Qld Heritage Council v Roman Catholic Archdiocese of Brisbane
[1999] QSC 353
•26 November 1999
SUPREME COURT OF QUEENSLAND
CITATION: Qld Heritage Council v Roman Catholic Archdiocese of Brisbane PARTIES: QUEENSLAND HERITAGE COUNCIL
(Plaintiff)
v
THE CORPORATION OF THE TRUSTEES OF THE ROMAN CATHOLIC ARCHDIOCESE OF BRISBANE
(Defendant)FILE NO/S: 10413 of 1996 DIVISION: Trial Division PROCEEDING: Trial DELIVERED ON: 26 November 1999 DELIVERED AT: Brisbane HEARING DATE: 15-16 November 1999 JUDGE: Derrington J ORDER: The Declarations and Injunction sought by the plaintiff are refused and the action is dismissed.
The plaintiff is to pay the defendant's costs of and incidental to the action to be assessed.CATCHWORDS: BUILDINGS – HERITAGE LEGISLATION – REGISTERED BUILDING – PROHIBITION AGAINST DEMOLITION – EXEMPTIONS – vacant commercial building owned by church on land contiguous to cathedral lands – whether part of precincts of cathedral within meaning of exemption – meaning of "precincts".
BUILDINGS – HERITAGE LEGISLATION – EXEMPTION IN RESPECT OF DEVELOPMENT – CERTIFIED AS GENUINELY REQUIRED FOR LITURGICAL PURPOSES – effect of certificate – meaning of "genuinely required" – meaning of liturgical purposes.
BUILDINGS – HERITAGE LEGISLATION – REGISTRATION OF BUILDING WHILE OWNED BY FEDERAL INSTRUMENTALITY – PROHIBITION OF DEMOLITION OF REGISTERED BUILDING – FEDERAL ACT SAYING THAT ANY STATE LAW APPLYING TO THE DEMOLITION OF A BUILDING NOT TO APPLY TO A BUILDING THE PROPERTY OF THE INSTRUMENTALITY – effect of registration – effect of instrumentality's ceasing to own building after registration.
Australian Constitution s 109
Australian and Overseas Telecommunications Corporation Act 1991 s 33
Heritage Buildings Protection Act 1990
Queensland Heritage Buildings Protection Act 1992 s 33COUNSEL: Mr D R Gore QC with Mr R N Traves for the plaintiff
Mr W Sofronoff for the defendantSOLICITORS: B T Dunphy (Crown Solicitor) for the plaintiff
Thynne Macartney for the defendant
DERRINGTON J: This is an action by the Queensland Heritage Council seeking a declaration that the defendant is not entitled to demolish Hesketh House, a place which is registered on the Council's heritage register. The action also seeks an injunction to restrain the demolition of that building, but the defendant has given no indication of any intention to act unlawfully, and this is superfluous. It is a difficult case, made no easier by the cogent and persuasive arguments on both sides.
Hesketh House occupies land running between Elizabeth St and Charlotte St in the central business district of Brisbane, immediately contiguous to and on the Creek St side of lands occupied by St Stephens Cathedral and its surrounding open space. It was purchased by the defendant from Australian and Overseas Telecommunications Corporation ("AOTC") in 1994 after the "place" that included the building had been listed on the register, originally under the Heritage Buildings Protection Act 1990 and subsequently in 1992 under the saving provisions of the Queensland Heritage Protection Act 1992, when it was transferred to the present Council's register. There is no dispute as to the formal validity of this registration, save as to the question of legislative conflict referred to below.
Such registration would normally prohibit the defendant's intended demolition of the building unless the place were removed from the register under a procedure prescribed by the Act, and an application by the defendant to that effect in 1990 was unsuccessful on jurisdictional grounds. However, there is a further limited exception to the prohibition. This obtains where there is certification that the demolition is genuinely required for liturgical purposes. Dr Elich, a church official authorised by the defendant in that behalf, certified to that effect and the defendant claims that its intended action is exempt from the prohibition.
The Council challenges this on the bases that the exemption applies only in relation to registered buildings within the precinct of the church, which description does not include Hesketh House; and that the demolition was not "genuinely required for liturgical purposes".
In addition to joining issue on both points, the defendant challenges the validity or effectiveness of the placement of Hesketh House on the register under the Queensland legislation. At that time, it was owned by AOTC, which was a Commonwealth instrumentality, and its Act said that a State law as to the demolition of a building did not apply to a building that was its property. The plaintiff denies that the Commonwealth Act had any effect on the registration, which, it says, was valid at the time, even if the associated prohibition against demolition was disarmed; and that the registration supported the prohibition once AOTC ceased to own the property.
