Australia: 31/14 Queensland Heritage Council v the Corporation of the Sisters of Mercy of the Diocese of Townsville [2014] QCA 165

McMurdo P, Gotterson JA and Douglas J - 22 July 2014
Download the judgment

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:

  1. was important in determining the evolution or pattern of Queensland's history;
  2. was important in demonstrating the principal characteristics of a particular class of cultural places; and
  3. 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):

  1. The conclusion that the SPA permitted the Council to appeal with the leave of the Court was compelling.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. Leave should be granted and the appeal allowed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.