Ray Norman Advocate: November 2021

Monday, November 29, 2021

THE BURCHELL'S CARPARK DEBARCLE IN LAUNCESTON TAS

http://tasratepayers.blogspot.com/2021/10/an-ongoing-saga-about-purchase-of.html

ADDITIONAL LINKS

http://tasratepayers.blogspot.com/2021/11/there-is-looming-cloud-over-integrity.html

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http://tasratepayers.blogspot.com/2021/10/millions-of-dollars-11-questions-and.html

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http://tasratepayers.blogspot.com/2021/10/an-ongoing-saga-about-purchase-of.html

Decision to turn car park into bus stop to benefit ratepayers Ryan Young

POTENTIAL SITES: Locations the City of Launceston council considered. Picture: Supplied

A decision to transform the Paterson Street Central car park into a bus interchange will save ratepayers money in the long run, City of Launceston council chief executive Michael Stretton believes. .................... Mr Stretton said council calculated it would cost about $5 million to $7 million to move the existing major bus stop on St John Street to other on-street locations in the central business district. .................... "My expectation is that we'll be able to deliver it [a new bus interchange on Paterson Street] in concert with the state government for less than what it would have been to have an on-street solution," he said. .................... Labor After 18 months of extensive research and planning, the council recently purchased a share of the Paterson Street Central car park and the old Birchalls building near it for a combined total cost of $14.4 million. .................... The council plans to turn the Birchalls building into an arcade that will house a mix of retail and food businesses. The arcade will double as a thoroughfare which connects the bus interchange and a mooted creative precinct to the Brisbane Street Mall. .................... The council assessed the suitability of 13 potential locations to move the existing bus stop to before it decided to purchase the car park and build the interchange, Mr Stretton said. IMAGE: TRANSFORMING CITY: City of Launceston council chief executive Michael Stretton is excited about taking the next step to give the city's CBD a facelift. Picture: Phillip Biggs .................... "That assessment looked at things like the roadway cross-section, the required operating space, accessibility, the impacts on the bus routing, the impacts on the dead running services and the circulation for the bus networks and impacts on the network operation, other operators, parking and road safety," he explained. .................... The list of potential locations was narrowed down to three sites on Patterson Street, Mr Stretton said. .................... "One was on the street in front of the government offices, one was on the street in front of the church and childcare centre and the other was an actual off-street solution using the Dechaineux Way and the Paterson Street Central car park," he said. .................... "Each of the two on-street options required a lot of modification and design, we costed it at about $5 million to $7 million for either of those spaces. Upon assessment, those sites had too many issues and impacts on the properties that would be immediately behind them." .................... Mr Stretton said the council would now work with the state government to design the interchange. Construction could commence next year.

JULY 29 2021

Launceston council's Creative Precinct development caught up in legal battle ... Nick Clark .... VISION: An artist's impression of the Launceston Creative Precinct. Picture: Supplied

