STM123 No.14 Pty Ltd v Woollahra Municipal Council

Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW), Pt 4, Div 4, ss 4.15, 8.15
Environmental Planning and Assessment Regulation 2021
Road Rules 2014 (NSW)
State Environmental Planning Policy (Biodiversity and Conservation) 2021
State Environmental Planning Policy (Resilience and Hazards) 2021
State Environmental Planning Policy (Sustainable Buildings) 2022, Ch 3, cl 3.2
Woollahra Local Environmental Plan 2014, Sch 5, cll 4.3, 4.6

Cases Cited: Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315
Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827

Texts Cited: AS 2890.2-2018 Parking facilities, Part 2: Off-street commercial vehicle facilities 2018
Woollahra Community Participation Plan 2019
Woollahra Council DA Guide
Woollahra Development Control Plan 2015
Woollahra Section 7.12 Contributions Plan 2022

Category: Principal judgment

Parties: STM123 No.14 Pty Ltd (Applicant)
Woollahra Municipal Council (Respondent)

Representation: Counsel:
M Staunton (Applicant)
R O’Gorman Hughes (Respondent)
Solicitors:
Boskovitz Lawyers (Applicant)
Woollahra Municipal Council (Respondent)

File Number(s): 2025/11282

Publication restriction: Nil

Judgment

1. These proceedings arise following the applicant’s appeal against the refusal of Development Application DA474/2023 (DA) for the redevelopment of the Victorian Villa known as the Hughenden Hotel at 8-16 Queen Street, Woollahra (Site).

2. The proposal, as amended, involves the demolition of all structures apart from the two-storey Victorian Villa (which is to be restored); and construction of a new four (4) storey hotel with 43 hotel rooms/suites and ancillary ground-floor restaurant/function area, reception area and a new basement level incorporating a gym, amenities and services areas (WMK Architecture drawings dated 27 August 2025).

3. The central contention between the parties is traffic and parking (Contention 1.2) of the ASOFC dated August 2025.

4. The controversy arises because the development does not provide guest parking, staff parking or loading facilities within the Site. The development relies on guests travelling to and from the hotel by walking, cycling, public transport or Uber/taxis with on street pick up and drop off and lawfully utilising existing driveways, loading zones and no parking areas. Under the proposed Plan of Management (POM) staff are directed not to drive to the Site and all “loading” is to take place generally consistent with the existing arrangements of the hotel in the loading bays proximate to the Site.

5. The applicant had initially proposed to install a “No Parking” zone on Queen Street adjacent to the Site frontage (Ex B Tab 24 p 25). This zone would have been across the area of the existing crossover to the onsite carpark, (which is to be closed), with some additional widening that would have impacted only one other space. The applicant maintains that this would have assisted with pick up and drop offs from the hotel, but this additional space was not supported by the Council. Albeit, the applicant remains willing to accept a condition that it apply to the Local Traffic Forum (LTF) to install “No Parking” signage as originally proposed, or for one parallel space, and if it is approved by the LTF then the applicant will install that signage at its own cost. There was also some additional evidence produced in the hearing in respect to a redesign to accommodate onsite loading. Three options were proposed and the subject of assessment by the experts.

6. Despite the applicant’s efforts at the hearing to address the parking and loading issue the Council was resolute in its opposition to the application because of its lack of onsite parking and loading. This issue was also a central focus of the local objectors’ evidence taken at the Site view and the written submissions tabled to the Court. There was also concern expressed about the impact of the development on the heritage Villa and the residences identified as heritage items fronting Jersey Road adjoining the rear boundary of the Site. The Court attended these properties to better understand the impacts and the applicant ultimately responded by amending its plans.

Decision

7. For the reasons that follow I have decided to approve the development subject to the conditions in Annexure A and the condition proposed by the applicant to apply to the Local Traffic Forum (LTF) to install “No Parking” signage as originally proposed, or for one parallel space, and if it is approved by the LTF then the applicant will install that signage at its own cost.

Facts

8. The following facts are uncontroversial.

9. The Site is located on the northern side of Queen Street diagonally opposite the intersection of Queen Street, Oxford Street and Moore Park Road. It is comprised of seven individual allotments but presents as a single frontage of some 36.5m to Queen Street. The rear property boundary is 36.855m, the eastern boundary is 36.78m and the western boundary is 37.125m.

10. The two storey Victorian-era Villa is of rendered and painted masonry construction with a tile roof (converted into a hotel and restaurant). An at grade car parking area is located in the western portion and vehicular access is facilitated via an existing driveway cross over from Queen Street.

11. The locality in Queen Street is characterised by a mix of heritage significant detached buildings and two storey terrace houses. The Site is listed as a heritage contributory item and is located within the Queen Street Precinct Woollahra Heritage Conservation area (Woollahra HCA) under Schedule 5 of the Woollahra Local Environmental Plan 2014 (WLEP). The properties at 17, 19, 21 and 23 Jersey Road are listed as heritage items.

12. The statement of significance for the Woollahra HCA is as follows:

“The Woollahra HCA has historical, aesthetic, technical and social significance at the local level.

The surviving built and natural fabric of the Woollahra HCA has significance for its ability to demonstrate the important historical phases of the area's development. These phases include the development of large estates during the mid-19th century, small lot residential development in the mid-19thcentury, retail development of the mid-19th to early 20th centuries, speculative subdivisions of the late-19th century, Inter-War consolidation and municipal improvements of the 20th century.

In its surviving elements of built fabric, the Woollahra HCA retains the potential to reveal evidence of ways of life, building and land uses which have now changed or disappeared. Such fabric includes:

• early domestic kitchens and their associated service areas and technology;

• former stable buildings;

• outbuildings including early external toilets and garages;

• ‘nightsoil' lanes;

• paling fences and gates to rear lanes;

• front fences and gateposts to buildings that have been demolished;

• bricked-up openings to former doors; and

• first floor loading bays to former industrial and storage buildings.

The Woollahra HCA has high aesthetic significance for its visual complexity derived from:

• the variety of significant public and private building types;

• the variety of significant architectural styles and scales within the range of building types;

• the complex and varied subdivision pattern;

• the significant intact and remnant landscape; and

• the municipal parks and small reserves.

The Woollahra HCA contains aesthetically contributory items of architectural excellence dating from all the major periods of its development, many designed by the eminent architects of their period.

The area has social significance for its association with the growth of the heritage conservation movement in Sydney during the 1960s. It was an early example of an area which received recognition by the National Trust and the Australian Heritage Commission through the efforts of the local community.”

