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The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council (No 2)[2017] QPEC 14

The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council (No 2)[2017] QPEC 14

PLANNING AND ENVIRONMENT COURT OF QUEENSLAND

CITATION:

The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council (No 2) [2017] QPEC 14

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:

Appeal

ORIGINATING COURT:

Planning & Environment Court, Townsville

DELIVERED ON:

21 March, 2017

DELIVERED AT:

Townsville

HEARING DATES:

29, 30, 31 August and 01, 02 September 2016

JUDGE:

Durward SC DCJ

ORDERS:

  1. Appeal dismissed
  2. The parties have liberty to apply with respect to a further separate hearing of the Paragraphs 20A and 20B issues in the Further Amended Notice of Appeal.

CATCHWORDS:

ENVIRONMENT & PLANNING – APPEAL – HERITAGE CRITERIA – LISTING OF PLACE AS STATE HERITAGE PLACE – where the appellant is the owner of a convent – where the appellant lodged a development application to demolish the convent – where the convent was then listed on the Queensland Heritage Register as a State Heritage Place – whether the convent satisfied one or more of the cultural heritage significance criteria in section 35(1)(a), (d) and (h) of the Queensland Heritage Act 1992 – whether the convent demonstrates an evolutional pattern of Queensland history and if so, whether it is important in that context – whether the convent has a special association with the life and work of the Sisters of Mercy – whether the convent is important in demonstrating the principle characteristics of a convent – where the appellant seeks an order that the appeal be allowed and the decision of the Queensland Heritage Council be set aside – that the convent be removed from the Register.

LEGISLATION:

Queensland Heritage Act 1992 sections 2, 35, 51, 162 and 173;

Sustainable Planning Act 2009 sections 495 and 496;

Uniform Civil Procedure Rules 1999 rules 482 and 483. 

CASES

Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2003] QPELR 624;

JL Smallcombe v Queensland Heritage Council [2010] QPELR 68;

Expile Pty Ltd v Jabb’s Excavations Pty Ltd (2002) 194 ALR 138;

Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67;

Gladstone Ports Corporation Limited v Queensland Heritage Council [2012] 422;

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

Lonie v BCC [1998] QPELR 209;

Reelaw v Queensland Heritage Council [2005] QPELR 335.

COUNSEL:

C Hughes QC and M Williamson of Counsel for the appellant

R Litster QC and N Loos for the respondent

SOLICITORS:

Thomson Geer Lawyers, for the appellant

Hopgood Gamin Lawyers, for the respondent

St Patrick’s Convent: brief introduction

  1. [1]
    The St Patrick’s Convent (“Convent”) is located on The Strand, Townsville and is part of the site of St Patricks’ School (the “school site”). It was first constructed in 1883. There have been a number of additions, modifications and repairs made since then. The Convent is a two-storey timber framed structure with steeply pitched gable roofs to its north and south wings.  
  2. [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.

Brief background

  1. [3]
    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.  
  2. [4]
    On 03 February, 2012, the Queensland Heritage Council (the “Council”, or where more appropriate the “respondent”) resolved to enter the Convent in the Queensland Heritage Register (the “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.

The entry in the Register

  1. [5]
    The Convent was entered in the Register because it satisfied criteria (a), (d) and (h) in section 35 (1) of the Queensland Heritage Act 1992 (the “Act”).
  2. [6]
    The entry in the Resister describes the inclusive matters upon which the entry was made, in respect of criteria (a), (d) and (h). The matters are contained in “Annexure A”.
  3. [7]
    The entry was accompanied by a description of the Convent in respect of its physical structure and layout and an historical survey, all informed by numerous historical sources which appear in a reference list.  
  4. [8]
    I have copied photos of the Convent, as in 1906, in the 1950’s and in 2015, in “Annexure C”; and the layout of the two floors of the Convent, including the dimension of the original building, in “Annexure D”.
  5. [9]
    The decision of the Council per se and the matters taken into consideration are not of themselves the basis upon which I have determined the appeal. The appeal is by way of hearing anew: section 495 (1) of the Sustainable Planning Act 2009 (“SPA”). The decision of the Council does not mandate or fetter the discretion of the Court: Bunnings Building Supplies Pty Ltd v Redland Shire Council & Ors [2003] QPELR 624, at [19]. Nor am I bound by the language of the criteria (in the Statements of Significance) relied on by the Council for the listing of the Convent in the Register. I am informed by the evidence of the witnesses in the appeal and my determination is based on the evidence, including the documents tendered in the appeal hearing, to the extent that they informative and relevant.

 This appeal  

  1. [10]
    The Sisters as owners of the Convent have standing as appellants: section 161 (a) of the Act. The appeal may only be made on the ground that the Convent does or does not satisfy the relevant cultural significance criteria: section 162 of the Act.
  2. [11]
    The appellant seeks an order that the appeal be allowed, the decision of the Council be set aside and in lieu thereof a decision be made that the Convent not be entered in the Register as a State Heritage Place and an order that the Convent be removed from the Register. 
  3. [12]
    The appellant has the onus of proof that the appeal should be allowed: section 493 SPA.  

The preliminary hearing

  1. [13]
    A preliminary hearing was ordered on 07 August 2015 and conducted in October 2015.  In a judgment I delivered on 11 December 2015, I refused the appellant’s application for the issues in the appeal to be determined in a single hearing and ordered separate hearings which split the two principal issues, firstly in paragraph 20 and secondly in paragraphs 20A and 20B of the Further Amended Notice of Appeal that was filed by leave on 11 December 2014: The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council [2015] QPEC 59.
  1. [14]
    The grounds of appeal respond to the Citation (Statement of Criteria) in the Decision of the Council. The evidence has in effect overtaken the particularity of some of the grounds. The grounds of appeal are subsumed in the matters following, under the heading “The issues in the appeal”, and I have only referred to them compendiously later in this judgment.
  2. [15]
    The first separate hearing and this judgment dealt with the paragraph 20 issues, namely, in simple terms, whether the Convent satisfies one or more of the criteria for listing specified in section 35(1)(a), (d) and (h) of the Act. The paragraph 20 issues are set out in “Annexure B”.

The issues in the appeal

  1. [16]
    The issues for consideration and determination involve relevant history in the context of whether the Convent demonstrates an evolutional pattern of Queensland history and if so, whether it is important in that context; whether the Convent has a special association with the life and work of the Sisters; and whether the Convent is important in demonstrating the principal characteristics of a convent.
  2. [17]
    The assessment of cultural heritage significance of a place is informed by the Guideline published by the Department of Environment & Heritage Protection: “Assessing Cultural Significance: Using the Cultural Heritage Criteria”, made pursuant to section 173 (1) (a) of the Act and after consultation with the Queensland Heritage Council (the “Guideline”). The Guideline sets out the “method for determining state cultural heritage significance”. Whilst the Guideline was not in force at the time of decision by the Council (it was published in August 2013), it should be given some weight. The witnesses have referred to it. Counsel have referred to it. Nevertheless, I accept that it is the words of the Act, of course, that inform my approach to the issues in the appeal.
  1. [18]
    The hearing proceeded on the basis of my determination of three broadly expressed matters: firstly, the extent to which the Convent is important in an historical sense and in the State context, which involves consideration of the ‘significance indicators’ and the ‘threshold indicators’ set out in the Guideline; secondly, the examination of the extent to which the Convent is sufficiently intact, in demonstrating any of the features of importance in satisfaction of the relevant criteria; and thirdly, the extent of the association between the Sisters and the Convent and whether it is sufficiently special to warrant listing on the Register.
  2. [19]
    The object of the Act is set out in section 2:

 “2  Object of this Act

  1. (1)
    The object of this Act is to provide for the conservation of   Queensland’s cultural heritage for the benefit of the community and future generations.
  1. (2)
    The object is to be primarily achieved by—
  1. (a)
    establishing the Queensland Heritage Council; and
  2. (b)
    keeping the Queensland heritage register; and
  3. (c)
    keeping local heritage registers; and 
  4. (d)
    regulating, in conjunction with other legislation, development affecting the cultural               heritage significance of Queensland heritage places; and
  5. (e)
    providing for heritage agreements to encourage appropriate management of Queensland heritage places; and
  6. (f)
    providing for appropriate enforcement powers to help protect Queensland’s cultural heritage.
  1. (3)
    In exercising powers conferred by this Act, the Minister, the chief executive, the council and other persons and entities concerned in its administration must seek to achieve—
  1. (a)
    the retention of the cultural heritage significance of the places and artefacts to which it applies; and
  2. (b)
    the greatest sustainable benefit to the community from those places and artefacts consistent with the conservation of their cultural heritage significance.”
  1. [20]
    In the Dictionary (the section 4 Schedule), the expression ‘cultural heritage significance’ is defined as follows: 

“… cultural heritage significance of a place or feature of a place, means its atheistic, architectural, historical, scientific, social or other significance, to the present generation or past or future generations.”

