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[2025] NSWLEC 1610
General information, not legal advice.
Land and Environment Court (NSW)
2025-08-26
Thorpe AC
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Bullen v Waverley City Council [2025] NSWLEC 1610
Hearing dates: 21-22 July 2025
Date of orders: 26 August 2025
Decision date: 26 August 2025
Jurisdiction: Class 1
Before: Thorpe AC
Decision: The Court orders that:
(1) The appeal is dismissed.
(2) Development Application No. 34/2024 for alterations and additions to the existing semi-detached dwellings at 5 and 7 Wilga Street, Bondi is refused.
Catchwords: DEVELOPMENT APPEAL – residential development – excavation – car parking – streetscape impacts – public interest
Legislation Cited: Disability Discrimination Act 1992 (NSW)
Environmental Planning and Assessment Act 1979 (NSW), ss 4.15, 8.7
Land and Environment Court Act 1979 (NSW), ss 34, 39
Waverley Local Environmental Plan 2012, cll 1.2, 6.2
Cases Cited: Cloke v Mosman Municipal Council [2025] NSWLEC 1308
Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75
Steley v Waverley City Council [2025] NSWLEC 1037
Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 16
Texts Cited: Australian Standards 2890.5:2020 Parking facilities On-street parking, April 2020 Waverley Development Control Plan 2022 Waverley’s People, Movement and Places
Category: Principal judgment
Parties: James Bullen (First Applicant)
Jayshri Master (Second Applicant)
Nicholas Seale (Third Applicant)
Ivana Seale (Fourth Applicant)
Waverley City Council (Respondent)
Representation: Counsel:
Nicholas Eastman SC (Applicants)
Jonathan Ede (Solicitor) (Respondent)
Solicitor:
Hartley Solicitors (Applicants)
Wilshire Webb Staunton Beattie (Respondent)
File Number(s): 2025/54818
Publication restriction: Nil
COMMISSIONER: This is a case about the balance between private and public interests in relation to the increasingly contested issue of car parking.
The applicants, James Bullen, Jayshri Master, Nicholas Seale and Ivana Seale, have appealed pursuant to s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) against Waverley City Council’s (Council) deemed refusal of development application number DA32/2024 (DA). The DA seeks development consent for alterations and additions to the existing semi-detached dwellings at 5 and 7 Wilga Street, Bondi, legally described as Lots 1 and 2 in Deposited Plan 510887 (site).
The applicants wish to construct garages to provide car-parking at their properties. While the applicants have endeavoured to minimise impacts, notably by joining together to propose two garages with a single entrance, the DA would entail significant excavation at the site and in the road reserve, and would result in the loss of deep soil and on-street parking. Council policy is to minimise excavation, to preserve deep soil and on-street parking, and to discourage the provision of private car parking.
As set out below, I find that the DA warrants refusal because the proposed excavation is excessive and would have adverse impacts on the streetscape, deep soil and on-street parking. I find also that the proposed development would be contrary to the public interest due to its inconsistency with Council policy and controls to encourage walking, cycling and the use of public transport and to discourage the provision of private car parking.
The site is occupied by a pair of two storey semi-detached dwellings. Surrounding development includes dwelling houses, semi-detached dwellings, and residential flat buildings. The site is in close proximity to popular recreational locations including Marks Park, Bondi Icebergs and the Bondi to Tamarama Coastal Walk.
The site is located on the southern side of Wilga Street, between Roland Avenue to the west and Sandridge Street to the east. This section of Wilga Street is characterised by a sloping embankment that extends between the roadway and adjacent lots. Continuing the fall of the site, it slopes down from the south. The embankment is grassed and contains a footpath that runs immediately adjacent to the front boundary of the site, a staircase that runs perpendicular to the roadway, and powerlines that run overhead.
Wilga Street is a local road, with time-restricted parking on both sides. Three properties on the southern side of Wilga Street currently feature on-site car-parking. One is on the same section as the subject site, another is located on the western side of Roland Avenue, the third is on the eastern side of Sandridge Street. Several properties in the locality feature off-street parking, including 8 with parking garages built to the property line on Roland Avenue.
(c) to provide for a range of residential densities and range of housing types to meet the changing housing needs of the community,
(ca) to encourage the development of a variety of housing on land close to public transport, essential goods and services and open space,
(e) to protect, maintain and accommodate a range of open space uses, recreational opportunities, community facilities and services available to the community,
(f) to enhance and preserve the natural environment through appropriate planning, protecting the integrity of natural systems and by protecting existing trees,
(i) to achieve high quality public domain with significant tree canopy and accessible open space,
(l) to improve connectivity and accessibility in Waverley and prioritise development that enables walking, cycling and the use of public transport,
To provide for the housing needs of the community within a medium density residential environment.
To provide a variety of housing types within a medium density residential environment.
To enable other land uses that provide facilities or services to meet the day to day needs of residents.
To maximise public transport patronage and encourage walking and cycling.
To increase or preserve residential dwelling density.
