State Heritage Place listing reversed: Planning and Environment Court of Queensland decides the Ashgrove Methodist Church Complex is not a State Heritage Place

In brief

The case of The Uniting Church in Australia Property Trust (Q.) ABN 25 548 385 225 v Queensland Heritage Council [2023] QPEC 40 concerned an appeal to the Planning and Environment Court of Queensland (Court) against the decision (Decision) of the Queensland Heritage Council (Council) to enter the Ashgrove Methodist Church Complex (Church) as a State Heritage Place in the Queensland Heritage Register (Register).

The Council made the Decision because it found that criteria (a) and (e) of section 35(1) of the Queensland Heritage Act 1992 (Qld) (Heritage Act) were satisfied.

Accordingly, the Court considered the following issues:

• Whether the Church is important in demonstrating the evolution or pattern of Queensland's history ‒ criteria (a) of section 35(1) of the Heritage Act (Criteria (a)).

• Whether the Church is important because of its aesthetic significance ‒ criteria (e) of section 35(1) of the Heritage Act (Criteria (e)).

The Court found that the Church did not satisfy Criteria (a) or Criteria (e) and therefore ordered that the Decision be set aside and replaced with a decision not to enter the Church in the Register.

Procedural matters

The appeal was commenced under part 13 of the Heritage Act. Section 164 of the Heritage Act provides that the Planning and Environment Court Act 2016 (Qld) (PECA), part 5, division 1, "…with any changes the Planning and Environment Court considers appropriate…" applies to any appeal under part 13 as if the appeal were a Planning Act 2016 (Qld) appeal under the PECA.

Despite the guidance provided by section 164 of the Heritage Act, the Court had to adjudicate a number of disputes with respect to how the appeal would be heard and decided. The Court's decisions are summarised below.

Could the Court exercise any discretion?

The Court contemplated that there may be an exercise of discretion involved in deciding an appeal commenced under part 13 of the Heritage Act. However, the Court did not resolve this question in circumstances where an exercise of discretion was not necessary because the Court found that the Church did not satisfy Criteria (a) or Criteria (e) (see [13] to [22]).

Who bears the onus of proof?

The Court found that in the absence of a legislative provision assigning the onus of proof, the common law position applied, being that the onus rests with the party that seeks to disrupt the status quo (at [34]).

The Court found that the status quo was the state of affairs resulting from the Decision, that is, the Church being listed in the Register. As the party appealing the Decision, the Appellant was the "moving party" seeking to disturb the status quo (at [32] and [34]).

Accordingly, the Court found that the Appellant bore the onus of proof (at [35]).

What evidence could the Court consider?

The Appellant argued that the evidence concerning cultural heritage significance should be limited to the Statement of Significance included in the Register in respect of the Church (at [36]).

The Court did not agree and found that given the appeal is by way of hearing anew, the Court must make its decision having regard to all of the admissible evidence before it (at [43]).

What was the role of the Guideline?

The Court considered the role of the Guideline published by the Chief Executive pursuant to section 173 of the Heritage Act (Guideline) which was referenced by some of the expert witnesses who gave evidence in the appeal.

The Court likened the role of the Guideline in the appeal to the role of the Development Assessment Rules in assessing whether a change to a development application, or development approval, would result in "substantially different development" and found that it may have regard to the Guideline but is ultimately bound by the words of the relevant statutory instrument, being the Heritage Act (see [48] to [49]).

Court considers the meaning of the word "important"

Criterion (a) and Criterion (e) both include the word "important" as a qualitative benchmark.

The Heritage Act does not include its own definition for "important", so the Court had regard to definitions for the word in dictionaries as well as the meaning attributed to the word previously by the Court with respect to section 35(1) of the Heritage Act (see [61] to [62]).

The Court adopted an approach whereby the use of the word "important" requires that Criterion (a) and Criterion (e) are "…viewed through the lens that their satisfaction requires qualities that are more than just commonplace, but not qualities that are out of the ordinary or exceptional" (at [63]).

Court finds that the Church does not satisfy Criterion (a)

The Court considered evidence provided by the parties' historians and preferred the evidence of the Appellant's historian because the Council's historian considered in his evidence criteria of section 35(1) of the Heritage Act which were not relevant to the appeal (at [76]).

Having regard to the Guidelines, the Court relevantly found that:

• the Church is not a rare example of post-war modern church buildings, or more particularly A-frame church buildings, in Brisbane or Queensland (at [88]);

• the Church does not hold a highly distinctive or exceptional place in Queensland's heritage (see [88] and [92]); and

• the Church is not representative because its intactness has been substantially compromised by alterations (at [89]).

Whilst the Court accepted that the Church had importance to the Ashgrove Methodist community, and the building type is early for Brisbane, it was not satisfied that the Church was important in demonstrating the evolution or pattern of Queensland's history (see [86] to [87] and [92]).

Court finds that the Church does not satisfy Criterion (e)

The Court firstly considered what test ought to be adopted in assessing the aesthetic significance of the Church. Whilst the Appellant argued that the perspective of an "ordinary passer-by" should be adopted, the Court agreed with the reasoning of the Court in the case of The Corporation of the Sisters of Mercy of the Diocese of Townsville v Queensland Heritage Council (No.2) [2017] QPEC 14; (2017) QPELR 391 that the appropriate test adopts the perspective of the informed Council, as the Court's role in a hearing anew is to step into the shoes of the decision maker (at [98]).

Both parties engaged architects as expert witnesses for the appeal. However, the Court ascribed less weight to the evidence of the Council's architect because she was an advocate for the protection and care of religious buildings with a lively interest in the subject matter (at [103]).

Having regard to the Guidelines, the Court relevantly found that the Church's limited beautiful attributes are impacted by the external surrounds and that the Church has limited visibility from the public realm which impacts its aesthetic significance in that (at [110]):

• the views to the Church are not picturesque (see [106] to [107]);

• the Church makes a limited contribution to the streetscape and has reduced evocative qualities (at [118]); and

• the expressive attributes conveyed by the symbolism of the Church's use of an A-frame are limited (at [120).

Further, the Court found that the Church had not maintained a reasonable degree of intactness and integrity because of alterations made to the Church, particularly to its interior, which meaningfully altered the original building fabric (at [123]).

The Court also considered the Church's representation in art, literature, and photography. The Court found that the Church had limited representation in these mediums and noted that the Church had not been included in any of the Appellant's architect's extensive body of literature regarding post-war modernist religious buildings in Queensland (at [125]).

Conclusion

Having found that the Church did not satisfy Criteria (a) or Criteria (e), the Court found that it was not appropriate for the Church to be listed in the Register (at [130]).

Therefore, the Court ordered that the Decision be set aside and replaced with a decision not to enter the Church in the Register (at [131]).