John Flynn Community Group Inc. and Flynn Primary School Parents and Citizens Association Inc. v ACT Heritage Council
[2012] ACTSC 50
•17 April 2012
JOHN FLYNN COMMUNITY GROUP INC. AND FLYNN PRIMARY SCHOOL PARENTS AND CITIZENS ASSOCIATION INC. v ACT HERITAGE COUNCIL
[2012] ACTSC 50 (17 April 2012)
ADMINISTRATIVE LAW – Appeals from Administrative Authorities – seeking leave to appeal from a decision of the ACT Civil and Administrative Tribunal upholding decision of the ACT Heritage Council not to provisionally register the nominated places under the Heritage Act 2004 (ACT) – appeal may only be brought on errors of law – no errors of law found – application refused
ACT Civil and Administrative Tribunal Act2008 (ACT), ss 22Q, 29, 60, 86
Australian Capital Territory (Self Government) Act 1988 (Cth), s 28
Heritage Act 2004 (ACT), ss 3, 10, 13, 16, 28, 32, 33, 34, 114
Legislation Act 2001 (ACT), Dictionary, s 139
Nature Conservation Act 1980 (ACT)
Planning and Development Act 2007 (ACT)
Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
B & L Linings Pty Limited & anor v Chief Commissioner of State Revenue [2008] NSWCA 187
Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55
BTR v Westinghouse Brake and Signal Co (Australia) Ltd (1992) 106 ALR 35
Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389
Evans v Shiels (2004) 145 A Crim R 337
Public Service Board of NSW v Osmond (1986) 159 CLR 656
Re TNT Skypack International (Australia) Pty Ltd v the Commissioner of Taxation [1988] FCA 119
No. SCA 19 of 2011
Judge: Burns J
Supreme Court of the ACT
Date: 17 April 2012
IN THE SUPREME COURT OF THE )
) No. SCA 19 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:JOHN FLYNN COMMUNITY GROUP INC.
First Appellant
AND: FLYNN PRIMARY SCHOOL PARENTS AND CITIZENS ASSOCIATION INC.
Second Appellant
AND: ACT HERITAGE COUNCIL
Respondent
ORDER
Judge: Burns J
Date: 17 April 2012
Place: Canberra
THE COURT ORDERS THAT:
The application for leave to appeal is refused.
On or about 20 December 2007, John Flynn Community Group Inc. nominated the Flynn Primary School, Preschool, Health Centre, their grounds and parts of George Simpson Park (the nominated places) for provisional registration under s 28 of the Heritage Act 2004 (ACT) (the Heritage Act). Whilst this is an application for leave to appeal, for convenience I will refer to John Flynn Community Group as the first appellant.
On or about 24 June 2010 the respondent, the ACT Heritage Council, made a decision not to provisionally register the nominated places under the Heritage Act. Proceedings challenging that decision were commenced in the ACT Civil and Administrative Tribunal (“the ACAT”) by the first appellant, the second appellant, Flynn Primary School and Citizens Association Inc., and Mr Enrico Taglietti, the architect who designed the school.
On 18 February 2011 the ACAT made orders that the second appellant be removed as an applicant in the proceedings before the ACAT, and confirmed the decision of the ACT Heritage Council not to provisionally register the nominated places. The ACAT published extensive reasons, extending to 157 paragraphs, for its decision.
On or about 18 March 2011 the first and second appellants lodged in this Court an application for leave to appeal against the orders of the ACAT. It is common ground between the parties that the present application and proposed appeal are governed by s 86 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act) which allows an appeal to this Court “on a question of law from the original decision of the tribunal.” Subsection (3) of s 86 states that such an appeal “may be brought only with the Supreme Court’s leave.”
Background
The relevant history of the nominated places is recited in pars [4] to [11] of the ACAT decision. For convenience I set them out here:
4.Mr Enrico Taglietti designed the school in accordance with a brief prepared by the National Capital Development Commission (‘NCDC’) so as to facilitate, in a transitional form, the adoption of the open-plan learning philosophy of education, which was then being introduced into ACT schools. The school was built in two stages.
5.The pre-school, which is a stand-alone building, and the first stage of the primary school, incorporating a health centre, were opened at the beginning of 1974. The second stage was added in 1976. A fire destroyed one of the pavilions in 1994, which was rebuilt as a resource centre during 1995. The P&C contributed funds to the rebuilding project, principally it appears for the purchase of computers. A community artist, students and parents have created a number of murals, mosaics and artworks throughout the school.
