Court of Appeal (Margaret McMurdo P and Gotterson JA and Douglas J)
22 July 2014
This recent judgment of the Queensland Court of Appeal considers how tension between separate legislative provisions acting on the same subject matter ought to be dealt with. In this case, the issue was the interaction between s 162(1) of the Queensland Heritage Act (“QHA”) and ss 496(1) and 496(2) the Sustainable Planning Act (“SPA”) as they impacted appeals to the Planning and Environment Court (“PE Court”) from decisions of the Queensland Heritage Council. Section 162(1) provides that an appeal of a decision of the Queensland Heritage council “may only be made on the ground that the place the subject of the appeal does or does not satisfy the cultural heritage criteria”. By contrast s 496(1) provides that appeals to the PE Court are “by way of hearing anew” and that in deciding an appeal, the PE Court may “set aside the decision appealed against and make a decision replacing the decision set aside”.
This matter arises out of the applicant’s decision to enter the respondent’s property into the Queensland Heritage Registrar. . The (now) respondent appealed this decision to the PE Court, which, early in the appeal process entered an order allowing the (now) respondent to amend its appeal to include, as grounds of appeal, matters relating to the “physical condition and structural integrity” of the property – a potential factor in the applicants decision whether or not to enter a property in the Register, see s 51(3) QHA – in addition to its cultural importance. –, . It is an appeal of this order that was before the Court.
Powers of PE Court
Upon concluding that there was a right of appeal the Court on this issue, see –, the Court then proceeded to determine the powers of the PE Court on the appeal to it. In addressing this question the Court returned to the basic principles of statutory interpretation and concluded that upon considering “the provisions as a whole and seeking to give [the Acts] harmonious goals” that a ground of appeal related to the cultural heritage criterion referred to in s 162(1) of the QHA must be established before the PE Court is able to exercise any powers open to it under s 496(1) or (2) of the SPA. , see –. This conclusion was supported by a review of the history of the relevant Acts from which it was apparent that the legislature had intended to “separate the consideration of whether a place satisfied the cultural heritage criteria from an examination of the . . . structural integrity of the place”. . If, however, a ground of appeal related to the cultural heritage criteria is made out, the Court considered that it was open to the PE Court, pursuant to s 496(1) of the SPA, to hear the matter anew, and to, potentially, “set aside the decision appealed against and make a decision replacing it” pursuant to s 496(1). In doing this the PE Court may examine all issues which the applicant had to examine, including whether the physical condition of the property prevented its cultural significance being preserved. . In reaching this decision the Court applied the well-established principle that “a broad view should be given to the grant of power to a court”, and concluded that upon establishing a statutory ground of appeal a litigant ought be able to argue that the PE court should make a decision replacing the decision set aside with “reference to all the issues actually considered by the [Queensland Heritage] Council”. . In the instant matter, however, that the respondent had not established that its property did not satisfy the cultural heritage criterion, before arguing other matters, the Court allowed the appeal.