Statutory framework

13. The statutory controls include:

14. Environmental Planning and Assessment Act 1979 (NSW) (EPA Act);

15. Environmental Planning and Assessment Regulation 2021;

16. State Environmental Planning Policy (Resilience and Hazards) 2021;

17. State Environmental Planning Policy (Biodiversity and Conservation) 2021;

18. State Environmental Planning Policy (Sustainable Buildings) 2022 (SEPP (Sustainable Buildings));

19. Woollahra Local Environmental Plan 2014 (WLEP);

20. Woollahra Development Control Plan 2015 (Amendment 22) (DCP);

21. Woollahra Community Participation Plan 2019; and

22. Woollahra Section 7.12 Contributions Plan 2022.

Expert evidence

14. Expert evidence was received from:

| Applicant Expert | Respondent Expert | | Patricia Sims (Heritage) Shaun Carter (Urban Design) | Vanessa Holtham (Heritage) | | Robert Varga (Traffic) | Tom Steal (Traffic) | | Kate Bartlett (Planning) | Valdis Aleidzans (Planning) |

Permissibility – existing use and breach of the height control

Existing use

15. Pursuant to the WLEP, the Site is zoned R2 Low Density Residential. Hotels are a prohibited use within the R2 zone however it is accepted that the proposed development is permissible as an existing hotel use under Div 4.11 of Pt 4 of the EPA Act (Ex B Tab 4).

16. The Heritage Impact Statement filed with the DA prepared by Weir Phillip Heritage & Planning sets out a detailed timeline in respect of the development history of the Site as a guest house. As that use adequately aligns with the existing use as a hotel, prior to the prohibition of hotel use upon the gazettal of the WLEP, it is accepted that the Site has existing rights use as a hotel.

17. On 29 January 1996 the Council granted development consent (DA 95/138) for the use of the restaurant dining room in the hotel as a restaurant open to the public. This application proposes the use of the external area to the building as a “breakfast terrace” for dining purposes (Ex M).

Breach of the height standard

18. The existing Villa breaches the maximum building height standard of 9.5m under cl 4.3(2) of the WLEP. The proposal seeks to increase the height and, thereby, the breach of the standard by 4.624m to the top of the lift overrun.

19. The applicant relies on a cl 4.6 written request prepared by The Planning Studio dated 10 July 2025 to justify the variation of the height standard in this case and Council accepts that justification (Ex C Tab B). I am also satisfied that the breach of the height standard is acceptable for the reasons articulated in the cl 4.6 written request.

20. In short, I accept that the development meets the fifth test in Wehbe v Pittwater Council (2007) 156 LGERA 446; [2007] NSWLEC 827 (Ex C p 8) because of the existing use of the land. As the existing use of the Site for a hotel and its associated character is in fundamental conflict with the current zoning, it cannot be expected that the development will achieve the objectives of the low-density zone and its related height standard. To require strict compliance with the height standard in that circumstance is both unreasonable and unnecessary.

21. Notwithstanding this variation, I accept that the development has been carefully designed to be an appropriate form and scale and is compatible with the Site and surrounding context. Relevantly, the non-compliance with the height standard primarily relates to the upper level of the proposed new component of the hotel and a retained portion of the roof form of the existing Victorian Villa. The elements in breach of the standard are designed to be not clearly visible from the street. In all other respects the building sits within the 9.5m height limit as prescribed, and the existing building has a height that remains unchanged.

22. Furthermore, I accept that the delivered extension is a thoughtful and careful response to the heritage conservation area and desired future character of the area. The proposal includes a reduction in size of the Room 304 on Level 3 to allow a pitched roof form and dormers on the upper floor fronting Queen Street. I accept that this roof form treatment, along with the existing lower street frontage design, will better respect the character and roof forms of the surrounding development. The greater articulation and modulation along Queen Street frontage will also work to alleviate any visual intrusion of the breach of the height standard within the streetscape and the Villa.

23. Relevantly the adjoining terraces and other buildings, located immediately to the east and west of the Site, also breach the height development standard under the WLEP (Ex C Figure 2). By its design, the bulk and scale of the development seek to reflect the intensity of development on the surrounding Site and its height takes height cues from the existing tallest element of the Villa and similar surrounding properties. Importantly, the breach of the height standard will not generate any unreasonable amenity or view loss to these properties. After assessment I accept the submission that the exiting use is a sufficient environmental planning ground to support the height variation sought in this case.

Contentions

24. The ASOFC records all contentions, apart from traffic/parking and the public interest, have been resolved. The expert evidence, which I accept, addressing these contentions is summarised below.

Heritage and urban design

25. The heritage experts, Ms Holtham, Ms Sims and Mr Carter, are agreed that the extensive revision of the design since the refused plan, has led to a better response to the scale and grain of the surrounding development. Relevantly and importantly they each accept that the proposal is an acceptable solution from a heritage and urban design perspective (Ex 4 at [11]; [13]).

26. Ms Holtham’s final evidence was that the amendments tabled (final plans), if acceptable to the Court, offered “…an acceptable solution from a heritage perspective” (Ex 4 at [11]-[13]). She described the final design as being “…a significant improvement of the perception of the height and a more harmonious response to the form of the surrounding heritage context…the adjustments in relation to the colours, materials and finishes, also render the development a more compatible response to the character of Queen Street and Woollahra HCA” (Ex 4 p 8, [11]-[12]).

27. Ms Sims, the applicant’s heritage expert in agreeing with Ms Hotham said (Ex 4 p 7, [4]-[5]):

“4. I agree with the points that my colleague Ms Holtham has put forward and am satisfied that the revised design is acceptable from a heritage perspective.

5. The proposed elevation and its relationship with Queen Street is now well resolved as an infill building that retains the significance of the Hughenden Villa and enables a much better activation to a section of Queen Street that was an open car park. As such, the possible introduction of a loading facility into the elevation would have a major adverse impact on the significance of the Woollahra Heritage Conservation Area and the urban fabric of Queen Street”

28. Mr Carter, also agreeing with Ms Holtham’s summation described the proposal as detailed in Appendix B as a good urban design outcome and added (Ex 4 p 7, [3]):

“3. The agreed design, with its rhythm of fine grain, colours and textures, masonry terrace house form following the building alignment is consistent with Queen Street. The activated shadow recess space between the new terrace house forms, and the old Hughenden Hotel is an acceptable step in alignment and separation to allow new and old to sit comfortably together in a well-made streetscape. The inclined roof plane adopts a consistent angle with the adjacent terrace houses, and other similar roof pitch angles, to read as a roof plane with dormer windows that is consistent and compatible with the immediate Queen Street built-form context and character.”

