Trustees of the Roman Catholic Church for the Archdiocese of Canberra And Goulburn v ACT Heritage Council and Ors (Administrative Review) - [2013] ACAT 62

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF CANBERRA AND GOULBURN v ACT HERITAGE COUNCIL & ORS (Administrative Review) [2013] ACAT 62

AT 12/59
Catchwords: ADMINISTRATIVE REVIEW – Decision to enter a place on the ACT Heritage Register - requirement to be satisfied on reasonable grounds that a place has heritage significance - meaning of “heritage significance” - criteria for determining heritage significance – whether Tribunal should have regard to expertise of Heritage Council members – whether place is important as evidence of a distinctive way of life or tradition that is in danger of being lost – whether combined church-schools are a Roman Catholic tradition – whether there was a Roman Catholic way of life in the pre-war and immediate post war period that is in danger of being lost – whether the place is highly valued by the community or a cultural group for reasons of strong or special religious or spiritual associations – meaning of ‘the community” - meaning of “a cultural group” – whether the place has strong or special associations with a person, a development or a cultural phase in local history – role of Father Patrick Haydon in Roman Catholic education in Canberra – whether the place is associated with any policy of parallel development of government and Roman Catholic schools - whether the place is associated with development of the suburb of Braddon – whether the place is associated with the hostel phase in Canberra’s development.
Legislation:ACT Civil and Administrative Tribunal Act2008 (ACT) s 68(3)
Heritage Act 2004 (ACT) ss 10, 40, 41, 42, 48 and 49

Subordinate Legislation
: Heritage (Decision about Provisional Registration of St Patrick’s Church, Braddon) Notice 2010, Notifiable Instrument

2010-526
Heritage (Decision about Registration for St Patrick’s Church, Braddon) Notice 2011, Notifiable Instrument 2011-369
Heritage (Decision about Provisional Registration of St Patrick's Church Braddon) Notice 2011, Notifiable Instrument 2011-737
Heritage (Revocation of Registration, Revocation of Provisional Registration and Decision about Provisional Registration of St Patrick's Church, Braddon) Notice 2012,

, Notifiable Instrument 2012-97
Heritage (Decision about Registration of St Patrick’s Church, Braddon) Notice 2012, Notifiable Instrument 2012-377

Cases:Briginshaw v Briginshaw (1938) 60 CLR 336
John Flynn Community Group Inc and Flynn Primary School Parents and Citizens Association v ACT Heritage Council [2012] ACTSC 50
Lonie v Brisbane City Council & Ors [1998] QPELR 209
Petterson v ACT Heritage Council & Commissioner for Housing [2010] ACAT 28
Taglietti and Ors v ACT Heritage Council [2011] ACAT 14
Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn v ACT Heritage Council [2012] ACAT 81

Truswell and Minister for Communication and the Arts (1996) 42 ALD 275

Texts/Papers: Australian Dictionary of Biography, Vol 14, MUP 1996
Braddon Neighbourhood Plan, ACTPLA, 2003
Ronald Fogarty, Catholic Education in Australia 1806-1950, MUP 1959

Brian Maher, Planting the Celtic Cross – Foundations of the Catholic Archdiocese of Canberra and Goulburn, Canberra, 1997.

Tribunal: Dr. D. McMichael – Senior Member (Presiding)

Ms M-T. Daniel – Member

Date of Orders: 20 September 2013

Date of Reasons for Decision: 20 September 2013

AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 12/59

BETWEEN:
TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDOICESE OF CANBERRA AND GOULBURN
Applicant

AND:
THE ACT HERITAGE COUNCIL
Respondent
AND:DALLAS HOSKING
Party Joined (1)
AND:VINCENT KANE
Party Joined (2)
AND:WILLIAM MEANI
Party Joined (3)

TRIBUNAL: Dr D. McMichael - Senior Member (Presiding)

Ms M-T. Daniel - Member

DATE: 20 September 2013

ORDER

The Tribunal Orders that:

The decision under review is set aside and for it is substituted a decision not to register the place Part Block 7, Section 57, Braddon, known as St Patrick’s Church, Braddon, comprising the listed building and its curtilage.

………………………………..
Mary-Therese Daniel – Member
for and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

The Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn (“the applicant”) have sought review of a decision made on 19 July 2012 by the ACT Heritage Council (“the Council”) to register St Patrick’s Church, Braddon, on the ACT Heritage Register. The property in question is vested in the applicant by virtue of the Roman Catholic Church Property Trust Act 1937 and the lease of the land is registered in the name of the Trustees.
The place the Council has decided to register is part of block 7 section 57, Braddon. It includes the church building (“the listed building”) and an area of land surrounding it, on the corner of Donaldson Street to the north-west and Cooyong Street to the south-west. The north-western and south-western boundaries of the place registered are co-incident with the property boundary. The south-eastern boundary is an arbitrary one, more or less co-incident with a sewerage easement crossing the block, while to the north-east it abuts block 1 section 57, Braddon on which is located a building that was originally a convent of the Order of the Sisters of Mercy but is now used for offices.
In interlocutory proceedings in December 2012, President Spender dealt with applications from three individuals and from the Parish Pastoral Council of St Brigid’s and St Patrick’s Central Canberra, to be joined as parties to the proceedings. In her decision (Trustees of the Roman Catholic for the Archdiocese of Canberra and Goulburn v ACT Heritage Council [2012] ACAT 81), Professor Spender joined the three individuals Mr Dallas Hosking, Mr Vincent Kane and Mr William Meani, as parties on the basis that they had a special interest in the matter greater than a non-Catholic member of the public and greater than Catholic members of the public who were not members of the congregation of St Patrick’s. She observed that as worshippers at the church, their interest in the proceedings was spiritual and not merely an emotional or intellectual concern. However, she dismissed the application of the Parish Pastoral Council, essentially on the grounds that it was not sufficiently independent, having been established by the Diocesan bishop to advise the parish priest and could not enter into arrangements in its own right.
The process by which the decision to register the place was reached was unusually prolonged. The nomination for its registration was made by Mrs Maree Oddy on 14 April 2010 and it was provisionally registered by the Council on 15 September 2010 in Notifiable Instrument 2010-526.[1] Following public consultation, the Council decided to proceed to register the place and a notice of that decision was made on 7 July 2011 in Notifiable Instrument 2011-369.[2]
[1] Heritage (Decision about Provisional Registration of St Patrick’s Church, Braddon) Notice 2010
[2] Heritage (Decision about Registration for St Patrick’s Church, Braddon) Notice 2011,
An application for review of that decision was made by the applicant on 3 August 2011 but on it being submitted that the five months’ period allowed for dealing with provisional registrations had lapsed and that the Council therefore had no jurisdiction to proceed to registration in July 2011, the Council agreed that the registration would lapse from 30 September 2011. At a preliminary hearing on 15 September 2011 the Tribunal made orders to that effect under section 68(3) of the ACT Civil and Administrative Tribunal Act2008 (“the ACAT Act”). The Council made no admissions as to the validity of the registration, nor were the merits of its decision to register the listed building considered.
On 15 September 2011, the Council’s Register Taskforce decided to make a new nomination of the place for consideration by the Council. On 30 October 2011, the Council itself decided to nominate the place and, on 1 December 2011, again decided to give it provisional registration in Notifiable Instrument 2011-737.[3] During the further period of public consultation that followed, it emerged that some details in the on-line provisional register were incorrect, so the Council, on 23 February 2012 in Notifiable Instrument 2012-97[4], formally revoked the provisional registrations of 15 September 2010 and 1 December 2011 and re-entered the place in the provisional Register at the same time.
[3] Heritage (Decision about Provisional Registration of St Patrick's Church Braddon) Notice 2011
[4] Heritage (Revocation of Registration, Revocation of Provisional Registration and Decision about Provisional Registration of St Patrick's Church, Braddon) Notice 2012
Following another period of public consultation, the Council again decided, on 19 July 2012, to enter the place on the Heritage Register. This decision was notified by Notifiable Instrument 2012-377[5]. It is this decision that is the subject of the present review.

The Hearing

[5] Heritage (Decision about Registration of St Patrick’s Church, Braddon) Notice 2012

The hearing of this matter extended over seven days. The applicant was represented at the hearing by Mr P. Walker of Counsel. The respondent was represented by Dr D. Jarvis of Counsel. The three parties joined, Mr Hosking, Mr Meani and Mr Kane, were self- represented.
The hearing was preceded on Monday 6 May 2013 by a view of the listed building. The parties, their legal representatives, the third parties and the witnesses Dr Marsden, Dr Pearson, Mr Marshall, Professor Mackay and Dr Lamb were all present at the view and had opportunity to point out internal and external features of the listed building, and comment upon the site.
After conclusion of the site visit the Tribunal commenced hearing the matter at the ACAT later on Monday 6 May, with opening statements from the parties and each of the parties joined. The hearing of oral evidence continued over 7, 8, 9 and 10 May, and 15 July, ending with oral submissions of all parties on 16 July 2013.
All parties made closing submissions at the conclusion of the hearing, the applicant and the respondent providing written outlines of their closing arguments.

