Collesel v State of Queensland

[2001] QPEC 35

S t a t e R e p o r t i n g

Bu r e a u

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HIS HONOUR: The notice of appeal was filed on 21 October 1993.

It sets out in paragraphs A to S the grounds of appeal and

facts and circumstances relied upon in support. Paragraph S

is in the following terms:

“The Queensland Heritage Council has erred both in fact
and in law in determining that Magnetic House is of
cultural heritage significance and that it satisfies any
of the criteria set forth in section 23(1) of the

Queensland Heritage Act 1992."

The appellant submits that that ground encompasses section
23(3) of the Queensland Heritage Act, which is in the

following terms:

“A place does not satisfy the criteria for entry in the
heritage register if there is no prospect of the cultural
heritage significance of the place being conserved.”

On 14 April 1994 Judge Trafford-Walker in this Court ordered by consent that each party file and serve a list of disputed issues. That order was complied with. On 30 May 1994 the

respondent filed its list of disputed issues and it identified
as the disputed issues the issues contained in the Entry in
the Heritage register file number 600892, which was annexed to
the list. That entry relied for listing on facts said to
satisfy the criteria referred to in section 23(1) (a), (b),

(d), (e) and (h) of the Act.

No reference was made to section 23(3).

The appellant filed her list of disputed issues on 8 July 1994 and took issue in the sense of disputing the criteria for listing relied upon by the respondent. It also disputed that the building satisfied the definition of "cultural heritage significance" in section 4 of the Act.

The appellant also disputed and took issue with the conclusions drawn by the respondent as set out in the heritage register entry which I have referred to.

The appellant in paragraph 4 of her list of disputed issues also, perhaps unnecessarily, repeated and relied upon the grounds set out in the notice of appeal. No issue was raised about section 23(3).

Likewise, in the report of the assessor, Exhibit 4, and the letters written by the appellant's solicitors, Exhibit 5, no reference is made to section 23(3). The report limits itself to a consideration of the definition of "cultural heritage significance" and the criteria referred to in section 23(1)(a), (b), (e) and (h).

The assessor referred, in passing, to the view of Mr and Mrs
Collesel that the unimproved value of the property had
declined and would continue to decline as a direct result of
21052001 D.1 T12/vlcr M/T (Wall DCJ)
listing of the property under the Heritage Protection Act.

The reasons advanced by the appellant's solicitors in letters dated 19 July 1993 and 30 July 1993 do not raise section 23(3) as an issue.

It is only today that section 23(3) is articulated by Mr Toy for the appellant as an issue for specific consideration. Mr Fraser objects to the issue being raised and litigated now, in view of the history of the proceedings as I have outlined them

and he objects to the affidavits of Debra McDougall and

Steven Malcolm on the basis that those affidavits are solely referable, in effect, to the section 23(3) issue. Objection is also taken to substantial parts of the affidavit of Mr
Collesel on the same basis.

Ms McDougall's affidavit refers to the difficulties associated in obtaining insurance for the building by reason of its heritage listing. Mr Malcolm refers to administrative delays and consequences associated with heritage listing. Mr Toy submitted that the appellant's case is that section 23(3) is, in fact, raised on the material, in particular, by reason of paragraph S of the grounds of appeal.

On the other hand he conceded that the appellant's case in fact is that it is more expensive to maintain the building as the result of listing, for the reasons referred to by Mr Collesel, Ms McDougall and Mr Malcolm, in their affidavits.

He conceded further though, that it is not the appellant's case that the building is uninsurable, just that it is more expensive to insure. He also conceded that additional expense is also a consequence of the matters referred to by Mr Malcolm in his affidavit and those other matters of a like-nature referred to by Mr Collesel.

He conceded that the material does not establish that there is no prospect of cultural heritage significance of the building being conserved within section 23(3). He conceded that the evidence would have to go further than that already filed to establish that.

He also conceded that the list of disputed issues does not list, specifically, section 23(3) as a disputed issue and that the respondent would have been, and was entitled to, proceed on the basis that it was not a disputed issued.

Reference was made by him to discussions which had taken place between the parties over the years since the appeal was filed.

Objection was taken to those matters on the basis that they

may have included without prejudice communications. The

concessions made by Mr Toy were, in my view, properly made.

I am of the view that if the appellant intended to raise
section 23(3) as a disputed issue, it should have been
specifically referred to and was not. All of the issues

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canvassed between the parties, up until the filing of the three affidavits which I have referred to, canvassed only the criteria referred to in section 23(1) that was said to be relevant or irrelevant, depending on one's view and the definition of "cultural heritage significance" in section 4.
I think the respondent was entitled to prepare it's case on the basis that the issue referred to in section 23(3) was not an issue which was going to be raised on the appeal.
In my view, the affidavits which have been objected to, do not relate to the issues encompassed by section 23(1) or the definition of "cultural heritage significance" in section 4 and for those reasons, are not relevant and are, therefore, inadmissible.
Mr Toy's concession about the extent to which his material goes in relation to section 23(3) has the effect that even if that subsection had been raised as a disputed issue, the material filed does not, from an evidentiary point of view, go so far as to establish the absence of any prospect of the cultural heritage significance of the place being able to be conserved. So even if that was an issue, the material does not go far enough in much the same way that the material in Advance Bank Australia Limited v. The Queensland Heritage Council (1994) Queensland Planning Law Reports 229, was found not to go far enough. Judge Row, in that case, said at page 239:

"The appellant called evidence of no prospects. However,
the various reports fail to establish facts on which
those reports were founded. The reports and evidence
called from such witnesses are of no weight as the
primary facts on which the opinions were expressed have
not been established."

In a similar way I do not think that the material filed here goes far enough for the purposes of section 23(3), even if that was an issue.

TRANSCRIPT OF PROCEEDINGS

Issued subject to correction upon revision	Copyright in this transcript is vested in the Crown. Copies
thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.
PLANNING AND ENVIRONMENT COURT JUDGE C F WALL QC
No P & E No 18 OF 1993
CESIRA MARIA COLLESEL Appellant
and
THE STATE OF QUEENSLAND Respondent
TOWNSVILLE ..DATE 21/05/2001
EXTRACT OF PROCEEDINGS