Walnut Tree -- Council Agrees to Cut it Down

In 2007 Mehrab-Khani took possession of 157-161 Bathurst St. On the same weekend he took possession, he started cutting the Walnut Tree, which has heritage significance, with a chainsaw and did not stop until I started taking photo's.

I sent them to Council and never heard from them again. In April 2008 along with my neighbour at 153 Bathurst St, we mailed a letter to Council complaining about Mehrab-Khani driving over the roots of the tree with a Bobcat and a car. I supplied photo's and have a copy of this letter. Nothing was heard from Council.

My wife and myself made two more phone calls as well as sending another 2 letters by email, one in April 2010, another on 10th May 2010. A generic response from Ross Willis of Hobart City Council saying that they received our letters about the lack of barrier that was supposed to be put around the tree, and that they would get back to me. He didn't. We also complained about the bobcats and grader and caterpillar driving around the base of the tree. Again I supplied photo's. The letter on 10th May was an 11 page letter detailing various breaches of building code and it was this letter that prompted a Council Blitz and inspection.

Mehrab-Khani was obviously tipped off about this because the day before the inspection in May 2010 he threw up a plastic tape barrier.

Notice even then was it a 3 metre boundary as required by Council. Meanwhile all types of excavation machinery around the tree carried on unabated.

On top of that I am also claiming that Unit 2 is built too close to the tree and too high, resulting in the branches being intertwined in the roof.

 

Now comes the interesting bit-- Mehrab Khani claims the tree is dying and wants to cut it down. (shock horror!) He supplies a letter from a tree expert from the Botanical Gardens that says it should be cut down. Council agree. We dispute this and Tribunal sets a hearing for 8th Dec 10. Now this would appear to be a cut and dried case of expert opinion prevailing, however Tony Jacobs does some brilliant detective work and seeks out the expert that was used in this assessment!

It turns out that the expert didn't really want the tree to be cut down at this point, but would have preferred to have waited until summer (it was assessed in June 10) to see how it handled the dry season, because there is a chance it can survive if it is fine at that point. We are now seeking to adjourn the Tribunal till Jan where we can get expert opinion on the condition of the tree in the dry summer season.

Thanks to some superb sleuthing from Tony, this issue is now alive again (pardon the pun). There is also engineering opinion that leaving the tree in the ground will stabilise the embankment that has already collapsed -- thanks to Craig Mackie for that. Craig is the lawyer representing Alistair and Jenny Home on the Melville side of the Development.

Last week I received a letter from Council lawyers, seemingly oblivious to the fact that I have complained about the treatment of the tree for over 2 and a half years, to tell me that when  Council became aware of the fact that there was no boundary, they enforced it!! Yeah, right.

This is pure fiction, I have letters and photo's with complaints going back to 2007 and nothing was ever done until an 11 page letter on 10th May 2010 initiated a Council inspection, and even then the "barrier" was not at 3 metres! All I can say to that letter is....where is the evidence? Where is the evidence Council acted to save the tree? There isn't any. There has been zero enforcement from Council to erect a barrier around the tree for well over 2 years.

 

Natural Ground Level Built Up

What do you do when you build up ground level a little too high and your boundary wall is so low a car could flip over whilst maneuvering up the driveway? You add a bit more height to the wall, of course!

My reading of the architect plans show that the difference in height from the front of the house at street level  to the back wall should be 700mm. It is far more than that, but I am a layman, what do I know -- the levels are correct I have been told by Council and Pitt + Sherry for the last 6 months.

What I find amazing is that they were building pyramids 3000 years more accurately than these Units at Bathurst Street.

Tribunal for Unit 1 Set For 20 Dec 10

The Tribunal for Unit 1 last Friday was put forward to 20th Dec 10. This will be crunch time. I am putting my neck on the block here by being 100% sure and stating it ahead of time that the height and setback has been wrong and that Council have been confused and/or apathetic for 6 months, not being able to work this out, whilst the Developer, Building Surveyor and Engineer have been fully aware of the height discrepancy and have actively sought to hide this fact.

We were told at the Tribunal on Friday that new applications are in and that the building surveyor Peter "I consider this OK" Ray was getting Sun Diagrams done! This to me indicates that they will be admitting incorrect height and are now in damage control, trying to minimise the harm the extra 12% height combined with incorrect top floor setback has on our property.

Tony Jacobs who has been assisting me has asked for all relevant documents to be sent to us before the 20 Dec. I will be able to see the new applications then. I have quite a few sun diagrams from 5 years ago when they were modeled on a lower building. The diagrams were done for the Tribunal 5 years ago which turned out to be a waste of time because of non-enforcement by Council, and now I am in another Tribunal with the same issues 5 years later.

