceeding; or

[227] There is no apparent basis to permit the evidence under this rule. The matters deposed to are clearly in dispute. Further, there is no evidence on which I could rely to conclude that strict proof of the fact may cause unnecessary or unreasonable expense, delay or inconvenience in the proceeding.

[228] Further, and in any event, I do not consider it appropriate to exercise my discretion to permit Conias to rely on the affidavit as the affidavit does not persuade me that:

(a) there is no proposal to perform any works within the easements; or

(b) that the works are "obviously not ... inconsistent" with the easements.

[229] Having regard to the plan of registered easements and the photographs of the easements,[159] it seems possible that the demolition works will "interfere with the existing easement areas". For example, the photograph at page 106 of Exhibit 4 is of Easement H with a substation and a sign stating "EMERGENCY ACCESS KEEP CLEAR AT ALL TIMES". It is not apparent to me how access will be "kept clear at all times" during the demolition works. I am particularly concerned about the absence of survey information that permits me to conclude with certainty the extent to which the built form shown in the photograph are within the easement, and the space surrounding them that are the subject to the easement and must be "kept clear".

[230] Accordingly, I refuse Conias' application for leave to reopen its case to rely on the affidavit of Mr Rix sworn 8 August 2017.

[231] For the reasons outlined in paragraphs [205] - [229] above, I am not satisfied that, were there power to excuse the non-fulfilment of s 65 of the Building Act 1975, that it would be appropriate to do so in this case.

[232] Absent s 65 of the Building Act 1975, I would have dismissed the appeal and approved the development application. However, for the reasons identified above with respect to the easement issue, the development application must be refused and the appeal allowed.

[1] Brisbane City Council Heritage Citation - Exhibit 1.

[2] Town Planning Joint Expert Report - Exhibit 11 p 4 [8].

[3] Town Planning Joint Expert Report - Exhibit 11 p 4 [9].

[4] Town Planning Joint Expert Report - Exhibit 11 p 5 [10].

[5] Affidavit of Benjamin Rix - Exhibit 4 p 99.

[6] Town Planning Joint Expert Report - Exhibit 11 p 5 [11].

[7] Town Planning Joint Expert Report - Exhibit 11 p 5 [12].

[8] Town Planning Joint Expert Report - Exhibit 11 p 5 [13] and Affidavit of Benjamin Rix - Exhibit 4 pp 35 - 40.

[9] as demonstrated by the original plans obtained from the Fryer Library at the University of Queensland - see Book of Plans - Exhibit 2 pp 21 - 27.

[10] See the annotated photograph - Report of Dr Blake - Exhibit 7 p 3.

[11] Joint Expert Report of Historians - Exhibit 5 p 11. See also Report of Dr Blake - Exhibit 7 p 2 [2].

[12] Joint Expert Report of Historians - Exhibit 5 pp 11 - 12. See also Report of Dr Blake - Exhibit 7 p 2 [2].

[13] Report of Dr Blake - Exhibit 7 p 4 [7].

[14] Report of Dr Blake - Exhibit 7 pp 2 - 4 [3] - [7].

[15] That ceiling is illustrated, for example, on pages 24 and 28 of the Book of Plans - Exhibit 2. See both original drawings and a plan of the coffered ceiling shown on the original plans prepared by Conias' heritage architect, Mr Kennedy.

[16] Joint Expert Report of Historians - Exhibit 5 pp 5 - 7.

[17] Supplementary Joint Expert Report of Historians - Exhibit 6 p 3 (Bell); Report of Mr McDonald - Exhibit 13 p 13 [2.9].

[18] Supplementary Joint Expert Report of Heritage Architects - Exhibit 9 p 3 [6(b)] (Scott).

[19] Joint Expert Report of Heritage Architects - Exhibit 8 p 9 [20.1.3(b)] (Kennedy); Report of Dr Blake - Exhibit 7 p 8 [22].

[20] See evidence summarised in the Schedule to the Outline of Submissions for the Appellant - Court Doc 13 pp 37 - 44.

[21] See T2-16/L29-33 (Blake); T3-15/L10-16 (Kennedy); T3-28/L45-47 (Kennedy); T3-29/L23-26 (Kennedy); T3-39/L14-25 (Scott); T3-44/L23-29 (Scott); T3-80/L40-46 (McDonald).

[22] See the plan in Report of Dr Blake - Exhibit 7 p 10 and also pp 24 - 29.

