Heritage Council: Kew Cottages Coalition Submission in Reply (Email 1 of 2)

To: Rhonda McLaren, Heritage Council Victoria
Re: Permit appeal Kew Cottages (H2073)
From: Brian Walsh, President, Kew Cottages Coalition.
Date: 30 Nov 2015

Dear Ms. McLaren,

I enclose the Kew Cottages Coalition reply to the Permit Appellant.

Yours sincerely,

Brian Walsh
Kew Cottages Coalition

M. 0414 979 300
W. www.kew.org.au



1. Introduction.

We understand that:

  • Major Projects Victoria (MPV) own the Kew Cottages Government Heritage site that is the subject of the current appeal, and that as owner MPV is ultimately responsible for all works on the site to be undertaken in accordance with the Heritage Act;
  • MPV have contracted Walker Corporation to develop the site on their behalf, and lodge this appeal.

According to the Appellant’s submission, MPV “remains supportive of the project”. [PP01(3)]

At the outset, therefore, we wish to make clear that while we have the greatest respect for the Appellant, their sub-contractors, counsel, and expert witnesses, in our submission MPV’s support for this project is not in the accordance with Government Heritage policy, is not in the public interest, and can only serve to bring the management of Victorian Government Heritage into disrepute.

2. Potential Breaches of S74A and S160.

Indeed, as detailed in our earlier submission, on the basis of the documentation made available to this appeal, and our own inquiries, the owner of the site appears to have potentially breached both S74A and S160 of the Act by

a) Non compliance with Permit 9639 by undertaking the Stage 1 and Stage 2 works, without first obtaining the Executive Director’s written approval for the Comrpehensive Landscape Management Plan and drawings as required by Condition 9 of Permit P9639;

b) Non Compliance with Permit 9639 by demolishing Heritage Building B2 Cottage (House Hostel), B4 Cottage (Unit 11) , and B5 Female Hospital Block (Unit 9) in a manner other than that prescribed in Permit P9639, i.e.: without satisfactory completion of the owner’s undertaking provided in their P9639 Application by Ms. Helen Gardner. (HLCD Pty Ltd, May 2005,HIS S.6.3) including:

c) Failing to obtain the Executive Director of Heritage Victoria’s written approval for drawings to show any works required to the land between Main Drive and Oak Walk (i.e.: Stage 8, the subject site of the current appeal). (P9639. HCLD Pty Ltd HIS 6.3 see Extract below)

Conditions specified in S.6.3 include:

Detailed drawings to show any works required to the road or pathway alignment of F4 Main Drive, F5 Boundary Drive, F6 Lower Drive and F7 Oak Walk or their vicinity, including measures to be taken to lessen the impact on significant landscape features, including avenues, trees, concrete lamp posts and lights, and glazed spoon drainage tiles on Oak Walk. [Permit Application P9639 (HIS6.3)


d) Allowing the remaining heritage buildings to fall into disrepair; and
c) Allowing the Appellant to ‘squat’  on the subject site of this appeal, to the extent that the conservation of the Main Drive and Oak Walk Avenues  has been threatened by this Permit Application and Appeal.
We say this is a fundamental issue, and respectfully request that it  be dealt with first as a matter of urgency, because if we are correct, then this whole appeal is based on a false assumption, namely that a breach of the Act has not already taken place.
If we are wrong regarding the above matters. then we submit as follows:

3. Chronology [5]

It appears that the Appellant has failed to provide an accurate and complete Heritage Permit Inventory. For example no Permits are listed supporting the commencement of the re-development in 2006. This is significant because it goes to the question as to whether the owner breached Condition 9 of P9639 by commencing the re-development in mid 2006.

