SEE AUGUST 10 UPDATE BELOW
In the appeal the proposer of the Creative Precinct, Creative Property Holdings, sought to enforce a $12 million contract to buy the Birchalls car park to be the site of the proposal. [BUT the questions hanging is, was this site actually for sale? YES, EVERYTHING IS FOR SALE at a price but was $12Mil that price? Anyway who was stumping up the money? Launceston's ratepayers? Did anyone consult them?
IN FACT:
- Did Launceston Council formally contact the property owner at the outset of this whole debacle?
- It is reported that there is a DEED OF AGREEMENT with CoL as a party that has not been disclosed to Councillors, is this the case?
- If the DEED OF AGREEMENT exists, who initiated it and why is its VERY EXISTENCE confidential?
- Why haven't the Councillors insisted upon seeing the agreement? Is it because they cannot be trusted? If not by whom?
- Does SECTION 62/2 actually allow GM/CEO to keep information AWAY from Councillors under any circumstance?
- Who is representing the ratepayer's interests in all this?]
However, CPH and the owner of the car park Car Parks Super agreed to discontinue the appeal at the 11th hour on Monday.
CPH director Christopher Billing said in a statement to the Examiner: "We have voluntarily withdrawn our appeal due to positive discussions that are working towards an agreement between the parties." [WHY at the 11th hour? Was there an intuition involved? Who might have given the proposer a heads up?
"We are pleased with this course of action and hopeful of further announcements in coming weeks."
Mr Allan was not available for comment. [Actually, who is the "we" here? Who behind the curtain is saying what to who? Actually where is the transparency in this whole debarkle?]
The discontinuance casts further doubt over a $10 million Federal Government grant linked to the project. [With the word out that the Auditor General looking at this funding for a drought that Launceston did not experience the money should never have been applied for.]
Last Friday the Federal Court notified that the full court decision would be handed down at 4pm Monday.
However, counsel for Mr Billing told the Federal Court that a consent agreement for discontinuance had been reached with a $45,000 costs order to Mr Allan being agreed.
Justice Kathleen Farrell adjourned to consult fellow judges at 4.30pm and was unhappy upon resumption.
"Considerable frustration has been expressed at the lateness of the agreement coming as it has six weeks after the appeal was heard," she said. [No mention of City of Launceston's 'costs', so are the ratepayers being left out of the thinking yet again. Rightly or wrongly Launceston's GM/CEO has been reported as saying that ratepayers do not need to make a profit. Well they do have a right to receive VALUE for their rate demand!]
"We have got to the point of written judgement and there has been considerable judicial time."
Justice Farrell said the amount of judicial time was a factor that would have weighed heavily against the grant of leave.
"The court had no inkling that that the parties would come to any form of agreement.
"Maybe the parties had no inkling before Friday."
But she said that the fact that it was a consent agreement meant the court would allow the discontinuance.
CPH sought in the appeal to overturn a decision by Justice David O' Callaghan that a November 2020 contract CPH to purchase the car park was not valid.
Justice O'Callaghan found that no enforceable sale contract existed because there was no exchange of counterpart contracts in what was a "well-known, common and customary method of dealing". [Did his Honour get it wrong?]
The project has failed to proceed since being announced in June 2020 because of the wrangle between the parties about the car park site.
The City of Launceston council wants to build a bus interchange on part of the site at 41-55 Paterson St. The council was at one stage a guarantor for Mr Billing and paid a $1.2 million deposit for the car park. [WHY? Was/Is the bus interchange on this site a viable idea? Is it actually required? Is/was this the only way forward?]
The precinct was a vision [??] to put Launceston on the world stage for the best artistic, cultural and creative thinkers was launched more in 2020. [Who are the 'thinkers'? Where are they NOW? Who coined the word "BEST"? Was/is the proponent up to the task and on what evidence? These are questions THE INCUMBENTS must answer NOT management!]
