Gladstone Ports Corporation Ltd v Queensland Heritage Council
[2012] QPEC 9
•28 February 2012
PLANNING & ENVIRONMENT COURT
OF QUEENSLAND
CITATION:
Gladstone Ports Corporation Ltd v Queensland Heritage Council [2012] QPEC 9
PARTIES:
GLADSTONE PORTS CORPORATION LTD ACN 131 965 896
(Applicant/Appellant)AND
QUEENSLAND HERITAGE COUNCIL
(Respondent)FILE NO/S:
18/2009
DIVISION:
Planning and Environment
PROCEEDING:
Hearing of an application
ORIGINATING COURT:
Planning and Environment Court, Brisbane
DELIVERED ON:
28 February 2012
DELIVERED AT:
Brisbane
HEARING DATE:
14 February 2012
JUDGE:
RS Jones DCJ
ORDERS:
1. The application is dismissed.
2. The appeal is adjourned for mention at the next available callover date.
CATCHWORDS:
APPLICATION – the Port Curtis Sailing Club is located on land owned by the appellant – pursuant to the Queensland Heritage Act 1992 the respondent made a decision to list the clubhouse on the Queensland heritage register – that decision has been appealed by the appellant
SUBSTANTIVE ISSUE in the appeal is whether the clubhouse satisfies the criteria specified in ss 35(a) and 35(g) of the Queensland Heritage Act 1992
ONUS – WHICH PARTY BEARS THE ONUS OF PROOF IN THE SUBSTANTIVE APPEAL – neither Queensland Heritage Act 1992 nor Integrated Planning Act 1997 expressly identifies which party bears the onus of proof – contended by appellant that as the heritage listing negatively impacts on owner’s rights the respondent should bear the onus of proving that the clubhouse satisfies the criteria specified under ss 35(a) and 35(g) of the Queensland Heritage Act 1992
Queensland Heritage Act 1992
Integrated Planning Act 1997
Sustainable Planning Act 2009
Advance Bank Australia Ltd v Queensland Heritage Council (1993) QPEC 99; [1994] QPLR 229
Attorney-General (Qld) v Lawrence [2009] QCA 136; [2010] 1 Qd R 505
Geraldton Building Co Pty Ltd v May [1977] HCA 17; 136 CLR 37
JL Smallcombe as trustee for Cottontree Trust v Queensland Heritage Council [2009] QPEC 65; [2010] QPELR 68
Marshall v Director General, Department of Transport [2001] HCA 37; (2001) 180 ALR 351
Project Blue Sky Inc and Ors v Australian Broadcasting Authority [1998] HCA 28 (1998); 194 CLR 355
Reelaw v Queensland Heritage Council [2004] QPEC 79; [2005] QPELR 335
Western Australian Planning Commission v Temwood Holdings Pty Ltd [2004] HCA 63; (2004) 211 ALR 472COUNSEL:
Mr T Trotter and Mr J Dillon for the applicant/appellant
Mr A Skoien for the respondent
SOLICITORS:
McDonald and Michel for the applicant/appellant
Crown Law for the respondent
This proceeding is concerned with an application by Gladstone Ports Corporation Ltd for orders that in the substantive hearing of the appeal filed in this court, the respondent bears the onus of proof. For the reasons given the application is dismissed.
Background
The applicant is the owner of land described as Lot 192 on SP 132778 at Gladstone. A part of that land has been approved as Strategic Port Land pursuant to the Transport Infrastructure Act 1994. Strategic Port Land is not subject to local government planning instruments.
Located on the land is a building currently leased to the Port Curtis Sailing Club (the clubhouse). That lease expires in 2013 subject to an option to renew for 10 years. No evidence was led one way or the other about whether the lease would be renewed.
Following an application by a member of the public, the respondent made a decision to enter the clubhouse in the Queensland heritage register. The applicant has appealed that decision.