29. The planning experts are agreed that the Final plans satisfactorily address their planning concerns and the relevant concerns expressed by the objectors particularly in respect to the development’s interrelationship with the properties at the rear in Jersey Road. They accept that the amendment of the Final plans after the Court view to increase the rear setback of the development to these properties will satisfactorily address the impacts on the identified vegetation, the structural integrity of the heritage building on the boundary and the privacy and amenity impacts raised by these owners.

30. The planners believe that the imposition for the first time of a condition limiting the hours of operation for the external seating of the café from 7am to 6pm Monday to Sunday, and a maximum capacity of 10 persons in that area will assist to address any amenity concerns arising from the use of that area. The indoor patron capacity for the restaurant, café and bar which is presently unlimited will be conditioned at a maximum of 80 patrons. Further, the POM directs that no more than 16 staff will be working on the premises at any one time (Ex G).

31. The concern that the basement spa and gym facilities will be utilised by the public has been addressed by the imposition of Council’s condition that these facilities are to be used exclusively by guests being accommodated in the hotel and that this area be limited to a maximum capacity to 60 guests.

32. The planners accept that the Assessment Against Clause 3.2(1) of SEPP (Sustainable Buildings) is satisfactorily addressed by the Section J Compliance report produced by the Environmental Consultant’s Report (Ex 7 Appendix C). It sufficiently details how the development has been designed to enable the items prescribed in cl 3.2(1) of the SEPP (Sustainable Buildings) to be considered. This forms Appendix D to the report. The planners are also agreed, as required by Ch 3, cl 3.2(2) of SEPP (Sustainable Buildings), that the Court can be satisfied that the embodied emissions attributable to the development have been quantified. The NABERS Embodied Emissions Materials Form dated 18 August 2025 forms part of Appendix E to the report. They also agree that the Site Waste Minimisation and Management Plan (Ex E) required under section 2.5 of the Woollahra Council DA Guide for demolition and construction waste satisfies the requirements (Ex 6 Appendix D).

The remaining contentions – Traffic and Parking

33. Contention 1.2 of the ASOFC details traffic and parking complications associated with the proposed development (Ex 1 p 13):

“Traffic and Parking

1.2 The DA should be refused as it would generate an unacceptable adverse impact on parking conditions and local amenities in this area.

Particulars

(a) The DA would result in a significant shortfall of on-site parking as prescribed by Chapter E1 of the WDCP which requires a minimum of 47 spaces for the proposed use.

(b) The DA does not accommodate the parking demand of the proposed intensified hotel use.

(c) Removal of all existing onsite parking results in a net loss of 13 parking spaces at minimum, noting the proposal will create additional parking demand by three (3) spaces.

(d) The DA fails to justify redirecting the current onsite parking demand and the additional parking demand associated with the proposal to kerbside parking.

(e) The DA indicates a significant increased reliance on uber/taxi which will occur randomly on any available parking spaces nearby, including across neighbouring residential driveways.

(f) Pick-up/drop-off of passenger may result in illegal parking behaviours when there are no on-street parking available in close vicinity.

(g) The proposal fails to provide a sufficient onsite loading bay to accommodate loading/unloading and service vehicles as outlined in Part E1.14 of the WDCP.

(h) The DA does not minimise and manage traffic and parking impacts and fails to achieve objectives O1, O2 and O5 outlined in Part E1.1.3 of the WDCP and does not satisfy aim (k) outlined in Clause 1.2(2) of the WLEP.”

34. The issues within that contention can be grouped into four main topics:

35. Guest parking;

36. Staff parking;

37. Servicing and loading; and

38. The urban design and heritage impact of providing onsite parking and loading.

39. The traffic experts agree that strict compliance with the Council’s DCP parking requirement for new development is not necessary for the assessment of guest parking spaces (Ex 5 at [22]).

40. The real issue between the traffic experts in respect of parking is the need to accommodate onsite the drop off/pick up of diners or guests and staff and the associated impact on the road network.

Mr Steal’s evidence – guest parking

37. Mr Steal believes that it is reasonable to vary the number of parking spaces required by the DCP where it can be demonstrated that the demand of a site will be lower than the number required through simple application of the DCP ( Ex 5 para 20). In this case he accepts that the restriction in the POM that the Gym and Spa will only be available for the hotel guests removes the onsite parking requirements for these areas. He also accepts that it is reasonable to expect that , if advertised clearly to all guests prior to booking, guests will not make a booking at the Hotel if they have a car that needs to be parked. Therefore, the parking spaces for the guests of the 43 rooms would not be required ( Ex 5 para 21). Similarly, if restaurant patrons have advance notice that there is no onsite parking, Mr Steal accepts that it is unlikely they will drive and instead use hire vehicles.

Mr Steal’s evidence - drop off -pick up

38. Mr Steal asserts that the application for development proposes very significant changes to the Site and does not present any clear constraints to manage the inappropriate car parking, drop-off, loading and pick up problems that will be forthcoming. He emphasised the existing street parking demands along Queen Street as already extremely high (Ex 5 Annexure 9, dash cam footage on 11 June 2025 at 1 - 2pm)

39. It is his opinion that the increased drop-off and parking manoeuvres that will be undertaken in this public road network, were this proposal to be approved, would negatively impact locally and on the road network surrounding the Site. (Ex 5 at [48]).

40. The development proposed, he fears, will only exacerbate an existing deficiency and contribute to broader problems. Exacerbating existing deficiencies, to his mind, is unacceptable. Amelioration of the problem should be the aim, to which he has made suggestions.

41. He proposed that there is ample space onsite (such as would not impact the heritage character of the property) where buildings are to be demolished, which would provide location for a drop off and pick up facility (accessed by a lift), and which might double as a loading bay and some staff parking.

42. To support this idea Mr Steal offered the Court a sketch of a possible design (Ex 5, Annexure A), a circular drop-off and pick-up addition that, ultimately, was not pressed because of identified potential vehicle conflicts (Ex 5 at [57]-[61]).

43. Four other options, which I will address in due course, were similarly proposed.

Mr Steal’s evidence – staff

44. The POM states that between 9 and 20 staff will be required to operate the hotel, and Mr Steal is concerned about their mode of transport to the Site. He does not accept past surveys which find that existing staff do not drive as a basis to assume that a larger staffing cohort will do the same. He is critical of the reliability of the survey data as no information has been provided to indicate how many staff were interviewed. Relying on 2016 Census data that indicates that for workers in the Woollahra LGA, 55% travelled to work by car, Mr Steal estimates that the staff that will drive to the Site for work in the future will be between 5-16 based on the total of between 9-29 staff. Therefore, staff members who drive to the Site will add to the already high demand for car parking on the streets around the Site.

