The ongoing battle to protect heritage architecture and our historic buildings from unscrupulous developers has seen two major issues come to a head this January. One is the removal of the planning loophole (Amendment 299) that enabled Heritage destruction in Booroondara. This amendment by the Victorian Government Planning Ministry permitted the destruction of buildings subject to interim Heritage Overlays in Booroondara, and was rescinded by the planning Minister on or about January 2nd 2020.
The second major issue is of course the Corkman Demolition and the ongoing refusal of the developers involved to co-operate or to fulfil the terms of agreement made with Government’s Planning Minister, Mr Richard Wynne, last year.
The Corkman Saga is becoming a major thorn in the side of the Minister and his department. Land value at the time of purchase in 2015 was assessed to be in line with the purchase price of $4.76 million. However as a Heritage listed building this essentially meant nothing until the developers ‘knocked the pub over’. Land value is now estimated to be $8 to $10 million. Its plain to see that with fines reduced to $1.1 million last year in the County Court, compulsory acquisition as being touted by the Victorian Government opposition is hardly punitive.
We suspect that current legislation in ineffective in dealing with such matters. As can be seen, fines are limited. It’s probably the right time to introduce stronger punitive measures, but no Government wants to be viewed as ‘anti-development’. In this case the Corkman ‘Developers ‘could reap up to 3 times the land value if they were permitted to build. Quite frankly they should never be permitted to under any circumstances. Again – this will require new legislation.
Here are two recent articles from the Fairfax press on the situation
Seize Corkman land, opposition says, after another broken promise
The developers who own the Carlton site where the historic Corkman Irish Pub once stood have failed to carry out their latest promise, which was to build a temporary public park on the land.
The failure has led the opposition to renew its call for the Andrews government to forcibly acquire the land.
Developers Raman Shaqiri and Stefce Kutlesovski in October 2016 knocked down the 159-year-old pub without planning or building permission.
They were initially fined almost $2 million for brazenly destroying the building over the course of a weekend. Last year, their County Court appeal saw the fines cut to $1.1 million.
Rubble covered the site for three years after the demolition, but in 2019 Planning Minister Richard Wynne reached an agreement with the pair to turn the site into a temporary public park.
Under the terms of their agreement with Mr Wynne and Melbourne City Council, the pair cleared the site and were then supposed to deliver a plan for a temporary park, which was meant to be open by February. But the pair have not yet even submitted plans to the city council for approval.
Lord mayor Sally Capp said the council was considering its legal options to make sure the site was turned into public space.
“We’re extremely disappointed the owners of the Corkman site have not complied with the VCAT order,” she said.
Contacted on Tuesday, Mr Kutlesovski refused to say why no action had been taken on the promised park. Mr Shaqiri did not return a message left with him.
Opposition planning spokesman Tim Smith said that Mr Wynne now needed to step in and compulsorily acquire the land, because of his repeated failure to compel the owners to do anything that they had agreed to do.
In 2016 in response to intense public outrage, Mr Shaqiri and Mr Kutlesovski issued a promise – via their public relations consultant, and now Labor MP Will Fowles – to Mr Wynne that they would rebuild the pub. They later reneged on this promise.
“Richard Wynne first said the pub would be rebuilt and it hasn’t been,” Mr Smith said. “He then said the rogues that knocked down the Corkman would have the highest fines ever, and that’s not true,” he said.
Mr Smith said the latest failure meant the government “must surely now intervene and compulsorily acquire the site and put it to good use, which is student housing, social housing or a park”.
He questioned why the government was so easily able to compulsorily acquire land needed for major transport projects and yet was unwilling to take the Carlton site off its owners. “We’re not talking tens of millions here,” he said.
Mr Kutlesovski and Mr Shaqiri bought the pub in 2015 for $4.76 million and it was last year valued at between $8 million and $10 million.
Mr Wynne said the planning department was working with the city council to force Shaqiri and Kutlesovski to comply with the VCAT order to build a park on the site. “These cowboy developers have shown, yet again, that they are recklessly disinterested in obeying the law,” he said.
