Australia, Nov. 30 -- New South Wales Land and Environment Court issued text of the following judgement on Nov. 29:

1. This is an appeal pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by Woollahra Municipal Council of a development application (DA 243/2023) for the use of the Village Inn Hotel at 9-11 Glenmore Road, Paddington, as a shop; and, therewith, the associated works to facilitate that use. The case hinges on the Hotel's heritage status and the impact upon what is a significant local establishment were it to cease trading as a licensed premises.

2. Currently operating as a licensed hotel/pub, still a distinctive landmark despite modifications, the premises are identified as an Item of local heritage under Sch 5 Pt 1 of the Woollahra Local Environmental Plan 2014 (LEP). Built in 1851, the Rose and Crown (and Durty Nelly's), stands as one of the earliest established hotels in Paddington; one of the longest serving hotels in the Paddington Heritage Conservation Area (HCA).

3. The Statement of Significance for the Item identifies its continued use and operation as a "pub"; and its being an element of historic, social and cultural significance. It has been asserted the proposed cessation of that use affects the heritage significance of the Item, which makes it a relevant consideration in the assessment of this DA under cl 5.10(4) of the LEP. Relevant also, is the consideration that cl 5.10(10) provides incentives for adaptive reuse of heritage items in particular circumstances.

4. In conceding its historical significance, the applicant submits this application should not be assessed as a "change of use" application because "...the cessation of the use of the Item as a pub is simply a 'by-product' and not actually 'the development' that is required to be assessed under s 4.15 of the EPA Act" (Tcpt, 15 August 2024, pp 25-27 and 145-146). The applicant argues the community's expectation that "special reason needs to be demonstrated for changing its use, the existing use", is erroneous, a misconception (Tcpt, 15 August 2024, p 145); and that there is no requirement at law to obtain development consent to cease the current operation of the Hotel. The Village Inn, the applicant maintains, could cease trading and no DA consent would be required to do so.

5. Properly focused, the applicant submits that what is being applied for is an application to use the site as a shop. It follows, the applicant asserts, that the social planning evidence brought forward by the Council dealing with the cessation of the establishment's current use as relevant under s 4.15(1)(b) of the EPA Act is, in fact, irrelevant. It does not arise on the facts. Nor does the economic impact derived from anything to do with the financial viability of the Hotel. The applicant argues that cl 5.10(4) asks for a consideration of the impact of the development, the retail use, on the heritage significance of the Item or area and not the impact of a loss of the use of the Hotel (Tcpt, 15 August 2024, p 27(25-30)).

6. The Council disagrees. The Hotel's heritage significance rests with its continued operation as a pub, it maintains.

7. It follows, therefore, whatever way it is viewed, this application turns on the change of use of an operating hotel to become a shop, and whether this should change should be allowed on the evidence.

Decision

8. Clause 5.10(4) of the LEP called up by s 4.15 of the EPA Act mandates consideration of the impact of the development on a heritage item. In this case, the continued operation of the Hotel has been specifically identified as an element of its heritage significance; and the loss of that pub-use is, on the current evidence, an adverse heritage impact that must be avoided.

9. While I understand all too well that I cannot force the continuation of the Village Inn's operation as a pub, in the absence of satisfactory evidence which demonstrates that the existing pub use is unviable, I am not prepared to approve the proposed change of use to a shop as this would adversely impact the primary heritage significance of the Item being its use as a pub. My reasons follow.

Facts

10. The NSW Heritage Inventories (SHI) provides the foundation for the Item's statutory heritage listings, both as an individual heritage item and as part of the Paddington HCA. The SHI also enables an understanding of the significance of a place to be communicated.

11. Whilst there are some instances where the SHI forms supporting heritage are outdated, as Ms Holtham identifies in her evidence, the subject SHI form is both detailed and recent.

12. The Statement of Significance for the subject site states:

"The Village Inn, formerly the Rose and Crown Hotel, and Durty Nelly's, was built c.1851 as a small but fine Victorian period, Classic Revival/Italianate hotel, to draw upon the increasing trade along the South Head Road, and in particular the new military barracks whose construction stimulated both building work and settlement in the emerging Paddington area. Around it, built at first were small homes for the workers building and serving the new barracks, forming the village which was quickly to grow and consolidate, becoming increasingly urbanized through densely composed terrace house rows.

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19374a1c48bad6b87b5b8f37)

Disclaimer: Curated by HT Syndication.