[23] See the analysis of Mr Kennedy showing the full extent of the alterations to the internal layout over time - Book of Plans - Exhibit 2 pp 29 - 40.

[25] Town Planning Joint Expert Report - Exhibit 11 p 5 [15]. See also Book of Plans - Exhibit 2 and Joint Expert Report of Heritage Architects - Exhibit 8 p 2 [9].

[26] Town Planning Joint Expert Report - Exhibit 11 p 6 [17].

[27] Woolworths Ltd v Maryborough City Council (No. 2) [2005] QCA 262; [2006] 1 Qd R 273, 286 [23]; Lockyer Valley Regional Council v Westlink Pty Ltd [2011] QCA 358; (2011) 185 LGERA 63, 72 [16]; [2011] QCA 358; [2012] QPELR 354.

[28] Sustainable Planning Act 2009, s 493.

[29] For example, see the extent of the Heritage Overlay on the drawings for the proposed works. The drawings show inclusion of the building fronting Edward Street on the northern side of the original Embassy Hotel is part of the local heritage place.

[30] Appeal Book - Exhibit 3 Vol 2 Tab 13.

[32] See s 5.3.3(c) of City Plan. Although this section relates to determining the assessment criteria for code assessable development, it provides guidance on the means of demonstrating compliance with a code.

[34] Zappala Family Co Pty Ltd v Brisbane City Council & Ors [2014] QCA 147; (2014) 201 LGERA 82, 95 [55]; [2014] QCA 147; [2014] QPELR 686.

[35] Submissions of the Respondent - Court Doc 12 p 6 [22].

[36] Overall Outcome 7.2.3.7.2(3)(b) of the City Centre neighbourhood plan code - Appeal Book - Exhibit 3 Vol 2 Tab 17 p 56.

[37] Overall Outcome 7.2.3.7.2(3)(j) of the City Centre neighbourhood plan code - Appeal Book - Exhibit 3 Vol 2 Tab 17 p 57.

[38] Overall Outcome 7.2.3.7.2(3)(k) of the City Centre neighbourhood plan code - Appeal Book -Exhibit 3 Vol 2 Tab 17 p 57.

[39] Overall Outcome 7.2.3.7.2(3)(o) of the City Centre neighbourhood plan code - Appeal Book - Exhibit 3 Vol 2 Tab 17 p 57. See also 7.2.3.7.2(3)(d) of the City Centre neighbourhood plan code - Appeal Book - Exhibit 3 Vol 2 Tab 17 p 56.

[40] Submissions of the Respondent - Court Doc 12 p 6 [23].

[41] Strategic Framework, Strategic Outcome 3.4.1(1)(c) - Appeal Book - Exhibit 3 Vol 2 Tab 16 p 46; Specific Outcome SO19 - Appeal Book - Exhibit 3 Vol 2 Tab 16 p 49. Also City Centre neighbourhood plan code Overall Outcomes (3)(l), (n), (y); and (18)(c) - Appeal Book - Exhibit 3 Vol 2 Tab 17 pp 57, 58 and 64.

[42] Strategic Framework, Land Use Strategy 19.2 - Appeal Book - Exhibit 3 Vol 2 Tab 16 p 49.

[43] Appeal Book - Exhibit 3 Vol 2 Tab 18 p 102.

[44] Appeal Book - Exhibit 3 Vol 2 Tab 18 pp 102 - 103.

[45] Burra Charter p 1 - Appeal Book - Exhibit 3 Vol 2 Tab 22 p 176.

[46] Burra Charter Article 3 p 3 - Appeal Book - Exhibit 3 Vol 2 Tab 22 p 178.

[47] Burra Charter Article 1.3 p 2 - Appeal Book - Exhibit 3 Vol 2 Tab 22 p 177.

[48] Burra Charter Article 1.3 p 2 - Appeal Book - Exhibit 3 Vol 2 Tab 22 p 177.

[49] Burra Charter Article 1.4 p 2 - Appeal Book - Exhibit 3 Vol 2 Tab 22 p 177.

[50] Burra Charter Article 5.1 p 4 - Appeal Book - Exhibit 3 Vol 2 Tab 22 p 179.

[51] Burra Charter Article 10 p 5 - Appeal Book - Exhibit 3 Vol 2 Tab 22 p 180.

