Last night the Appellant group decided not to take the fight against the Eastside Village development to the Supreme Court. This decision was based solely on finances, as despite our barrister giving us many reasons as to why the initial court decision was wrong, the costs of further legal action are prohibitive. To this end we are deeply disappointed, as our experience has been that the Planning and Environment Court process makes it extraordinary difficult for ordinary citizens to appeal against planning decisions made by their local councils. Without a significant financial backer, we just weren’t in the position to take on the financial risks considering that we have already spent $330,000 ($280,000 out of our own pockets and $50,000 from donations).
Over the past few weeks, we have lobbied our local State and Federal politicians, pleading with them to listen to the voices of their constituents over this issue and bring some political force to bear, but I’m afraid that our arguments have fallen on deaf ears.
The only glimmer of hope is that The Department of Transport and Main Roads must now sign off on the final intersection design at the corner of Cohoe and Herries Sts before the development goes ahead. Considering that on 25th October last year, when we met with the Director General of DTMR at the site and he told us, ‘that it was ridiculous’, we are hoping that the DTMR might still change its position and withdraw approval when it really sees what is at stake. The fact remains that if there is a serious vehicular or pedestrian accident as a result of the re-configuration of the intersection, the DTMR will be legally liable.
I need to add, that despite our decision not to proceed with a Supreme Court challenge, nothing has changed for us. All the reasons that drew us into the initial appeal remain the same and we remain very angry with the Toowoomba Regional Council for approving the development in the first place, when clearly it contravened the Town Plan and will result in significant noise and visual amenity impacts in a residential area. As well, we believe that DTMR has many questions to answer about why it supported an intersection design in the Court that allows for unprotected pedestrian access across two lanes of a national highway only 90 metres from the crest of the Toowoomba Range, as well as the likelihood of traffic congestion on Cohoe St and Herries Sts, especially given the extent of fog on at least 20 days each year.
We will maintain our organisation and website until the final legal bills are paid and the development commences. Meanwhile, many thanks for all your support over the past 18 months. We have done our best to stop this development – it was with heavy hearts that we made last night’s decision, but the financial risks were simply too great for us to bear alone.
If the development is built, the traffic implications (as presented to and accepted by the Court) will be as follows:
There will be traffic lights stopping the two east (Brisbane) bound lanes on Cohoe St.
There will be traffic lights controlling traffic in and out of Herries St (only a left turn out of Herries St will be allowed – as is the case at present).
The access from the eastern side of Herries St will be limited to a left turn into Cohoe St (the current access across Cohoe St and right will be blocked). There will be a consequent flow-on effect on traffic at the corner of James and Cohoe Sts – and when the traffic on Cohoe St is stopped at the traffic light, it will be very hard to turn right from James St to Cohoe St.
The emergency parking bay adjacent to the United Service station at the top of the Range will be removed and a new bay created on the left side of Cohoe St further to the south (between Herries and Ipswich Sts – necessitating an incursion onto the nature strip.
There will be a fenced pedestrian island in the centre of Cohoe St at the Herries St intersection and signalised pedestrian access for the two east bound lanes, but NO SAFE pedestrian access for the two west bound lanes.
A filter lane will be built on the western side of Cohoe St, necessitation an incursion onto the existing nature strip and possibly the footpath.
In Herries St, the residents opposite the development will find it very hard to access their driveways from the west and instead will have to drive right around the block and access them from Cohoe St
In peak periods, the traffic queuing in the west-bound filter lane waiting to turn right into Herries St, will overflow into the right hand lane of the Warrego Hwy, thus causing huge safety concerns. It will also merge into the traffic queuing to turn right into Margaret St from west-bound lanes of the Warrego Hwy.
Click on image for more detail
The sad news we have to report from today’s judgment is that our Appeal launched last February against the proposed Eastside Shopping Centre at the corner of Herries and Cohoes Sts, Toowoomba, was dismissed by His Honour Judge Stuart Durward SC in the Planning and Environment Court in Brisbane.
We don’t yet have the reasons for the Judgement, but when we do, we will communicate them via the website.