The Sun Diagrams were damning then, and they will be damning now. The interesting thing is that I have 2 Sun Diagrams from 2 different companies and they don't match!! I am well ready for any Sun Diagram argument.

Court Diary for Mehrab-Khani 16 Nov 10 - 21 Jan 11

Thanks to Tony Jacobs for this:

Tues Nov 16^th,11.30,Magistrate’s Court,Liverpool St

Anti –Discrimination Tribunal Directions Conference (about the fifth,but the first this year).

Tues Nov 30^th,10.00 Magistrate’s

He to plead to a) breach of restraint Order re Tom Berger + b) to smashing my windscreen with his fist. He’s got 2 previous adjournments & said last time he’d not had time [in about 6 months] to get legal advice as he’d been working 7 days a week. Pleas of Not Guilty & adjournment to 2 trials dates are likely,but a PG to one or both is possible.

Wed Dec 8^th,(9.15) Resource Management & Planning Appeal Tribunal ,144 Macquarie St.

Mention of Appeals against Council decision to allow him to cut down 80+ y.o.walnut tree.

Adjournment to mid Jan will be sought as arborist says summer dry will tell if tree can survive or not.

Mon Dec 20^th 9.30 RMPAT,144 Macquarie-mention of HCC Application re breaches of construction permit at Unit  1 at 161 Bathurst St & re Tom & Kerrie Berger’s Application re Units 2-4.

Thurs & Fri Jan 20^th-21^st.Magistrate’s Court 10.00.

His multi- adjourned prosecution for Dishonestly Acquiring a Financial Advantage,contrary to S.252A Criminal Code. A date has been selected to avoid any clash with Supreme Court sittings.

Survey Number 2 Under Way

I received this letter in part from Neil Noye of Hobart City Council on 14th October 10:

So the survey that was instigated from my letter on 29 Sept to HCC found the height was correct! Peter "I consider this OK" Ray from Pitt and Sherry considers the height correct as does Engineer Chris Potter. So I have had at least half a dozen emails or verbal assurances that the height and setback is correct from Hobart Council, their surveyor, the contracted building surveyor Pitt and Sherry and master of deceptive diagrams, Engineer Chris Potter.

As a layman you would think I would be out of my tree questioning this. However, they are all wrong. It is an extremely simple matter to measure a one story building!

I wrote a letter back to Council, saying that the height was right if they used the wrong numbers on the architects plans ie the 5300mm instead of the required 4300mm height.

I dropped it of to Ross Willis and Neal Noye from Hobart City Council on Monday, insisting that the height for Unit 1 is wrong and providing details as per my last post. This letter obviously created more doubt and added even more confusion with Council, if that is at all possible -- now another survey is underway! This survey is a lot more precise than the last one which was over in 20 minutes.

It appears they are surveying the complete Development. And they appear to be checking Unit 1 with respect to my property, which I didn't see done before. It's crunch time!

Fraud!

Brief Background: Award winning architect Maria Gigney designed the development at 157-161 Bathurst Street and created an award winning stuff-up. She submitted plans which where knocked back by Council Planning, and on the 4th October 2005 resubmitted an Amendment where Unit 1 was reduced in height by 1 metre but forgot to update the measurements. These plans were approved by Council! In other words, the plans were redesigned, the building was lowered, but the actual numbers stayed the same! So measuring Unit 1, everything was out by 1 metre! 

Now consider that this Development broke 10 planning laws to get through Council Planning in 2005. Even then it was knocked back by the Aldermen. The system now requires that Council needs to come up with a list of reasons why the Development was rejected. They list their reasons why the Development was failed, leaving technical "loopholes" which were seized by lawyers at the Tribunal were it was ultimately passed. Now 5 years later it is being built and now another 10 or more  planning laws are now being broken again!

Hobart City Council pass this flawed plan and Developer Mehrab-Khani along with his contracted Engineer Chris Potter decide to run with this, making Unit 1 12% too high, reducing our light and privacy in the process, lining up their bedroom window so we can see into it and they into our bedroom door and making it a fire hazard because of lack of setback.

And to disguise the height they decide to delete the kitchen wall and glass ceiling (which was supposed to be the same height as the existing boundary fence!) in the process making the whole top floor even closer to us!

Now we have the contracted Building Surveyor for this job, Peter Ray, who represents one of the biggest Building Survey companies in the country, Pitt + Sherry, rubber stamping the fraudulent measurements made to hide the actual height of the building! Let me say this again -- Potter and Ray decide to hide the incorrect measurement of Unit 1 by measuring the height of the building at the wrong point, and giving this to Council!

