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CITE

Unreported Judgment

The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council[2015] QPEC 59Durward DCJ
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The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council[2015] QPEC 59

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:	The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council [2015] QPEC 59
PARTIES:	The Corporation of the Sisters of Mercy of the Diocese of Townsville (Appellant) -v- Queensland Heritage Council (Respondent)
FILE NO:	Townsville No 835 of 2012
DIVISION:	Planning & Environment
PROCEEDING:	Preliminary hearing in appeal
ORIGINATING COURT:	Planning & Environment Court, Townsville
DELIVERED ON:	11 December 2015
DELIVERED AT:	Brisbane
HEARING DATE:	22 October 2015
JUDGE:	Durward SC DCJ
ORDERS:	Application refused. A hearing about cultural heritage (paragraph 20 issues) is to be determined first in a separate hearing. A hearing about the physical condition and structural integrity (paragraphs 20A and 20B issues) is to be determined in a second and separate hearing. Costs reserved.
CATCHWORDS:	ENVIRONMENT & PLANNING – PROCEDURE – PRELIMINARY HEARING – SEPARATE QUESTIONS – where place listed on Heritage Register – whether place satisfied cultural heritage significance criteria – whether physical condition and structural integrity of the place may prevent its cultural heritage significance from being preserved – whether separate questions favour a single hearing of both issues or two consecutive separate hearings – whether any overlap in evidence, hearing costs, delay and prospect of multiple appeals – where separate hearings warranted and appropriate in the circumstances.
LEGISLATION:	Queensland Heritage Act 1992 ss 35 and 51; Sustainable Planning Act 2009 ss 496; Uniform Civil Procedure Rules 1999 rr482 and 483.
CASES:	Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495; Queensland Harness Racing Ltd v Racing Queensland Ltd [2011] QSC 125; Arnold v Attorney-General (Vic) (unreported), Fed C of A, Sundberg J, Nos VG629-37 of 1995, 08 September 1995, BC 9502745; Body Corporate for Sun City Resort CTS 24674 v Sunland Constructions Pty Ltd & Ors [2010] QSC 463.
COUNSEL:	C Hughes QC and M Williamson of Counsel for the appellant R Litster QC for the respondent
SOLICITORS:	Thomson Geer Lawyers, for the appellant Hopgood Gamin Lawyers for the respondent

St Patrick’s Convent

[1]
The St Patrick’s Convent (“the Convent”) is located on the Strand, Townsville and is part of the site of St Patricks’ School. It is believed to have been constructed in 1883. There have been a number of additions, modifications and repairs made since it was originally constructed and it has been relocated within the St Patrick’s School site (“the school site”) at least once. The Convent is a two-storey timber framed structure with steeply pitched gable roofs to its north and south wings.

[2]
The Convent was for most of its existence a residence for the Sisters of Mercy of the Diocese of Townsville (“the Sisters”, also, depending on the context, referred to as “the appellants”) although parts of it have also been utilised for some administrative office use at times. The number of resident Sisters had reduced, over time, to four in 2011. In 2013 it was vacated, apparently because of concerns about health and safety. The residence of the remaining Sisters was relocated elsewhere, off the school site.

This hearing

[3]
This is a preliminary hearing in the appeal to determine whether the disputed issues (which may conveniently be described as two parts) ought to be heard and determined in one hearing, or alternatively, by way of separate hearings. The appellant wants the issues determined in one hearing and the respondent wants the issues to be determined in separate hearings. I will define the issues shortly.

Background

[4]
On 30 August, 2011, a Development Application was lodged by the Sisters to demolish the Convent, as part of a proposed redevelopment of the school site.

[5]
On 03 February, 2012, the Queensland Heritage Council resolved to enter the Convent in the Queensland Heritage Register as a State Heritage Place. A Notice of Decision was received by the Sisters on 13 February, 2012. The Sisters filed a Notice of Appeal in the Court on 06 March, 2012.