6.At the initiative of the Flynn school, a national memorial to the Very Reverend John Flynn OBE, DD (1880-1951) (‘John Flynn’), designed by Mr Taglietti, was installed in front of the school and unveiled at a ceremony on the centenary of Flynn’s birth on 22 November 1980.
7.In November 1991 the Minister for the Capital Territory announced that the oval and adventure playground adjacent to the school would be named the George Simpson Park because of the very long association between John Flynn and Dr George Simpson OBE. A memorial plaque was installed at the adventure playground.
8.In 2006 the ACT Government announced the closure of the Flynn Primary School as part of the Government’s Schools Revitalisation Policy set out in the document, Towards 2020: Renewing Our Schools. Despite strong resistance from the Flynn community to the closure, the primary school closed at the end of 2006. The pre-school has continued to operate. It appears that the health centre within the school ceased to operate at some time in the later 1990s.
9.Following the closure of the school, the Government initiated studies and a community consultation process relating to the future use of the closed schools. The P&C took part in this process. In 2009 the P&C and the Community Group did a joint submission on the future of the school.
10.In June 2010 the ACT Chief Minister announced that a new Flynn Child Care Centre would be developed on the site of the former primary school. The proposal involves the merger of two existing child care centres currently located in Charnwood and Evatt and their relocation to the Flynn school site. An amount of $4 million dollars has been included in the 2010-2011 Budget for creation of the new, refurbished facility. The Chief Minister’s press release said that the Government would continue to work with the community to further develop the Flynn site with a view to turning it into a community precinct offering a range of services.
11.The Functional Design Brief for the child care centre, dated 10 August 2010, states that the child care centre will occupy only part of the former school buildings, with the remainder to be refurbished at a later date. The brief requires that the adaptive re-use of the former school into a child care centre retain or complement the more significant features of the original design. This design requirement, the brief says, recognises that the former school buildings and surroundings are of some community and architectural value, even though they have been determined not to meet the threshold for listing on the ACT Heritage Register. The brief notes that the Heritage Council decision is under review in this Tribunal, and states that the brief may need to be amended depending upon the outcome of the review.
The Present Application
This is an application for leave to appeal. Inevitably this will require an assessment of the merits of the issues the appellants want to agitate on appeal, but my role in this application is to determine whether the appellants have an arguable case that the ACAT decision involved an error or errors of law that may have affected the outcome of the proceedings before it.
An Application to Introduce Fresh Evidence
During the course of the application the appellants sought to lead fresh evidence. At the request of counsel for the appellants I reserved the question of whether I would receive that evidence until the conclusion of the case. The appellants’ application to lead fresh evidence should be refused. The nature of the appeal from the ACAT to this Court requires this Court to determine whether the ACAT made an error of law, based on the evidence before the ACAT: B & L Linings Pty Limited and anor v Chief Commissioner of State Revenue [2008] NSWCA 187. See also Evans v Shiels (2004) 145 A Crim R 337 per Connolly J.
The Heritage Registration Process
The long title to the Heritage Act is:
An Act to provide for the recognition, registration and conservation of places and objects of natural and cultural significance, and for other purposes.
The objects of the Heritage Act are set out in s 3:
(1) The main objects of this Act are as follows:
(a)to establish a system for the recognition, registration and conservation of natural and cultural heritage places and objects, including Aboriginal places and objects;
(b)to establish the heritage council;
(c)to provide for heritage agreements to encourage the conservation of heritage places and objects;
(d)to establish enforcement and offence provisions to provide greater protection for heritage places and objects;
(e)to provide a system integrated with land planning and development to consider development applications having regard to the heritage significance of places and heritage guidelines.
Consistent with these objects the Heritage Act provides for a system of registration of places and objects that have heritage significance. In order to determine whether a place or object has heritage significance it is necessary to consider s 10 of the Heritage Act:
Heritage Significance
A place or object has heritage significance if it satisfies 1 or more of the following criteria (the heritage significance criteria):
(a) it demonstrates a high degree of technical or creative achievement (or both), by showing qualities of innovation, discovery, invention or an exceptionally fine level of application of existing techniques or approaches;
(b) it exhibits outstanding design or aesthetic qualities valued by the community or a cultural group;
(c) it is important as evidence of a distinctive way of life, taste, tradition, religion, land use, custom, process, design or function that is no longer practised, is in danger of being lost or is of exceptional interest;
(d) it is highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social associations;
The starting point in the process of registration of a place or object said to have heritage significance is provisional registration. Section 28 of the Heritage Act provides:
(1)Anyone may nominate a place or object for provisional registration.