In the hearing of the appeal the substantive issues centre around whether or not the clubhouse satisfies the criteria for entry in the heritage register prescribed by s 35(a) and s 35(g) of the Queensland Heritage Act 1992 (QHA). Those sections provide:
“Criteria for entry in register
(1)A place may be entered in the Queensland heritage register as a State heritage place if it satisfies 1 or more of the following criteria—
(a)the place is important in demonstrating the evolution or pattern of Queensland’s history
…
(g)the place has a strong or special association with a particular community or cultural group for social, cultural or spiritual reasons; …”
The merits of the appeal were not agitated in this proceeding. The sole focus was the determination of which party bears the onus of proof in the substantive appeal. The applicant contends that the respondent should bear the onus of proving that the clubhouse satisfies ss 35(a) and 35(g) of the QHA. The respondent contends that the applicant bears the onus of proving that it does not.
The arguments
The applicant points to the following features of the appeal which it says strongly support the view that the respondent bears the onus:
(i) entering a place in the heritage register has the potential for serious adverse impacts upon owner’s property rights without any entitlement to compensation.
(ii) practical procedural considerations and matters of fairness.
(iii) presumptions of statutory interpretation and, in particular, the appeal process under s 164 of the QHA and Chapter 4, Part 1, Division 12 of the Integrated Planning Act 1997 (IPA).
In the applicant’s written reply the following propositions are advanced:[1]
[1]At pp 5-6.
“(1)It is a longstanding principle of statutory construction that Acts are not to be construed as interfering with vested interests unless that intention is made manifest. This presumption against the deprivation of rights without clear language is not adopted to frustrate the will of Parliament. It is founded on the presupposition that it is Parliament’s desire to act fairly and justly in respect of the rights of those who are subject to its laws.
(2)The Queensland Heritage Council has resolved to enter the appellant’s building on the State heritage register. The effect of the entry is to severely curtail the appellant’s property rights.
(3)No entitlement to compensation arises. The sole right Parliament has granted to the appellant to protect its property is the right of appeal.
(4)The appeal is a hearing anew. The appellant has advanced a variety of reasons to support a construction of the Acts which cast the legal burden upon the respondent. The appellant’s submissions focus on the true nature of the appeal and on the substance and purpose of the legislation and its effect on the parties’ rights.
(5)Descriptors of the proceeding and labels attaching to the parties do not, and ought not, determine the rights of the appellant in this instance. That is so whether or not the Acts confer wide or narrow rights of appeal on the appellant.
(6)It would be repugnant to the principles of statutory interpretation if the appellant were required to disprove the respondent’s position to protect its property rights. The respondent has resolved to enter the appellant’s property on the State heritage register. It is for the respondent to satisfy the court that the legal issue should stand.”
The respondent’s position is conveniently summarised in its written submissions under the heading “Conclusions”:[2]
[2]At pp 11-12.
“(a)there is simply no scope for the operation of any presumption in favour of the Appellant in this case and there is no reason why the ordinary rule in relation to appeals (that the person who challenges the decision below ought to bear the onus of proof) should not apply in an appeal involving a hearing anew.
(b)the prospect that the onus in the Appeal rests with the Appellant raises no issues concerning the practical procedures in the Appeal or fairness and, accordingly, such considerations do not warrant a construction of the QHA and the IPA that cast the onus of proof upon the Respondent.
(c)there is nothing about the nature of appeal under the IPA (whether in respect of decisions under the IPA or in respect of decisions under the QHA) which requires that the onus of roof be imposed upon the Respondent.
(d)the QHA, properly construed, provides that:
(i)an owner of premises may make an appeal on the grounds that the property does not satisfy any of the heritage criteria;
(ii)an applicant for listing of premises on the Queensland heritage register may make an appeal (against a deemed refusal of the application) on the grounds that that the property does satisfy one of the heritage criteria; and
(iii)in either case, the appellant will bear the onus of establishing the grounds of appeal;
(e)This court would not conclude that the absence of any provision reversing the onus in an appeal such as this represents an accidental omission by the Legislature – rather, this court should conclude that the Legislature intended that there be no such reversal of the onus of proof in an appeal such as this Appeal; and
(f)Advance Bank Australia Ltd v Queensland Heritage Council was not wrongly decided, but even if it was, the above considerations lead to the conclusion that, on their proper construction, the QHA and IPA confer the onus of proof in this Appeal upon the Appellant …”
The owner’s rights
In Advance Bank Australia Ltd v Queensland Heritage Council,[3] entry in the heritage register was described as a severe curtailment of the right of the property owner to deal with the property as he sees fit. Of course, that may not always be the result but, Mr Skoien, counsel for the respondent, acknowledged that in many instances the owner’s rights to deal with his property could be significantly restricted. It is also not in dispute that the applicant is not given any rights to compensation resulting from the listing. Entitlements to claim compensation arise in the case of a place being entered in a local government heritage register[4]. However, in the case of a place being entered in the State register, the owner’s rights are limited to an appeal against that decision.[5]
[3][1994] QPLR 229 at 233.
