A giant update from Tony Jacobs. No-one can put a letter together like Tony, entertaining and factual at the same time with all the details that I find so hard to keep track of, I really need to post the complete contents:
1. COURT PROCEEDINGS (completed)
On Wednesday and Thursday this week before Magistrates Webster and Pearce respectively he was found Guilty and convicted of:-
- Breach of Restraint Order re Tom Berger; fined $400 + costs.
- Damage to Property (my windscreen with his fist); fined $600 + costs.
In each case he applied for an adjournment [as he always does] which was refused [he’d had about 5 already in each case].
In each case apart from carrying on and trying to shout the Magistrate down, he claimed to have debts of $5-6 Million and to be unable to sell properties (more below) and to have great difficulty in paying any fines.
Last month he was acquitted of Dishonestly Acquiring a Financial Advantage (Land Tax) because he might not have been aware of what he was signing for such a small sum. He’d emphasised that a small amount (of about $800) meant little to him.
2. COURT PROCEEDINGS (pending)
On May 18th before Magistrate Rheinberger he faces 4 Council charges re illegal building at 161 Bathurst Street and excavation near boundary (Melville St - his rear). That has been adjourned several times with a Warrant for his Arrest issued once.
Some reasons advanced for past adjournments of these matters have been - can’t get a lawyer, ill, injured and a trip to Iran booked for that time with no return date set. [no such trip to Iran took place; my information is that such was never planned and that in fact he’s too fearful to return to Iran].
The Court on 18th May is, of course, open to the public.
You’ll see below this letter some correspondence between me, Alderman Damon Thomas and Mr Noye.
On 22.12.2010 Mr Noye told Alderman Thomas “…I’ve had recent discussions with K ..we are to meet on the site shortly to clarify what is required…We will continue to pursue to a successful conclusion and if that requires Court action then we will not hesitate..we are pursuing a more direct approach with K before triggering Court”.
In Jan 2011 I questioned K. about this in Anti-Discrimination Tribunal. He gave sworn evidence that there are no ongoing issues to be resolved; has been no contact between he and Council; he had to clear the vegetation at request of Fire Brigade; and is not now going to sell but to give to his son.
30.3.11 In a letter Mr Noye advises Kirsten Goyne that he has had had several meetings with K. to progress this matter [K has been pre-occupied with other matters - (these may include the bullshit trip to Iran)].
Noye goes on to say that K. has now filed an amended plan for a house…I’m seeking legal advice as to whether we can take enforcement action when we have this application before us.
In this regard it is worth looking at the Tasmanian Resource Management and Planning Appeal Tribunal decision of 1.7.’09 Khani v HCC
K. had applied for a Permit re 33 Marlborough; it was refused; K. appealed.
The Tribunal Judgment included:-
The development application sought approval for work already carried out. The Council had applied under Sect 64 of the Land Use Management Act.That was adjourned to allow the Permit application to proceed.
(Sect 64 deals with Enforcement Proceedings that can result in a Tribunal Order to demolish, remove, rectify, etc unauthorised work)
Part 3 of the Judgement says
“Eventually, after a protracted and somewhat tortuous process, this appeal came on for hearing [on June 30th]. No evidence, at all, or any material was filed by or on behalf of Mr K…”
So he just bought time then.
Subsequently the Tribunal made the Order under S.64 requiring removal of the fill and re-vegetation by January 2010. Nothing has happened since.
If Council delays enforcement until a new building application is made, amended, appealed [with procrastination-fake trips to Iran, can’t get a lawyer, illness, etc, etc], we’ll be well into 2012.
And will we then get another building application? Seems to me Council had all they needed to act on in January 2010.
Property remains listed for sale by George Self Real Estate but they know of the issues. Two phases spring to mind:-
2--A quaint old saying about shithouse rats
The Council belatedly took proceedings under S.64 for illegal building work at Unit 1 (street frontage at No.161) seeking a demolition Order.
Tom and Kerrie Berger from No.163 joined in as parties.
Surprise, surprise K. retrospectively applied for a Permit for the ‘building as constructed’.
Council Officers acting on incorrect principles and without it going to the committee of Aldermen approved it as not too different than that he had approval for.
Their documents accepted that based on the correct principle -being looked at as a fresh application, not an amendment- it must be rejected.
Tom and Kerrie appealed and engaged a Town Planner and a Surveyor. It transpired (surprise, surprise) that what he’d applied for was not what he’d constructed and that the actual Unit was both higher and closer to boundary than claimed in the Permit granted by Council.
