The developers who demolished the Corkman Irish Pub in Carlton have now had their Magistrates Court fines for both the demolition (brought by the City of Melbourne and State Government in Melbourne Magistrates Court), and the dumping of asbestos in a paddock in Cairnlea (brought by the EPA in Sunshine Magistrates Court) halved.
Let’s not gloss over the gravity of these actions. First, the demolition of one of Carlton’s oldest remaining heritage listed buildings under the noses of Council inspectors demanding the process cease, then the dumping of dangerous waste in a highly populated suburban neighbourhood, are both heinous transgressions of our accepted laws.
The Corkman developers were represented by a very well known SC (Barrister) who is a leading legal advisor to many developers. The County Court Judge can only be guided by the letter of the law, not emotion. As such considering all factors, he has halved the fine.
This case demonstrates dramatically it is now time for a complete restructuring and for newer more appropriate regulations to be enacted and scheduled to protect Heritage buildings and overlays.
It is also time for Government to intervene in this case. It is high time that an appropriate precedent was set to ensure such vandalism never happens again without major punitive consequences. It would be appropriate in this case for the Government to enforce a compulsory acquisition of the property, preferably at Market Value pre demolition, deducting all fines and costs from the sale price. Alternatively, purchase the vacant land at land value as of the time of demolition, deduct all fines and costs from the sale price then build a memorial park to remind all that such travesties will not ever be tolerated again.
The next move on the part of Minister Wynne and the Planning Department will be immensely important. The Corkman Developers are significantly ‘cashed up’ and demonstrate a propensity to utilise legal subterfuge to slow down and subvert any punitive actions. If the Government can make amendments to its planning schedule and strategy to suit locations such as Booroondara, what’s to stop them putting a similar amendment through on this issue? – The ‘Corkman Amendment’.
Whatever happens, it’s imperative that these Developers are significantly financially disadvantaged by any sanctions applied by Government. It is ‘the’ test case as to the credibility of Richard Wynne as a Minister and the ability of his planning Department to control rampant uncontrolled development that is entirely at the expense of our Heritage.
Here is the article from Friday’s Age…
Fines cut in half for developers who demolished Corkman pub
The developers who illegally knocked down Carlton’s Corkman hotel have had their penalties for the demolition cut in half by the County Court from almost $2 million to $1.1 million.
The state opposition has demanded the Andrews government compulsorily acquire the site and also appeal Friday’s decision. Planning spokesman Tim Smith said the decision let “these cowboy developers get away with the heist of the century”.
Raman Shaqiri and Stefce Kutlesovski in October 2016 bowled over the historic Corkman Irish Pub without planning or building permission.
The pair bought the pub for $4.7 million in 2015. Savills state director Clinton Baxter said the empty site was now worth between $8 million and $10 million.
Having knocked down 80 per cent of the 159-year-old pub on a Saturday in October 2016, they were ordered to cease demolition that night by Melbourne City Council. They ignored the orders and finished off demolition works on Sunday.
“The community was outraged by the audacious manner in which the hotel was demolished,” Judge Trevor Wraight said in his ruling on Friday morning.
“They made a commercial calculation,” Judge Wraight said, which would allow them to build a 12-storey tower on the site once the historic pub was gone.
“They weighed up the potential penalties … with the potential profit that would result from development of the site, before going ahead,” he said.
“Indeed, despite the litigation, delay, and any loss of reputation, ultimately, the development will go ahead.”
He found the men had displayed no remorse for the loss of heritage on Carlton.
The pair were appealing fines levelled against them by the magistrates in Sunshine and Melbourne courts; they said the amounts they had been fined were too severe.
Judge Wraight agreed that the fines against the men by the Sunshine Magistrates Court, over charges brought by the Environment Protection Authority on asbestos dumping, had been “excessive”. So too were fines levelled against the men over charges brought against them by the Victorian Building Authority and Melbourne City Council on the illegal demolition.
He reduced the financial penalties from just under $2 million to $1.1 million.
The Environment Protection Authority, the Victorian Building Authority and Melbourne City Council – which had separately brought prosecutions against the two developers and their company – all said they were extremely disappointed by the decision.
Opposition planning spokesman Tim Smith called on the Andrews government to “appeal this decision which sends entirely the wrong message to the industry”.