(2) The nomination must be in writing and must be given to the council.
The council referred to in s 28 is the Australian Capital Territory Heritage Council (“the Heritage Council”) established under s 16 of the Heritage Act. The Heritage Council is comprised of the conservator of flora and fauna, the chief planning executive, three people appointed by the Minister as public representatives and six people appointed by the Minister as experts. The chief planning executive is the Chief Planning Executive under the Planning and Development Act2007 (ACT) and the conservator of flora and fauna means the person holding that designation under the Nature Conservation Act1980 (ACT): see Legislation Act 2001 (ACT), Dictionary Part 1.
After receipt of a nomination for provisional registration the Heritage Council has an obligation to determine whether to provisionally register the nominated place or object, but may only do so if satisfied, on reasonable grounds, that the place or object may have heritage significance: Heritage Act, s 32.
If a place or object is provisionally registered under s 33 of the Heritage Act, a process of public consultation ensues culminating in a report to the Minister. The Minister may direct the Heritage Council to give further consideration to issues raised in the report, and after complying with those directions the Heritage Council may register the place or object if satisfied, on reasonable grounds, that it has heritage significance.
Error of Law
The scope of any appeal to this Court from the ACAT decision is confined by s 86 (2) of the ACAT Act to an appeal on “a question of law”. The distinction between questions of fact and questions of law often raises difficult issues. As the High Court said in Collector of Customs v Agfa Gevaert Ltd (1996) 186 CLR 389 at p 394:
The distinction between question of fact and question of law is a vital distinction in many fields of law. Notwithstanding attempts by many distinguished judges and jurists to formulate tests for finding the line between the two questions, no satisfactory test of universal application has yet been formulated.
I have no intention of essaying where others of greater eminence have failed. However, for the purposes of the present proceedings some things are clear, and I gratefully adopt the expression of relevant principles set out by counsel in their written submissions:
a.The Court’s jurisdiction is confined to a “pure question of law”: Birdseye v ASIC (2003) 38 AAR 55 at [18]; Eastman v Commissioner for Housing in the Australian Capital Territory [2008] ACTSC 1 (6 February 2008) at [18].
b.An appeal on “a question of law” is narrower than an appeal “involving a question of law”: TNT Skypak International (Australia) Pty Ltd v Commissioner of Taxation (1988) 82 ALR 175 at 178.
c.A “question of law” does not include a question of mixed fact and law: Williams v The Queen (1986) 161 CLR 278 at 287; Comcare v Etheridge (2006) 149 FCR 522 at [16]; Eastman at [20].
d.The function of the Court, on appeal, is “limited to the identification of an erroneous answer in respect of a question of law”: B & L Linings Pty Ltd and Anor v Chief Commission of State Revenue [2008] NSWCA 187 at [150]. That is to say, the Court’s function is to determine whether the decision of the Tribunal was right or wrong in law on the evidence before it, and according to the law as it stood at the time the decision was given: Coal and Allied Operations Pty Ltd v AIRC (2003) 203 CLR 194 at [12].
e.The error of law, if established, must be of a kind that would entitle the intended appellant to the relief it seeks: Eastman at [21]; HBFHealth Funds Inc. v Minister for Health and Ageing (2006) 149 FCR 291 at [5], [6] and [33].
f.The appeal does not extend to review of a factual question; or making findings of fact; or making an evaluative judgment based on facts found by the Tribunal; or exercising a discretionary power vested in the Tribunal unless the finding or order was the only one that was open: B & L Linings at [13], [14], [38] – [55], [75] – [78] and [139]; North Broken Hill Ltd v Tumes [1999] NSWCA 309 at [25]; ICM Agriculture Pty Ltd v Perry [2002] NSWCA 257 at [19].
g.Where an appeal is sought on “a question of law”, the subject matter of the appeal is the question or questions as stated in the notice of appeal: Comcare v Etheridge at [13] – [16]; Eastman at [19]. The ambit of the appeal is confined to that question or those questions: Brown v Repatriation Commission (1985) 7 FCR 302 at 304.
h.The construction of legislation is a question of law: H R Products Pty Ltd v Collector of Customs (1990) 20 ALD 340.
i.The failure to take account of relevant considerations or taking account of irrelevant considerations amounts to error of law.
j.A finding on a question of fact can be reviewed if it is vitiated by error of law: Waterford v Commonwealth (1987) 71 ALR 673.
k.A failure to take account of particular pieces of evidence is not an error of law: Walsh v Department of Employment, Education Training and Youth Affairs (1998) 81 ALD 690.
l.The question of whether facts fully found fall within the provisions of a statutory enactment properly constructed is generally a question of law. Collector of Customs v Agfa Gevaert Ltd.