Mr Steal’s evidence – loading bay

45. Part E1.14.1 of the DCP requires that a minimum of one loading bay is provided for hotel accommodation and food and drink premises with a seating capacity of 50 persons. Therefore, two loading bays are required under the DCP rates for the proposed development.

46. Despite that DCP rate, Mr Steal accepts that the Site will generate a demand that can be catered for by one loading bay, not two. It is his considered opinion that one dedicated loading bay for a small, ridged vehicle (AS 2890.2-2018) would be sufficient in size to cater for the demands of the Site.

47. Accepting that the development does not meet the DCP rates for parking, loading facilities or staff parking generated by the development, Mr Steal assessed the proposal against the objectives provided in Chapter E1 of the DCP. After assessment, Mr Steal’s evidence is that the development does not satisfy any of the relevant DCP objectives. In short, it does not minimise the amount and impact of vehicular traffic generated due to the development (DCP Objective 01) because the traffic generated is not provided with safe or convenient parking or loading facilities – thereby not minimising the traffic impact.

48. Nor does the development “ensure that development generating vehicle traffic makes adequate provision off street for the car parking and servicing needs of its occupants and users, including residents, employees and visitors and deliveries” (DCP Objective 02). The proposal provides no off-street parking or loading facilities where a demand exists for between 5 and 16 cars for parking staff, a drop-off pick-up facility and a loading/servicing facility.

49. As no proper assessment of the additional parking demand has been undertaken by the applicant and the information provided does not enable his own assessment, Mr Steal’s final view is that the loading/delivery schedule provided is ambiguous and implausible because (Ex 5 at [34]):

“a) Some deliveries are listed as “when required” and some deliveries for fresh food (i.e. salads, baked items) are listed as “weekly”.

b) The proposal that the number of deliveries that presently occur will not change is not plausible given that the hotel restaurant is not presently offering an à la carte dinner service based on their website as visited on 15 August 2025.

c) The number of rooms at the hotel is proposed to increase by 11 (+34%), the size of the restaurant is proposed to increase by 36 (+60%) seats and an entirely new spa/gym facility is proposed. It is typical that the number of delivery and service movements required for development is proportional to the scale of the development.”

Mr Varga’s evidence – guest parking

50. Mr Varga disagrees with Mr Steal and has assessed at least five areas proximate to the Site where drop-off and pick-up can legally take place (Ex 5 at [41]-[46], Ex 11 Items 3, 4, 5, 6 and 7 and P4 of the table). Those locations are identified on Ex J and include: no parking zones, loading zones and driveways and vacant spaces where pick-up and drop-off are authorised under the Road Rules 2014 – which he attaches to the joint report.

51. Both experts accept that ride share drivers require pick-up locations to be identified in advance of pick up. Mr Varga relies on the requirement under the POM for staff to assist guests with pick-up and drop-offs as a measure to minimize traffic and amenity impacts (Ex G at [1.2], [2.1]).

52. Mr Varga is confident in his expert assessment that the Site’s proximity to public transport and the applicant’s adoption of a Green Travel Plan, which sets out Site specific actions to influence the travel behaviour of the end users prior to occupation, will ensure that the development will minimise the impacts of the development in accordance with the DCP objective. He is also satisfied that the objectives of the Green Travel Plan will be introduced to manage travel demands and encourage the use of sustainable modes of transport and better management of car use (Ex B Tab 26 p 3).

53. Mr Varga gave evidence that only eight of the existing ten functional onsite car spaces were occupied when surveyed (Ex B Tab 26 p 3). This is because the majority of guests are already travelling to the Site by transport other than cars (as his further survey data has confirmed, Ex B Tab 24 p 14).

54. Mr Varga emphasised that the increase in accommodation within the development is limited to 11 rooms. Some, but not all those additional guests will use Ubers or taxis to and from the Site and some will walk and others will catch public transport (in fact, the split is 55% according to his survey data). As such, Mr Varga has assessed that one can reasonably expect, based on existing behaviour, similar pick-up and drop-off arrangements would occur for the additional guests without unacceptable impact.

55. Mr Varga also believes that the imposition of the condition, as offered by the applicant, for a reduction in the capacity of the restaurant and coffee shop would also reduce the impact on the additional guests. In respect of the objectors’ complaints about existing pick-up and drop-off practices and parking across driveways, he emphasised that there was no evidence that these practices had been by the hotel’s guests.

Mr Varga’s evidence – staff parking

56. Mr Varga disagrees with Mr Steal’s evidence about staff parking demand and whether staff parking should be provided. He also rejects Mr Steal’s criticism of the survey results of the current staff which he and the manger verified.

57. Of the current nine staff members surveyed (who work different shifts) none said that they drive to work. Instead, they utilise bikes, buses or catch a train. Mr Varga believes that these methods are consistent with the Site’s excellent proximity to public transport options and the fact that there has never been staff parking available for these workers onsite. A further disincentive for staff driving to the Site is the fact that the timed parking spaces for one or two hours in the area do not accommodate their eight-hour shifts and the POM states that staff will not be given permission to leave work to move cars (Ex G at [5.9]), even if they did drive. Mr Varga is critical of Mr Steal’s reliance on the general work data, which suggests that 55% of staff will drive to work because it is contrary to the staff surveys of this Site and the terms of employment of its staff. The survey evidence is that 100% of staff do not drive to work. If the data were correct, then on the proposed staff numbers it would be expected that five staff choose to drive and that is simply not the evidence.

58. While the overall staff number will be increased to 29, the applicant has agreed to a condition that no more than 16 staff will be present at any one time (Ex G at [2.4]). The evidence is that there rarely been staff parking at this Site. As such, Mr Varga expects that the existing staff travel arrangements will not change from the current situation. The well serviced public transport options will continue to be utilised (with bicycle parking provided onsite) and the staff are likely to take up the Green Travel Plan (adopted in the POM) which offers a subsidy for staff towards the cost of public transport (Ex H p 12).

59. For those reasons Ms Varga’s evidence is that the provision of staff parking is unnecessary.

Mr Varga’s evidence – loading bays

60. Mr Varga does not accept the need for an onsite loading bay because he has assessed there is sufficient loading available to service the development within the authorised loading zones in the street.

61. The agreed evidence is that there are two on-street loading zones on Queen Street in the vicinity of the Site. They are signposted to allow loading between 8:30am to 4:30pm Monday to Friday, and 8:30am to 9:30am on Saturday. There is also another space to the east of the Site which is unrestricted. The photographs below shows the spaces marked 1, 2, and 3 close to the Site.