The evidence

The Tribunal had before it for the hearing a wealth of documentary material, consisting of:
·the Tribunal documents (T-Docs”) relating to the decision under review, filed by the respondent, dating back to 15 September 2011;
·Supplementary Tribunal documents (“ ST-Docs”) from the previous registration of the listed building on the Heritage Register, dating back to 17 June 2010;
·Statements of facts and contentions filed by each party;
·Revised submission by Mr Dallas Hosking, party joined;
·Amended statement of facts and contentions of Mr Vincent Kane, party joined;
·Revised submissions of Mr William Meani, party joined;
·Statement in Reply filed by the applicant
·witness statement of Father Brian Maher, Retired Catholic Priest and Church historian who had served as Assistant priest in Braddon Parish from 1968 to 1971;
·witness statement of Father William Kennedy, Parish Priest of O’Connor Parish who had served as Assistant priest in Braddon Parish from 1960 to 1968;
·witness statement of Mr Duncan Marshall, a qualified architect, experienced heritage conservation consultant and currently Chair of the ACT Heritage Council;
·witness statement of Ms Margaret Bunk, member of the German Catholic Community and worshipper at St Patrick’s since 1965;
·witness statement of Dr Michael Pearson, an experienced consultant in heritage management who is currently, a member (and former Chair) of the ACT Heritage Council;
·witness statement of Dr Susan Marsden, a professional historian and heritage consultant and former National Conservation Manager of the Australian Council of National Trusts;
·Key documents referred to in the statement of Dr Marsden;
·two witness statements of Professor Richard Mackay, a partner in Godden Mackay Logan Pty Ltd Heritage Consultants and Chair of the Australian World Heritage Advisory Committee;
·Two witness statements of Dr Richard Lamb, a consultant specialising in landscape heritage and visual impacts assessment;
·witness statement of Mr Alan Foskett, Canberra historian who has written a number of books on the hostel phase in Canberra’s development;
·witness statement of Monsignor John Woods , Archdiocesan Administrator for the Archdiocese of Canberra and Goulburn;
·witness statement of Father Eddie Evans, Catholic Priest and current Pastor to the German-speaking Catholic Community;
·documents produced by the Sisters of Mercy;
·documents from the ACT Planning and Land Authority; and
·Heritage Register citations for other buildings.
During the course of the hearing some 40 other documents, consisting of both primary and secondary materials, were put before the Tribunal. It is not necessary to list these exhibits individually in these reasons; where relevant they are identified.
In addition to the documents before the Tribunal, oral evidence was given by each of the witnesses who had provided witness statements, and each of the parties joined.
The evidence before the Tribunal, then, consisted of evidence as to the facts provided by primary sources in the form of historical documents (such as newspaper reports, parish records, etc) and testimony from witnesses such as parishioners and priests involved in the church; and evidence as to the facts drawn from secondary sources such as published histories. From this evidence the Tribunal has determined the history of the listed building and its use from time, as detailed below under the heading “History of the Listed Building”.
The evidence before the Tribunal also included expert opinion in the form of reports prepared in relation to the listed building and evidence given by the authors of these reports. Dr Marsden, Dr Lamb, Professor Mackay, Mr Marshall and Dr Pearson had each provided expert reports and gave evidence to the Tribunal during the hearing. The Tribunal also had before it, from the Tribunal documents, earlier expert reports from Philip Leeson Architects prepared in 2010 and a report of Dr Sandy Blair prepared in February 2011. This expert evidence has been considered by the Tribunal in reaching its conclusions below under the heading “The Issues”.

Applicable Law

The Heritage Act provides for the registration of places and objects of heritage significance upon the heritage register. The objects of the Act are as follows:
3Objects of Act
(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.
(2)A function under this Act must be exercised—
(a)to preserve the heritage significance of places and objects; and
(b)to achieve the greatest sustainable benefit to the community from places and objects consistent with the conservation of their heritage significance.
(3)If the exercise of the function involves conduct that would adversely affect the heritage significance of a place or object, the conduct may be engaged in only if—
(a)there is no feasible or prudent alternative; and
(b)all measures that can reasonably be taken to minimise the adverse effect are taken.
Part 3 of the Act establishes the Heritage Register for the registration of places and objects of heritage significance, and Part 4 of the Heritage Act establishes the Heritage Council which is given the responsibility for both maintaining the Register, and also deciding whether a place or object should be provisionally or finally entered upon the Heritage Register. Where a place has been provisionally registered, the Heritage Council is obliged by section 40 of the Act to decide whether or not to finally register that place. Section 40 provides as follows:
40Decision about registration
(1)If a place or object is provisionally registered, the council must decide whether to register it under this division.
(2)The council may register the place or object only—
(a)after complying with any direction by the Minister under section 39; and
(b)if satisfied, on reasonable grounds, that it has heritage significance.
The power to finally register a place or object under subsection 40(1) is discretionary in nature, and may only be exercised where the preconditions specified in subsection 40(2) have been satisfied. In particular, registration may only occur where the Heritage Council is satisfied on reasonable grounds that the place has heritage significance.
Section 10 of the Heritage Act sets out when an item will have heritage significance, as follows:
10Heritage 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;
(e)it is significant to the ACT because of its importance as part of local Aboriginal tradition;
(f)it is a rare or unique example of its kind, or is rare or unique in its comparative intactness;
(g)it is a notable example of a kind of place or object and demonstrates the main characteristics of that kind;
(h)it has strong or special associations with a person, group, event, development or cultural phase in local or national history;
(i)it is significant for understanding the evolution of natural landscapes, including significant geological features, landforms, biota or natural processes;
(j)    it has provided, or is likely to provide, information that will contribute significantly to a wider understanding of the natural or cultural history of the ACT because of its use or potential use as a research site or object, teaching site or object, type locality or benchmark site;
(k)for a place—it exhibits unusual richness, diversity or significant transitions of flora, fauna or natural landscapes and their elements;
(l)for a place—it is a significant ecological community, habitat or locality for any of the following:
(i)the life cycle of native species;
(ii)rare, threatened or uncommon species;
(iii)species at the limits of their natural range;
(iv)distinct occurrences of species.

In the current matter, the Council decided that the listed building had heritage significance because it satisfied criteria (c) and (h). The Council considered that the listed building did not satisfy any of the other criteria contained in section 10 of the Heritage Act. A summary of the conclusions of the Council is provided below under the heading “The Issues”.

The history of the listed building

St Patrick’s Church (the listed building) was opened in 1935 as a combined Church and school to serve the needs of Roman Catholics in the northern part of Canberra, then collectively known as Ainslie. The area containing the listed building was established as a separate Division (suburb) Braddon, on 20 September 1928 (Braddon Neighbourhood Plan, p 10).
The need for such a church-school was recognised by Father Patrick Haydon (then parish priest of Queanbeyan) in 1926 at the time when the Church had decided to build a church-school to serve the south-side development around Blandfordia (now Forrest) and Kingston. In proposing that development, Father Haydon stressed the desirability of locating it near to Telopea Park School which had opened as a government school in 1923, especially to allow its pupils to take advantage of the established government bus service. He foreshadowed the need for another school at Ainslie “in the next few years”. While the first church-school (St Christopher’s) was built at Manuka and opened in 1928, the second, St Patrick’s, did not eventuate for seven more years, probably because of the impact of the Great Depression.
In August 1934, Father Haydon applied for a site for a school in Braddon but the first two blocks he proposed were considered unsuitable by Government officials. In January 1935, he instead sought the lease of another block that had been allocated to the Church of Christ but which they were prepared to surrender. This was granted and the listed building was built and ready for use by August 1937. It was not far from the government funded Ainslie Public School which had opened in 1927. School classes at St Patrick’s commenced in September 1937, conducted by the Sisters of the Good Samaritan who travelled to the school each day from their convent at Manuka. Church services were provided by priests from the Presbytery built in 1932 on Canberra Avenue north of the Molonglo River.
The listed building is a single storey red brick and tiled roof structure, which was designed to have a second storey added later. It originally contained five classrooms each separated by accordion-type folding doors running on overhead tracks mounted on cross beams (trusses). When folded back the doors went into special recesses in the walls, thus leaving the whole of the floor space unobstructed and suitable for parish functions. Of the five classrooms so provided, the one nearest Cooyong Street was used for Mass. Each classroom had a door opening through the north-east wall to the school playground. No plans for this original building have been located.
From 1937 until 1953, the listed building continued to function both as a Church and a school, but with the increase in the number of pupils attending, an infant’s school was built in 1945 and an Assembly Hall in 1946. A new Church, St Patrick’s War Memorial Church, was built in 1953 on Limestone Avenue and became the main venue for Roman Catholic worship in North Canberra. By 1954, the listed building was used solely for school purposes and Mass was then said in the Assembly Hall for some years. A further brick block of three classrooms, a tuckshop and a toilet block were added in 1957. In 1955, the Braddon Church was renamed as St Mary’s Our Lady of Mercy and, in 1956, the Sisters of Mercy took over conduct of the school from the Good Samaritan Sisters. A convent for the Sisters of Mercy was built in 1958 adjacent to the church-school building.
In 1963, alterations were made to the listed building including enclosing the verandas facing Donaldson Street. By this time the number of pupils was declining from a peak of around 500 in 1956 to 289 in 1963 and at the end of 1973, with numbers continuing to decline, the school was closed. The Assembly Hall and other buildings, but not the listed building, were leased to the Department of Education for use by the “School Without Walls” from March 1974 until 1981. In 1974 the partitions dividing the listed building into classrooms were removed while general renovations were carried out later in 1974 and in 1976.
In 1982, the block was subdivided and the area containing the convent to the north-east (block 1 section 57) was sold to the Sisters of Mercy, while an area to the south-east of the listed building (block 4 section 57) was sold to the Australian Episcopal Conference of the Catholic Church.
In 1983, it was decided to refurbish the listed building for use as a Church and substantial changes were made both to its external appearance and its internal organisation, the latter to reflect the changes in Church practice following the second Vatican Council. Detailed plans for the proposed modifications are available, though there is some evidence that other minor changes were made during the work. The positioning of the altar was rearranged to be central to the building, three doorways from the former classrooms were removed and replaced by re-located original windows with brickwork below, and another doorway and two windows were bricked up. Many other changes were made to the interior layout, in particular, the ceiling of the central area was replaced with vaulted raked timber. The external appearance of the building was altered by the addition of brick fins along the Donaldson street and side façades, and the removal of the “cupola” and its replacement with a smaller spire surmounted by a cross.
In March 1985, the listed building was formally re-dedicated as a Church under the name St Mary’s but in 2002, following the incorporation of the Limestone Avenue building into Merici College, the listed building’s name reverted to St Patrick’s and it has continued in use as a Church under that name to the present.
In addition to regular Sunday and weekday masses for the general Catholic community, the listed building was used by a number of ethnic Catholic communities when Mass was able to be celebrated in their own language. In particular, the German-speaking Catholics began worshipping there in 1971 and have continued to do so ever since. A German-speaking priest was appointed in 1965 as pastor to that community by the Katholischen Auslands Sekretariat in Bonn, Germany. In 1970, after a period of worship at Narrabundah and other venues, the German-speaking Catholics moved their activities to St Patrick’s, initially in the Assembly Hall, but from 1974 in the listed building. The St Bonifatius Gemeinde - Canberra (St Boniface Community - Canberra) was incorporated in 1970 and acquired a house in Donaldson Street which has since been used as the residence of the German-speaking pastor.
In 1989, the Assembly Hall and Infants school buildings were destroyed by fire and the following year, the Church erected Favier House (which houses the Archdiocesan offices and other Church facilities) on the site of the former Infants building and playground, with the remainder of the playground area landscaped and developed for car parking. About two years ago, access to the car parking area from Donaldson Street was restricted by the installation of a boom gate. Part of block 7 section 57 (including the listed building and its surroundings) remains in this configuration, both at the time of its entry to the Heritage Register and its consideration by this Tribunal.
In 2011, the ACT Department of Housing and Community Services, who were planning the redevelopment of the Allawah, Bega and Currong (ABC) Flats which are adjacent to block 7, section 57, approached the Church authorities about the possibility of incorporating the site of the listed building into their redevelopment plans. As the Church was planning to redevelop its facilities at Manuka for which finance would be required, preliminary discussions were held and the Church indicated that any agreement to inclusion of the listed building in the redevelopment would have to include provision of a dedicated Roman Catholic Church on the site. However, Monsignor Woods, the Administrator of the Archdiocese, in his oral evidence advised the Tribunal that the price for the site offered by the Government was inadequate. He stated that the Church had no plans to sell or demolish the listed building at this time and was considering other means of financing the Manuka redevelopment. He agreed that if the listed building remained on the Heritage Register it would probably continue to be used as a Church.