To add insult to injury, Peter Ray and Chris Potter are using Maria Gigney's drawings to show the alterations they are making to the building to further hide the height (deleting kitchen wall and glass ceiling, more later), when the building bears no resemblance to the plans! Just look at where the balcony is on the plans! This is a farce and and a fraud on a grand scale.

Council can't figure any of this out. This isn't rocket science, so I decide the measure the building in 4 different ways.

I get a tape measure and physically measure the height:

The building measures 4890mm by my measurement. But here's the beautiful thing: Chris Potter and Peter Ray know there is a height problem and measure it at the wrong point! I know this because I replicated their measurements. I get their exact measurement of 5150mm by measuring on the other lower side of the existing wall, contrary to Gigney's reference measurements:

Then I measure from ground level determined by the architect, putting tape at my building. Lo and behold, I get a measurement of 4930mm using this method.

Physically measuring everything, it is obvious that 5300mm on Gigney's plans should be 4300mm because 5300mm goes to the top of my balcony, making unit 1 the same height!
Ditto with the boundary fence, it's 1700mm NOT 2700mm.

So the actual building should be built to 4300mm by the architects plans, but it is built 700-850mm too high, and the old 5300mm plans are being used.

So Peter Ray and Chris Potter measure it at the wrong side of the existing wall reporting a height which is 5150mm! Looking at my photo of where 5150 is on my balcony, it is so high it isn't even in the photo. But they can now claim that the building is lower then approved, and the reason they want a measurement closer to 5300mm like 5150mm is that the building would stand out like a sore thumb if they built it to full height as dictated by the old 5300mm plans!

If they lodged a measurement of 4890mm like I got it would show there is a discrepancy. What they want is something close to 5300mm to make it look like the building is being built to approved plans. In fact the building was supposed to be reduced in height by 1 metre--that is what was approved!

Summary-- The Developer can now claim the building is shorter than the approved 5300mm when it fact the amendment was for 4300mm and they are way over that. So in fact they have built to the wrong plan, building 12% higher than allowed in a heritage area. This means that any 8 story building in Hobart could have an extra floor added with no-one being the wiser!

Look at Potters fraudulent representation of the windows. Notice the balcony is the same height as the existing brick wall on the plans but is 850mm over that in practice!

They decide to hide the height discrepancy further by deleting the kitchen wall and glass ceiling, bringing the whole top floor of the building closer to us! In emails I have Peter Ray denies this. I have double checked with a Council Planner on Wed 20th Oct and Peter Ray is wrong -- he is either clueless or he is a liar. More on this later.

Looking at Gigneys plans, the building of Unit 1 is totally different.
Gigney notes:

It is nothing like this, the balcony towers up at over 850mm! See picture below.

So our balcony floor is upposed to be 1.1 metres higher than unit 1's balcony as per Gigney's plans. Here is the actual case:

So not one of these measurements are anything near what they should be. The devious nature of the deletion of the kitchen wall and glass ceiling to hide the height discrepancy and also move the whole top floor of the building closer to us is worth another post.

But what stands out here is that a Building Surveyor working for one of the biggest companies in this country, Pitt + Sherry, as well as a contract Engineer paid for by Mehrab-Khani not only built a building out of specifications, they have actively sought to hide this fact! If this is not fraud, I don't know what is.

An extra "benefit" to the building being too high is that now we look directly into the bedroom window of Unit 1 and they can see our bedroom door. Gigney had the window lowered to protect privacy, but these clowns have now raised the entire building including the window. Privacy, what's that? Fire hazard, what's that? In fact now that the building is higher and closer, let's build a deck to directly look into our bathroom, kitchen and backyard. And that's what was attempted, believe it or not.

And that is the story of the next post. That and the bedroom window, our reduced light and privacy.This is going to a Tribunal on 5th Nov. Lets see what happens. More to follow.

By the way, where is Hobart City Council on this? I received a letter on Monday 18th Oct -- Council had a surveyor check it and the height was correct! Unbelievable. He could only be comparing the height he got with the old plans using the wrong 5300mm numbers.

The building will appear to be lower than required if 5300mm reference is used as per old plans, and is taller than specified if the 4300mm reference is used as per the amendment on 4th Oct 2005. This is the current plan that is being used, so 4300mm is the basis of comparison!

None of this is rocket science. Put a tape measure up along a one story building and see what happens! A 12% error in height means that any 8 floor building in Hobart could have an extra floor added and no-one would be wiser! They were building pyramids 3000 years ago with more accuracy than what they are doing here.

But now we have a situation were laypeople need to prove a case against a "professional" (and I use that term lightly.)

Big Developments--10-10-2010

Havent updated for a while. I am in 2 Tribunals at the moment, with possible legal actions to follow.

Big things are  about to unfold.
Stay Tuned. This is big!!