“Champagne flutes” appeal

A very significant appeal for planning law in Queensland which emphasises the importance of development complying with the planning scheme.

The appeal concerned a large development at Toowong, an  inner-city suburb of Brisbane in Queensland.

The site formerly housed the ABC studios in Brisbane and was a prime location on Coronation Drive adjacent to the Brisbane River and minutes from the CBD.

The proposed development comprised a 555-unit riverside development with two 24 storey towers and one 27 storey tower.

The development’s official name was “Grace on Coronation” but the three towers were dubbed the “champagne flutes” by local residents in 2015. Here is a short film with 3D images of the proposed development by the project architects:

The proposal was very controversial and a principal objection from surrounding residents was that it did not comply with Brisbane City Council’s planning scheme, which only allowed for 15 storeys on the site.

Brisbane City Council (BCC) approved the development despite the inconsistency with its planning scheme.

A neighbouring resident, Kate Bell, appealed against BCC’s approval to the Planning and Environment.

Rackemann DCJ dismissed the appeal in 2017 following a 13 day hearing.

Mrs Bell sought leave to appeal against that decision to the Queensland Court of Appeal.

On 4 May 2018 the Court of Appeal granted leave to appeal and allowed the appeal on the basis that Rackemann DCJ had erred in law.

Central to the Court of Appeal’s unanimous reasoning was the importance of a proposed development complying with the planning scheme.

McMurdo JA (with whom Sofronoff P and Philippides JA agree) cited, at [66], a previous decision of Keane JA when a member of the Queensland Court of Appeal (he later was appointed to the High Court) in Clark v Cook Shire Council [2008] 1 Qd R 327 at 338; [2007] QCA 139 at [32]:

“The terms of a planning scheme inevitably reflect the striking of an overall balance, in the public interest, between the many interests potentially affected by the planning scheme.” (Emphasis added.)

McMurdo JA went on to state at [67]:

“[67] It is not for the decision maker (including in this context a Court), to gainsay the expression of what constitutes the public interest that is in a planning scheme. A decision maker might think that a limit of 15 storeys is too restrictive, and the public would be better served by a higher limit. But this decision maker must accept that it is in the public interest that the limit be 15 storeys, because that is what the planning scheme effectively provides.”

McMurdo JA allowed the appeal because of the trial judge’s error in failing to give proper consideration to the planning scheme:

“[77] At no point did the judge refer to the Scheme as an embodiment of what represented the public interest. The judge did not identify any way in which the Scheme’s specification of an acceptable height was to be disregarded as the result of an error in drafting, a change in relevant circumstances from those which existed when the Scheme was prepared or a failure of the Scheme to anticipate a need, in the public interest, for a development on this site with buildings of this height. In essence his Honour formed his own judgment of what was in the public interest without recognising the relevance of the Scheme to that question. The same may be said of his conclusion that the public interest justified the conflict between the decision and overall outcome (4)(h).

[78] Ultimately, by the judge substituting his own view of the public interest for that which was expressed in the Scheme, there was a legal error which affected his conclusion under s 326. Further, that was also affected by the legal error in the interpretation of overall outcome (3)(h).”

While the appeal concerned the repealed Sustainable Planning Act 2009 (Qld) (which has now been replaced by the Planning Act 2016 (Qld)), it emphasises a central tenant of planning law: the importance of proposed development complying with the planning scheme.

It also underlines the limitations on councils’ and the Planning and Environment Court’s discretion to approve development that does not comply with the planning scheme.

This decision is likely to reverberate in Queensland planning law for many years to come.