The Issues

The task of this Tribunal is to review the decision of the Council to enter St Patrick’s Church and its curtilage of land onto the Heritage Register. In doing so, we “stand in the shoes” of the Council and may consider any evidence before us, whether or not it was available to the Council at the time it made the decision. The decision to enter a place on the Register is governed by section 40 of the Heritage Act, which first requires the Council (and hence this Tribunal) to be satisfied on “reasonable grounds” (section 40 (2)(b)) that it has “heritage significance”. A place has “heritage significance” if it satisfies one or more of the twelve Criteria set out in section 10 [criteria (a) to (l)] and in this case, there was no dispute that nine of those criteria were not satisfied.
The Council found, on the evidence available to it, that criteria (c) and (h) were met. It also considered criterion (d) but on the available evidence concluded that the place did not meet it. At the commencement of the hearing, the Tribunal queried with the parties the available evidence in relation to criterion (d). The applicant’s counsel suggested that the applicant was not prepared for, and was in some way taken by surprise by, the suggestion that criterion (d) might be relevant; the respondent’s counsel indicted that the respondent did not propose to call expert evidence on that point and did not rely on criterion (d) as a basis for registration. The applicant and respondent were united in suggesting that the Tribunal need not spend much time considering this criteria.
The Tribunal was not persuaded by these submissions. An application for review of a decision to put a place or object on the Heritage Register is not an application inter partes. It is long-established that the role of the Tribunal in an application for review is not limited to the grounds advanced by either the applicant or respondent, but requires the Tribunal to properly consider all relevant material and reach the correct and preferable decision. Accordingly, the Tribunal in this matter took the view that it should consider the evidence available to it in relation to each of the potential criteria, irrespective of the views of the applicant and respondent.
The relevance of criterion (d) was noted in the first experts report in the matter, prepared by Philip Leeson Architects in June 2010. Despite the failure of any of the involved parties to commission the requisite research into this aspect, or obtain expert opinion on the point, it has at all times clearly been a live issue and requires proper consideration by this Tribunal. Accordingly, the Tribunal felt obliged to consider the correctness of this conclusion in the light of the evidence before it and submissions made about it.
(a)The findings of the original decision-maker
The essential elements that led to the Council’s conclusions are set out in the section of the Register Entry headed “Assessment Against the Heritage Significance Criteria” as follows. In relation to criterion (c) it reads:
St Patrick’s Church is important in representing a distinctive function and tradition of a religious community in Canberra for some 75 years. A school from 1935 until approximately 1980 (a Catholic school from 1935-1973, formerly St Patrick’s School, then St Mary’s - Our Lady of Mercy) the school has also been a church from 1935 to the present. It provides evidence of changes to functions and traditional uses – some of which are no longer practised in the same way, some of which have disappeared. The place demonstrates those changes over time: changes to the practices of a religious group formed in the newly established capital, with strong community ties being forged by newcomers through the support and focus provided by their church and school.
During the first twenty years of its life, when St Patrick’s was the only Catholic school and church in North Canberra, religion was an important aspect of cultural self-identification. While there was also a church at Hall (St Francis Xavier), this was a rural village, and not part of the planned national capital. Since that time, changes at this school and church building reflect changes in Canberra’s population – such as the closing of the school in 1973 and the celebration of Mass by migrant groups in their own languages. These changes and the physical changes in the Civic area, are seen in the parish and Archdiocese responses, including the diversification of the Church’s use in this space.
In relation to criterion (h) it reads:
As the first Catholic school developed on the north side of Canberra as the national capital, St Patrick’s has special associations with the development of Canberra from 1935. This includes the educational and religious development, particularly in regard to church and community responses to the provision of education and with the role that the Church took in forging new communities during the growth of the national capital. This was achieved by providing a place to facilitate community connections, which was particularly important for those who came to live and work in Canberra without family or community ties.
St Patrick’s Church ha special associations with the unique initial pattern of school development within the ACT, the north side of the city mirroring the south side in the development of a state school followed by a church school nearby. The St Patrick’s Church school was developed in close proximity to the Ainslie Public School as part of this approach. The south side of early Canberra was served by the St Christopher’s School from 1928, and the main public school nearby was Telopea Park School of 1923.
Whilst not the main parish Church, St Patrick’s, later St Mary’s – our Lady of Mercy, ongoing use as both a school and church in various periods since its opening in 1935 has provided the community with a centralised place of education and religious guidance, even following the establishment of the new St Patrick’s War Memorial Church in 1953.

In relation to criterion (d), it reads:
The religious and educational value placed on St Patrick’s as a former school and Church by current parishioners is demonstrative of the social value that may be attributed to any school or Church. Whilst the place clearly had special significance to the Catholic community in the past, this appears to be an historical rather than a contemporary social value, due to the changed demographics and social context in which the community now lives.
The Archdiocese of Canberra and Goulburn, as the obvious group associated with the site have acknowledged the nomination of St Patrick’s however have not attributed a high level of either religious or educational value to St Patrick’s. There is insufficient evidence available to the Council at this time to indicate that the place is valued by the ACT community as a whole or by a particular cultural group.
(b)Tribunal’s conclusions on the issues in the matter
The Tribunal considers that the Council’s statements do not always make clear just what attributes of St Patrick’s Church (in its view) satisfy which elements of criteria 10(c) and 10(h). Both the criteria and the accompanying statements are couched in very general language and can be interpreted in various ways. However, based on the T Documents and ST Documents before it and the evidence presented at hearing, we have concluded that the issues which we need to consider are as follows:
Criterion (c)
·Were buildings that combined Church and school functions a distinctive tradition, land use, function or design of the Roman Catholic Church and if so, is that tradition in danger of being lost or of exceptional interest? If so, is the listed building important as evidence of that?
·Was there a distinctive Catholic way of life in northern Canberra during the pre-war and early post-war years that is in danger of being lost? If so, is the listed building important as evidence of that?
Criterion (d)
·Is the listed building highly valued by the Roman Catholic community of Canberra generally or of inner north Canberra, or by a cultural group for reasons of strong or special religious, or spiritual, or social associations? Is the German-speaking Catholic community such a cultural group and is the listed building highly valued by it for any of those reasons?
Criterion (h)
·Does the listed building have strong or special associations with any person, group, event, development or cultural phase in local or national history, including
a.         with Father Patrick Haydon;
b.        with the development of State and Catholic schools in close proximity as a matter of policy;
c.         with the development of the suburb of Braddon; or
d.        with the development phase of rapid post-World War II growth, characterised by the large influx of single persons living in hostels.
In the paragraphs that immediately follow, we will consider each of these issues and the evidence before us, as well as the submissions made about the weight to be given to that evidence.

(c)The evidence and submissions about each of these issues
Criterion 10 (c)
The “combined church-school” issue

There is no doubt that the listed building was constructed to serve the purposes of both a school and a Church and that for a number of years up to about 1954 both uses continued in the one building. Although designed to provide five classrooms it appears that only four were used as such. The accordion partition separating the westernmost room nearest the altar was kept closed, so that weekday morning Mass could be held there without difficulty (according to the evidence of a former pupil recorded by Dr Marsden). After the Assembly Hall was built, from 1954 until 1974 the listed building was used only as a school, with school day and Sunday Mass being celebrated in a small dedicated chapel area at one end of the Assembly Hall, apparently to avoid the inconvenience of rearranging the school rooms. Following closure of the school, from 1974 to the present day, the Church function resumed in the listed building, as the Assembly Hall was leased to the School without Walls.
Mr Meani contended that St Patrick’s had been continuously used as a Church from 1935 until the present day, despite the fact that when the Memorial Church on Limestone Avenue was built, the listed building was used only as a school and that any Masses were said in the Assembly Hall. He relied on a briefing paper prepared for Father John Armstrong for the 60^th anniversary of the listed building for evidence of this, but examination of that document (Exhibit 39) does not support his contention.
The evidence of former pupils recorded by Dr Marsden was that the original seating in the building was “ingeniously designed” school desks with seats that could be converted into pews for Church services by tipping the desk-tops up and over to form backs for the pews. This task was done by pupils at the end of the school week and the accordion type partitions were folded back (later by adult parishioners) to open up the whole building for Sunday Mass. The classrooms were restored each Sunday evening ready for school the following day.
The Council appears to have concluded that the combination of Church and school was a peculiarly Catholic tradition that is in danger of dying out, though the first paragraph of the citation quoted above is not explicit on this point. Nevertheless, it was submitted by Dr Jarvis that the Catholic parish school-church is a form of educational and religious tradition. He argued that “tradition” means “a long established and generally accepted practice or custom” and that the Catholic parish school, as it was practised in Australia, answers the description of tradition, whether one calls it a religious or an educational one. He submitted that by the end of the 19^th century, the practice of building parish schools, even prior to a Church, was so widespread and so well recognised as essential to a Catholic parish, as to warrant this description.