[4]Queensland Heritage Act 1992, s 124.
[5]Queensland Heritage Act 1992, Div 4 Pt 13.
In the applicant’s written submissions under the heading “Presumptions of statutory interpretation”, reference is made to a number of cases which state the well-known principle that statutes should not be construed as interfering with vested interests, economic rights and interests or individual rights, particularly property rights, in the absence of words making that intention and purpose clear. As Justice Gaudron stated in Marshall v Director General, Department of Transport:[6]
“Although the rule that legislative provisions are to be construed according to their natural and ordinary meaning is a rule of general application, it is particularly important that it be given its full effect when, to do otherwise, would limit or impair individual rights, particularly property rights.”
[6](2001) 180 ALR 351 at 365. See also Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363, at 363-4; Planning Commission (WA) v Temwood Holdings Pty Ltd (2004) 211 ALR 472 at 483 per McHugh J.
In my respectful opinion, authorities dealing with the construction of statutes purporting to interfere with an individual’s property rights are not particularly relevant to the determination of this application. Those authorities, and possibly others, may well be relevant in the substantive appeal in determining whether the criteria specified under s 35(a) and s 35(g) of the QHA are satisfied. However, they are of no real assistance in the analysis of the legislation relevant to the determination of which party bears the onus of proof in this appeal. In the event that there was some genuine ambiguity or obscurity in the words used in the relevant legislation, that property rights would be affected, might work in favour of the applicant, but that is not the case here.
Practical procedural considerations and matters of fairness
On behalf of the applicant it is asserted that “basic issues of fairness require the respondent to bear the legal burden in this appeal.”[7] This assertion appears to be premised on the basis that the appeal ought be approached on the understanding that the respondent proposes to enter the clubhouse on the register. It is then asserted that “the orthodox legal convention that a party desiring the court to grant relief or take action must prove their case is a reflection of the fundamental issues of fairness underlying that approach.” This argument glosses over the fact that the decision to enter the clubhouse in the register has already been made. It is that decision that is under appeal. To approach this application on the basis that the respondent intends to do what it has already done would be artificial and erroneous.
[7]Applicant’s written submissions at para 41.
It is next argued that it would be unfair to require the applicant to prove the negative proposition that the clubhouse has no heritage value. And that “as a consequence it would be required to anticipate and negative every possible basis upon which the respondent may lead evidence or run its case in relation to the cultural heritage criteria which are or may be put in issue.”[8] To bear the onus of proving a negative may not be the most desirable of situations. However, it is not an uncommon situation in this court. For example, the requirement of a developer to prove that its development application is not in conflict with the relevant local government planning scheme. That a party is required to prove a negative, neither of itself nor in conjunction with the other matters raised by the applicant, is not sufficient reason to reject the orthodox legal convention that a party desiring the court to grant relief or take action must prove its case. In Attorney-General (Qld) v Lawrence[9] Chesterman JA (with Wilson J concurring) relevantly said:
[8]At para 43.
[9][2010] 1 Qd R 505 at para [30].
“What is in issue is whether the Attorney-General, having discharged the onus referred to in s 13(7), must persuade the court that one or other of the orders specified in s 13(5) should be made. In my opinion he must. Such a conclusion accords with the orthodox legal convention that the party who makes an application must satisfy the court that the order sought should be made. The authors of Cross on Evidence (Australian Edition) put it shortly:
‘A fundamental requirement of any judicial system is that the person who desires the court to take action must prove the case to its satisfaction.’