[6]
So far as is further relevant in this judgment, the Queensland Heritage Council (“the respondent”) filed an interlocutory application on 01 May, 2013 seeking to strike out parts of the Notice of Appeal. On 21 June, 2013 a number of orders were made by Judge Robin QC, including an order granting to the appellant “leave to file and serve an amended Notice of Appeal which may seek a decision of the Court replacing that of the respondent by reference to s 51(2) and (3) of the Queensland Heritage Act 1992” (“the first order”). An Amended Notice of Appeal was filed on 03 July, 2013. On 01 August, 2013, the appellant applied to the Court of Appeal for leave to appeal from the first order. The appeal was heard on 03 March, 2014 and judgment delivered on 22 July, 2014. I will refer to that judgment in another context shortly.

[7]
The appellant filed a Further Amended Notice of Appeal on 18 December, 2014 that, inter alia sought to raise issues that have now led to the preliminary hearing before me.

The Court of Appeal judgment

[8]
The “respondent” appealed to the Court of Appeal in respect of paragraph 2 of Judge Robin QC’s orders that granted leave to amend the Notice of Appeal which may have permitted as grounds in the Appeal, section 51(2)(b) and (3) issues.

[9]
The Court of Appeal held that the only ground for the “appellant” to appeal the decision of the respondent to this Court is that set out in section 162 of the Queensland Heritage Act 1992 (“the Act”):

“162 GROUNDS FOR APPEAL

An appeal by a person mentioned in section 161(1)(a) or (b) may only be made on the ground that the place the subject of appeal does or does not satisfy at least 1 of the cultural heritage criteria.”;

“161 WHO MAY APPEAL

(i) This section applies to the following persons –

(a) The owner of a place who is given, or is entitled to be given, an information notice under section 54(3) about a decision of the council;

(b) A person who is given, or is entitled to be given, an information notice under section 56(2) about a decision of the council.

(ii) The person may appeal to the Planning and Environment Court against the decision.

(iii) To remove any doubt, it is declared that –

(a) For a decision on a heritage recommendation for an application to enter a place in the Queensland heritage register has a part of a State heritage place, the person may appeal only about the decision relating to the part; and

(b) For a decision on a heritage recommendation for an application to remove part of a State heritage place from the Queensland heritage register, the person may appeal only about the decision relating to the part.”

[10]
If that ground was made out, this court could then examine issues pursuant to section 51(2)(b) and (3) of the Act, that were open to the respondent itself to examine in making its decision to register, for the purpose of sections 496(1) and (2) of the Sustainable Planning Act (“SPA”): that is, to hear the matter anew, to make a decision to set aside the respondent’s decision to register and to make a new decision and to examine the issues the respondent had to examine under section 51(3) of the Act (namely, whether the physical condition or structural integrity of the Convent may prevent its cultural heritage significance from being preserved).

[11]
Douglas J at [37] and [38] wrote that if it were shown that the respondent had erred in its assessment of the cultural heritage criteria of the Convent “then that is also likely to throw doubt on the decision generally, justifying a reconsideration of the issues, including those related to physical condition or structural integrity”.

[12]
His Honour then went on to conclude by suggesting by way of example, introductory words in amendment of paragraphs 20A and 20B of the Notice of Appeal, so as to put the respondent on notice that, if one of the grounds of appeal is made out then the appellant would seek to have this Court invoke its powers under section 496(1) and (2) of SPA to consider whether the physical condition and structural integrity of the Convent prevented its cultural heritage significance being preserved.

[13]
The appellant in its Further Amended Notice of Appeal amended paragraphs 20A and 20B substantially in the terms of the suggested amendments referred to by his Honour.

The issues on the preliminary hearing

[14]
By a consent order (“the second order”) made on 07 August, 2015 Judge Baulch SC made the following directions:

“Issues

1. The issues for determination are:

(a) whether the place the subject of the appeal (Place) does not satisfy the cultural heritage criteria specified in section 35(1)(a), (d) or (h) of the Queensland Heritage Act 1992 for the reasons identified in paragraph 20 of the further amended Notice of Appeal (Paragraph 20 Issues);

(b) Whether the court would decline to order that the Place be entered in the Queensland Heritage Register taking into account the matters identified in paragraphs 20A and 20B of the further amended Notice of Appeal (Paragraphs 20A and 20B Issues).

