Opinion: Rare win for couple opposing Brisbane development

THEY say you can’t fight City Hall, and taking it on is a daunting task. But there are encouraging signs the little guy can sometimes have a win, writes Mike O’Connor.

CONVENTIONAL wisdom states that you can’t fight City Hall.

Why bother? The System is stacked against you, the city council always gets its own way and, by fair means or foul, it will grind you down.

Put simply, Mr and Mrs Average have no chance against The System.

But The System is supposed to give everyone a fair go.

Surely one of the reasons we have a system is to protect the rights of Mr and Mrs Average?

If, for example, they wanted to object to a development proposal that they felt was going to adversely impact their quality of life and which they saw as manifestly unjust, they should be able to state their case and get a fair hearing before an independent arbiter.

Leaving for a moment the garlanded halls of Utopia and re-entering the real world, let me show how Mr and Mrs Average have no chance against The System.

We live in an apartment tower, behind which is a vacant block that everyone knew was going to be developed. On this block the Brisbane City Council’s neighbourhood plan allowed for a single tower to be built, which was fine.

Then another neighbourhood plan appeared. Suddenly, the council had decided that two towers were appropriate. Had the size of the block miraculously doubled?

No. The only thing that had doubled was the amount of money that the developer now stood to make from building on the site.

How fortuitous for the developer who had won the real estate equivalent of Gold Lotto.

Closer inspection of the proposal showed the development would also push the regulatory envelope in terms of its footprint, setback and proximity to adjacent buildings.

The council, Mr and Mrs Average will find, is extremely accommodating when it comes to developers. Neighbourhood plans are mere aspirations, to be ignored when it suits.

They amount to little more than political window dressing, mere facades behind which the real deals are cut.

You can lodge an objection, of course, which will be considered by the council. No prizes for guessing how often the council tosses out an approval that it has already indicated it supports.

A three-tower project in Toowong hit a snag when a couple took their objections to the development to the Supreme Court and won..

All is not lost, however, for Mr and Mrs Average can then take their case to the Planning and Environment Court where the matter will be heard by a judge.

There is, alas, one small catch. To run an action in this court will cost you between $160,000 and $200,000, this being the amount required to engage solicitors, barristers and expert witnesses.

The other side will have a phalanx of lawyers and witnesses to prosecute its case.

If you don’t have the same, you’ve got no hope.

Should you take your case to the Planning and Environment Court and not be satisfied with the judge’s decision, you can then appeal to the Supreme Court.

This means getting lawyered-up again and inserting your arms, already up to their elbows, even more deeply into your fiscal pockets.

It can be done. A couple who objected to a three-tower development on the old ABC site at Toowong, which was given the nod by the Brisbane City Council and the Planning and Environment Court, recently took the matter to the Supreme Court.

Supreme Court Justice Philip McMurdo granted their appeal and sent the case back to the Planning and Environment Court for further determination.

In doing so, he found Planning and Environment Court Judge Rackemann had formed his “own judgment” without recognising the relevance of the planning scheme, which determined “both a community need and an economic need for the development” must exist if the height was to exceed regulations.

“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,” he said.

It was a rare win made possible by the fact that the people who appealed the council and the court’s decision were extremely wealthy and could afford to take on The System.

But how are Mr and Mrs Average going to fight City Hall?

They’re not, of course. They’re going to throw up their hands in despair and walk away, which is exactly what the council and the developers are hoping they will do.

How do I know all this? Because a number residents affected by the proposed development in our neighbourhood have joined forces and raised $160,000 to fund a court action opposing it.

Can you fight City Hall?

We’ll see.