Cheers! HWL Ebsworth celebrates novel win for Woollahra ...
Woollahra Municipal Council, represented by HWL Ebsworth Lawyers, has successfully opposed a development application for the change of use of a historic pub, the Village Inn at 9-11 Glenmore Road, Paddington, purely on the basis that the cessation of the existing use would have unacceptable heritage impacts.
In her decision, Senior Commissioner Dixon of the Land and Environment Court determined that the use of the pub, which has continuously operated since 1851, was integral to the heritage significance of the site. Consequently, the adverse heritage impact of the change of use – which was a mandatory consideration under clause 5.10 of the Woollahra Local Environmental Plan 2014 – meant the development application must be refused.
BackgroundThe proceedings were commenced against Council’s deemed refusal of the development application, which sought consent for the change of use of 9-11 Glenmore Road, Paddington from a hotel to a retail fashion store, with associated shopfront, internal layout and signage works to the Site (Development Application). The Site is listed as a Heritage Item under the Woollahra Local Environmental Plan 2014 (WLEP). The Development Application was subsequently refused by the Woollahra Local Planning Panel.
At the hearing, Council’s main contention, supported by the evidence of their external heritage expert, was that the heritage significance of the Site was inextricably linked to its historic use as a hotel, and that without adequate justification, the adverse heritage impact of the change of use was unacceptable. Council’s heritage expert relied on the detailed statement of significance included in a recent case study of Paddington pubs, as well as the statement of significance of the Paddington Heritage Conservation Area in Part C of the Woollahra Development Control Plan 2015 (DCP).
The Applicant maintained that although the use was relevant to the heritage significance of the site, the change of use was justified as the adaptive reuse of the building was envisaged by the DCP and as the current pub use was unviable. The Applicant’s position was supported by its independent heritage expert critically, despite requests from Council for independent financial expert evidence, the only information used in the proceedings to justify the claim that the pub use was unviable were the results of one unsuccessful marketing campaign by a real estate agent.
The Applicant also argued that in circumstances where it could (voluntarily) cease the use of the pub, the loss of the pub use should not be something factored against the approval of the development application.
FindingsThe Senior Commissioner confirmed that in accordance with section 5.10(4) of the WLEP, the Court was required to consider the effect of the proposed development on the heritage significance of the item. Accordingly, as the development application proposed a change of use, the Court had to consider what effect this would have on the heritage significance of the Site – even though there was no legal requirement for the Applicant to continue to operate the pub itself.
As noted at Paragraph 98 of the judgment:
‘I accept that it is not in the Council’s remit to insist on maintaining a use that is unviable or to refuse consent for a use that is permissible within the zone where it will have minimal and acceptable heritage impact on the fabric of the building. That is not the case under assessment. The loss of the use of this pub is relevant because of the requirement to give consideration to the effect of the proposed development on the heritage significance of the Item under cl 5.10(4) of the LEP.’
In light of this, the key issue was whether the change of use would impact the heritage significance of the site, which was a mandatory consideration under clause 5.10 of the WLEP, and whether the Development Application should be approved despite this adverse impact.
Ultimately, the Senior Commissioner found that the Applicant’s heritage expert had failed to consider the impact of the change of use on the heritage significance because his evidence, incorrectly, assumed the use was unviable, and therefore the only option was to consider adaptive reuse of the building, as a pub use could not continue. The heritage expert’s views on viability were outside his expertise and could not be given weight. Without any compelling evidence, the Senior Commissioner accepted that the pub use was viable, even if the Applicant would prefer some other use.
Consistent with the evidence of Council’s heritage expert, the Court found that the heritage significance of the Site was tied up in its historic use as a pub, and therefore, without adequate justification, the proposed change of use was an unacceptable heritage outcome.
Senior Commissioner Dixon dismissed the appeal.
TakeawayIn circumstances where the heritage value of a building is tied to its use, this case may establish precedent that unless there is economic evidence to support the need for a change of use, the adverse heritage impacts may not be justified. We are happy to assist applicants and consent authorities in responding to this novel decision, by:
providing advice to applicants on potential planning pathways for redevelopment of sites containing heritage items; advising consent authorities on responding to specific applications which raise heritage issues and on potential amendments to their planning controls to maximise the relevance of this decision to appeals in their local government area; and appearing in Court in relation to heritage-related proceedings.This article was written by Jane Hewitt, Partner, Simon Hill, Special Counsel, and, Klara Connery, Solicitor.
