TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF CANBERRA AND... [2013] ACAT 62 | Case summary | Zoe

ACTACAT

TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF CANBERRA AND GOULBURN v ACT HERITAGE COUNCIL & ORS

[2013] ACAT 62

ACT Civil and Administrative Tribunal|2013-09-20|Before: Member For

View original source

General information, not legal advice.

At a glance

Source facts

Court

ACT Civil and Administrative Tribunal

Decision date

2013-09-20

Before

Member For

Source

Original judgment source is linked above.

Judgment (130 paragraphs)

[1]

TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF CANBERRA AND GOULBURN v ACT HERITAGE COUNCIL & ORS (Administrative Review) [2013] ACAT 62 (20 September 2013)

[2]

TRUSTEES OF THE ROMAN CATHOLIC CHURCH FOR THE ARCHDIOCESE OF CANBERRA AND GOULBURN v ACT HERITAGE COUNCIL & ORS (Administrative Review) [2013] ACAT 62

[3]

Catchwords: ADMINISTRATIVE REVIEW - Decision to enter a place on the ACT Heritage Register - requirement to be satisfied on reasonable grounds that a place has heritage significance - meaning of "heritage significance" - criteria for determining heritage significance - whether Tribunal should have regard to expertise of Heritage Council members - whether place is important as evidence of a distinctive way of life or tradition that is in danger of being lost - whether combined church-schools are a Roman Catholic tradition - whether there was a Roman Catholic way of life in the pre-war and immediate post war period that is in danger of being lost - whether the place is highly valued by the community or a cultural group for reasons of strong or special religious or spiritual associations - meaning of 'the community" - meaning of "a cultural group" - whether the place has strong or special associations with a person, a development or a cultural phase in local history - role of Father Patrick Haydon in Roman Catholic education in Canberra - whether the place is associated with any policy of parallel development of government and Roman Catholic schools - whether the place is associated with development of the suburb of Braddon - whether the place is associated with the hostel phase in Canberra's development.

[26]

The Trustees of the Roman Catholic Church for the Archdiocese of Canberra and Goulburn ("the applicant") have sought review of a decision made on 19 July 2012 by the ACT Heritage Council ("the Council") to register St Patrick's Church, Braddon, on the ACT Heritage Register. The property in question is vested in the applicant by virtue of the Roman Catholic Church Property Trust Act 1937 and the lease of the land is registered in the name of the Trustees.
The place the Council has decided to register is part of block 7 section 57, Braddon. It includes the church building ("the listed building") and an area of land surrounding it, on the corner of Donaldson Street to the north-west and Cooyong Street to the south-west. The north-western and south-western boundaries of the place registered are co-incident with the property boundary. The south-eastern boundary is an arbitrary one, more or less co-incident with a sewerage easement crossing the block, while to the north-east it abuts block 1 section 57, Braddon on which is located a building that was originally a convent of the Order of the Sisters of Mercy but is now used for offices.
In interlocutory proceedings in December 2012, President Spender dealt with applications from three individuals and from the Parish Pastoral Council of St Brigid's and St Patrick's Central Canberra, to be joined as parties to the proceedings. In her decision (Trustees of the Roman Catholic for the Archdiocese of Canberra and Goulburn v ACT Heritage Council [2012] ACAT 81), Professor Spender joined the three individuals Mr Dallas Hosking, Mr Vincent Kane and Mr William Meani, as parties on the basis that they had a special interest in the matter greater than a non-Catholic member of the public and greater than Catholic members of the public who were not members of the congregation of St Patrick's. She observed that as worshippers at the church, their interest in the proceedings was spiritual and not merely an emotional or intellectual concern. However, she dismissed the application of the Parish Pastoral Council, essentially on the grounds that it was not sufficiently independent, having been established by the Diocesan bishop to advise the parish priest and could not enter into arrangements in its own right.

[31]

The Tribunal had before it for the hearing a wealth of documentary material, consisting of:
- the Tribunal documents (T-Docs") relating to the decision under review, filed by the respondent, dating back to 15 September 2011;
- Supplementary Tribunal documents (" ST-Docs") from the previous registration of the listed building on the Heritage Register, dating back to 17 June 2010;
- Statements of facts and contentions filed by each party;
- Revised submission by Mr Dallas Hosking, party joined;
- Amended statement of facts and contentions of Mr Vincent Kane, party joined;
- Revised submissions of Mr William Meani, party joined;
- Statement in Reply filed by the applicant
- witness statement of Father Brian Maher, Retired Catholic Priest and Church historian who had served as Assistant priest in Braddon Parish from 1968 to 1971;
- witness statement of Father William Kennedy, Parish Priest of O'Connor Parish who had served as Assistant priest in Braddon Parish from 1960 to 1968;
- witness statement of Mr Duncan Marshall, a qualified architect, experienced heritage conservation consultant and currently Chair of the ACT Heritage Council;
- witness statement of Ms Margaret Bunk, member of the German Catholic Community and worshipper at St Patrick's since 1965;
- witness statement of Dr Michael Pearson, an experienced consultant in heritage management who is currently, a member (and former Chair) of the ACT Heritage Council;
- witness statement of Dr Susan Marsden, a professional historian and heritage consultant and former National Conservation Manager of the Australian Council of National Trusts;
- Key documents referred to in the statement of Dr Marsden;
- two witness statements of Professor Richard Mackay, a partner in Godden Mackay Logan Pty Ltd Heritage Consultants and Chair of the Australian World Heritage Advisory Committee;
- Two witness statements of Dr Richard Lamb, a consultant specialising in landscape heritage and visual impacts assessment;
- witness statement of Mr Alan Foskett, Canberra historian who has written a number of books on the hostel phase in Canberra's development;
- witness statement of Monsignor John Woods , Archdiocesan Administrator for the Archdiocese of Canberra and Goulburn;
- witness statement of Father Eddie Evans, Catholic Priest and current Pastor to the German-speaking Catholic Community;
- documents produced by the Sisters of Mercy;
- documents from the ACT Planning and Land Authority; and
- Heritage Register citations for other buildings.
During the course of the hearing some 40 other documents, consisting of both primary and secondary materials, were put before the Tribunal. It is not necessary to list these exhibits individually in these reasons; where relevant they are identified.
In addition to the documents before the Tribunal, oral evidence was given by each of the witnesses who had provided witness statements, and each of the parties joined.
The evidence before the Tribunal, then, consisted of evidence as to the facts provided by primary sources in the form of historical documents (such as newspaper reports, parish records, etc) and testimony from witnesses such as parishioners and priests involved in the church; and evidence as to the facts drawn from secondary sources such as published histories. From this evidence the Tribunal has determined the history of the listed building and its use from time, as detailed below under the heading "History of the Listed Building".
The evidence before the Tribunal also included expert opinion in the form of reports prepared in relation to the listed building and evidence given by the authors of these reports. Dr Marsden, Dr Lamb, Professor Mackay, Mr Marshall and Dr Pearson had each provided expert reports and gave evidence to the Tribunal during the hearing. The Tribunal also had before it, from the Tribunal documents, earlier expert reports from Philip Leeson Architects prepared in 2010 and a report of Dr Sandy Blair prepared in February 2011. This expert evidence has been considered by the Tribunal in reaching its conclusions below under the heading "The Issues".