Preliminary hearing

2. There is to be a preliminary hearing with respect to whether the Paragraph 20 Issues should be determined in the first instance, to be followed (if necessary) by hearing of the Paragraph 20A and B issues, or whether all of the issues should be determined together.

3. The preliminary hearing is to take place in Townsville on 22 October, 2015.

4. To facilitate the preliminary hearing:

(a) by 28 August, 2015, each party is to notify the name of all witnesses (in the case of an expert their field of expertise) that the party intends to call to give evidence in relation to each of:

(i) The Paragraph 20 Issues;

(ii) The Paragraphs 20A and 20B Issues;

(b) by 8 October, 2015, each party is to file and serve all affidavit material on which it intends to rely;

(c) by 15 October, 2015, each party is to file and serve all affidavit material on which it intends to rely in reply.”

[15]
I have set out the second order in full because it also has some relevance to other matters I will discuss in this judgment.

The Heritage listing criteria

[16]
The Act relevantly provides in Part 4 Division 1 ‘Criteria for Entry in Register of State Heritage Place’, the following:

“35. Criteria for entry in register

A place may be entered in the Queensland Heritage Register as a State Heritage Place if it satisfies 1 or more of the following criteria –

(a) the place is important in demonstrating the evolution or pattern of Queensland’s history;

(b) the place demonstrates rare, uncommon or endangered aspects of Queensland’s cultural heritage;

(c) the place has potential to yield information that will contribute to an understanding of Queensland’s history;

….

(d) the place is important in demonstrating the principal characteristics of a particular class of cultural places;

(e) the place is important because of its aesthetic significance;

(f) the place is important in demonstrating a high degree or creative technical achievement in a particular period;

(g) the place is a strong or special association with a particular community or cultural group for social, cultural or spiritual reasons;

(h) the place has a special association with the life or work of a particular person, group or organisation of importance in Queensland’s history.

(2) A place is not to be excluded from the Queensland Heritage Register on the ground that places with similar characteristics have already been entered in the Register.”

[17]
The Convent was entered in the Heritage Register on the basis of Criteria (1) (a), (d) and (h).

[18]
The Decision of the respondent, in summary, is as follows:

“Criterion (a): St Patrick’s Convent is the oldest known surviving purpose built convent in Queensland. St Patrick’s Convent is a product of the establishment phase of a Catholic primary and secondary education in North Queensland when its institution spread out from Brisbane to newly emerging settlements around the colony.

St Patrick’s Convent illustrates the pattern of development of Townsville, the major commercial centre of North Queensland.

Criterion (d): St Patrick’s Convent demonstrates the principal characteristics of the convent, built in the late 19 and early 20 centuries including an internal separation of private and public spaces and having a dominant street presence on a prominent site in the town.

Criterion (h): The building has a special association with the Sisters of Mercy since its construction in 1883, and was the Motherhouse for the order in the Townsville region from 1901.”

The ‘Paragraph 20, 20A and 20B’ Issues in the Further Amended Notice of Appeal

[19]
The following sets out the relevant issues (‘allegations’) in the Further Amended Notice of Appeal, although I have abbreviated those which descend to particulars and refer in those instances only to the substantive allegation:

“19.The place does not satisfy the cultural heritage criteria in section 35(1) of the Act as particularised in the Decision Notice or otherwise.