He said Planning Minister Richard Wynne must also respond to calls from the Opposition and Melbourne University urban geographer Dr Kate Shaw to compulsorily acquire the Corkman site.
Mr Smith said this would mean “these cowboys do not profit from their unlawful behaviour”.
Mr Wynne has previously said compulsory acquisition would require the government to buy the site “at the market rate for its highest and best use” – which would see “taxpayer’s money to pay top dollar directly to these developers, which is hardly a just outcome”.
Both Dr Shaw and Mr Smith question whether this is in fact true.
Two weeks after the Corkman was demolished, Mr Wynne launched legal proceedings to force Shaqiri and Kutlesovski to “replicate the site immediately prior to demolition” if they wanted to redevelop.
“Any application for a permit for buildings and works on the site will require the restoration and reconstruction of the [pub] in its entirety in the form it was in prior to demolition,” he said.
But in May this year, Mr Wynne backed down and allowed the site to be developed with a tower on it up to 12 levels high, in return for the remaining wreckage there being cleared and turned temporarily into a park.
On Friday, Mr Wynne labelled Shaqiri and Kutlesovski “cowboy developers” and said the demolition had been “unforgivable and the community has a right to be outraged by it”.
He said the government would review the court decision and look “at what options are available to government”.
He said the government would not compulsorily acquire the site because it “would mean using taxpayer’s money to pay top dollar directly to the developers, which is hardly a just outcome”.
In 2017 in direct response to the Corkman demolition, Mr Wynne brought in tough new laws ramping up penalties for anyone who demolishes a heritage property.
Shaqiri, 37, was not in court on Friday; he did not attend last month’s court hearing because he was in Spain getting married. Kutlesovski, 43, declined to comment after the court case finished.
From the ABC…
During sentencing, Judge Wraight acknowledged the public anger the demolition had caused, but said it was up to Parliament to increase the penalties available.
“The community was outraged at the audacious manner in which the hotel was demolished by the owners without any consultation with the community,” Judge Wraight told the court.
“It may be that the community — and possibly the sentencing magistrates in this instance — regard the available maximum penalties in relation to this conduct as inadequate.
“However, unless and until Parliament increases the penalties available, courts are bound by the prescribed penalty and must sentence in accordance with the proper sentencing principle.”
Developers made ‘commercial calculation’
Judge Wraight said he found there was little evidence of genuine remorse on behalf of Mr Shaqiri and Mr Kutlesovski.
“It was their decision alone to demolish the hotel,” Judge Wraight said.
“They made a commercial calculation and weighed up the potential penalties that they would face as a result of the deliberate breach of the law, with the potential profit that would result from development of the site, before going ahead.
“They clearly made that decision with forethought and planning as they needed to organise large machinery and employees to hastily bring down the hotel over the weekend.”
The chief executive of the Victorian Building Authority, Sue Eddy, said the authority was extremely disappointed in the outcome and the decision did not lessen the developers’ guilt.
“[The developers] did not have a building permit, had not applied for a building permit, and took it upon themselves to carry out dangerous demolition work without any regard to the state and local laws,” she said.
“With the building industry currently under intense scrutiny, it is vitally important to send a clear signal to all builders and developers that the VBA — and the community — will not tolerate illegal building work of any kind.”
“The VBA is concerned that today’s outcome promotes non-compliance as an optional cost of doing business for those who flout the rules.”
The Environment Protection Authority (EPA) fined the developers $7,500 in 2016, after it discovered some of the rubble had been found at a construction site at Cairnlea, in Melbourne’s north-west.
The developers were told they could not remove the debris because it contained asbestos and were ordered to cover it.
The chief executive of the EPA, Cathy Wilkinson, said she was disappointed with the reduced penalty.
“We believed this was a clear-cut case that showed blatant disregard for the environment and the community and deserved a substantial penalty,” she said in a statement.
“As the Judge found, this was a case where experienced developers knew better and showed little remorse for their actions and the community are right to feel aggrieved.”
Planning Minister Richard Wynne has said the Andrews Government would be reviewing the court decision and would consider changes to the law.
“Let’s make no mistake here, what these cowboy developers did is unforgivable and the community is outraged by it. If the current legislation does not meet community expectations we will strengthen it.”
Amen to that. Don’t leave it too long!