[64]

St Patrick's Church (the listed building) was opened in 1935 as a combined Church and school to serve the needs of Roman Catholics in the northern part of Canberra, then collectively known as Ainslie. The area containing the listed building was established as a separate Division (suburb) Braddon, on 20 September 1928 (Braddon Neighbourhood Plan, p 10).
The need for such a church-school was recognised by Father Patrick Haydon (then parish priest of Queanbeyan) in 1926 at the time when the Church had decided to build a church-school to serve the south-side development around Blandfordia (now Forrest) and Kingston. In proposing that development, Father Haydon stressed the desirability of locating it near to Telopea Park School which had opened as a government school in 1923, especially to allow its pupils to take advantage of the established government bus service. He foreshadowed the need for another school at Ainslie "in the next few years". While the first church-school (St Christopher's) was built at Manuka and opened in 1928, the second, St Patrick's, did not eventuate for seven more years, probably because of the impact of the Great Depression.
In August 1934, Father Haydon applied for a site for a school in Braddon but the first two blocks he proposed were considered unsuitable by Government officials. In January 1935, he instead sought the lease of another block that had been allocated to the Church of Christ but which they were prepared to surrender. This was granted and the listed building was built and ready for use by August 1937. It was not far from the government funded Ainslie Public School which had opened in 1927. School classes at St Patrick's commenced in September 1937, conducted by the Sisters of the Good Samaritan who travelled to the school each day from their convent at Manuka. Church services were provided by priests from the Presbytery built in 1932 on Canberra Avenue north of the Molonglo River.
The listed building is a single storey red brick and tiled roof structure, which was designed to have a second storey added later. It originally contained five classrooms each separated by accordion-type folding doors running on overhead tracks mounted on cross beams (trusses). When folded back the doors went into special recesses in the walls, thus leaving the whole of the floor space unobstructed and suitable for parish functions. Of the five classrooms so provided, the one nearest Cooyong Street was used for Mass. Each classroom had a door opening through the north-east wall to the school playground. No plans for this original building have been located.
From 1937 until 1953, the listed building continued to function both as a Church and a school, but with the increase in the number of pupils attending, an infant's school was built in 1945 and an Assembly Hall in 1946. A new Church, St Patrick's War Memorial Church, was built in 1953 on Limestone Avenue and became the main venue for Roman Catholic worship in North Canberra. By 1954, the listed building was used solely for school purposes and Mass was then said in the Assembly Hall for some years. A further brick block of three classrooms, a tuckshop and a toilet block were added in 1957. In 1955, the Braddon Church was renamed as St Mary's Our Lady of Mercy and, in 1956, the Sisters of Mercy took over conduct of the school from the Good Samaritan Sisters. A convent for the Sisters of Mercy was built in 1958 adjacent to the church-school building.
In 1963, alterations were made to the listed building including enclosing the verandas facing Donaldson Street. By this time the number of pupils was declining from a peak of around 500 in 1956 to 289 in 1963 and at the end of 1973, with numbers continuing to decline, the school was closed. The Assembly Hall and other buildings, but not the listed building, were leased to the Department of Education for use by the "School Without Walls" from March 1974 until 1981. In 1974 the partitions dividing the listed building into classrooms were removed while general renovations were carried out later in 1974 and in 1976.
In 1982, the block was subdivided and the area containing the convent to the north-east (block 1 section 57) was sold to the Sisters of Mercy, while an area to the south-east of the listed building (block 4 section 57) was sold to the Australian Episcopal Conference of the Catholic Church.
In 1983, it was decided to refurbish the listed building for use as a Church and substantial changes were made both to its external appearance and its internal organisation, the latter to reflect the changes in Church practice following the second Vatican Council. Detailed plans for the proposed modifications are available, though there is some evidence that other minor changes were made during the work. The positioning of the altar was rearranged to be central to the building, three doorways from the former classrooms were removed and replaced by re-located original windows with brickwork below, and another doorway and two windows were bricked up. Many other changes were made to the interior layout, in particular, the ceiling of the central area was replaced with vaulted raked timber. The external appearance of the building was altered by the addition of brick fins along the Donaldson street and side façades, and the removal of the "cupola" and its replacement with a smaller spire surmounted by a cross.
In March 1985, the listed building was formally re-dedicated as a Church under the name St Mary's but in 2002, following the incorporation of the Limestone Avenue building into Merici College, the listed building's name reverted to St Patrick's and it has continued in use as a Church under that name to the present.
In addition to regular Sunday and weekday masses for the general Catholic community, the listed building was used by a number of ethnic Catholic communities when Mass was able to be celebrated in their own language. In particular, the German-speaking Catholics began worshipping there in 1971 and have continued to do so ever since. A German-speaking priest was appointed in 1965 as pastor to that community by the Katholischen Auslands Sekretariat in Bonn, Germany. In 1970, after a period of worship at Narrabundah and other venues, the German-speaking Catholics moved their activities to St Patrick's, initially in the Assembly Hall, but from 1974 in the listed building. The St Bonifatius Gemeinde - Canberra (St Boniface Community - Canberra) was incorporated in 1970 and acquired a house in Donaldson Street which has since been used as the residence of the German-speaking pastor.
In 1989, the Assembly Hall and Infants school buildings were destroyed by fire and the following year, the Church erected Favier House (which houses the Archdiocesan offices and other Church facilities) on the site of the former Infants building and playground, with the remainder of the playground area landscaped and developed for car parking. About two years ago, access to the car parking area from Donaldson Street was restricted by the installation of a boom gate. Part of block 7 section 57 (including the listed building and its surroundings) remains in this configuration, both at the time of its entry to the Heritage Register and its consideration by this Tribunal.
In 2011, the ACT Department of Housing and Community Services, who were planning the redevelopment of the Allawah, Bega and Currong (ABC) Flats which are adjacent to block 7, section 57, approached the Church authorities about the possibility of incorporating the site of the listed building into their redevelopment plans. As the Church was planning to redevelop its facilities at Manuka for which finance would be required, preliminary discussions were held and the Church indicated that any agreement to inclusion of the listed building in the redevelopment would have to include provision of a dedicated Roman Catholic Church on the site. However, Monsignor Woods, the Administrator of the Archdiocese, in his oral evidence advised the Tribunal that the price for the site offered by the Government was inadequate. He stated that the Church had no plans to sell or demolish the listed building at this time and was considering other means of financing the Manuka redevelopment. He agreed that if the listed building remained on the Heritage Register it would probably continue to be used as a Church.