Dr Jarvis relied on Brother Ronald Fogarty’s Catholic Education in Australia 1806-1950 to establish that the Catholic combined church-school differed from the approach adopted by other denominations or in other countries such as the USA. The other denominations generally did not adopt dual-purpose buildings but rather schools in a separate building, such as at St John’s Anglican Church in Reid. He rejected the proposition that because Church schools occurred in many parts of New South Wales this one could not be significant. In his submission, the place is important evidence of the tradition in Canberra, even if the place is but one of a number of examples of it.
Dr Jarvis extended his argument by submitting that the listed building was also a distinctive form of dual land-use, of dual-function design of a building and of co-location of functions each of which also brought it within the ambit of Criterion (c), but he did not enlarge on these propositions.
As to whether it was in danger of being lost, he submitted that it was, because the conditions that produced it (of government policy, population and finance) had gone. Since the late 1950s the Catholic school system had received government funding, removing a financial constraint that had existed for about 80 years, while education had also changed with the advent of separate infants, primary and secondary schools. Further, the administration of Catholic education had changed after the war from a parish-based one to a centralised administration. In addition, there were many schools financed and controlled by religious orders. Under these conditions, the dual-purpose parish school became outmoded.
Dr Jarvis also submitted that the place was of exceptional interest because the Catholic parish school represented a distinctive mode of school development adopted by the Catholic Church in colonial and pre-war Australia, which had a far-reaching influence on the education of a significant proportion of Australians and on the development of the Catholic Church in Australia. For these reasons, he contended that this mode of school development was highly valued by the Church itself, by Church historians and admired by Church authorities in Rome, citing Fogarty at pp 304-5 as authority.
In order to satisfy the Criterion, the place has also to be important as evidence of these attributes. Dr Jarvis put forward four grounds for regarding it as such. First, he said, it is the only remaining pre-war evidence of the tradition, design etc of the Catholic parish school in Canberra, or at least on the north side of the city. Second, it is evidence of a good quality, because a considerable part of the original school building is intact, despite modification in 1983.
Third, the former school building, despite those modifications, still retains features associated with the dual-function of the parish school. He relied on the evidence of Mr Duncan Marshall, a qualified architect, who had undertaken an inspection of the listed building. Mr Marshall had said that “the issue of integrity was important in assessing the heritage value of a place. However, integrity must be evaluated with regard to the claimed values….If a claim is made that a place is important because of evidence of evolution over time, then integrity should be assessed in terms of surviving evidence of that evolution”. He concluded that “in the context of the actual heritage values determined by the Council, the integrity of the building is sufficient to justify registration.”
Dr Jarvis observed that the external elevation from the public domain is un-Churchlike; it retains the appearance of a school with large school-like windows and the locations of the filled-in exit doors are still visible on the rear elevation. It still has the special recesses for the folding partitions that created the classrooms, most of the double roof beams from which the partitions were suspended, the nave, sacristy and confessional (in part), and at either end of the interior, two spaces that were created by the partitions are intact with the original low ceilings.
In his submission the importance of the remaining fabric was not diminished because the building may no longer be clearly “read” as a school as Dr Lamb had suggested. He noted that the parish had included some materials in the form of a plaque and photographs in the foyer to mark the building’s past as a school but agreed that more might be done in this respect. However, he contended that this was a matter of presentation and appreciation of the place and did not go to the quality of the fabric itself.
Fourth, Dr Jarvis submitted that the listed building is important evidence because of its association with the Braddon residential precinct that it was built to serve. It was one of the only privately built and designed buildings in the area at the time (1920s-1935) but its materials, design and siting were apparently intended to complement the government residential development around it.
Dr Jarvis rejected suggestions that the importance of St Patrick’s was diminished because there were earlier Catholic schools in the district. He noted that St Francis Xavier’s at Ginninderra had ceased as a school in 1881 and in any case was outside the boundaries of the city as it was in 1935, as was the Tuggeranong Catholic Church, built in 1902 but without a school. While it is true that St Christopher’s school was built in 1928 and functioned as church-school for nine years, there is no evidence that it had any special design features to serve these dual functions. It was designed as a two storey school and while a hall on the ground floor was used for Church purposes, it was always intended that a Church would be built nearby (though this was delayed by the Depression until 1939).
In his submission, St Patrick’s was the first Catholic parish school-church in Canberra that was designed for this dual purpose and the listed building is the only remaining evidence of it.
Mr Walker began by observing that it was for the Council to satisfy the Tribunal that the listed building warrants heritage registration, not for the applicant to show that it does not. Furthermore, the Tribunal needs to be “reasonably satisfied” and that “reasonable satisfaction” should not be produced by “inexact proofs, indefinite testimony or indirect inferences” (Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362). He contended that the evidence of the original church-school use of the listed building is now so altered that it can no longer be regarded as “important as evidence”.
He submitted that while it was entirely appropriate for an historical building to be accompanied by documentary aides or narration to understand what had previously occurred at the site, the requirement of the criterion is for the listed building to be “important as evidence” and able to demonstrate what previously took place. The fact that there are a handful of alcoves (where air conditioning units are now placed) and one or two otherwise nondescript rooms (the exact use of which is unknown) is insufficient evidence of the former school-church dual function and the Catholic parish school. Mr Walker also referred to the evidence of Mr Marshall who had stated that the only remaining evidence of the previous use as a school was the alcoves into which the partition doors retracted. Mr Walker observed that there was no remaining evidence of the doors themselves as they had been removed and there was no remaining evidence of the tracks or guides as they too had been removed. Further, only half of the alcoves remain, two having been demolished as part of the 1983 renovations and two now being covered with wood as part of the sacristy. In his submission, the traces of the earlier school-church use are so faint that the listed building is not important evidence of that earlier dual use.
Further, even if the listed building is important as evidence, that evidence must be of a “distinctive” way of life, taste, tradition, religion, land use, custom, process, design or function and, in his submission, that required comparative analysis –“distinctive as compared to what”? He contended that the Council had not undertaken a comparative analysis of other parish schools or ways of life that existed at the same time as St Patrick’s in order to determine whether St Patrick’s was distinctive or not as part of its initial decision and had provided no such evidence to the Tribunal. The listed building was not the first or last manifestation of a Catholic parish school in the ACT, nor can it be regarded as the best. The evidence of Dr Lamb and Monsignor Woods showed that there were a number of Catholic parish schools constructed before the listed building and there were a number constructed after it, some of which are better examples. In fact combined church-schools were still being built, for example Holy Spirit Church and School at Amaroo.
He submitted that the Australian Catholic parish school is not a distinctively Australian or ACT tradition and even if it is, it is still being practised and is not in danger of being lost, nor is this mode of school development of exceptional interest. In contrast, it is very common place and not noteworthy.
Of the parties joined, neither Mr Hosking nor Mr Kane made any submissions about the listed building being evidence of its former dual use as a Church and school. Mr Meani however stressed that the listed building was the only surviving example of a church-school on the north side of Canberra that was still being used. He further submitted that the majority of the existing building was original despite the changes made in 1983 which blended in with the 1930s style of the original building and opined that it would not be possible for anyone to tell the difference without being told so. He did not however comment on those elements of the building which are remnants of its school function.
Criterion 10 (c)
The distinctive way of life issue
Dr Marden considered that between the late 1920s and the 1960s there was a distinctive way of life in Canberra when the population comprised mainly newcomers living in pioneering suburbs with few facilities and services, especially in the more sparsely-developed North Canberra . She said that this distinctive way of life was because many of Canberra’s newcomers – and Catholic parishioners - were housed in barracks, camps and hostels, which were an integral part of Canberra life for single men and women from around 1910 to the 1960s. She considered that this distinctive way of life was no longer practised and that St Patrick’s was important evidence of this as it was central to the Catholic way of life in those years that was of necessity focussed on Church and school. St Patrick’s was a focal point for incoming Catholic residents, including those housed in the many nearby government hostels, as it was the only Catholic Church and school in north and central Canberra between 1935 and the 1950s when that way of life was typical.
However, under cross examination Dr Marsden conceded that this distinctive way of life did not arise because the city was divided north and south. Throughout the hearing there was discussion as to whether, during the years prior to Lake Burley Griffin being constructed, suburban Canberra was divided into two parts - “north” and “south” separated by the Molonglo River and its flood plain. Opinions differed as to whether there was a social divide between those living in the suburbs to the north of the river and those living to the south although it was generally accepted that the residential areas in north Canberra were more likely to be occupied by tradespersons and lower ranked public servants.
While there was clearly a physical divide in the form of the river, which at times of flood made communication between the two parts of the growing city difficult, if not impossible, for short periods, it is also clear from the evidence that, as far as the Catholic Church was concerned, this was no great impediment. The Good Samaritan Sisters lived in the Convent at Manuka and travelled each day to and from the school on foot, while the priests lived in the Presbytery to the north of the river and provided religious services to south side residents.
Mr Walker submitted that the way of life in Catholic communities in the “pre-war” period, in which the school building was the location of most community social activity, was not distinctive or of special interest and even if it was, the listed building is not important as evidence of this way of life. He noted that Dr Lamb had given evidence of what might constitute a community that had a distinctive way of life, citing the Indian community at Woolgoolga NSW and Chinatown in Sydney. In both cases the distinctiveness was perfectly clear, evident in the architectural fabric, landscape design etc. Dr Lamb had said he did not see that in the case of St Patrick’s.
As to those public servants who came to Canberra in the 1950s and 1960s and lived in hostels and barracks, they may have had a distinctive way of life but the evidence of that is to be found in the hostels or barracks, not the listed building. It was not the Canberra Catholic community, as a subset of the public servants, that had a distinctive way of life. During that period, the listed building did not hold any religious services and any Catholic community connection would have been with the Assembly Hall and/or the War Memorial Church on Limestone Avenue.
Neither Dr Jarvis nor Mr Hosking made any submissions on this issue. Mr Meani focussed mainly on the importance of the listed building as the only surviving example of a church-school building on the north side of Canberra, but also submitted that “St Patrick’s (ie the listed building) stands as a memorial to our traditions and way of life. A memorial must be retained so that its history can continue and we can celebrate more milestones like the 80^th anniversary and the centenary in 2035. History can’t be rebuilt – it must be developed over time and maintained for our future”. In his opinion, the applicant wanted to sell the site to developers who would demolish the building. Even if a new place of worship was built, he contended that it would be without pews, an altar, confessionals, tabernacle, sacristy or other Roman Catholic Church “trappings”. It would not be acceptable to the parishioners and they would not attend services there. Thus the traditions and functions that existed since 1935 will be lost forever.
Mr Kane did make submissions about the importance of the listed building to the hostel dwelling community, but saw it as a development phase in the life of the capital, which will be dealt with under criterion 10(h) below.