The authorities cited, Dickinson v Minister of Pensions (1953) 1 QB 228 at 232 and Curry v Dempsey (176) 69 SR (NSW) 11 at 125, are civil cases but the principle is obviously of wider application.”
The relevant legislation could of course expressly, or by necessary implication, displace this legal convention. That situation is addressed below when discussing s 4.1.50 of the IPA.
The construction contended for by the applicant could also, in my respectful opinion, have bizarre consequences under s 162(1) of the QHA which relevantly provides:
“Grounds for appeal
(1)An appeal by a person mentioned in s 161(1)(a) or (b) may only be made on the ground that the place the subject of the appeal does or does not satisfy the cultural heritage criteria.” (emphasis added)
If the applicant’s argument was fully accepted, in the case of an affected person appealing on the basis that the place in question does not meet the cultural heritage criteria, the respondent would bear the onus in the appeal. However, in the case of an appellant appealing against a refusal to enter the place in the register, that party would bear the onus of proving that the premises does satisfy the cultural heritage criteria. It is difficult to imagine that Parliament intended different parties to bear the onus depending on whether or not the party was faced with a positive or negative case.
Finally on this topic, the requirement for the applicant to “anticipate and negate” the respondent’s case, can be largely dealt with by the management of the court. This court regularly makes orders and gives directions requiring a party to fully appraise the other party of the real issues in the case. Including, where appropriate, making orders for further and better particulars. The applicant in its Notice of Appeal has particularised the grounds upon which it contends the cultural heritage criteria in s 35(a) and s 35(g) of the QHA have not been met.[10] Subsequent to the filing of the Notice of Appeal, orders have been made requiring the parties to identify the issues in dispute, including attending a without prejudice conference for the purpose of resolving or narrowing the issues, making disclosure, the exchange of written expert reports and the requirement for the respective experts to meet and prepare a joint report.[11] More recently, orders have been made requiring the parties to exchange statements of evidence of any witness who is not an expert.[12] Orders of this nature are typical in appeal proceedings in this Court.
[10]Notice of Appeal Grounds 14-17.
[11]Orders made by Judge Britton SC 13 May 2010.
[12]Orders of Judge Rackemann 20 January 2012.
There are no practical procedural matters or considerations of fairness involved in this case which would require the respondent to bear the onus in the appeal.
Presumptions of statutory interpretation and the appeal process under the QHA and the IPA
In Geraldton Building Co Pty Ltd v May[13] Barwick CJ stated:
“… effect must be given to the express legislative will. However, in construing the Act, regard should be had to the consequences of any particular construction and the legislature credited with the intention of doing justice to both the affected parties.”
[13](1977) 136 CLR 379 at 387.
I was also referred by counsel for the applicant to the following well known passages from the High Court decision of Project Blue Sky Inc & Ors v Australian Broadcasting Authority:[14]
“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that ‘the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed’. Thus, the process of construction must always begin by examining the context of the provision that is being construed.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court ‘to determine which is the leading provision and which the subordinate provision, and which must give way to the other’. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.” (citations omitted)
[14](1998) 194 CLR 355 at 381-2 per Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ.
Mr Trotter contends that when regard is had to the relevant provisions of the QHA and the IPA, the more harmonious and just result is that, on a proper construction of the legislation, it is the respondent that bears the onus of proof.
Relevant provisions of the QHA are:
“161 Who may appeal
(1)This section applies to the following persons—
(a)the owner of a place who is given, or is entitled to be given, an information notice under section 54(3) about a decision of the council;
(b)a person who is given, or is entitled to be given, an information notice under section 56(2) about a decision of the council;
(c)the owner of a place who is given, or is entitled to be given, an information notice under section 67(3) about a decision of the council.
(2)The person may appeal to the Planning and Environment Court against the decision.
162Grounds for appeal
(1)An appeal by a person mentioned in section 161(1)(a) or (b) may only be made on the ground that the place the subject of the appeal does or does not satisfy the cultural heritage criteria.
