Australia, July 18 -- New South Wales Land and Environment Court issued text of the following judgement on June 17:

1. Bowie Ferris Investments Pty Ltd (Appellant) has appealed the decision of a Commissioner of this Court, in dismissing its appeal for development application DA 243/2023 (DA). The DA sought approval for development described in the DA as "change of use from Village Inn Hotel to retail on the ground floor and office on the first and second floors and minor works, including modified shopfront, internal floor plan changes and identification signage".

2. The Village Inn Hotel was located at 9-11 Glenmore Road, Paddington NSW 2021 (Building). The Building was identified as an item of local heritage significance pursuant to the Woollahra Local Environmental Plan 2014.

3. The Senior Commissioner delivered reasons for her decision in Bowie Ferris Investments Pty Ltd v Woollahra Municipal Council [2024] NSWLEC 1774 (Reasons). The facts as set out in [10]-[21] of the Reasons are adopted here without repetition.

Grounds of appeal

The Appellant has raised two questions of law in this appeal in that:

(1) The Senior Commissioner made an error on a question of law, by characterising the issue to be determined under s 4.15(1)(a)(i) of the Environmental Planning and Assessment Act 1979 (EPA Act) and cl 5.10 of the Woollahra Local Environmental Plan 2014 as 'the impact of the cessation of the pub use'; being a misdirection where the correct issue was the impact of the proposed development, being the proposed shop. (Ground 1)

(2) The Senior Commissioner made an error on a question of law by:

(a) finding that it was necessary to establish that the continued operation of the current pub use was 'not viable' or 'unviable'; and

(b) finding that it was necessary to adduce evidence as to 'the market value' of the existing pub or evidence of the 'profit and loss' of the existing pub;

before consent could be granted to the development; being a misdirection where such matters are not relevant considerations under s 4.15 of the EPA Act. (Ground 2)

Ground 1 - The Senior Commissioner erred on a question of law by focusing on the issue of cessation of pub use on the heritage significance of the Building Ground 1 concerns the Senior Commissioner's findings at [95]-[104] which culminated in her findings at [8]-[9] and at [104] that the DA should be refused as:

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. ...

...

104 ...the removal of the pub use directly and adversely affects its heritage significance of the Hotel in contravention of the aims of the LEP in cl 1.2(2)(f) and of the relevant heritage conservation objectives and provisions in cl 5.10.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/197760314adcff7b317d37e7)

Disclaimer: Curated by HT Syndication.