Mr Wynne did not respond to questioning about whether the government would compulsorily acquire the site.
He has previously said the price the government would have to pay to acquire the site would deliver huge profits to the developers, and for this reason he would not proceed down that path.
‘You’re not above the law’: State takes Corkman Pub ‘rogue developers’ back to court
The state government will take developers who razed the historic Corkman Irish Pub to court again, seeking an order forcing them to build a temporary public park at the Carlton site.
Developers Raman Shaqiri and Stefce Kutlesovski have failed to deliver on their promise to build the park by February under an agreement they reached with Planning Minister Richard Wynne last year.
The site remains closed off by a barbed-wire fence and the pair have not submitted plans to the City of Melbourne for approval.
Mr Wynne on Wednesday said the state government and Melbourne council would seek an enforcement order at the Victorian Civil and Administrative Tribunal to ensure Mr Shaqiri and Mr Kutlesovski delivered on their promise.
The minister said he would speak with Attorney-General Jill Hennessy to expedite the court process and have the matter heard in VCAT soon.
“We don’t want this matter hanging around – we want this matter resolved, we want this park to be built,” Mr Wynne said.
“You can be absolutely confident of my determination and the government’s determination to ensure the enforcement order, if we are successful at VCAT, is in fact abided by these developers. You are not above the law.”
If an enforcement order is issued and the developers again fail to build the park, Mr Wynne said Melbourne council would step in to build the park and seek costs from Mr Shaqiri and Mr Kutlesovski.
The opposition renewed its calls for Mr Wynne to step in and compulsorily acquire the land following his repeated failure to compel the owners to act.
But Mr Wynne rejected those calls, accusing the Coalition of “not understanding planning laws”.
“One of our eminent planning [lawyers] advised me absolutely that the state would be required to pay the enhanced value of the site, plus compensation, and we’re not prepared to do that,” he said.
“We’re not prepared to reward these developers who have flouted the law.
“We will never allow this site to be acquired with a massive windfall gain for these rogue developers at the expense of taxpayers.”
The opposition’s planning spokesman Tim Smith hit back, calling the state government’s decision to take the pair to VCAT a “joke”.
“Dick Wynne has now been dragged back to VCAT, where he says he’s going to get another wet lettuce to slap these two cowboys with over the wrists again,” Mr Smith said.
“Wow, what a joke. These two cowboys are just laughing at Dick.”
Mr Kutlesovski and Mr Shaqiri bought the pub in 2015 for $4.76 million and the site was last year valued at between $8 million and $10 million.
In October 2016 they knocked down the 159-year-old pub without planning or building permission.
They were initially fined almost $2 million for destroying the building over the course of a weekend. Last year a County Court appeal led to the fines being cut to $1.1 million.
Unfortunately, this saga is now playing into a political situation. To date there is very little substance as to suggestions to compulsorily acquire the property.
In the UK, the developers would be forced to reconstruct the hotel, be fined heavily or face confiscation of the property.
To the second issue – Booroondara. This is another political gamesmanship issue – the loser has been Heritage. The State Government has rescinded Amendment C299 which applied specifically to buildings subject to Heritage Overlays in the Booroondara Council area.
Here is a statement from the Mayor or Booroondara…
Removal of unjust Amendment C299 loophole boosts heritage protection in Boroondara
Council takes back control of protecting the City’s history.
The City of Boroondara is aware of media reports about the Victorian Minister for Planning’s intention to remove the unjust, discriminatory and exclusively prejudicial ‘Boroondara Planning Scheme Amendment C299’, which uniquely allowed the demolition of buildings subject to Interim Heritage Overlays in Boroondara.
Mayor of Boroondara, Cr Cynthia Watson, said Council had been advocating since June 2018 when C299 was imposed by the Minister on Boroondara, for the removal of Amendment C299.
“We are relieved to see common sense finally prevail with the proposed removal of the Amendment C299 loophole,” said Cr Watson. “No other municipal planning scheme in Victoria is subject to an exemption like this one, which allows heritage properties to be demolished”.