  1. [21]
    Part 4, Division 1 of the Act provides the criteria for entry in the Register of a place as a State Heritage Place. Section 35 provides as follows:

 “35  Criteria for entry in register

  1. (1)
    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—
  1. (a)
    the place is important in demonstrating the evolution or pattern of Queensland’s history;
  1. (b)
    the place demonstrates rare, uncommon or endangered   aspects of Queensland’s cultural heritage;
  1. (c)
    the place has potential to yield information that will contribute to an understanding of Queensland’s history;
  1. (d)
    the place is important in demonstrating the principal characteristics of a particular class of cultural places;
  1. (e)
    the place is important because of its aesthetic significance;
  1. (f)
    the place is important in demonstrating a high degree of creative or technical achievement at a particular period;
  1. (g)
    the place has a strong or special association with a particular community or cultural group for social, cultural or spiritual reasons;
  1. (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.
  1. (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.”
  1. [22]
    The critical criteria in this case are subparagraphs (a), (d) and (h). The other criteria (whilst I have listed them above) are not relevant considerations in this appeal.
  2. [23]
    There have been a number of planning decisions in this court that have applied particular meanings to some of the more significant words or phrases that are used in the Act and, for that matter, in the Guideline. There are two in particular, the word ‘important’ as used in Criteria (a) and (d); and the expression ‘special association’ as used in Criterion (h). 
  3. [24]
    The word ‘important’ in Criteria (a) and (d) takes the application of those criteria beyond the ‘common place’, but not to the extent that it may mean ‘out of the ordinary’ or ‘exceptional’. The word is to have its ordinary dictionary meaning: in the Macquarie Dictionary it is defined, amongst other things, as something that is “of much significance or consequence”: see the discussion in JL Smallcombe as Trustee for Cotton Tree Trust v Queensland Heritage Council [2010] QPELR 68, per Robertson DCJ at [13] and [14]. The word “importance” (as a noun) is defined in the Macquarie Dictionary as “the quality or fact of being important”. The word “significance” (as a noun) is relevantly referred to in the Guideline as “importance, consequence”.
  1. [25]
    In the expression ‘special association’, the word ‘special’ is used “in contradistinction to ‘ordinary’ or ‘common’: that is, something that sets it apart from the usual or ordinary”: Expile Pty Ltd v Jabb’s Excavations Pty Ltd (2002) 194 ALR 138; and Secretary, Department of Family and Community Services v Chamberlain [2002] FCA 67 at [19], per Kiefel J.
  2. [26]
    The “place” in section 35 (1) is the Convent. The “group” in criterion (h) is the Sisters. The “place”, “group” and the application of the Guideline per se are not in dispute in this appeal. 

The ‘method’ for determining cultural heritage significance in the Guideline

  1. [27]
    The Burra Charter [‘The Australia Incorporated International Council on Monuments and Sites’ Charter for Places of Cultural Significance (ICOMOS)] provides guidance for the consultation about and management of places of cultural significance and is based on the knowledge and experience of Australia ICOMOS members. The Charter sets a standard practice for those who provide advice, make decisions about, or undertake works to places of cultural significance. The Burra Charter was first adopted in 1979 at the historic South Australian mining town of Burra. Revisions were made in subsequent years and the current version is dated October 2013. The Burra Charter sets out the generally accepted principles and procedures for heritage conservation practice in Australia.
  2. [28]
    The method is also informed, in a guiding but not directory sense, by the Practice Note “Understanding and assessing cultural significance” published by ICOMOS in November 2013.
  3. [29]
    The Guideline sets out a methodology to assist with the determination of satisfaction of the criteria in the Act. The methodology recommends the application of the significance indicators and the threshold indicators to make a consequential determination of the level at which each criterion is satisfied. I will say something further about specific matters in the Guideline in due course.
  4. [30]
    In the Guideline, the application of the significance indicators and the threshold indicators, “can help determine whether places are of cultural heritage significance”. This requires a two-stage process which is described as follows:  
  1. employing significance indicators to identify the cultural heritage significance of a place; and
  1. applying threshold indicators (which are for State cultural heritage significance) to determine their level of the significance, by qualifying the significance indicators in the context of the relevant criteria in the Act.
  1. [31]
    With respect to three of the four threshold indicators regarded as relevant by the heritage consultants (referred to infra), the Guideline refers to them in the following context.
  2. [32]
    Earliness: the importance of places associated with the early settlement of Queensland in demonstrating the pattern or evolution of Queensland’s history. It may be related to an activity or building type rather than settlement pattern or era.
  3. [33]
    Exceptionality: this may also be referred to as ‘distinctiveness’: that is, the place holds a highly distinctive or exceptional place in Queensland’s history.
  4. [34]
    Rarity: this may be relevant to a place “because little else survives to illustrate a particular aspect of Queensland’s history”.
  5. [35]
    The earliness or rarity/uncommonness of a place are indicators which really speak for themselves; they do not require definition.  It is arguable that there is earliness so far as the Convent is concerned but it may not necessarily demonstrate rarity or uncommonness.  Exceptionality may take a number of forms, including the sustained use of the place for its original purpose.
  6. [36]
    In applying the threshold indicators the importance of the contribution of the Sisters to the evolution or development of society and our physical environment needs to be established. The association with a place can be manifested in a number of ways, including the structural appearance or fabric of the Convent, or its fittings and suchlike. The historical context is important in the sense that even if the place does not now illustrate its influence in shaping our relevant history in its fabric (or indeed never has done so) it may still be regarded as of significance. 
  1. [37]
    In considering this criterion there should be demonstrated cultural heritage significance in the Convent’s ‘fabric’; and that it be representative of its type or class of cultural places. The Guideline states that:

“Usually, to be of state heritage significance, a high level of intactness must be demonstrated for a place to be important in illustrating the principal characteristics of its type.”

  1. [38]
    Nevertheless, a high threshold may not be applicable in all situations, particularly if the class or place is now rare or uncommon. 
  2. [39]
    The Guideline qualifies intactness or integrity (this may also be referred to as ‘representativeness’) by reference to the use of the expressions ‘exemplify’ or ‘represent’, that imply that a place will demonstrate a “reasonable degree” of intactness or integrity.
  1. [40]
    Some places contain fabric that is a direct result of a group’s work, although a place may be significant “even if it no longer illustrates this in its fabric or never has done so”.
  2. [41]
    Table 1 in the Guideline reflects the criteria set out in the Act and provides the list of the significance indicators and the threshold indicators. 
  3. [42]
    The determination of this appeal involves a consideration of the evidence in the appeal, assessed against the Guideline and reflecting the principles enunciated in the Burra Charter.

The witnesses

  1. [43]
    In the course of the hearing, I heard evidence from two historians and two of the Sisters (but note my observations about the scope of their evidence), that largely inform the consideration of criteria (a) and (h); from two heritage consultants, who inform the consideration of criterion (d); and their reference to the relevant documentary exhibits. 

The historians’ evidence

  1. [44]
    Evidence was adduced from Helen Gregory (for the appellant) and Peter Bell (for the respondent). They prepared a ‘Joint Expert Report of Expert Witnesses on Matters of History’, dated 06 July 2016. Helen Gregory also prepared a separate report. 
  2. [45]
    The material history of the Convent is not contentious. The historians agreed about the development of Townsville and the arrival of the Catholic Church (and its expansion) and the Sisters of Mercy in Townsville. 

Matters of agreement

  1. [46]
    In the early days, church services for Anglicans and Catholics were held in divers premises in Townsville and that subsisted through the 1860s. In 1868 after a public appeal, St Joseph’s Church and Presbytery were constructed on land owned by the Catholic Bishop of Brisbane, James Quinn, on the corner of Fryer Street and The Strand.  
  2. [47]
    The Sisters of St Joseph had arrived earlier in about 1872, but soon after departed. The Sisters of Mercy arrived in Townsville in 1878. Two Sisters travelled from All Hallows’ School in Brisbane. They were soon joined by some Sisters from Rockhampton.  One of their early missions involved reopening a school which was part of the St Joseph’s Church complex.  They lived in an old cottage at the rear of that church.
  1. [48]
    In February 1882, Father Walsh acquired an allotment to construct a new convent for the Sisters at 45 The Strand and in early 1883, Dr John Cani, Bishop of Rockhampton, travelled to Townsville to receive four Mercy novices and to lay the foundation stone of the new convent.
  2. [49]
    The commencement of the construction of the Convent followed the laying of the foundation stone on 22 January, 1883 (as reported in ‘The Australian’ on 26 May 1883: Exhibit 22). By mid-1883 it seems that the construction was well underway. A newspaper account described the development as follows: 

“The building … is of two storeys, and from the front balcony a splendid view of the whole of the bay, and of the picturesque country bounded by the blue hills to the north-west of the town, is obtained; while the large windows at the back command, perhaps, the very best view of the pretty slopes crowned by the sun-burnt cliffs of the Castle Hill. The building is of wood, carefully chosen, 48 x 28, with verandas 8 feet, 6 inches wide, in front, and at each end, the whole resting on concrete studs. The principal entrance faces the sea, and leads into a hall 8 feet wide, with an arch in the centre. On the left hand are two fine rooms, each 14 x 20 by 12 feet 9 inches high, divided by folding doors, which at any time can be removed, when the full depth of the building becomes available. The “community room” occupies the premier position, facing the sea; while that more retired is the oratory, or private chapel, where the altar of the house will be erected. Opposite the reception room there is another room of the same dimensions, at the back of which is the nuns’ refectory, 10 x 14, and separated therefrom by folding doors, and the noviates’ room of the same size, in which novices are lectured and instructed by the lady superioress of the convent. A staircase leads from the end of the hall to the upper storey. The landing at the rear 0of the building will be lit by a splendid stained glass window, 9 feet high. On this floor a passage, four feet wide, runs the full length of the building In the front division there are six cells; and in the rear … there are four cells.” 

  1. [50]
    No exact date for the completion of the Convent is known. The ground floor was occupied by a visitor’s parlour, dining room, vestry and an office. The kitchen may have been located in a building detached from the main structure. The first floor had rooms for the Sisters.  The building from its appearance in photographs after the early 1880s, had the appearance of a simple two-storey gabled timber building fronting The Strand, rectangular in its floor plan, with balustrade verandas on the front and both sides, but not at the rear.  The 1883 convent contained an oratory with an altar. It remained in this form until 1900.  
  2. [51]
    In 1900, the Convent underwent its most significant alteration, being extended to provide further capacity by the addition of two side wings and also significantly embellished with the addition of timber details in a gothic revival style. The earlier modest entrance was given an imposing tower (or steeple).  
  3. [52]
    The additions provided two large spaces on the ground floor, the chapel and refectory, and accommodation rooms for additional Sisters on the first floor. The additions were described in the North Queensland Herald in November 1900 in the following terms:

“The additions to St Patrick’s Convent, situation on the Townsville Strand, have now been completed by the contractor, Mr W Dawson.  The additions consist of two wings on the North and South ends of the main building, carried out in the Gothic style, and the effect of the practically new building is most pleasing.  The ground floor of the South wing is to be used as a Chapel for the Sisters of Mercy and is 40 ft. x 16 ft.  The ceiling is finely ornamented and some handsome paintings appear on the wall, while the altar at the end is richly ornamented and forms one of the chief decorative effects of the interior of the building.   