Fortunately the parties agree that the heritage value of Hesketh House is irrelevant in these proceedings.
So too is the principal purpose for which Hesketh House was bought by the defendant, that is, in order to prevent its use in ways that would disturb the cathedral's ambience and services by the playing of loud music. Its present purpose among others is to facilitate liturgical activities. This change of primary purpose does not detract from the validity of the certification that the land is now required for those liturgical purposes. In the course of time when the means to do so have been acquired, another legitimate purpose may be perceived and pursued in addition to or in place of the original purpose.
The Heritage Legislation
These issues are derived from s 33 of the Queensland Heritage Act 1992, which reads as follows:
33.(1) A person must not carry out development in relation to a registered place unless the development is approved by the council in accordance with this Act.
Maximum penalty – 17 000 penalty units.
(2) Approval of development is not required under this division in relation to a church or the precincts of a church if –
(a)written notice of the proposed development is lodged with the council at least 30 days before the development starts; and
(b)the notice is accompanied by a certificate by an official of the church, authorised by the church to give the certificate, that the development is genuinely required for liturgical purposes.
(3) Approval of development to be carried out by the Crown is not required under this division.
Preliminary to a full discussion of the respective arguments, the following relevant features of this provision may be briefly noted:
(i)Subsection (1) generally prohibits development, which includes demolition of a registered building, in this case, Hesketh House unless the Council has approved of it. Because of this qualification, it is not quite right, as the plaintiff argues, that it is an unqualified general prohibition which would somehow fortify the force of the prohibition and which would relatively weaken the exemption in subsection (2). The structure of subsection (1) is really a general prohibition but subject to a substantial exception, and the status of the exemption in subsection (2) is not diminished by any predominant role of the other. If structure had any significance, it may be noted that the exemption has its own special and separate existence. In any case, there is no significance in any of this because the coarseness of expression inflicted by the plain English usage adopted permits little reliance upon a refinement of structure such as the plaintiff invokes.
(ii)The section is a penal provision, and it is argued that consequently the prohibition should be construed strictly and the exceptions should be construed liberally. In this case, such an approach has little influence.
(iii)The prohibition in subsection (1) applies to development "in relation to" a registered place, and the exemption in subsection (2) dispenses with the need for approval of development "in relation to"[1] a church or the precincts of a church. The same broad expression, "in relation to", is used as the link in both cases to link development with different activities and clearly it is intended to have the same meaning in both. The only question that this has excited is whether it allows for development in relation to a place which is outside the boundaries of the area described but which may have some relation to it. It is argued that unless it is more extensive than development "on" the place, the wider expression would have no work to do. That is not so. The definition refers to a number of different activities in respect of that place, and in some cases the use of "on" would be grammatically inappropriate. The broader expression used encompasses the various prepositions the use all of which would be more unwieldy.
[1]Perlman v Perlman (1984) 155 CLR 474, 489.
(iv)Although the area to which the exemption applies must itself be a registered place, it is not necessary that the church for which the liturgical requirements are claimed should also be a registered place. The exemption is intended to meet the religious considerations involved, whether the church is registered or not. Nor in order to come within the exemption need the exempted place be owned by the church; nor need the development be carried out by the church authority. This all means that the exemption's reference to precincts is not limited in any way by reference to precincts that are registered, nor to what practical limitations may be encountered in the registration of premises under the Act as precincts. But the place of the contentious development must ex hypothesi be registered, so it is implicit that the development in relationship to it must also be in relation to the church or its precincts. For example, a non-registered church may have a registered place within its precincts, but if the liturgical requirements of the church require its development, then the exemption may apply.
In the present case both the church and its precincts are registered, but it is useful to distinguish between the precincts referred to and the registered place to which the exemption is claimed to apply in order to see whether they match. This distinction fixes the focus of the issue onto whether the demolition of Hesketh House, is "development . . . in relation to (the cathedral) or its precincts".