Indeed, we note that the owner and Appellant were actually prosecuted by Boroondara Council in 2006 for effectively “jumping the gun” and commencing building works in Stage 1 without first obtaining the necessary permits. (VCAT 2006)

We request, therefore, that an adequate and comprehensive chronology be provided listing all relevant events regarding the commencement of re-development on the site, including applications, permits, and approvals that were in force at the time redevelopment commenced in Stage 1 and/or elsewhere on the site, plus an explanation as to:

  1. What permit conditions had not been satisfied, and why ? (Ref P9639 Condition 9)
  2. What required permits had not actually been obtained when the re-development commenced and why ? (Ref VCAT 2006)
  3. What were the grounds for the subsequent sacking of the KDC Project Manager, Kevin Hunt, by Walker Corporation ?
  4. On whose authority was the redevelopment commenced ?
  5. Did redevelopment commence before the Appellant signed the KRS Redevelopment Contract with the Victorian Government on 27 October 2006 ?
  6. If so, why ? And who was responsible for ensuring all Heritage Permit Conditions were properly complied with prior to 27 October 2006 ?

Reason. It appears the re-development commenced during a time of great confusion before the Walker KRS Contract was even signed, and before significant permit conditions had been properly complied with.

As a consequence the comprehensive Landscape Management Plan for the land between Main Drive and Oak Walk that the owner had undertaken to prepare and submit for the approval of the Executive Director of Heritage Victoria before re-development commenced in 2006 was not submitted and, therefore, not approved.

4. The Application

The Appellant makes reference [para 18] to Boroondara Council and the recent VCAT decision and “a large parcel of privately owned land to the south of the Kew Cottages site, 48 Wills Street.

However, we understand from Boroondara Council that most of the Appellants assertions regarding 48 Wills Street are essentially wrong.

We respectfully request, therefore, that any errors or omissions be corrected by the Appellant in concert with Boroondara Council, and that parties be advised accordingly.

5. Status of the Site Concept Plan.

The Appellant makes reference [paras 20-29] to the expiry of Permit 9639 and asserts:

….that the Site Concept Plan should not be given any more relevance than simply an

indication as part of a set of endorsed plans of an intended form of development more than

10 years ago…. [Para 25]

We say, however, that compliance and NOT currency is the issue that needs to be addressed.

We submit that as the owner appears to have significantly failed to comply with the terms and conditions of Permit 9639 at the outset, i.e.: before commencing re-development, significant weight should be given to that potential breach of the act.

Similarly, as Government Heritage Assets are involved, the Heritage Council should have regard to Government Heritage Management Policy. (HC46, 3,4,5)

We recommend that the Heritage Council seek an explanation for the Government’s failure to comply with Permit Condition 9 (P9639) from the responsible Government parties, including DHS, MPV, and the Secretary of the Department of Economic Development, before making a ruling on this matter.

Pending a decision on the latter we say:

That if the owner had acted responsibly and properly complied with Condition 9 of Permit P9639 then:

A comprehensive Landscape Management Plan, that included the island site between Main Drive and Oak Walk would have been produced by the owner and submitted for approval by the Executive Director, Heritage Victoria, before Stage 1 works commenced in 2006;

For approval the Plan was required to incorporate:

  • All the significant trees between Main Drive and Oak Walk, including Tree 160 (subsequently removed without a permit by the owner)
  • The hard landscape elements of F4 main Drive and F7 oak Walk, including the gutters and lampposts
  • All other retained trees
  • A proposal for removing the former Administration Building, and proposals for
  • Re-instatement Avenue planting in the gap left by the latter building
  • Any fencing treatments fronting F4 Main Drive, and F7 Oak Walk and the Public Open space areas
  • Full details of the proposed landscape treatment of the public open spaces, including the landscape treatment of the heritage core area, and proposed play equipment, furniture, lighting…

Reason. To ensure that the proposed landscape treatment of the public open space, re-instatement of trees, and fencing is appropriate and sympathetic to the existing landscape, and to ensure the existing trees and proposed landscaping for the site is maintained into the future. (P9639 Condition 9)

An endorsed Comprehensive Landscape Management Plan would have thereby precluded any new buildings on the island site between Main Drive and Oak Walk in accord with Permit P9639

However, such a Plan could have reasonably provided for the re-instatement of the original Main Drive Gateway at the entrance from Princess Street, as envisaged in the Kew Cottages Coalition Nomination (2004).