The Chapel opens onto both back and front verandas which also lead to the ladies’ school room, which is the same size as the Chapel, namely 40 ft. x 16 ft., the wall plates being 14 ft.  The school room is finished in a manner similar to that of the Chapel with the exception that the altar is left out.  The back veranda has a total length of 90 ft. and is 9 ft. wide throughout and is covered in lattice-work.  The accommodation upstairs in extensive, the central passage being 80 feet long, the bedrooms being on either side.  On the first floor of the South wing is the communitive [sic] room, which commands a splendid view of the harbor and all the shipping.  There are also extra rooms at the back on the same floor.  The upper floor of the North wing contains five rooms which will be used for various purposes.  The building, as now furnished, has a splendid promenade balcony 130 ft. in length by 9 ft. wide, and reflects credit alike upon the architect and the contractor, who have spared no pains to get the best effects for the money available.  The convent now presents an imposing front and according to what is said, the workmanship throughout reflects credit upon the contractor.”

  1. [53]
    The Convent became the Motherhouse (a term that fell out of use by the 1970s or 1980s) of the Sisters’ Townsville congregation, which was growing in size and status.  For much of its early history, it was the location at which the most senior Sister would have lived. By 1908, with its branches in Bowen, Ravenswood and Winton, the Townsville congregation numbered 36 Sisters teaching nearly 800 children. The Convent was the centre of activities for the Townsville Congregation of the Sisters of Mercy, which extended from Ingham in the north to Calen in the south and Winton in the west.  
  2. [54]
    In 1915, the chapel was expanded to commemorate and celebrate the Golden Jubilee of Sister Benigna, an important member of the Townsville Congregation who lived in the Convent at the time.  
  3. [55]
    During the period 1901-1945, the Convent was further altered to extend the chapel space to the north and west and extend the former space on the ground floor of the north wing to incorporate part of the west side veranda.  
  4. [56]
    The exterior of the building was clad with fibro (asbestos cement sheeting) between 1957 and 1963. The central entry tower (steeple) was removed and the existing gable roof portico was installed. The internal presentation and finishes remained unaltered. A kitchen was constructed on the ground floor north wing, and additional windows were installed. 
  5. [57]
    In 1959 a bridge link was constructed to a new chapel that had been completed to the immediate south of the Convent.  The chapel space within the Convent was from that time used for communal interaction and other Convent purposes. A lift had also been installed in the south-west corner rooms of the original Convent building.  
  6. [58]
    Cyclone Althea damaged the Convent on 24 December 1971. The damage is visible in a number of photographs taken at the time, which are part of the historian’s join report. In the 1980s, the upstairs cells in the Convent had some plumbing and wardrobes added.  
  7. [59]
    The chapel was then subsequently relocated to a new location on the St Patrick’s site.  
  8. [60]
    In the course of that extensive timeline, the growth and development of Townsville continued. In the late 1870s, the town centre was primarily concentrated along Flinders Street and the river. A road cutting was made through Melton Hill, houses were constructed and The Strand was constructed with stones and metal to create a more permanent road. The development had included a post office, a court house and a branch of the Queensland National Bank.    
  9. [61]
    Other regional developments influenced the growth of Townsville and, inferentially, the building and later alteration of the Convent: the railway between Townsville and Charters Towers was constructed in 1882 (the Convent being constructed shortly after), and in 1899 annual gold production in Charters Towers was at its peak (one year before the substantial 1900 alterations were made to the Convent). 
  10. [62]
    It is common ground between the historians and the heritage consultants that the Convent is the oldest building associated with the Sisters of Mercy and is also one of the earliest timber buildings in Townsville.  
  11. [63]
    Whilst the historians are in agreement in their joint report about the historical factual background of Townsville and its place in North Queensland as it related contextually to the Convent, they do not agree in respect of a number of matters of historical interpretation and its relevance to a heritage listing of the Convent. In her separate report, Helen Gregory further addressed the matters of disagreement expressed by Peter Bell. Each of them also gave testimony about those matters.

Matters of disagreement (or different emphasis)

Helen Gregory

Peter Bell

In terms of the history of Townsville and North Queensland, the history and ‘presentation’ of the Convent - together with the history of the Sisters of Mercy - the Convent did not fulfil the requirements for entry in the Register, on historical grounds.

There was very little mention of the Convent in the Sisters ‘writing’ about their presence and work in Townsville and that the emphasis appeared to be on the school rather than the Convent.

The Convent was unlikely to be an important reminder of times past for future generations. The building was a ‘relic’ of convent-living, but there were many other such ‘relics’ protected by permanent inclusion in the Register.

The Convent had not previously been registered. There had been no community nomination or apparent agitation for its registration. That was an indication that the Convent was not considered by the community to be worthy of nomination or registration.

Criterion (a)

The use of the word ‘important’ in this Criterion implies degrees of significance and recognised that ‘comparison’ is built into the legislation.

The Convent had been a mere residence and a minor thread in the Sister’s history and in the histories of Townsville, North Queensland and Queensland generally.

Whilst the Sister’s work in education throughout Queensland, and in health, aged-care and social work, was important in Queensland’s history, a building in which they lived in only one population centre (Townsville) did not have a level Convent. Nevertheless it could have been the work of prominent architects. 

The Sisters were never a cloistered order but rather had always been engaged in the community in a variety of undertakings to fulfil their mission to the poor, the sick and the uneducated. Their residential arrangements were not relevant.

In the Statement of Significance (in the Register) the expression “school site” is used. This suggested that the school rather than the Convent was the important feature of the site.

The Convent was not the first convent building in Townsville and the Sisters of Mercy were not the first religious order to work in North Queensland - that was wellknown historically. That is a relevant factor mitigating against significance.

The Convent was far less important in the context of Catholic education in North Queensland than was the developing network of schools established through the same era.

Convents were by no means rare in Queensland as a whole or in North Queensland. The Convent did not demonstrate “earliness” sufficiently to reach the threshold for State significance.

Whilst the Convent is a timber building there were other timber buildings from the The Convent was among the oldest substantial timber-frame buildings surviving in North Queensland.

Apart from the arrival of a small number of nuns, immigration was not relevant to the history of the Convent because its significance related to the establishment of infrastructure and institutions to support the catholic population in North Queensland.

Townsville in the North Queensland region and was not particularly early in the caucasian settlement of North Queensland. There were other places that did illustrate that pattern of development.  

The 1880’s “boom” era was such that the Convent was unexceptional in that context.

The school and Convent site was only one “shred of the broad fabric of evidence of the growth and prosperity of Townsville”.  

Criterion (h)

The word “special” in the criterion was the key to understanding the way in which the Convent addressed the criterion. The

While the Convent was only one of a number of buildings that were important in demonstrating the wide range and importance of the Sister’s work, it could not be dismissed simply as their place of residence. It was the Motherhouse and both the spiritual and administrative centre of their activities in the region. The region, as he conceded in oral evidence, was the area Rockhampton as far north as Ingham.

The criterion did not require the place to demonstrate the “way of life of a religious order” but rather required the place to have a special association with an organisation of importance in Queensland’s history.

For nearly 100 years the Convent was the Motherhouse of the Sisters and it had the strongest claim to represent the many aspects of the Sister’s work.

The Convent did meet the relevant criteria. of significance, unless it had additional claims such as design by a distinguished architect.

That fact was an “accident of administrative history” because it was predominantly the archive of the school that has survived rather than that of the Convent.

As many options as possible were intended to be kept open so that people in the future had the choice of deciding whether or not they valued the Convent.

Those matters were not indicative of the significance of the Convent.

Criterion (a)

The critical phrase used in the criterion is ‘important in demonstrating’, not simply ‘demonstrating’.  

The Convent was a place where the Sisters lived, did some of their work, received some training and worshipped regularly. It was also the Motherhouse for a period of time. It was not simply a ‘place of residence’.

There was no record of who designed either the first or second stages of the the 1880s surviving in Townsville and North Queensland generally.

The Convent was not important in demonstrating patterns of Catholic settlement in Queensland and the settlement of Catholics in Townsville was far less notable than elsewhere in Queensland.  

The Convent was just a small illustration of the pattern of development of The use of the Convent beyond being a mere residence for the Sisters connected it to their work. The multiple uses of the Convent increased rather than diminished its historical importance.

The expression “school site” was a loose reference to the complex as a whole and not necessarily an indicator that the school was more important than the Convent. The school and the Convent were part of an integrated whole.

The Convent nevertheless remained a very early building in the context of Catholic history and of Townsville’s history and it was the oldest surviving building on the Strand site, even though it was not the ‘oldest known surviving purpose-built convent’ in Queensland.

The Convent did not simply claim significance as a residence but had also an extended role and use that did not diminish its significance.

That older buildings on the site had long since gone meant the Convent was the oldest surviving building on the site. This made it an early building in the context of Townsville and church development. importance of the Sisters in Queensland’s history was not directly associated with the Convent. It did not demonstrate the nexus between the Sisters and the reason for their importance, which was their work.

The way of life of the Sisters was not demonstrated by a residential building but by their work.