(v)The most difficult question is the identification of the area in the neighbourhood of the church that is affected by the exemption's reference to "precincts". It may mean the ground immediately surrounding the church, or the district in which the church is situated or some intermediate meaning, and the section does not identify which is intended. But it might comfortably be said that the general context and purpose of the legislation would exclude a connotation extending to the district or general locality of the church. Conversely, it is certainly not confined to the lots on which the church is built according to their real property subdivisions. The practical question here is whether the presence of Hesketh House, which, although owned by the church is not a church building excludes the area it occupies from the precincts of the church within the meaning of the subsection.[2]
[2]It appears to be inconsequential that "precincts" is used rather than "precinct". Although the Oxford English Dictionary provides an alternative meaning for the word, especially in the plural, that is, "often applied more vaguely to the region lying immediately around a place, without distinct reference to any enclosure; the environs", the breadth of that meaning and its vagueness make it unfit to apply to a provision of this nature.
The plaintiff argues for a restrictive construction, invoking the authority of Stephenson J[3] who said that an exemption of this nature should be construed in a restrictive rather than in a generous fashion. However, this remark was relative to its context, which was the rejection of a very liberal construction advanced by the church. Influences of this nature are of little assistance: the purposive approach is much more fruitful.
[3]In the Court of Appeal in A-G (Ex rel.)Bedford County Council v Howard Uniting Reformist Church [1975] QB 41.
(vi)The certification by a church official prescribed for the operation of subsection (2) contains mental elements of honesty and judgment in that it must be certified that the development is "genuinely required for liturgical purposes". It is agreed by both parties that such certification is reviewable on the same grounds as in judicial review of administrative decisions[4]. In effect, this limits the review to whether the certified opinion could have honestly and reasonably been held, or to whether the correct criteria had been applied.
[4]Cf Foley v Padley (1984) 154 CLR 249, 353; Wilson v MCM (1980) 18 NSWLR 730.
Since honesty is not in issue, the quality of the opinion supporting the certification is the only area of concern, and in that, it is not a question of soundness of the opinion but whether it may reasonably have been held, subject to the usual conditions implicit in that test, namely, that there were facts upon which it could be held, that incorrect criteria were not applied, etc.[5] The following discussion will proceed on this understanding without constant repetition of this formula.
[5]Cf Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, 228-229, 233-234; The Council of the City of Parcamatta v Pestell (1972) 128 CLR 305, 313-314, 322, 323, 327.
(vii)The requirement of certification that the development is genuinely required for liturgical purposes is silent as to the influence of any collateral purposes for the development. It does not require that the development must be genuinely required only or predominantly for liturgical purposes. This is important in the present case as a substantial purpose behind the development is the visual enhancement of the cathedral, which does not come within liturgical purposes, although it may be spiritually uplifting as a manifestation of the church's faith. According to the Dictionaries the word "liturgical" means pertaining to or connected with public worship or having to do with liturgies, which are the forms of public worship.
(viii)By its very presence and force, this subsection manifests the intention of the legislature that in some respects religious considerations should prevail over heritage considerations, but that not every religious purpose no matter how trivial in importance or extensive in effect, should prevail over all heritage preservation, no matter how serious. This qualification is introduced by the conditions that the development be "in relation to a church or its precincts", that the development must be required for liturgical purposes, and that the requirement be genuine. It is within this qualified policy that the limitations upon the exemption should be construed, and not with any assumption that the religious factors are given unqualified priority.
These general observations may now be applied to the present circumstances.
"In Relation To"
There is no good reason to read these words, wherever they appear in the section, as referring to development outside the area specified by the words to which they refer. Complementing subsection (1), which speaks of "development in relation to a registered place", section 4 contains a definition which reads: "'Development', in relation to a place, means –" followed by a catalogue of developmental activities, including demolition.
The defendant argues that this activity may be in or on another place but still be "in relation to" the registered place. Such a reading is possible, but as the activities may all be confined to the registered place, there is no reason inherent in any of them to find such an implied extension. In the same section the word, "Place" is defined to mean a defined or readily identifiable area of land, including a building and such of its immediate surrounds as may be required for its conservation or a natural feature of historical significance and such of its immediate surrounds as may be required for its conservation. The emphasis on precise identification in this definition of a central term indicates that the serious and penally enforced restrictions upon citizens rights imposed by subsection (1) should be limited to that defined and identifiable area that is registered. It is very unlikely that such drastic provisions would be allowed any uncertainty of application to other places, the limit to which would depend on such an imprecise standard as the defendant submits.
If, as the defendant argues and the plaintiff agrees, the same meaning should be given to these words wherever they appear in subsection (2), then it follows that the exemption applies only to a registered place that is at least part of the church or its precincts.
