SUPREME COURT OF QUEENSLAND

Transcription

1 SUPREME COURT OF QUEENSLAND CITATION: Sanbar Holdings P/L v Queensland Heritage Council & Ors [2007] QSC 116 PARTIES: SANBAR HOLDINGS PTY LTD (ACN ) (applicant) v QUEENSLAND HERITAGE COUNCIL (first respondent) QUEENSLAND GOVERNMENT (second respondent) BODY CORPORATE FOR CALYPSO PLAZA CAIRNS SITE COMMUNITY TITLES SCHEME (third respondent) BODY CORPORATE FOR CALYPSO PLAZA CAIRNS COMMERCIAL COMMUNITY TITLES SCHEME (fourth respondent) BODY CORPORATE FOR CALYPSO PLAZA CAIRNS APARTMENTS COMMUNITY TITLES SCHEME (fifth respondent) FILE NO/S: BS 2441 of 2006 DIVISION: PROCEEDING: Trial Division Originating Application DELIVERED ON: 18 May 2007 DELIVERED AT: Brisbane HEARING DATE: 14 May 2007 JUDGE: ORDER: de Jersey CJ 1. Application dismissed 2. Costs, including any reserved costs, to be assessed on the standard basis CATCHWORDS: ENVIRONMENT AND PLANNING HERITAGE CONSERVATION REGISTRATION OF HERITAGE ITEMS, BUILDINGS AND PLACES OTHER MATTERS where Cairns Court House listed as heritage building under Heritage Buildings Protection Act 1990 where Queensland Heritage Act 1992 included transitional provisions for entry of buildings listed in Heritage Buildings Protection Act 1990 onto Heritage Register whether Cairns Court House Complex is a registered place under the Queensland Heritage Act 1992

2 2 COUNSEL: SOLICITORS: Heritage Buildings Protection Act 1990 (Qld), Schedule Integrated Planning Act 1997 (Qld), s Queensland Heritage Act 1992 (Qld), s 4, s 9, s 20, s 22A, s 23, s 24, s 30, Schedule Queensland Heritage and Other Legislation Amendment Act 2003 (Qld), s 22 L F Kelly SC, with A M Pomerenke for the applicant M Hinson SC, with R S Litster for the first and second respondents No appearance for the third, fourth and fifth respondents Allens Arthur Robinson for the applicant Crown Law for the first and second respondents No appearance for the third, fourth and fifth respondents [1] The applicant, Sanbar Holdings Pty Ltd, seeks, by originating application, a declaration that the Cairns Court House Complex is not a registered place (as defined in the Queensland Heritage Act 1992 (Qld)); or alternatively, that the complex was not a registered place between 31 July and 22 October Other alternative declarations are sought in the amended originating application, but those are the critical ones. [2] The so-called Cairns Court House Complex refers to the former courthouse located between The Esplanade and Abbott Street. Some years ago, that courthouse was sold by the State and incorporated into a hotel and apartment development. This proceeding arises in the context of complaints brought under the Justices Act 1886 against the applicant, which is subject to eight charges of starting assessable development on the land when no development permit was in force. The charges allege contraventions of s of the Integrated Planning Act 1997 (Qld) over the period 31 July to 22 October Whether the development took place on a registered place relates both to whether an offence was committed, and also, if it was, to the maximum penalty which may be imposed. [3] The charges came before a Magistrate, who accepted the parties mutual position that it would be beneficial if a possibly definitive issue, that is, whether or not the old courthouse was a registered place, were determined by this proceeding in the Supreme Court, before any further hearing of the charges proceeded in the Magistrates Court. Neither party raised any dispute about the facts as a bar to my granting final relief. [4] Two pieces of legislation fall for consideration. The former in time is the Heritage Buildings Protection Act 1990 (Qld), which commenced on 11 March 1990, and expired on 20 August It provided for the listing and protection of heritage buildings. They were specified in a Schedule to the Act. Part B of the Schedule, under the heading Local Authority Cairns City, specified Court House Abbott Street Cairns.