The association between the Sisters and their various works is likely to have influenced significantly the development The existence of other significant places did not diminish the importance of the Convent.

The criterion did not require that a place be “highly distinctive or exceptional” but merely that it be “important in demonstrating” something.

Whilst there were many significant processes and places involved in the growth and prosperity of Townsville, the criterion acknowledged that the history of a place is likely to be complex. The Act provided that a place was not necessarily excluded simply because something similar had already been entered in the Register.

Criterion (h)

of North Queensland’s society rather than any association with the Convent.

The evidence of Sister Carmel

  1. [64]
    The Sisters were engaged in teaching and administration of the school from its origins until 2006. When the Sisters began their work, they lived in Convents (as was appropriate for groups of women in that era) and went out to work in their schools and other institutions which they built, staffed and owned.  
  2. [65]
    In 1961, a new stand-alone chapel was opened.  The long room which ran parallel to the refectory at the opposite end of the Convent was thereby made available for use as a study and recreational area, as well as a gathering place for meetings of the whole Congregation.  
  3. [66]
    She recounted that to her knowledge the Convent had never been a public building.  It was a place of silence and privacy which operated according to the schedule of Sister’ prayer, study, recreation, rest and most importantly, their work.  Members of the public came into the Convent either by invitation or because they were seeking assistance.  Even then, the areas to which they were admitted were restricted.  
  4. [67]
    Even from the early days of St Patrick’s Convent, records indicate areas of the building were used as school rooms and some accommodation for boarding students. The use of the Convent for the purpose of education and accommodation of students was a temporary measure until a purpose-built college and boarding residence were construction. Nevertheless, areas designated for the Sisters’ residence was strictly prohibited to others.    
  5. [68]
    She recounted her memory of the chapel in particular, by reference to its furnishings and adornments.
  6. [69]
    As at the time of the hearing of the appeal, or at least shortly before that time, there were 28 Sisters living in Townsville, all of whom were attached to the St Patrick’s Community.  In 2011, there had been four remaining Sisters residing in the Convent but they were moved into an adjoining building due to concerns about their health and safety whilst continuing to reside in the Convent. 

The evidence of Sister Marie

  1. [70]
    Sister Marie lived in St Patrick’s Convent from 1971 to 2005 (a period of 31 years), apart from three years where she resided at a Convent at Belgium Gardens.  From 1972 to 2005 she was a member of the staff of the school.  She referred in her Affidavit that since the 1980s a new pattern of living had emerged across the country with regard to accommodation for Sisters, placing them in the community at large rather than in large groups in Convents.  There was a steady decline in the number of Sisters residing in the Convent beyond that period and many of the functions previously undertaken within the Convent were taking place in other buildings, either on the school site or elsewhere.  
  1. [71]
    She referred to the circumstances where the Convent was opened in a limited way to persons other than the Sisters, namely: for a period not long after its construction, when additional teaching space was required, the ground floor was used for the secondary school; during the second World War the United States Forces occupied the building; and during 1985 boarding students used the Convent for a time.  Relatives of the Sisters attended ceremonies of ‘reception and profession’ of Sisters in the chapel. This occurred in the Convent through to the 1950s after which the new chapel that was built was used. Such attendance was by invitation only. Other than during those events or on those occasions, people would have visited the Sisters in the parlour, a room set aside specifically for visitors.

The heritage consultants’ evidence

  1. [72] Evidence was adduced from heritage consultant Mr Peter Lovell (for the appellant) and heritage architect Mr Ivan McDonald (for the respondent). They prepared a ‘Joint Report of Expert Heritage Architect and Heritage Consultant’, dated 30 June 2016. They each also provided separate reports.

Objections to part of the evidence of Mr McDonald

  1. [73]
    There was an objection by Mr Hughes QC to part of the evidence to Ms McDonald concerning unsympathetic changes to the building and their “reversibility”, on the ground that this was a matter for the paragraphs 20A and 20B issues, which were not part of this hearing.  
  2. [74]
    Mr Litster QC submitted that the statements were relevant to intactness of the building in the context of character, that being one matter the subject of criterion (d).  
  3. [75]
    I overruled the objection. My reasons appear at T3-9.  
  4. [76]
    Both heritage experts have referred to the changes to the building. Examination-in-chief and cross-examination in part focused on those changes. They are matters of historical fact as much as being specifically relevant to criterion (d) in the context of intactness of the place.  
  5. [77]
    Whilst some of the changes may be “reversible” as a matter of expert opinion, that opinion would be specifically relevant to the paragraphs 20A and 20B issues, but not with respect to the issues on this hearing.

Matters of agreement

  1. [78]
    The heritage experts agreed that the relevant criteria were those in section 35(1)(a), (d) and (h). They adopted the history as agreed by the history experts with respect to criteria (a) and (h). They agreed that criterion (d) dealt primarily with matters of the class of the place, which they agreed was a ‘convent.’ They accepted that the Guideline was relevant in assessing the cultural heritage significance of the place and that it acknowledged the Burra Charter. 
  2. [79]
    They agreed that a convent is a building which serves a religious community and typically provides a place of residence for a religious order, religious congregation or the like. They agreed upon what they considered were the principal characteristics of a convent, expressed as follows:
  • Separation of communal and public spaces from private spaces, typically by placement on different floor levels;
  • A place for prayer such as a chapel or oratory, or both;
  • A vestry;
  • A refectory for communal dining; 
  • A parlour for receiving lay visitors, often near the front door;
  • A space for the administration of the order, congregation or the like;
  • Small private bedrooms (called “cells”) usually on an upper floor and sometimes with a size-related hierarchy related to seniority; and
  • Reception, teaching and chapel spaces sometimes boldly expressed in the architectural composition of the building. 
  1. [80]
    He and Mr Lovell agreed that in the 1883 (original) form of the building there was an oratory, a smaller version of a chapel - a place for private prayer by the Sisters. The external appearance was agreed to be a consideration in determining the class of a place, that is, a “convent”.  However, it was agreed that a “dominant street presence on a prominent site in town” is not a principal characteristic of a convent.
  2. [81]
    The heritage consultants agreed that the Convent demonstrated most of the principal characteristics of a convent, but disagreed about the degree to which those characteristics are demonstrated. I will deal with those matters shortly. 
  3. [82]
    Mr Lovell said that the Convent is part of a dense building site. There is a level of street prominence, but it is not of significance and this has not been identified as a principal characteristic of the place. “Austerity” of design is not a principle characteristic of any convent (agreed by the heritage experts).  Nor are external design “flourishes” (such as at St Mary’s Convent in Charters Towers) characteristic in that way. Mr McDonald agreed with these matters.
  4. [83]
    Finally, there was agreement that the Guideline provides that in order to evaluate whether a place is significant because it is important in demonstrating the principal characteristics of a particular class of cultural places (in this case, a convent), the application of one or more ‘significance indicators’ and one or more ‘threshold indicators’ is recommended.
  5. [84]
    I have already referred to the two stage process provided in the Guideline. The heritage consultants agreed as to the ‘significance indicators’ relevant to the Convent: that is, they agreed that a place may be ‘significant’ if it exemplifies or illustrates:
  • A way of life that has made a noticeable contribution to the pattern of evolution of Queensland history:
  • A custom that has made a noticeable contribution to the pattern or evolution of Queensland’s history;
  • The impact of an ideology, value or philosophy on Queensland history;
  • A process that has made a strong contribution to the pattern of evolution of Queensland’s history;
  • A land use that has made a strong contribution to the pattern and evolution of Queensland’s history and heritage;
  • A function that has been an important part of the pattern of Queensland’s history;
  • Variations within, or the evolution of, or the transition of, the principal characteristics of a class of cultural places;
  • The work of a designer who has made an important contribution to Queensland’s built environment;
  • The principal characteristics of a form that has made an influential or noticeable contribution to the evolution of Queensland’s built environment; 
  • An architectural style that has made an influential or noticeable contribution to the evolution of Queensland’s built environment; and
  • A construction technique or particular use of materials that has made a conspicuous or earlier contribution to the evolution of Queensland’s built environment.  
  1. [85]
    With respect to the ‘threshold indicators’, they agreed that the following were the relevant considerations:
  • Intactness or integrity;
  • Earliness; 
  • Rarity or uncommonness; and
  • Exceptionality.  

Matters of disagreement (or different emphasis)

