• In 1941the sub-depot operation was moved to another part of Ainslie. The buildings remained and were used as a public housing repair works base until the 1960s (when presumably they were replaced with the current residential housing);

• There was a need for a caretaker for the sub-depot. There being no available accommodation, a house was built for that purpose on Block 11. A bus driver, Mr Tormey, was given the caretaker duties, for the performance for which he received a reduction in the rent of the house;

• Mr Tormey moved out of the house to continue his caretaker role when the sub-depot operation was moved in 1941;

• The new tenant of the house, Mr Canning, was also a bus driver. His wife was later a bus conductress during the war years. The Canning family lived in the house for over 60 years except for a short period when it was sublet;

Mrs Pettersson contended that the Corroboree Park local community had kept and valued this history through oral history, while Mr Tormey's memories had been recorded as part of the National Library of Australia's Local Oral History project. Mr Pettersson drew attention to the fact that a considerable number of former bus employees or their descendants still lived in the vicinity of the place and that there was an organisation of former employees of the bus service (The Retired ACT Transport Employees Club Inc) that actively promoted actions to commemorate the former service through oral histories and collections.

Mr Pettersson submitted that because of these facts, the place was of social significance to the Corroboree Park local community and therefore met the requirements for provisional listing, because it not only may, but did have heritage significance.

Mr Arthur submitted that if the Tribunal, standing in the shoes of the decision-maker, were to set aside the decision it would need to meet the three requirements of s 32(3), that is, (i) it had to be satisfied, (ii) on reasonable grounds, (iii) that the place may have heritage significance.

In relation to being satisfied, Mr Arthur submitted that no particular level of proof was required, but there should be a state of "actual persuasion" or of having reached a "clear conclusion" about the matter, relying on the definition of "satisfied" in Words and Phrases Legally Defined[5], in particular as expressed by Finlay ACJ in Re Woodcock [6] in the New Zealand Court of Appeal.

In relation to "on reasonable grounds" Mr Arthur submitted that this did not depend on the fact that a person making an assertion as to some fact or situation did so on the basis of a genuine belief in the accuracy of the statement. Instead, he cited the joint judgement of Sheppard and Neave JJ in Cummings v Lewis and ors, [7] where they wrote "evidence of reasonable grounds might be established by evidence other than that of the persons who ... made particular representations..." and that "it is again the overall circumstances of the case which will provide more reliable guidance than would oral evidence on the part of interested parties".

As to whether or not the place may have heritage significance, Mr Arthur observed that no doubt the word "may" refers to a possibility that a place proposed for provisional registration might be found to have heritage significance after further investigation. However he submitted that it had to be more than a "bare possibility" - that there had to be a reason to think that it could be shown by further inquiry. In this case, he submitted that the facts gathered by both the applicant and the respondent were sufficient to enable the Tribunal to conclude that no such possibility existed

Mr Gerhard Zatschler, the Manager of the ACT Heritage Unit, gave evidence about a briefing note that he had prepared for the Minister for the Arts and Heritage on 20 July 2009, in which he had stated that

On first glance of the nomination it appears unlikely that the argument for 'strong and special associations' could be easily sustained... Further research may lead to other conclusions, however, at present it appears unlikely that the nomination will reach the threshold to warrant heritage listing.

1. When question about what was meant by the second sentence cited above, Mr Zatschler explained that when he had prepared the note, the Heritage Unit had not completed its research into the property and in order not to rule anything out, he had asked his staff to make further inquiries to be sure that all relevant facts were considered. By the time it was submitted to the Council for consideration, he was satisfied that the property could not be regarded as having heritage significance.

