LAWYER'S OPINION: Questions need answering on Jewel ruling
THE NewsMail (April 18) is right that the Planning Minister Cameron Dick's approval of Jewel raises questions.
As there presently is no roof top bar anywhere in or near Bargara, how can it be claimed there is no demand for the one proposed by Jewel?
The extract of the Foresight report released by the minister's department does not answer this question. Why isn't the full report being released?
Why was it not released for public comment before the minister made his decision?
In relation to height, the minister relied on two other reports, one from his departmental officers and another from a Brisbane firm called Diecke Richards.
Neither has been made public and they are not on the departmental website.
Why were they not made available for public comment before the minister made his decision?
By not releasing the reports on which he based his decision, and gagging the reports' authors so they cannot speak to the public, the government looks secretive and cagey.
This is not transparency.
It is also patronising. We are grown-ups and this is not a totalitarian state where decision makers get to say what we can and cannot know.
Taxpayer dollars paid for those reports so they are not the minister's personal property.
The minister says Jewel's application was code assessable, that the council correctly treated it as such and it was not correct that the Jewel project should have been publicly notified.
The minister in fact found no wrongdoing by our council. None at all.
So those who criticised the council for not following the rules were wrong.
This false allegation was widely made, and repeated over and over by Jewel's opponents and was the main reason for public bitterness towards the project and the developer, and the minister's intervention.
How many of Jewel's opponents actually read Jewel's application, or the Town Plan?
From their comments, very few indeed.
Their opposition was uninformed.
For example, none ever acknowledged that the Town Plan does actually allow buildings above five/six storeys and 20 metres.
None of them acknowledged that most of Jewel's proposal was only three and five storeys, that the part of the project above six storeys was very small indeed, less than 18 per cent, and that compared to other buildings Jewel's had much less building bulk. None admitted that the Jewel site is significantly lower than other unit buildings and unit sites along the Esplanade.
Our Town Plan says buildings should be of medium-rise, which generally means up to nine storeys, with appropriate scale and character, so each of these matters is relevant to an assessment under our Town Plan whether to allow in excess of 20m. Were they duly considered by the minister?
The department's published responses to the comments says the department agreed with the concern that "the building will be visible above the tree lines" but this is not listed by the Town Plan as a relevant criteria.
Another of the department's responses says it agrees that the building should be "consistent with the five storeys maximum mentioned in the Town Plan" but the Town Plan does not say five storeys is a maximum.
This departmental response shows the department has treated an Acceptable Outcome in the Town Plan as if it is a restrictive height limit, which it is not.
It is one thing to be opposed to buildings above a particular height, but if the Town Plan allows higher buildings, which it does, that is the law and everyone is bound to follow it.
As the reports on which the minister relied have not been made public, we don't know if they properly applied the Town Plan and whether therefore the minister followed the rules in our current Town Plan.
Do these reports in fact say that nine storeys was ok?
It is interesting that the minister considers it necessary to introduce further "height standards" in a Temporary Planning Instrument to override our current Town Plan.
If our council did not follow the rules, it could be taken to court. That is not the case with the minister. His decision cannot be appealed.
The minister says he acted to protect the local turtle population by managing light emissions and the height of new developments but he doesn't explain why the lighting controls he imposed on the six level building cannot be applied to a nine storey building.
And this is what his department said about the turtles: "studies have proven that turtles regularly nest on Bargara Beach. If eggs are not relocated, hatchlings born on Bargara Beach reportedly have a very high mortality rate."
We all know that turtle eggs are being relocated from Bargara beach and have been for years so where is the problem?
Factually, there never was one, and no building of any height, let alone Jewel's nine storeys ever posed any threat to the turtles.
How could they when the eggs are being relocated?
Deletion of the retail and roof top bar means long-term employment opportunities for locals have been lost.
What right do decision makers in Brisbane have to deny jobs to our locals?
Minister Dick did not stand for election here and he did not get our approval to prevent employment here.
The roof top bar would have been a valuable addition to our local tourist facilities.
Council spokesperson Ross Somerfield points out that the minister's approval does not include the extensive foreshore works worth several hundred thousand dollars which were to be paid for by Jewel in the council conditions.
This is another lost community benefit.
Councillor Greg Barnes argues in his NewsMail (April 20) piece that this lost community benefit is the developer's fault, however, it would not have been lost if the minister had not intervened or if he had adopted the same condition which council imposed.
Blame for its omission from the minister's approval conditions plainly lies with the minister and his department, not the developer.
No other councillor is espousing Mr Barnes' views.
With the loss of a unique tourist facility, long-term employment opportunities abandoned and several hundred thousand dollars of community works thrown away, the question is - who negotiated the better development outcome for Bargara, council or the minister?
Although he does not take responsibility for the outcome, even Mr Barnes acknowledges that the community is the real loser from the minister's intervention.
With the legal protection that his decision cannot be challenged, the minister has given the naysayers what they wanted - three storeys knocked off the project - but without access to all the information the minister relied upon, how can we be confident that his decision is fair and just and that our Town Plan, which was approved by his department after consultations with the public, has been properly followed?
At least with council we have the power of our vote to express our displeasure.
The only way we can stop what has happened recurring is to clearly tell the minister that we do not appreciate his intervention in our local affairs. That includes his Temporary Planning Instrument.