62. As explained in the applicant’s written submissions (AWS) ([50]-[57]) the existing hotel (without the restaurant operating) uses the street loading bay for 90 minutes a week, with an average of 18 minutes for each delivery. The difference in deliveries between the existing use without the restaurant (90 minutes) and the proposed restaurant (145 minutes) is 55 minutes per week. This means that the proposed use will increase the use of the spaces 1 and 2 by 55 minutes per week which equates to 11 minutes per day noting that the spaces are available for a further one hour on Saturday morning. Therefore, if the use is approved and taken up, then 11 minutes of time equates to 2.05% of the available time of the street loading spaces. With that in mind, Mr Varga has assessed that one loading bay has the capacity to provide the whole weeks’ worth of additional loading time (55 minutes) on the worst day, Monday, together with any additional miscellaneous deliveries (AWS [61]). And, even if you tripled the additional loading (165 minutes) Mr Varga’s evidence is that there would still be spare capacity relying on only one loading bay zone and that is on only one day with the other surveyed day having greater capacity noting that the loading zones are available for five days plus one hour on Saturday (AWS [61]-[62]).

63. Mr Varga rejects Mr Steal’s concern over a loading bay not being available when a delivery vehicle arrives to offload at the Site and emphasised that this is no different to any on street loading zone dynamic. Albeit, in this case there is no evidence before the Court of such a complaint associated with the hotel impacting the road network. In any event, if a problem with loading were to arise, Mr Varga identified that the POM provides procedures to manage deliveries including assistance from staff, as required. Importantly, the POM will be a condition of consent. Apart from management of loading, it will also include mechanisms to deal with any complaint arising from loading associated with the operation of the hotel.

Onsite Loading – the four options

64. At the hearing the experts were asked to consider four specific design options for onsite loading (Ex 15).

65. Option 1 is the existing proposal relying on loading bays – in other words on street loading.

66. Option 2 is the porte cochere at the front of the Site.

67. Option 3 is the porte cochere at the front of the Site combined with loading a 4.5m maximum opening (which may be narrower) with a single loading bay behind the restaurant allowing for forward in and out as depicted on the coloured plan prepared by the experts.

68. Option 4 is a driveway along the side of the boundary with the adjoining terrace and a turning bay with a loading area that goes toward the rear of the Site (similar to Mr Steal’s option in the joint report).

69. The traffic experts’ evidence is that options 2 and 3 are not acceptable. That leaves the original proposal or the driveway down the side with the terrace and a turning bay.

70. Putting aside Mr Steal’s sketch for onsite loading (Ex 5) which I accept was conceptual only, he gave evidence that that onsite loading is achievable in the form of option 4 or in a redesign to include a ramp to a basement car park.

71. Ms Holtham has a different view to Ms Sims and Mr Carter about these options (Ex 15 [2]-[8]):

“2. The conservation area does not preclude the provision of on-site parking.

3. The proposal involves infill development, i.e. a new building in a heritage context.

4. In this situation there is an existing crossover, driveway and provision of parking on site.

5. The four bays proposed equal approximately 18.2 metres and there is 2.9m gap between the new building and contributory building. The requirement for 4.5m opening at the front of the development for vehicular access (which could narrow into the site) could be accommodated within the existing rhythm.

6. The proposed inclusion of vehicular access to the site would not result in demolition of heritage fabric.

7. It appears that Option 4 could facilitate a satisfactory outcome that allows loading.

8. The finish and design of an opening could be subject to some sort of deferred commencement.”

Consideration

68. The DCP controls allow for a dispensation for parking and loading onsite and the applicant submits that the evidence supports the dispensation in this case.

69. In that regard, Control C1 of section E1.4.1 of the DCP has two limbs to the circumstances where carparking and loading facilities may not be required. The first is where:

“Provision of on-site parking areas, parking structures and servicing areas such as loading facilities will not be a general requirement of Council and may not be permitted in certain circumstances. On-site parking may not be required, or may not be permitted, where it does not comply with controls in this part…”

70. The first opportunity for a dispensation is “where it does not comply with the controls in this part”, and as submitted I accept that this refers to Part C or where it does not meet the specific circumstances listed in paras (a) to (e) after the chapeau.

71. Mr Carter and Ms Sims are of the opinion that the provision of parking and loading facilities onsite does not comply with the controls in Part C.

72. In short, Ms Sims’ evidence is that the introduction of a loading bay recess in the Queen Street front façade with associated driveway layback and crossover of the pedestrian path would have a major impact on the significance of the Woollahra HCA and the urban fabric of Queen Street (Ex 4 at [5]). Mr Carter in agreeing with Ms Sims describes onsite loading in the frontage “… as [a] poor and undesirable urban design outcome”. His evidence in the joint report on this issue is reproduced below (Ex 4 pp 7-8, [5]-[10]):

“5. I have had the opportunity to review the Council Traffic Engineer’s proposed loading bay recess in the Queen Street front façade, with associated driveway layback and crossover of the pedestrian path. It is my considered opinion that this would be a poor urban design outcome.

6. Queen Street is predominately a well-defined, fine-grain street that offers a good rhythm of built form that makes a well-made street. This grain provides many commercial activities that appear well supported, driving good foot traffic along the Queen Street footpath. The obtuse angle inflection of Queen Street from Oxford Street is an encouraging and attractive continuation of a well-supported commercial area of this community. To break that rhythm of built form with a driveway crossover and shadow recess diminishes the proposal, moving it away from adding to a well-made streetscape, placing pedestrians in un-necessary conflict with trucks and vans crossing the footpath. This would be an undesirable urban outcome.

7. Closed off, recessed, negative spaces at the street edge, like loading docks/bays, usually create CPTED issues leading to a poor urban design. A better design response is for active street frontage that provides passive surveillance and ‘people’ ownership of the street, that positively supports and contributes to the streetscape activation creating greater pedestrian activity. This will make a more vibrant Queen Street with positive flow-on effects for existing commercial activities.

8. I note there is a street allocated loading space nearby that offers a better solution for deliveries and pickups. It allows the Terrace house rhythm of built form to remain intact and removes the pedestrian-truck conflict. An ideal situation would be to move the loading allocated street space to in-front of the Hughenden Hotel, which I believe is possible.

9. The Hughenden Hotel is a small boutique operation that would not have significant loading requirements. These types of operations in streetscapes like this exist successfully elsewhere in the city where loading and unloading occurs from the street. This usually happens with a timed plan of management, so any regular loading requirements occur outside peak traffic and commercial hours to reduce any impact. This would be a significantly better urban design outcome that would allow the proposed building to positively contribute to the street life and character of Queen Street. To move away from the agreed design towards an engineered and simplistic solution would, in my opinion, be detrimental to Queen Street.