Some small consolation is that the Appeal succeeded in ensuring that there won’t be a full set of traffic lights at the corner of Cohoe and Herries Sts – contrary to the original plan passed by the DTMR and the Toowoomba Regional Council. However, we are still deeply disappointed at the position taken by the DTMR throughout the Appeal process in supporting any reconfiguration of the intersection of Cohoe and Herries Sts that will, as we see it, compromise both pedestrian and traffic safety.
Despite being bitterly disappointed with the decision, we have no regrets about our actions, and want to thank the hundreds of supporters who offered encouragement and financial assistance throughout the Appeal process.
The judgement is long and complex and it will take us all some time to work out the reasons the Court decided to approve the development despite the opposition to it, and the conflicts with the planning scheme – and whether there are grounds to Appeal the decision.
At last we have had news from our solicitors about an imminent judgement on our Appeal!
We were told on Wednesday, the 16th of April, that it will be delivered in the Planning and Environment Court in Brisbane one day during the week beginning 5th May. We don’t have the actual date yet, but at least we know it will be soon.
As soon as the judgement has been handed down, I will communicate the outcome through the media and our website. After that, our committee will meet to plan some kind of public gathering to thank all our supporters (and either commiserate or celebrate together!).
With many thanks for your ongoing support and patience.
By now, we had hoped that the judgement on our Appeal might have been delivered, but alas, there is no news as yet. Our solicitors have told me recently that there is no way we can ‘predict’ when the Judge might be ready, so we must continue to remain patient – it could be weeks or even months before we hear!
Meanwhile, we continue to watch with interest some of the decisions of the Toowoomba Regional Council, aware that other groups are trying to call the TRC to account as well as challenge some of its decisions. The problem is that once planning permission has been given to a development, the only way to stop it is a legal (and very costly) appeal. The TRC knows that few people have either the money or the stomach for such a fight, which gives it an extraordinary position of power when it comes to planning decisions.
The most effective thing ratepayers can do is campaign against prospective development applications before they are voted on by Council, and to that end, I commend to you the newly formed ‘Ratepayers’ Association’ led by Frank Ondrus. If it can establish a large email base, it would then be possible for 100s if not 1,000s of people to send submissions to the TRC objecting to development applications deemed unsuitable or unnecessary. Doubtless, there will be more said in the media about the Association and any public meetings it plans to hold, so watch out for such announcements.
Once we have a judgement in our Appeal, we still plan to hold a public function to thank our supporters, so details will be communicated via the website and email – it will be held on a Sunday afternoon in the gardens/Hall at St Luke’s Church.
Finally I can report that the Trial is over – final submissions were heard a week ago and the Judge has now retired to consider his verdict. Out solicitors will contact us the day before the judgement is delivered to let us know it is happening (they won’t know until the day before!). After that, I shall write an update for all our supporters and of course, the media will be contacted with the news.
To date, the cost of the whole Appeal process has been far more than we ever imagined. In fact, our legal and expert bills have amounted to $280,000 and there will be one small bill to come for December. Thankfully, we received $50,000 from public donations to help pay all the expert and legal fees, but the rest has come from the pockets of several of the Appellants and members of the FOTTR Committee. Without their generosity, we could not have continued with the Appeal, so I am deeply grateful to those who have made considerable personal sacrifices to ensure that the bills were paid.
The committee members have discussed holding some kind of community gathering (once the verdict is known) to thank our supporters, and am pleased to say that St Luke’s Church will be happy to host us there. We will let you know details via the website and the media, and hope that whether we win or lose, you might come and join us on that occasion (likely to be sometime in January). Regardless of the decision, at the very least we have stopped a full set of traffic lights being built at the top of the Range!
With every good wish to you and your families for Christmas and the New Year,
20th November: the Court completed hearing the evidence in our Appeal and now the barristers will prepare their final submissions. It is hoped that the Judge will be available to hear these submissions on Friday 6th December, but that won’t be confirmed until the day before, as it depends on the progress of other Court hearings at which he is presiding. If the presentation of the submissions can’t take place on 6th December, the barristers will most likely have to wait until the New Year. In any case, it is highly unlikely that the Judge will deliver his judgement until late January or February.