The proposed $90 million Creative Precinct development in Launceston is under a cloud as a legal battle over the sale of the Paterson Street Central car park drags on. Owner of the site, Car Parks Super, and a proposed developer of the precinct, Creative Property Holdings (CPH), have been in a legal battle in the Federal Court of Australia since February about a $12 million contract for the sale of the so-called Birchalls car park site. ........................ The vision to put Launceston on the world stage for the best artistic, cultural and creative thinkers was launched more than a year ago. The Creative Precinct was touted as the home to a new creative hub which would include learning spaces, commercial tenancies and retail spaces to link to other parts of the hub, such as the bus mall and Birchalls' retail space being developed by the City of Launceston council. ........................ The proponents, New Creative Group is a consortium of designers, strategists and educators who have banded together to develop the vision for the precinct. ........................ In the Federal Court proceedings Creative Property Holdings, whose director is Chris Billing, has alleged Car Parks Super breached a November 23, 2020 contract. It has sought that the owner be required to transfer the property and is also seeking damages and costs. ........................ Car Parks Super, represented by barrister Shaun McElwaine SC, says that the firm did not make an offer to sell the property that was "capable of acceptance by the purchaser (CPH) and the Launceston City Council and in any event was expressly made subject to the exchange of contracts". ........................ Documents filed in the Federal Court reveal attempts to agree a contract between the two parties in June 2020, September 2020 and November 2020. ........................ A hearing in the Federal Court was due in May this year, but did not go ahead. ........................ Since June 8 Justice David O' Callaghan has made six orders that CPH as the applicant file and serve its written submission, but nothing further has been filed. ........................ If it went ahead the development would have been scheduled to use federal and state government funding of more than $20 million. ........................ The Federal Court documents suggest the City of Launceston council was a guarantor for CPH in two of the proposed car park purchase contracts. ........................ In the proposed June contract the City of Launceston would "guarantee the obligations of the applicant (CPH) and undertook to complete the contract in the event that the applicant breached its obligations to do so". ........................ The council paid a $1.2 million bank cheque, or 10 per cent deposit for the car park on July 9 2020, but the contract was not finalised. ........................ After further negotiations a September 2020 contract was proposed which excluded the council as guarantor. ........................ However, Car Parks Super terminated the contract on October 14 with the company saying CPH had failed to complete by the required date. It claimed the failure meant the deposit was forfeited. ........................ The deposit became a vexed issue between Car Parks Super, CPH and the council and it was not until March 8 2021 that a bank cheque was sent from Car Parks Super lawyers Archer Bushby to Launceston firm Sproal and Associates on behalf of CPH. ........................ Counsel on behalf of CPH, Viridian Lawyers, demanded that the deposit be returned to it or Sproal and Associates on November 13 . ........................ The court filings reveal the council was named as the guarantor for CPH in a proposed third contract dated November 20, 2020 which "provided that the second respondent [council] would complete the contract in the event of default by the applicant". ........................ Email correspondence from council lawyers Simmons Wolfhagen stated that the purported November 2020 offer was "signed by the second respondent (council) in its capacity as guarantor". However, it was not signed by Car Parks Super. ........................ Simmons Wolfhagen wrote to Car Parks Super counsel in December 2020 saying "if exchange does not occur within this time frame then my client's contract will be withdrawn and my client will cease to be guarantor". ........................ The City of Launceston denied to The Examiner that it was ever guarantor for CPH for the car park purchase. The Examiner asked whether the council was ever in a position where it "would as guarantor complete the contract (for the car park) in the event that the purchaser (CPH) defaulted in its obligations"? ........................ "No, the council was never in that position," a spokesman said. IMAGE Launceston Mayor Albert van Zetten. Picture: Paul Scambler ........................ Launceston Mayor Albert van Zetten said "The council has a legal agreement to purchase the site should the CPH development not proceed." https://www.examiner.com.au/story/7341169/citys-90m-plan-caught-up-in-legal-battle/

QUESTION TO COUNCIL WITHOUT NOTICE.

Click on the image to enlarge

CONTEXT

In the past I have challenged Council on the appropriateness of its ‘publication protocols’ and its application of its Intellectual Property (IP) protocols in Council’s operation. Over a number of years I have written to Mayor van Zetten and the GM [AKA CEO] and on each and every occasion, and in various ways the responses to me, in precis, has been ‘everything Council does in this regard is legal’ albeit that in many cases this is highly contestable proposition – and it was when I raised the issue.

Moreover, there are examples of less than best practice in the context of ‘Council publications’ relative to widely observed ‘acknowledgement protocols’ that lamentedly casts Council in a rather poor light and in many cases would and should be open to legal challenge. In the past, Council has contested the Moral Rights provisions of the Copyright Act and notably in 2018 in regard to Stephen Walker’s Tasmanian Tableau in Civic Square – See for context https://www.examiner.com.au/story/5483771/walkers-tasmanian-tableau-will-be-put-back-home-in-civic-square/ – Council fell well short of its obligations in regard to the ‘Moral Rights’ of an author and was ultimately forced to ‘put right a wrong’. There are other examples of less than best practice in regard to Council’s somewhat cavalier approach to ‘IP matters’ – arguably attitudes that reflect poorly on community standards on display in the city.