20. In particular:

(a) the Convent is not important in demonstrating the evolution or pattern of Queensland’s history, particularly as:

(i) the Convent is not important in demonstrating the evolution or pattern of the history of Queensland or Townsville;

(ii) in its altered form the convent does not demonstrate anything of importance about the life or work of the Sisters of Mercy who inhabited it;

(iii) it is not relevant to any culturally significant work of the Sisters such as the provision of education and health care;

(iv) it is difficult to find conclusive evidence that the building was ‘purpose built’ as a Convent;

(v) the way of life of the Sisters, the religious order which occupied order this building, is not importantly’ demonstrated by a convent building;

(vi) the statement that the convent ‘also says it is “a place of retreat for Sisters of ministering elsewhere in the diocese’ does not support criterion (a);

(vii) St Patrick’s Convent, while ‘a product of the establishment phase of Catholic primary and secondary education in North Queensland when it institution is spread out from Brisbane to newly emerging settlements around the colonies’, is not an important product, although the developing network of schools and other facilities established in this era may well have been important;

(viii) the Convent plays a very small part, and certainly not in important part, in illustrating the pattern of development of Townsville or Queensland …;

(b) The Convent is not important in demonstrating the principal characteristics of any particular class of cultural places, particularly having regard to, its relocation, refurbishment, alteration and repair carried out over more than a century, and the following considerations:

A. The statement that internal separation of private and public spaces is a ‘principal characteristic of a Convent’ is irrelevant and separation of spaces where guests are welcome in eg sitting room, dining room from private spaces, eg bedrooms, bathrooms, are common characteristics of practically all residential buildings ranging from private dwellings or hotels.

B. Having a ‘dominant street presence on a prominent site’ is not a principal characteristic of a Convent. Indeed from the point of a view from a historian, the prominence or otherwise at the site is relevant to facilities accessible to the public, such as schools and hospitals rather than a residential building, unless the owners/developers made a proclamation regarding their status (which was uncharacteristic of a religious order such as the Sisters).

C. Not owning personal possessions (as reflected in the modest and restrained use of d ecorative treatments throughout the convent) is more representative of the Sisters’ vow of poverty, rather than their living arrangements and is not relevant to demonstrating characteristics of a class or cultural place.

D. The Sisters’ facility at All Hallows in Brisbane, may well be important in demonstrating characteristics of a Convent, but the subject Convent is not.

(c) The Convent has no regular ‘special’ association with the life or work of any particular person, group or organisation importance in Queensland’s history, particularly as:

(i) is the work of the Sisters, not their private lodging either now or in the past, that may now be relevant to Queensland’s history and culture;

(ii) the statement that ‘the building has a special association’ with the Sisters of Mercy since its construction, is not sustainable:

A. While it had an obvious association with the Sisters, there was nothing ‘special’ about that association.

B. The places where the Sisters fulfilled their mission – schools, hospitals, settings for pastoral work – are the places with the level of special association’ associated with this criterion.

(d) The respondent’s citation contains significant errors of fact and emphasis which have led the Respondent to err with respect to the Decision, which errors and wrong emphasis are referred to above.

20A. In the event the court is satisfied that the Convent does not satisfy the cultural heritage criteria on one or more of the grounds set out in paragraph 20 of the Notice of Appeal, then the court would take into account the following issues relevant under s. 51(2) and in particular, subsection (b) in exercising its powers under s. 496(1) and s. 496(2) of the Sustainable Planning Act 2009 to refuse to enter the Convent into the Heritage Register, namely the following matters:

(a) the likely removal and replacement with other built form of the convent, as a result of its decrepitude and its lack of modern function and lack of safety, will be evidence of the ongoing changes to the reasonable requirements of the Sisters in the carrying out of their good works with the best facilities available from time to time;

(b) the ultimate removal of the convent and the re-use of the land it occupies serves to demonstrate the ongoing commitment of the Sisters to this land and the ongoing role of the Sisters in their charitable contribution to the growth and prosperity of Townsville;

(c) the Sisters have a need to reuse the land occupied by the convent for their future good works; and

(d) the Sisters have no interest and no relevant capacity to conserve or refurbish the convent, even if it was reasonably possible, and even if the state of refurbishment could be appropriately associated with any particular period in the existence of the convent.