I cannot comment on any of the Court proceedings, but very generally, we feel that the way our evidence was presented gave veracity to the arguments we have mounted over this past year, and reflected the public sentiment about this development. We are very thankful to our legal team for all their hard work and expert guidance over these past months, and high praise must also go the members of the FOTTR Committee for giving so much of their time and energy to expedite the Appeal.
It has been encouraging too, to see the ongoing media interest in our campaign and for the way that members of various media organisations have been keen to report it.
Now we must wait until ‘judgement day’ and hope that in the New Year we will be able to deliver good news to our supporters.
By the end of this whole campaign, the legal and expert fees will have amounted to nearly $250,000. We have not paid our Trial bill so any contributions would be welcome – see our website fottr.org for details.
It is salutary to realise that the ratepayers of Toowoomba and surrounds would have spent an equal amount defending the decision to approve the development! To that end, it was very disappointing that none of the Councillors attended the Court in Brisbane to hear the evidence being presented.
With very best wishes and thanks for your ongoing support.
After nearly five days in Court, our case was adjourned yesterday as there was still evidence to be heard.
As well, the barristers need time to give their summaries. One more day is needed for the Hearing and it is likely that the Court will resume for this day on November 19th but that is yet to be confirmed.
I cannot comment on the evidence, but suffice to say that our legal team presented our arguments as strongly as possible and we hope that it will be sufficient to convince the Judge. After all the evidence has been heard, the Judge will retire to consider all the arguments; he may make a judgement before Christmas but that is not guaranteed, so we may be waiting for some weeks to know the verdict.
For your information, the legal bill for October (trial preparation) was just under $46,000!!! Donations are still very much welcome. We will also have much more to pay for the Trial. Thus far, all these costs are being borne by the members of the FOTTR committee.
Our day in court is imminent with the hearing scheduled to begin in the Planning and Environment Court on Monday 4th November and continuing for five days. Each day, proceedings will begin at 10.00am and end between 4.00pm-5.00pm. Visitors are welcome in the Court room, but seating is limited so if you intend to come, the advice is to arrive early. Our hearing will take place at the Law Courts at 415 George St, Brisbane
Last week all the legal evidence was exchanged by the solicitors, and the Judge and barristers made a site visit this week to inspect area.
The Judge is unlikely to deliver his verdict for some weeks so we will be waiting on ‘tenterhooks’ until that time!
We are thankful for the excellent coverage given to our campaign by the local media, and deeply appreciate the ongoing support of hundreds of ratepayers.
To date, we have spent $130,000 on the Appeal, and the estimated cost of the Trial is $80,000-$100,000, so we are continuing to appeal to our supporters for financial help as we embark on this final stage of our campaign.
Our Appeal Hearing in the Planning and Environment Court is only a month away (begins on 4th November) and meanwhile our legal team is busy preparing the brief for our barrister.
Some good news last week was that the Transport Workers’ Union came out publicly in support of our campaign. Mr Scott Connolly, the TWU Assistant State Secretary and I did some joint media interviews adjacent to the Herries/Cohoe St.s intersection, in which we emphasised the concerns we have about motorist and pedestrian safety. Mr Connolly pointed out the particular dangers of the planned reconfiguration of the intersection (with the likely increase in pedestrians) for heavy vehicle operators. He was also deeply concerned about the impact of the no-stopping signs that will be required on both sides of Cohoe St, as there will be no safe place for drivers to stop after ascending the Range (in the event for example of an engine problem or load shift).
It is not too late to voice your concerns to the media in the form of a letter to the Editor of the Chronicle or an SMS so if you have not yet done so, I encourage you to write and express your views.
While we have been encouraged and humbled by the extent of financial support we have received for our campaign, we expect the Trial to cost a further $80,000, and would of course really appreciate further financial support from those who are in a position to help us.
Donations can be made by cheque (made out to The Friends of the Toowoomba Range) and posted to PO Box 11336, Centenary Heights, QLD, 4350 or by direct deposit to our account at The Heritage Bank, The Range, Toowoomba – BSB No 638080 Acc No. 12971111 S24