[65]

The task of this Tribunal is to review the decision of the Council to enter St Patrick's Church and its curtilage of land onto the Heritage Register. In doing so, we "stand in the shoes" of the Council and may consider any evidence before us, whether or not it was available to the Council at the time it made the decision. The decision to enter a place on the Register is governed by section 40 of the Heritage Act, which first requires the Council (and hence this Tribunal) to be satisfied on "reasonable grounds" (section 40 (2)(b)) that it has "heritage significance". A place has "heritage significance" if it satisfies one or more of the twelve Criteria set out in section 10 [criteria (a) to (l)] and in this case, there was no dispute that nine of those criteria were not satisfied.
The Council found, on the evidence available to it, that criteria (c) and (h) were met. It also considered criterion (d) but on the available evidence concluded that the place did not meet it. At the commencement of the hearing, the Tribunal queried with the parties the available evidence in relation to criterion (d). The applicant's counsel suggested that the applicant was not prepared for, and was in some way taken by surprise by, the suggestion that criterion (d) might be relevant; the respondent's counsel indicted that the respondent did not propose to call expert evidence on that point and did not rely on criterion (d) as a basis for registration. The applicant and respondent were united in suggesting that the Tribunal need not spend much time considering this criteria.
The Tribunal was not persuaded by these submissions. An application for review of a decision to put a place or object on the Heritage Register is not an application inter partes. It is long-established that the role of the Tribunal in an application for review is not limited to the grounds advanced by either the applicant or respondent, but requires the Tribunal to properly consider all relevant material and reach the correct and preferable decision. Accordingly, the Tribunal in this matter took the view that it should consider the evidence available to it in relation to each of the potential criteria, irrespective of the views of the applicant and respondent.
The relevance of criterion (d) was noted in the first experts report in the matter, prepared by Philip Leeson Architects in June 2010. Despite the failure of any of the involved parties to commission the requisite research into this aspect, or obtain expert opinion on the point, it has at all times clearly been a live issue and requires proper consideration by this Tribunal. Accordingly, the Tribunal felt obliged to consider the correctness of this conclusion in the light of the evidence before it and submissions made about it.
- (a) The findings of the original decision-maker
The essential elements that led to the Council's conclusions are set out in the section of the Register Entry headed "Assessment Against the Heritage Significance Criteria" as follows. In relation to criterion (c) it reads:

[83]

There is no doubt that the listed building was constructed to serve the purposes of both a school and a Church and that for a number of years up to about 1954 both uses continued in the one building. Although designed to provide five classrooms it appears that only four were used as such. The accordion partition separating the westernmost room nearest the altar was kept closed, so that weekday morning Mass could be held there without difficulty (according to the evidence of a former pupil recorded by Dr Marsden). After the Assembly Hall was built, from 1954 until 1974 the listed building was used only as a school, with school day and Sunday Mass being celebrated in a small dedicated chapel area at one end of the Assembly Hall, apparently to avoid the inconvenience of rearranging the school rooms. Following closure of the school, from 1974 to the present day, the Church function resumed in the listed building, as the Assembly Hall was leased to the School without Walls.
Mr Meani contended that St Patrick's had been continuously used as a Church from 1935 until the present day, despite the fact that when the Memorial Church on Limestone Avenue was built, the listed building was used only as a school and that any Masses were said in the Assembly Hall. He relied on a briefing paper prepared for Father John Armstrong for the 60th anniversary of the listed building for evidence of this, but examination of that document (Exhibit 39) does not support his contention.
The evidence of former pupils recorded by Dr Marsden was that the original seating in the building was "ingeniously designed" school desks with seats that could be converted into pews for Church services by tipping the desk-tops up and over to form backs for the pews. This task was done by pupils at the end of the school week and the accordion type partitions were folded back (later by adult parishioners) to open up the whole building for Sunday Mass. The classrooms were restored each Sunday evening ready for school the following day.
The Council appears to have concluded that the combination of Church and school was a peculiarly Catholic tradition that is in danger of dying out, though the first paragraph of the citation quoted above is not explicit on this point. Nevertheless, it was submitted by Dr Jarvis that the Catholic parish school-church is a form of educational and religious tradition. He argued that "tradition" means "a long established and generally accepted practice or custom" and that the Catholic parish school, as it was practised in Australia, answers the description of tradition, whether one calls it a religious or an educational one. He submitted that by the end of the 19th century, the practice of building parish schools, even prior to a Church, was so widespread and so well recognised as essential to a Catholic parish, as to warrant this description.
Dr Jarvis relied on Brother Ronald Fogarty's Catholic Education in Australia 1806-1950 to establish that the Catholic combined church-school differed from the approach adopted by other denominations or in other countries such as the USA. The other denominations generally did not adopt dual-purpose buildings but rather schools in a separate building, such as at St John's Anglican Church in Reid. He rejected the proposition that because Church schools occurred in many parts of New South Wales this one could not be significant. In his submission, the place is important evidence of the tradition in Canberra, even if the place is but one of a number of examples of it.
Dr Jarvis extended his argument by submitting that the listed building was also a distinctive form of dual land-use, of dual-function design of a building and of co-location of functions each of which also brought it within the ambit of Criterion (c), but he did not enlarge on these propositions.
As to whether it was in danger of being lost, he submitted that it was, because the conditions that produced it (of government policy, population and finance) had gone. Since the late 1950s the Catholic school system had received government funding, removing a financial constraint that had existed for about 80 years, while education had also changed with the advent of separate infants, primary and secondary schools. Further, the administration of Catholic education had changed after the war from a parish-based one to a centralised administration. In addition, there were many schools financed and controlled by religious orders. Under these conditions, the dual-purpose parish school became outmoded.
Dr Jarvis also submitted that the place was of exceptional interest because the Catholic parish school represented a distinctive mode of school development adopted by the Catholic Church in colonial and pre-war Australia, which had a far-reaching influence on the education of a significant proportion of Australians and on the development of the Catholic Church in Australia. For these reasons, he contended that this mode of school development was highly valued by the Church itself, by Church historians and admired by Church authorities in Rome, citing Fogarty at pp 304-5 as authority.
In order to satisfy the Criterion, the place has also to be important as evidence of these attributes. Dr Jarvis put forward four grounds for regarding it as such. First, he said, it is the only remaining pre-war evidence of the tradition, design etc of the Catholic parish school in Canberra, or at least on the north side of the city. Second, it is evidence of a good quality, because a considerable part of the original school building is intact, despite modification in 1983.
Third, the former school building, despite those modifications, still retains features associated with the dual-function of the parish school. He relied on the evidence of Mr Duncan Marshall, a qualified architect, who had undertaken an inspection of the listed building. Mr Marshall had said that "the issue of integrity was important in assessing the heritage value of a place. However, integrity must be evaluated with regard to the claimed values....If a claim is made that a place is important because of evidence of evolution over time, then integrity should be assessed in terms of surviving evidence of that evolution". He concluded that "in the context of the actual heritage values determined by the Council, the integrity of the building is sufficient to justify registration."
Dr Jarvis observed that the external elevation from the public domain is un-Churchlike; it retains the appearance of a school with large school-like windows and the locations of the filled-in exit doors are still visible on the rear elevation. It still has the special recesses for the folding partitions that created the classrooms, most of the double roof beams from which the partitions were suspended, the nave, sacristy and confessional (in part), and at either end of the interior, two spaces that were created by the partitions are intact with the original low ceilings.
In his submission the importance of the remaining fabric was not diminished because the building may no longer be clearly "read" as a school as Dr Lamb had suggested. He noted that the parish had included some materials in the form of a plaque and photographs in the foyer to mark the building's past as a school but agreed that more might be done in this respect. However, he contended that this was a matter of presentation and appreciation of the place and did not go to the quality of the fabric itself.
Fourth, Dr Jarvis submitted that the listed building is important evidence because of its association with the Braddon residential precinct that it was built to serve. It was one of the only privately built and designed buildings in the area at the time (1920s-1935) but its materials, design and siting were apparently intended to complement the government residential development around it.
Dr Jarvis rejected suggestions that the importance of St Patrick's was diminished because there were earlier Catholic schools in the district. He noted that St Francis Xavier's at Ginninderra had ceased as a school in 1881 and in any case was outside the boundaries of the city as it was in 1935, as was the Tuggeranong Catholic Church, built in 1902 but without a school. While it is true that St Christopher's school was built in 1928 and functioned as church-school for nine years, there is no evidence that it had any special design features to serve these dual functions. It was designed as a two storey school and while a hall on the ground floor was used for Church purposes, it was always intended that a Church would be built nearby (though this was delayed by the Depression until 1939).
In his submission, St Patrick's was the first Catholic parish school-church in Canberra that was designed for this dual purpose and the listed building is the only remaining evidence of it.
Mr Walker began by observing that it was for the Council to satisfy the Tribunal that the listed building warrants heritage registration, not for the applicant to show that it does not. Furthermore, the Tribunal needs to be "reasonably satisfied" and that "reasonable satisfaction" should not be produced by "inexact proofs, indefinite testimony or indirect inferences" (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362). He contended that the evidence of the original church-school use of the listed building is now so altered that it can no longer be regarded as "important as evidence".
He submitted that while it was entirely appropriate for an historical building to be accompanied by documentary aides or narration to understand what had previously occurred at the site, the requirement of the criterion is for the listed building to be "important as evidence" and able to demonstrate what previously took place. The fact that there are a handful of alcoves (where air conditioning units are now placed) and one or two otherwise nondescript rooms (the exact use of which is unknown) is insufficient evidence of the former school-church dual function and the Catholic parish school. Mr Walker also referred to the evidence of Mr Marshall who had stated that the only remaining evidence of the previous use as a school was the alcoves into which the partition doors retracted. Mr Walker observed that there was no remaining evidence of the doors themselves as they had been removed and there was no remaining evidence of the tracks or guides as they too had been removed. Further, only half of the alcoves remain, two having been demolished as part of the 1983 renovations and two now being covered with wood as part of the sacristy. In his submission, the traces of the earlier school-church use are so faint that the listed building is not important evidence of that earlier dual use.
Further, even if the listed building is important as evidence, that evidence must be of a "distinctive" way of life, taste, tradition, religion, land use, custom, process, design or function and, in his submission, that required comparative analysis -"distinctive as compared to what"? He contended that the Council had not undertaken a comparative analysis of other parish schools or ways of life that existed at the same time as St Patrick's in order to determine whether St Patrick's was distinctive or not as part of its initial decision and had provided no such evidence to the Tribunal. The listed building was not the first or last manifestation of a Catholic parish school in the ACT, nor can it be regarded as the best. The evidence of Dr Lamb and Monsignor Woods showed that there were a number of Catholic parish schools constructed before the listed building and there were a number constructed after it, some of which are better examples. In fact combined church-schools were still being built, for example Holy Spirit Church and School at Amaroo.
He submitted that the Australian Catholic parish school is not a distinctively Australian or ACT tradition and even if it is, it is still being practised and is not in danger of being lost, nor is this mode of school development of exceptional interest. In contrast, it is very common place and not noteworthy.
Of the parties joined, neither Mr Hosking nor Mr Kane made any submissions about the listed building being evidence of its former dual use as a Church and school. Mr Meani however stressed that the listed building was the only surviving example of a church-school on the north side of Canberra that was still being used. He further submitted that the majority of the existing building was original despite the changes made in 1983 which blended in with the 1930s style of the original building and opined that it would not be possible for anyone to tell the difference without being told so. He did not however comment on those elements of the building which are remnants of its school function.