Moved to Victoria Park, Kew circa 1940, the Gateway is now being restored in situ. Our attempts to have the historic Gateway returned to Main Drive having fallen on deaf ears. We understand that neither the owner or the Appellant had any interest in restoring the Gateway to Main Drive. (See Appendix)

6. Location of the Proposed Apartment Building

The Appellant asserts that:

… there is simply no support for the proposition that

the development of a single apartment building, with a much smaller overall footprint and at

an overall height less than contemplated in the Site Concept Plan, could be said to be more

detrimental to the significant cultural heritage values of both Kew Cottages and Willsmere

merely by reason of it being located adjacent to the realigned access road which did not

exist at the time of operation of Willsmere and the Kew Cottages. [29 emphasis added]

However, in our submission the Appellant’s assertion that Main Drive is a

... realigned access road which did not exist at the time of operation of Willsmere and the Kew Cottages.

is simply wrong.

This is a significant error and should be corrected in accordance with the Kew Cottages Statement of Significance (F4 Main Drive).

Similarly, the Appellant appears more than somewhat confused regarding the significance of Main Drive when they assert that the Heritage Victoria officer is “misdirected” in his statements regarding Main Drive access to the Kew Asylum [31]

Suffice here to say that we support the officer’s comments, and submit that the Appellant’s assertions have no substance. [31,32]

7. Material and Expert Evidence.

We have the highest respect for the professional competence of the experts referred to by the Appellant.

However, the suggestion by the Appellant that John Patrick and Bryce Rayworth have had no previous involvement in the application appears disingenuous to a degree.

As the Appellant will be aware, both consultants were engaged by their Kew Cottages PPP partner, i.e.: the owner, the State Government, over a decade ago when the Planning Minister ‘called in’ the project and removed planning responsibility from Boroondara Council.

That in turn then meant that the Government became the owner, the developer, and the regulator of the Kew Cottages re-development.

Which as a former Mayor of Boroondara, Mr. Jack Wegman, said at the time was like, “putting Dracula in charge of the Blood Bank !”

We, therefore, include here for completeness the original Kew Cottages reports prepared by John Patrick and Bryce Rayworth for the Government

. (See attached)

Both reports refer to Main Drive and its significance with respect to re-development.

8. Conclusion.

On the one hand the Appellant appears to have made a number of unhelpful and mischievous assertions with regard to the competence of Heritage Victoria’s Permit Application assessment process.

However, on the other hand the Appellant now appears keen to cultivate and promote a degree of ignorance about not only how Permit P9639 came into existence, but also of the chaotic circumstances which surrounded the redevelopment at the time.

For example the Appellant appears to have conveniently forgotten that they supported the owner’s argument made to Heritage Victoria at the time that to re-develop the site it was necessary for financial reasons to not only:

  1. Demolish 50% of the Heritage Buildings; but also
  2. Build apartment blocks at, and only at, the specific locations shown on the ‘Site Concept Plan’ (Masterplan) prepared by the Appellant.

Similarly, when by way of objection, the Kew Cottages Coalition submitted alternative proposals for the location of the proposed apartment blocks, both the Government and Walker Corporation were adamant that the proposed apartment blocks could not be moved from the specific locations shown on the Site Concept Plan that they themselves had prepared.

The Government and Appellant themselves, therefore, were the ones responsible for the island site on Main Drive being excluded from the specific locations proposed by them for apartments in the Site Concept Plan.

The Government, as owner, was successful in its permit application, and the Site Concept Plan was endorsed as part of Permit P9639.

The Government, as owner of the Heritage Assets was thereby given permission to demolish 50% of the remaining Heritage Buildings, but only on the specified terms and conditions as discussed in our submission.

We have concluded that the Government subsequently not only failed to abide by the terms and conditions set out in Permit P939, but has also:

  1. Allowed the remaining Heritage Buildings to fall into disrepair; and
  2. Failed to maintain that part of the Main Drive and Oak Walk Avenues occupied by the Appellant’s administration office, to the extent that the conservation of this island site is now seriously threatened. (See Attached images plus Google Streetview https://goo.gl/maps/uGpzJGeczCy )

We respectfully submit, therefore , that the Heritage Council should:

  1. Reject the current Appeal; and
  2. Take action pursuant to S.66 of The Act to ensure this ‘island site’ is returned to its former appearance in accordance with Permit P9639 without further delay.



Links to:

Attachments 1 -10

Please see Email 2 of 2.


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