Criterion 10(d)

The “highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social association” issue

As noted above, the Council considered criterion 10(d) but found that it had insufficient evidence available to it at the time of registration to indicate that the place was so valued. They considered that the religious and educational value placed on St Patrick’s as a former school and Church by current parishioners was demonstrative of the social value that might be attributed to any school or Church and observed that the Archdiocese apparently did not attribute any high level of either religious or educational value to it. Dr Marsden formed a similar view, observing that the present day users of the Church do not meet the criterion of being a cultural group. However, additional evidence on these aspects was before this Tribunal.
Based on the views of the Parish Council as reported by Mr Meani and the many letters in support of its heritage listing received during the public consultation (as evidenced in the T-documents), it seems clear to the Tribunal that the listed building is valued by many members of the Catholic community for a range of spiritual, cultural, educational and social associations.
Little attention has been paid to the social value of the listed building. The report by Philip Leeson Architects for Purdon and Associates, commissioned by the Department of Housing and Community Services in 2010 observed, when considering this criterion, that “an assessment based on community associations with the site and its meanings to the community is currently being undertaken with results pending”. The only evidence of this assessment is a brief report, prepared by Heritage Consultant Marilyn Truscott (Appendix A to the Leeson Report) in which Ms Truscott concludes
that it is highly likely that St Patrick’s/St Marys Church-School has social value. The heritage assessment that can be made from the minimal approach made, suggests that a more structured approach to meet with parishioners and to those who went to school at the site would find such associations. Such consultation would better draw out the nature of the meanings the place has for the community, and whether it is strong and deep enough to be seen to come over a heritage significance threshold. It would also identify more clearly attitudes to the impacts the proposed changes would have on such community associations and connections” (T 322).
It appears that no “more structured” assessment was undertaken.
Quite apart from the evidence of the listed building’s value to the general parishioners, evidence was give of its special value to the German speaking Catholic community by Mrs Margaret Bunk who had been a member of the German Catholic St Boniface Community in Canberra since 1965 and has been its Secretary while her husband was the Community’s Honorary Treasurer since 1984. She said that the German-speaking Catholics began worshiping at St Patrick’s in 1970 and in the listed building after the school closed in 1973 and had continued to do so ever since (apart from a few months when the building was being renovated and the Assembly Hall was used). She and her husband had donated a specially carved crucifix to the Church on behalf of the Bunk family which is still there, while the German Catholic Community contributed $8,000 towards the renovations of the listed building in 1984 and regularly took care of the repairs to the Church and maintenance of the grounds.
Further evidence was given by Father Edward Evans, Chaplain or Pastor to the German Catholic community since 1993, his salary being paid by the Katholische Auslands Secretariat (“KAS”), the Catholic Pastoral Service to Germans living overseas. His evidence was that St Patrick’s was first used by the German Catholic community in 1971 and had been used continuously since that date, Mass being said every Sunday at 10.00 am and on special feast days. Since 1983, the German-speaking priests and missionaries who serviced the Church have lived at 18 Donaldson Street, Braddon, which was purchased with the help of KAS by the Catholic St Boniface Community.
Father Evans said that the German Catholic community did not regard St Patrick’s as a temporary Church, otherwise they would not have given the expensive donations and stained glass windows to it, but would have looked around for a permanent Church. He stated that the Church was in good shape, well maintained and well frequented, with average attendances of 25 to 30 on regular Sundays and 40 to 50 on feast days. He stressed that St Patrick’s was significant because of its central location – that was why it was chosen - and that people came from all over Canberra and as far away as Yass to attend the German Masses. He also said that since the car park had been closed, funerals could not be held at the listed building on week-days because of inadequate parking availability and were now held elsewhere. He observed that there were few weddings and baptisms now because of the age of the German speaking community, though he did say that the number of attendees at Mass was being maintained.

He rejected the suggestion that the German Catholic community could continue in another Church, saying “We simply have our own Church. Why should we go to another Church? We built it, we remained there for 40 years or more. Why must we be transferred? It’s a living, vibrant Church, a good community… We will hang on to our Church until we are driven out”. However, he could not predict its future viability, having regard to the ageing population and absence of job opportunities in Canberra for the younger people.
No submissions were made by the parties joined in support of the proposition that criterion 10(d) had been met, other than a statement by Mr Meani that it was “very significant for the different ethnic groups who celebrated important religious ceremonies and attended masses in the listed building”. However, Dr Jarvis made some comments on the issue in order to assist the Tribunal. In his submission, it would be beyond dispute that the German-speaking Catholics are a “cultural group”. He said the fact that the group highly values the listed building was evidenced by their personal contributions to it and by the financial support of the KAS for its refurbishment. They had been there for a long time, had regularly reported to the German Church authorities and had purchased the Donaldson Street house to provide a convenient residence for the German speaking priests. However, he also suggested that it is a group that is dying out and that the proper place to recognise this was under criterion 10(h).
He also drew the Tribunal’s attention to the decision in Taglietti and Ors v ACT Heritage Council (2011) ACAT 14 of 18 February 2011 in which the Tribunal had not accepted that the John Flynn Community Group Inc was a “cultural group” with a “strong or special” social association with the former Flynn Primary School.
Mr Walker submitted that the Church in which ethnic communities worship is primarily determined by the ethnic community’s priest and the evidence showed that where an ethnic community’s priest moved from one Church to another, the ethnic community would follow, as the German-speaking Catholics had done when the first German priest, Father Kraemer, lived at Narrabundah and held services at St Benedict’s Church in that suburb. He said it was very common for ethnic Catholic communities to move from one Church to another as the evidence of Father Kennedy and Monsignor Woods demonstrated.
In his submission, the German Catholic community was no different and could attend St Brigid’s Church at Dickson. There was nothing intrinsic about the listed building to the German Catholic community, instead he contended that it worshipped there purely as a matter of convenience as a result of the purchase of the Donaldson Street house for the German Chaplain in 1983. Consequently he submitted that it did not meet criterion 10(d).

Criterion (h)

The strong or special associations with any person, group, event, development or cultural phase in local or national history issue.