[52] Burra Charter Article 10 p 5 - Appeal Book - Exhibit 3 Vol 2 Tab 22 p 181.

[53] Burra Charter Article 10 p 5 - Appeal Book - Exhibit 3 Vol 2 Tab 22 p 178.

[54] Appeal Book - Exhibit 3 Vol 2 Tab 18 p 102.

[55] Appeal Book - Exhibit 3 Vol 2 Tab 20 p 142.

[56] Appeal Book - Exhibit 3 Vol 2 Tab 20 p 142.

[57] Section 2(3) of the Heritage planning scheme policy - Exhibit 3 Vol 2 Tab 20 p 142.

[58] Note to s 4(1)(b) of the Heritage planning scheme policy - Exhibit 3 Vol 2 Tab 20 p 143.

[59] Joint Expert Report of Heritage Experts - Exhibit 4 p 41.

[60] Brisbane City Council Heritage Citation - Exhibit 1.

[61] Joint Expert Report of Heritage Architects - Exhibit 8 p 2 [5].

[62] Joint Expert Report of Heritage Architects - Exhibit 8 p 2 [5].

[63] See s 2(1)(b) and s 2(1)(e) of the Heritage planning scheme policy - Appeal Book - Exhibit 3 Vol 2 Tab 20 p 142.

[64] Joint Expert Report of Heritage Architects - Exhibit 8 p 6 [20.1(d) and (e)].

[65] Joint Expert Report of Heritage Architects - Exhibit 8 p 6 [20.1(c)].

[66] Report of Mr McDonald - Exhibit 13 pp 7 and 8 Figures 7 - 10 and Book of Photographs - Exhibit 15.

[67] Joint Expert Report of Heritage Architects - Exhibit 8 p 7 [para 20.1(i)].

[68] See evidence summarised in the Schedule to the Outline of Submissions for the Appellant - Court Doc 13 pp 37 - 44.

[69] Joint Expert Report of Heritage Architects - Exhibit 8 p 6 [20.1(d)].

[70] Joint Expert Report of Heritage Architects - Exhibit 8 p 7 [20.1(l)].

[71] Report of Mr McDonald - Exhibit 13 p 16 [4.1].

[73] Joint Expert Report of Heritage Architects - Exhibit 8 p 6 [20.1(e)].

[74] Joint Expert Report of the Historians - Exhibit 5 pp 16 - 21.

[75] Mr McDonald's opinion in the Joint Expert Report of Heritage Architects - Exhibit 8 p 6 [20.1(g)]. This was accepted by Mr Kennedy during cross-examination - see T3-32/L20-26.

[76] T3-23/L10-15 (Kennedy); T3-27/L17-19 (Kennedy). See also Joint Expert Report of Heritage Architects - Exhibit 8 p 9 [20.1.3(b)], where Mr Kennedy said the Art Deco ceiling was of "minor cultural heritage significance".

[78] Outline of Submissions for the Appellant - Court Doc 13 p 24 [71]. See also Outline of Submissions for the Appellant - Court Doc 13 p 29 [90].

[80] Brisbane City Council Heritage Citation - Exhibit 1.

[81] Brisbane City Council Heritage Citation - Exhibit 1, p 4.

[82] Brisbane City Council Heritage Citation - Exhibit 1, p 2.

[83] Brisbane City Council Heritage Citation - Exhibit 1.

[84] as depicted in the Figure in Report of Dr Blake - Exhibit 7 p 2.

[85] Joint Expert Report of Historians - Exhibit 5 pp 11 - 12. See also Report of Dr Blake - Exhibit 7 pp 2 and 4 [2] and [7].

[86] Report of Dr Blake - Exhibit 7 p 2 [2].

[87] Report of Dr Blake - Exhibit 7 pp 2 - 3 [2] - [4].

[88] Report of Dr Blake - Exhibit 7 p 3 [5].

[89] Report of Dr Blake - Exhibit 7 p 3 [6].

[90] Joint Expert Report of the Historians - Exhibit 5 pp 16 - 21.

[92] Report of Dr Blake - Exhibit 7 p 5 [8].

[93] Report of Dr Blake - Exhibit 7 p 5 [8].

[94] Joint Expert Report of Historians - Exhibit 5 p 17.

[95] Joint Expert Report of Historians - Exhibit 5 p 18.

[96] Joint Expert Report of Historians - Exhibit 5 p 16.