This is perfectly reasonable and practical, and the alternative is unpersuasive. If the registered place is within the precincts of the church, then it is plainly the legislature's policy that the religious factor should bring it within the exemption and if it is outside the precincts of the church, it would conflict with the general balance struck between religious and heritage considerations to allow this exemption apply to heritage places, even if the development were required for liturgical purposes. On the defendant's interpretation, providing it met the criteria laid down, the church could progressively acquire and demolish heritage buildings by cumulatively extending its precincts, which does not seem to be the intended result of the exemption.
There may seem to be some inconsistency in permitting the religious factor to prevail over heritage values in respect of registered places within a church's precincts, but to deny it in respect of a registered place which may be immediately contiguous, owned by the church and which, it might be assumed for the purposes of demonstration, imposes a restriction upon the church's liturgical practices. This argument may have some force in the construction of the reference to precincts, but in all these issues there are countervailing forces in balancing the competing factors and maintaining some precision and certainty.
The grammatical justification for the use of such a broad expression, on the one hand, and, on the other, the substantial practical uncertainty that would attend any enlargement of the scope of its object, weigh heavily against any construction that would produce that result. As it has been shown, there is no purposive or policy consideration supporting on extended meaning that has any strong persuasion. The conclusion therefore is that in order to come within the exemption the registered place to be developed must be within the area described as "the precincts of the church", the limits of which is the next point of enquiry.
"Precincts"
For the reasons given above, the construction of this expression should not be technical or pedantic but should accord with the purpose for which the exemption is provided. One meaning given by both the Macquarie and Oxford English Dictionaries is the ground immediately surrounding a religious house or place of worship, and in that context, "immediately" means directly or without anything intervening; but the dictionary definition does not expressly require the ground to be vacant. Another meaning is "the environs", which is more general and vague, meaning no more than surroundings. These definitions refer in one direction to proximity to the church, but do not refer in the other direction to the outer limits of a precinct, presumably because, apart from the need for immediacy, they are variable depending on the circumstances.
None of this is very enlightening in the present problem but another meaning given by the Oxford English Dictionary provides some assistance. It is, "The space enclosed by the walls on other boundaries of a particular place or building, or by an imaginary line drawn round it." This is etymologically consistent, for the word is derived from praecinctum, meaning enclosure, and ultimately from cingere, to gird. This injects a flavour of enclosure supporting the view that where that occurs, the wall of a neighbouring building that does not have any ecclesiastical use will form part of the boundary enclosing the precincts, so that the building itself is outside them. This also suggests that the reference to "ground immediately surrounding a religious house" refers to empty ground that is enclosed by alien buildings or at least by some imaginary boundaries.
When Hesketh House was owned by AOTC and not intended to be demolished, there would have been a strong argument that it was outside the church's precincts in the sense that the exemption intended. However, one of the exemption's purposes is to enable demolition of a building on a registered place, and if this is done, the physical propinquity of the land would probably bring it within the cathedral's precincts. Indeed, when it was built, this land was owned by the church and formed part of its precincts, and it was only subsequently when a substitute cathedral on another site was planned that the land was sold. The reconfirmation of the present cathedral's status has led to the renewal of need for use of the land for satisfactory liturgical ritual consistent with that status and it is argued that all of this brings it within the precincts. The difficulty with this is that the exemption is expressed to apply only to the present precincts, and not to what would become the precincts if the exemption permitted action that would change its status.
This still leaves open the question whether under its present ownership by the church and with its potential to provide liturgical space, it may even now be regarded as part of the cathedral's precincts. However, it is unlikely that in referring to that term in the context of this exemption, the legislature intended that the concept should encompass an area outside that currently used by the church for its liturgical practices or ancillary uses, such as housing for the clergy or other supporting persons.
The building's substantial and alien presence militates against its coming within the description that was intended. It is foreign in almost every respect, unassociated with any ecclesiastic use, and the church's ownership of it has limited influence on its characterisation. The English cases on the identification of ecclesiastical buildings show that mere ownership is not enough to meet that description: the building must also have some ecclesiastical attribute.[6] While the issue here is not whether it is an ecclesiastical building, its character is relevant to whether it forms part of an ecclesiastical precinct. In appearance or use it is not a church building or part of the church texture, and in this respect it has much in common with surrounding commercial buildings. Even if its use were to be converted temporarily to some liturgical function, that may be so artificial in nature that the building could never be regarded as more than accommodation outside the precincts for some ancillary purpose.