The Council concluded that the listed building did satisfy criterion 10(h) mainly because of its being the first Catholic school and Church on the north side of the city, which it considered gave it special association with the development of Canberra, in particular, the pattern of school development. However, the evidence and submissions before this Tribunal included contentions that it had a strong or special association with a person (Father Patrick Haydon); with a development (the location of State and Catholic schools in close proximity as a matter of policy); with a development (the heritage registered adjacent Braddon Housing Precinct); and with a cultural phase (the period of rapid post-World War II growth, characterised by the large influx of single persons living in hostels) in local history. We will consider each of these contentions separately.
Association with Father Patrick Haydon
It was suggested by Dr Marsden (later supported by Mr Meani and Mr Hosking) that the listed building had a strong or special association with Father Patrick Haydon who was a person of some significance in local history and that this also satisfied criterion 10(h). There is no dispute that Father Patrick Haydon conceived the need for a Catholic school to serve the Catholic community on the north side of the city in 1926 and was active in securing the site for the church-school in 1934. In 1928, he was appointed as the first parish priest of the newly created Parish of Canberra. In 1941 he was appointed prothonotary apostolic with the title Monsignor and remained active in Canberra until his untimely death in 1949. During his time in Canberra he was responsible for initiating the building of six Church buildings in the ACT including the original Presbytery (now the Archbishop’s House), the School, Church (later Cathedral) and Convent complex at St Christopher’s Manuka, St Therese’s Church, The Causeway (since demolished) and St Patrick’s Church-School at Braddon. Father Haydon was an active participant at the laying of the foundation stone of the listed building in 1935 and visited it regularly during his lifetime.
Father Brian Maher described the remaining buildings as “the visible legacy of Father Haydon in the capital city” in his book Planting the Celtic Cross (p 352) but in evidence given to the Tribunal, Father Maher said that he did not regard the listed building as having played a significant or important role in relation to the Archdiocese or the development of Canberra nor was there any reference to it in his book, other than in the list of Church buildings for which Father Haydon was responsible.
Dr Jarvis submitted that the listed building did have a strong association with Father Haydon who was a person of considerable importance because of his role in the development of Catholic education and the Church in early Canberra. His association with the school began when it was merely a proposal expressed by him, continued during the stage of determining its location, then its construction and opening, and during its first 14 years of operation including its first expansion in 1945-46. Further, when the listed building was opened it was described as “the consummation of his long cherished ideal”. Father Haydon had described it in his speech at the laying of the foundation stone in the following words (referring to the Book of Revelations, Chapter 12, Verse 14) under the heading “The Wings of the Eagle”
“When the school was built, the Catholic church in Canberra would be like the great eagle with two wings of which St John had written. One wing would be in Forrest, the other in Braddon, and under both would cluster in security little children learning the truth of Christ”
Dr Jarvis submitted that these references served to emphasise that Father Haydon had proposed the establishment of two schools and he saw the building of St Patrick’s as completion of this scheme.
Mr Walker submitted that the respondent’s evidence did not establish that the connection between the listed building and Father Haydon was “strong” or “special”. He quoted Professor Mackay’s view, that Father Haydon, being the parish priest of Canberra at the time the listed building was constructed, would have had to sign off on the building application and give a speech at its opening, but this did not necessarily create a strong or special association. He noted that Father Haydon’s entry in the Australian Dictionary of Biography made no reference to the listed building, although it did refer to St Christopher’s Church at Manuka and observed that Father Haydon was commemorated by the naming of the Haydon Catholic Centre in Manuka (which incorporates the old St Christopher’s school) as well as Haydon Drive in Bruce.
Mr Walker submitted that the Council’s officers had not discovered any particular association with Father Haydon when they first examined the listed building for registration, but only did so after receiving Dr Marsden’s Report in 2013 and this does not suggest that the association was either strong or special. Instead he relied on the evidence of Professor Mackay who had said that “on any such place it’s possible to do research and establish associations, because every place has associations with the context in which they occur, with the people who have built, used them, but the test is the strong or special, and this is not evidence of meeting that test”.
Mr Walker also relied on Professor Mackay’s evidence about the kinds of associations between places and persons that would amount to strong or significant. He had cited as examples the house in which Ethel Turner wrote “Seven Little Australians” and a Convent associated with St Mary McKillop as well as the cemetery where her remains were buried for a time and where she is still commemorated.
In relation to Dr Jarvis’s reference to the “Wings of the Eagle” speech, Mr Walker recalled that Professor Mackay had said “It’s a speech that features rich imagery, with what one would expect from a priest, a biblical connection back to Christ, and, as one has expected, it’s reported in a Catholic newsletter as is happening with powerful sermons today and has happened throughout the history of the published word or newsletters in Australia. You know, I mean it’s normal. It does clearly indicate that Father Haydon felt the two schools were important”.
Association with a development in local history (being the location of State and Catholic schools in close proximity as a matter of policy)
The Council found that Patrick’s had special associations with educational and religious development in Canberra from 1935, particularly in regard to Church and community responses to the provision of education and the role that the Church took in forging new communities during the growth of the national capital. It also found that it had special associations with the unique initial pattern of school development within the ACT, the north side of the city mirroring the south side in the development of a state school followed by a Church school nearby - St Christopher’s following Telopea Park School; St Patrick’s following Ainslie Public School. However the Council’s citation did not specify precisely what the development or cultural phase was that it had in mind. Some evidence before the Tribunal suggested that the pairing of public and Catholic schools in close proximity to each other to serve the two separated parts of the developing city was the development that the Council had principally in mind.
Dr Jarvis submitted that the development of the first two public and first two Catholic schools was an event or development of at least some importance in the history of the city. He drew attention to the initial proposal of Father Haydon, that the first school should be as close as possible to Telopea Park School and that it was “imperative” to have a second school in Ainslie within a few years, but observed that Father Haydon was not consciously seeking to make a parallel pattern with public school development. Instead, by providing an opportunity for a Catholic education in both parts of the city, he was merely giving effect to Catholic principles and its policy of separate school development that had developed in the colonial period and he was also responding to the expected growth of the north side of the city.
He noted that the city was planned at its outset by Walter Burley Griffin to have two areas of development on the north and south sides of the future lake and that this physical division was exacerbated by the flooding from time to time of the land between.
Dr Jarvis observed that Federal officials at the time supported the location of the school development partly because they were concerned to avoid an imbalance of population between the north and south parts of the city. He drew attention to a minute dated 15 February 1935 from the Assistant Secretary of the Department of the Interior to the Secretary in which it was written that “numbers of people, who previously resided in the northern suburbs, have transferred to the southern side in order that their children may attend the Convent School”.
In his view, St Patrick’s school should be heritage registered as were the other three schools existing at that time – Telopea Park, St Christopher’s and Ainslie Public.
Mr Walker submitted that there was no unique pattern of school development within the ACT. The fact that the listed building was located close to Ainslie Public School was not as a result of any Church or government policy, but was the result of mere convenience such as common bus routes – the evidence did not permit any more precise finding. He relied on the evidence of Professor Mackay, who had rejected the suggestion that the Minute from the Assistant Secretary cited by Dr Jarvis showed that there was a policy of “pairing” schools. On the contrary, in Professor Mackay’s view it was simply saying that there needed to be another school in the northern location. In Mr Walker’s submission, in a developing city divided by a river running through it, it was hardly surprising that at some stage there would be a state school and a Catholic school on either side of the river, nor is it surprising that Catholic schools would be located close to established bus routes and other amenities. Mr Walker also observed that in the Heritage Register citations for St Christopher’s or Ainslie or Telopea Park, there was no mention of pairing with the other school, and suggested that this might have been expected if they were examples of such a policy. Further, the Duntroon School was established in 1935 at Pialligo but it was not twinned with another (Catholic) school.
Association with a development in local history, being the development of the suburb of Braddon
Dr Marsden’s evidence was that St Patrick’s church-school was of exceptional interest because it appeared to be associated with the distinctive design and development of the Braddon housing precinct, the first residential precinct constructed by the Federal Capital Commission (“FCC”) on the northern side of the city in the 1920s and 1930s. Dr Jarvis supported this view, observing that Braddon’s block and section layout was part of Griffin’s plan and that St Patrick’s occupied one of the larger blocks reserved for public institutions. In addition, its design and materials (single storey, red brick and tiled pitched roof) were apparently consistent with the FCC-designed housing in the adjacent precinct. He submitted that the development of Braddon was part of the pre-war “development phase” of early Canberra, with which the listed building was strongly associated and, hence, satisfied criterion 10(h).
Mr Walker noted that under cross-examination, Dr Marsden was only able to say in support of her contention, that the Church was right on the border of the Braddon Heritage Precinct.
Association with a development or cultural phase in local history, being the period of rapid post-World War II growth, characterised by the large influx of single persons living in hostels
In its assessment against criterion 10(h), the Council recognised the role that St Patrick’s played in forging new communities during the growth of the national capital, particularly for those without family or community ties, but did not identify the “hostel phase” as being of particular significance. However, Mr Kane placed some importance on the part that St Patrick’s Church played in meeting the needs of the many single Catholic persons who moved to Canberra during the post-war years and lived in the hostels provided by the Commonwealth as short term accommodation.
He relied partly on his own experience as a newly arrived public servant in 1961 who had worshipped at St Patrick’s since then, was actively involved with the St Vincent de Paul Society there, and six of his seven children had been baptised there. In 1961, he had lived at the Hotel Acton and recalled that Masses held in the Assembly Hall at that time were very well attended.
Mr Kane also relied on the evidence of Canberra historian Mr Alan Foskett, who had written a number of historical accounts of the hostels. Mr Foskett informed the Tribunal that in north Canberra there were 12 hostels, mostly housing young adults living away from home for the first time in fairly basic accommodation. He estimated that hostel dwellers comprised some 20% of the population at their peak in 1951. These hostels were within easy walking or cycling distance of a number of Churches (St John’s Anglican in Reid; Reid Methodist; the Church of Christ in Limestone Avenue; the Presbyterian Church and the Salvation Army in Braddon; and St Patrick’s in Braddon) so they provided part of the “social and survival network” for many hostel dwellers particularly through their youth organisations, such as the Catholic Marian Club (formed in 1954).
Mr Foskett thought that St Patrick’s put more effort into their youth organisation than some of the other Churches, but he was unable to provide any empirical evidence, relying on conversations he had had with hostel dwellers when compiling his histories. However, his direct experience was of living for three years (1949-1951) in Reid House and while resident there he had not had any connection with St Patrick’s. He was not able to give any definite information on the proportion of hostel residents who were Catholics, though he estimated that it would have been greater than the 30% that Catholics made up of the population generally because of the high proportion of immigrant men from predominantly Catholic countries.
Nor was Mr Foskett able to say whether the social activities conducted under the auspices of the Marian Club took place in St Patrick’s or in its Assembly Hall. Mr Kane’s evidence was that most of the Marian Club’s social events took place in Mulwala Hostel, at Corroboree Park Hall, Ainslie and at other venues.
Dr Jarvis made no submissions about the significance of the listed place during the “hostel phase” of Canberra’s development. Mr Walker submitted that the evidence indicated that to the extent that the listed building played a role in the social activities of hostel dwellers, it was no different to the other Churches at the time.

Consideration of the Issues

Before turning to consideration of the issues identified above, we will address some preliminary questions.
First, it was put to the Tribunal by Dr Jarvis that it should give considerable weight to the decision of the Council, because it comprised persons appointed for their expertise in a range of subjects related to the assessment of heritage significance. This submission might have been more persuasive had the abundant documents and testimony before the Tribunal provided evidence that the Council had, itself, in any substantive or meaningful way considered the experts reports, made the findings asserted in the Heritage Register entry, or contributed substantially to the wording of the entry. While the T-Docs and ST-Docs contained evidence that some Council members had interacted with some Heritage Unit staff and with each other over particular aspects of the wording of the entry, Dr Pearson was unable to satisfy us that Council members as a whole had actively participated in the preparation of the entry and the Minutes of the Council meeting at which the decision was taken record nothing of any discussion.
In contrast, Mr Walker drew attention to a Queensland case (Lonie v Brisbane City Council & Ors [1998] QPELR 209) in which Skoien SJDC, having heard evidence from some architects and planners in regard to the heritage value of a house, commented that while they gave valuable assistance, the question he had to decide in a nutshell was “what would the average person walking the street and looking about, with a perception which falls somewhere between that of a Ph D in Architectural History on the one hand and that of a Philistine on the other” think of the street and building in question. Mr Walker submitted that while experts can help the public to see things that they otherwise would not see, their view can also become rarefied and lead to them identifying things as important that only an expert would see. Mr Walker urged the Tribunal to adopt the approach taken in Lonie.

This Tribunal rejects both propositions. The Tribunal is charged with reviewing the decision to list St Patrick’s Church de novo as if it were the Council, under the specific legislation in force in the Territory. It must interpret the provisions of the Heritage Act relevant to registering a place in the light of all the evidence before it including that of relevant experts, some of whom considered the building as not worthy of registration. It is not required by the legislation to meet some sort of “Clapham Omnibus” test – to put itself in the place of the “common man or woman” but to apply its judgement as to whether or not to register the place, which can only occur if the Tribunal is satisfied on reasonable grounds that the place has heritage significance, and that means whether any one or more of the criteria are met.
Second, Mr Walker suggested that, although there was no provision in the Heritage Act requiring the Tribunal to consider the specific economic effects of heritage registration on the applicant and while there had been no evidence on the specific economic effects of this registration, this did not mean that the Tribunal should be blind to the general fact that the power to register a heritage place could have very substantial ramifications for the property owner. He suggested that the impact that a finding of “heritage significance” in this case would have on the ability of the applicant to develop a prime city block of land and the consequent effect on the value of that land, was an example of this effect. He said that where a finding could have grave consequences, the law accepts that this affects the level of satisfaction that a finder of fact must have before any finding of fact is made. The Tribunal had to be satisfied on “reasonable grounds” as to its heritage significance and he drew attention to the principle in Briginshaw v Briginshaw (1938) CLR 336, at 361-362, per Dixon J who had said that reasonable satisfaction “should not be produced by inexact proofs, indefinite testimony or indirect references.”
The Tribunal accepts this general proposition, but observes that the heritage criteria are couched in very general terms with an abundance of qualifying adjectives which do not easily lend themselves to the degree of precision specified by Dixon J in Briginshaw. In heritage matters, there is very likely to be a degree of imprecision in assessing whether the heritage criteria are satisfied. One should also keep in mind that a finding of heritage significance does not necessarily result in a decision to register the place or object, although clearly the objects of the Heritage Act and requirements of section 3 in relation to the exercise of functions will most often produce that result. It seems to this Tribunal that the tension between economic effects and heritage preservation in individual cases may be better addressed by exercising the discretion whether or not to enter an object or place on the Heritage Register, rather than by setting the standard of satisfaction for individual heritage significance criteria at an impracticably high level, or artificially constraining the natural meaning of key terms in the legislation such as “important”, “strong” and “special”.

