University of Queensland v Brisbane City Council & CBUS
Property Brisbane Pty Ltd  QPEC 35.
Recently, Judge William Everson rejected the University of
Queensland's (UQ) application in the Planning and Environment
Court of Queensland, relating to CBUS Property's (CBUS) $375
million high density, multi-unit residential building opposite
heritage-listed Customs House in Queen Street.
The high profile development has been the centre of a public
campaign to have it scrapped, given its proximity to Customs House.
Before the court, the two critical issues were:
Whether the delegate of Brisbane City Council (BCC) fell in to
jurisdictional error and;
Whether BCC failed to properly assess the development
UQ alleged that the delegate for the BCC had no authority to
approve the application as being code assessable. The original
proposal lodged required impact assessment. Whilst impact
assessment had resulted in the redevelopment being declined, an
amended proposal was lodged as code assessable, which meant that it
could be approved without public submissions. Specifically, the
amended proposal took advantage of transferrable development
rights, which triggered code assessment procedures. CBUS held
development rights over the National Australia Bank Building on
Queen Street, but argued that the heritage-listing for that
building prevents them from being fully exercised. Transferrable
development provisions allowed CBUS to transfer the development
rights it otherwise would have had over the Queen Street building
to the new development. Such provisions allow, for example,
building height approval to be transferred between sites within the
same area of the city centre.
UQ claimed that the purpose of transferrable development rights
was to encourage the preservation of heritage listed sites, and
that allowing the transfer wrongly excluded the application from
impact assessment. This they saw as illegitimately barring them
from the right to challenge BCC's decision. The Court found
BCC's decision to be consistent with the relevant plans and not
in excess of jurisdiction. The Court held that the transfer,
together with the application assessment, was lawfully conducted
and BCC was not in error to conclude that the application was code
UQ further submitted to the Court that BCC did not consider the
relevant criteria in assessing the application, namely the
deleterious effect on the land adjourning Customs House. The court
found no merit to this assertion, holding that the BCC had
undertaken all necessary exercises in assessing and approving the
application. There was no specific requirement for the Council to
consider the effects on Customs House.
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guide to the subject matter. Specialist advice should be sought
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