[6]Phillips v Minister of Housing & Local Government 1965 1 QB 156, 168; A-G v Howard Church Trustees [1974] 1 QB 332, 338-339; [1975] 1 QB 41, 49, 51, 55; left open in [1976] AC 363, 376.
This discussion of the nature of the building does not overlook the scheme of the Act that it is a place rather than a building that is registered. But it is inherent in the scheme that a place may include a building, and that is particularly germane when the issue relates to demolition, which is the focal point of the exemption. The nature of the building forming part of the "place" is highly relevant to whether the "place" in respect of which the prohibition against demolition is exempted, is part of a church's precincts. Since "place" as defined includes a building on the defined land, and the prohibited development which is exempted must relate to such a place, then in this context the reference to precincts which include the place must also include any building on the place. This excludes any relevant meaning of precincts that would omit recognition of the presence and character of the building on the registered place.
If a limited interpretation of "precincts" were adopted, the exemption could still apply to buildings on registered places within the precincts of the church. If their existence and use were ancillary to its function as a place of worship they would form part of the precincts. Again, there may seem to be some inconsistency in a policy which would permit this but deny the exemption to a place which may have a greater impact on the church's liturgy because it is located on the edge of the vacant land surrounding the church. However, it is not just the location of such a building that governs the result. Rather, in this context, the presence of a substantial building having no part in the church's liturgy is more relevantly an influential factor within the meaning and purpose of the exemption. This accords with the Dictionaries' meaning discussed above, and permits of a usage of the term to describe ground that includes buildings such as chapels, religious bookshops, presbyteries, and other buildings associated with the church.
If the expression draws colour from its purpose, then it might be construed as meaning the ground and buildings thereon connected with the church, which are in some way, even perhaps indirectly, used, at least, for purposes associated with the church's function as a place of public worship.
This approach is not uncomfortable with the reverse position where a church is surrounded in every direction by a large area of vacant and unused land. The precincts of the church would not necessarily extend to the wall of first building to be found or to the borders of land owned by others. Although precise identification of the imaginary boundaries might be difficult, they would normally be limited to an area associated with the church as a place of worship. Beyond that, land not used for that purpose would be outside the church's precincts, even though it be owned by the church.
The Council drew the court's attention to an English case where the highest authority has made it clear that while an exemption such as this permits partial demolition of a registered church for ecclesiastical purposes, that does not extend to the total demolition where the church has become superfluous and is no longer used.[7] The application of this principle to the total demolition of Hesketh House was urged, but, with respect, save in one point, there are essential distinctions.
[7]A-G (Ex rel Bedford CC) v Howard Uniting Reformed Church Trustees [1976] AC 363, 378A.
In the case cited, the demolition was intended to terminate altogether the building's use as a church, which of course is the antithesis of the basis for the exemption. Further, assuming that it is within the cathedral precincts, the demolition of Hesketh House is, it may be assumed for the purpose of this argument, to enable the enhancement and extension of the liturgical purposes of the cathedral. The demolition should not be read in isolation from the cathedral and its liturgy, and so amounts to demolition of part only of the whole relevant area. It would be artificial to read the English authority as excluding the exemption in respect of demolition of neighbouring building with the intention that public worship be encouraged rather than discontinued on the site.
The Council also provided details of some relevant statements on this provision by the Minister during the passage of the Bill. In the Committee stage, he said that:
"the removal of a building is not a liturgical purpose" and that "development . . . is meant to refer to minor things such as moving altars, which the Roman Catholic Church undertook in the late 1960s and early 1970s".
As it is conceded, this has limited value. It is true that the removal of a building is not a liturgical purpose, but is removal certainly may be for such a purpose. Further, as development is defined by the Act to include demolition of buildings, it is a misconception to believe that where the expression is used in an unqualified way, it is limited to small alterations. It is understandable that the legislature would have intended to confine this exemption so that it could not be used to demolish neighbouring substantial buildings of great heritage value in order to gain some modest though genuine liturgical benefit. However, the presence of such a limitation must be found, if at all, in other drafting aspects of the provision.
Assuming that the evidence establishes that the place where Hesketh House stands can and would be used for activities related to the church's status as a place of worship, and particularly in performing the established liturgy more satisfactorily however without demolition it still cannot be used for those purposes and it is not now, nor is it intended to be, used for other liturgical purposes. It is therefore not at present an ecclesiastical building that is part of the precincts of the cathedral. Instead it forms part of the boundary enclosing those precincts. Consequently, the exemption does not extend to any development work in relation to it.
