What has happened?
In Bowie Ferris Investments Pty Ltd v Woollahra Municipal Council [2025] NSWLEC 60, the Land and Environment Court dismissed an appeal against the refusal to convert the heritage-listed Village Inn Hotel in Paddington into a shop and offices.
Context
The heritage experts agreed that the building's continued use as a pub was an element of its heritage significance. The owner's heritage expert supported the change of use only on the basis that the pub was no longer viable. The Senior Commissioner was not satisfied, on the evidence, that the pub use was unviable. She refused consent, finding that the loss of the pub use would adversely affect the item's heritage significance.
The owner appealed. It argued that the Senior Commissioner asked the wrong question by considering the effect of the pub use ceasing, which is not itself "development". It also argued that she wrongly required proof that the pub was unviable, including evidence of its market value and trading figures.
The decision
Justice Duggan dismissed the appeal:
The Senior Commissioner did not treat the cessation of the pub use as development requiring consent. She assessed the impact of the proposed shop use on the heritage significance of the building, which properly included the fact that the pub use would end.
She did not impose a legal requirement to prove the pub was unviable. Viability was raised by the owner's own expert as the reason the heritage impact was acceptable. She simply found that the owner's evidence did not establish it, and preferred the Council's expert.
The owner was ordered to pay the Council's costs.
How will this affect you?
Where a building's use is part of its heritage significance, losing that use can weigh against a change of use.
If an application relies on the existing use being unviable, it must prove that with proper evidence, such as financial and market information.
Owners of heritage-listed pubs and other "use-significant" buildings should obtain heritage and economic advice early.
Further information
For further information please contact Darren Bick, Director, on +61 416 167 556 or darren.bick@bicksteele.com.au.