By Kathleen Ready, Dowd&Co
A salutary lesson in “be careful what you wish for” was dealt to the West End community with the announcement on 7 November 2016 by Jackie Trad, Deputy Premier and Minister for infrastructure, Local Government and Planning of her decision on the call-in of the controversial West Village development in West End.
In a trade-off for a loss of site coverage from 95% to 80%, ostensibly to provide more public open space, the Deputy Premier and Minister approved taller buildings up to 22 storeys in an area where even the 15 storey “code assessable” height limit is not accepted by many within the local community.
Her call in of the development was aimed to put to an end to significant public opposition providing certainty for this very large development site, which is within her own electorate.
Her decision has not been well received amongst the local West End community who attempted to stage a temporary occupation of the controversial site two days after Ms Trad’s announcement approving the development. Ms Trad (pictured) may well face a backlash when she seeks the support of this same community at the next State election with increasing local support for Green’s candidates.
The ABSOE site is, by any measure, a premium development site. It is a former light industrial site of significant size in an inner ring suburb ripe for redevelopment, which is supported at both local and state level, through the Council’s planning scheme and the South East Queensland Regional Plan respectively.
The development had been the subject of sustained community campaigning since it was first mooted in 2014, and was very much a local issue in the 2016 Brisbane City Council election, which saw Jonathan Sri, take a seat in Council for the Greens.
When the development application for the site was originally submitted in May 2015, the developers proposed residential towers of between 15 and 25 storeys with a significant retail and commercial component. During the application process, Council’s assessment team sought changes to the application to bring it more in line with the South Brisbane Riverside Neighborhood Plan Code which imposed a 15 storey height limit on the development.
The developers came back to Council with a proposal for seven 15 storey towers with up to 1350 apartments and 18 500m2 of retail and commercial space including a 4500m2 supermarket. The development represented 95% site cover and 5% public open space.
The local campaign against the development was hard fought and vocal calling for lowering the heights of the towers, a reduction in site cover, more open space, the provision of community facilities and affordable housing and raising concerns about the demand the development would put on local infrastructure. A concerted effort was made through public submissions to put these concerns before the Council during the public notification period for the development.
In May 2016, Council approved the controversial development. It is noted the approval is a preliminary approval, a form of “master plan” overriding the planning scheme in certain respects and did not authorise development to occur.
In June 2016, local activist group, the West End Community Association commenced an appeal in the Planning and Environment Court against the Council’s decision, in accordance with its rights as a submitter under the Sustainable Planning Act 2009.
Shortly after the appeal was commenced, concerned that Council had “ignored the needs and interests of ordinary residents” Councilor Sri submitted a voluminous request to the Minister, asking her to “call-in” the development.
The Minister issued a proposed call-in notice on 27 July 2016. Her action was met with criticism from the Council and peak development groups such as the Property Council of Australia as a threat undermining the approval process and putting in jeopardy some 3340 jobs to be created by the project.
Councilor Sri and the local residents on the other hand applauded the proposed step, seeing the call-in, if it came to pass, as a “huge win” for the community and a chance to “get the development right”.
On 14 September 2016, after receiving over 700 submissions, the Minister exercised her discretion and called the development in citing a number of “state interests” including the potential impact of the development on the state economy, the impact the development would have on meeting the Brisbane dwelling targets in the Regional Plan and “ensuring an effective, efficient and accountable development assessment system”.
Assuring those who were critical of her actions, the Minister stated she would be assessing the development on its planning merits.
The call-in effectively killed off the appeal which had been progressing before the Court and had at the time of the call-in reached the critical stage where the joint meetings of the experts engaged by the parties were underway.
In planning appeals, the joint meetings process has the effect of narrowing issues between the parties to the appeal and sometimes results in a redesign or proposal to compromise critical elements of a development.
The call-in was claimed by some as a win for people power and the community and denounced by others as a disappointing politically driven subversion of the planning process.
The developers officially said they were looking forward to working with Ms Trad in her consideration of the developmentThe West End community rallied again and made submissions about their views for the ABSOE site, as did the developer.
And, two months later?A new version of the West Village was revealed. The development is now approved for a maximum height of 22 storeys and a maximum site coverage of 80%. The conditions limit the developer to 1250 apartments, requiring a mix of 1, 2 and 3 bedroom options. Public open space is now 20%; a child care centre is required; community space is to be provided and a cultural strategy will provide public art installations.
The decision to allow an increase in height is the trade-off for the increase in public open space – a very good outcome for the developers of the site.
But what about those who called for the call-in? Did they get what they wished for?The answer must be a resounding “no”. The concessions are considered tokenistic and insufficient; the decision does not address key community concerns about height, affordable housing and overdevelopment.
Importantly, there is no appeal from the Minister’s decision and the call-in itself stopped all other appeal rights for the community about the development. The development approval resulting from the call-in is what it is, and the community’s chance to oppose it through the planning process has been stopped.
The dissatisfaction within the community is palpable; the bickering between Ms Trad and Mr Sri is being played out publicly online.
Would a more palatable result for the community have been achieved through the Court process? Although we shall never know, at least the West End Community Association would have had its “day in court” and been able to test the evidence and put forward its own views in that impartial arena.
Without suggesting there was any impropriety in Ms Trad’s actions or her consideration of the development, the call-in of a development within her own electorate, especially one with such high profile, raises the question of whether the Minister ought to have stood aside from the decision making process, or entered the fray at all.
It is perhaps the most tragic irony that in taking steps to “ensure an effective, efficient and accountable development assessment system” the Minister’s actions have resulted, at least amongst the West End public, with faith in the planning process at an all time low.
Sometimes, you really do have to be careful what you wish for.
Kathleen is a Senior Partner for Dowd&Co and practises in all areas of property law including regularly advising on and appearing in Planning and Environment Court and Land Court matters. Kathleen has particular expertise in the area of planning and environment law, compensation of compulsory acquisition, contaminated land, resumption, statutory valuation and land tax assessment and related matters.