10. Good Streets need to be designed. Good design solutions consider all constraints and parameters, including engineering ones, when formulating a good urban design response. The agreed proposal has, in my opinion, taken all constraints and parameters into consideration to arrive at a good urban design solution.”

73. In relation to the second limb, the applicant submits, on the evidence of Ms Sims and Mr Carter, that putting a driveway along the side of the boundary with the adjoining terrace and a turning bay with a loading area that goes toward the rear of the Site will have a detrimental impact on the amenity of the adjoining property. Additionally, the arboreal evidence is that an extension of the width of the driveway to the east will have a detrimental impact on the health of the “significant London Plane Tree” (Tree 4) (Ex G Tab G p 8 Fig 2).

74. The applicant submits that these impacts which offend paragraph (a) support a dispensation in this case. In arguing that position, the applicant also relies on the evidence of Ms Sims, Mr Carter and Ms Holtham that onsite loading in the frontage would have a detrimental impact on the streetscape and the significance of the contributory item. Again, contrary to Control C1 (a).

75. Control C1 (b) provides for dispensation for onsite parking and loading where “extensive areas of excavation are required”. The applicant submits that the accommodation of additional parking for guests and/or staff would require a further level or levels of car park below the proposed basement and this requirement for excavation would offend (b).

76. Control C1 (c) is not applicable.

77. Control C1 (d) provides for dispensation for onsite parking and loading where “vehicle entries and exits may have a detrimental impact on pedestrian or traffic movements or Council or service authority infrastructure”

78. On Mr Varga’s evidence, the applicant submits (T121:26-29) that the requirement for onsite parking/loading would significantly intensify vehicle movements across the footpath by cars, vans and trucks which would conflict with pedestrian use of the footpath contrary to Control C1 (d). Mr Steal also accepted in cross examination that reverse parking into the Site was not ideal.

79. Ms Holtham agrees with the applicant’s experts in the supplementary report dated 5 September 2025 that street activation is important from an urban design and heritage perspective and therefore options 2 and 3 are not acceptable.

80. She describes the proposal as infill development, i.e. a new building in a heritage context. In this situation Ms Holtham identifies that there is an existing cross over, driveway and provision of parking onsite. The four bays proposed equal approximately 18.2m and there is a 2.9m gap between the new building and contributory buildings. The requirement for a 4.5m opening at the front of the development for vehicular access (which could narrow into the Site) could in her opinion be accommodated within the existing rhythm. As the proposed inclusion of vehicular access to the Site would not result in demolition of the heritage fabric, her evidence is that “[it] appears that option 4 could facilitate a satisfactory outcome that allows loading”. She then suggested that the finish and final design for an opening could be the subject of a deferred commencement condition.

81. Ms Sims and Mr Carter do not agree with Ms Holtham’s assessment of option 4 as viable from an urban design and heritage perspective. Ms Sims describes the existing driveway as a poor heritage outcome and the proposal looks to improve the current situation by removing it. She is also concerned about the adverse impact on the adjoining contributory items directly adjacent to their private outdoor open space. Ms Sims also emphasised that the prevailing existing character is boundary to boundary development with activated street frontages. It is her expert assessment that any driveway opening, or garage door is out of character.

82. Mr Carter agrees with Ms Sims and added that maintaining the potential for pedestrian-car/van/truck conflict with the footpath crossing was a less desirable urban outcome particularly when the traffic evidence suggests loading can be done from the street. He is also critical of any built form on the boundary adjacent to the terrace house on the west residence as it would be less desirable than the 5m setback currently proposed to that neighbouring fence (Ex 15).

83. The applicant also relies on a plan which identifies hotels without onsite parking and loading facilities in the Paddington area to prove that hotels can function without parking and rely on on-street loading (Ex 9). And, in circumstances where the evidence suggests that the impact on the road network is acceptable, it submits that the Court will accept the expert assessment of Ms Carter and Ms Sims that the provision of onsite loading or parking would result in a poor urban design and heritage outcome in the Woollahra HCA.

84. The Council submits that there is no control in C1 of the DCP which is violated by the provision of parking onsite and;

“…there is nothing detrimental about the parking solution that was referred to in option 4, which might have some variation to that, but ultimately there were walls on all sides so there’s no real detrimental impact on the amenity of adjoining properties other than it ,might solve – assist in mitigating the parking demand and impacts by intensification of the use.” (T158:14-19)

85. The Council further contends on the evidence of Mr Steal and Ms Holtham that a 4.5 metre driveway on that boundary could accommodate the root zone of the significant tree in that location and that the driveway and vehicular access to the back of the Site for loading would not result in demolition of the heritage fabric or interruption of the existing rhythm (Ex 15 at [5], [7]).

86. The Council submits that Ms Holtham’s heritage evidence is more balanced and Ms Sims’ assertion that “the existing driveway is a poor heritage outcome” T159:23-24) is not. The Council contends that Mr Carter did not state categorically that running a driveway down the Site boundary (option 4) was unacceptable; he said it was “less desirable” than option 1 which is the current proposal. Therefore, as the applicant’s own urban design expert did not explicitly say option 4 was unacceptable, the Council submits that evidence should weigh in the Court’s consideration of whether such a design would have a detrimental impact on the character of the streetscape.

87. The Council submits that Mr Steal in the first report gave evidence that the DCP requires 64 parking spaces and two loading bays and that the applicant has not provided any justification that exceptional circumstances apply to this redevelopment (Ex 3 folio 39). It submits that there is no proper analysis of the extent to which this proposal would increase the demand for on street parking. Nor is there a detailed survey of the availability of parking at night, or independent assessment that deals with things like likelihood of, frequency and timing of deliveries or the likelihood of staff and guests requiring parking (T159:47-50, T160:0-1).

88. In respect to the difference between the traffic experts, the Council submitted that the Court would prefer Mr Steal’s evidence which included concessions such as no guest parking, (Ex 5 at [22]-[23]) but was adamant that onsite loading, staff parking and drop off and pick up should be configured in a redesign of the development.

89. The Council submits it is simply unacceptable to rely on loading zones that will only be vacant between 42-52% of the time (Ex 11 at [2.6.1]) unless the criteria that is set for heritage conservation areas are satisfied, and in this case, they are not so satisfied.

90. The Council rejects evidence based on the delivery information provided by the applicant. It contends that it is implausible and should have been supported by an independent survey (Annexed to Ex 5).

91. To the extent that the applicant seeks to rely on the POM to address the management of traffic issues, the Council submits that it does not satisfy the criteria in the decision of Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 (Renaldo) and is unenforceable and impractical (see T168:12-23).

92. Ultimately, the Council submitted that the Court should prefer Mr Steal’s expert assessment of option 4 and refuse the current design.

