The owner of Forrest Chase has launched legal action against the City of Perth, seeking a court order which would force the vacation and demolition of Bocelli's Espresso in Forrest Place.
The owner of Forrest Chase shopping centre has launched legal action against the City of Perth, seeking a court order that would force the vacation and demolition of Bocelli's Espresso in Forrest Place.
According to a writ filed with the Supreme Court of WA this week, superannuation fund ISPT has launched the lawsuit over allegations that the city had not made good on its promise to remove the cafe once its lease expired, which ISPT claims occurred three months ago.
ISPT has owned multi-storey retail shopping centre Forrest Chase for more than two decades, which sits immediately east of the city’s public pedestrian square Forrest Place.
In August of 1999, Ooranya and Bayswater Nominees entered into a lease with the City of Perth to run cafe business Bocelli's Espresso in Forrest Place, comprising a 66.1 square metre roofed café and an external alfresco area.
The lease was officially registered in 2001 and was due to expire on February 28, 2021.
But the City of Perth allegedly contemplated the relocation of the cafe and the redevelopment of Forrest Chase when it released the Forrest Place Masterplan in 2008, deeming it no longer suitable because it occupied a significant amount of civic space, obscured views to other shop fronts and created a dark alleyway between itself and Forrest Chase.
In 2015, the City of Perth development assessment panel approved ISPT’s $127 million redevelopment plan for Forrest Chase and noted ISPT's proposal to remove the café from Forrest Place.
Within that year, ISPT and the City of Perth executed a heads of agreement for the redevelopment and a deed of covenant restriction on future dealings with Bocelli Café, which stipulated that the city was not to renew the lease of the cafe after its expiry and demolish it at its cost.
The agreement contained a clause which stated that the city would indemnify ISPT from and against all loss or damage suffered if the city breached the deed.
In the writ, ISPT claims that despite the lease now being three months past its expiry, at the time of filing the claim, the café operators remained in possession of the premises and were trading as usual.
Prior to the expiry of the lease, ISPT claims it had reminded the city of its obligations on four occasions, including via written notice and in conversations with city planning staff.
According to the writ, ISPT claims the city issued the first notice to vacate the premises on February 24, before sending further notices on March 16 and March 26.
However, ISPT alleges that the cafe owners had not vacated the premises, leaving the City of Perth in breach of its deed.
ISPT claims the breach has caused it to suffer significant detriment that cannot be adequately compensated by damages, given the structure blocks the view to tenancies and access points to the retail complex and that its dated aesthetic was “completely incongruous” with the modern architectural concept.
The owners have sought a declaration that the city breached the deed by failing to take all reasonable and lawful steps to vacate the premises and orders that would require it do so in the next seven days by locking and boarding up the café.
The company has also asked for a court order which would force the demolition of the café within 35 days of obtaining the premises and indemnity for all loss, costs and damages arising from the alleged deed breach.