[84]

Dr Marden considered that between the late 1920s and the 1960s there was a distinctive way of life in Canberra when the population comprised mainly newcomers living in pioneering suburbs with few facilities and services, especially in the more sparsely-developed North Canberra . She said that this distinctive way of life was because many of Canberra's newcomers - and Catholic parishioners - were housed in barracks, camps and hostels, which were an integral part of Canberra life for single men and women from around 1910 to the 1960s. She considered that this distinctive way of life was no longer practised and that St Patrick's was important evidence of this as it was central to the Catholic way of life in those years that was of necessity focussed on Church and school. St Patrick's was a focal point for incoming Catholic residents, including those housed in the many nearby government hostels, as it was the only Catholic Church and school in north and central Canberra between 1935 and the 1950s when that way of life was typical.
However, under cross examination Dr Marsden conceded that this distinctive way of life did not arise because the city was divided north and south. Throughout the hearing there was discussion as to whether, during the years prior to Lake Burley Griffin being constructed, suburban Canberra was divided into two parts - "north" and "south" separated by the Molonglo River and its flood plain. Opinions differed as to whether there was a social divide between those living in the suburbs to the north of the river and those living to the south although it was generally accepted that the residential areas in north Canberra were more likely to be occupied by tradespersons and lower ranked public servants.
While there was clearly a physical divide in the form of the river, which at times of flood made communication between the two parts of the growing city difficult, if not impossible, for short periods, it is also clear from the evidence that, as far as the Catholic Church was concerned, this was no great impediment. The Good Samaritan Sisters lived in the Convent at Manuka and travelled each day to and from the school on foot, while the priests lived in the Presbytery to the north of the river and provided religious services to south side residents.
Mr Walker submitted that the way of life in Catholic communities in the "pre-war" period, in which the school building was the location of most community social activity, was not distinctive or of special interest and even if it was, the listed building is not important as evidence of this way of life. He noted that Dr Lamb had given evidence of what might constitute a community that had a distinctive way of life, citing the Indian community at Woolgoolga NSW and Chinatown in Sydney. In both cases the distinctiveness was perfectly clear, evident in the architectural fabric, landscape design etc. Dr Lamb had said he did not see that in the case of St Patrick's.
As to those public servants who came to Canberra in the 1950s and 1960s and lived in hostels and barracks, they may have had a distinctive way of life but the evidence of that is to be found in the hostels or barracks, not the listed building. It was not the Canberra Catholic community, as a subset of the public servants, that had a distinctive way of life. During that period, the listed building did not hold any religious services and any Catholic community connection would have been with the Assembly Hall and/or the War Memorial Church on Limestone Avenue.
Neither Dr Jarvis nor Mr Hosking made any submissions on this issue. Mr Meani focussed mainly on the importance of the listed building as the only surviving example of a church-school building on the north side of Canberra, but also submitted that "St Patrick's (ie the listed building) stands as a memorial to our traditions and way of life. A memorial must be retained so that its history can continue and we can celebrate more milestones like the 80th anniversary and the centenary in 2035. History can't be rebuilt - it must be developed over time and maintained for our future". In his opinion, the applicant wanted to sell the site to developers who would demolish the building. Even if a new place of worship was built, he contended that it would be without pews, an altar, confessionals, tabernacle, sacristy or other Roman Catholic Church "trappings". It would not be acceptable to the parishioners and they would not attend services there. Thus the traditions and functions that existed since 1935 will be lost forever.
Mr Kane did make submissions about the importance of the listed building to the hostel dwelling community, but saw it as a development phase in the life of the capital, which will be dealt with under criterion 10(h) below.