  1. [86]
    The heritage consultants did not agree about everything. In their consideration of criterion (d) they disagreed about whether the Convent is important in demonstrating the principal characteristics of a class of cultural places.  
  2. [87]
    Fundamentally, the two heritage experts disagreed on the degree of intactness of the building. Mr Lovell considered that the degree of change or modification of the Convent was such that it was not sufficiently intact in order to be regarded as important in illustrating the principle characteristics of its type. Mr McDonald said that sympathetic changes to a building would normally not diminish cultural heritage significance. Conversely, unsympathetic changes may do so. He said that in the period 1883-1900 there was substantial change to the building in response to changing needs of the Convent community. It became “a more fully evolved and developed form of convent”. He considered that the building form was intact, although the entry steeple had been removed. The vestry and oratory locations were not clear and not revealed by the building fabric or any particular fittings. Mr McDonald expressed the view that each was most likely to have been one of the vacant “utilitarian” rooms within the 1883 building, subject to one wall having been erected in about 1915. The “physical fabric” was in his view the walls of the original building. He said the documented history of the place aided in the interpretation of those spaces, including the location of the vestry and the oratory. He said that the use of the expression “late nineteenth–early twentieth centuries” was a descriptor, not a parameter.
  3. [88]
    Mr Lovell considered that the place was not of sufficient importance in demonstrating the principal characteristics of a convent, assessed against the relevant Guideline, to satisfy criterion (d) such that it warranted inclusion in the register. Mr McDonald considered that the Convent was important in demonstrating the principal characteristics of convents (a ‘significance indicator’) and that it met the Guideline in respect of the ‘threshold indicators’ of intactness and physical characteristics.
  4. [89]
    The building had a distinctive form. The first impression of the building is that it is an institutional building. Elements of the 1883 structure - walls, roof ridge and original gable ends (which are within the roof structure) - still exist. It is “a building of distinction”. 
  5. [90]
    There are still visible elements, albeit altered, suggesting a possible use [as a convent] for example, the lancet windows. The building still presents as one of late nineteenth to early twentieth century. However, changes have reduced its level of illustration as a convent.  
  6. [91]
    The building is not highly intact [that is the real issue that Mr Lovell found in assessing the place]. The rear elevation is more intact than the front. The 1883 convent is virtually subsumed by subsequent changes. The chapel, refectory and first floor cells are not highly intact and not immediately recognisable.  However, if one had an “awareness” about convents, the observer would understand what the chapel and refectory spaces were: “The impact of the [privacy] screen and entry and basic divisions of the place…are quite legible.” He said there is a clear separation between communal and public spaces. The religious symbolism (for example, ‘Stations of the Crosses’) and apse are clues to the place. The cells are related specifically to convent use.
  7. [92]
    The building demonstrates a particular occupancy, that of the Sisters of Mercy. The building and use per se is consistent with their way of life. The Sisters habitually utilised the place. The significant part of the history of the place is its singular use, that is, a convent. The ‘singular use’ is related to the current building fabric and the changes to the fabric have been related to the continuation of that use over the historical period. It was accepted by Mr Lovell that the building “illustrates a pragmatic response to an aging place modified in response to changing needs of its occupants and users [the Sisters] that have been associated with the building for its entire life”.
  8. [93]
    The post-1900 changes were discernible and legible. Whilst the 1883 building is now subsumed, “it is certainly…an early example of a convent of that type – of a timber convent.”  Mr Lovell agreed that it was not always possible to discern from the fabric the use of rooms or spaces without furnishings and it required historical description to provide clues to those uses. Furniture that related to the original purpose or function of a place could assist in informing an understanding of the place, but it was no longer present in many heritage buildings. He said that furniture does not come within the purview of the Act in determining the issue: The Act contemplates the built form, not the content of the built form.
  9. [94]
    Mr McDonald considered that the religious symbolism in this building applied to any convent, not necessarily to a convent of the Sisters.  In this case, the place had been identified as “convent” without any specification of occupant. The spatial arrangement of the building – the way the building functioned – primarily demonstrated the place in the context of “a way of life”.
  10. [95]
    He said that “Fabric” is what physically constitutes the building: the floors, walls, ceilings and space. Insofar as building fabric was concerned, there was little changed since 1900: the floor, walls, ceilings, roof, fixtures and religious detailing were still intact as a part of the former structure of the internally planned arrangement of spaces. Some unsympathetic changes, such as fibro cladding, has concealed some of the fabric.  
  11. [96]
    The plumbing to the cells and the additions of ablutions were fairly minor changes and did not significantly affect intactness. Externally, the building would exhibit some of the principal characteristics of the place, for example, at each end of the building the gothic (lancet) arched windows and the extended apse. There were some areas now covered which add to the understanding of the place, such as the “croixfinials” at the tops of the pitched gable end roofs.
  12. [97]
    He said the over-cladding of the building with fibro sheeting and the closing-in of the verandas in about the 1960s were unsympathetic changes. That may bear on the architectural and aesthetic significance of the building, but that is not an aspect of significance that was identified for this place. They had not affected the principal characteristics of the place.  He considered the building was very legible and the 1883 fabric was clearly evident. Whilst it is now a vacant building, it was not an empty shell. There were further unsympathetic features, namely the glazed aluminium door (but noted that immediately behind this is the original front door) and the gothic detailing, albeit in the context of it not being a good example of gothic architecture and not being a principal characteristic of a convent per se.  
  13. [98]
    The space referred to as the “refectory” was clearly correct: he considered there was religious symbolism or iconography contained in the detailed decoration of the building.  In this space there is a gothic arched timber motif. Whilst furniture arguably may assist in interpreting a space, he did not consider that it was essential. He understood the owner had taken it away once the use was ceased.  The utilitarian parts of the building, vestry and parlour, had “unsurprisingly” been used for a range of functions that have changed over time.
  1. [99]
    The chapel space: Mr McDonald said that its enlargement had provided a “wellresolved, fully developed space.” That expansion had not diminished the space in terms of significance. The apse was extended to the east. Whilst that is visible or obvious externally in this building, external architectural presentation is not one of the identified principal characteristics. The space was the most highly decorated room in the building, with its pressed metal to the ceilings, incorporating croix pomme motifs (small crosses with rounded ends), embellished timber mouldings around pilasters that have “a quatrefoil motif, a strongly religious symbol” and arches over the apse. The altar had been removed, but the space remained. He considered that the extension of the chapel “enhanced the expression of one of the principle characteristics of the Convent”.  
  2. [100]
    He said there was clear evidence of a distinction or separation between public and private spaces within the building: an entry hall that ends with a screen and door, the stairs to the upper floor being behind the screen. The glass and the screen door was the same as the glass window in the hall where the stairs are situated.  
  3. [101]
    In addition to those matters, there are a number of specific points of disagreement with respect to significance indicators and threshold indicators listed in the columns that follow:

Specific points of disagreement (or different emphasis)  

Mr Lovell

Mr McDonald

Significance indicators

Significance indicator 1

Alterations limit an understanding of the original space. There is no factor that distinguished the Convent ahead of other within this class of space.

Significance indicator 3

The relative flamboyance of the modified design contrasts with the simplicity of the original. This elaboration has subsequently been greatly compromised by the more recent work which largely have stripped the place externally of the decorative detail which made it visually distinctive.  

Significance indicators

Significance indicator 3

The building demonstrates in its fabric the long-standing presence and way of life of a religious congregation serving the community.  

Significance indicator 6

The relative lack of intactness of the Convent and degree of alteration is such that it is illustrative of this function to a lesser degree than other such places.  

Significance indicator 10

The architectural style has been affected by the substantial encasement of external evidence of the original building by additions later in time.  That original external evidence is no longer readily discernible on any external view.  Hence, the original features of the building which distinguish this style have at large been concealed or even removed, in later alterations.  

Threshold indicators

Threshold indicator 1

A high level of intactness must be demonstrated.  The degree of alteration is such that the building is not sufficiently intact.  

Threshold indicators

Threshold indicator 1

The Convent, with respect to intactness and integrity, sufficiently demonstrates in its fabric and has a sufficient degree of intactness to demonstrate the principal characteristics of a convent. It is not necessary for the place to be intact to its 1883 construction in order to demonstrate those characteristics. The various changes since 1883 have enforced and enhanced, rather than detracted from, those characteristics. They have not diminished the intactness or integrity of the place but simply form part of the cultural heritage significance of it. Those principle characteristics are sufficiently legible to a reasonably informed observer for the place to be reasonably recognisable as a convent and the place is of itself sufficiently important when compared to other convents.

Threshold indicator 2

The Convent is one of a number With respect to earliness, the constructed during the later Convent, constructed of timber, is nineteenth century and its state of one of the earliest surviving timber construction or earliness is not of buildings in North Queensland importance as a threshold and is a regionally significant consideration.   place. Regional importance is a valid consideration in heritage listing.

Threshold indicator 3

The Convent is one of a small number of surviving convents. 

This does not elevate it to a level of rarity such that this is a factor which is of importance as a threshold consideration.  

Threshold indicator 4  

The Convent is not considered to be an exceptional example of a late nineteenth or early twentieth century convent.  

 Threshold indicator 2

  1. [102]
    Mr Lovell considered that the Convent being one of a number of convents constructed during the later 19th century, earliness was not an important threshold consideration; that the Convent was one of a small number of surviving later 19th and early 20th century convents but that did not elevate it to a level of rarity such as to make it important as a threshold consideration; and that given the extent of alterations to the building, it would not be considered to be an exceptional example of a late 19th or earlier 20th century convent.
  2. [103]
    I note that Mr Lovell in his report (Ex 5) at paragraph 46 said that St Mary’s Convent (and other convents in the Appendix 3 list in the Joint Report), “present as more intact as related to the external architectural presentation than St Patricks“ Convent. I infer that this is a reference to external appearance or streetscape presence, which is not a relevant consideration. “Intactness“ in the context of principal characteristic of a place is something quite different.
  3. [104]
    Mr McDonald considered that the assessment exercise required one to look at the building overall in a broad sense and an understanding about how its components were put together, rather than looking at components individually and how furnishing may have added to an understanding. The individual components – each space or constituent part – is then considered in the assessment exercise in respect of their relationship as a whole.