The Form of the Proposed Questions of Law
Counsel for the respondent took exception to the form of the proposed “questions of law” as stated by the appellants in the Draft Notice of Appeal. He was right to do so. The identification of a question of law is, as Gummow J observed in Re TNT Skypack International (Australia) Pty Ltd v The Commissioner of Taxation [1988] FCA 119 at [11], “not merely a qualifying condition to ground the appeal, but also the subject matter of the appeal itself...”. As Branson and Stone JJ remarked in Birdseye v Australian Securities and Investments Commission (2003) 38 AAR 55 (“Birdseye”) at [15], citing Ryan J in Australian Telecommunications Corp v Lambroglou (1990) 12 AAR 515, simply prefacing a question with the phrase “whether the Tribunal erred in law”, or something similar, does not convert a question of fact, or a mixed question of fact and law, into a question of law. On a proper evaluation, many of the questions stated by the appellants are not questions of law and many are not appropriately expressed. I will not, however, dismiss the appellants’ applications on that basis. Instead, I will address the merits of the points raised by the appellants, as I understand them.
Proposed Grounds of Appeal – Questions of Law
Ground (a)Whether upon its proper construction ‘the community’ in ss 10 (b) and 10 (d) of the Heritage Act 2004 is confined to the notion of ‘the ACT community’ as was held by the Tribunal.
As Branson and Stone JJ stated with respect to a similarly phrased “question of law” in Birdseye, the formulation used does not state a question of law, but invites inquiry as to whether the ACAT made an error of law. All of the appellants’ “questions of law” are framed in this way. However, I will, as I said, attempt to address the merits of the issues raised by the appellants. Both ss 10 (b) and 10 (d) of the Heritage Act use the phrase “the community”. In the course of its reasons the ACAT accepted that there was a “Flynn community”, but held that this was not the community to which s 10 of the Heritage Act referred. The appellants argue that the phrase “the community” as found in s 10 has, or may have, a more flexible meaning, including a community confined to a particular area as part of the Territory. Indeed, they go so far as to submit it may also expand to encompass those outside the Territory. The ACAT held that the evidence before it did not persuade it that the ACT community valued the nominated places for the characteristics set out in ss 10 (b) and 10 (d) of the Heritage Act. The appellants submit that the ACAT was in error in defining “the community” in this way.
The respondent submits that this ground must be rejected for two reasons. First, it submits that even if this ground raises a question of law, and even if the ACAT was in error in holding that “the community” meant the ACT community, the correction of that error would not entitle the appellants to the relief they seek. Secondly, the respondent submits that the ACAT was correct in its interpretation of the phrase “the community” in s 10.
With respect to the respondent’s first submission, it is clear that the ACAT correctly identified that s 10 (b) has three requirements:
128.This criterion has three parts, all of which must be met for the criterion as a whole to be met – the place (a) must exhibit outstanding design or aesthetic qualities and (b) these qualities must be valued and (c) they must be valued by the community or a cultural group.
The ACAT found that the Flynn Primary School building “while of considerable design and aesthetic merit” did not reach the “very high threshold” of outstanding design or aesthetic merit required by s 10 (b). This determination is one of fact and is not open to challenge in these proceedings. This finding means that the appellants would not be entitled to relief even if this Court were satisfied that the ACAT adopted the wrong test in determining what is “the community” for the purposes of s 10 (b).
Turning to the respondent’s second submission, I am satisfied that the ACAT in fact adopted the correct test in determining what is “the community” for the purposes of s 10 (b). As the ACAT recognised, the legislature chose to use the definite article “the” in the phrase “the community”. This may be contrasted with the use of the indefinite article “a” in the phrase “a cultural group” in s 10 (b). As the ACAT recognised, the use of the definite article “suggests a unique or individual object or thing”. So, the language employed in s 10 (b) suggests that a single, identifiable entity was intended. As the Heritage Act is an ACT enactment, it would seem to follow that the legislature intended that single, identifiable entity to be the ACT community.
To hold, as the appellants submit, that the phrase “the community” is sufficiently elastic to expand to supra-Territorial and infra-Territorial groups of persons would be to make the Act unworkable. As the respondent points out, such an interpretation would lead to almost all public places being “valued” by one community or another.