[89]

Quite apart from the evidence of the listed building's value to the general parishioners, evidence was give of its special value to the German speaking Catholic community by Mrs Margaret Bunk who had been a member of the German Catholic St Boniface Community in Canberra since 1965 and has been its Secretary while her husband was the Community's Honorary Treasurer since 1984. She said that the German-speaking Catholics began worshiping at St Patrick's in 1970 and in the listed building after the school closed in 1973 and had continued to do so ever since (apart from a few months when the building was being renovated and the Assembly Hall was used). She and her husband had donated a specially carved crucifix to the Church on behalf of the Bunk family which is still there, while the German Catholic Community contributed $8,000 towards the renovations of the listed building in 1984 and regularly took care of the repairs to the Church and maintenance of the grounds.
Further evidence was given by Father Edward Evans, Chaplain or Pastor to the German Catholic community since 1993, his salary being paid by the Katholische Auslands Secretariat ("KAS"), the Catholic Pastoral Service to Germans living overseas. His evidence was that St Patrick's was first used by the German Catholic community in 1971 and had been used continuously since that date, Mass being said every Sunday at 10.00 am and on special feast days. Since 1983, the German-speaking priests and missionaries who serviced the Church have lived at 18 Donaldson Street, Braddon, which was purchased with the help of KAS by the Catholic St Boniface Community.
Father Evans said that the German Catholic community did not regard St Patrick's as a temporary Church, otherwise they would not have given the expensive donations and stained glass windows to it, but would have looked around for a permanent Church. He stated that the Church was in good shape, well maintained and well frequented, with average attendances of 25 to 30 on regular Sundays and 40 to 50 on feast days. He stressed that St Patrick's was significant because of its central location - that was why it was chosen - and that people came from all over Canberra and as far away as Yass to attend the German Masses. He also said that since the car park had been closed, funerals could not be held at the listed building on week-days because of inadequate parking availability and were now held elsewhere. He observed that there were few weddings and baptisms now because of the age of the German speaking community, though he did say that the number of attendees at Mass was being maintained.
He rejected the suggestion that the German Catholic community could continue in another Church, saying "We simply have our own Church. Why should we go to another Church? We built it, we remained there for 40 years or more. Why must we be transferred? It's a living, vibrant Church, a good community... We will hang on to our Church until we are driven out". However, he could not predict its future viability, having regard to the ageing population and absence of job opportunities in Canberra for the younger people.
No submissions were made by the parties joined in support of the proposition that criterion 10(d) had been met, other than a statement by Mr Meani that it was "very significant for the different ethnic groups who celebrated important religious ceremonies and attended masses in the listed building". However, Dr Jarvis made some comments on the issue in order to assist the Tribunal. In his submission, it would be beyond dispute that the German-speaking Catholics are a "cultural group". He said the fact that the group highly values the listed building was evidenced by their personal contributions to it and by the financial support of the KAS for its refurbishment. They had been there for a long time, had regularly reported to the German Church authorities and had purchased the Donaldson Street house to provide a convenient residence for the German speaking priests. However, he also suggested that it is a group that is dying out and that the proper place to recognise this was under criterion 10(h).
He also drew the Tribunal's attention to the decision in Taglietti and Ors v ACT Heritage Council (2011) ACAT 14 of 18 February 2011 in which the Tribunal had not accepted that the John Flynn Community Group Inc was a "cultural group" with a "strong or special" social association with the former Flynn Primary School.
Mr Walker submitted that the Church in which ethnic communities worship is primarily determined by the ethnic community's priest and the evidence showed that where an ethnic community's priest moved from one Church to another, the ethnic community would follow, as the German-speaking Catholics had done when the first German priest, Father Kraemer, lived at Narrabundah and held services at St Benedict's Church in that suburb. He said it was very common for ethnic Catholic communities to move from one Church to another as the evidence of Father Kennedy and Monsignor Woods demonstrated.
In his submission, the German Catholic community was no different and could attend St Brigid's Church at Dickson. There was nothing intrinsic about the listed building to the German Catholic community, instead he contended that it worshipped there purely as a matter of convenience as a result of the purchase of the Donaldson Street house for the German Chaplain in 1983. Consequently he submitted that it did not meet criterion 10(d).

[92]

It was suggested by Dr Marsden (later supported by Mr Meani and Mr Hosking) that the listed building had a strong or special association with Father Patrick Haydon who was a person of some significance in local history and that this also satisfied criterion 10(h). There is no dispute that Father Patrick Haydon conceived the need for a Catholic school to serve the Catholic community on the north side of the city in 1926 and was active in securing the site for the church-school in 1934. In 1928, he was appointed as the first parish priest of the newly created Parish of Canberra. In 1941 he was appointed prothonotary apostolic with the title Monsignor and remained active in Canberra until his untimely death in 1949. During his time in Canberra he was responsible for initiating the building of six Church buildings in the ACT including the original Presbytery (now the Archbishop's House), the School, Church (later Cathedral) and Convent complex at St Christopher's Manuka, St Therese's Church, The Causeway (since demolished) and St Patrick's Church-School at Braddon. Father Haydon was an active participant at the laying of the foundation stone of the listed building in 1935 and visited it regularly during his lifetime.
Father Brian Maher described the remaining buildings as "the visible legacy of Father Haydon in the capital city" in his book Planting the Celtic Cross (p 352) but in evidence given to the Tribunal, Father Maher said that he did not regard the listed building as having played a significant or important role in relation to the Archdiocese or the development of Canberra nor was there any reference to it in his book, other than in the list of Church buildings for which Father Haydon was responsible.
Dr Jarvis submitted that the listed building did have a strong association with Father Haydon who was a person of considerable importance because of his role in the development of Catholic education and the Church in early Canberra. His association with the school began when it was merely a proposal expressed by him, continued during the stage of determining its location, then its construction and opening, and during its first 14 years of operation including its first expansion in 1945-46. Further, when the listed building was opened it was described as "the consummation of his long cherished ideal". Father Haydon had described it in his speech at the laying of the foundation stone in the following words (referring to the Book of Revelations, Chapter 12, Verse 14) under the heading "The Wings of the Eagle"

[94]

Dr Jarvis submitted that these references served to emphasise that Father Haydon had proposed the establishment of two schools and he saw the building of St Patrick's as completion of this scheme.
Mr Walker submitted that the respondent's evidence did not establish that the connection between the listed building and Father Haydon was "strong" or "special". He quoted Professor Mackay's view, that Father Haydon, being the parish priest of Canberra at the time the listed building was constructed, would have had to sign off on the building application and give a speech at its opening, but this did not necessarily create a strong or special association. He noted that Father Haydon's entry in the Australian Dictionary of Biography made no reference to the listed building, although it did refer to St Christopher's Church at Manuka and observed that Father Haydon was commemorated by the naming of the Haydon Catholic Centre in Manuka (which incorporates the old St Christopher's school) as well as Haydon Drive in Bruce.
Mr Walker submitted that the Council's officers had not discovered any particular association with Father Haydon when they first examined the listed building for registration, but only did so after receiving Dr Marsden's Report in 2013 and this does not suggest that the association was either strong or special. Instead he relied on the evidence of Professor Mackay who had said that "on any such place it's possible to do research and establish associations, because every place has associations with the context in which they occur, with the people who have built, used them, but the test is the strong or special, and this is not evidence of meeting that test".
Mr Walker also relied on Professor Mackay's evidence about the kinds of associations between places and persons that would amount to strong or significant. He had cited as examples the house in which Ethel Turner wrote "Seven Little Australians" and a Convent associated with St Mary McKillop as well as the cemetery where her remains were buried for a time and where she is still commemorated.
In relation to Dr Jarvis's reference to the "Wings of the Eagle" speech, Mr Walker recalled that Professor Mackay had said "It's a speech that features rich imagery, with what one would expect from a priest, a biblical connection back to Christ, and, as one has expected, it's reported in a Catholic newsletter as is happening with powerful sermons today and has happened throughout the history of the published word or newsletters in Australia. You know, I mean it's normal. It does clearly indicate that Father Haydon felt the two schools were important".