Submissions    Appellant: Mr Hughes QC and Mr Williamson 

Appellant: Mr Hughes QC and Mr Williamson 

  1. [105]
    Mr Hughes emphasised in his oral submissions the significance of ‘importance’ in criteria (a) and (d) and ‘special’ association in criterion (h). He referred to case Authorities (to which I have referred, infra) and posed a rhetorical question: is the Convent a good representative of the class of places? 
  2. [106]
    Mr Hughes submitted that the Sisters’ had a long tradition of demolishing, reusing and developing buildings on The Strand site. The setting of the Convent had changed as the school had grown and expanded around it. To a person who came upon the building, it should be recognisable as a convent.
  3. [107]
    The Convent was now a hindrance to the Sisters’ way of life and their works. The Convent has over its lifetime undergone significant change, both internally and externally, including unsympathetic materials being used and the removal of a steeple over the entrance. Much of the detailing of the building had been enclosed by more recent building materials.
  4. [108]
    The values of the place must be strong, given that there must be an “importance in demonstrating” the principal characteristics of the place and a “special association” identified.  Intactness of the Convent externally and internally is an important issue - it would inform about the nature of the building, its use and its occupation. The place must be “an especially good representative” of a convent in “important” and demonstrating the principal characteristics of a convent. This Convent was not. The extent of internal change is such that the Convent no longer includes a room with the undeniable fabric, fixtures and fittings of for example, the chapel.
  5. [109]
    The former chapel was a large area in the Convent and such features which would assist that space to be identified as the location of the former chapel is at best, vague.  The chapel as it presents now is neither highly intact nor does it demonstrate a good example of a chapel built in the late 19th and early 20th centuries. The place is not important in demonstrating principal characteristics of a convent because of the compromise that subsequent alteration and change in fabric and function over its lifetime has caused.  Many of the spaces in the Convent are utilitarian in appearance and they do not demonstrate from the fabric what they were or what their use was. The fabric does not demonstrate the impact the Sisters had on the ideology, value or philosophy of Queensland history and whilst a particular timber construction method was employed in its construction, that alone is not sufficient to establish “earliness” as a threshold indicator.  The building was not “an especially good representative” of a convent. 
  6. [110]
    The four vacant rooms on the ground floor outside the entry area are not highly intact.  Whilst those spaces may have been public and private spaces the identification of their uses is not readily apparent by observation. Whilst historically their use may have been identified this is not disclosed by the fabric of the spaces.  The fabric of the Convent now cannot be described as highly intact, which is what is required in the relevant criterion.
  7. [111]
    The first floor of the Convent has unsympathetic changes to the original design of the cells.  It is not highly intact and the existing built form does little to demonstrate the life of the Sisters. External intactness was equally important to internal intactness, and the Convent did not demonstrate that in either respect.
  1. [112]
    Mr Hughes submitted that the Convent is not a fine illustration or good example of a convent, given the extent to which it has been altered over the passage of time.  The convent was unable to demonstrate the principal characteristics of such a place in a way that was clear and significant. 
  2. [113]
    It was not important in demonstrating the pattern or evolution of Queensland history – the fabric of the Convent is not rare or uncommon, there is a lack of intactness which means the fabric no longer contains information which informs the observer, it represents little in the way of the Sisters’ history in North Queensland, it is of itself not evidence which assists in demonstrating the development of Townsville during the 1880s boom period and it was not the earliest convent for the Catholic faith in Townsville.
  3. [114]
    Mr McDonald’s evidence on behalf of the respondent ought not to be preferred over that of Mr Lovell, for the appellant, because he was ambivalent about the degree of intactness of the building, he applied the wrong test with respect to the principal characteristics of the place in the context of failing to recognise that it must be significant or important to an understanding of a convent in the heritage environment.
  4. [115]
    It was submitted that the Sisters as a former occupier of the place are entitled to express an opinion as to whether there was a “special association” in terms of criterion (h) with their lifetime work. Their views were at a different level than other owners of a place and should be taken into account. It was submitted that the evidence of the Sisters establishes that the Townsville Diocese does not see any attachment or special association as between the life or the work of the Sisters, with the Convent.  
  5. [116]
    The description of the Convent as a motherhouse does not raise it to the level of having a special association with the life or work of the Sisters and the role of the Convent was not such to be properly described as the heart of the Sisters’ activities in a very large reason, as the respondents historian, Peter Bell had said (albeit in making an error as to the northern extent of the large geographical area). He was critical of his reference to the place being the ‘heart’ of the Sister’s activities.
  6. [117]
    He said that the listing by the Council was made on the cusp of the place being under a threat of demolition and that fact was a further relevant consideration. 
  7. [118]
    He submitted that none of the heritage criteria were satisfied on the evidence.

   Respondent: Mr Litster QC and Mr Loos.

  1. [119]
    Mr Litster submitted that the expert evidence demonstrated that the Sisters were a group of State and regional importance in Queensland’s history; they had a strong, long and lasting connection with the Convent, from 1883 to 2011 (other than for short term disruption during WWII) and that amounted to there being a ‘special association’. 
  2. [120]
    The Convent had changed little since 1915 and demonstrated as a matter of importance the principal characteristics of a convent. Its fabric dated from two periods of growth in Townsville and remains in much the same form as in those periods. It was important in demonstrating the evolution or pattern of Queensland’s history.  
  1. [121]
    The heritage listing boundary had been carefully and narrowly delineated around the Convent and did not pick up any other building within the group of buildings occupying the school site. It was common ground amongst all the experts that the Convent is the oldest building in NQ associated with the Sisters, as well as being one of the earliest timber buildings in Townsville.  
  2. [122]
    The ordinary or plain meaning of the words ‘special association’ were appropriate, meaning “different from what is ordinary or usual”.  There was no need to apply any judicial gloss to the words and they set no higher bar than the ordinary or plain meaning conveyed.  
  3. [123]
    He submitted that the expansion of the chapel did nothing to diminish the ability of the Convent to demonstrate the principal characteristics of a convent, the additions later in time did not diminish the “boldness” with which the location of the chapel is expressed when viewed from outside and changes to the fabric have perpetuated the Convents use. The remaining fabric was sufficiently intact to warrant listing on the register. 
  4. [124]
    Further, the “external, architectural and aesthetic expression of the building” was not a principal characteristic agreed between the experts.
  5. [125]
    He referred to the regional significance of places in the hierarchy of significance referenced in the Guideline.  
  6. [126]
    The Sisters’ communal living facilitated their vocation: the Convent was the hub of their activities; they were ‘walking nuns’, but the Convent, as a place of residence, for some of them, and their place of congregation (both religious and communal) made their works possible. There was an intimate connection between the Sisters and the Convent. 
  7. [127]
    The Convent was of as much importance as their works in the community and reflected the Sisters way of life. The Convent had been the physical expression of the Sisters’ connection to The Strand and Townsville for many generations. The fact that there were other such places already on the register or the timing of the listing, were irrelevant. He submitted that any earlier overlooking of a place that was occupied and active did not mean that a listing later in time was not appropriate. Such a view would be inconsistent with the purpose of the Act.  
  8. [128]
    The regard given to historical facts and expert opinion given about that in evidence and the evidence of the two Sisters each led to the same conclusion about whether there was a ‘special association’.  
  9. [129]
    The vocation of the Sisters – their work and existence – was connected with the Convent. Whilst their work to a large extent was conducted in other places as well, it was directed and coordinated from the Convent.  
  10. [130]
    He submitted that the evidence of Mr McDonald should be preferred to that of Mr Lovell because Mr McDonald remained within the confines of the Act and within accepted heritage practice in his assessment.
  11. [131]
    The Convent was considered by Mr McDonald to be sufficiently intact to be important in demonstrating the principle characteristics of the Convent. The alterations or changes to the Convent furthered the use of the building as a Convent and they were done for the purposes of the Sisters.  
  12. [132]
    He submitted that regardless of the fact that the four utilitarian rooms on the ground floor were now bare, there were contemporaneous accounts of the use to which they had been put.  He submitted that it would be absurd in assessing criterion (h) to not ascribe a use or possible use to such spaces simply because they were similar and unfurnished. He submitted that the fabric of the Convent indicated change contemporaneous with important phases of North Queensland’s development, evolution or pattern of life, demonstrating longevity of the use. There had been 125 years of operation as a Convent, reflecting a way of life that had essentially ceased to exist. It was important surviving evidence of that way of life, a ‘highly visible’ reminder of the past.  
  13. [133]
    Mr Litster questioned the objectivity of the appellant’s historian, Helen Gregory and was critical of what he described as her ‘subjective views’. The focus of the Act was about the ‘preservation of places’ rather than merely ‘ideas’. Her evidence did not have sufficient rigour, she did not stick to the facts but embellished them and that the court should be cautious in regard to her evidence. By contrast, he submitted that Peter Bell was principled and moderate in his approach. He referred to the ‘consistency’ with the Guideline in Peter Bell’s approach and that the court should act on his opinion that the Convent satisfied criterion (a).  
  14. [134]
    He submitted that the Act did not call for any comparative exercise to be undertaken as between the Convent and other places or convents.
  15. [135]
    He submitted that the Sisters’ views should not be taken into account and that there was no “principled way” to afford them special status in that regard. He submitted that the statutory test did not call for such recognition. The Act was intended the balance the rights of owners against the preservation of heritage places.
  16. [136]
    He referred to the Guideline and submitted that a place (such as the Convent) which had sustained its original use better demonstrated its intended function and one which had been converted to another use. Longevity of association with earliness can give rise to special association.
  17. [137]
    He also referred to the Case authorities. He sought to distinguish them in the context of this appeal.
  18. [138]
    He concluded that the Convent satisfied all three of criteria (a), (d) and (h). He submitted that it did so readily on the plain words of the criteria.  Application of the Guideline reinforced that conclusion and the Convent should be listed because of its special association with the Sisters.

Discussion about the evidence generally

  1. [139]
    The evidence of Sister Carmel (King) and Sister Marie (Melville) is relevant insofar as it is focused on factual history. To the extent that their evidence refers to their own and the Sisters’ opinion or wishes as to the future of the Convent is concerned, I do not consider that evidence to be relevant. The Sisters are the owners of the Convent. Whilst it was submitted by Mr Hughes that the Sisters, by reason of their special association with the place, should be regarded differently from other owners of places. However, I do not consider that the Sisters should be treated any differently from any other owner of a place the subject of, or nominated for, heritage listing insofar as the future of the place is concerned, in an appeal to this Court. The opinion of any owner of a place is not relevant to the determination of an appeal involving heritage listing. It seems to me that it would be uncommon for an owner to favour a heritage listing, unless the owner was a proponent for the listing. In this appeal the Sisters of course oppose the listing and seek orders, inter alia, to remove the Convent from the Register. 
  2. [140]
    I received some evidence about the possible identity of the architect of the Convent. There is some indication that it may have been W. G. Smith Jnr, although this is not conclusive as a matter of fact (although he was married in the Convent chapel). He was the architect for St Mary’s convent (for the Sisters of Mercy) at Charters Towers in 1889-1892, the Grand Hotel in Townsville and the Hollis Hopkins & Co warehouse in Townsville (Exhibit 18A). However, that information is not sufficient to support a finding about that issue.
  3. [141]
    Mr Hughes in his submissions was critical of the approach of Mr McDonald (saying it was incorrect) in Mr McDonald’s statement at paragraph 4.2 of his report:

“In short, a place is important in demonstrating the principal characteristics of a convent if that place displays the defining features of the convent.” 