2. Mr Arthur then addressed the Criteria set out in s 10 of the Heritage Act, one or more of which are required to be satisfied for a place to warrant heritage listing. The applicant had sought listing on the basis that it satisfied criterion (h) but it had also been suggested that it might satisfy criterion (d), so he made submissions about how both of these should be interpreted.

it has strong or special associations with a person, group, event, development or cultural phase in local or national history

and Mr Arthur noted that when the Heritage Act was passed in 2004, this criterion differed slightly from that in the earlier heritage provisions of the Land (Planning and Environment) Act 1991, in that the words "which played a significant part" had been removed from before "in local or national history". [8]

1. Mr Arthur acknowledged that the omission of these words could be interpreted as setting a lower threshold for the criterion, but in his submission, no such meaning should be read into this change. There was nothing extrinsic to the Act to indicate what was the intent of the change, but he contended that an application which included persons etc who are not historically significant would be so extensive as to be unworkable. The requirement for the person, group, event, development or cultural phase to be "in local or national history" simply recognised that "history" is a record of what is significant in the past. He suggested that the commonly used phrase "to go down in history:" implied that history was about significant things or events, not just interesting things.

2. As to the meaning of "strong or special associations", Mr Arthur contended that the relationship between the place being considered and the person etc had to be one that was more than ordinary. He referred to several decisions of the former Administrative Appeals Tribunal [9] which had addressed the formerly worded criterion, from which it could be concluded that

a) A significant part played by the person, group etc is essential;

1. Contemporary prominence is not sufficient is there is no enduring legacy;

c) Strength of association can weaken through time; and

1. Just to be out of the ordinary is not enough, something extraordinary is required to establish a strong or special association.

1. In his submission, the association of Block 11 and its house is with Mr Tormey and Mr Canning, in the first case for 7 years and in the latter for 60 years, but there was nothing special in that association and neither person played any significant role in history. While a relevant group would consist of Mr Tormey, Mr and Mrs Canning, or perhaps bus drivers and bus personnel in general, there was no great association with them as individuals and none at all with bus drivers and personnel in general.

2. Mr Arthur contended that while the development of bus services in early Canberra was of general interest, it did not appear to have been done in such a way as to assume historical significance. He submitted that even if it was, the association of the house with that early development was limited to the time of the caretakership of Mr Tormey, but since the bus depot and Mr Tormey moved away, there was nothing to connect the house with those years. The residency of Mr Canning, who happened to be a bus driver, was not a continuation of the original association and even if it was, it is now gone. In his submission, there are no, and never have been any, physical reminders of the association.

3. Mr Arthur then addressed Criterion 10(d) which reads:

it is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations

and asked, was it highly valued by "the community" or a "cultural group" for and of those associations?

1. He contended that the Corroboree Park local community was not equivalent to "the community" which in his submission must refer to the broad community rather than a small section of it. While he conceded that there is a certain degree of interest in the place, he questioned whether it could be said to be "highly valued" which implies preserving something at a cost. The only group that could be identified as relevant was the Corroboree Park local community but he contended that there was no "special" association with that community. For these reasons, he submitted that criterion 10(d) was not met.

In general, he submitted that the evidence did not show that there was any heritage significance to the place, nor was there anything to indicate that further research might lead to heritage values being discovered. Consequently the Tribunal should confirm the respondent's decision.

The Tribunal, having determined that it has jurisdiction to hear the matter, has carefully considered the evidence and the submissions of the parties. As this is the first case to come before this Tribunal or its predecessor that deals with the issue of provisional registration, the correct interpretation of the statutory provisions is of some importance.

In the first instance, we accept the general analysis by Mr Arthur of the requirements for provisional registration under s 32(3) of the Heritage Act, set out in paras 17 to 20 above. The central issue before us is whether we can be satisfied on reasonable grounds that the place may have heritage significance. If we were to be so satisfied, we would have to set aside the respondent's decision and substitute our own decision or remit it to the respondent for reconsideration. If not, we would have to confirm it.

Words like "the community" and "a cultural group" lend themselves to a variety of interpretations. However, we must agree with Counsel for the respondent that should not be a read too broadly. Similarly, "strong or special associations" needs to read quite narrowly, else the range of places that would be found to have heritage significance would become unmanageable.

In this particular case, we do not consider what has been called "the Corroboree Park local community" to be a cultural group within the meaning of s 10(h) of the Heritage Act. It is appears to be no more than a group of people living in or in the vicinity of Corroboree Park and as far as we are aware is not constituted in any way. We were not informed of the size of its membership nor of its activities.

