Onus of proof under question in heritage listing

On 14 February 2012, in the matter of Gladstone Ports Corporation Ltd v Queensland Heritage Council [2012] QPEC 9, the Planning and Environment Court Judge, Judge Jones, was asked to decide who bears the onus of proof in the substantive appeal relating to the heritage listing of the Port Curtis Sailing Clubhouse.

Judge Jones found that, when properly construed, the relevant provisions of the Queensland Heritage Act 1992 (QHA) and the now repealed Integrated Planning Act 1997 (IPA) require the appellant to bear the onus of proving that the clubhouse should not have been entered in the register.

The clubhouse had been entered into the Queensland Heritage Register by resolution of the Queensland Heritage Council. Gladstone Ports Corporation, owner of the land on which the clubhouse is located, had appealed the listing.

In making his judgment of 28 February 2012, Judge Jones held the following in relation to important points argued before His Honour by the parties:

Owner’s rights

The appellant referred to a number of cases regarding property rights and argued that as a heritage listing affects the property rights of an owner, due to a listing potentially affecting the ability of an owner to make changes to their property, then the onus of proof should be borne by the Heritage Council.

Judge Jones noted that cases referring to property rights required care when determining whether previous decisions made, which affected property rights, were useful in the substantive appeal. Judge Jones held that such cases were not helpful in a discussion about which party bore the onus of proof in the appeal, due to the nature of the appeal and heritage listings.

Procedural considerations and matters of fairness

The appellant then argued that the council bore the onus of proof because they were a party “desiring the court to grant relief or to take action …”, as they were the party that desired the Port Curtis Clubhouse to be heritage listed.

While considering basic issues of fairness and procedure, Judge Jones rejected this notion. He further held that the respondent was not “going to” make a decision but had already made a decision, and to “approach the application on the basis that the respondent intends to do what it has already done would be artificial and erroneous”.

Secondly, Judge Jones noted that it is not uncommon for a party to bear an onus of proving a negative, and the case law including Attorney-General (Qld) v Lawrence [2009] QCA 136 supported this view.

Judge Jones concluded that there were no practical procedural matters or fairness issues that required the respondent to bear the onus in the appeal.

Presumptions of statutory interpretation and appeal process

The appellant referred to many cases and to sections 161 and 164 of the QHA related to appeals against heritage listings, which Judge Jones noted did not expressly, or by necessary implication, displace the usual onus in the appeal. That is, they did not expressly state or imply that the council, as the respondent, should bear the onus of proof in the appeal. Judge Jones further noted that the legislature could have easily done so.

Section 164 of the QHA provided that the planning Act in force at the time (in this case, the now repealed Integrated Planning Act 1997 [IPA]) applies to appeals brought under the QHA. Section 4.1.50 of IPA sets out who must prove the case in a range of appeal scenarios, and identifies the party that will bear the onus of proof. The onus in this section is reversed in certain limited circumstances, which did not apply in this case.

There was also a previous case, Advance Bank Australia Ltd v Queensland Heritage Council 1993 QPEC 99 (the Advance Bank case), in which Judge Row decided that the appellant bore the onus of proof in regards to the listing of a property on the heritage register. The amendments to the QHA and the IPA regarding which party bears the onus of proof in appeals both came after this case, during which time the legislature had ample time and opportunity to amend the legislation to reverse the onus of proof.

Judge Jones therefore concluded that there had not been an accidental omission by the legislature in this instance by not amending the QHA and IPA to reverse the onus of proof.

Advance Bank case

In the Advance Bank case, Judge Row found that this was not a hearing de novo (new hearing) but was a special kind of statute-created appeal and accordingly held that the appellant bore the onus of proof. Judge Jones found that in relation to relevant issues, the Advance Bank case was not wrongly decided and upheld the convention of the appellant bearing the onus.

The outcome

The decision means that the Queensland Heritage Council can continue to list properties in the usual manner and the relevant property owner can appeal the listing of the property but must bear the onus in the substantive appeal and demonstrate that the property should not have been listed.

The reasoning in this decision is relevant to all Queensland jurisdictions in which appeals are considered on a merits basis.

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