Le Cornu site towers brochure cops massive legal threat
A multimillion-dollar legal threat has been levelled over “false and misleading” claims in a North Adelaide residents’ brochure on the effects of a $200m project in the suburb.
SA News
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A North Adelaide residents’ group opposing the $200m Le Cornu site redevelopment has pulled down a brochure following a threat of a multimillion-dollar damages claim.
Development company Commercial & General (C & G) ordered its lawyers, Minter Ellison, to send legal letters to Vital North Adelaide convener Robert Farnan over the brochure, which had diagrams of large parts of North Adelaide being cast into shadow.
The letters – obtained by The Advertiser – said an injunction would be sought if Mr Farnan did not withdraw the brochure, distributed to hundreds of North Adelaide residents and put on his website and social media.
Minter Ellison partner Adam Bannister told Mr Farnan’s lawyer, Mark Hamilton, that his client would be liable for legal costs totalling tens of thousands of dollars if the injunction was granted.
Mr Bannister also told Mr Hamilton that searches of Mr Farnan’s assets had shown he would be unable to pay a damages claim totalling millions of dollars if his “false and misleading” brochure adversely impacted the project.
“Our client will suffer financial loss or damage if its application for approval of the development is not accepted as a result of your (client’s) false representations,” he said.
Mr Bannister said Mr Farnan had “unlawfully sought to significantly increase the rate of objections, driving negative public sentiment” against the project, a joint venture with Adelaide City Council.
“It is apparent that the purpose of the brochure is to attempt to motivate, unfairly by reason of misleading statements, residents of South Australia, particularly those of North Adelaide, into lodging a submission with the State Commission Assessment Panel to oppose our client’s application for planning consent,” he said.
Mr Bannister said this could “adversely affect the marketability of the development to potential purchasers due to negativity from neighbouring residents”.
“Our client is concerned over losses associated with a reduction in interest of potential purchasers (and businesses seeking to lease space for accommodation) within the development and the negative effects of adverse public sentiment fuelled by your client’s conduct.”
Mr Bannister said pictures on Mr Farnan’s brochure which purported “to show the ‘approximate shadow paths during the day at key times of the year are both misleading and entirely unfounded”.
“The shadow paths are not based on the three-dimensional form of the proposed building but rather a theoretical building on a rectangular form extruding the entire footprint of the site to the maximum height of the proposed development,” he said.
Mr Bannister said sales staff in a display suite at the former Le Cornu site on O’Connell St had been confronted by “hostile” people “brandishing the brochure’.
“Our client will provide evidence to the court of exchanges with sales staff and persons attending at the sales centre for the development, brandishing the brochure created and published by your client, making unfounded claims based on that erroneous data,” he said.
Mr Bannister said C & G would “suffer financial loss or damage” if its application to build three 13 to 15 level apartment towers above a two-storey podium was not given final planning approval.
“Our client has a substantial business interest in the development and will lose many millions of dollars, including costs to date, should the planning application be rejected as result of your false representations,” he said.
Mr Bannister said the overshadowing brochure had led to C & G commissioning its own projections from its architects, Woods Bagot.
“The true shadow path from the development is significantly less than depicted in the brochure,” he said.
“Further, Woods Bagot have, using specialist software, made the shadow calculations based on the dates and times contained within the brochure.
“The results show that the shadow paths are materially different to what is depicted in the brochure.”
Mr Bannister said the brochure circulated by Mr Farnan and Vital North Adelaide was “designed to portray the effects of the development in a deliberately misleading and deceptive way”.
In his responses, Mr Hamilton said Vital North Adelaide did “not wish to engage in pointless disputation” with C & G.
“Our client maintains that the depictions do represent a reasonable ‘approximation’ of the shadow path,’ he said.
Mr Hamilton said the overshadowing brochure was prepared by Mr Farnan with the assistance of an “experienced professional”.
“Experienced professionals were engaged to prepare the depictions and our client has good reason to believe in good faith that the approximate shadow path depictions are a reasonable approximation,” he said.
Mr Hamilton said the brochure had been revised as a result of Mr Bannister’s letters.
“Under initial review, the approximations may immaterially exceed the path at the very extremities,” he said.
“Our client will arrange for the approximate shadow path depiction to be adjusted.
“However, this does not render the approximate shadow path depiction materially inaccurate.”
Mr Hamilton said Minter Elliston’s letters to Mr Farnan were “just an attempt to bully our client”.
“Your client has chosen to market its proposed development before it has obtained a final development approval,” he said.
“There is a judicial review in the ERD Court under way. In addition, it has applied for a further development approval, involving a public consultation process.
“It has mixed the development consult process with a judicial review application and a marketing campaign.”
Mr Hamilton said a marketing campaign for a project on the scale of the Le Cornu development “would typically occur once final approval was obtained”.
Contacted for comment, Mr Farnan said he had complied with the legal demands by removing the brochure from his group’s Facebook page and website.
“It was pretty nasty stuff and quite unpleasant,” he said.
“I saw it as a personal threat and a financial threat.”
The judicial review against planning approval granted for the project by the State Commission Assessment Panel will be heard in the Environment, Resources and Development Court late next month.
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