University of Queensland v Brisbane City Council & CBUS Property Brisbane Pty Ltd [2016] 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 application.

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 assessable.

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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