Additionally, Council is predisposed to use images of people in its marketing and in ways that generally do not acknowledge the photographer/author, the subject/person and concerningly where permission has not been sought to use the image in Council’s marketing etc. This is most concerning when the subject is, albeit subliminally, is presented as a ‘token person/whatever’ – token woman, token disabled person, token indigenous person, token obscure ethnicity, etc. etc. However, how might a serving member of Council’s staff deny their ‘employer’ access to imagery of them at work?

This issue I have discussed with Wezley Franckombe who essentially reiterated Council’s past assertions virtually saying (deeming?) that Council’s in-house assessment of its protocols relevant to ‘it’s publications’ finds that they are legal and adequate. Mr Franckombe challenged me to provide him with evidence of Council’s current shortfalls and I randomly selected this years’ QVMAG Annual report where scrutiny reveals:

The indigenous peoples acknowledgement appears at the beginning of the QVMAG Manager’s report when current reconciliatory convention generally locates such acknowledgement at the very beginning of such publications as a courtesy; and
Photographic images of people, objects, graphics etc. do not anywhere acknowledge the author/photographer and not always the author/maker of an object of ‘cultural production’ photographed; and
There is no list of acknowledgements to be found in the report when one would be more than appropriate.

I selected this publication on the grounds that I have IP invested in the QVMAG’s collections and the institution has been the subject of my personal and ongoing research for over 20 years.

Respectfully, I submit that this year’s Annual Report for ‘Council’s operations’, the same might well be said and likewise it can be said of most/all of Council’s marketing material. Compared and contrasted with any other ‘publication’ – say newspapers etc, – Council publication’s standards fall well short best practice I suggest.

Concerningly, it also seems that Council discourages representors et al using/providing evidence in the form of ‘newspaper clippings’ in the context of IP issues. Notably, Australian law sets out a series of clear exceptions to copyright infringement known as "fair dealing". Fair dealing exceptions allow use of copyright material for the purposes of review or criticism, research or study, parody or satire, new reporting, judicial proceedings or legal advice. Thus such advice to representors et al is clearly contestable, and ill founded, as are the standards and protocols Council insists ‘are legal’ and by implication apparently ‘deemed to be’ appropriate in every respect.

Additionally, paraphrased albeit, Mr Franckombe proffered the opinion that legally(?) Council was not required to do more than it does currently. Also, he advised me that he did not know about the existence of the organisation ‘Arts Law … https://www.artslaw.com.au/’, an organisation well placed to offer expert advice to ‘IP OWNERS’, Councils and other organisations etc. on any matter. Alert to this, consequently, Council has access to ‘expert advice’, and as I understand it, Council has an adequate budget allocation in order that it might seek and gain such advice from any source including Arts Law, Arts Tasmania, – https://www.arts.tas.gov.au/home – and/or a range of independent specialist ARTSlaw partitioners.

Against this backgrounding I have framed my question to Council as below.

QUESTION

Will Councillors in open council deliberate on and initiate a process whereby Council’s management is commissioned to:

Research and review current legal and moral obligations and conventions relative IP issues in the broadest context; and consequent to that
In doing so seek the advice and services of experts in the field such as Arts Law, Arts Tasmania, et al; and
Report to Council and Council’s constituency on the IP protocols that operations such as Local Government instrumentalities are morally obliged to initiate and observe towards achieving reconciliatory objectives while embracing current best practice; and
Recommend a set of protocols that Council will, going forward, proactively observe and implement; and
Clearly set out, and publish, a clear set of ‘policy protocols’ Council will itself observe and expect of those reporting to Council to observe; and
Do so by say April 2022.