“Lochiel” Loses its Legs
Ralph Devlin SC
On 5 October 2010, the Corporation RPD Qld Pty Ltd and its Executive Officer,
Raymond Catelan, pleaded guilty to charges of carrying out development works on a
Heritage-Listed dwelling in the suburb of Hamilton in Brisbane, without a permit to do
so. The name of the dwelling is “Lochiel” and what happened to this historic building
is a sad and sorry tale – and a cautionary one.
RPD was fined $250,000 and its Executive officer was fined $100,000, sizable fines
in the world of Environment and Heritage protection in Queensland.
Lochiel was entered into the Queensland Heritage Register on 28 May 1999.
The cultural heritage significance of Lochiel is described by Environmental
Resources Management Australia as:
“…highly idiosyncratic, architecturally unique and it is a rare example
demonstrating the evolution of a 19th century Queensland suburban house
with significant fabric from the 1860s, 1906 and 1927 evident”.
On 24 June 2006, the defendant bought Lochiel through his company RPD for
approximately $6.5 million.
The works were carried out by Michael Goetz of MCG Builders over a 13 month
period. I shall return to the role of Goertz later.
On 20 September 2006, Black & White Pest Control inspected Lochiel to review
termite damage.
They issued a quotation and contract (No. 3840) stating that
“termite damage goes from subfloor to the roof randomly throughout the structure,
needs urgent attention”.
On 26 March 2007, Jacqueline Pearce, heritage architect, issued a quote to the
defendant for veranda alterations at Lochiel. The quote outlined that “Lochiel” was a
heritage listed property and that it was necessary to apply to the Queensland
Heritage Council to seek approval for the works.
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On 13 April 2007, Bruce Mason, architect, issued a quote to Mr Catelan for
alterations and adding an extension at Lochiel. The quote outlined that Lochiel was a
heritage place and the development proposal would require “impact assessment”.
The matter came to the attention of the Department of Environment and Resource
Management by way of complaint of a local resident on 10 December 2007.
On 13 December 2007, an inspection was carried out by DERM officers who
observed significant building works at Lochiel.
Mr Goetz, the builder conducting the works, was onsite at the time of the inspection
Mr Goetz said that he was conducting the works under the direction of Catelan and
that both he and Catelan were aware that the place was Heritage listed.
On 17 December 2007, DERM sought and obtained a ‘stop order’ under section 154
of the Queensland Heritage Act 1992. This order prevented any more work being
conducted at Lochiel.
On 20 December 2007, Catelan participated in an interview with DERM officers.
It emerged that the defendant’s primary motivation for conducting the works was to
please his daughter who was living or was planning to live at the residence. A
secondary motivation was to remedy some existing problems at Lochiel caused by
termite damage.
Catelan admitted that he intended to carry out the works and then subsequently seek
the necessary approval from the authorities. Catelan conceded that he was aware
that he required a permit to conduct works on the property.
The details and effects of the unauthorised works at Lochiel were addressed in a
series of reports by heritage experts commissioned by the defendant and DERM.
John Hoysted was one of those experts.
As you have heard, the reports commissioned by DERM demonstrated that the
offending resulted in some permanent and irreversible loss of an essential part of
Lochiel which cannot be restored and that, consequently, the heritage values of
Lochiel were significantly reduced as a direct result of the unauthorised works.
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THE REMOVAL OF HIGH SIGNIFICANCE FABRIC CAUSING A
PERMANENT AND NEGATIVE IMPACT TO HERITAGE VALUES – IRREVERSIBLE
The North Wing foundations consisted of early original fabric dating from a period
between the 1860’s and the 1880’s.
The original material was lost, the impact of those works was significant and
irreversible.
An unknown number of original remaining brick piers were removed as foundations
for all of the timber sections of the house and were irreplaceable.
This had a
significant impact on the Heritage fabric of the house. Original foundation walls in the
cellar room date from the 1860-1880 period. A reconstruction of these walls was
later approved, but the original fabric was lost and the impact on the Heritage value
of the house was substantial.
INDIVIDUAL
ITEMS OF WORK THAT HAVE RESULTED IN A NEGATIVE BUT
REVERSIBLE IMPACT ON HERITAGE VALUES
This work had an adverse impact on the Heritage values of the basement walls. The
subsequently approved work was an attempt to recover some of the Heritage value.