Criterion 10 (c)

The “combined church-school” issue

We now turn to the consideration of the issues related to the heritage criteria. The first is that of the dual purpose church-school building and whether it was important as evidence of any distinctive way of life, tradition, land use or design that was no longer practiced, was in danger of being lost or was of exceptional interest.
In order to satisfy this criterion, there are four elements that have to be established:
·Is there something that can be identified as a “distinctive way of life, tradition, land use or design”?
·Is that way of life, tradition, land use or design in danger of being lost?
·Is the listed building evidence of that? and
·Is that evidence important?
Having regard to the evidence and submissions of the parties, we do not have reasonable grounds to conclude that the dual purpose church-school building was a “tradition” within the Catholic school system. Certainly Catholic parish schools are the traditional way in which the Catholic community has provided for the education of its children and they continue to be. But little or no evidence was provided to us that dual-purpose buildings, such as St Patrick’s, were regarded as some particularly innovative solution to the establishment of the Catholic faith in new communities.
Although Dr Jarvis drew our attention to Fogarty’s scholarly analysis of Catholic education in Australia, a careful reading of the relevant sections indicates that it was the parish school that was the central element which was first planted in new suburbs following the policy of “schools before churches” adopted by the Australian bishops. Fogarty wrote that
Actually in many dioceses the one edifice served the dual purpose: on week days it was the school, on Sundays it was the church… This practice, adopted as an emergency in certain dioceses, was later accepted as general policy. According to the First Plenary Council, the school was to take precedence over the church itself…being built without delay…and if necessary used as a church in the meantime.
It seems clear to us from this, that the policy intention was to build a Church later, not to maintain the combined church-schools on a permanent basis.
St Patrick’s was not designed from the outset to be used as both school and Church, as the description of the building by its architect, Louis P Burns, which appeared in the Catholic Newspaper “The Angelus” in March 1935 makes clear. There it is described as a school, with the accordion doors to create five classrooms. When the doors were folded back, they were to provide an unobstructed space suitable for parish functions (including dances). There is no mention of it also being designed for Church purposes, although from the very beginning it was used for the celebration of Mass for both the school pupils and the wider Catholic community of North Canberra. That, however, was only until the larger St Patrick’s War Memorial Church was built on Limestone Avenue. Mass resumed in the listed building only after the closure of the school in 1973 and its refurbishment for Church purposes in 1974.
Apart from St Patrick’s, there were a number of combined church-school buildings built in the Canberra District between 1872 (St Francis Xavier, Ginninderra) and 1972 (St Matthew’s, Page) all of which functioned as a Church for between 11 and 52 years until a separate Church was dedicated (Exhibit 16). More recently, Holy Spirit Church at Amaroo has been constructed as a combined church-school building with the school function taking place behind a sliding door that can be opened for larger Church functions.
Further, there were differences of view as to whether the listed building was, by itself, important as evidence of this combined church-school function. Mr Marshall, who was the only architect witness to have inspected the building internally prior to the view, was able to identify the six surviving wall niches into which the partitions were folded back as the only evidence for the partitioning, but which was supported by the location of the exposed roof beams from which the partitions were hung, centred on the wall niches. He said that none of the partitioning, tracks or guides survive. While he concluded that overall the integrity of the building was sufficient to justify registration, he was not able to say that it provided good evidence of the combined church-school function.
A heritage assessment of the listed building was undertaken in June 2010 by Phillip Leeson Architects for Purdon Associates on behalf of the Department of Disability, Housing and Community Services, including an assessment of significance in relation to the heritage criteria under the Heritage Act. That report concluded that St Patrick’s was important as the location of a distinctive way of life and of religious community traditions and practices, and that the building provided evidence of changes to these ways of life , and some of which are no longer practised in the same way, some of which have disappeared. However, the distinctive way of life referred to was the relationship between the Church and school and community, through the strong ties that were forged by Catholic newcomers, not the dual-purpose church-school building as such. Some other expert witnesses such as Dr Sandy Blair, Professor Richard Mackay, and Dr Richard Lamb, while not architects, were all experienced in heritage assessment and none of them considered the building as being important as evidence of the dual purpose function. For example, Dr Blair wrote “When compared with other surviving school complexes of the Federal Capital era, the paucity of the remaining historical features at St Patrick’s Church is very evident. At the St Christopher’s Precinct…are highly intact buildings and plantings which reflect the different historical phases in Catholic education and worship from 1828 (sic =1928) until the present”.
By contrast, Dr Susan Marsden, also an experienced historian and heritage consultant, considered that the building’s design was of exceptional interest and that its design was distinctive by neatly combining several functions (Church, school and parish community facility) in a building much smaller than the first church school (St Christopher’s) and far more modest than St Christopher’s Church. However, she did not identify any particular elements of the listed building which were evidence of the combined church-school function other than to agree under cross examination that the evidence of its school functions was confined to the “slots in the rafters, the slots in the wall for the accordion doors …and big windows in some offices” as well as a plaque marking its rededication as a Church in 1985, which contains reference to its origins as a church-school.
There was evidence before the Tribunal that the dual function design is currently used in school buildings, despite the factors which originally triggered this approach having been lost.
Having considered all these views, the Tribunal is not satisfied that the listed building can be considered as “important evidence of a tradition, use or design (the Catholic combined church-school) which is no longer practised or in danger of being lost” and to that extent criterion 10(c) is not met.

Criterion 10 (c)

The distinctive way of life issue

From the evidence, both written and oral, the Tribunal has no doubt that during the pre- and post-war years, the way of life of the Catholic community of north Canberra centred largely around St Patrick’s Church and school. Moreover, we accept that Church and school are no longer central to the way of life of many Catholics, just as they are not for other Christian denominations. Nevertheless, there remains a strong core of faithful Catholics to whom Church and school are still of central importance so that it would be difficult to accept that this way of life was in danger of being lost.
We also accept that the listed building is the oldest Catholic Church in north Canberra having been there for 78 of Canberra’s 100 years and that it is dearly loved by many of its long term parishioners. However, the requirement of this criterion is that the listed building should be important as evidence of a distinctive way of life that is in danger of being lost and we are unable to agree that it is. St Patrick’s was never the “main” Church for north Canberra, but rather a secondary or “station” Church to use Monsignor Woods’ terminology. It was never the Parish Church, nor did it have its own parish priest. If it were the last remaining Catholic Church in north Canberra, then we might reach such a conclusion but it is not – there are many more, including several in close proximity.
We conclude that the listed building cannot be considered as “important evidence of a tradition (the pre-war and early post-war Catholic way of life) which is no longer practiced or in danger of being lost” and to that extent criterion 10(c) is not met.

Criterion 10(d)

The “highly valued by the community or a cultural group for reasons of strong or special religious, spiritual, cultural, educational or social association” issue.

It is evident that there are two elements that need to be established to satisfy this criterion – first whether the place is valued by either “the community” or “a cultural group” and then whether that value is “strong or special” for one or other of the specified associations. The meaning of “the community” in this criterion has been clarified by the ACT Supreme Court in John Flynn Community Group Inc and Flynn Primary School Parents and Citizens Association v ACT Heritage Council [2012] ACTSC 50, where Burns J ruled that the Tribunal in Tagliatti & Ors & ACT Heritage Council [2011] ACAT 14, had correctly rejected a number of groups as being “the community” within the meaning of that term in the Heritage Act. He wrote at [22]-[23]:
[22] 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.
[23] 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.
The decision is binding on the Tribunal and it was not suggested by any party that the listed building was valued by the ACT community as a whole. However, there are two possible “cultural groups” that might highly value the listed building for strong or special religious or spiritual associations, these being the general Catholic community of north Canberra and the German Catholic community.
There was no strong evidence that the listed building was highly valued by the general Catholic community. While Mr Kane as a long-standing parishioner and Mr Meani as Chairman of the Parish Council clearly placed high value on it and apparently so did the Parish Council members, we had little evidence of the value placed on it by the Catholic community in general. While there were many representations made, most of these were a signed “form letter” to which little weight can be given. It is also questionable whether the general Catholic community would constitute a “cultural group” within the meaning of those words in the Heritage Act.
The Tribunal, in Taglietti & Ors turned its mind to the meaning of the phrase, referring to the definitions of “culture” and “cultural” accepted in Truswell and Minister for Communication and the Arts (1996) 42 ALD 275, but did not reach any definitive view, other than that the evidence before it was insufficient to allow a conclusion that either the Royal Australian Institute of Architects or the National Trust (ACT) was a “cultural group” for the purposes of this criterion. In considering this on appeal in John Flynn Community Group , Burns J concluded that as ACAT had not made a “finding” on the matter, there was no grounds for appeal, because whether there was “insufficient evidence” was a question of fact, not of law.
The Tribunal also addressed the meaning of “cultural group” in Petterson v ACT Heritage Council & Commissioner for Housing [2010] ACAT 28 and in that case, concluded that the term should not be read too broadly and that the Corroboree Park local community could not be regarded as a “cultural group” within the meaning of the Heritage Act as it appeared to be no more than a group of people living in the vicinity that was not constituted in any way.
We do not believe there is sufficient evidence before us to conclude that the general Catholic community is a “cultural group”. However, the same cannot be said for the German Catholic community. Here the evidence is of a close knit group of German-speaking Catholics who, while not formally constituted, have worshipped continuously at St Patrick’s for over 40 years and who regard it as “their” Church. They have contributed significantly to the listed building’s refurbishment, to its internal furnishing, and to the maintenance of the building and grounds over the years. They have had their own German-appointed Priest (Pastor or Chaplain) to say Mass each Sunday in German and to conduct other important religious events such as Baptisms, Marriages and Funerals in German as required. They are not geographically confined to north Canberra, but come from all parts, including as far away as Yass.
The definitions of “culture” and “cultural’ accepted in Truswell were the concepts centred on refinement of mind, taste and manners, but the Australian Oxford Dictionary includes additional meanings for “culture” including “the customs, civilisation and achievements of a particular time or people”. Having regard to this meaning, we are satisfied that the German-speaking Catholics of the ACT can be regarded as “a cultural group”.
The more difficult question to answer is whether the listed building is highly valued by them for spiritual and or religious associations. Father Evans’ evidence was that for the German Catholic worshipers, St Patrick’s was “a living, vibrant Church, a good community” but he agreed that its future was uncertain because of the age of many of the current members, the diminishing number of priests and the lack of opportunity for younger people in Canberra. He said “I cannot predict what is going to happen in 10 years, neither for myself or the Diocese”. Apart from Father Evans, Mr Hosking and Mrs Bunt, no members of the German-speaking Catholic community gave evidence.
Mrs Bunt’s evidence was mainly concerned with the history of the German-speaking Catholics in Canberra and how they came to be based at St Patrick’s. Mr Hosking’s evidence was that many of the German-speaking congregation lived alone and that St Patrick’s Church allowed them to associate with people of their own language and background. He contended that if they are “put out on the street” these people would lead a life isolated in their own houses and this way of life would be lost. Mr Hosking accepted that the German speaking community could move to another Church if the disposal of the land on which the listed building stood was in the higher interests of the Church, but submitted that in this case there was no greater good and that its disposal would be contrary to canon law.
The evidence is that over the years, a variety of ethnic Catholic communities have worshipped at St Patrick’s but have subsequently moved to other Catholic Churches, for reasons unknown. Mr Walker submitted that these congregations tended to follow the priest who said Mass in their language and that this was the experience of the German-speakers. They had originally gone to Narrabundah when Father Kraemer was saying Mass there, but began attending at St Patrick’s when Father Kraemer chose to move there because it was more centrally located.
The evidence of Monsignor Woods was that the German Catholic community used St Patrick’s by long-standing arrangements that had been agreed by then Archbishop Carrol (1983-2006) and that they had continued to do so as welcome guests, but there was no contractual arrangement allowing them use of St Patrick’s. Many other ethnic communities heard Mass in their own language in various Churches around Canberra by arrangement with the Parish Priest and there was no reason why the German-speaking community could not move to another Church such as St Brigid’s at Dickson. He observed that Father Evans occupied the Donaldson Street house which was close to St Patrick’s and that was very convenient for him as he did not drive.

