Goulburn Mulwaree Council penalises Marian College developer

Nicolas Daoud says he consulted with council planners “all the way through” when he sought to shift a three-storey apartment block one metre to the northwest, representing a change on the original approval.

He has vehemently defended the alteration, saying it was done to conserve the former Our Lady of Mercy Convent, which sat on poor foundations. 

But the resulting ‘encroachment’ on the Clinton Street building has sparked an angry council and community reaction.

Councillors at Tuesday’s meeting said they and the community had been “greatly let down” by the addition in the heritage precinct. Mayor Bob Kirk described it as “horribly disappointing.” They imposed a series of penalties, including a requirement that the developer pay for council paving of Clinton Street between Bourke and Auburn Streets, a section of Bourke Street adjoining the project and install landscaping to reduce the encroachment’s visual effect. 

Further, general manager Warwick Bennett will write to Mr Daoud, “expressing the council’s and community’s frustration that they were placed in this position after the work had been completed.” He will also pursue a penalty infringement notice against the developer for “undertaking works without consent”

The meeting heard that a private certifier, not council planners had signed off on the work. As such, councillors agreed to report the certifier to the Building Professionals Board of Australia for allegedly allowing the project to proceed “contrary to the approved plans.”

Councillors baulked at refusing the modified DA to retrospectively allow the alteration. Mr Bennett said this would expose the council to a Land and Environment Court challenge. He told the meeting the developer could argue he had shifted the building to protect the convent’s heritage. The council would also have to prove theirs was a decision “a reasonable person would make.”

Cr Margaret O’Neill had also earlier moved to require a new application, saying the developer should be made to demolish the addition.

“People have done this before and they’ve been made to pull it down. It’s wrong and we should have a strong look at it,” she said.

Cr O’Neill said ratepayers would perceive the council was bending down to developers if it were allowed.

But she withdrew this motion after Mr Bennett said councillors had to deal with the application before them, not any other. The modified DA submitted in August after the work started proposed shifting the apartment building one metre west. It also sought changes to the ground floor layout and the reconfiguration of a block on the eastern side. The alterations have moved the apartment building four metres forward on Clinton Street, also in breach of the original approval.

During a presentation, environment and planning director Scott Martin said although planners had discussed “minor changes” with Mr Daoud in May/June, they only became fully aware on August 10, when the modified DA was lodged, of the extent of the alterations and how far they had progressed.

“We now have a potential crowding effect,” he said.

“...At that point the horse had bolted and requiring him to stop work wouldn’t have achieved anything,” Mr Martin said.

Instead they negotiated “stepping back” the northwestern aspect of the building to reduce the crowding, imposed a line beyond which development couldn’t occur and required landscaping. 

Mr Daoud told The Post that when scaffolding was removed from the current construction, people would notice no difference.

He said he approached the council to shift the entire apartment block four metres forward to avoid the underground carpark excavations impacting on the convent. 

“It only has very shallow foundations. It is virtually brick sitting on ground...We did this to protect the convent,” he said.

The work shifted the basement further away from the convent. But in the process, he lost the relationship between the basement wall and that on the main building above. This necessitated the move one metre to the west, to which he said his heritage consultant agreed. However the council’s heritage adviser objected to the encroachment when the modified DA was lodged.

Mr Daoud said he was passionate about the site’s heritage, wanted to conserve the old convent and chapel at all costs and to deliver a project of which Goulburn people would be proud.

He angrily rejected any suggestions to the contrary.

“There was never an intention to profit or break council laws. We consulted with the council all the way through,” he said.

“We will carry on and hope to deliver this project. In six months people will see that this is an attractive development.”

Although a certifier was enlisted to sign off on critical stages of construction on the project, Cr Margaret O’Neill told Tuesday’s meeting the council should “scrutinise everything.”  

But Mr Bennett countered it was not the council’s role as the state government had removed this obligation when it introduced private certifiers.

Cr Alf Walker said the community had been greatly let down and acknowledged their “frustration and upset.”

“But we must also address how do we acknowledge those frustrations and what do we do now?” he said.

Mayor Bob Kirk believed councillors would be lambasted for bowing down to developers but they had not. Instead the convent’s visibility had been opened up as much as possible by planners’ changes, the council had imposed a penalty and required paving.

“The only other thing we can do is make him pull it down and I don’t think that’s reasonable,” he said.

He told The Post after the meeting that if the council had declined the DA, ratepayers would likely have been hit with a hefty legal defence bill. Either way, the community would have ended up with something it didn’t want.

“Every time we’ve tried to defend a popular decision, we’ve ended up getting dusted,” he said.

Cr Andrew Banfield declared a pecuniary conflict of interest in the matter given that his employer, Concrete for Goulburn, had supplied product to the site. He left the room during discussion.

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