Should pubs be allowed to trade on the footpath?

My last post concerned the views of Danish architect Jan Gehl on creating street level, active urban spaces for people.

On the same theme, a recent article in the Melbourne Age highlights the conflict between the Grace Darling Hotel in Smith Street, Collingwood and the City of Yarra council.

Permanent tables and chairs, which had existed since 1993, were removed last year and replaced with park benches, bicycle hoops and mature trees to provide more public meeting spaces.

Mayor Allison Clarke said that the Council had no intention of phasing out outdoor trading on side streets, but that it was important to have some places where you can just sit and not have to pay.

http://bit.ly/kSQ9QA

Jan Gehl speaks in Melbourne about the future of Urban Property Design

Jan Gehl spoke recently in Melbourne about urban design and the increasing connections between physical form and human behaviour.

Jan is the retired Professor of Urban Design, The School of Architecture, The Royal Danish Academy of Fine Arts in Copenhagen, and frequent visitor to Melbourne.

The traditional city is a mix of streets and squares: meeting places; market places; and connections spaces.  People travelled on foot.

Before the 1960s, cities expanded by adding small units on a human scale.

There was a change in the paradigm in the 1960s. Cheap petrol led to the car invasion.  Traffic planners focused on making room for more traffic.

Jan compared “5 km/h architecture” (small spaces; signals; details; people; distant views) with “60 km/h architecture’.

In the 1960s, there was a move to dropping modern towers from the sky and putting grass around them at the base.  Architects took a bird’s eye view: rapid growth; large units.  Nobody was looking after the people at the 5 km/h scale.

Jan discussed Jane Jacobs success to stop a cross Manhattan freeway and her book “The Death& Life of Great Cities” 1961.

He compared this with the Brasilia syndrome of 1955: city planning from 5,000 metres.  The city looks like an eagle from above, but shit at street level; at people scale.  The waterfront in Melbourne and downtown Dubai are similar examples. Jan showed a slide of architects looking down from above over a scale model of a new building of towers and tubes.

Architects are more and more focused on form.  The units are getting bigger and bigger, but people are still slow and small.  Jan referred to this as scale confusion.

The interaction between form and life; that’s what makes good architecture.

The most important scale is people scale – eye level – lively city; attractive city; sustainable city; healthy city – means less stress; less noise; less pollution – more walking; more bicycles; good public transport at any time of the day or night – more inviting to sit and linger longer.  While more roads, means more traffic,.

Copenhagen has a citywide network of bicycle lanes protected by kerbs and protected by moving out the line of parked cars.  Taxis must be fitted out to take at least 2 bikes.  Likewise trains are designed to take bikes.  The bicycle culture was developed step by step.  More cafe seats.  Designing streets and cross streets to make walking across the city easier.  Most streets have 2 side walks; 2 proper bike lanes; median strips and 2 lanes for 2 way traffic.  Designed to be safer to walk to school.  Building cities for the 21st century.

Jan’s latest book is “Cities for People”.

The talk was as part of a series by Melbourne Connections sponsored by the City of Melbourne.  The talk will shortly be available on podcast with ABC’s Big Ideas.

The next Melbourne Connections talk will be on 25 May at 6 pm at the Melbourne Town Hall: Contemporary Art: 50 years of the National Gallery of Victoria.

Who owns your emails? Are they property?

Oswal v Carson involves an application for an interlocutory injunction by the wife of the former managing director of a company in receivership to restrain the receivers having access to her emails hosted on the company’s server.  Mrs Oswal alleged that the emails were her property and did not relate the business of the company.

The plaintiff submitted that there is a serious question to be tried on the question of whether the plaintiff’s emails sent and received were documents which were owned by her. Merely because the data was stored on the company’s servers or on other computer equipment did not mean that the company owned the data. It was submitted that the emails are not Charged Property and therefore cannot be managed, controlled, possessed or accessed by the receivers…

First, senior counsel for the defendant did not concede that the “zeros and ones” (using his words) on the database comprising the emails constitute property or property of the plaintiff. In particular, senior counsel directed my attention to the plaintiff’s statement of claim, specifically paragraphs 4(a) to 4(c) inclusive in which the plaintiff seeks to make out a claim to protect allegedly confidential information without specifying the content of the confidential information. It was submitted on behalf of the defendants that it is not open to make a global claim of confidentiality.