Findings

93. The development proposes the twelve existing parking spaces onsite be removed together with the existing cross-over which currently takes away a parking space. Therefore, if approved, there is opportunity for a new parking space generally in that location. In that circumstance, given the local objectors’ concerns about pick up and drop off of patrons, the suggestion that a condition be imposed requiring the applicant apply to the LTF to install a “No Parking” sign to assist with pick up and drop off from the hotel is in my assessment appropriate.

94. That said, in the event of a refusal of that application, I accept the applicant’s primary position that it is not required.

95. The evidence is that the delivery numbers to the development will not change but the quantum of each delivery will increase which may increase the amount of time a delivery van needs to off load. The experts agree that there are two on street loading zones in the vicinity of the Site. They are sign posted 8:30am to 4:30pm Monday to Friday, and 8:30am to 9:30pm Saturday. A no parking restriction applies to the same length of kerb between 4:30pm and 6pm on Monday to Friday. There is another space immediately east of the loading bay which is unrestricted. The loading bays can accommodate trucks, cars and vans.

96. The signage on the loading bays allows 8 hours per day (480 minutes) for loading for each space which equates to 80 hours for Monday to Friday (4800 minutes) and 1 hour (60 minutes) of loading on Saturday.

97. The evidence is that the loading bays presently service the hotel. There is a locked car park, so no loading is generally available onsite.

98. The evidence demonstrates that the difference in deliveries between the existing use without restaurant (90 minutes) and the proposed restaurant (145 minutes) is 55 minutes per week. This means that the proposed use will increase the use of the loading spaces 1 and 2 by 55 minutes in a week which equates to 11 minutes per day noting that spaces are available for a further hour on Saturday morning. The figures show that the worse day is Monday and that loading space 1 was available for 3 hours and 44 minutes and loading space 2 was available for 5 hours and 12 minutes.

99. These figures include the deliveries already being made to the existing hotel shown in Annexure 8 with the adjustment for the restaurant not operating.

100. If the proposed use equates to 2.05% of the available time (11 minutes), I accept that one loading space has the capacity to provide the whole weeks’ worth of additional loading time (55 minutes) on the worst day which it is agreed is Monday. The evidence is that if the loading were tripled, (165 minutes), there would still be spare capacity relying on only one loading zone space.

101. To the extent that Mr Steal raises concern that you cannot guarantee a loading space will be available at the time of the delivery vehicle arrival, I accept that this is no different to any on street loading and in this case there is no evidence of complaints to the Council about issues with loadings associated with the hotel.

102. Council’s DCP in Chapter E1 sets out Council’s parking and loading requirements. Section E1.3 includes objective C4 to minimise the environmental effects, particularly visual impact, of parked vehicles on the amenity of the municipality.

103. As the applicant identifies, the note in E1.1.4 of the DCP refers to the residential parking rates which are not limited to residential development and need to be read in the context of the existing use. While the use at issue is commercial, the Site is located in a residential area and the intent of the DCP is to protect the character of the streetscape in the heritage conservation area. Therefore, the impact of providing parking on the amenity of the HCA is relevant to my assessment of the DA.

104. The DCP acknowledges that the precinct controls in Parts B and C prevail over the residential parking generation rates in the Chapter.

105. Importantly, Section E1.2.3 provides that every case needs to be considered on merit having regard to the circumstances of the proposal to achieve environmentally acceptable solutions. Council may allow no compliance with the requirements of this Chapter in exceptional circumstances provided the applicant demonstrate as much to the satisfaction of the Council (and now the Court) having regard to the terms of Section E1.2.3 of the DCP.

106. Section E1.2.3 provides:

“This chapter contains minimum parking generation rates for non-residential development and maximum rates for residential development.

However, to achieve environmentally acceptable solutions, every individual case needs to be considered on merit having regard to the circumstances of the proposal.

Non-compliance with the parking controls

Council may allow non-compliance with the requirements of this chapter in exceptional circumstances. The applicant will be required to demonstrate, to the satisfaction of Council, the exceptional circumstances relating to a particular development application which would warrant non-compliance with the requirements of this chapter.

In its consideration of any non-compliance, Council will have regard to the objectives of this chapter, as well as other relevant chapters, and the specific nature of the exceptional circumstances as they relate to the parking requirement.

Council must be satisfied that the development seeks to minimise and manage the impact of traffic generation, and does not unreasonably increase demand for on-street parking, having regard to the existing context and capacity. A traffic and parking report, prepared by a suitably qualified person, may need to be submitted with the development application to demonstrate this. The requirements of the report are specified in the DA Guide.”

107. As noted, the Site is located in the Woollahra HCA and the hotel is nominated as a contributory item. Control C2 5.8 provides at C1 that the provision of onsite parking areas, parking structures and servicing areas such as loading facilities are not a requirement of the Council and may not be permitted in certain circumstances. Relevant considerations of C1(a) are whether “the parking of a vehicle may have a detrimental impact on the amenity of an adjoining property…the character of a streetscape…or the significance or architectural character of a building on the Site or an adjacent Site”.

108. As I have already identified, the heritage and urban design experts’ collective assessment is that the proposal introduces a façade that relates to the proportions and datum lines of the existing and surrounding terrace houses, including the dominant roof pitching line, and addresses concerns expressed about activation of that part of Queen Street whilst retaining of the significance of the Hughenden Villa (Ex 4 at p 6, [3]). The articulated reveals now provide depth to Queen Street, and the proposed earth toned face brick and mortar as the principal finish with brown/bronze steel framing and balustrading within the street front age zone render the development a more compatible response to the character of Queen Street and the Woollahra HCA. I accept Mr Carter’s description of the development allowing “new and old to sit comfortably together in a well-made streetscape…” (Ex 4 at p 7, [3]).

109. After careful consideration of all the evidence, including the views expressed by the objectors, I find Mr Varga’s traffic evidence persuasive and accept his expert assessment that onsite loading or staff/guest parking is not necessary in this development. There is an opportunity for such dispensation under the DCP Controls in C1 and it is warranted in this case.

110. In forming that view, I accept that the hotel, like many existing hotels in the area, use existing loading zones on the street and in this case the net increase in use is estimated to be only 11 minutes more per day. I accept the data in the third joint traffic report (Ex 12) which establishes that there is spare capacity in the existing loading zones to accommodate that increased use. As Mr Varga told the Court the loading bays proximate to the Site as surveyed were “… vacant half the time more of less” (T115:0-15).