There is nothing incongruous in interpreting the Heritage Act in this way, despite the fact that the Territory contains many places of national significance. The population of the Territory is likely to reflect the same values as those held by the Australian population as a whole, and, in fact, the Territory population is more likely to value Territory places than those who live outside the Territory. Additionally, under s 122 of the Constitution the Commonwealth retains the power to legislate to protect places of national significance within the Territory (to the extent that it has not already done so), and any conflict between Commonwealth and Territory legislation must be resolved in favour of the Commonwealth: Australian Capital Territory (Self-Government) Act1988 (Cth), s 28.
Turning to the appellants’ case concerning s 10 (d) of the Heritage Act, the ACAT made findings that the nominated places are not “highly valued” by the community for reasons of “strong or special” social or educational associations. These were the two criteria under s 10 (d) pressed by the appellants. These findings are findings of fact, which are not capable of challenge in these proceedings. Even if the ACAT was in error in its interpretation of the phrase “the community” in s 10 (d) (and for the reasons I have given above, I am satisfied that it was not), then these findings of fact would preclude the appellants from obtaining the relief they seek.
Ground (b)Whether in considering the makeup of the group of persons or parties who might be said to constitute “the community” for the purposes of ss 10 (b) and 10 (d) of the Heritage Act 2004 it was proper for the Tribunal to exclude from that consideration or effectively disregard the following evidence before it:
i.Letter from the Royal Australian Institute of Architects dated 17 December 2007;
ii.Letter from Professor Stephen Frith, Professor of Architecture, University of Canberra, dated 20 December 2007.
iii.Letter from the Royal Flying Doctors Service dated 11 December 2007;
iv.Letter from the Presbyterian Church in Canberra dated 6 December 2007;
v.Letter from the National Trust of the ACT dated 7 December 2007;
vi.The petition tendered as Exhibit A 11 on the hearing below;
vii.The report of Mr Ken Charlton
It is clear that this ground cannot succeed where the appellants have failed with respect to the first ground. This ground is relevant to the application of ss 10 (b) and 10 (d) of the Heritage Act. Even if the appellants’ submissions with respect to this ground were accepted they would not, for the reasons that I have referred to with respect to the previous ground, be entitled to the relief they seek. For the reasons that I have already given I do not consider that the ACAT was in error in its interpretation of “the community” in ss 10 (b) or 10 (d). In my view this suggested question of law really adds nothing to that which I have dealt with above. Once the ACAT undertook the process of construing ss 10 (b) and 10 (d), and in particular the ambit of the phrase “the community”, it was then open to it, as a question of fact, to determine what evidence was relevant.
In any event, the ACAT did consider the material referred to by the appellants. At par [123] of its reasons, the ACAT refers to the material and makes the following finding of fact:
This evidence is not sufficient to persuade the Tribunal that it represents the views of the ACT community as required by the Act.
Ground (c)Whether in considering if Flynn Primary School exhibits outstanding design or aesthetic qualities valued by the community or a cultural group for the purposes of s 10 (b) of the Heritage Act 2004 the Tribunal took into account irrelevant considerations, namely:
i.That the school was not included in the Royal Australian Institute of Architects [RAIA] ACT chapters register of significant 20th century architecture; and
ii.That Mr Ken Charlton was not called to give evidence.
In the course of its reasons the ACAT stated at par [131]:
The Tribunal considers that the fact that the school was not included in the RAIA list of significant 20th century architecture in the ACT is important and suggests that the school has not been seen as deserving of recognition by the RAIA itself. At least four other Taglietti buildings are included in the RAIA’s list. The apparent absence of any initiative by the RAIA before December 2007 to seek listing of the school suggests also that the school, even if of architectural merit, was not seen by the RAIA as worthy of listing. The Tribunal is reinforced in this position by the evidence that the RAIA has an active heritage committee and has been active in nominating places to the Heritage Register.
The ACAT was entitled to draw on whatever evidence it considered to be relevant for the purpose of determining whether the nominated places exhibit “outstanding design or aesthetic qualities”. Whether it exhibits those qualities is a question of fact. In my opinion the ACAT was entitled to take into account the consideration that the Flynn Primary School was not included in the RAIA register, and to give that fact as much weight as is thought appropriate. No error of law arises from it so doing.
As part of the material before it, the ACAT had a report from Mr Ken Charlton. On its face, that report was a draft report. The ACAT was entitled to take into account the fact that the report before it was a draft report in determining the weight to be given to the report. The statement made by the ACAT that Mr Charlton was not called to give evidence was not a statement suggesting that some inference contrary to the opinions expressed by Mr Charlton was drawn from the fact that he did not give evidence. The ACAT was merely noting that it could not determine whether any final opinions or conclusions reached by Mr Charlton were consistent or inconsistent with those expressed in his draft report.