[97] Joint Expert Report of Historians - Exhibit 5 p 17.

[98] Joint Expert Report of Historians - Exhibit 5 p 18.

[99] Joint Expert Report of Historians - Exhibit 5 p 18.

[100] Joint Expert Report of Historians - Exhibit 5 p 19.

[101] Joint Expert Report of Historians - Exhibit 5 p 19.

[102] Joint Expert Report of Historians - Exhibit 5 p 19.

[103] Joint Expert Report of Heritage Architects - Exhibit 8 pp 8 - 9 [20.3.1(a)].

[104] Joint Expert Report of Heritage Architects - Exhibit 8 p 9 [20.3.1(b)].

[105] Joint Expert Report of Heritage Architects - Exhibit 8 p 10 [20.3.2].

[106] As discussed in Joint Expert Report of Heritage Architects - Exhibit 8 p 9 [20.3.1(b)].

[107] Joint Expert Report of Heritage Architects - Exhibit 8 pp 11-12 [23.3.1].

[108] Joint Expert Report of Heritage Architects - Exhibit 8 p 12 [23.3.2].

[109] Report of Mr Kennedy - Exhibit 10 p 13 [8.2].

[110] Report of Mr Kennedy - Exhibit 10 p 13 [8.4].

[111] Report of Mr Kennedy - Exhibit 10 p 13 [8.4].

[112] Joint Expert Report of Heritage Architects - Exhibit 8 p 8 [20.2(f) - (j)].

[113] The provisions are not absolute in their terms. They do not, for example, state that no demolition can occur. Rather, the provisions require an assessment of the overall development and whether the development, which here includes restoration works as well as the demolition about which there is dispute:

(a) provides for the protection of the heritage place and does not damage or diminish its cultural heritage significance (as opposed to requiring the building not be damaged) (PO1);

(b) is based on and takes account of all aspect of the cultural heritage significance (PO2);

(c) protects the fabric and setting of the heritage place while providing for its use, interpretation and management (as opposed to requiring the retention of the fabric of the building) (PO3); and

(d) is based on the issues relevant to the conservation of the heritage place (PO4).

See also Jedfire Pty Ltd v Council of the City of Logan & White [1994] QPEC 47; [1995] QPLR 41, 43; Multi Span Australia Pty Ltd v Department of Main Roads & Anor [2008] QPEC 14; [2008] QPELR 509, 510.

[114] Appeal Book - Exhibit 3 Vol 2 Tab 16 p 49.

[115] Appeal Book - Exhibit 3 Vol 2 Tab 17 pp 66 and 73.

[116] Appeal Book - Exhibit 3 Vol 2 Tab 17 p 87.

[117] Jedfire Pty Ltd v Council of the City of Logan & White [1994] QPEC 47; [1995] QPLR 41, 43; Multi Span Australia Pty Ltd v Department of Main Roads & Anor [2008] QPEC 14; [2008] QPELR 509, 510.

[119] That is a ground for approval as confirmed by Statutory Guideline 05/09.

[120] Appeal Book - Exhibit 3 Vol 2 Tab 21 p 164.

[121] Town Planning Joint Expert Report - Exhibit 11 pp 19-20 [84].

[122] Town Planning Joint Expert Report - Exhibit 11 p 19 [80], [81] and [83].

[123] Town Planning Joint Expert Report - Exhibit 11 p 19 [81].

[124] Town Planning Joint Expert Report - Exhibit 11 pp 19 - 20 [84].

[125] See Council's "Sufficient Grounds of Approval" dated 23 January 2017 - Appeal Book - Exhibit 3 Vol 1 pp 22 - 23 [2(e)].

[126] Town Planning Joint Expert Report - Exhibit 11 pp 11 - 12 [56], [58] and [59].

[127] Town Planning Joint Expert Report - Exhibit 11 p 12 [58].

[128] Outline of Submissions on behalf of the Co-respondent - Court doc 14 p 19 [2.8(b)].

[129] In this regard, the evidence clearly indicates that the subject site is a constrained site in respect of both its size and the existence of the Heritage overlay over part of the site and the shape of that overlay. Located, as it is, in the City Centre, where further development is promoted, the expectation of redevelopment of the subject site would be high (as evidenced by investigations already undertaken by Conias - see Exhibit 18). It is obvious that the encouraged "further development" in this part of the City generally, and the subject site in particular, is likely to involve demolition to facilitate such "further development".