It was submitted by counsel for the receivers that Mrs Oswal had shifted ground to focus on the issue of ownership of documents rather than whether they were confidential or privileged.

The Court considered the company’s IT policy which provided that all emails should be considered company information.  Counsel for Mrs Oswal submitted that she was not an employee or contract of the company and has no knowledge of the IT policy.

On the question of prejudice, senior counsel for the defendants submitted that any hurt or loss from disclosure of private material could be compensated for by an award of damages for any loss or damage which might result to the plaintiff personally or to the plaintiff’s restaurant business. Whilst courts are equipped to make assessments of loss and damage of this kind, this would not be a complete remedy in this case. If the receivers were to have access to the emails, the plaintiff would, for practical purposes, be denied the right to assert that they are not properly part of the Charged Property and should not be accessed at all. In my view, this would constitute significant prejudice and would cause injustice to the plaintiff.

The Court granted the interim injunction, stating that -

In my view, in this finely poised matter, the course which appears to carry the lower risk of injustice is to grant an interlocutory injunction to maintain the status quo for a very limited period to enable the plaintiff to have an expedited trial on the preliminary question of ownership of the emails. The injunction will last only until the trial of that preliminary question or further order.

http://www.austlii.edu.au/au/cases/vic/VSC/2011/70.html

Damages for breach of contract for sale of development property

Portbury Development Co Pty Ltd v Mackali considered the requirements of a notice of rescission of a contract of sale of a development property and an assessment of the Vendor’s damages.

It is fundamental that damages for breach of contract are awarded in order to place the injured party, so far as money can do it, in the same situation as if the contract had not been breached but had been performed.  Thus, the basic measure of damages is constituted by the difference between the position, in which the plaintiff would have been, if the defendant had performed the contract of sale, and the position which has resulted as a consequence of the defendant failing to complete the contract of sale.

http://www.austlii.edu.au/au/cases/vic/VSC/2011/69.html

Value of compulsory acquisition by VicRoads

The Supreme Court of Victoria case of McCann v Roads Corporation considered the valuation of land compulsory acquired by the Roads Corporation to build a bypass road near Geelong.

The question was whether the land should be valued as agricultural land or as a potential residential development.

The Court accepted expert evidence that the power line easement formed a “defensible boundary to prevent uncontrolled urban sprawl”.

The answer to the preliminary questions is as follows:

For the purposes of assessing market value of the land in the ‘before’ situation under the Land Acquisition and Compensation Act 1986 (Vic), what would have been the zoning of the land or any part of it at the acquisition date?

Answer: the whole of the land would have been zoned Rural without any public purposes overlay for the purpose of the Bypass.

If the answer to question (1) is that the land, or any part of it, would not have been zoned for residential use at the acquisition date:

What were the prospects of the land, or such part of it, being re-zoned for such use at any time after the acquisition date?

If there was any such prospect of the land being re-zoned for residential use, when would such re-zoning be anticipated to occur?

Answer: the land east of the power line easements was ripe for residential rezoning within two years subject to a residual risk of 20 per cent that this would not occur for a period of five years and subject to the provision of a riverside buffer zoned Public Reserve and Conservation Zone.

http://www.austlii.edu.au/au/cases/vic/VSC/2011/96.html

Hobsons Bay Council evicts trespassers from boatsheds #AusLaw

Boat sheds around Melbourne’s Port Phillip Bay are prime real estate.  Here’s an extract from a recent Victorian Supreme Court case. 

On the northern bank of the Kororoit Creek in Altona is an area known as the Kororoit Creek Fishing Village. The Fishing Village was established during the nineteen-twenties when the land was privately owned by a Mr Knowles. Various rudimentary structures described as fishing huts or boatsheds formed part of the Village. Mr Knowles made them available for use for a modest annual fee.

