Hemmes Trading Pty Ltd v Woollahra Municipal Council

Category: Principal judgment

Parties: Hemmes Trading Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
P Adraskelas (Solicitor) (Applicant)
J Corradini-Bird (Solicitor) (Respondent)
Solicitors:
Addisons (Applicant)
Marsdens Law Group (Respondent)

File Number(s): 2025/291044

Publication restriction: Nil

Judgment

1. COMMISSIONER: These proceedings, brought under Class 1 of the Court’s jurisdiction, are an appeal pursuant to s 8.7(1) of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against the decision of Woollahra Local Planning Panel (panel) to refuse Development Application No DA/110/2025 (DA). Woollahra Municipal Council (Council) is the respondent in the proceedings under s 8.15(4) of the EPA Act, subject to the control and direction of the panel.

2. The DA relates to land known as 380 Oxford Street, Paddington (site). The DA and had sought consent to permit the licensed premises operating within the basement of the building on the site to trade for additional time from 12:00 midnight until 2:00am, 7 days a week, for a 1-year trial period.

Conciliation brings agreement based on amending plans and supporting material

3. The Court arranged a conciliation conference between the parties under s 34 of the Land and Environment Court Act 1979 (NSW) (LEC Act), which was held on 12 December 2025, and at which I presided.

4. After more time was given, the parties came to an agreement in relation to the terms of a decision in the proceedings that would be acceptable to the parties. The parties agreed on an amended Plan of Management which extends the trading hours of basement level of the licensed premises at the site on Wednesday to Saturday from 12:00 midnight until 2am the following day, among other associated changes.

5. The parties’ decision would involve the Court upholding the appeal and granting development consent to the DA, in accordance with the amended Plan of Management and other agreed conditions, in particular a requirement for modification of the current operative consent (DA/368/2015) pursuant to s 4.17(1)(b) and (c) of the EPA Act to effect the agreement between the parties.

Jurisdictional considerations

6. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' agreed decision, provided it is a decision that the Court could have made in the proper exercise of its functions. The point of consideration here is whether there are any jurisdictional constraints to the exercise of the function to grant development consent (McMillan v Taylor (2023) 111 NSWLR 634; [2023] NSWCA 183 at [63],[65]).

7. It is my finding that there are no such constraints. A note on jurisdictional prerequisites, explaining why the parties believe upholding the appeal, in this instance is within the Court’s power, provided to the Court on 16 February 2026, has been of assistance here. Relevant matters requiring positive findings of the Court are outlined below. In this matter involving changes to operating hours and, effectively, no physical works, there are few matters requiring jurisdictional findings.

Woollahra Local Environmental Plan 2014

8. The site is zoned MU1 Mixed Use under Woollahra Local Environmental Plan 2014 (WLEP) and the parties advise that the proposed development, as a commercial premises, is permissible in the MU1 zone. The parties indicate that the zone objectives have been considered and that it is their view that the proposal is generally consistent with those objectives.

9. The parties advise that the proposed development would not contravene any development standards.

10. While no jurisdictional findings are required in relation to WLEP, the parties’ jurisdictional note indicates how Council has considered all other relevant matters under WLEP, including in relation to heritage conservation (cl 5.10).

State Environmental Planning Policy (Resilience and Hazards) 2021

11. Section 4.6 is concerned with contamination and remediation. I accept the advice of the parties that the proposal does not involve any disturbance of ground surface and no change to the longstanding use of the land is proposed. With respect to contamination and remediation, there is no reason to believe that the site is not suitable in its current state for the proposed extension to trading hours. The requirements of s 4.6(1) of the State Environmental Planning Policy (Resilience and Hazards) 2021 are satisfied.

State Environmental Planning Policy (Biodiversity and Conservation) 2021

12. The site is located within the Sydney Harbour Catchment and therefore Pt 6.2 of the State Environmental Planning Policy (Biodiversity and Conservation) 2021 is a consideration in determining the DA. There are a number of considerations and requirements for findings of satisfaction in that regard. The parties advise that due consideration has been given to relevant provisions. I now turn to the relevant points requiring a finding of satisfaction. These are:

13. the development has a neutral or beneficial effect on water quality and the impact on water flow in a natural waterbody will be minimised: s 6.6(2);

14. the development will not have an adverse impact on various aspects of aquatic ecology, waterbodies, or wetlands: s 6.7(2); and

15. the development will improve or maintain public access, any new access points are safe, and safeguarding of public access: s 6.9(2).

16. I am advised that the parties are satisfied with respect to each relevant point given the proposal is only for a change in trading hours for the current operation. I accept this advice.

Other considerations

14. I note the advice of Council that the DA was notified in accordance with requirements and that 12 submissions were received. A range of objections were raised, including in relation to acoustic privacy impacts, antisocial and drunken behaviour, parking, undesirable precedent and difficulties in monitoring patron numbers (Council’s Statement of Facts and Contentions filed 8 September 2025). In addition, I had the opportunity to hear one objector speak on site prior to the commencement of the conciliation conference. I am aware from the discussions during the conciliation conference that the parties have given consideration to these objecting submissions. In that sense, any jurisdictional requirement under s 4.15(1)(d) of the EPA Act has been met.

Conclusion

15. With the above findings, I am satisfied that the jurisdictional pre-requisites have been met and the parties’ decision is one that the Court could have made in the proper exercise of its functions. In turn, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties’ decision.

16. In making the orders to give effect to the agreement between the parties, I was not required to make, and have not made, any merit assessment of the issues that were originally in dispute between the parties. The LEC Act also required me to “set out in writing the terms of the decision” (s 34(3)(b)). The final orders have this effect.

Notation

17. The Court notes that:

18. Pursuant to ss 38 and 113 of the Environmental Planning and Assessment Regulation 2021 (NSW), Woollahra Municipal Council, as the relevant consent authority, has consented to Development Application No DA/110/2025 being amended to rely on the following:

(a) Plan of Management dated 5 January 2026 and CCTV Plan dated 15 December 2025 set out in Annexure ‘A’.

2. The parties agree that the amendments to Development Application No DA/110/2025 are minor and as such an order is not required to be made pursuant to section 8.15(3) of the EPA Act*.*

Orders

18. The Court orders that:

19. The appeal is upheld.

20. Development consent is granted to Development Application No DA/110/2025 (PAN-525389) to extend the trading hours of the basement floor level of the licensed premises at 380 Oxford Street, Paddington (Lot 1/DP63804) on Wednesday to Saturday from 12:00 midnight on those days until 2:00am the next succeeding day subject to the conditions set out in Annexure ‘B’ to this agreement.

P Walsh

Commissioner of the Court

Annexure A (997 KB, pdf)

Annexure B (259 KB, pdf)

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Amendments

20 March 2026

Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), amendments are made to typographical errors in Condition A.2 and Condition I.5 of Annexure B Conditions of Consent.