[96]

The Council found that Patrick's had special associations with educational and religious development in Canberra from 1935, particularly in regard to Church and community responses to the provision of education and the role that the Church took in forging new communities during the growth of the national capital. It also found that it had special associations with the unique initial pattern of school development within the ACT, the north side of the city mirroring the south side in the development of a state school followed by a Church school nearby - St Christopher's following Telopea Park School; St Patrick's following Ainslie Public School. However the Council's citation did not specify precisely what the development or cultural phase was that it had in mind. Some evidence before the Tribunal suggested that the pairing of public and Catholic schools in close proximity to each other to serve the two separated parts of the developing city was the development that the Council had principally in mind.
Dr Jarvis submitted that the development of the first two public and first two Catholic schools was an event or development of at least some importance in the history of the city. He drew attention to the initial proposal of Father Haydon, that the first school should be as close as possible to Telopea Park School and that it was "imperative" to have a second school in Ainslie within a few years, but observed that Father Haydon was not consciously seeking to make a parallel pattern with public school development. Instead, by providing an opportunity for a Catholic education in both parts of the city, he was merely giving effect to Catholic principles and its policy of separate school development that had developed in the colonial period and he was also responding to the expected growth of the north side of the city.
He noted that the city was planned at its outset by Walter Burley Griffin to have two areas of development on the north and south sides of the future lake and that this physical division was exacerbated by the flooding from time to time of the land between.
Dr Jarvis observed that Federal officials at the time supported the location of the school development partly because they were concerned to avoid an imbalance of population between the north and south parts of the city. He drew attention to a minute dated 15 February 1935 from the Assistant Secretary of the Department of the Interior to the Secretary in which it was written that "numbers of people, who previously resided in the northern suburbs, have transferred to the southern side in order that their children may attend the Convent School".
In his view, St Patrick's school should be heritage registered as were the other three schools existing at that time - Telopea Park, St Christopher's and Ainslie Public.
Mr Walker submitted that there was no unique pattern of school development within the ACT. The fact that the listed building was located close to Ainslie Public School was not as a result of any Church or government policy, but was the result of mere convenience such as common bus routes - the evidence did not permit any more precise finding. He relied on the evidence of Professor Mackay, who had rejected the suggestion that the Minute from the Assistant Secretary cited by Dr Jarvis showed that there was a policy of "pairing" schools. On the contrary, in Professor Mackay's view it was simply saying that there needed to be another school in the northern location. In Mr Walker's submission, in a developing city divided by a river running through it, it was hardly surprising that at some stage there would be a state school and a Catholic school on either side of the river, nor is it surprising that Catholic schools would be located close to established bus routes and other amenities. Mr Walker also observed that in the Heritage Register citations for St Christopher's or Ainslie or Telopea Park, there was no mention of pairing with the other school, and suggested that this might have been expected if they were examples of such a policy. Further, the Duntroon School was established in 1935 at Pialligo but it was not twinned with another (Catholic) school.

[100]

In its assessment against criterion 10(h), the Council recognised the role that St Patrick's played in forging new communities during the growth of the national capital, particularly for those without family or community ties, but did not identify the "hostel phase" as being of particular significance. However, Mr Kane placed some importance on the part that St Patrick's Church played in meeting the needs of the many single Catholic persons who moved to Canberra during the post-war years and lived in the hostels provided by the Commonwealth as short term accommodation.
He relied partly on his own experience as a newly arrived public servant in 1961 who had worshipped at St Patrick's since then, was actively involved with the St Vincent de Paul Society there, and six of his seven children had been baptised there. In 1961, he had lived at the Hotel Acton and recalled that Masses held in the Assembly Hall at that time were very well attended.
Mr Kane also relied on the evidence of Canberra historian Mr Alan Foskett, who had written a number of historical accounts of the hostels. Mr Foskett informed the Tribunal that in north Canberra there were 12 hostels, mostly housing young adults living away from home for the first time in fairly basic accommodation. He estimated that hostel dwellers comprised some 20% of the population at their peak in 1951. These hostels were within easy walking or cycling distance of a number of Churches (St John's Anglican in Reid; Reid Methodist; the Church of Christ in Limestone Avenue; the Presbyterian Church and the Salvation Army in Braddon; and St Patrick's in Braddon) so they provided part of the "social and survival network" for many hostel dwellers particularly through their youth organisations, such as the Catholic Marian Club (formed in 1954).
Mr Foskett thought that St Patrick's put more effort into their youth organisation than some of the other Churches, but he was unable to provide any empirical evidence, relying on conversations he had had with hostel dwellers when compiling his histories. However, his direct experience was of living for three years (1949-1951) in Reid House and while resident there he had not had any connection with St Patrick's. He was not able to give any definite information on the proportion of hostel residents who were Catholics, though he estimated that it would have been greater than the 30% that Catholics made up of the population generally because of the high proportion of immigrant men from predominantly Catholic countries.
Nor was Mr Foskett able to say whether the social activities conducted under the auspices of the Marian Club took place in St Patrick's or in its Assembly Hall. Mr Kane's evidence was that most of the Marian Club's social events took place in Mulwala Hostel, at Corroboree Park Hall, Ainslie and at other venues.
Dr Jarvis made no submissions about the significance of the listed place during the "hostel phase" of Canberra's development. Mr Walker submitted that the evidence indicated that to the extent that the listed building played a role in the social activities of hostel dwellers, it was no different to the other Churches at the time.

