Rebuttal to Roberts Domm’s statements by the Directors of Wrought Artworks
14.08.08
“The private business in question is currently operating at the ATP
without paying any rent and without having any legal lease”.
- The
business was set up as a company at the request of Government as they
wanted to deal with an incorporated body - It
does not pay rent or have a lease because the Govt did not countersign
lease publicly signed by Wrought Artworks.The attached photographic
evidence was in 1996 with the CEO of the ATP-Tom Forgan and a Minister,
and other ATP staff and tenants. 
- The
pre-existing lease and the unsigned lease included pepper corn rentals in
recognition of the conservation work being done by the business - Wrought
Artworks does not pay rent or have a formal lease because the ATP did not
countersign the License Agreement signed by Wrought Artworks. This was
probably because the previous management of the ATP feared that Wrought
Artworks might vacate Bays 1 & 2 at the end of the term of the license.
The previous management preferred the license to be open ended and that
may be why no formal license agreement was countersigned. - The
lease with the State Rail Authority provided for a peppercorn rent. The
license proposed by the ATP may not have required any rent at all (a copy
of the document signed by Wrought Artworks has been requested from the ATP
and has not been produced). - The
actual agreement with Wrought Artworks has never been denied by the ATP.
The agreement was that if Wrought Artworks: - ran
the forge as a proper working business; - maintained
heritage equipment - then
Wrought Artworks could remain in Bays 1 & 2 for as long as it wished,
free from any rent.
“This is obviously not a tenable situation in the long run and the ATP
has tried on a number of occasions to resolve this issue”.
- The
Development Approval for the establishment of the Technology Park
required the arrangement as an ongoing heritage measure - There
have been no attempts by the ATP to change the arrangement or negotiate
any change - The
Government / ATP have not met their commitments to fund and maintain
heritage on the site which was to compliment the businesses
activities - It
is open to question what the ATP means when it says the situation is
“untenable”. - The
arrangement has continued for 14 years so one is left wondering why the
arrangement can no longer continue. - Around
1997 Wrought Artworks signed a license agreement which the ATP preferred
not to proceed with. - In
2000 Wrought Artworks wrote to the ATP setting out its understanding of
the arrangement. The ATP never rejected what Wrought Artworks said at the
time. - The
only explanation as to why the situation has become untenable is because
the ATP has other plans for Bays 1 & 2.
“The private business asserts that it has a right to remain at the ATP
in perpetuity on a rent-free basis and refuses to accept that the landowner has
effective rights over its own property”
- The
existence of Blacksmith was written into the Development Approval for the Technology Park - The
landowner has an obligation to operate in accordance with the development
consent - The
landowner is part of the Government which made undertakings about the
preservation of the Blacksmith shop and the heritage equipment on the
site - Wrought
Artworks has never denied the rights of ATP. It is the ATP which is
denying the rights of Wrought Artworks. - The
arrangement which ATP made with Wrought Artworks should be understood in
the context of the following matters: - By
using Wrought Artworks to carry on the forge, the ATP satisfied expensive
and onerous conservation requirements that had been imposed by the
Minister in the conditions of the development approval of the ATP. - At
the time that the development approval was given, the ATP could not find
any person willing to conduct the black smithing forge and the officers of
the ATP were delighted that Guido Gouverneur & Wendie McCaffley were
prepared to take on the onerous obligations. - The
ATP recognised that substantial costs would be incurred by Wrought
Artworks in carrying out the repair and maintenance of heritage items. The
ATP also accepted that Wrought Artworks suffers operational difficulties
conducting a 19th century blacksmith forge in a 21st century technology
park. - It
was for these reasons that the ATP made it clear that it was not
interested in receiving rental from Bays 1 & 2 and the ATP did not
consider Bays 1 & 2 as being commercially significant. The
significance of Bays 1 & 2 was for conservation and heritage.
Attempts by the ATP to resolve these issues have not been successful.
- There
have been no approaches by the ATP to resolve these issues. Only a notice
to quit which itself places any future discussions under duress - The
attempts by the ATP to resolve “the issues” may have been
unsuccessful because as far as Wrought Artworks is aware, no dispute ever
previously existed between Wrought Artworks and the ATP about the terms of
Wrought Artworks’ occupation of Bays 1 & 2. - Previous
managers of the ATP have accepted the existing arrangement by which Wrought
Artworks occupies Bays 1 & 2. - If,
as the ATP is now suggesting, the issues are about the payment of a
commercial rental – why did not officers of the ATP approach Wrought
Artworks before serving the Notice to Quit ? - At
no point in time during the period the ATP has been under the control of
the Redfern Waterloo Authority has any officer of the ATP approached any
person from Wrought Artworks about Wrought Artworks paying commercial rent
or signing a commercial license agreement. - When
Guido Gouverneur and Wendie McCaffley arranged to meet with Robert Domm of
the Redfern Waterloo Authority in July (after the Notice to Quit had been
served) Robert Domm never mentioned the possibility that a license was on
offer. - The
first time that the ATP has stated that it is willing to offer a lease to
Wrought Artworks (on unknown terms) was only last week when that offer was
made by the media. - The
suggestion that the serving of a Notice to Quit means that future
negotiations are conducted under duress is not really appropriate. The
service of the Notice to Quit has terminated Guido Gouverneur’s and Wendie
McCaffley’s right of occupation at law. It is possible for negotiations to
be made with the ATP where the Notice to Quit is withdrawn. We understood,
however, that the Notice to Quit constitutes the termination of rights of
occupation. Thus, Wrought Artworks can bring an action against the ATP for
damages or for injunctive relief but serving any occupant with a Notice to
Quit is an extreme act on the part of the landlord that terminates an
occupancy.
