The prudent see danger and take refuge, but the simple keep going and pay the penalty.
On 17 April 2003 Mr Voukelatos, the owner of 39 Glebe Point Road, wrote to Council asking if the tenant Amir Bodenstein had submitted a development application regarding the property. He also asked if Council had yet carried out its inspection to see if any unauthorised work had been carried out by Bodenstein in that property.
On 8 May the Council area in which 39 Glebe Point Road was located changed from Leichhardt Council to the Council of the City of Sydney.
In May 2003 Council wrote to Bodenstein stating that the wall of the property could be demolished if he were to provide a report advising that from another suitably qualified structural engineer.
On 13 June Voukelatos advised Council that he was interested in either the complete demolition of 39 Glebe Point Road or in the rebuilding of the premises so as create a restaurant with its own separate entrance. He asked Council to send him recommendations and rules regarding those two proposals.
On the same day Council advised Voukelatos that the property was listed as a Heritage Item of Local Significance with the result that a demolition would likely not be approved.
On 27 April Voukelatos rejected Bodenstein’s offer to resolve the ongoing dispute and stated that, as the latter remained behind in his rent payments, he would change the front door lock. Bodenstein was locked out from the property on 1 May.
On 2 May the owner’s lawyer Mr Casimatis wrote to Bodenstein, confirming that repossession of the premises had taken place.
On 13 July Bodenstein replied to Casimatis, rejecting Voukelatos’s claim of breach of contract.
On 16 June the Council’s Planning Officer, Stuart Greville, reported that the property’s side wall was falling apart and that a large tree which had been recently removed had severely damaged the wall due to its roots growing under and through the bricks.
On 23 June Greville wrote to Voukelatos confirming he had received the latter’s email advising his removal of consent for alterations and additions to 39 Glebe Point Road. He added that, given the property’s heritage listing, Council could not provide any advice concerning the proposed demolitions or major works there, unless documents were first provided containing architectural drawings of the proposals and giving heritage justifications.
On 12 July Voukelatos replied to Council stating that Bodenstein was no longer the tenant and that he was unsure why the latter wanted to continue with a development application for the property.
On 13 July Council formally rejected major works and demolition at 39 Glebe Point Road, as they failed to satisfy the regulations.
On 17 July the lawyers Mackenzie Russell & Co. sent a letter to Bodenstein, warning him that commencing a proceeding against Voukelatos in the Supreme Court (seeking relief for the forfeiture of his lease) would be very expensive and with no guarantee of success.
On 31 May Mr Ansted, of Council’s Compliance Department, inspected the property, During the inspection Bodenstein provided Ansted with structural engineers’ reports.
On 31 July Council issued an Intention Order to Voukelatos. That order stated that Council had received Bekker’s inspection report which stated that the wall was “in very fragile condition and liable to collapse” and recommended “the wall be taken down and [a] new footing installed”. It ordered Voukelatos to carry out the remedial works as recommended by Bekker within 28 days.
Contents
1. Council’s approval
2. Complete demolition
3. Lock out
4. The wall is falling apart
5. Withdrawal of consent
6. Proceedings are very expensive
7. Intention Order 2
1. Council’s approval
Mr Voukelatos raises his concern with Leichhardt Council regarding building work carried out by the tenant on his property without his or Council approval.
17.04.03 Mr Voukelatos to Leichhardt Council MA 1, 459
“We are the owners of the above mentioned property & would like to know if the tenant Mr Amir Bodenstein has to date lodged a Development Application with Council.
Also we wish to advise that we had spoken to Mr Comenzuli about 1 month ago concerning building work carried out by the tenant on our property without our or Council’s approval. Mr Comenzuli assured us that Council would carry out an inspection of the property as part of the processing of the D.A. to determine the nature of work carried out.
As we live permanently in Greece & have not seen our property since January 2002 we are concerned that we are not held responsible for works to which we are not a party.”
2. Complete demolition
As a result of the change to Council boundaries on 8 May 2003, the City of Sydney is now the consenting authority for my D.A. previously lodged with Leichhardt Council.
14.05.03 City of Sydney to AB – FU 1, 279
01.05.03 Leichhardt Council to AB – FT 1- 2, 277-8
“In addition, if the report recommends that demolition of the building is justified on the basis of the structural condition of the dwelling, this recommendation is to be supported by a report prepared by a suitably qualified independent structural engineer and be submitted to Council for consideration.”