(2)An appeal by a person mentioned in section 161(1)(c) may only be made on the ground that the place the subject of the appeal does or does not satisfy the archaeological criteria. (Emphasis added).
163Starting appeal
An appeal must be started within 20 business days after—
(a)if the person has been given an information notice about the decision—the day the person is given the notice; or
(b)if paragraph (a) does not apply—the day the person otherwise becomes aware of the decision.
164Court process for appeal
The Planning Act, chapter 7, part 1, division 13, with any changes the Planning and Environment Court considers appropriate, applies to an appeal under this part.”
The “Planning Act” relevant to this application is the IPA. Before turning to Chapter 4, Part 1, Division 12 of that Act, I consider that there is nothing in any of the sections identified above that expressly, or by necessary implication, displace the orthodox legal convention. I have already observed that it could involve an unnecessary and inappropriate contradiction in the operation of s 162 if the applicant’s argument was accepted. It is also significant that had Parliament intended that the onus be reversed it could have readily provided that in the case of an appeal under Part 13 of the QHA, it was the respondent who bore the onus of proving that the place did or did not satisfy the cultural heritage criteria set out in s 35 of the Act.
In paragraph 56(3) of its written submissions, the applicant asserts:
“The basis for making an appeal is no longer cast in the negative. The subject matter of an appeal is now whether a place ‘does or does not’ satisfy the cultural heritage criteria. This is a significant change. The wording is now consistent with the Heritage Council bearing the onus in the appeal. It removes the practical difficulties the Heritage Council would have faced if it bore the onus of proving the negative of a negative under Reprint 1 of the QHA. The difficulties flowing from the former wording of the section were referred to in Advance Bank.”
I do not agree that the words “does or does not” in s 162 of the QHA are “now consistent with the Heritage Council bearing the onus in the appeal”. The wording is no more consistent with that proposition than with that of the Heritage Council having to defend its decision, regardless of whether it was a decision to enter a place in the register or to not enter a place in the register. I accept that s 162(1) is no longer only cast in the negative. However, I am unable to understand how that really assists the applicant in this proceeding.
Chapter 4, Part 1, Division 12 of IPA relevantly provides in s 4.1.49 that the hearing of an appeal is to be in accordance with the rules of the court or, if the rules make no provision or insufficient provision, then at the direction of the judge constituting the court. Section 4.1.52 relevantly provides that appeals to this court are by way of “hearing anew”. Section 4.1.54 gives the court wide powers in deciding an appeal.
Of particular importance is s 4.1.50:
“4.1.50 Who must prove case
(1)In an appeal by the applicant for a development application, or a person who has applied for approval of a proposed master plan, it is for the appellant to establish that the appeal should be upheld.
(2)In an appeal by a submitter for a development application, it is for the applicant to establish that the appeal should be dismissed.
(3)In an appeal by an advice agency … it is for the applicant to prove that the appeal should e dismissed.
(4)In an appeal by a person who appeals under sections 4.1.30, 4.1.31, 4.1.33A, 4.1.33B or 4.1.36, it is for the appellant to establish that the appeal should be upheld.
(5)In an appeal by a person who is given an enforcement notice, it is for the entity that gave the notice to establish that the appeal should be dismissed.
(6)In an appeal by a person who is dissatisfied with a decision about compensation, it is for the local government that decided the claim to establish that the appeal should be dismissed.
(7)In an appeal by a person who is dissatisfied with a decision about acquiring designated land, it is for the designator to establish that the appeal should be dismissed.
(8)In an appeal by a party to a proceeding decided by a tribunal, it is for the appellant to establish that the appeal should be upheld.”
The first thing to note is that neither Part 13 of the QHA nor s 4.1.50 of the IPA expressly identifies which party bears the onus of proof in appeals such as this. The other thing to note is that the onus of proof changes in certain circumstances. Pursuant to subsections (1), (2) and (3), it is the person who lodged the development application that bears the onus regardless of whether it or another party instituted the appeal. To a similar effect is subsection (5) concerning enforcement notices, subsection (6) concerning appeals by a person dissatisfied by a decision made by a local authority about compensation and subsection (7) concerning appeals by a person dissatisfied by a decision about the acquisition of designated land. As the applicant correctly pointed out, it is not determinative that the applicant is described as the appellant in the substantive proceeding. However, that the applicant is the party seeking the intervention of the court and orders in its favour is relevant.
