LOCAL residents who had been hoping to soon regain access to Montfort Park in Brunswick face another wait with the occupant of the land appealing against a court decision ordering it to relinquish control.
After a long-running legal dispute, in July the Victorian Supreme Court ordered the Dar-Alawda (Wendel Street) Community Centre to give the land at the corner of Henkel and Wendel streets back to Merri-bek Council by last Friday, September 22.
But the organisation has now lodged an application for leave to appeal against that decision to Court of Appeal, potentially dragging the saga out for another few months.
The move to appeal against the decision by Supreme Court Justice Melinda Richards was not wholly unexpected but is a blow for residents of nearby streets who have been fighting to gain public access to the land for almost a decade.
Dar-Alawda’s president, Anthony Helou, said the organisation had done nothing wrong and that the Supreme Court decision had been overly harsh.
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Dar-Alawda – an Arabic-Australian community organisation also known as Dar-Al Awda and Dar Alawda – bought the land and adjacent buildings from the former Moreland Council for just $100,000 in a controversial deal in 2004 on condition that it would continue to allow public access to the site, which for many years was a small grassy park.
The organisation’s president Anthony Helou is a former Moreland Mayor who was still a councillor at the time of the land sale, which was $430,000 below the market value in 2004.
Over the years, Dar-Alawda has replaced the grass with a hard surface, erected basketball goals, and surrounded the park with a three-metre tall metal fence which residents complained was always closed.
According to “Open Space Rules” displayed at the site and on the community organisation’s website, public access must be booked between 10am and 5pm on Tuesdays to Sundays and is only available to people who have been accepted as associate members of Dar-Alawda.
Henkel Street resident Katie Fraser, who has been part of the campaign to restore ownership of the land to the council, said the public had only been allowed access to the park once in the past eight years on an open day organised by the council.
Moreland Council commenced legal action to reacquire the land from Dar-Alawda in 2015 after the organisation had been issued with a notice of default for being in breach of the conditions of its original purchase.
Dar-Alawda fought all the way to the Supreme Court, where it was ultimately unsuccessful with Justice Richards ordering it must sell the land back to the council for $579,500. She set a deadline of 4pm on September 22 for ownership to be transferred back to the council.
In recent weeks, a new sign has been pinned to an outside fence explaining the terms and conditions of access to the park, which include applying to Dar-Alawda for permission. This appears to be in response to an adverse finding by Justice Richards that the terms of access were opaque and a similar sign inside the park was obscured by a tree.
Merri-bek Council declined to comment apart from confirming Dar-Alawda had sought leave to appeal.
Helou said Dar-Alawda disagreed fundamentally with the Supreme Court decision and was exercising its right to appeal. He claimed the organisation had been a victim of a political campaign by the council which had favoured a small minority of residents.
“We respect the judge’s decision but believe she was very, very harsh on us,” he said.
“We were so surprised by the decision and have decided to appeal because we’ve been here 35 years and we’ve spent on the property over $2 million and the council did not contribute one cent. We’ve done nothing wrong and I have materials to support that.”
Helou said if Dar-Alawda was forced to vacate the site, it would be “a disaster” for the organisation.
“Our organisation is made up of older people and youth and we’ve been there 35 years, not just overnight … we would be very, very disappointed,” he said.
Dar-Alawda’s solicitor, Faddy Zouky, said the organisation had been unfairly treated and would be appealing on several grounds.
He said Dar-Alawda would argue there were errors of judgement by Justice Richards because the council notices of default issued to Dar-Alawda were defective and invalid; that exercising its right of forfeiture of the entire property was harsh and unfair; and that local residents had failed to make valid applications to be associate members of the organisation.
Zouky said that if Dar-Alawda was forced to sell the property back to the council for the price of $579,500 it would be left with less than $100,000 after taking out legal costs, despite having invested well over $1 million over the years.
“We’ve been here 35 years and we’ve spent on the property over $2 million and the council did not contribute one cent. We’ve done nothing wrong.”
Dar-Alawda president Anthony Helou
Fraser said the local community was “super-excited” about gaining access to the park, but she was not surprised Dar-Alawda was appealing against the Supreme Court decision.
She said she remained confident the decision in favour of the council would be upheld on appeal and residents would just have to bide their time until then.
“This huge process really started when my daughter was about two-years-old, and she’s now 10 and she’s never had access to the park,” she said.
“So to finally have a chance to get that park back in public hands, for everyone to be able to get access is just phenomenal.”
Merri-bek South Ward Councillor Mark Riley said he hoped the matter would be settled once and for all very soon and he was also confident the appeal would be unsuccessful.
“It’s been disappointing the whole way through this process because they [Dar-Alawda] have fought every part of the way,” he said.
“There’s been points where they could have settled and sorted this out to the satisfaction of all parties – the council, the community and the occupant – but that’s never been entertained by them.
“These are very expensive processes for everyone, including the community who have had to wait so long for access and unfortunately now we’ve got to wait for this appeal and see what the outcome is.”
In the meantime, Fraser has organised an an online survey for people to have input about what they would like to see happen to the land if the appeal is rejected and the council regains ownership.
“I think that different people across the neighbourhood have different ideas about what the park should look like,” she said.
“I’d certainly love to see green space restored, and maybe a playground where kids can play, some public veggie beds, and stuff like that.
“Another question is whether you’d like the fence to come down, because that fence is just ridiculous and I would love to see it just taken down so that people could really have access.
“But I don’t know if everyone will agree with me. So we’ll just see what process council runs, and in the meantime, I’ll just start to have chats with my neighbours and see if we can get some of those ideas together.”
Peter Hannaford has lived in nearby Lyle Street for 43 years and said before Dar-Alawda took possession, “the little park at the end of the street” had always been in use by the local community.
He said Dar-Alawda had gained ownership of the land through a “dubious” process and the lack of public access had been a constant cause of frustration in the neighbourhood.
In 2019, he drew on his memories to produce an oil painting of Montfort Park circa 1990, which was hung at the Counihan Gallery. The painting depicts what Hannaford says was a typical day at the park, with children playing cricket with wickets painted on the red brick wall of the warehouse next door, while a man walks his dog.
He has already approached the council about gaining access to the former Scout hall which is also part of the property so it can be used for classes run by the University of the Third Age.
“Other voluntary community groups could use parts of the hall at the same time, or at other times,” he said.
Mother of two Kate Bubb, who has lived in Henkel Street since 2014, said it had been disappointing to see a community asset locked up and inaccessible but she was excited it will soon be open again.
“There are kids who play basketball and other sport in the street, but my kids can’t because they’re too little and it’s not safe,” she said.
“But when this is open, they could run around and I don’t have to worry about them getting run over. We’d also be able to use the hall.”
This story has been updated with comments from Anthony Helou.