"Genuinely Required for Liturgical Purposes"
That is an end to the defendant's claim for exemption, but in case of an appeal it is desirable to traverse the other controversial issues relating to that topic. The defendant also had to show that the demolition of the building and the proposed further development is "genuinely required for liturgical purposes". Contrary to its argument, there is no substantial reason why these matters are not justiciable. The subjective religious feature of the criterion is accorded respect by the certification provision, which imposes a limit on the court's scrutiny of the matter. Within this framework there is no reason inherent in the nature of religious values why a review of the certification is impractical.
There is uncontroverted evidence that the further intended development following the demolition of Hesketh House would facilitate and enhance the forms of public worship according to established ritual, and in other less formal ways in some, but limited, respects. But the formal liturgies provide for alternative forms, depending upon the space available, and these have been used at the cathedral for almost a century. In those circumstances, the plaintiff challenges the certification on three other grounds –
(a)whether the additional land is required at all for the liturgies identified;
(b)if so, whether the limited need for that purpose and its association with the other substantial purpose of the development, namely, the visual enhancement of the cathedral, means that the development is not genuinely required for the prescribed purpose; and
(c)even if it be genuinely required for that purpose, whether the presence of another substantial, and perhaps predominant purpose precludes the certification of the section.
The only express requirements are contained within the formula that the development is "genuinely required for liturgical purposes". In the absence of any other limitation on certification, where, if one were intended, it would be expected to be expressed, nothing further should be implied. However, those tests which are expressed should be given their fair and proper meaning in sympathy with the purpose and policy behind them as revealed by the Act itself.
"Genuinely required for liturgical purposes" is a composite expression, and in particular the words "genuinely required" should not be construed in isolation from each other nor from the purpose and policy of the exemption. It does not mean that the development must be necessary in the sense that without it the liturgy is impossible or even unsatisfactory. New or enlarged liturgy could provide the requisite purpose. Conversely, as is explained above, it does not mean that the exemption is available if the relevant places are to be used only for liturgical purposes which can be performed elsewhere satisfactorily, or even a little less then satisfactorily[8]; nor if the liturgical requirements are of trivial or insubstantial value. And they must relate to acts of worship or ritual associated with it. The expression means that the availability of the land must be reasonably dictated by the implementation of the specified purpose to which it is directed.[9]
[8]Errington v Metropolital District Railways [1992] 19 Ch D559, 576.
[9]Sutherland Shire Council v Telope Pty Ltd (1993) 85 LGERA at 106.
These limitations upon certification in respect of liturgical purposes are implied by the condition that the development is genuinely required. Not only must the requirement be honest in a purely subjective sense, but in order to be genuine it must also have a degree of reasonableness. These terms inject that additional objective element, for a decision that does not take into account considerations that should be taken into account is not genuine. It should consider whether alternative reasonably satisfactory, even if imperfect, arrangements are available, and if not, whether the deserved liturgy is of such significance as to justify attention in the circumstances. A light and insubstantial reason to have trivial liturgy in a particular place, where it could be performed satisfactorily or nearly satisfactorily in another place, would hardly support certification of a genuine requirement. However, the competing heritage factors do not enter this exercise.
Of course, any misunderstanding as to the appropriate criteria leading to under-evaluation could affect the validity of the certification, but nothing of that kind appears here. Indeed, it may be thought that an over-strict approach was taken by Dr Elich as to the meaning of liturgy in this context, and that a correct approach would fortify the certification in this respect.
The test requires that the liturgical purposes must agitate a need for the development. The element of need does not apply to liturgical purposes themselves but if they are reasonably and honestly desired, then the next question is whether the development is reasonably needed for that purpose having regard to alternative possibilities.
These factors also influence the next issue, which is whether the presence of other purposes excludes the exemption. This matter has already been discussed above, and the significant features are that there is no express exclusion, on this ground, that the prescribed criterion is clearly identified as no more than the presence of a genuine requirement for liturgical purposes, and that the misuse of the exemption is reasonably avoided by the implicit effects of its express condition as to certification of the relevant genuine requirement. If that exists, which means that the requirement must have reasonable substance, then the basis of the exemption is established, and there is no reason why it should be lost because of the presence of a co-ordinate or even more substantial purpose operating in conjunction with it. The exemption is given for a purpose, and if that purpose is properly fulfilled, then it does not detract from it that another benefit is also enjoyed.