  1. [142]
    I do not agree with the criticism. It is not valid in at least two respects: firstly, it is a single sentence extracted from a lengthy report – a report that provides context; and the statement in that context and in the construction of the sentence, in Mr McDonald’s words, says that a place demonstrating the principal characteristics of a convent must be important in doing so. 

Other places said to be comparable or relevant to the assessment 

The ‘Mercy Heritage Centre’   

  1. [143] The appellant adduced evidence concerning the “Sisters of Mercy Brisbane Congregation Mercy Heritage Centre” in Brisbane (Exhibit 10).  The Heritage Centre is situated at “All Hallows” in Brisbane. I note that one of the “changing” images on the website (Affidavit of Ms Williamson – Exhibit 17) identifies an external linedrawing image of some uses within the parts of the building, including an historical exhibition or display titled “Discover Little Known Aspects of Brisbane’s History”.  The heritage centre is said to relate to the Order of the Sisters of Mercy on a Statewide basis. However, its presence does not detract from the potential heritage listing of convents (of the Sisters or any other religious Order, for that matter) elsewhere in Queensland.

St Mary’s convent, Charters Towers

  1. [144]
    The heritage experts considered St Mary’s convent at Charters Towers, in a comparative context, in the course of their assessment of the Convent. St Mary’s convent was the subject of an application for Queensland heritage listing in 2010 but it did not meet the criteria and was not listed.
  2. [145]
    The ‘Assessment of Significance’ for “St Mary’s convent (former), Charters Towers” identifies the reasons why the place was not listed in the register with respect to criteria (a), (d), (e) and (h).  There was a lack of intactness to illustrate significance and it did not meet the threshold to State-level cultural heritage significance. A number of the principal characteristics had been removed and whilst the building may have met cultural heritage significance, it did not satisfy the criteria beyond that. The Sisters of Mercy left the building over 100 years ago and after the subsequent occupation by the Sisters of the Good Samaritan, then left in 1978.  Little remained in the buildings to illustrate associations with either Order in a compelling manner. The longevity of any association as a convent was not present at the time it failed to be listed. Its association remained with the church and in the provision of education.
  3. [146]
    The building now serves as the junior campus of the Columba Catholic College and includes new boarding facilities for girls. The former chapel now houses a music room.  The much modified refectory spaces are now classrooms. The ground floor has been used as a teaching space. The former dormitory spaces on the upper floors of the two buildings that comprise the place (which were shared by the Sisters’ accommodation facility), now houses a range of classrooms, storage rooms and study areas.
  4. [147]
    Mr Lovell referred so the absence of furniture (such as pews and nun’s prayer stalls) and fittings (such as a communion rail or altar) in the former chapel space. He said this had a ‘negative’ effect in respect to the intactness of the place in the context of a principal characteristic of a convent. 
  5. [148]
    Mr Litster objected to the relevance of this evidence (adduced in re-examination by Mr Williamson), but I admitted it subject to further cross-examination. Mr Lovell agreed in the further cross-examination that the chapel was ‘no longer there’ – the space was present but it had been sub-divided. It “was not a space that was recognisable as a chapel”; and the former St Mary’s Convent “was not an intact building”. It was a modified building.
  6. [149]
    Mr McDonald agreed that St Mary’s convent lacked intactness. There was a lot of introduced fabric and a lot of non-original detailing all around the building. The chapel, to the extent that it existed in the building (there being no alter and no stalls) had been changed to a music room. He considered that the “real failure” in the heritage listing context was “the lack of intactness of the interiors and those principal characteristics”, which he and Mr Lovell had agreed in this appeal related to convents.
  7. [150]
    The recommendation against a listing of the Convent included the conclusion that the longevity of association as a convent was not present.
  8. [151]
    This former St Mary’s convent was not in my view an appropriate comparative subject. It is a pretty set of buildings and has a neat and tidy appearance on its two street scapes. The buildings are a working and living modern educational facility. Its history as a convent has long been subsumed in extensive renovation both externally and internally. Its use has completely changed, and this has been so for decades. It is an example of a pragmatic decision to re-invent its fabric and use. Its character is unquestionably that of a college teaching and learning facility that exhibits through its external façade a prominent and visually attractive presence, with historical veneer, in the streetscapes that it dominants. It would not necessarily appear to an observer that the building was a former convent. If the latter was a key or sole criterion for State heritage listing, it would be on the register. That descriptive, of course, is not a criterion. The building was not listed in the register. The reasons are clearly evident in the assessment and writings about it (to which I have briefly referred).

 Discussion: the grounds of the appeal  

  1. [152]
    In the grounds of appeal (“Annexure B”) the appellant made the following allegations, which I have condensed here for convenience. They were made in the context of the Citation (or Statement of Criteria) by the Council (“Annexure A”) in the listing of the Convent on the register.
  1. The Convent was not important in the context of the life and work of the Sisters. 
  1. There was no conclusive evidence that the place was ‘purpose built’ as a convent and was not the first convent constructed for the Sisters in Queensland. 
  1. The way of life of the Sisters is not ‘importantly’ demonstrated by a convent building, which was a place of residence but not exclusively a residence. 
  1. The concept of a ‘religious retreat’ is common to all religious orders. 
  1. The private living arrangements of the Sisters were not important; conversely, facilities for education were. 
  1. The Convent plays only a small part in illustrating the pattern of development of Townsville or Queensland, compared to major infrastructure development in Townville; and the school facilities on The Strand site. 
  1. The Convent is not an important example of a convent, for the following reasons: the relocation, changes and repair to fabric over time; the existence of features common to practically all residential premises; the lack of personal possessions are simply demonstrative of the vow of poverty; and the prominence of the place on the street-  scape is an irrelevant consideration. 
  1. The work of the Sisters is what is relevant, not their residential arrangements. There is nothing ‘special’ in the association between the two.
  1. The Council Citation contains significant errors of fact and emphasis and their Decision is wrong.   
  1. [153]
    For the sake of completeness I can briefly respond to the grounds compendiously, as condensed above, as follows: I consider the place was constructed or ‘purpose-built’ as a convent, that it is important in the relevant context, that it is important in demonstrating a way of life of the Sisters, that it was more than merely a place of private living arrangements, it was one of a number of places that illustrated the pattern of development in Townsville and Queensland, that it is an important example of a convent, that there is a special association between the Convent and the life and work of the Sisters, that the existence of other similar places elsewhere in Queensland is irrelevant, and that to the extent that the Citation contains errors of fact they do not influence my determination of the appeal, based on my consideration of the evidence in the appeal.

Further discussion of the evidence relating to the heritage criteria

  1. [154]
    The Guideline provides an interpretation of “historical significance” in the context of its development through application of the methodology to which I have referred:  

“A place may have historical significance if it is the product of, or is an example of, or was influenced by, or has influenced, or is associated with, or has a symbolic association with, or is the site of, an event, phase, movement, process, activity, way of life (including values, aspirations, tastes and fashions), person, group of persons, or organisation, who or which has made a strong, noticeable or influential contribution to the evolution or development of our society or our environment.”

  1. [155]
    The Guideline states that historical significance provides the context for most other types of heritage significance in the context of it being “difficult to imagine a place being of aesthetic, architectural, scientific, social or other significance without also being of historical significance.”  Historical significance is said to be “not limited to places that are historically ‘exceptional’ or ‘elite’”.  
  2. [156]
    The Guideline states that it is not possible to determine the cultural heritage significance of a place to future generations, but nevertheless the conservation of places demonstrating the evolution or pattern of Queensland’s history, including a sample of contemporary places, so that future generations may choose what they wish to value and conserve from their history and cultural heritage, is important to foster.  
  3. [157]
    The significance indicators in the Guideline make reference, so far as may be relevant here, to a “… way of life that has made a strong, noticeable or influential contribution to the evolution or pattern of development of our society …” in the context of that being a ‘result or outcome of’ or being ‘influenced by or having influence upon’ such contribution.
  4. [158]
    The historical context in heritage assessment is largely informed, not surprisingly, by documentary and anecdotal records that comprise a ‘history’ of a place. That is why historians were engaged to research, record and provide evidence in the appeal. I do not consider that my consideration of the cultural heritage significance of the Convent, in respect of the threshold indicators, could or should be limited to visual assessments of the place whilst ignoring the historical context which can properly assist in any assessment.

Criterion (a)

  1. [159]
    Criterion (a) makes specific reference to the pattern or evolution of Queensland’s history, acknowledging the regional development throughout the State and the pattern of development in regions such as in Townsville and its hinterland. Such developments typically included the establishment of a port, the growth of pastoral activity and mining activity and the settlement and growth of population centres. A determination of the evolution or pattern of societal or environmental development is able to be determined through the identification or application of ‘principle historical themes’ that, in the context of this matter, could include the creation of social and cultural institutions, the provision of education to the population and the provision of health and welfare services.  
  2. [160]
    The Guideline states that places that satisfy criterion (a) must be “important in demonstrating” (in a broad sense of that word) historical significance. A demonstration of the evolution or pattern of Queensland’s history is not limited to the physical evidence or fabric of the place. It may, in a holistic sense, include many other historical elements including and fittings for example, so as to demonstrate an aspect of the past that has made a strong, noticeable or influential contribution to Queensland’s history.