During 2019, Council wrote to the Minister requesting the removal of the Amendment on seven occasions (8 and 13 May, 24 June, 30 August, 9 and 13 September and 21 October) and also wrote to all local members of state parliament and Premier Daniel Andrews, seeking assistance to have Amendment C299 removed.
During this time, Council also repeatedly sought authorisations and decisions from the Minister which would have protected properties at risk of demolition. On average, the Minister took over five months to respond to these requests for heritage controls, with several sitting on his desk for well over a year.
In one such instance, the Minister was given three months’ notice by Council that a property at 360 Auburn Road Hawthorn was at risk, and he chose to do nothing. That property was subsequently demolished on Christmas Eve.
Usually, a building’s inclusion in an interim Heritage Overlay would overrule any building permit issued prior to the introduction of heritage controls.
Under what has become known as the C299 loophole, which exclusively targeted the City of Boroondara, property owners with a building permit were able to override interim Heritage Overlays and demolish historic buildings.“While we are pleased to finally see the end of Amendment C299, we are saddened that this loophole was responsible for the loss of nine irreplaceable heritage properties. Council can now take back control of protecting our City’s history on behalf of our community,” said Cr Watson.
“The Minister chose to exclusively and unjustly target the community of Boroondara and has clearly realised the error of his ways.”
During community consultation for the Boroondara Community Plan, our residents clearly told us that they place great value on Boroondara’s heritage buildings and precincts. We currently have well over 10,000 properties in Boroondara currently protected by heritage controls and have allocated over $1 million dollars to our five-year Municipal Wide Heritage Gap Study to identify further historical properties and precincts. Boroondara is a Council that has a long history of investing in the protection of our heritage and will continue to have a strong partnership with our community in its ongoing preservation.
Information about the Municipal Wide Heritage Gap Study is available on the City of Boroondara website at http://www.boroondara.vic.gov.au/heritage.
Comments Attributable to Mayor of Boroondara, Councillor Cynthia Watson
After months of petitioning for the removal of the Minister’s ill-conceived loophole, it is disappointing but not surprising that Council has had to learn via the media of the Minister’s plans to revoke Amendment C299.
As at 3 January, Council has not received any notification from the Minister’s office indicating a decision on removing the Amendment has been made.
We are pleased to see common sense finally prevail but frustrated it has taken this long and at such great cost to the heritage of our City. No other municipal planning scheme in Victoria was subject to an exemption allowing heritage properties to be demolished in this way.
Amendment C299 was responsible for the loss of nine heritage properties across the City. With its removal, Council can take back control of protecting our historic properties.
We now encourage the Minister to expedite the removal of Amendment C299 from the Boroondara Planning Scheme by ensuring its gazettal at the first opportunity. Until this is done, as the Minister knows, at least five more historic properties are at risk of demolition.
Mr Tim Smith is the member for Kew, he is also the Shadow Minister for Planning and Heritage. Booroondara is a Liberal party controlled council. Demolition permits are issued via Council. Heritage Overlay submissions are made by Council. A number of vulnerable buildings in both Kew and Hawthorn have been demolished. The State Government Planning Department stepped in to halt the demolition last year of the historic Currajong House.
What is required now is an expansions of Heritage Overlays and protections to cover areas not considered important in the 1980s and ‘90s and until recently were not at risk. Armadale, Elsternwick, Hawthorn, Kew and other near city suburbs are in dire need of real action to protect our valuable Heritage buildings from unscrupulous developers.
This will require a genuine non-partisan co-operative action on the part of both State Politicians, Municipal Councils and bodies such as Heritage Victoria, the National Trust and all interested and involved parties; re-vamped Heritage laws with significant powers, increased funding and staffing of Heritage Victoria and the Heritage Council and the co-operation of organisations like the Master Builders Association and the Housing Industry of Australia.
It’s time for a positive change.
Heritage most definitely does matter.