20D. In the event the court is satisfied that the Convent does not satisfy the cultural heritage criteria on one or more of the grounds set out in paragraph 20 of the Notice of Appeal, then the court would take into account the issues relevant under s. 51(3), in exercising its powers under s 496(1) and s. 496(2) of the Sustainable Planning Act 2009 to refuse to enter the Convent into the Heritage Register, namely whether the physical condition and structural integrity of the Convent prevent its cultural heritage significance being preserved.”

Separate decision on questions

[20]
Rule 482 of the Uniform Civil Procedure Rules 1999 provides:

“482 In this part –

question includes a question or issue in the proceeding, whether a fact or law or partly of fact and partly of law and whether raised by pleadings, agreement of parties or otherwise.”

[21]
The distinction between an “issue” and a “question” for the purposes of this type of rule was identified by Branson J in Reading Australia Pty Ltd v Australian Mutual Provident Society (1999) 217 ALR 495, at [8] as follows:

“… the term ‘question’ … includes any question or issue of fact or law in a proceeding. The distinction in the rule between an ‘issue’ and a ‘question’ is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an ‘issue’, and less decisive matters of dispute being ‘questioned’ (Landsal Pty Ltd (in liq) v REI Building Society (1993) 113 ALR 643 at 647).”

[22]
In Queensland Harness Racing Ltd v Racing Queensland Ltd [2011] QSC 125, Daubney J at [5] wrote:

“’Question’ defined in r 482, ‘includes a question or issue in a proceeding, whether of fact or law or partly of fact and partly of law, whether raised by pleadings, agreement of parties or otherwise.”

[23]
In Reading at [9], her Honour wrote that “ultimately the issue for the court to determine when consideration has been given to the making of an order [under the rule] is whether it is “just inconvenient” for the order to be made”: Arnold v Attorney-General (Vic) (unreported, Fed C of A, Sundberg J, Nos VG629-37 of 1995, 8 September 1995, BC 9502745).

[24]
Rule 483 UCPR provides, so far as is relevant, the following:

“483 (1) The court may make an order for a decision by the court of a question separately from another question, whether before, at, or after the trial or continuation of the trial of the proceeding.”

[25]
In Body Corporate for Sun City Resort CTS 24674 v Sunland Constructions Pty Ltd & Ors [2010] QSC 463, Applegarth J wrote at [19]:

“UCPR 483 provides for the Court to make an order for a question to be decided separately and before the trial of the proceeding. If such a question is ‘ripe’ for preliminary determination, then it may be appropriate to make an order pursuant to r 483(1). Such an order will not be appropriate in many circumstances, including where there are disputed questions of fact. [Bass v Permanent Trustee Company Ltd (1999) 198 CLR 334 at 335 [45] - 358 [54]]. A number of discretionary considerations that apply in making an order for a separate decision appear in the judgment of Branson J and Reading Australia Pty Ltd v Australian Mutual Providence Society, an authority which has been referred to with approval by judges of this Court. The factors identified in Reading and other authorities favour the making of an order under UCPR 483 on the present application. The question has been appropriately formulated. The facts that are relevant to its determination are not in dispute. The question is ripe for determination. The preliminary determination of the issue might be said to create the potential for a multiplicity of appeals. However, the determination of the issue in favour of G James would end the body corporate’s action against it. Such an outcome would involve a substantial saving of costs to G James and the body corporate, and reduce the number of parties at trial. It is also possible that the resolution of the question in favour of the body corporate may contribute to the settlement of the litigation. However, I place limited reliance upon this factor. I consider that it is appropriate to order the question be the subject of separate determination.”

Submissions

[26]
Mr Hughes QC for the applicant submitted that there were a number of important factual disputes between the parties, the determination of which would involve a “proper construction” of the Act and particularly the criteria provided in section 35. Specifically, he asked rhetorically what the words or expressions “important”, in section 31(a) and (d) meant and “strong or special association” in section 35(1)(g) meant.