It is true that the provisions of s 4.1.50 of IPA do not require the party seeking the intervention of the court to bear the onus of proof in every case. However, as I have already stated, it is significant that had Parliament intended to reverse the onus in appeals such as this, it could have readily provided for that in Part 13 of the QHA. The same observation can be made about s 4.1.50 of the IPA.
It is also of significance that the amendments to the QHA and the introduction of IPA occurred after the decision of this court in Advance Bank Australia Ltd v Queensland Heritage Council,[15] where this court determined that, under the provisions of the QHA’s predecessor, the appellant bore the onus of proof. In this context, the submissions made by Mr Skoien have force:[16]
[15][1994] QPLR 110.
[16]Respondent’s written submissions, paras 2.22, 2.23 and 2.24 of
“… the provisions of the IPA make specific provision for reversal of the onus in certain circumstances. An appeal under the QHA is not included in those circumstances. The failure of the legislature to include any specific provision (either in the IPA or the QHA) about the onus in appeals under the QHA is a clear indication that the legislature did not intend that the onus would be reversed in those appeals.
The fact that some of the specific examples in the IPA where the onus is reversed involve circumstances where property rights may be affected merely goes to highlight the significance of the omission in respect of appeals under the QHA. In this regard it is noted that the changes to the QHA (inserting the relevant appeal provisions) occurred in 2007:
(a)about a decade after the provisions concerning the specific reversals of onus were included in the IPA; and
(b)about 12 years after the decision in Advance Bank Australia v Heritage Council in which this court determined that an appellant in an appeal against listing would bear the onus of proof in that appeal.
In all the circumstances, it is submitted that this court would not conclude that the absence of any provision reversing the onus in an appeal such as this represents an accidental omission by the legislature. Rather, the court should conclude that the legislature intended that there be no such reversal of the onus of proof in an appeal such as this appeal.”
During oral submissions, Mr Trotter placed particular emphasis on subsection (6) of s 4.1.50 of IPA.[17] Mr Trotter submitted:[18]
“… my submission is that if the objective and harmonious reading of statutes or the reading of statutes to produce harmonious results is important as a statutory principle of construction, one would have to read subsection (6) as being a very very strong indicator indeed, given the nature of this claim and the nature of these circumstances that the legislature intended. But the onus would not be dramatically different in a case involving almost identical factual and consequential circumstances, merely because one was a Heritage Act matter pure, that is, under the relevant provisions here and the other one was a provision about the local listing, or the listing by the local register” (emphasis added).
[17]E.g. T1-14 LL20-60; T1-15 LL35-60; T1-22.
[18]T1-22 LL15-30.
In my respectful opinion, this submission fails to have sufficient regard to the facts that when a place is affected by inclusion in a local government register, Parliament expressly provided for the right to compensation and also that, in circumstances where there is an appeal against the assessment of compensation, the local authority bore the onus to prove that the appeal should be dismissed. However, in circumstances where the place is entered in the State register, Parliament provided that while no compensation is payable, an affected person had the right of appeal. But, unlike the situation dealing with compensation in respect of local registers, it did not see fit to include a provision to similar effect as subsection (6) of s 4.1.50 in either the QHA or the IPA.
For the reasons given, I am unable to accept the submission that the existence and effect of subsection (6) of s 4.1.50 is a “very very strong indicator” that Parliament intended the onus to be reversed in appeals such as this. When the relevant provisions of the QHA and the IPA are read together, there is no basis for concluding that the orthodox legal convention is displaced. This conclusion raises no conflict between the relevant provisions of the QHA and the IPA. And, when those provisions are read in context, it could not be said that this construction leads to unjust or inharmonious consequences. Accordingly, the application should be dismissed.