“The ATP needs to resolve these issues and has accordingly instructed
its solicitors to commence legal action so that they may be appropriately
resolved.“
- There
is a clear need to resolve the situation as the ATP is seeking to unwind
aspects of the development consent and the Governments undertakings for
the site - If
the ATP was acting bona fide why did not its officers attempt to negotiate
a commercial arrangement with Wrought Artworks prior to serving the Notice
to Quit. - A
solution has to address both the Government and the Blacksmiths heritage
obligations for the site into the future
“This commercial issue is being misrepresented as a heritage issue”
- The
Government undertakings for the site including the operation of the
heritage equipment, peppercorn rents etc were entered into as part of the
heritage preservation strategy for the site not as a commercial
enterprise. This is very definitely a heritage issue being misrepresented
as a commercial issue.
“Should the current business be required to vacate, the ATP will keep
the heritage equipment in place and establish an alternative blacksmithing
operation sympathetic to the history of the site”. (The ALP Meredith
Burgman Petition is in line with this undertaking)
- The
current business has already been required by the ATP to vacate without
any offer of a lease - Given
the way the ATP has handled this how any new party could come into the
Blacksmith Shop with any long term security to build another business. Does
this mean it will then cease to operate as required by the original
development consent. An alternative operator is an irresponsible outcome.
many of the machine parts to make the equipment operational belong to
Wrought Artworks. Removal of these ‘grafted’ parts and the electrical
supply will render the workshop in-operable as it was 17 years ago. - None
of this was stated when the Notice to Quit was issued and has only come
out after the campaign to save the site started - It
is encouraging that the ATP has now committed to keeping the heritage
equipment in place rather than removing it as has been allowed previously
by ATP management. The Henry Berry Wheel shop crane that sits rusting
outdoors for 15 years at the ATP as an example of this heritage vandalism. - Irrespective
of who operates the blacksmith Shop there has to be an agreement for how
the equipment will be maintained and what is expected of the ATP and
operator to ensure the governments heritage undertakings in setting up the
technology park are preserved. - It
must be understood that the ATP has been in egregious breach of the
conditions imposed upon the ATP under the current development approval.
Examples of these breaches are as follows: - The
development conditions require that the ATP satisfy the Godden Makay
Eveleigh Management Plan for moveable items. - In
2000 a campaign was conducted by Wrought Artworks (with other
stakeholders) to bring to the attention of the government that the ATP
had not carried out its responsibilities under this plan. It was around
this time that City West was replaced by SHFA.Many heritage items
referred to in the Eveleigh Management Plan have been removed from the
site and dumped. - A
business plan for the blacksmith forge has never been undertaken (as
required by the development conditions). - The
Godden Makay report recommended that heritage equipment in the forge that
had run on steam should be converted to air pressure. This has never been
done. - A
grant of $300,000 made by the Minister for heritage conservation has been
allegedly diverted for other purposes (the ATP has never given a proper
accounting as to how this money has been used). - A
person was to be employed by the ATP for the purposes of managing
conservation items. The person was employed and their position has been
terminated. - In
light of the foregoing, no stakeholder with a responsibility for
conservation & heritage in NSW, is prepared to trust the ATP to carry
out its heritage obligations. Commitments made by the ATP that they will
operate the forge as a going concern (should Wrought Artworks vacate) have
to be viewed in the context of the failure of the ATP to meet these
heritage obligations in the past. - If
the ATP is not able to secure another blacksmith operation to occupy Bays
1 & 2 for commercial rent (and there does not appear to have been any
attempt by the ATP to find out if such a blacksmith exists) then what is
the point of getting rid of Wrought Artworks who have been in the premises
for over 18 years. How will the ATP satisfy its commitment. Are Robert
Domm and Frank Sartor suggesting that they will come down, put on their
blacksmithing outfits and carry on the forge ? - If
the ATP is genuinely committed to preserving the blacksmithing forge, why
did they not approach Wrought Artworks if the question was about the
payment of a commercial rent – why is the ATP not prepared to look at
negotiating the terms of the commercial rent (such as a phase in over
time). - It
should be understood, that if the blacksmith forge remains vacant – it
will be possible for the ATP to apply to the Minister (Frank Sartor) to
change the existing conditions on the development approval. The Minister
under the Redfern Waterloo Authority legislation, only has to consult with
the Heritage Commission. The Minister is not bound by the existing
conditions and can overturn them. This will mean that Bays 1 & 2 could
be converted into office space. - There
is also the suggestion that the ATP may wish to use the forge as some sort
of heritage exhibition so that school children (and others) can see a
blacksmith at work. - The
recommendations of Godden Makay specifically stated that the forge was to
be a proper working forge. This was the commitment that had been made to
the former workers of the Eveleigh railway yards. The blacksmithing skills
were to be maintained. Wrought Artworks has undertaken this obligation by
employing 3 apprentices. Godden Makay made it clear that the best way of
ensuring that the equipment remained operational was for a serious working
forge to be conducted from Bays 1 & 2. If Bays 1 & 2 are to be
turned into a historical exhibit (and not be a working forge) then the
equipment will deteriorate. - Godden
Makay were so strong in their views on this point, that they actually
recommended in the Management Plan for the conservation of heritage items
that Guido Gouverneur/Wendie McCaffley be allowed to continue conducting
the forge. They were named in the report.
Source: Wrought Artworks