3 3 [5] That was obviously not a precise delineation of the extent of the property. Section 3(2) provided that where there is any doubt as to the boundaries of, or what comprises, a heritage building, the boundaries or the composition of the heritage building are or is to be such as are or is certified by the Minister. On 10 January 1992, the relevant Minister issued a certificate under that provision, attaching a plan which covered the entire old courthouse complex. The certificate included this statement: No citation has yet been approved for the above heritage building. [6] The second piece of legislation is the Queensland Heritage Act 1992, which commenced on 21 August That Act established a new statutory scheme for the listing and protection of a place of cultural heritage significance, by identifying it as a registered place (s 4), prohibiting its development without approval from the Queensland Heritage Council (s 33), and providing for an application for approval (s 34). The Act also established the Queensland Heritage Council (s 8), and conferred functions upon the Council, including, under s 9(b), administering the Heritage Register in accordance with the legislation. Section 20 provides for the Register, which is to be a record of registered places. [7] A schedule to the 1992 Act contained what are termed Transitional Provisions. Critical for this case is s 2: (1) All buildings listed in the Schedule of the former Act are, on the commencement of this Act, to be taken to be places provisionally entered in the Heritage Register. (2) An owner of any such place may, within 60 days after the commencement of this Act, object to the entry of the place on the Heritage Register. (3) If no such objection is made within that period, the place is to be entered on the Heritage Register on a permanent basis, but, if there is such an objection, the Minister must refer it to an assessor within six months after the end of the period allowed for objections and the objection must then be dealt with in accordance with this Act. [8] The Act provided independently for the entering of new properties upon the Heritage Register. Section 23 specifies the relevant criteria. Section 24 concerns proposals for the entry of a place onto the Register, and s 27 their assessment. Section 25 concerns proposed removals from the Register. Section 26 raises the possibility of objection, and s 29 their assessment. Section 30, finally, deals with the Council s decision to enter the place in the Heritage Register. [9] Section 20(4) prescribed the content of an entry in the Register: (4) An entry in the Heritage Register in relation to a registered place must (a) adequately identify the place (i) by reference to a certificate of title or an official plan of survey; or

4 4 (b) (c) (d) (ii) by survey information that enables its boundaries to be clearly and accurately ascertained; and contain a description of the place; and contain a statement of the history of the place; and contain a statement of the heritage significance of the place related to the criteria in this Act by which its heritage significance is determined. [10] Section 9 of the Queensland Heritage Act 1992, in its form during the period from July to October 2004 referred to in the application, provided that the Council might delegate its functions under the Act to a committee of the Council (of specified composition), although it might not delegate its statutory functions in relation to entry and removal. [11] On 13 April 1994, the Heritage Register Advisory Committee, a committee of the Council within s 9, resolved in these terms: The following transitional provisional entries were presented to the Committee and passed, with amendments being made on computer: Cairns Court House Complex [12] The applicant s solicitor has obtained copies of the relevant entries on the Heritage Register. One is a seven page document concluding with a plan. It includes sections headed Heritage Significance, History, Court House, Former Public Offices (Art Gallery), Description, Court House, Art Gallery, Abbott Street Gardens. Towards the end of the printed part of the document, this section appears: Process: Pursuant to the transitional provisions of the Queensland Heritage Act 1992, all buildings listed in the Schedule to the Heritage Buildings Protection Act 1990 were taken to be places entered provisionally in the Heritage Register. This place was transferred as a provisional entry to the Heritage Register on the basis that it was listed in the schedule to the Heritage Buildings Protection Act This decision was effective as from 21 August 1992, the date of proclamation of the Queensland Heritage Act Further to the transitional provisions of the Queensland Heritage Act 1992, this place is entered permanently in the Heritage Register as of 21 October [13] 21 October 1992 is the date 60 days after the commencement of the Queensland Heritage Act It is the date referred to in s 2(2) of the Transitional Provisions set out in the Schedule, as the date by which any objections to the permanent entry of the place on the Heritage Register must have been made. [14] No such objection was made. Accordingly, under s 2(3), the place was to be entered on the Heritage Register on a permanent basis. As emerges from the above extract from the entry on the Register, the drafter of that document apparently took

5 5 the view that, there having been no objection, the place was therefore to be regarded as entered permanently upon the Register as from 21 October [15] It was accepted before me that if the requirements of s 20(4) be relevant to this case, the material contained in the original permanent entry on the Heritage Register satisfied the requirements of the section, save for paragraph (d), in that it did not contain a statement of the heritage significance of the place related to the criteria in this Act by which its heritage significance is determined. In that regard, the document did no more than assert that the place satisfies one or more of the criteria in s 23(1) of the Act. Any deficiency was probably remedied by a subsequent amendment of the document, perhaps effected by computer as mentioned in paragraph 54 of the affidavit of F J Gardiner filed 10 July The subsequent amended version of the listing says, in its opening paragraph under the heading Heritage Significance : The Cairns Court House Complex is a place of cultural heritage significance and satisfies one or more of the criteria in s 23(1) of the Act as evidenced by, but not exclusive to, the following statement of heritage significance, based on criteria a, d, e, g and h: [16] Of the relevant circumstances, it remains to mention that the transitional provisions contained in the Schedule to the Queensland Heritage Act 1992 were repealed by s 22 of the Queensland Heritage and Other Legislation Amendment Act 2003 (Qld). That amending Act commenced on 28 November The actual entries, in the permanent sense, had been made on the Heritage Register before that time. [17] Mr Kelly SC, for the applicant, essentially submitted that although, because of s 2(1) of the transitional provisions, the complex was provisionally entered on the Heritage Register, entry on a permanent basis was not automatically effected under sub-s (3), notwithstanding the lack of objection under sub-s (2). Permanent entry could only have occurred, he submitted, had the Council exercised its non-delegable (s 9(2)) function under Part 4 of the Act. At no time did the Council do so: it did not meet and give consideration to whether the s 23 criteria applied. Further, when the entry was eventually more comprehensively expressed, including particularity as to the applicable criteria under s 23, that was, he submitted, ineffective, because it was not the work of the Council. [18] Mr Kelly submitted, more broadly, in these terms: The purpose of the new Act was to create a publicly accessible register which would contain the important information required to be set out in s 20(4) of the new Act. It was intended by the legislature that there should be no doubt relating to what places were registered or about the criteria which had caused them to be registered. The Queensland Heritage Council was required to maintain the Register. It was not permitted to delegate the function of entering a place in the Register. This requirement should be treated as one the breach of which should result in the invalidity of the resultant entry.