At the front the required gap to boundary was 950mm but it is built only 380mm from boundary. These developments have delayed things and that hearing is set for May 19th and 20th, 1st floor, 144 Macquarie St; open to public. [K’s before Mag’s Court on 18th].
We are awaiting the Council attitude to the amended application now before the Tribunal.
We asked the Council to make available as a witness their Town Planner who originally recommended granting the Permit [but wrongly treating it as an amendment].The Council refused to do so but the Tribunal Chairman has now issued a Summons requiring her appearance.
5. UNITS 2-4 at BATHURST St
There is some reason to believe that like Unit 1 they are built too high (with loss of light and view to Melville St residents) and possibly they are too close to boundary. Council have promised a survey.
6. COLLAPSED RETAINING WALL BEHIND 138 MELVILLE ST
This was caused by K. when he excavated at Bathurst St, which excavation is the subject of 2 of the Charges on May 18th. The Council has an Engineers report showing his responsibility to remedy it.
His Engineer at Planning Tribunal stated that 80 y.o walnut tree had to be cut down so it could be rectified (hinting that K. was responsible and would do).
On oath at the Anti-Discrim K. denied any responsibility for and said he was not going to rectify; claimed was solely the responsibility of the insurers of Melville St. Those Insurers have apparently denied any obligation [and would seek to recover from K anyway].
The situation of the owners is complicated because the land is owned by the Body Corporate for the 4 residences in Melville St.
1 unit has been sold since with part of the sale price held aside for this.
The fence is still down and Alistair and Jenny Home have lost a lot of soil and plants, have about a metre of their shed hanging in space and have a genuine fear of damage to their home.
Costs to rectify about $50,000. It’s not a Council responsibility but they can possibly prevent Stratum Titling of the Bathurst Units unless done.
I think only a Supreme Court Writ against K. will get rectification.
7. HARRINGTON’s 102 “HOTEL”
This property was advertised widely last year by Knight Frank.
Eventually a lady signed to buy for over $1 Million. Lo and behold (surprise, surprise) her checks found some of the work had been done without Council approval.
She was able to cancel but had costs of several thousand.
Knight Frank now refuse to act for this “dishonest” man.
As to this “Hotel” which bills itself as “modern” “with en suites”, etc please refer to Tom Berger’s great web site.
You’ll see therein full 3 recent reviews by guests from the Trip Adviser web site and the only 2 reviews on Google.
He claimed at both trials to be $5-6 Million in debt with poor finances because he can’t sell any properties and complained about a Tax Department investigation.
With due allowance for his lies and exaggeration he was in ANZ earlier this month seeking extra funds and has complained in Court and elsewhere of being forced into Bankruptcy.
He has Harrington’s Hotel which he can’t sell as above; 33 Marlborough which will be difficult to sell with the land issues; 178 Brisbane St which the Agents refused to market because his front gate and driveway pillar is almost entirely in my property where he cut off some of my front fence and Bathurst St has the issues there.
Following publicity of the Anti-Discrimination hearing in January I was contacted by several people with accounts of issues they’ve had with him of which I wasn’t aware.
These include:-
Signing to buy 3 Alexander St, Sandy Bay [since re-sold] and getting into an acrimonious fight with the sellers and Mr Robert Young of Wallace, Wilkinson, Solicitors.
10. ANTI-DISCRIMINATION HEARING
If you are amongst that 50% + of the S.Tasmanian population who are yearning for the next episode, I can report that it’s re-starting on Monday August 15th.
The Commissioner from Melbourne who is a well intentioned lady is also blind which makes it difficult with the many documents and photos which I have tendered. She had wanted to resume on March 28th. I was available, K. claimed his bullshit trip to Iran.
Her other commitments and mine have led to this August date.
I suspect it will go about 3 more days. I’m going to try to speed it up and get to more of the nitty gritty issues but 1 question can lead to a 10 minute rant by him.The Commissioner is having great trouble controlling him as time goes.
It took all 1 afternoon (2 hours) to tender 18 photos of him from and an 8 second DVD because I had to describe them for her (being blind) and he disputed the simplest things such as a car passing by being a car.
Suffice to say that I have enjoyed my 11 hours of cross examining him so far and expect at least 2 or 3 more.
Regards,
Tony Jacobs
Above is a picture of a 180 degree view of the collapsed retaining wall that Tony is talking about above. This is from the rear of Units 2-4. The extreme left shows the shed that is hanging over, supported with a pole. This is even worse now after the rains last week, Tony tells me there is less soil under it and the shed is skewed. It appears a matter of time before it collapses over the edge.