[101]

Before turning to consideration of the issues identified above, we will address some preliminary questions.
First, it was put to the Tribunal by Dr Jarvis that it should give considerable weight to the decision of the Council, because it comprised persons appointed for their expertise in a range of subjects related to the assessment of heritage significance. This submission might have been more persuasive had the abundant documents and testimony before the Tribunal provided evidence that the Council had, itself, in any substantive or meaningful way considered the experts reports, made the findings asserted in the Heritage Register entry, or contributed substantially to the wording of the entry. While the T-Docs and ST-Docs contained evidence that some Council members had interacted with some Heritage Unit staff and with each other over particular aspects of the wording of the entry, Dr Pearson was unable to satisfy us that Council members as a whole had actively participated in the preparation of the entry and the Minutes of the Council meeting at which the decision was taken record nothing of any discussion.
In contrast, Mr Walker drew attention to a Queensland case (Lonie v Brisbane City Council & Ors [1998] QPELR 209) in which Skoien SJDC, having heard evidence from some architects and planners in regard to the heritage value of a house, commented that while they gave valuable assistance, the question he had to decide in a nutshell was "what would the average person walking the street and looking about, with a perception which falls somewhere between that of a Ph D in Architectural History on the one hand and that of a Philistine on the other" think of the street and building in question. Mr Walker submitted that while experts can help the public to see things that they otherwise would not see, their view can also become rarefied and lead to them identifying things as important that only an expert would see. Mr Walker urged the Tribunal to adopt the approach taken in Lonie.
This Tribunal rejects both propositions. The Tribunal is charged with reviewing the decision to list St Patrick's Church de novo as if it were the Council, under the specific legislation in force in the Territory. It must interpret the provisions of the Heritage Act relevant to registering a place in the light of all the evidence before it including that of relevant experts, some of whom considered the building as not worthy of registration. It is not required by the legislation to meet some sort of "Clapham Omnibus" test - to put itself in the place of the "common man or woman" but to apply its judgement as to whether or not to register the place, which can only occur if the Tribunal is satisfied on reasonable grounds that the place has heritage significance, and that means whether any one or more of the criteria are met.
Second, Mr Walker suggested that, although there was no provision in the Heritage Act requiring the Tribunal to consider the specific economic effects of heritage registration on the applicant and while there had been no evidence on the specific economic effects of this registration, this did not mean that the Tribunal should be blind to the general fact that the power to register a heritage place could have very substantial ramifications for the property owner. He suggested that the impact that a finding of "heritage significance" in this case would have on the ability of the applicant to develop a prime city block of land and the consequent effect on the value of that land, was an example of this effect. He said that where a finding could have grave consequences, the law accepts that this affects the level of satisfaction that a finder of fact must have before any finding of fact is made. The Tribunal had to be satisfied on "reasonable grounds" as to its heritage significance and he drew attention to the principle in Briginshaw v Briginshaw (1938) CLR 336, at 361-362, per Dixon J who had said that reasonable satisfaction "should not be produced by inexact proofs, indefinite testimony or indirect references."
The Tribunal accepts this general proposition, but observes that the heritage criteria are couched in very general terms with an abundance of qualifying adjectives which do not easily lend themselves to the degree of precision specified by Dixon J in Briginshaw. In heritage matters, there is very likely to be a degree of imprecision in assessing whether the heritage criteria are satisfied. One should also keep in mind that a finding of heritage significance does not necessarily result in a decision to register the place or object, although clearly the objects of the Heritage Act and requirements of section 3 in relation to the exercise of functions will most often produce that result. It seems to this Tribunal that the tension between economic effects and heritage preservation in individual cases may be better addressed by exercising the discretion whether or not to enter an object or place on the Heritage Register, rather than by setting the standard of satisfaction for individual heritage significance criteria at an impracticably high level, or artificially constraining the natural meaning of key terms in the legislation such as "important", "strong" and "special".

[105]

It seems clear to us from this, that the policy intention was to build a Church later, not to maintain the combined church-schools on a permanent basis.
St Patrick's was not designed from the outset to be used as both school and Church, as the description of the building by its architect, Louis P Burns, which appeared in the Catholic Newspaper "The Angelus" in March 1935 makes clear. There it is described as a school, with the accordion doors to create five classrooms. When the doors were folded back, they were to provide an unobstructed space suitable for parish functions (including dances). There is no mention of it also being designed for Church purposes, although from the very beginning it was used for the celebration of Mass for both the school pupils and the wider Catholic community of North Canberra. That, however, was only until the larger St Patrick's War Memorial Church was built on Limestone Avenue. Mass resumed in the listed building only after the closure of the school in 1973 and its refurbishment for Church purposes in 1974.
Apart from St Patrick's, there were a number of combined church-school buildings built in the Canberra District between 1872 (St Francis Xavier, Ginninderra) and 1972 (St Matthew's, Page) all of which functioned as a Church for between 11 and 52 years until a separate Church was dedicated (Exhibit 16). More recently, Holy Spirit Church at Amaroo has been constructed as a combined church-school building with the school function taking place behind a sliding door that can be opened for larger Church functions.
Further, there were differences of view as to whether the listed building was, by itself, important as evidence of this combined church-school function. Mr Marshall, who was the only architect witness to have inspected the building internally prior to the view, was able to identify the six surviving wall niches into which the partitions were folded back as the only evidence for the partitioning, but which was supported by the location of the exposed roof beams from which the partitions were hung, centred on the wall niches. He said that none of the partitioning, tracks or guides survive. While he concluded that overall the integrity of the building was sufficient to justify registration, he was not able to say that it provided good evidence of the combined church-school function.
A heritage assessment of the listed building was undertaken in June 2010 by Phillip Leeson Architects for Purdon Associates on behalf of the Department of Disability, Housing and Community Services, including an assessment of significance in relation to the heritage criteria under the Heritage Act. That report concluded that St Patrick's was important as the location of a distinctive way of life and of religious community traditions and practices, and that the building provided evidence of changes to these ways of life , and some of which are no longer practised in the same way, some of which have disappeared. However, the distinctive way of life referred to was the relationship between the Church and school and community, through the strong ties that were forged by Catholic newcomers, not the dual-purpose church-school building as such. Some other expert witnesses such as Dr Sandy Blair, Professor Richard Mackay, and Dr Richard Lamb, while not architects, were all experienced in heritage assessment and none of them considered the building as being important as evidence of the dual purpose function. For example, Dr Blair wrote "When compared with other surviving school complexes of the Federal Capital era, the paucity of the remaining historical features at St Patrick's Church is very evident. At the St Christopher's Precinct...are highly intact buildings and plantings which reflect the different historical phases in Catholic education and worship from 1828 (sic =1928) until the present".
By contrast, Dr Susan Marsden, also an experienced historian and heritage consultant, considered that the building's design was of exceptional interest and that its design was distinctive by neatly combining several functions (Church, school and parish community facility) in a building much smaller than the first church school (St Christopher's) and far more modest than St Christopher's Church. However, she did not identify any particular elements of the listed building which were evidence of the combined church-school function other than to agree under cross examination that the evidence of its school functions was confined to the "slots in the rafters, the slots in the wall for the accordion doors ...and big windows in some offices" as well as a plaque marking its rededication as a Church in 1985, which contains reference to its origins as a church-school.
There was evidence before the Tribunal that the dual function design is currently used in school buildings, despite the factors which originally triggered this approach having been lost.
Having considered all these views, the Tribunal is not satisfied that the listed building can be considered as "important evidence of a tradition, use or design (the Catholic combined church-school) which is no longer practised or in danger of being lost" and to that extent criterion 10(c) is not met.