111. In respect of the need for the development to provide car parking for customers or guests of the hotel, I accept the agreed position of the traffic experts that this is not necessary. I accept the evidence that it is reasonable to treat the restaurant component of the hotel in a similar manner to all other restaurants that are in that stretch of Oxford Street – all of which do not have customer car parking. I also accept Mr Varga assessment that the same conditions would apply for people that walk to the restaurant or catch an Uber or taxi, just like any other restaurants, unless they are hotel guests and they simply come downstairs.

112. In respect to staff parking, I accept Mr Varga’s observation that it would be very unusual to provide car parking for staff in this type of development. The opportunity to use public transport is readily available and the survey data from the manager suggests that historically the staff use public transport to the Site. I have no reason to disbelieve the evidence of the manager and his staff survey results. Moreover, there is no satisfactory evidence to support the argument that the 16 staff proposed in this development will change that travel method. The development increases the hotel rooms from 32 to 43, it is only an increase of 11 rooms. The number of staff onsite at any one time will be capped at 16 and such staff will be directed not to travel by car. There is no need for staff parking.

The objectors’ evidence

113. The Court’s duty under s 4.15 of the EPA Act, exercising the function of the consent authority, is to take into consideration the matters in that subsection as are relevant to the development the subject of the development application. This is the development application as finally amended. This includes my observations at the Site view and both expert and lay evidence. I note in the case of the local community, their opposition to the redevelopment of the hotel must be considered having regard to the fact that the hotel operates lawfully as an existing use and that the Final design is very different to that refused by the Council.

114. The development has generated local community objection, and I have considered the oral evidence taken at the onsite hearing and the written submissions in response to the notification of the DA.

115. The lay witnesses who addressed the Court included neighbours and a representative from The Queen Street & West Woollahra Association. A planner, Mr Barker, engaged by two owners of heritage properties in Jersey Street adjoining the rear boundary of the Site also addressed the Court. To better understand these neighbours’ concerns the Court inspected their properties. As a result, the Final plans were further amended to better protect their vegetation and the heritage structures on the common boundary. The aboral and planning experts are now agreed that the changes to the rear setback and the built form at that elevation have satisfactorily addressed these residents’ concerns.

116. Ms Holtham, Ms Simms and Mr Carter have concluded that the development is acceptable on the urban design and heritage issues and that the Final plans offer an appropriate infill development. After extensive written evidence to the Court (their agreed expert assessment weighs in favour of approval of the development. The traffic experts have also given extensive expert evidence to the Court offering albeit different opinions, particularly in relation to onsite loading). For the reasons outlined I have been persuaded by Mr Varga’s expert assessment and that to weighs in favour of the approval.

117. Included in my weighted assessment is the evidence of the lay objectors, who have raised concerns about parking and traffic congestion which they attribute to the hotel. They genuinely anticipate such impacts will be exacerbated by an approval of this application. The Council on Mr Steal’s evidence contends for a refusal of the DA essentially because of lack of onsite loading. I have dealt with Mr Steal’s evidence and that too has informed my overall assessment.

118. With regard to the objectors’ submissions, as Mr Varga points out there is no actual evidence of impacts associated directly with the hotel. I accept that the impacts may have occurred, but I have nothing to relate them to the hotel use. In the absence of specific evidence of traffic impacts associated with the hotel by Uber drivers/taxis or loading vans, in my weighted assessment the views of the objectors are largely displaced by the expert evidence. I have accepted that the increase of 11 rooms and a restriction on numbers of the hotel will increase loading time but there is capacity to manage that increase. There is also capacity to accommodate pick up and drop off of patrons for the reasons outlined by Mr Varga. That said, I have imposed a condition requiring the applicant apply to the LTA to have a “No Parking” space installed outside the hotel to assist with drop off and pick up in response to the residents’ concerns. The POM, to be a condition of the consent, will in my assessment assist to manage impacts generated by the development.

119. The Council’s criticisms of the POM in relation to the principles in Renaldo are in my assessment overstated. The POM is a condition of approval and compliance with its terms particularly by staff must be assumed. The applicant has agreed to a condition that requires the Council consent to amend the POM. I consider that condition should be imposed. It should also include a requirement that people be advised when making reservations online or by telephone that there is no onsite parking.

120. The Council’s DCP states that “Council may require additional or less loading bays depending on the scale and type of use having particular regard to the anticipate volume and frequency of deliveries associated with the development and the availability and suitability of any existing on street loading zone locate directly in front of, or at the side, of the premises”. As Mr Giles, the Chairman of the Queen Street & West Woollahra Association, told the Court the Queen Street Precinct is a very significant heritage conservation area. The DCP allows me to exercise a discretion after assessment of evidence of capacity and suitability and in this case, it is appropriate that I exercise that discretion to not require parking or loading onsite. Even if the manager’s evidence about the frequencies of deliveries for the development is wrong, the evidence is that there is sufficient loading capacity in the existing zones to accommodate that frequency three-fold.

121. As observed at the Court view, there is a terrace form of building in proximity to the Site. To the west there are three terraces and the proposal, on the evidence, meets the proportions and verticality of that streetscape. In my assessment the proposed design should not be interrupted by parking facilities or driveway access along its boundary with the adjoining terrace and to the rear of the Site. Such a development would as Mr Carter and Ms Simms expressed generate unacceptable amenity impacts for those neighbours.

122. Lastly, the Council has taken issue with the 60-patron limit proposed for those permitted to use the gym/spa area at any one time, submitting that number to be excessive and hard to manage. I accept that submission and require that the number of hotel patrons at any one time in that area be reduced to 30. Procedures for management of that number and the entitlement to use that area are to be set out in the POM.

Conclusion

123. For the reasons stated and having considered all relevant controls referenced in s 4.15 of the EPA Act, including the objectors’ evidence in writing and given onsite, I have determined that the proposed development has merit and that development consent be granted consistent with the Council’s conditions of consent, as amended to reflect my reasons for judgment.

Costs

124. The Council has raised an entitlement to costs thrown away including the engagement of a heritage expert to deal with evidence that arose in the hearing and the various amendment to the plans. The applicant should prepare a schedule of changes to assist the Council in deciding whether to claim its costs under s 8.15(3) of the EPA Act. Accordingly, I direct that the parties confer and advise me of their agreed position so that I can address that issue when making final orders.

Directions

125. The Court directs:

126. The parties are to confer and settle the conditions in accordance with my reasons for judgment and to provide a copy to the Court by 5 March 2026. In the event of disagreement, the parties are to provide competing conditions and short reasons in support and I will determine the final terms.

127. Upon receipt of the agreed conditions after review if they are acceptable, I will make final orders.

128. The parties are to confer and advise of their agreed position concerning any order for costs.

S Dixon

Senior Commissioner of the Court

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