“As a result of the change to Council boundaries on 8 May 2003, the City of Sydney (the City) is now the consent authority for your development application previously lodged with Leichhardt Municipal Council.”
09.07.03 City of Sydney to AB – FW 1-2, 280-1
“Council has received the above development application for approval for alterations and additions to existing terrace house as a café /restaurant.”
“The council officer dealing with this application is Stuart Greville…”
13.06.03 Complete demolition and rebuilding
Mr Voukelatos seeks recommendations regarding demolition or major structural alterations and expresses his intent to proceed with the project in the near future.
13.06.03 Mr Voukelatos to City of Sydney *MB 1, 460
“We are the owners of the abovementioned property and we are interested in either complete demolition and rebuilding of the premises and to create a separate shop from the residence (which presently is one with internal staircase).
We seek recommendations regarding demolition or major structural alterations in accordance with the Council rules and then get in contact with an architect and builder.
We live permanently in Greece at present but intend coming to Sydney in the near future to proceed with the project.”
13.06.03 City of Sydney to Mr Voukelatos *MB 2, 461
“However, I should point out that 39 Glebe Point Road is listed as Heritage Item of Local Significance, and as such an application to demolish would most likely not gain council approval.”“Request for further information”
3. Lock out
Mr Voukelatos rejects my offer to solve the dispute and as I stopped paying rent he changes the front door lock, leaving the back door locks and the rear gate door unchanged.
27.04.2003 Mr Voukelatos to AB – ED 2, 197
“Dear Amir,
If you don’t pay this amount immediately, we will take the necessary legal action to terminate the lease.
Zois”
21.05.03 Mr Casimatis to AB – EE 1, 198
“Unless all rent in arrears as mentioned above is paid on or by 5:00 28 May, our client proposes to take whatever action is necessary, including repossessing the subject premises, with out further notice to you”
02.06.03 Mr Voukelatos to Mr Casimatis EF 1, 199
“Writing to advise that our locksmith did the lock out of the premises on 1/6/03. Please send the letter you mentioned to Amir and we shall await his response.”
02.06.03 Mr Casimatis to AB – xx1, 200
“We refer to our letter dated 21 May 2003 and advise that our client has repossessed the above-mentioned shop on 1 May 2003 due to your default under the subject Lease.
You no longer have any entitlements to access the shop and if you do so you will be trespassing upon our client’s property.
If there are any items of yours within the shop, please provide us with reasonable notice so as we may enable you to receive such items.
We reserve our clients’ rights to claim for loss and damage sustained by your breach of the Lease.
We suggest you obtain immediate legal advice”.
13.07.03 AB to Mr Casimatis EH 1-2, 201-2
“I refer to your client actions of repossessing the above – mention shop on May 1st 2003.
Under our Contract and otherwise by the operation of law, your client have no right of repossessing and denying access to the above mentioned property.
I reject the claim of a breach of Contract on my side and again stress the fact that it is your client who is in breach of our Contract due to, among other things, his recent actions.
Due to your client misconduct I suffered and continue to suffer substantial losses.
I regard the Contract effective up to its termination date on January 2017.
I reserve the right to claim for loss and damage sustained by your client’s actions before and after 1st of May.
Enclose is a letter addressed to Zois. I will appreciate if you can forward it to him.”
02.08.03 AB to Mr Casimatis J 1, 207
“I am writing to you because I did not receive any response to my last letter. I would again like you to encourage Zois to contact me.
On Friday the 25th of this month I met Jim and John at 39 Glebe Point Road (after a neighbor alerted me to their presence.) I was happy to see that Zois sent some people to assess the state of the building. I also noticed that Jim refused to go upstairs in fear for his safety.”
4. The wall is falling apart
The Council Planning Officer, Mr Greville, reports that the side wall is falling apart and a large tree that was recently removed severely had damaged the wall caused by its roots growing under and through bricks.
16.06.03 Mr Greville to Mr Daetneel *MC 1-2, 462-3
The southern wall is falling apart as shown in picture. A large tree that was recently removed severely damaged the wall from the roots growing under & through bricks.
The building is heritage listed.
Large cracks visible.