[111]

The decision is binding on the Tribunal and it was not suggested by any party that the listed building was valued by the ACT community as a whole. However, there are two possible "cultural groups" that might highly value the listed building for strong or special religious or spiritual associations, these being the general Catholic community of north Canberra and the German Catholic community.
There was no strong evidence that the listed building was highly valued by the general Catholic community. While Mr Kane as a long-standing parishioner and Mr Meani as Chairman of the Parish Council clearly placed high value on it and apparently so did the Parish Council members, we had little evidence of the value placed on it by the Catholic community in general. While there were many representations made, most of these were a signed "form letter" to which little weight can be given. It is also questionable whether the general Catholic community would constitute a "cultural group" within the meaning of those words in the Heritage Act.
The Tribunal, in Taglietti & Ors turned its mind to the meaning of the phrase, referring to the definitions of "culture" and "cultural" accepted in Truswell and Minister for Communication and the Arts (1996) 42 ALD 275, but did not reach any definitive view, other than that the evidence before it was insufficient to allow a conclusion that either the Royal Australian Institute of Architects or the National Trust (ACT) was a "cultural group" for the purposes of this criterion. In considering this on appeal in John Flynn Community Group , Burns J concluded that as ACAT had not made a "finding" on the matter, there was no grounds for appeal, because whether there was "insufficient evidence" was a question of fact, not of law.
The Tribunal also addressed the meaning of "cultural group" in Petterson v ACT Heritage Council & Commissioner for Housing [2010] ACAT 28 and in that case, concluded that the term should not be read too broadly and that the Corroboree Park local community could not be regarded as a "cultural group" within the meaning of the Heritage Act as it appeared to be no more than a group of people living in the vicinity that was not constituted in any way.
We do not believe there is sufficient evidence before us to conclude that the general Catholic community is a "cultural group". However, the same cannot be said for the German Catholic community. Here the evidence is of a close knit group of German-speaking Catholics who, while not formally constituted, have worshipped continuously at St Patrick's for over 40 years and who regard it as "their" Church. They have contributed significantly to the listed building's refurbishment, to its internal furnishing, and to the maintenance of the building and grounds over the years. They have had their own German-appointed Priest (Pastor or Chaplain) to say Mass each Sunday in German and to conduct other important religious events such as Baptisms, Marriages and Funerals in German as required. They are not geographically confined to north Canberra, but come from all parts, including as far away as Yass.
The definitions of "culture" and "cultural' accepted in Truswell were the concepts centred on refinement of mind, taste and manners, but the Australian Oxford Dictionary includes additional meanings for "culture" including "the customs, civilisation and achievements of a particular time or people". Having regard to this meaning, we are satisfied that the German-speaking Catholics of the ACT can be regarded as "a cultural group".
The more difficult question to answer is whether the listed building is highly valued by them for spiritual and or religious associations. Father Evans' evidence was that for the German Catholic worshipers, St Patrick's was "a living, vibrant Church, a good community" but he agreed that its future was uncertain because of the age of many of the current members, the diminishing number of priests and the lack of opportunity for younger people in Canberra. He said "I cannot predict what is going to happen in 10 years, neither for myself or the Diocese". Apart from Father Evans, Mr Hosking and Mrs Bunt, no members of the German-speaking Catholic community gave evidence.
Mrs Bunt's evidence was mainly concerned with the history of the German-speaking Catholics in Canberra and how they came to be based at St Patrick's. Mr Hosking's evidence was that many of the German-speaking congregation lived alone and that St Patrick's Church allowed them to associate with people of their own language and background. He contended that if they are "put out on the street" these people would lead a life isolated in their own houses and this way of life would be lost. Mr Hosking accepted that the German speaking community could move to another Church if the disposal of the land on which the listed building stood was in the higher interests of the Church, but submitted that in this case there was no greater good and that its disposal would be contrary to canon law.
The evidence is that over the years, a variety of ethnic Catholic communities have worshipped at St Patrick's but have subsequently moved to other Catholic Churches, for reasons unknown. Mr Walker submitted that these congregations tended to follow the priest who said Mass in their language and that this was the experience of the German-speakers. They had originally gone to Narrabundah when Father Kraemer was saying Mass there, but began attending at St Patrick's when Father Kraemer chose to move there because it was more centrally located.
The evidence of Monsignor Woods was that the German Catholic community used St Patrick's by long-standing arrangements that had been agreed by then Archbishop Carrol (1983-2006) and that they had continued to do so as welcome guests, but there was no contractual arrangement allowing them use of St Patrick's. Many other ethnic communities heard Mass in their own language in various Churches around Canberra by arrangement with the Parish Priest and there was no reason why the German-speaking community could not move to another Church such as St Brigid's at Dickson. He observed that Father Evans occupied the Donaldson Street house which was close to St Patrick's and that was very convenient for him as he did not drive.
We are satisfied that the German-speaking Catholic community is a cultural group and that at least some of its members, including its Pastor, highly value the listed building as "their church" under a long-standing arrangement with the Archdiocese, but there is little evidence of support for its heritage listing from the majority of the German-speaking Catholic community. We are not persuaded that, if the circumstances required them to re-locate to another Church by agreement with the Parish Priest and if their Pastor was able to access that Church without difficulty, they would not move their services, their physical fittings, and their spiritual attachment, to that other Church as other ethnic communities have done. In other words, they would follow the German priest to wherever the German language Masses were said. Despite Father Evans' views, the Tribunal considers that if the listed building was to be demolished and a new development incorporating a Catholic Church built on the site, the community might resume services at the new Church.
Overall, we conclude that the evidence does not support the proposition that the listed building is highly valued by a cultural group for reasons of strong or special religious, spiritual, or cultural associations and, therefore, criterion 10(d) is not satisfied.

[123]

Having carefully reviewed the evidence before us and considered the meaning of the various criteria that are specified in the Heritage Act, any one of which needs to be satisfied to give a place heritage significance, we are unable to be reasonably satisfied that St Patrick's Church and its curtilage meets any of them. It follows that it is not open to the Tribunal to decide under subsection 40(1) to enter the listed building in the Register.
We realise that this decision will disappoint many people for whom St Patrick's Church is a very important part of their lives. It is in many ways a charming little Church and clearly serves a valuable purpose in providing opportunity for Catholic worship close to the City area - an area in which there is likely to be substantial population growth in the years ahead as a result of higher density residential development in the City itself and adjacent suburbs. That however, does not mean that the listed building satisfies any of the specific requirements of the various heritage criteria.
We also feel obliged to say that the proposed Register Entry prepared by the Council does not measure up to what we would expect of such an expert body. No-one reading it would have any clear understanding of the ways in which the listed building and its curtilage were seen to meet the two criteria that the Council considered it satisfied. It contains clear factual errors, already present in the first draft of the document in 2010 and never corrected despite expert consensus to the contrary.
In the event, our decision will mean that the proposed Entry will not at this time be finally placed in the Register. Should St Patrick's, at some future date, be renominated and subsequently approved for heritage registration on the basis of new evidence, we would expect the Council at that time to be much clearer in identifying any features of the place that satisfy one or other of the criteria.
We also take this opportunity to observe that the Notifiable Instrument 2012-377 indicates that the date of registration of the place is 19 July 2012, but given the explicit requirements of subsection 41(2) of the Heritage Act this cannot be the case. Section 41 of the Heritage Act prevents final registration occurring until after the conclusion of any appeal from the decision to register. However, section 42 requires the notice of the decision, issued within 10 days of the decision, to specify the register entry and date of registration. These requirements mirror those imposed on the notice of provisional registration issued under section 34, but are inapt in the context of a decision under section 40. It is surprising that this inappropriate wording in section 42 has not been rectified in the 9 years since the passage of the Heritage Act.