It is implicit in this explanation that, this does not permit an abuse of the exemption for ulterior purposes by the pretended invocation of a requirement for liturgical purposes. Further, depending upon the circumstances, where there is another purpose associated with the development, the genuineness of the purported requirement will be more closely scrutinised. However, the section does not justify, either expressly or by implication, any larger impediment to abuse than that, and more particularly it does not, nor does it have any reason to, deny the exemption because of the presence of another purpose.
The evidence in this case was tested in a full but fair way. It demonstrated the church's closure for relevant outdoor liturgy of modest significance, probably not as great as that claimed. Further, the evidence contained some insubstantial claims which were probably unduly magnified by an honest but adversarial approach, and this detracted from the quality of that evidence; but on the whole, the intended use of the registered place for some liturgical purposes was shown. Because of the present restriction of space in the area between the cathedral and Hesketh House, there has been some abandonment of desired liturgical practices or recourse to alternative less satisfactory ones. Some of the latter were less than satisfactory. The remedy for this requires the use of the adjoining land which would be available only on the demolition of Hesketh House.
In summary, the church's desire to follow full liturgical ritual consistent with the status of the cathedral has to some extent been frustrated by its lack of space, or what has been available has been somewhat unsatisfactory. The proposed development would be required to remedy these things and would in fact be used for that purpose. Within the religious convictions of those concerned, these are matters of some substance, and because of the constraints of space and location, the registered place is reasonably required to achieve these things. Finally, the presence of other purposes and particularly the visual enhancement of the cathedral, does not throw into doubt the genuineness of the requirement of development for those purposes. The result is that the certificate founding the exemption, being undisputably in proper form, would, but for the "precincts" point, have been good in substance and effective to invoke the exemption. However, that operates only in respect of registered places which are churches or their precincts, and so the certification has no effect.
The Validity of the Registration
The result of the foregoing findings is that if Hesketh House is a registered place to which section 33 applies, then its demolition is forbidden by that section, save with the approval of the plaintiff, and that will not be given. The remaining question, and it is a vital one, is whether the legislation under which the heritage registration took place effectively empowered any registration, and if so, whether it supported registration that would now enliven the prohibition against demolition.
When the first registration took place under the 1992 Act, and when later the further registration under the current Act took place, the building was owned and occupied by AOTC and the Australian and Overseas Telecommunications Corporation Act 1991 was in force. Coincidentally, the relevant provision of that statute was also section 33, and it read as follows:
33 A law of a State or Territory that relates to:
(a) the standards applicable to:
(i) the design, or
(ii) the manner of the construction;
of a building structure or facility; or
(b)the approval of the construction of a building, structure or facility; or
(c) the occupancy, or use, of a building, structure of facility;
(d)the alteration or demolition of a building, structure or facility;
does not apply to a building, structure or facility that is the property of AOTC if:
(e) the building, structure or facility was occupied or in use; or
(f)the construction, alteration or demolition of the building, structure or facility had commenced;
before the succession date. (Underlining mine.)
The Council mounted an interesting and convoluted argument seeking to read down the effect of s 33 to cases where the relevant works had been commenced prior to the Act. It did this by reference to its history in relation to its predecessor and the reduction of the former immunities granted by the later authority. However the imposition of such a restriction is strained and has no reasonable justification that would defeat the ordinary meaning of the words used. That ordinary meaning provides an immunity which, though perhaps less than that formerly enjoyed, is reasonable and practical, and it should not be diminished or fettered by implied historical trends that do not merit any claim to necessity or plain intention.
Section 33 of the Queensland Heritage Act forbids development which includes the demolition of a building in relation to a registered place, so it is a law of the State that "relates to demolition of a building" within the meaning of s 33 of the AOTC Act. Further, at the time of its registration, Hesketh House was the property of AOTC, and was a building that was occupied and in use before the succession date.
This means that on the date that Hesketh House was registered under the Queensland Act, the Commonwealth Act said that insofar as it applied to demolition of a building, it did not apply to that building; and of course the Commonwealth Act prevails under s 109 of the Constitution. While the State Law will continue to apply up to the exact area of the inconsistency,[10] it is necessary to look to the scope of the federal law to determine where the inconsistency commences. Prima facie, it follows that the registration took place at a time when the law prohibiting demolition did not apply to that building while the AOTC Act applied to it. That is not in issue.