Ground (d)Whether the Tribunal had regard to an irrelevant consideration by receiving into evidence the Functional Design Brief document tendered as Exhibit R3 on the hearing below and taking account of the same so as to effectively disregard the petition tendered as Exhibit A11.
In June 2010 the ACT Chief Minister announced that a new Flynn childcare centre would be developed on the site of the former Flynn Primary School. This proposal involved the merger of two existing childcare centres currently located in Charnwood and Evatt and their relocation to the Flynn Primary School site. A significant sum of money was included in the 2010/2011 budget for the creation of the new facility within the former Flynn Primary School. A Functional Design Brief for the childcare centre, dated 10 August 2010, was prepared. The Brief was tendered in evidence before the ACAT. The Functional Design Brief states that the childcare centre will occupy only part of the former Flynn Primary School buildings, with the reminder to be refurbished at a later date.
The only reference to the Functional Design Brief is found in par 11 of the reasons of the ACAT, under the heading “Background”. There is nothing in the reasons for decision of the Tribunal which could possibly support the proposition that it used the Functional Design Brief so as to effectively disregard the petition which was tendered by the appellants. In any event, this does not raise a question of law. It was for the Tribunal to determine what evidence was relevant to its determination, and what weight is to be given to competing pieces of evidence. The suggestion that the ACAT effectively disregarded the petition is not borne out by the reasons of the ACAT. The ACAT at paras 104-106 of its reasons noted the obvious limitations attached to the petition, and determined the weight that was to be given to the petition bearing in mind those limitations. This does not reveal error.
Ground (e) (i)Whether a group’s dominant purpose need be cultural matters in order for it to be a cultural group
A fair reading of the reasons of the ACAT does not suggest that it determined that a group’s dominant purpose need be cultural matters in order for it to be a cultural group for the purposes of ss 10 (b) or 10 (d) of the Heritage Act. The ACAT suggested at [124] that:
“in order to form a concluded view on whether a group is a cultural group, other questions would need to be explored such as whether cultural matters must be the dominant purpose of the group or merely an ancillary activity”.
The ACAT noted that it was not suggested that the first appellant was a cultural group. It went on to consider the evidence that had been presented about the nature of the functions of the RAIA or the National Trust in the ACT. It noted evidence from a witness, Dr Pearson, who did not think that the RAIA was a cultural group. The ACAT was not satisfied, as a question of fact, that the evidence before it allowed it to determine that either of these bodies was a “cultural group” for the purposes of ss 10 (b) or 10 (d) of the Heritage Act.
Ground (e)(ii) Whether the Royal Australian Institute of Architects, or, alternatively, its Heritage Committee, or the National Trust is a cultural group for the purposes of s 10 (b) and s 10 (d) of the Heritage Act2004
For the reasons given in the previous paragraph, I am satisfied that a fair reading of the reasons given by the ACAT does not establish that it made a finding about whether either of the bodies mentioned is a cultural group, nor did it make any statements of law about pre conditions that must be met in order for either of those institutions to be a cultural group. The ACAT simply stated that it did not have sufficient evidence before it to determine whether those bodies are cultural groups.
Ground (f)Whether, contrary to what was held by the Tribunal, there was sufficient evidence before it to allow a conclusion that either the Royal Australian Institute of Architects or the National Trust was a cultural group
This formulation does not raise a question of law. Whether there was sufficient evidence is a question of fact not law: see Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139.
Ground (g)Whether the term “occupier” in s 13 (1) (d) (ii) of the Heritage Act 2004 is confined to current occupiers as was held by the Tribunal
The question of the proper interpretation of the phrase “an occupier” in s 13 (1) (d) (ii) of the Heritage Act arose before the ACAT in the context of it considering whether the second appellant had standing to be an applicant in the proceedings before the ACAT.
Section 114 of the Heritage Act provides that an “interested person” for a decision may apply to the ACAT for review of a reviewable decision. The phrase “interested person” is defined in s 13 of the Heritage Act. For an application under the Heritage Act concerning a place, one of the classes of people who may constitute interested persons are “occupiers”. The second appellant submitted that it was an “interested person” for the purposes of the proceedings before the ACAT on the basis that it was a former occupier of the Flynn Primary School. The ACAT determined that the term “occupier” in s 13 of the Heritage Act did not include former occupiers. As such, the ACAT reasoned, the second appellant was not an interested person for the purposes of s 114 of the Heritage Act, and had no right to be part of the application to review the Heritage Council’s decision.
