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 substantive appeal.

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 Application, that:

  1. 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 Application.
  2. There were no practical procedural matters or considerations of fairness involved in this case which would require the Respondent to bear the onus.
  3. 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.
  4. 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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