[10]Ex parte McLean (1930) 43 CLR 472.
It is clear that such immunity was not to continue to operate in relation to the building once AOTC ceased to own it, for it is limited "to a building . . . that is the property of AOTC . . .", and the continuing present tense is the only reasonable construction of that expression consistent with its meaning and obvious purpose.
Since the immunity was only temporary, the first issue is whether the building's registration during that period of immunity was valid and its prohibition of demolition only dormant until AOTC's ownership of the property ceased; or whether the State law had no application to the building at all, so that its registration was not empowered.
The Council argues that the registration provisions could remain unaffected despite the effect on the prohibition against demolition during the application of the immunity to this building. The immunity did not refer to registration, and the point of the immunity was the catalogue of activities specifically identified in the section, such as demolition. Further, the purposes of the Heritage Act are manifold and its restriction on building development is only one part of its whole scope. However, this does not go to the point, that is, the extent of the law which the AOTC Act says is not to apply.
The defect its main argument is perhaps encapsulated in the words of its submission:
"The listing of Hesketh House does not, by itself, do anything by recognise the importance of the building to the cultural heritage of the State."
This is correct so far as it goes, but it is not correct to isolate the operation of the listing "by itself". It operates in conjunction with s 33 to cause the building to be protected against demolition and this is one very important purpose of registration. Accordingly, the law constituted by this combination was at the relevant time "a law of a State . . . that relates to . . . (d) the . . . demolition of a building (etc)", as described in the AOTC Act.
This attempt by the Council to isolate the registration process which would save that part from all conflict with the AOTC Act, although attractive, is not successful. The immunity caught up all that came within the law that produced the prescribed result, including the registration factor of the combination. It may well be that it does not exclude registration and its effects in relation to other matters, but, even giving the minimal necessary effect to the AOTC Act, it applies to registration to the extent that it is an integral part of the State law that relates to demolition. It would be artificial in respect of s 33 of the State law that prohibits demolition of registered buildings to refer only to the feature of demolition and to ignore that cognate feature of registration that is the very procedural basis of the prohibition against it.
This means that the registration was ineffectual to the extent that it enlivened s 33 to prohibit demolition. As the Council had no power at that time to list the place with that effect, its registration had no legal validity in that respect. For this reason, it does not follow that when the immunity of the building was removed, the limited effect of the registration was automatically enlarged. What was validly exercised at the time was no a limited registration only, consistent with the limitation that was placed on the power. If the effect of registration could have been severed so as to avoid total emasculation and leaving a registration that did not protect the building, then it was still no more than that when the effect of the AOTC Act ceased. On the cessation of that effect, there was no protection of the building in either case.
While s 33 of the AOTC Act was not limited in it operation to the time that the building was its property, it did not say that the effect of its restriction on the State law was to be lifted, with retrospect effect. It should be noticed that the Federal Act says simply that the State law did not apply to this building, rather than that the operation of such a law was not to apply to it. This means that the heritage law constituted by that combination including registration did not apply to the building insofar as related to the demolition of it. It may be accepted for present purposes that the registration was otherwise valid and effectual outside that deficiency. Nor did it say that upon the application of a State law to the building often it ceased to be the property of AOTC, that law would operate as if it had formerly applied.
In the result, the State law as to registration did not apply which had the effect of prohibiting demolition to Hesketh House when AOTC divested itself of the property. Although the exclusion of the State law in that respect then ceased, the earlier limited registration did not gain in stature or acquire an influence it did not formerly possess. Certainly there was a change. The place again came within the untrammelled jurisdiction of the Council, which could then have registered it to full effect, if that were justified by its Act. But that emergence of the power from disablement could not give life retrospectively to this particular feature of an earlier registration which at its birth had no legislative foundation, and consequently no validity. For these reasons, the present registration, if valid, is limited in effect and does not support any restraint on demolition of the building.
This result will not prevent the Council from taking fresh steps now to register it as a heritage place. The defendant has indicated that pending that procedure it would not demolish it, for it would be content to contest any further registration on the basis that it does not have the necessary heritage values. Consequently, the finding of the validity point against the Council will have a limited effect only and will not prevent the ultimate determination of the validity registration of the building on its merits.
Orders
The Declarations and Injunction sought by the Plaintiff are refused and the action is dismissed.
The plaintiff is to pay the defendant's costs of and incidental to the action to be assessed.
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