The timber wall framing was to be removed from the stone walls and the concrete
dwarf walls were also to be removed once a methodology for their removal was
developed, tested and agreed with the Heritage authority. Door and window
apertures were widened, which involved the cutting away of brick quoins and
stonework, and the insertion of steel support columns. The size of window openings
along the south wall of the 1860’s cellar were increased during the unauthorised
works. The installation of a structural steel support system in the foundation areas of
“Lochiel” was to be brought about by the aggressive and extensive nature of the
unauthorised works. The stability of the 1860’s – 1880’s brick and stone masonry
foundation of the house relied upon it retaining its integrity; as soon as this original
structural system was interfered with, it became unstable, requiring the installation of
structural steel supports.
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MICHAEL GOERTZ, THE BUILDER
It seems like an appropriate time to return to the role of Catelan’s builder, Michael
Goertz in this saga: He was caught “red handed” on the site, and decided to cooperate with the authorities.
On 15 June 2009, Goetz provided a written statement under section 13A of the
Penalties and Sentences Act 1992 Goetz revealed the true extent of Catelan’s
offending:
(a) “About half way through the work I undertook on ‘Lochiel’ Ray Catelan
indicated to me that he was applying to have the works approved as the
house was heritage listed under the Queensland Heritage Act 1992.”
(b) “From time to time Ray Catelan would instruct us to get part or a phase of
the building work done as quickly as possible, so that neighbours wouldn’t
make a complaint about the work being done on the house.”
(c) “Ray Catelan also asked me to put up ply wood screens on the front gate
so neighbours couldn’t see the work being done on ‘Lochiel’.”
(d) “After the EPA arrived on site at ‘Lochiel’ in December 2007 I had a
conversation with Ray Catelan in person at his home regarding some
photographs of the work I had undertaken on ‘Lochiel’. Ray Catelan told
me to get rid of the photos which I had taken or put them in the back of
the filing cabinet where they couldn’t be found.”
On 22 June 2009, Goetz pleaded guilty in the Brisbane Magistrates Court and was
convicted and fined $15,000.
No conviction was recorded.
The Magistrate
commented that the penalty imposed on Goetz would have been $40,000, had he not
given the witness statement. The maximum penalty available as against Catelan and
Goetz under s.4.3.1 IPA was 17,000 penalty units or $1,275,000. As against RPD,
the Corporation, the maximum penalty was $6,375,000.
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THE CAIRNS COURTHOUSE CASE
The decision in the Cairns Courthouse case by acting Magistrate McFadden on 30
October 2007 was a useful starting point in determining the penalties to apply to all 3
offenders.
For prohibited works of a significantly more minor nature upon the Heritage-listed
Cairns Supreme Court House, two corporations were fined $40,000. A director and
shareholder of one of the corporations was fined $20,000, and an employee of the
second corporation was fined $10,000. The builder, again after agreeing to give
evidence against the other parties, had his fine reduced from $5,000 to $2,500.
John Hoysted has taken you through the relevant features of the reduction in
Heritage values which emerged in the Cairns Courthouse Case.
THE COURT’S DECISION AGAINST RPD AND CATELAN
Magistrate Payne delivered the final brief decision on penalty:
“I take into consideration, firstly, the heritage value of the home, which, in
paragraph 9 of the outline, says that the property has cultural heritage
significance and is described by Environmental Resources Management
Australia as highly idiosyncratic architecturally unique and it is a rate example
demonstrating the evolution of a 19th century Queensland suburban house
significant from the 1860s, 1906 and 1927 evident.
In relation also to the matter, that the works carried out by the defendants was
extensive and that the defendants were aware, by their own experts, and had
been advised prior to any works being carried out, the need for approval of
works to “Lochiel” as it was a heritage-listed property, also, that the
defendants have entered a plea of guilty and the plea was entered some time
ago; that neither defendants have any history, criminal or other history
relevant to these proceedings; that there has been significant efforts at
compliance, and where possible, rectification. The costs to the defendants, in
this regard, and also that what has been put before me that, considering the
state of the property, it is evident that it was necessary that certain works be
conducted.
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The defendant, Catelan, is convicted and fined $100,000, allowed three
months to pay in default levy in distress.
The company is convicted and fined $250,000 and ordered to pay
professional costs in the amount of $20,000, allowed three months to pay in
default levy in distress.”
The Court did not record a conviction against Catelan or RPD.
RALPH DEVLIN SC
May 2012