The Hobsons Bay Council brought this proceeding against the current occupiers of the boat sheds, seeking declarations that the twelve were trespassers, and mandatory injunctions requiring them to vacate the sites and to remove their improvements and property from the sites.

The Defendants assert that they have an irrevocable licence over the land in question, on equitable principles. They rely in particular on the principles of proprietary estoppel.  They say that they are entitled to remain in occupation of their sites indefinitely, subject to payment of reasonable licence fees and Council rates, and to transfer their rights to others as they see fit.

The Council contends that the Defendants merely had revocable licences which had all come to an end before the commencement of this proceeding. Further, it contends that any estoppels that might otherwise have arisen have been prevented from arising by statutory provisions relating to local government in force in Victoria from time to time during the periods in question. On the other hand, during the hearing of this case, the Council made an open offer of settlement to the Defendants under which, subject to the defendants paying the Council’s costs of the proceeding, each claimant would be granted a fresh licence with a term of 5 years, which is now the standard term applicable to the other boatshed holders at the Village. The offer was not accepted. 

The Court referred to the principles stated by Fry J in Willmott v Barber, were well settled:

(1) The person infringing the rights of the owner must be mistaken about his rights;

(2) The owner must know his rights are being infringed;

(3) He must know that the infringer is mistaken;

(4) The owner must fail to warn the infringer or assert his rights;

(5) The owner’s silence must induce the infringer to continue in his mistaken belief;

(6) The infringer must have altered his position on the faith of his mistaken belief by spending money or doing work on the property.

 

A heritage study done on behalf of the Council in 2004 noted that “R. Baker’s hut 17 had beds, sink and a TV with a clothes line full of washing at the back”.

Mrs Gibbon is a retired widow. In 1993 she and her late husband paid $25,000 to the prior holder of site 3, Mrs Thompson, for a transfer. Mrs Thompson was herself a widow at that time. She and her husband had been living there for many years “with the Council’s permission or ignorance”. Mr Thompson had been a fisherman. The two husbands had known each other. The price of $25,000 accorded with the Council valuation of site 3 at the time. In 1993 the “boatshed” had had a couple of bedrooms, a lounge, kitchen area, shower, toilet, hand basin and sink, ie facilities that had enabled the Thompsons to live there. It had running water and electricity. Its condition was “pretty ordinary”. There was no boat in it. The Gibbons intended to use it mainly as a weekender and as a place to be with their children and grandchildren. They made no inquiries of the Council before they acquired it. The parties informed the Council shortly afterwards that there had been a “change of ownership” and requested that all rates, levies and taxes be thereafter charged to Mr and Mrs Gibbon. The charges were then duly paid until the outbreak of the recent dispute. As far as Mrs Gibbon knows, despite contact between the Gibbons and the Council from time to time over the years, nothing was said to either of them by the Council about the terms of their occupation until the recent dispute broke out. When the Gibbons acquired the place Mrs Gibbon did not think that there was any limit on how long they could stay there. However Mrs Gibbon could not give a reason why she thought that they could retain the place indefinitely. “I just – I presumed I suppose inadvertently apparently”.

Until about October 2006 Mr Waters had had no connection with the Village. At about that time a friend told him that a boatshed was for sale at the Village. It was Mr Ken Kilby’s boatshed on site 11. Mr Waters made contact with Mr Kilby. He was shown the boatshed. It had been divided into numerous rooms, with sleeping accommodation for up to 10 people. The back area was on a concrete slab. The shed was in very bad shape. It was messy, smelly and damp and the electrical wiring was dangerous. Mr Kilby told Mr Waters that there was a “permissive lease”. Mr Waters understood that to mean that there was a “[k]ind of verbal arrangement of a year to year thing”.

 The Court found in favour of the Council.

http://www.austlii.edu.au/au/cases/vic/VSC/2011/140.html

Wanted business coach for lawyers #AusLaw

The Mornington Peninsula Lawyers’ Association meet every second month for dinner. 

We have had a cancellation for Thursday 26 May.  We are looking for a speaker to talk us about business development for lawyers. 

Know anyone who can help out?