Following on from a recent article on this judgment, we answer your questions about the judgment and consequences of it.

Question 1: Was the proposed retail use permissible with consent in the land use zone(s) applying to the site?
Yes, the proposed retail use was permissible with consent under the MU1 Mixed Use zone of the Woollahra LEP.

Question 2: Why was determinative weight placed on the proposed use being inconsistent with the original use of the heritage item (pub)?

The determinative issue wasn’t just that the proposed use was inconsistent with the original use but that the heritage listing explicitly tied the site’s significance to its continuous operation as a pub. The Court determined in this case that the applicant failed to provide sufficient evidence to demonstrate that continuing the pub use was unviable. The heritage experts (including the applicant’s own expert) agreed that the pub’s operation formed a central part of its heritage significance.  Without compelling evidence to justify the change, the Court determined the application would result in an unacceptable heritage impact.

Question 3: If there was no issue with the proposed works to the building, how is it that the historic use was given any weight (let alone determinative weight) in the Court’s decision?

The works themselves were acceptable and largely uncontroversial. However, clause 5.10(4) of the LEP required consideration of the impact of the proposed development on the “heritage significance of the site”, which included both the “fabric” and “use” of the building. The continued use as a pub was repeatedly identified in the Statement of Significance and other statutory heritage documents as integral to the heritage value. Without sufficient evidence of unviability, the Court could not justify approving the change in use, as it would undermine this identified heritage significance.

Question 4: Are there possibly ‘restraint of trade’ issues arising from this decision or that should have been considered by the Court?

Restraint of trade issues are unlikely to arise in this case. While I understand that it may feel as though the Court is dictating what operations can or cannot occur on the premises, this is inherent in any situation where a proposed use requires development consent. The decision did not prevent the applicant from operating a business on the site altogether – it just refused this specific retail use because of its adverse impact on the identified heritage significance of the site.

The applicant could choose to explore the retail use or other permissible options with adequate justification. The Court’s focus was on applying heritage planning laws, which are designed to balance development with the preservation of identified heritage values, rather than imposing blanket restrictions on business operations.

Question 5: What is all this talk about viability? How can this actually work in practice?

The judgment highlights the complexity of demonstrating viability when heritage significance is tied to a long-standing use. Viability assessments must consider various factors, such as economic conditions, changing demographics, and operational decisions, which can fluctuate over time. This raises practical questions about how applicants can provide sufficient evidence to satisfy the consent authority’s expectations. For instance, economic conditions during a downturn, like the COVID-19 pandemic, might make it easier to argue that a particular use is no longer viable. However, timing alone may not be enough; the evidence must still robustly support the claim that continuing the heritage use is genuinely unfeasible.

Question 6: Does this decision effectively dictate operations on the site by requiring it to remain a pub?

The Court’s decision does not explicitly dictate operations but rather reflects the need to preserve the heritage significance as identified in the listing. In this case, the heritage significance was tied not only to the physical fabric of the site but also to its continuous use as a pub. While this may appear to impose operational restrictions, the decision is grounded in the statutory framework, which requires the consent authority to consider both the physical and functional heritage value.

This judgment could prompt broader discussions about the implications of linking heritage listings to specific uses. For instance, concerns could arise if heritage listings of “uses” begin to limit the impact of zoning changes during the housing crisis, or prevent new permissible uses through development applications. While such scenarios remain hypothetical, they highlight the importance of balancing heritage protection with the flexibility to adapt to evolving community needs and economic realities.