The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council

[2013] QPEC 53

[2013] QPEC 53

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

P & E Appeal No 835 of 2012

THE CORPORATION OF THE SISTERS  Appellant
OF MERCY OF THE DIOCESE OF TOWNSVILLE

and

QUEENSLAND HERITAGE COUNCIL             Respondent

BRISBANE

12.03 PM, FRIDAY, 21 JUNE 2013

JUDGMENT

CATCHWORDS

Queensland Heritage Act 1992 s51(3), 164

Sustainable Planning Act 2009 s496

Grounds of appeal against listing of a convent on the Queensland Heritage Register, limited to the ground permitted by the Act - view expressed that issues of soundness of the structure may still be examined in the appeal

HIS HONOUR: I’ve reached the view that - this court is not constrained in dealing with an appeal instituted pursuant to section 162 of the Queensland Heritage Act 1992 to examining only the ground which is the foundation of the court’s jurisdiction. I think it would be astounding if the court, which is engaged in a “hearing anew”, pursuant to section 495 of the Sustainable Planning Act 2009, which is effectively the replacement of the former section 41(5) and (7) of the Queensland Heritage Act, were unable to have regard to matters which, by section 51(3) of the Queensland Heritage Act. The respondent Council may have regard to.

Lest it be thought that the apparent success of the respondent’s application precludes consideration of whether the particular condition of structural integrity of the appellant’s place may prevent its cultural heritage significance being preserved, is by my decision today placed beyond a consideration by the judge who will hear the appeal in Townsville later in the year, I’m of the view that some provision ought to be made in the notice of appeal to signal that it may lead to investigation of matters not able to be relied on by the appellant as a “ground” for appealing. My tentative idea is that paragraph 21C would refer to not merely to “a decision”, but to“a decision by the court based on section 51(2) and (3) of the Queensland Heritage Act 1992”. I’m willing to hear submissions from the parties as to other ways of achieving the outcome that I think appropriate in regard to the curiosity of the court undertaking a hearing anew on the subject matter of the Council’s decision being more constrained than was the Council.

I’ve been referred to Metrostar Pty Ltd v Gold Coast City Council [2006] QCA 410, 154 LGERA 245, at paragraphs 22 and 23. They are not entirely on point, but present the general proposition that where there is an appeal, always the creature a statute in that regard making an appeal available at all, it is inappropriate to read down what the appellate court may do and impose limitations not appearing in the words conferring jurisdiction. The materials referred to by Mr Litster QC for the respondent plainly demonstrate that the legislature, dissatisfied with the way in which the Queensland Heritage Act had been interpreted, had, in particular, with regard to the former section 34(3), determined to tighten up, the law regarding entering of places in heritage register.

The double requirement, of the place being of cultural heritage significance and also satisfying one or more of listed criteria, was replaced by a simplified requirement that no more was needed than satisfaction of any one or more of those criteria. The subject matter of section 34(3) was covered in a different way by the new section 51(3) which provides that the respondent Council “may, in making the decision, have regard to whether the physical condition or structural integrity of the place may prevent its cultural heritage significance being preserved”. The extrinsic material, which the court’s invited to refer to in its task of construction, while making it clear that there is to be a much more focused approach to selecting places for entry in the register, proffered comfort to those concerned with such issues, that the physical state of the place might be taken into account.

There’s no hint in those extrinsic materials that were the matter to go on appeal the court would not be entitled to have regard to that same consideration. In my opinion, what the court in this appeal may do is wider than the options formerly made available by the old section 47(7) to confirm, vary or reverse a decision. By section 164 the Sustainable Planning Act chapter 7 part 1 division 13 “with any changes the Planning and Environment Court considers appropriate” applies to an appeal and under the relevant part of the Queensland Heritage Act.

The notice of appeal in terms refers to section 496(2)(c) of the SPA which gives this court jurisdiction to confirm the decision appealed against or change it or, rather than “reverse” it as formerly, set it aside and make a decision replacing it. My view is that in that process, this court ought to be in the same situation as was the Heritage Council in reaching the original decision. Mr Litster has pointed to a special feature of section 496 in that subsection (3) says that the court’s decision is taken “for this Act”, other than this division to be the decision of the entity making the appealed decision. It was suggested that subsection (3) cannot have effect for the Queensland Heritage Act. Untidy as that drafting may be, I’m firmly of the view that the present legislative provisions regarding appeal have the effect that a replacement decision

made in this court one way or another stands as the relevant decision regarding the listing of a place in the Queensland Heritage Register.

Perhaps something should be said about parts of grounds being removed from the notice of appeal.  Ground 20(a) alluding to the statutory language, contended that the relevant place which is the St Patricks Convent in the Strand in Townsville of the Sisters of Mercy said to have been constructed in 1883 is not important in demonstrating the evolution or pattern of Queensland’s history.  The gloss “or any significant part of it” was tacked on at the end.  I can’t see that it adds anything and it may well embarrass the efficient conduct of this appeal.  That ground remains available, but it is shorn not only of that excrescence but also contentions which I think are irrelevant such as that the structure’s local removal and replacement with other built form (as a result of its decrepitude and lack of modern functions) is evidence of the ongoing changes, that there is a reasonable requirement of the Sisters to carry out their goods works with the best facilities reasonably currently available, and that “its removal and the re-use of the land it occupies demonstrates the ongoing development of the role of the Sisters and the school and the continuing growth and prosperity of Townsville.”

Such provisions bespeak the appellants embracing an approach that bricks and mortar, or in this case more colloquially timber and tin, do not demonstrate work of the Order in Queensland, rather their actions demonstrate that work

It’s not the appellants’ philosophy that counts here but rather the views of the wider society reflected in the legislation which for some decades now has placed a high premium on retention of the fabric of buildings of significant historical importance.  Ground 20(b) remains.  It refers, where (a) responded to criterion (a) in section 35(1), to criterion (d).  It has been shorn of observations that the building contains toxic lead paint and carcinogenic asbestos sheeting, that “its structural unsoundness directly related to the construction technique adopted in its construction and alteration”, which seems to allege something along the lines of built in obsolescence.  It further alleges that the building in its present condition lacks function and utility, further, is dangerous and of no use to the Sisters.

In a similar vein, the ground referred to in criterion (g) is preserved, but shorn of a contention regarding the Sisters’ need for appropriate modern facilities to enable them to carry out their mission.  Finally, ground 20(e) of the notice of appeal repeats some of the contentions noted already and also makes one that the Sisters have no interest or capacity to refurbish the convent.  Mr Litster urged upon the court that the Appellant will get its chance to ventilate issues of the kind which the court’s order removes from the notice of appeal if some positive proposal for redevelopment is devised and pursued in the ordinary way.  In that event, the heritage interests currently being pursued by the Respondent will come within the purview of the chief executive of the relevant government department.

I don’t regard it as a sufficient justification for keeping matters to do with the soundness of the structure entirely out of this appeal, but there is that potential means of visiting relevant issues in the future.

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