A more likely group to constitute such a group would be the Retired ACT Transport Employees Club Inc, which we were informed has sought and obtained grants from the Heritage Council in support of its activities, especially for the recording of oral histories by former employees and the care of its collections. However, that group had not expressed any interest in this matter, neither by joining as a party nor by the giving of evidence, so we are forced to conclude that the place does not have "strong or special associations' with that organisation.

Even if "the Corroboree Park local community" was to be accepted as a cultural group, we are not satisfied on reasonable grounds that the place has a strong or special association with them. While we accept that some people in the Corroboree Park area are aware that the house in question was once the residence of the caretaker of the bus sub-depot, we doubt that (other than the applicant and perhaps former bus employees living nearby) more than a few would feel a strong or special association with it.

A second issue is whether there is a strong or special association with a development or cultural phase in local or national history. The applicant has contended that the bus service and this route was an important element in the social development of early Canberra and we do not disagree with that. However, whether this particular house and place can be said to have a strong or special association with that bus service or route is the question.

The evidence shows that the house was built specifically for the purpose of housing a caretaker to oversee the bus depot in order to protect Commonwealth property located there. However, it served this function for only 7 years and when the bus depot was relocated to another site, the caretaker function ceased and it became just another Government-owned house for rent, albeit in this case to another bus driver. We are not satisfied on reasonable grounds that the place is of heritage significance because of this distant connection with the bus service.

With regard to criterion 10(d), the issue is whether the place is highly valued by the community or a cultural group for reasons of strong or special..."social associations". For the same reasons as outlined above, we do not consider that the Corroboree Park local community is equivalent to "the community" nor can it be legitimately described as a "cultural group". As stated in para 35 above, the Retired ACT Transport Employees Club Inc could be regarded as a cultural group, but evidently that group feels no strong of special social association with the place. There are certainly no strong or special religious, spiritual, cultural, or educational associations with any group and at best it could be said that there was a social association with the early Ainslie community, but that association no longer exists in our view.

We received no evidence to suggest that further research would reveal new information that would give the cottage or the place heritage significance.

In the light of these considerations, we cannot be satisfied on reasonable grounds that the place has or may have heritage significance.

The Tribunal orders that the Heritage Council's decision of 6 August 2009 (as amended by remade decision of 7 September 2009) is confirmed.

TRIBUNAL MEMBER/S: MR ALLAN O'NEIL, SENIOR MEMBER

DATE/S OF HEARING: 15 April, 2010 PLACE: CANBERRA

DATE/S OF DECISION: 4 May 2010 PLACE: CANBERRA

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

[1] It emerged during the hearing that the Development Application had been withdrawn and it was now proposed to retain and refurbish the existing cottage and to build a second house on the block, but this information played no part in the Tribunal's decision making.

[2] Geoffrey A Flick, Federal Administrative Law (2nd Ed, 2001)[AAT25.20, AAT25.70].

[3] Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (NSW) 1 ALD 167; Collector of Customs (NSW) v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 41 FLR 338; 24 ALR 307; 2 ALD 1.

[4] Secretary, Department of Social Security v Alvaro (1994) 50 FCR 219 [16]-[17].

[5] David Hay (Gen. Ed) Words and Phrases Legally Defined (4th Ed, 2009).

[6] Re Woodcock [1957] NZLR 960 at 963-964.

[7] Cummings v Lewis & Ors (1993) ATPR (Digest) 46-103 at 53,447.

[8] Land (Planning and Environment ) Act 1991 s 56, Schedule 2, item 1(g)

[9] Australian Garden History Society and ACT Heritage Council [1997] ACTAAT 198 at [31]; Salvation Army (NSW) Property Trust and ACT Heritage Council [1998] ACTAAT 28 at [24]; Wagner & Fuary and ACT Heritage Council [2003[ ACTAAT 54 at [123-130[; and Woden Valley Community Council & Royal Australian Institute of Architects and Commissioner for Land and Planning [2003] ACTAAT 19 at [p36].