The second appellant submitted that there is nothing in the Heritage Act limiting the phrase “an occupier” to those in occupation as at the date of the decision under review. It further submitted that to so limit the term would not best achieve the purpose of the Heritage Act, as revealed in its long title, to establish a system for the recognition, registration and conservation of places or objects with natural or cultural heritage significance. The concept of heritage significance, it submits, contemplates a wide range of past associations, which may bear little or no connection with the present occupation of a place. On the basis that the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation (see Legislation Act 2001 (ACT), s 139 (1)), the second appellant submits that the phrase “an occupier” in s 13 should be construed to include those who have, in the past, been occupiers of the place.
The respondent submits the ACAT correctly interpreted the phrase “an occupier” in s 13 (1) (d) (ii) of the Heritage Act. It submits that if the term “occupier” were interpreted to include former occupiers, and likewise the terms “owner” and “lessee” to include former owners and lessees, compliance with s 34 (3) of the Heritage Act would be impractical, nor would such an approach have any practical purpose.
In my opinion the ACAT was quite correct in determining that the second appellant is not “an occupier” for the purposes of s 13 (1) (d) (ii) of the Heritage Act. No outcome more consistent with the legislative intention underlying the Heritage Act is achieved by adopting the expansive interpretation of “an occupier” advanced by the second appellant. Groups such as the second appellant already have the right under the Heritage Act to nominate places for registration. Where they do nominate a place for registration under s 28 of the Heritage Act, they are defined as an “interested person” pursuant to s 13 of the Heritage Act, and thus have standing to bring an application before the ACAT.
In any event, it appears to me that this proposed question of law is purely academic. Both the first and second appellants were represented by the same counsel in the course of the hearing before the ACAT. There is no suggestion that the outcome of the proceedings before the ACAT was in any way affected by its ruling that the second appellant had no standing to bring the proceedings in the ACAT. That ruling was only delivered as part of the final disposition of the proceedings before the ACAT, after submissions had been received by the ACAT on behalf of both the first and second appellants. Even if the ruling by the ACAT was in error (and I do not consider that it was), leave to appeal should be refused on the basis that any such error could not lead to a conclusion that the ACAT’s decision to affirm the respondent’s decision was legally erroneous.
Ground (h)Whether in acceding to the respondent’s application to remove the second appellant (the “P and C”) as a party the Tribunal:
i.Failed to take account of a relevant consideration, namely the possible ameliorative step of the joinder of the P and C as a respondent or “new party” (rather than as an applicant) pursuant to s 29 (5) of the ACT Civil and Administrative Tribunal Act 2008;
ii.Wrongly construed s 29 (5) (or s 29 (6)) of the ACT Civil and Administrative Tribunal Act 2008, and/or s 114 of the Heritage Act2004, by reading it down as subject to s 22Q of the ACT Civil and Administrative Tribunal Act 2008; and
iiiWrongly construed the P and C’s constitution as not extending to matters connected with the heritage listing of Flynn Primary School in applying s 29 (5) (or s 29 (6)) of the ACT Civil and Administrative Tribunal Act2008, and/or s 114 of the Heritage Act2004.
The application to remove the second appellant as an applicant in the proceedings before the ACAT was dealt with in written submissions to it. It was decided along with the substantive issues. As part of the second appellant’s submissions to the ACAT on this issue, the second appellant argued that even if it was not entitled to apply to the ACAT for review, it could in any event be joined as a new party pursuant to s 29 (5) of the ACATAct. The second appellant complains that in the course of its reasons for decision, the ACAT gave no reasons for not joining the second appellant as a new party in the proceedings before it. In my opinion it was open to the ACAT, as a matter of discretion, not to join the second appellant as a new party to the proceedings before it. That course was particularly appropriate bearing in mind the point the proceedings had reached when the ACAT published its ruling that the second appellant was not an interested party for the purposes of s 13 of the Heritage Act. Little, if anything, could have been achieved by joining the second appellant as a new party at that stage of the proceedings.
In any event the proposed question of law questions whether the ACAT made an error of law in its decision to remove the second appellant as a party to the proceedings. That is a completely separate question to whether the Tribunal made an error in determining any application by the second appellant under s 29 (5) of the ACAT Act.
