Appeal against decision of the Queensland Heritage Council
to list premises on the Queensland Heritage Register –
which party bears onus of proof – ss.35(a) and (g), 161,
162 and 163 Queensland Heritage Act 1992 – s.4.1.50
Integrated Planning Act 1997
Facts: The Respondent had decided to enter the
Port Curtis Sailing Club Clubhouse on the Queensland Heritage
Register. The Appellant had appealed that decision. The issue for
determination was which party bears the onus of proof in the
The Appellant contended that the Respondent should bear the onus
in proving that the clubhouse satisfies criteria contained within
s.35(a) and (g) of the Queensland Heritage Act 1992. The
Respondent contended that the Appellant bears the onus of proving
that it does not.
In support of its argument, the Appellant suggested the
following features of the appeal supported the view that the
Respondent bears the onus: entering a place in the Heritage
Register has the potential for serious adverse impacts upon owners
property rights without compensation entitlement; practical
procedural considerations and matters of fairness; and presumptions
of statutory interpretation and, in particular, the appeal
processes under the QHA and the IPA.
The Respondent submitted that there was no scope for the
operation of any presumption in favour of the Appellant, and that
there was no reason why the ordinary rule in relation to appeals
(that the person who challenges the decision below ought to bear
the onus of proof) should not apply; and that that raised no issues
concerning the practical procedures in the appeal, or fairness.
Decision: The Court held, in dismissing the
Authorities dealing with the construction of statutes
purporting to interfere with an individual's property rights
were not particularly relevant to the determination of this
There were no practical procedural matters or considerations of
fairness involved in this case which would require the Respondent
to bear the onus.
When the relevant provisions of the QHA and the IPA were read
together, there was no basis for concluding that the orthodox legal
convention was displaced. That conclusion raised no conflict
between the relevant provisions of the QHA and the IPA. When those
provisions were read in context, it could not be said that that
construction lead to unjust or inharmonious consequences.
On a proper construction of the relevant provisions of the QHA
and the IPA, the Appellant bears the onus of proving that the
clubhouse should not have been entered in the Register.
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