Applicant wants to demo. wall & keep remaining structure. Can I please have a report on the state of the wall & the risk to the building & public (adjoins a park).”
5. Withdrawal of consent
Mr & Mrs Voukelatos confirm that their consent to my D.A. is withdrawn and Mr Voukelatos is not sure why I want to continue with the application.
23.06.03 Mr Greville to Mr Voukelatos *MD 1, 464
“I refer to your email transmission of 21 June 2003 in which you advised that you have withdrawn your consent, as owner of the above site, for the proposed development by Amir Bodenstein for alteration and additions to 39 Glebe Point Rd. As owner’s consent was originally confirmed by signature, in order for you to withdraw your consent, you are requested to provide signed written confirmation to this effect. Your written confirmation should also include appropriate cross reference to the subject application (i.e. Development Application No. L/03/00247 for 39 Glebe Point Road, GLEBE) A facsimile transition will suffice in this instant.
In relation to your other enquiry concerning major works to the heritage listed building, in the absence of any documentation (i.e. heritage justification for demolition or major works, and architectural drawings of the proposal) it is not possible for the City Council to provide any advice on the merits of the proposal.”
10.07.03 Mr Greville to Mr Voukelatos *MD 2, 465
“I refer to the email transmission of 23 June 2003 in which I advised you to lodge a formal written withdrawal of owner’s consent, as the land owner of 39 Glebe Point Road, GLEBE. The applicant wishes to continue with the lodged development application and Council believes that if owner’s consent is to be withdrawn, it would be appreciated if we would receive confirmation promptly.”
12.07.03 Mr Voukelatos to Mr Greville *MD 2, p 465
“We here by confirm that our consent for the abovementioned Development Application on our property. As previously stated to you, the applicant is no longer a tenant of the property having committed material breaches of the lease. His lease was formally terminated some 2 months ago. I’m not sure why he want to continue with the application however, that’s his problem.
We will be in contact in the future to discuss our plans for the property.”
13.08.03 City of Sydney to AB – MI 1, 476
“1. The proposal fails to satisfy the requirement of the Environmental Planning and Assessment Regulation 2000 in that the consent of the land owner of 39 Glebe Point Road and the adjoining public reserve has not been obtained.”
6. Proceedings are very expensive
On 17 July 2003, I received a letter of advice from solicitors Mackenzie Russell & Co regarding a Meeting I had with Mr. Russell seeking legal advice.
The emphasis of this letter is that evidence of faults is of importance as is evidence of landlord’s deception as to the true structural state of the building.
Mr Russell cautioned that further action in the Supreme Court is usually expensive.
17.07.03 Mr Russel to AB – EI 1-4,p 203-206)
“I must warn you that contested Supreme Court proceeding are very expensive and that the costs could run into several tens of thousands of dollars”.
“I must also point out to you that there is no guarantee of success when commencing Supreme Court proceeding and that particularly in cases where a tenant is seeking relief against forfeiture of his Lease it is usual for the tenant to pay the landlord’s costs of the court proceeding unless special circumstances can be shown. Therefore it is most important that there is strong evidence from Sydney City Council of a major structural fault with the premises and also evidence that you have been deceived by the landlord as to the true structural state of the building”.
7. Intention Order 2
On 31 May 2003, following my request, Mr Ansted of the compliance department of City of Sydney, carried out an onsite inspection, at which time I provided him with structural engineers’ reports and he took photos of the structural problems.
31.07.03 City of Sydney Council to Mr & Mrs Voukelatos ME 1- 2, 466-7
“1. You are the owner of the premises.
Council is in receipt of a report dated 30 October 2002 from Paul Bekker Engineering Group (copy attached) in relation to the external side wall to the premises.
3. The report states in part “we believe the wall to be in very fragile state and liable to collapse”.
4. The report recommends, “that the wall be taken down and new footing installed on piers taken to suitable bearing material”.
Terms
The terms of the Order will be to:
Carry out the remedial work recommended in the report AND:
On completion of the remedial work submit a Certificate in the form of attachment TP2, completed by an appropriately qualified structural engineer.”
Period:
“The proposed period for compliance with the order is twenty-eight (28) days”.
“Note: Called from Greece on 7/8/03 & again on 13/10/03 to say we will lodge a D.A.”