Criterion (h)

  1. [161]
    This criterion does not necessarily require the “special association” to be demonstrated in the physical appearance or fabric of the place. Nevertheless, the nature of a special association needs to be explicitly identified and thoroughly evaluated. The special association must be one of “importance” in Queensland’s history in the context of having “shaped significantly the evolution and development of our society and our physical environment”.  
  2. [162]
    Long association between the Sisters and the Convent is one indicator and, in this case, that association has extended for over a century (even though such a long association is not necessarily a requisite).
  3. [163]
    In the two-test process to determine that the Convent is significant under this criteria, there must be a demonstrable nexus between the special association with the life or work of a group; and the reason for that group’s importance in Queensland history.

Criterion (d)

  1. [164]
    The Guideline states that: 

“A place is important in demonstrating the principal characteristics of a particular class of places if that place displays the defining features, qualities or attributes of its type, or variation within the type, or evolution of the type, or the transition of the type or ‘class of cultural places’ illustrates a range of human activities including a way of life, a custom, a land use, a function, a form of design, a style, a technique or some other activity or achievement.”

  1. [165]
    This criterion draws from aspects of cultural heritage significance. To fulfil it, a place must demonstrate its significance in the ‘fabric’. It is a criterion that is concerned with the evidence that is to be found at the place and if the evidence does not survive then this criterion cannot be applied. 
  1. [166]
    The Guideline defines “culture” (as a noun) as “the sum total of ways of living built up by a group of human beings, which is transmitted from one generation to another”. The criterion is concerned with “representativeness”. In other words, the place is to be part of a larger group. In this case, the Convent is a part of the catholic faith’s provision of education and health care to the population. 
  2. [167]
    The determination of whether the place satisfies this criterion is achieved by applying the significance indicators and the threshold indicators so as to identify to which class of cultural places a place belongs; assessing how well the place demonstrates characteristics of this class; and determining if the place is significant to our understanding of this class as part of Queensland’s heritage. 
  3. [168]
    The expression ‘cultural heritage significance’ per se is not a test: it is a concept subsumed in the relevant criteria in the Act.
  4. [169]
    Lonie v BCC [1998] QPELR 209 involved an appeal against a local authority decision to refuse an application for demolition of a ‘workers cottage’ built between about 1910 and 1915. It was not a heritage case per se. Skoien SJDC was persuaded that the building was as thus described and had been “adapted to the needs of 1950’s or 1960’s owner”. His Honour in the judgment equated ‘significance’ with ‘importance’. However, the case is better known for the passage about the perception of a building or streetscape by an average observer on the street that “falls somewhere between that of a PhD in Architectural History on the one hand and that of a Philistine on the other”. 
  1. [170]
    Mr Litster submitted that this was not the appropriate test. The test was not that of “the ordinary man in the street” but was of an ‘informed Council’ in whose shoes the Court stands in this appeal. I agree. Lonie is distinguishable on that basis. 
  1. [171]
    Reelaw v Queensland Heritage Council [2005] QPELR 335 involved an analysis of s 35(1) (as it then was) and the meaning of critical words or phrases such as ‘importance’ and ‘special association’: at [112]. Wall QC DCJ considered that “something more than a generic inclusion in historical processes is required”. The test was described at [116] as the place having “… a cultural connection, that [it] demonstrates the principal characteristics of that connection and that it be important in doing so”. I agree with that statement. 
  1. [172]
    His Honour referred to the [Council’s] witnesses exhibiting “subjective sympathy for a building under threat of demolition” (at [125]), referred to the building in question having not met any heritage criteria “when it was not under threat” abruptly rising in significance to meet the criteria (at [126]). He considered that [the Council] had “mistaken detail for significance” (at [127]). His Honour used strong language in his assessment of the evidence and was unpersuaded that the city office building warranted heritage listing. The appeal was allowed. 
  1. [173]
    I do not consider that the Convent is a ‘generic inclusion’ in historical processes or anything even approaching that. I am persuaded that Peter Bell’s evidence is more objective, balanced and reasonable than that of Helen Gregory. For example, her association with the sisters in their historical recordings troubled me when I assessed her views against those of Peter Bell.
  2. [174]
    The Convent’s alteration over time is not a disqualifying feature but may be properly seen as a response to changing needs. Few older places are static in their appearance, unchanged in the use or utility of their parts or neglected in their adoption of new or upgraded facilities or fittings. The Convent retains the original space without significant alteration, certainly no more than would be responsive to needs over time. Whilst it has unfortunately suffered from neglect in recent times and its furnishings have been removed, it nevertheless has sufficient adornment, identifiable (with quite proper help of historical analysis) spaces and would in my view be recognisable, to the informed observer, as a Convent. 
  3. [175]
    Whilst the work of the Sisters was their purpose in life and of necessity was carried out in divers locations, the Convent was for a substantial period of time their home and their spiritual and collegiate place. I consider that there is a palpable connection between the Convent and the Sisters as a group that is a ‘special association’.
  4. [176]
    The Convent is over 100 years old, a timber construction and was for much of that time the residence of the Sisters (or at least most of them) until only very recently. Of course, the vocation of sisters has changed significantly. Many now reside in the broader community. Those who are elderly or infirm reside in facilities that enhance their care. Such is part of the natural and evolving change to the Sisters’ vocation over time. I consider that the Convent is very important in demonstrating the connection between the Sisters and the evolution and growth of the Townsville and North Queensland community.
  5. [177]
    I do not accept the submission that the Council has acted to list the Convent, despite it not having been identified as a potential heritage place in a survey some years previously, because of a proposal to demolish it. I consider it trite to so suggest. There may be places not on that list that, at the end of the day, may on closer consideration and a focus on detailed assessment, warrant a heritage listing based on ‘cultural heritage significance’.
  6. [178]
    I do not consider that in this case there is any ‘subjective sympathy’ exhibited in the evidence of the Councils’ witnesses or that Mr McDonald had mistaken detail for significance. Indeed, I consider Mr McDonald’s evidence to be most persuasive and that in a number of important respects (that I have identified in my assessment of the heritage consultant’s evidence) his view is supported by Mr Lovell. I find that the evidence of Peter Bell and Mr McDonald is more focused, preferable and better evidence than that of the appellants’ witnesses and I am prepared to act on it.

Conclusion 

  1. [179]
    Whilst the Citation or Statement of Criteria in the Register represents the considered opinion of the Council, it is the evidence in the appeal that I have considered in order to determine the issues in the appeal. 
  2. [180]
    I  have made specific findings or conclusions in respect of the significant evidence in the context of the judgment and endeavoured to draw them together in the course of the discussions.
  3. [181]
    Having considered the evidence and accepted the evidence of Peter Bell and Mr McDonald as more compelling on matters where there is disagreement between each of them and Helen Gregory and Mr Lovell respectively, I am persuaded that criteria (a) and (h) and criterion (d) have been established on the whole of the evidence to be relevant and applicable to warrant the listing of the Convent on the Register.

  Resolution

  1. [182]
    I am satisfied that the Convent meets criteria (a), (h) and (d) in the Act.
  2. [183]
    It follows that the appeal should be dismissed.

A further separate hearing? 

  1. [184]
    The Court will hear submissions in due course as to whether a hearing of the paragraphs 20A and 20B issues in the Further Amended Notice of Appeal require a separate hearing. The parties will have liberty to apply. 
  2. [185]
    If there is no separate hearing of the tranche of further issues, I will make an order that the listing of St Patricks Convent, The Strand, Townsville, on the Queensland Heritage Register as a State Heritage Place be affirmed. 
  3. [186]
    The parties also have liberty to apply, subject to application by either or both of them, as to costs of this hearing and reserved costs.

Orders

  1  Appeal dismissed.

2  The parties have liberty to apply, with respect to a further separate hearing of the Paragraphs 20A and 20B issues in the Further Amended Notice of Appeal.

Close

Editorial Notes

  • Published Case Name:

    The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council (No 2)

  • Shortened Case Name:

    The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council (No 2)

  • MNC:

    [2017] QPEC 14

  • Court:

    QPEC

  • Judge(s):

    Durward DCJ

  • Date:

    21 Mar 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bunnings Building Supplies Pty Ltd v Redland Shire Council (2003) QPELR 624
2 citations
Jump To
Cite 1 - (2003) QPELR 624
Cite 2 - (2003) QPELR 624
Cotton Tree Trust v Queensland Heritage Council [2010] QPELR 68
2 citations
Jump To
Cite 1 - [2010] QPELR 68
Cite 2 - [2010] QPELR 68
Department of Family and Community Services v Chamberlain [2002] FCA 67
2 citations
Jump To
Cite 1 - [2002] FCA 67
Cite 2 - [2002] FCA 67
Expile Pty Ltd v Jabb's Excavations Pty Ltd (2002) 194 ALR 138
2 citations
Jump To
Cite 1 - (2002) 194 ALR 138
Cite 2 - (2002) 194 ALR 138
Lonie v Brisbane City Council (1998) QPELR 209
2 citations
Jump To
Cite 1 - (1998) QPELR 209
Cite 2 - (1998) QPELR 209
Reelaw v Queensland Heritage Council [2005] QPELR 335
2 citations
Jump To
Cite 1 - [2005] QPELR 335
Cite 2 - [2005] QPELR 335
The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council [2015] QPEC 59
2 citations
Jump To
Cite 1 - [2015] QPEC 59
Cite 2 - [2015] QPEC 59

Cases Citing

Case NameFull CitationFrequency
Scenic Rim Regional Council v Queensland Heritage Council [2022] QPEC 422 citations
1

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