It was touted as the home to a new creative hub which would include learning spaces, commercial tenancies and retail spaces to link to other parts of the hub, such as the bus mall and Birchalls' retail space being developed by the council. [SECTION 65 of the Local Govt Act requires the GM/CEO to provide Council with 'expert advice'! Did he? Did THE INCUMBENTS ignore him? What was his advice? What 'expertise' backed it? Who considered the ratepayers, when if at all?]
After the first Federal Court decision Car Park Super Pty Ltd director Don Allen lodged his own $60 million proposal for the car park site but it was refused by the council because it had too many car parking spaces. [On the face of it a very good 21st C proposal]
The mixed use proposal comprises five levels on the site adjacent to the former Birchalls store and present Myer store.
The proposed development would include retail shops on the ground level, three levels of public car parking and a roof top level featuring eight, three-bedroom residential apartments. [On the face of it a very good 21st C proposal]
Car Parks Super has appealed to the Tasmanian Civil and Administrative Tribunal about Council's refusal. [On the face of it a very good 21st C concept, but was Council's refusal – THE INCUMBENTS' refusal – made on EXPERT ADVICE and indeed was it 'legal'? Indeed under the circumstances how could it be? Questions for THE INCUMBENTS to answer and before the Local Govt. elections!]
In the original Federal Court decision Justice O'Callaghan said that "both the applicant and the respondent at various different times seemed to have lacked enthusiasm to complete the transaction".
"The applicant sought to rely on an affidavit of Christopher Billing dated 28 September 2021, but his evidence was irrelevant because it went to the deponent's subjective intentions," he said.
"I accordingly declined to admit it into evidence. The parties agreed that the relevant intention of the parties is to be determined objectively on the basis of the exchanged correspondence."
What a 'bloody mare's nest' – pun and double entendre intended!
The end of a Federal Court appeal about the privately-owned Paterson Central car park has cleared the way to new development possibilities for the site in addition to a potential $90 million Creative Precinct.
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On Monday the car park owner Car Parks Super and Creative Property Holdings, the proposer of the Creative Precinct, agreed to discontinue a Federal Court appeal.
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Car Parks Super director Don Allen said that the company is negotiating with CPH but that others were interested in the 41-55 Paterson St site.
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On Monday, CPH applied to the Court for leave to discontinue their appeal. Mr Allen said by agreeing to the discontinuance it would allow CPS to freely deal with the company's property.
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CPH director Christopher Billing said on Monday that he was working towards an agreement between the parties.
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"We have voluntarily withdrawn our [Federal Court] appeal due to positive discussions that are working towards an agreement," he said.
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However, it is understood that other developers do not propose a Creative Precinct and the bus interchange being sought by the City of Launceston council.
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The Examiner understands that latest negotiations for the car park are at a price which significantly exceeds the $12 million sale price touted in the Federal Court case and which involved the City of Launceston council paying a $1.2 million deposit in July 2020.
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An alternative development would result in the loss of a controversial $10 million Federal Government grant under the Building Better Regions Fund, allocated to assisting in drought relief.
The BBRF grant is tied to the vision of the Creative Precinct and the Paterson St site.
The council invested $8.8 million in the former Birchalls building in the hope it would dovetail with a Creative Precinct and bus interchange.
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At the time of early negotiations between Car Parks Super and CPH the council was guarantor of Mr Billing's obligations.
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However, council withdrew from that role in December 2020. It has also spent at least $20,000 of ratepayers' funds on legal fees in relation to the Federal Court.
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Launceston Mayor Albert van Zetten said the City of Launceston was still working through the developments from Monday's discontinued Federal Court appeal with the parties involved.
"As we have said previously, the Council remains of the view that a centrally located bus interchange is an important strategic objective for the CBD," he said.
"In terms of the BBRF grant, the Council will have further discussions with the Federal Government given the recent developments.
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"We are continuing to work with parties concerning the re-development of the Birchalls building and hope to make an announcement on this matter shortly.
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The withdrawal of both parties at the 11th hour from the Federal Court appeal caused significant displeasure from the judiciary which had finalised a written judgement.
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Mr Allen has lodged his own $60 million development plan for the site which is presently before the Tasmanian Civil and Administrative Tribunal because it was refused planning approval by the council.
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