KHANI FLOPS in 2ND BUILDING APPLICATION at 33 Marlborough St.

The land that Mr Khani bought in Marlborough St, Sandy Bay in a contract of October 12^th 2006 for $412,500 is impressive.

8561m2 in area it occupies a prominent ridgeline visible from the river,parts of the Eastern shore & from some places in the city & Sandy Bay Rd. It borders the City’s “Bicentennial Reserve” & is in the Hills Face Zone.

Because of it’s position & prominence it, like 2 neighbouring properties, has  Conditions Registered on the Title to preserve the area’s character,including native vegetation & wildlife.

These include that:-

-there is a 600m2 Building Envelope,

-that “no vegetation or ground disturbance is to occur outside the building envelope without the written approval of (the Council)”,

-to strictly comply to the Geotechnical Report,&

-that only 1 dwelling can be constructed.

Soon after completing the purchase in February 2007 Mr Khani had about 2,300m2 of the land (nearly all being outside the Building envelope)  excavated with a bulldozer and a large quantity of fill dumped there.

A subsequent Geotechnical Assessment ordered by Mr Khani termed it “deep site fill” & “illegal fill” “…“which appears to be poorly consolidated with a considerable content of large rocks/debris which has potential for instability”.

It went on to say that the upper layers caused “considerable risk of debris slide”.

The half dozen or so neighbours below like the late Bob Petrass were in fear of a collapse onto them of this huge mound & have complained since of flooding of their homes after rain. 

Readers of this site will recall other instance of Mr Khani ignoring the law & interferences with neighbours rights  such as building closer than permitted to 163 Bathurst St & actually cutting off part of his neighbours fence at 178 Brisbane St,then constructing a pillar on the neighbours property & seeking to widen his driveway funnel shaped across that neighbours front garden.

The Council acted in due course and finally in July 2009 the Resource Management & Planning Appeal Tribunal Ordered the harm undone:-

-the fill to be removed,

-excavation works reinstated,&

-a re-vegetation plan to be carried out.

In July the Tribunal noted that Mr Khani’s appeal came on “after a protracted & somewhat tortuous process” & that Mr Khani filed no evidence or any material.

In a decision of February 2010 the Tribunal termed Mr Khani’s opposition to the Council’s conditions as “frivolous or vexatious”.

It awarded the Council’s legal costs against him at 90% of the Supreme Court scale.Ouch!

Lord Mayor Damon Thomas has since labelled him “uncooperative”.

The response of Mr Khani in October 2009 was to lodge a planning application for a huge house of 3 stories with provisions for 10 parking spaces,an “Olympic” sized tennis Court & lap Swimming pool.

Those plans termed the area illegally excavated & filled (all outside the building envelope) as “level area  created by existing fill on site” and attributed to it a planned fountain & access stairs.

It seems to have been lodged on the assumption that if approved,it would retrospectively authorise the illegal work. Upon being told in about November ’09 that a Planning Officer had recommended refusal, Mr Khani asked to withdraw the application.

However it was to be over 2 ½ years before the Council acted to remedy the land devastation.

Council Officers had claimed that negotiations were going on with Mr Khani for him to do it.

If that is so, it seems that he succeeded in gaining what will amount to over 3  years grace.

For whilst the Tenders called for closed on July 12^th 2012, no Tender has yet been awarded.

Soon after Tenders closed Mr Khani lodged another building application.

Whilst the car spaces were reduced to 5 & the tennis court went,most of the plans were the same ones and still bearing their 2009 date.

The 2012 application included:-

-the illegally excavated & filled area being accepted & used as access to parking,

-5 bedrooms all with en suites,

-clearing more vegetation,

-a lapped swimming pool,&

-5 car spaces.

The Planner in recommending refusal noted:-

-the density of a residence should be minimised to protect the characteristics of the Zone,

-the building bulk, footprint & land clearance need to be minimised in this area, and

-the proposed additional clearing of vegetation would have a significant visual impact.

It was before the Council’s Development & Environmental Services Committee on October 15^th and due to go to the full Council on October 22^nd. But on October 15^th as he’d done in 2009 Mr Khani acted to remove it from the Committee when he heard of the recommendation for refusal.

The Committee agreed to it being deferred but noted that any more than a minor amendment would require a new application.

It seems that a new application is unlikely given the cost of an Architect and that Mr Khani always careful with his money (and toilet rolls), is currently trying to borrow to finish units in Bathurst St & seems to now have no real intent to build on the land & reside there.

He has long had the land for sale,currently with Falls Real Estate “offers over $750,000”. Interestingly their ad mentions the land size but says nothing about  the limited building envelope or of the restrictions on the Title,let alone the Planning Tribunal Order or the Council’s calling for Tenders to remedy it all.

Under S.196 of The Property Agents Act it is an offence if an Agent does not disclose to a prospective purchaser any information that he knows or ought reasonably know is likely to affect the purchaser’s decision,and he/she is liable for any loss or damage flowing to the purchaser from that failure to disclose.

Approved building plans would obviously only help a purchaser if he/she wanted exactly the house approved & approvals last only 2 years.

There might,of course, be  a new attempt if he thinks it will delay the awarding of a tender.

But Council Officers assure that any building application will not affect it and that the delay is only to obtain a Quantity Surveyors report because the amount of the Tenders is high.

The Lord Mayor is being questioned about it again at the Council meeting on November 5^th so we might see some action this year at least in the form of a tender being awarded. The tip is big money-probably over ¼ million.

Mr Khani will be responsible for it.Presumably the Council will register a caveat for it over all his properties.

That won’t be nice for a cash strapped owner.

Adding that cost to the $412,500 purchase cost + over $14,000 in Stamp duty to buy it + lawyers costs + ANZ fees re the Mortgage you’d probably need  the $750,000 sought less Agent’s Commission to break even.

And then, of course, there were the Council’s legal costs at the Tribunal and the money he paid to the excavator & fill dumpers in 2007 and to the Architect.

And, the ongoing costs of possibly about $25,000 p.a. for ANZ interest, Land Tax @ 1.5% of the land value & Council Rates.

Of course achieving anything like $750,000 will be difficult.When he bought it for $412,000, the Gov’t Valuation was only $195,000.

Maybe Mr Khani will join the frustrated residents of upper Marlborough St in wishing that he’s not so acted in clear contravention of the requirements on his Title. But maybe something about “leopards & spots” applies.