The ACAT’s reference to s 22Q of the ACAT Act at para 32 of its reasons for decision is puzzling. It appears that the ACAT may have considered that s 22Q (2) was a general provision in some way relevant to determining whether the second appellant had standing to bring the application before it. If that were the case, then the ACAT fell into error in relation to its understanding of s 22Q (2) of the ACAT Act. Section 22Q (2) is to be read in conjunction with s 22Q (1) of the ACAT Act. As such s 22Q (2) only applies where, in an authorising law, there is a reference to a person whose interests are affected by a decision. It is not suggested that s 22Q (1) had any application in the present circumstances, and as such the provisions of s 22Q (2) were irrelevant to the determination of any issue by the ACAT.
However, I do not read the ACAT’s reasons for decision as suggesting that it read down either s 29 (5) or s 29 (6) of the ACAT Act or s 114 of the Heritage Act by reference to s 22Q. Rather, it considered whether s 22Q (2) of the ACAT Act, in combination with other legislative provisions, gave the second appellant standing in the proceedings before it. Any error made by the ACAT in that regard was one in favour of the second appellant, and was immaterial to the ultimate decision. As such it does not vitiate the decision: BTR v Westinghouse Brake and Signal Co. (Aust) Ltd (1992) 106 ALR 35.
Ground (h) (iii) is based upon para [32] of the ACAT’s reasons for decision:
The Tribunal has examined the Principles, Functions and Objectives set out in Part B of the constitution of the P&C. There is nothing in Part B to suggest an intention that the P&C could extend its activities to heritage listing under the Act. The focus is quite properly the well-being of the school community and the support of public education in the ACT. The Tribunal finds that the P&C is not a person whose interests are affected as contemplated in section 22Q (2) of the ACAT Act.
It is wrong to suggest, as the appellants’ formulation suggests, that the passage quoted was directed towards the ACAT’s determination to remove the second appellant as a party to the proceedings before it. If it was directed towards anything, it was the consideration of whether the second appellant should be made a “new party” to the proceedings before the ACAT. For the reasons I have given, even if there were merit in the submission that the ACAT made an error on this point, leave to appeal should be refused as there can be no suggestion that it affected the ultimate decision, and there would have been no utility in joining the second appellant to the proceedings at that time.
Ground (i)Whether the Tribunal failed to give proper consideration to, and/or adequate reasons for rejecting, the appellant’s case under item 10 (h) (iv) of numbered paragraph 19 of the Applicants Amended Facts and Contentions dated 4 November 2010, namely that:
The nominated places have strong and special association with the group represented by the members of the second and third applicants, the past students and teachers at the school, the parents of past students and other past and present local residents who formed and form the community which evolved around and continues to associate with the special place that the Flynn Primary School occupies in the development of the suburb of Flynn into a community.
The appellants sought leave to amend the Draft Notice of Appeal so as to allow this ground to be argued. Leave should be refused. The proposed ground does not raise a question of law in so far as it invites enquiry into whether the ACAT gave “proper consideration” to the appellants’ contentions. A failure to give reasons for a decision may constitute an error of law where there is a duty to give reasons. However, as the respondent points out, there is no general or common law obligation on the ACAT to give reasons: Public Service Board of NSW v Osmond (1986) 159 CLR 656. Its only obligation was to provide reasons on request: s 60 of the ACAT Act. It provided such reasons in this case and there is no suggestion of any non-compliance with s 60.
Ground (j)Whether its (sic) appropriate to take into account on the application of sub-section 10 (b) of the Heritage Act the fact that on 21 March 2011 the Heritage Committee of the ACT Chapter of the Australian Institute of Architects (ACTAIA) resolved to list the Flynn Primary School on the ACTAIA’s register styled ACT Register of Significant Twentieth Century Architecture.
Clearly enough, this proposed ground cannot express a question of law arising out of the ACAT’s decision of 10 February 2011. The decision of the Heritage Committee of the ACTAIA was made approximately one month after the ACAT made its orders and published its reasons. For the reasons I have already given this Court cannot receive fresh evidence on the present application. If facts now exist relevant to the question whether the nominated places should be provisionally registered under the Heritage Act that did not exist at the time the ACAT made its decision, the appellants may make a fresh application for provisional registration.
Conclusion
The application for leave to appeal is refused.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.
Associate:
Date: 17 April 2012
Counsel for the appellants: Mr R Clynes
Solicitor for the appellants: J S O’Connor Harris & Co
Counsel for the respondent: Mr G McCarthy
Solicitor for the respondent: ACT Government Solicitor
Date of hearing: 6 February 2012
Date of judgment: 17 April 2012
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