A three-year long battle to curtail a development comprising three high rise towers and 555 units, in Brisbane’s riverside suburb of Toowong has ended with a significant decision in the Queensland Supreme Court.
The Queensland Supreme Court has upheld a community objection to a development which breached the conditions of the prescribed local planning scheme.
Kate Peta Bell, neighbouring resident to the proposed development of the former Australian Broadcasting Commission site at Toowong, appealed a decision of the Planning and Environment Court, which upheld Brisbane City Councils’ approval of the “champagne flute” development.
While the decision turned on an interpretation of the repealed Sustainable Planning Act (2009), the current Planning Act (2016) is predicated on locally developed planning schemes reflecting the strategic planning needs of the Community, so the decision may have a broader application for future developments.
Bell’s objections to the $430m development was that the three towers (two of height 24 stories and one of height 27 stories) were well above the 15 story limit prescribed in the Towong-Auchenflower Neighbourhood Plan (TANP).
In the decision at first instance, Judge Rackemann of the Planning and Environment Court dismissed Bell’s challenge to Brisbane City Council’s approval of the development, finding there were sufficient public interest grounds to approve the development, notwithstanding the conflict with the TANP.
However, on appeal, Justices Sofronoff, Philippides and McMurdo found the original decision was affected by errors of law, which warranted granting leave to appeal and allowing the appeal to stand.
Significantly the appeal decision found that there is public interest in upholding “obedience to planning laws”, and that it is not for the decision maker to second guess the public interest in what is in a planning scheme.
The appeal decision additionally found that the “balancing exercise” Judge Rackemann had undertaken when considering economic and social need had no basis in law, and that the Judge substituted his personal views of the public interest for that which was expressed in the Scheme.
The EDO welcomes the decision as it demonstrates the importance of local planning schemes to protecting the unique strategic planning outcomes of communities. Under the Planning Act 2016, communities have a say in the development and amendment of local planning schemes.