We are satisfied that the German-speaking Catholic community is a cultural group and that at least some of its members, including its Pastor, highly value the listed building as “their church” under a long-standing arrangement with the Archdiocese, but there is little evidence of support for its heritage listing from the majority of the German-speaking Catholic community. We are not persuaded that, if the circumstances required them to re-locate to another Church by agreement with the Parish Priest and if their Pastor was able to access that Church without difficulty, they would not move their services, their physical fittings, and their spiritual attachment, to that other Church as other ethnic communities have done. In other words, they would follow the German priest to wherever the German language Masses were said. Despite Father Evans’ views, the Tribunal considers that if the listed building was to be demolished and a new development incorporating a Catholic Church built on the site, the community might resume services at the new Church.
Overall, we conclude that the evidence does not support the proposition that the listed building is highly valued by a cultural group for reasons of strong or special religious, spiritual, or cultural associations and, therefore, criterion 10(d) is not satisfied.

Criterion (h)

The strong or special associations with any person, group, event, development or cultural phase in local or national history issue.

In the section above dealing with the issues we identified four possible matters that might cause the listed building to satisfy this criterion, viz its association with Father Patrick Haydon; its association with a development in local history, being the location of State and Catholic schools in close proximity as a matter of policy; its association with a development in local history, being the development of the suburb of Braddon; and its association with a development or cultural phase in local history, being the period of rapid post-World War II growth, characterised by the large influx of single persons living in hostels. We consider each of them below. We begin by recalling that the association has to be “strong or special” to satisfy the criterion.
Association with Father Haydon.
There is no doubt that the listed building is associated with Father Haydon who can rightly be described as a “person in local history”. He conceived the idea of a north side Catholic school, obtained the land on which the listed building stands and, as Parish Priest of Canberra, oversaw its construction and participated in its ceremonial opening. However, the evidence suggests that he did much the same thing for all the early Catholic school and Church buildings during his time as Parish Priest and that he attached no special significance to St Patrick’s.
The listed building is not mentioned in his entry in the Dictionary of Australian Biography nor is it referred to other than as one of the Catholic Church buildings for which he was responsible in Father Brian Maher’s history of the Archdiocese -Planting the Celtic Cross. An association with Father Haydon was not identified by the Council as an element of its conclusion that criterion 19(h) was satisfied. He was named (and quoted) in the Historical and Physical Summary of the place attached to the Register entry, as a participant in the official opening of the school in 1935 but that was apparently not considered by the Council as sufficient to warrant mention of his name under this criterion.
We conclude that the evidence does not support the proposition that the listed building has strong or special associations with Father Haydon.
Association with a development in local history, being the location of State and Catholic schools in close proximity as a matter of policy
There is no persuasive evidence that it was a matter of either government policy or Church policy to co-locate government and Catholic schools. Certainly Father Haydon was keen to have the first Catholic school (St Christopher’s) located in close proximity to Telopea Park School to allows Christopher’s pupils to take advantage of the existing government school bus service and was keen to have a second school established to serve the north side community, but its location not far from Ainslie Public School seems to be the fortuitous result of the availability of the block surrendered by the Church of Christ.
Nothing in the documents relating to the establishment of St Patrick’s can reasonably be interpreted as indicating a government policy of co-location. At most, there is an indication that officials were aware that the absence of a Catholic school on the north side could lead to population “drift” to the south side - a drift which they thought it desirable to lessen. Nor was there any evidence of such policy on the part of the Catholic Church.
We conclude that there was no development in local history that could be described as a policy of co-locating state and Catholic schools and consequently the listed building is not associated with such a development.
Association with a development in local history, being the development of the suburb of Braddon
In its citation, the Council did not identify any strong or special association with the development of the suburb of Braddon. The heritage register citation for the Braddon Housing Precinct makes no mention of St Patrick’s Church. It is focussed on the subdivision as an early 20th Century example of Garden City planning with particular emphasis on the high degree of aesthetic unity in the architectural character of the precinct, including the use of alternate exterior elevations of the same floor plan, the mirror reversing of floor plans and the recurring use of architectural elements, such as recessed porches or chimneys centrally located on a gable façade, as well as the landscape and streetscape setting of the dwellings.
However, as noted above Dr Marsden did consider that there was such an association. She wrote that
St Patrick’s placement set back on a spacious block, its design and construction materials (similar to other original buildings in Braddon, including the Methodist and Salvation Army buildings and in the same permanent materials of brick and tile) makes it apparent that the church school was closely aligned to the planning and early development of Braddon, in line with Griffin’s plan. Braddon’s defining features include setback on blocks, layout including main entry roads, placement of churches and school, and construction materials.
While Dr Jarvis adopted this view Mr Walker dismissed it, noting that the only basis for the proposition was that the listed building was on a block next to the Braddon Housing Precinct.
While the Tribunal acknowledges that the general building style of the listed building is similar to the adjacent early residential development, we consider that to be more likely the result of the control over building materials and design exercised by the FCC at the time, rather than any deliberate attempt to “fit” St Patrick’s into Braddon. Its location is the result of it being the only suitable and available block in the original subdivision of the suburb, rather than any desire to fulfil any aspect of the Griffin Plan.
The Tribunal does not consider that there is any strong or special association between the listed building and the Braddon Housing Precinct.
Association with a development or cultural phase in local history, being the period of rapid post-World War II growth, characterised by the large influx of single persons living in hostels
As noted above, the Council did not identify St Patrick’s as having any strong or significant connection with the “hostel phase” of Canberra’s post-war development. Based on the evidence of Mr Kane and Mr Foskett, the Tribunal finds that the hostel period can reasonably be described as a development or cultural phase in local history and that the various Churches in north Canberra played a significant role in providing both a religious and a social link for many of the people living in them.
However, we are unable to be reasonably satisfied that St Patrick’s association with this phase is strong or special. St Patrick’s did not play a role different from any of the other Churches, other than for those hostel dwellers who happened to be Catholic. Mr Kane’s and Mr Foskett’s evidence indicates that while the Marian Club had its religious connection with St Patrick’s, it was actually formed at Mulwala House and most of its social activities took place at Mulwala House or elsewhere. We conclude that, while there was undoubtedly an association between the listed building and the hostel phase, it was not sufficiently strong or significant as to satisfy the criterion.

Conclusion

Having carefully reviewed the evidence before us and considered the meaning of the various criteria that are specified in the Heritage Act, any one of which needs to be satisfied to give a place heritage significance, we are unable to be reasonably satisfied that St Patrick’s Church and its curtilage meets any of them. It follows that it is not open to the Tribunal to decide under subsection 40(1) to enter the listed building in the Register.
We realise that this decision will disappoint many people for whom St Patrick’s Church is a very important part of their lives. It is in many ways a charming little Church and clearly serves a valuable purpose in providing opportunity for Catholic worship close to the City area - an area in which there is likely to be substantial population growth in the years ahead as a result of higher density residential development in the City itself and adjacent suburbs. That however, does not mean that the listed building satisfies any of the specific requirements of the various heritage criteria.
We also feel obliged to say that the proposed Register Entry prepared by the Council does not measure up to what we would expect of such an expert body. No-one reading it would have any clear understanding of the ways in which the listed building and its curtilage were seen to meet the two criteria that the Council considered it satisfied. It contains clear factual errors, already present in the first draft of the document in 2010 and never corrected despite expert consensus to the contrary.
In the event, our decision will mean that the proposed Entry will not at this time be finally placed in the Register. Should St Patrick’s, at some future date, be renominated and subsequently approved for heritage registration on the basis of new evidence, we would expect the Council at that time to be much clearer in identifying any features of the place that satisfy one or other of the criteria.
We also take this opportunity to observe that the Notifiable Instrument 2012-377 indicates that the date of registration of the place is 19 July 2012, but given the explicit requirements of subsection 41(2) of the Heritage Act this cannot be the case. Section 41 of the Heritage Act prevents final registration occurring until after the conclusion of any appeal from the decision to register. However, section 42 requires the notice of the decision, issued within 10 days of the decision, to specify the register entry and date of registration. These requirements mirror those imposed on the notice of provisional registration issued under section 34, but are inapt in the context of a decision under section 40. It is surprising that this inappropriate wording in section 42 has not been rectified in the 9 years since the passage of the Heritage Act.

Order to be made

The decision under review is set aside and for it is substituted a decision not to register the place Part Block 7, Section 57, Braddon, known as St Patrick’s Church Braddon, comprising the listed building and its curtilage.
As the Tribunal’s decision takes effect as a decision of the Heritage Council, the Tribunal otherwise refers the matter to the Heritage Council to issue a new Notifiable Instrument revoking Notifiable Instrument 2012-377 and notifying of the Tribunal’s decision, and take any other steps necessary to implement the decision.

………………………………..
Ms M.T Daniel – Member
For and on behalf of the Tribunal

PUBLICATION DETAILS

FILE NUMBER:	AT 12/59
PARTIES, APPLICANT:	Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn
PARTIES, RESPONDENT:	The Australian Capital Territory Heritage Council
PARTY JOINED 1	Dallas Hosking
PARTY JOINED 2	Vincent Kane
PARTY JOINED 3	William Meani
COUNSEL APPEARING, APPLICANT	Dr Jarvis
COUNSEL APPEARING, RESPONDENT	Mr Walker
SOLICITORS FOR APPLICANT	King and Wood Mallesons Mr Johnson
SOLICITORS FOR RESPONDENT & PARTIES JOINED	Ms P. Mathie, ACT Government Solicitor
TRIBUNAL MEMBERS:	Dr D. McMichael -
DATES OF HEARING:	6-10 May 2013 15- 16 July 2013
PLACE OF HEARING:	ACAT Canberra