[27]
The Further Amended Notice of Appeal alleged “significant errors of fact and emphasis” in the respondent’s citation which have led it into error. He asserts that those issues also involve an assessment of the physical condition of the convent. That issue was one which was relevant to both parts of the hearing (the criteria and the physical condition and structural integrity issues) and Mr Hughes QC relies on Mr Lovell’s opinion in that regard. In other words, it was submitted that there was “overlapping evidence” that made it undesirable for a separate question to be determined.

[28]
He submitted that there would be a multiplicity of applications for leave to appeal in the event that a party was unsuccessful. That was highly undesirable on cost and delay grounds alone and would be exacerbated by separate hearings. Mr Hughes QC referred to the consequences of delay to the appellant, including costs, the diversion of funds away from charitable work (primarily in respect of the maintenance of the convent in its present state) and the interests of a number of the elderly Sisters of Mercy attached to the St Patrick’s community.

[29]
Finally, Mr Hughes referred to the benefits of a single hearing over separate hearings in cost and time and relied on the estimates given in affidavit evidence as to those matters. He expressed the view that the determination of the paragraph 20A and 20B issues would not in their own right extend the length of the full hearing in the case by more than two days at the most.

[30]
Mr Litster QC submitted that a separate hearing was favoured by a number of factors, including the predominant issue of the cultural heritage criteria and the views expressed by the Court of Appeal in Queensland Heritage Council v The Corporation of the Sisters of Mercy of the Diocese of Townsville (supra); and the fact that if the appellant succeeded in establishing that the place did not satisfy any of the cultural heritage criteria relied upon by the respondent then the pre-condition to entry in the heritage register would not be satisfied and the place would be removed from the register; or if the appellant did not make out at least one of the grounds of appeal (that is the paragraph 20 issues), it would not be open to the Court to exercise any of the powers under section 496(2) of SPA. It was only if the appellant successfully made out one or two of the paragraph 20 issues that the Court might exercise those powers.

[31]
He submitted that understanding what the Court considered to be the “cultural heritage significance” of the place was critical to a determination of the paragraphs 20A and 20B issues and the compelling practical approach was that that be determined in the first instance. He referred to the difficulty in the context of time and costs, for witnesses to attempt to foreshadow or second guess what the Court might consider to be cultural heritage significance if all of the issues were dealt with in the one hearing.

[32]
Finally, Mr Litster QC referred to the costs of the hearings and to the respondent’s estimates not having been challenged and surmised that it would be reasonable to conclude that the costs in respect of the appellant’s paragraphs 20A and 20B witnesses would be of the same magnitude and that it was self-evident that the time required for a combined hearing would be more than the time required for a hearing limited in the first instance to the paragraph 20 issues. He submitted that the issue of costs would be a non-issue in the event that the appellant was wholly successful on the paragraph 20 issues or wholly unsuccessful on the paragraph 20 issues, there being no basis in either case for a second hearing to be conducted.

Discussion

Objections

[33]
Mr Litster QC objected to three parts of the appellants’ affidavit material as including statements that cannot be relied on for the truth of their content on grounds of weight or hearsay or being beyond expertise, respectively. In Reply with regard to each of the objections, Mr Hughes QC submitted that they simply went “to establish the ambit of the issues which the court has to determine whether it ought to be determined in one tranche or two tranches (which I infer means, the separate hearings), so that’s the reason for the material.”

[34]
The objections were in respect of:

Documents referred to in the affidavit of (solicitor) Mr Marshall, filed 13 October 2015 (Court document #37) and said to have been disclosed in the proceeding, their content not having been sworn to. The documents are a bundle of reports about architecture, history, engineering and structural cost estimates.
Paragraph 12B in the affidavit of (architect) Mr Lovell, filed 13 October, 2015 (Court document #34), which refers to structure, internal configuration and remediation, expressed in terms of Mr Lovell “having been informed” about such matters.
Paragraphs 51 (b) and (c) of a further affidavit of (solicitor) Mr Marshall, filed on 13 October 2015 (Court document #38) wherein the deponent referred to the reasons for the decision to list the Convent on the Heritage Register and expressed opinions about structural, internal configuration and remediation issues.

