McMurdo P, Gotterson JA and Douglas J - 22 July 2014
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Environment and planning – heritage conservation – judicial review of heritage decisions – generally – where the Queensland Heritage Council entered a convent into the Heritage Register – where the convent was owned by the respondent, the Sisters of Mercy – where the respondent appealed to the Planning and Environment Court from the Council's decision to enter the convent in the Register – where the grounds available in that appeal were contested – where the Sisters of Mercy contended that the physical condition and structural integrity of the convent could form a ground of appeal in the Planning and Environment Court – where the Council contended that the appeal must be limited to the cultural heritage criteria as set out in s. 35(1) of the Queensland Heritage Act 1992 (Qld) – where, under the Sustainable Planning Act 2009 (Qld), an appeal was by way of hearing anew – whether the powers of the Planning and Environment Court extended to other matters if at least one of the grounds of appeal related to the cultural heritage criteria was made out
Appeal and new trial – appeal – general principles – right of appeal – when appeal lies – from interlocutory decisions – leave to appeal – whether the right of appeal to the Court of Appeal in s. 498 of the Sustainable Planning Act 2009 (Qld) applied
Facts: This proceeding involved the St Patrick's Convent in Townsville. The convent was built in 1873 and was the oldest known surviving convent in Queensland.
On 3 February 2012, the applicant entered the convent into the Heritage Register on the basis that it satisfied the cultural heritage criteria set out in s. 35(1)(a), (d) and (h) of the Queensland Heritage Act 1992 (QHA), namely that it:
- was important in determining the evolution or pattern of Queensland's history;
- was important in demonstrating the principal characteristics of a particular class of cultural places; and
- had a special association with the life or work of a particular person, group or organisation of importance in Queensland's history.
Section 51(3) of the QHA permitted the Council, in making its decision, to have regard to "whether the condition or structural integrity of the place may prevent its cultural heritage significance being preserved".
The Sisters of Mercy challenged the decision to list the convent by appealing to the Planning and Environment Court.
There was a dispute between the parties as to the factual issues that could be canvassed on that appeal. The Sisters of Mercy argued they should be entitled to include, as grounds of appeal, the matters referred to in s. 51(3) of the QHA, namely whether it was likely that the convent would need to be removed and replaced and whether its physical condition and structural integrity may prevent its cultural heritage significance from being preserved.
The Sisters of Mercy also sought to rely on the Sustainable Planning Act 2009 (SPA) in arguing that the appeal was a "hearing anew" and that if one of the grounds of appeal were made out, the Court should be entitled, in making a new decision in place of the Council's, to consider the issues referred to in s. 51(3) of the QHA.
The Council argued that s. 162(1) expressly limited the possible grounds of appeal against its decision as to whether the convent satisfied the criteria stated in s. 35(1) of the QHA. Section 162(1) stated that an appeal "may only be made on the ground that the place the subject of the appeal does or does not satisfy the cultural heritage criteria". The Council also argued that s. 162(1) confined the powers of the Court.
The primary judge had decided the issue in favour of the Sisters of Mercy.
On appeal, the Sisters of Mercy argued as a preliminary issue that the QHA did not provide an avenue of appeal to the Court of Appeal. The Council argued that an appeal was possible under the SPA.
Decision: The Court held (Douglas J and Gotterson JA concurring as to the orders made, McMurdo P dissenting in part):
- The conclusion that the SPA permitted the Council to appeal with the leave of the Court was compelling.
- When approaching the issue of the proper resolution of the potential conflict between two statutes, looking at the provisions as a whole and seeking to give them harmonious goals led to the conclusion that a ground of appeal asserting the place the subject of the appeal did not satisfy the cultural heritage criteria must be made out in order for it to be open to the Planning and Environment Court to exercise any powers under the SPA.
- If such a ground of appeal was made out, it was then appropriate to permit the Court, in exercising its powers, to hear the matter anew and, in doing so, to examine the issues which the Council itself had to examine under s. 51(3) of the QHA, namely whether the physical condition or structural integrity of the place may prevent its cultural heritage significance from being preserved.
- The success of a ground of appeal may throw quite a different light on the particular issues related to the physical condition or structural integrity of the place justifying the Council, were it considering the matter anew, in reaching a different decision. If it was the case that error could be shown in the Council's assessment of the cultural heritage criteria relevant to the place then that was also likely to throw doubt on the decision generally, justifying a reconsideration of the issues.
- It would be wrong to preclude a litigant from arguing that the Court should make a decision replacing the decision set aside without reference to all the issues actually considered by the Council itself. The better view was that a broad view should be given to those grants of power to permit such issues related to physical condition or structural integrity of the place to be litigated if one of the statutory grounds of appeal was made out.
- It was appropriate that the issue whether a ground of appeal under s. 162(1) of the QHA had been established should be determined in the first instance to save the costs associated with the potentially unnecessary litigation of the issues relevant to s. 51 of the QHA.
- Leave should be granted and the appeal allowed.