[130] Town Planning Joint Expert Report - Exhibit 11 pp 9 - 10 [40].

[131] The Plan of Registered Easements is in the Affidavit of Benjamin Rix - Exhibit 4 p 99. See also Affidavit of Benjamin Rix - Exhibit 4 pp 14 - 19 for copies of the registered plans for the easements, and pp 20 - 34 for the easement documents.

[132] Affidavit of Benjamin Rix - Exhibit 4 pp 20 - 23 with respect to Easement No. 601545548 and Affidavit of Benjamin Rix - Exhibit 4 pp 25 - 27 with respect to Easement No. 601683431.

[133] Affidavit of Benjamin Rix - Exhibit 4 pp 29 - 34.

[134] Affidavit of Benjamin Rix - Exhibit 4 pp 100 - 107. The location of where the photographs were taken is seen by reference to the plan of registered easements at Affidavit of Benjamin Rix - Exhibit 4 p 99.

[135] See the correspondence in Affidavit of Benjamin Rix - Exhibit 4 pp 86 - 98.

[137] Supplementary Submissions on behalf of the Co-Respondent - Court Doc 18 p 4 [5].

[138] Sustainable Planning Act 2009, s 495(1).

[139] Sustainable Planning Act 2009, s 495(2).

[140] Sustainable Planning Act 2009, s 496(3).

[141] Conias also referred to s 255 of the Sustainable Planning Act 2009 in respect of the Minister's identification of the assessment manager and s 255D of the Sustainable Planning Act 2009 in respect of the power for the Chief Executive as "assessment manager" to nominate another "entity" for the administration and enforcement of a condition of approval.

[142] Zappala Family Co Pty Ltd v Brisbane City Council & Ord [2014] QCA 147; (2014) 201 LGERA 82, 95 [54] citing AAD Design Pty Ltd v Brisbane City Council [2012] QCA 44; [2013] 1 Qd R 1, 11-12 [37] (Chesterman JA) where in turn the decision of Gibbs CJ in Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation [1981] HCA 26; (1981) 147 CLR 297 at 304-305 was cited.

[143] Acts Interpretation Act 1954 (Qld), s14B(1)(c).

[144] Section 5 of Building and Other Legislation Amendment Act 2006, which amended the Building Act 1975 to introduce s 7F provided:

"7F Land subject to registered easement or statutory covenant

'(1) This section applies if a building development application is for land subject to -

(b) a registered statutory covenant for which the registered holder of the covenant is -

'(2) The assessment manager must not approve the application unless each registered holder of the easement or covenant has consented to the building work.

'(3) In this section - registered means registered under the Land Act 1994 or Land Title Act 1994."

[145] See Affidavit of Benjamin Rix - Exhibit 4 p 87.

[146] See Mahaside Pty Ltd v Sunshine Coast Regional Council & Ors [2010] QPEC 70; [2011] QPELR 23, 30 [32] - [34].

[147] See Gascoyne v Whitsunday Regional Council & Anor [2010] QPEC 150; [2011] QPELR 373, 382 - 384 [49] - [64] and [67].

[148] Affidavit of Benjamin Rix - Exhibit 4 pp 99 - 107.

1. [149] Section 58 of the then Standard Building Regulation 1993 provided: "A development application for building work over land in an easement must not be approved unless the holders of registered interests in the easement consent to the building work."

[150] Eucalypt Group Pty Ltd v Robin [2003] QSC 63; [2003] 2 Qd R 488, 513 [125] and [126].

[151] Affidavit of Benjamin Rix - Exhibit 4 pp 93 - 98.

[152] Appeal Book - Exhibit 3 Vol 1 pp 7 - 8.

[153] Affidavit of Benjamin Rix - Exhibit 4 p 87.

[154] See Conias' opening address at T1-16/L35-L40 with respect to the easement in favour of ISPT.

[155] Affidavit of Benjamin Rix - Exhibit 4 pp 29 - 34.

[156] Affidavit of Benjamin Rix - Exhibit 4 p 106. The location of where the photograph was taken is seen by reference to the plan of registered easements at Affidavit of Benjamin Rix - Exhibit 4 p 99.

[158] Supplementary Submissions on behalf of the Co-Respondent - Court Doc 18 pp 4 - 5 [6] - [11].

[159] Affidavit of Benjamin Rix - Exhibit 4 pp 99 - 107.