The Advance Bank case
Given the conclusions I have already reached, it is not necessary for me to deal with the questions raised about the judgment of this court in Advance Bank Australia v Queensland Heritage Council. However, given the level of argument advanced by the parties on those questions, I consider it appropriate to do so.
In Advance Bank Australia Ltd v Queensland Heritage Council His Honour Judge Row was concerned with an application under the Queensland Heritage Act 1992 as it then was for orders, to the effect, that the appeal was by way of a rehearing de novo and the onus lay on the Heritage Council to establish the facts justifying listing in the register.
His Honour determined that the appeal was not by way of hearing de novo but was a “special kind” of appeal created by the statute. His Honour said:[19]
[19]At p 112 L (c)-(i).
“The absence of many judicial indicia in relation to the proceedings before the council are indicative that, in the circumstances, the hearing before the Court is in the nature of a rehearing, but because of the variations, there cannot be a rehearing de novo, as that term is usually understood. Similarly, the rehearing is not limited to the matters which were before the Council when it considered the application and made its decision that a place be entered on the Register on a permanent basis. The appeal is in the nature of a rehearing of a special kind which is created by the statute. The legislative intent envisages the taking of evidence on those issues of the appeal which may be raised under s 30(6) of the Act.
The legislature by the limitation of the grounds of appeal under s 30(6) of the Act has indicated an intention that the matters before the Court are not the same as those matters which may be properly considered by the Council upon the application.
In my opinion, the appeal is in the nature of a rehearing with the Court being at liberty to hear evidence relevant only to the issues which may lawfully be raised in an appeal under s 30(6) of the Act. The parties are at liberty to adduce such evidence as is relevant to the issues raised in the Notice of Appeal and are not restricted to matters which were before the Council, e.g. the objection lodged under s 26(1) of the Act.
The Act specifically limits the issues which may be raised on the appeal. Whilst the placing of an onus on the Appellant in those circumstances is to establish the negative, nevertheless I am satisfied that the onus to establish the matters raised in the appeal rest on it in accordance with the legislative intent as set out in s 30(6) of the Act. Whilst the placing of an onus on the appellant to prove a negative may, in some circumstances, be undesirable, I do not see that as a practical matter, the issues arising in the appeal are matters which are capable of being proved in a positive sense. The fact that upon an appeal, the Court may confirm or vary or reverse the decision under appeal, does not extend the power of the Court beyond determining those issues which may properly be raised under s 30(6).” (emphasis added)
In Reelaw v Queensland Heritage Council[20] Judge Wall QC observed:
“Both parties, perhaps influenced by the decision in Advance Bank Australia Ltd v Queensland Heritage Council (1994) QPLR 110, proceeded on the basis that the onus of proof was on the appellant. The issue was not argued before me. I am prepared to proceed on that basis, but that is not to be taken as necessarily signifying assent that the provisions of the Act should be interpreted that way.”
[20][2005] QPELR 335 at para [11].
In the more recent case of JL Smallcombe (as trustee for theCottontree Trust) v Queensland Heritage Council[21] Mr Skoien, counsel for the appellant in that case, made the concession that his client bore the onus of proof. His Honour Judge Robertson considered that proposition to be correct.[22]
[21][2010] QPELR 68 at paras [8] and [9].
[22]Ibid at para [11].
On behalf of the appellant, it is submitted that Advance Bank is of little, if any, relevance in this proceeding, given the substantive amendments to the QHA and the introduction of the IPA. In the alternative, it was submitted that the case was wrongly decided.
In support of its proposition that Advance Bank was wrongly decided, it was submitted that:[23]
[23]Appellant’s written submissions, para 60.
“The decision of Advance Bank was in error for the following reasons:
(1)The Court erred in determining that the jurisdiction of the Court was different from the jurisdiction of the Heritage Council in material respects. Alternatively, the court erred in the amount of weight it placed upon that finding.
(2)The Court erred in determining that the appeal ‘cannot be a hearing de novo’ as that term is usually understood. Alternatively, the Court erred in the weight it placed upon the limitations inherent in all appeals by way of rehearing, where issues may initially be confined statutorily and by the pleadings.