[35]
I reserved the resolution of the objections to this judgment.

[36]
I understand the context of the single or separate hearing issue and the respective views expressed about it on behalf of each party. Mr Litster QC is correct in his characterisation of the impugned depositions in the affidavits. Those issues are documented in other materials that I have read and to which no objection has been made. I do not need to consider the further impugned depositions to inform me either in respect of the ‘ambit’ of the issues for determination in this separate hearing or contextually.

[37]
The objections are upheld for the purpose of this preliminary hearing.

The Heritage Architects

[38]
The Heritage Architects, Mr Lovell (appellant) and Mr McDonald (respondent), expressed different views, upon my analysis of their affidavit material, about the principal issue in the preliminary hearing.

[39]
In his affidavit, Mr Lovell deposed to the following (abbreviated by me where appropriate):

“Relationship between heritage and structural issues

3. …. [w]ith respect to heritage architecture, a factor to be in the structure of the building and the manner in which it has been altered and adapted. Such alterations and adaptation have involved both changes to the architectural presentation of the convent and also to the structure. Such changes may or may not impact on the assessed significance of the place and be a factor in determining whether or not the convent is considered to meet the relevant cultural heritage listing criteria.

4. Accordingly, the assessment process is one in which all aspects of the building fabric need to be addressed, including design, architectural presentation, interior treatment, services, structure and the like. In the process there are issues such as originality and condition will be a factor.

…

6. In my opinion, the issue of the structure is a directly relevant and necessary consideration examining the heritage issues associated with the place.”

[40]
The evidence of Mr Lovell about the “altered form” and the “alteration and repair” of the Convent seems to me to be part of the process of consideration of the Cultural Heritage Significance of the Convent. Hence his statement in paragraph 13 of his affidavit, that “to the extent the issues involve architecture and building fabric, they are matters which will need to be considered by me to express opinions about the issues in dispute relevant to my areas of expertise”.

[41]
Mr McDonald deposed the view that evidence about the ‘Paragraph 20A and 20B’ matters is not necessary to an assessment of the s 35 criteria relied upon in the heritage listing process.

[42]
Mr McDonald deposed that:

“17. While consideration of the criterion listed in s. 35(1) (d) of The Queensland Heritage Act 1992 will involve consideration of the extent to which elements of the convent which demonstrate the principal characteristics of a convent remain intact. I would not ordinarily consider the physical condition or structural integrity of the convent when forming an opinion about whether the convent meets the criterion listed in s. 35(1) (d) of The Queensland Heritage Act 1992.

18. In my experience, the physical condition or structural integrity of the convent are addressed when considering the matter identified in s, 51(3) of The Queensland Heritage Act 1992 namely, whether the physical condition or structural integrity of the place may prevent its cultural heritage significance being preserved,”ie, when it is known what the cultural heritage significance is by reference to the criteria listed in s. 35 of The Queensland Heritage Act 1992.

21. I acknowledge that the nature and extent of alteration to the building could impact on the way in which that poorly demonstrates:

(a) the way of life or work of those who lived in it; and

(b) the association those people had with the building.

22. The nature and extent of alteration to the building is a matter that I will address in considering whether there are elements of the convent (which may be important) in demonstrating the principal characteristics of the convent) that remain intact. In particular, I will consider the extent of intervention in the original, early or significant fabric of the convent over time.

23. The nature and extent of alteration to the building is something I will specifically consider in forming my opinion as to whether the convent satisfies the criterion listed in s. 35(1) (d) of The Queensland Heritage Act 1992.

24. I do not ordinarily rely on input from structural engineers, building certifiers and quality surveyors when assessing cultural and heritage significance and I do not consider it to be necessary to do so to form my opinions relevant to the convent’s cultural heritage significance by reference to the cultural heritage criteria set out in s. 35(1) (a), (d) and (h) of The Queensland Heritage Act 1992.”

[43]
Mr Hughes QC submitted that there was a common or similar view expressed by Mr Lovell and Mr McDonald about the cultural heritage issues not being able to be determined “absent a consideration of the structural issues”.