6 6 [19] In addition to submitting there had been no valid permanent entry, Mr Kelly submitted the provisional entry could no longer be regarded as effective. This has significance because the term registered place is defined by the 1992 Act to mean a place entered or provisionally entered in the Heritage Register. Mr Kelly submitted that to be regular and effective, a permanent entry could only have been made within a reasonable time of the ending of the period for objection following the provisional entry, but it was not, and could not now be made because the applicable machinery is no longer available, in light of the repeal of the Schedule to the Act. [20] Mr Hinson SC, for the respondents, essentially submitted that the procedure for entry upon the Register under Part 4 of the Act, and the procedure under the transitional provisions in the Schedule, were separate and distinct. His submission continued: The Schedule process applies to buildings listed in the Schedule to the Heritage Buildings Protection Act. Part 4 [of the Queensland Heritage Act] applies to places which are not listed in the Schedule to the Heritage Buildings Protection Act. Section 2(1) of the Schedule deems the buildings to which it applies to be places provisionally entered in the Heritage Register. It leaves no room for the operation of ss 23 and 24 which require opinions to be formed by reference to specific criteria as a precondition to a discretionary decision ( may provisionally enter ) under s 24(4). The Schedule prescribed an outcome ( the place is to be entered on the Heritage Register on a permanent basis ) in a specified circumstance (absence of objection). [21] The Schedule to the Heritage Buildings Protection Act 1990 contained the names of some 970 buildings. The legislature had made its own judgment that they were properly characterized as heritage buildings. [22] The Queensland Heritage Act 1992 established a new regime. [23] Part 4 sets up a procedure for the proposal, evaluation and determination of contenders for entry upon the Heritage Register, culminating in a non-delegable decision by the Heritage Council. [24] But in addition, the legislature plainly considered those properties which it had, in 1990, considered worthy of heritage protection, should ipso facto be brought within the purview of the new legislation, subject only to according the owners a new right of objection. Should objection not be made, the place is to be entered on the Heritage Register on a permanent basis (s 2(3) Transitional Provisions). The legislation mandated the entry. No discretionary judgment was reserved to the Heritage Council. The provision did not say that, absent objection, the place may be entered permanently should the Council consider that appropriate. [25] It may be argued that no actual, physical entry on the register was necessary, although there is obvious utility in having available for public search a register

7 7 which discloses all listings. But in any event the case was argued on the basis some actual recording of the permanent entry was necessary. [26] Any necessary recording of the permanent entry involved, however, no more than an administrative or clerical act. As said, the entering of the place permanently upon the Register, absent objection, was mandated by the statute. It was inevitable; it must happen. [27] The recording of the permanent entry, if necessary, did not call for the exercise by the Council of its active function, to enter a nominated place on the Register (s 9(2)). That was a quite separate role for the Council, a role which had no impact upon, or relevance to, the particular transitional legislative treatment of the 970 buildings which had been protected since 1990 and which the legislature deemed worthy of continuing protection. [28] The Council was authorized to delegate that merely administrative or merely clerical recording function to a committee, or another person (s 9(1)). It was in fact discharged in this case by the Heritage Register Advisory Committee, and possibly also, some presently unidentified computer operator. [29] Mr Kelly submitted that in that event, all that could permanently have been entered would have been the content of the ministerial certificate dated 10 January 1992 (Ex 1), which did not include any discussion of criteria. [30] It is arguable that s 20(4) of the Queensland Heritage Act did not apply to a permanent entry resulting from the distinct operation of the transitional provisions in the Schedule. The conclusion those properties should be permanently entered was because of a legislative view that a continuation of the listing was appropriate. It did not depend on an evaluative process by the Council. While it is obvious the Council should specify the basis of its judgment, as reflected in s 20, it is less clear that specification should be required where the particular listing was a matter of legislative will. [31] On the other hand, the terms of s 20 do not in terms exclude permanent entries consequent upon the operation of the transitional provisions. [32] If therefore s 20 is to be regarded as also applying in that situation, I would regard the explanatory material added to the certificate, evidenced by the documents exhibited to the applicant s solicitor s affidavit, as amounting to an informative note to the entry, and therefore authorized by s 22A(1). Mr Kelly submitted that the central significance of the added information, so far as it designated more particularly the relevant criteria under s 23, took the position beyond the scope of an informative note, but I do not accept that submission. It remained a notation to the entry, and it was by nature informative. [33] It follows that the application must be dismissed, with costs, including any reserved costs, to be assessed on the standard basis.