(3)The Court erred in determining that the nature and extent of the power and discretion of the Heritage Council and the Court to receive evidence or to make a decision differed in any significant way.
(4)The Court erred in finding that the jurisdiction of the court was limited to determining if a place did not satisfy the cultural heritage criteria, notwithstanding that the appeal was a hearing anew.”
In my opinion, Advance Bank, insofar as it is relevant to this application[24] was not wrongly decided. The jurisdiction of the court in determining an appeal under the QHA as it then was was clearly different to the assessment and decision making process given to the Heritage Council under that Act. The appeal to the court was not by way of a hearing de novo as that term is usually understood. A hearing de novo provides for a hearing over again or, to put it another way, from the beginning. The court effectively stands in the shoes of the original decision maker. The court, in the circumstances of Advance Bank, could of course receive evidence which was not relied on in the original decision making process. However, to be capable of being admitted, evidence was limited to only that relevant to the issues which could be lawfully raised in the appeal. Section 30(6) of the QHA as it then was provided:
“If the appeal is against a decision to enter a place in the heritage register on a permanent basis, the appeal may only be made on the basis that place is not of cultural heritage significance or does not satisfy the criteria for entry in the Register.”
[24]The then unresolved controversy about whether the costs required to preserve the place was a relevant consideration is of no relevance to this application. C.f. Advance Bank at p 111; Reelaw at paras [75]-[76].
In this context Judge Row, with respect, correctly went on to say:[25]
“An analysis of the various statutory provisions is indicative that the process involved prior to the entry of place in the Register on a permanent basis concerns many issues which are much broader than those issues which can be raised by the Appellant on the appeal under s 30(6) of the Act. The statutory procedure further [sic] is indicative that there is a discretion imposed on the Council as to whether or not it will proceed after a consideration of the assessor’s report to enter a place in the Register. There is no limitation imposed in relation to relevant considerations which determine whether the Council will proceed with the application to register a place permanently on the Register. This procedure is to be contrasted with the provisions of s 30(6) whereby the appeal is limited to the matters therein stated.”
[25]At p 111 L (g)-(i); also at p 112 L (c)-(j).
As His Honour clearly identified, the Court was not capable of standing fully in the shoes of the original decision maker.
While subsection (7) of s 30 of the QHA as it then was gave to the court relatively wide powers in regard to the types of orders it could make, at the end of the day any orders (including consequential orders) were effectively limited to the determination of whether the evidence established that the place was or was not of cultural heritage significance or did not satisfy the criteria for entry in the register. Having reached that conclusion based on the relevant law and the evidence, the court did not then have some residual power or discretion to reverse that finding. To adopt the language used by Judge Row, the power of the court to make orders did not extend beyond the power to determine those issues which were properly raised under s 30(6) of the QHA as it then was In this context, it is wrong, in my respectful opinion, to assert, as the appellant did, that Advance Bank was wrongly decided, in that it “erred in determining that the nature and extent of the power and discretion of the Heritage Council and the Court to receive evidence or to make a decision differed in any significant way.”[26]
[26]Applicant’s written submissions, at para 60(3).
In Advance Bank, Judge Row found that the appellant bore the onus of proof “…in accordance with the legislative intent as set out in s 30(6) of the Act.”[27] His Honour did not give any detailed reasons. It is my respectful opinion, it was not necessary to do so. That finding is entirely consistent with the orthodox legal convention discussed above.
[27]At 112 L H.
Section 4.1.50 of IPA now makes clear that Parliament intended that convention not to apply in certain cases. However, where that convention has not been clearly displaced, it will usually apply In that regard, notwithstanding the major changes to the QHA and the introduction of s 4.1.50 of IPA into the appeal process, the decision of Judge Row is still relevant authority for the application of the orthodox legal convention in appeals such as this.
For the reasons given, I find that on a proper construction of the relevant provisions of the QHA and the IPA, the applicant bears the onus of proving that the clubhouse should not have been entered in the register.
Accordingly, the orders of the court are:
1. The application is dismissed.
2. The appeal is adjourned for mention at the next available callover date.
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