[44]
I disagree. Mr McDonald, in paragraph 13 of his affidavit, used language that Mr Hughes has drawn upon to support his submission, namely:

“13. As part of my preliminary investigation of the convent, I have inspected the building (including the roof space and the under floor space) and I am confident I will be able to assess both:

(a) the nature and extent of alteration to elements of the building;

(b) the general physical condition of the building,

for the purpose of assessing the convent against the cultural heritage criteria set out in s. 35(1)(a), (d) and (h) of The Queensland Heritage Act 1992” [My underlining].

[45]
However, I do not consider that it provides that support. Mr McDonald is saying nothing more than that the “nature and extent of alteration to elements of the building” and the “general physical condition of a building” inform him, inter alia, with respect to the s 35 criteria. Paragraph 13 cannot be elevated to the level that the appellant contends. Indeed, that paragraph is as much a contextual or ambit ‘statement’ as is the ‘statement’ in paragraph 12B of Mr Lovell’s affidavit to which Mr Litster QC objected.

Resolution

[46]
I favour the reasoning in support of the respondent’s contentions about the issue of separate hearings. The Court of Appeal judgment in this matter does not support the appellant’s contention that the ‘Paragraph 20A and 20B’ are matters necessary to an assessment of the s 35 criteria. In my view there is support in the Court of Appeal judgment for a starting position that the cultural heritage criteria ought first to be determined and then, only if necessary and depending on the outcome of the first hearing, the issues of paragraphs 20A and 20B are open to be heard. Nor am I convinced that so-called ‘overlapping’ evidence, the prospect of a multiplicity of appeals (which I believe is highly speculative), hearing costs and delay are sufficiently made out to warrant a departure from a separate hearing of the issues.

Conclusion

[47]
The paragraph 20 issue should be determined first, followed as may be necessary by a hearing of the paragraph 20A and 20B issues.

Identification of parties

[48]
The appellant applied pursuant to rule 69 UCPR to add two entities to the Appeal as appellants, arising from a change to the registered owner of the land and a re-structuring process by the several congregations of the Sisters of Mercy in Australia and Papua New Guinea, which of necessity has involved the appellant.

[49]
Mr Litster QC asked that this matter be deferred until the respondent had an opportunity to consider its position. Accordingly, I will not deal with the application until the parties either agree or the application is otherwise listed for determination.

Orders

[50]
The orders of the Court are:

Application refused.

A hearing about cultural heritage (paragraph 20 issues) is to be determined first in a separate hearing.

A hearing about the physical condition and structural integrity (paragraphs 20A and 20B issues) is to be determined in a second and separate hearing.

Costs reserved.

Editorial Notes

Published Case Name:
The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council
Shortened Case Name:
The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council
MNC:
[2015] QPEC 59
Court:
QPEC
Judge(s):
Durward DCJ
Date:
11 Dec 2015

Appeal Status

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Bass v Permanent Trustee Company Ltd	View on:JADE(1999) 198 CLR 334	1 citation Jump To Cite 1 - (1999) 198 CLR 334
Body Corporate for Sun City Resort CTS 24674 v Sunland Constructions Pty Ltd	[2010] QSC 463	2 citations Jump To Cite 1 - [2010] QSC 463 Cite 2 - [2010] QSC 463
Landsal Pty Ltd (in liq.) v R.E.I. Building Society	(1993) 113 ALR 643	1 citation Jump To Cite 1 - (1993) 113 ALR 643
Queensland Harness Racing Ltd v Racing Queensland Ltd	[2011] QSC 125	2 citations Jump To Cite 1 - [2011] QSC 125 Cite 2 - [2011] QSC 125
Reading Australia Pty Ltd v Australian Mutual Provident Society	(1999) 217 ALR 495	2 citations Jump To Cite 1 - (1999) 217 ALR 495 Cite 2 - (1999) 217 ALR 495

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council (No 2)	[2017] QPEC 14	2 citations

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The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council[2015] QPEC 59