To encourage the supply of housing, including affordable housing, that meets the needs of the population, particularly housing for older people and people with disability.
To provide development that is compatible with the desired future character and amenity of the surrounding neighbourhood.
To promote development that incorporates planning and design measures that reduce the urban heat island effect.
To improve the urban tree canopy by providing high levels of deep soil planting and additional landscaping.
(b) the effect of the development on the likely future use or redevelopment of the land,
(d) the effect of the development on the existing and likely amenity and structural integrity of adjoining properties,
(h) any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
The parties agree that due to the lodgement date of the DA, Waverley Development Control Plan 2022 Amendment 1 (WDCP) applies.
Part B of WDCP contains general provisions. Relevant objectives and controls include:
“6.1 Accessibility
Objectives
(a) To ensure that buildings and public spaces provide for equitable access for all, including people with a disability, ageing people with mobility difficulties, parents with prams, and other people with temporary disabilities.
(b) To provide an accessible, continuous path of travel to all developments.
(d) To ensure major alterations and additions to existing buildings provides upgraded levels of access and facilities for all people.
…
B7 Transport
Car parking is one of the most critical planning and transport issues in Waverley. Wherever possible, Council strongly encourages the use of alternative modes of transport such as walking, cycling and public transport and continues to work towards providing better transport connections to the area.
The provision of private (on-site) and public (on-street) parking must be managed in an equitable and environmentally sensitive manner that benefits the community as well as the individual.
Waverley’s People, Movement and Places
This Part has been prepared in the context of the Waverley Transport Plan 2017 ‘Waverley’s People, Movement and Places.’ The aim of Waverley’s People, Movement and Places is to:
Create a transit hierarchy for movement in the LGA that prioritises pedestrians and active transport, followed by public transport, service vehicles, shared mobility and private motor vehicles;
Identify signature projects to invest in; and
Identify short, medium, long term actions that Council can undertake.
Objectives
(a) To prioritise trips taken by pedestrians, bicycles and other forms of active transport, followed by public transport, and private vehicles.
(b) To ensure that new development promotes active and public modes of transport through car share facilities, end of trip facilities, and effective links to public transport.
(c) To encourage reduced rates of car parking where adequate modes of public or active transport are available.
(d) To ensure that parking and access do not dominate or adversely impact upon the character of the streetscape, landscape and the development.
(e) To prioritise and maintain pedestrian amenity and safety.
(f) To ensure on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings.
(g) To encourage on site car parking that considers flexibility in the design to allow easy transition to alternate uses in the future.
(h) To discourage podium or above ground car parking.
(i) To prevent on street car parking being utilised by occupants with allocated car parking bays.
(j) To provide convenient and accessible parking that is appropriately designed and located.
(k) To achieve a high standard of urban design and contribute to the amenity of streetscapes and landscapes.
7.1 Streetscape
Objective
(a) To ensure the provision of off-street parking is subject to considerations of urban design, streetscape and heritage conservation.
(b) To balance car parking provision and access with urban design and amenity outcomes.
Controls
(a) A Streetscape Analysis is to be submitted in accordance with the Waverley Development Application Guide.
(b) Where off street parking is not characteristic of the streetscape, vehicular access from the street is not permitted.
(c) Car parking and vehicular access must not dominate the streetscape. Landscaping is to be used to soften the impact of such structures/areas.
(d) Car parking and driveway design is to preserve mature or significant trees and vegetation on the site and in the surrounding streetscape. A significant tree refers to a tree identified on the Waverley Significant Tree Register, or a tree or vegetation that forms part of a Heritage Item or is within a Heritage Conservation Area.
(e) Existing natural rock faces and heritage listed sandstone walls must not be removed for the purpose of car parking.
(f) Entry gates and structures for car parking should be an open design to allow for improved security by way of street surveillance and to reduce any impact on the streetscape.
(g) Parking structures are to maximise natural light and ventilation.
(h) Separate and clearly differentiate pedestrian and vehicle access to the site.
(i) Basement parking areas and structures:
(i) In Bondi Junction must not protrude above the level of the adjacent street or public domain;
(ii) In other areas, must not protrude more than 1.2m above the level of the adjacent street or public domain.
(j) Where visible, basement structures and vent grills are to be integrated into the building and landscape design. Ventilation grills are to block views into basement areas and where possible be screened by landscaping in garden beds with a minimum soil plan depth of 1m.
…
7.2.1 Vehicle Access
Objectives
(a) To prioritise pedestrian movements and the public domain over vehicular access.
(b) To design vehicle access to required safety and traffic management standards.
(c) To minimise the impact of vehicle access points and driveway crossovers to retain streetscape continuity and reinforce a high quality public domain.
(d) To ensure vehicle entry points are integrated into building design and contribute to high quality architecture.
(e) To integrate vehicle access with site planning and local traffic patterns.
(f) To minimise potential conflict between vehicles and pedestrians.
(g) To minimise the size and quantity and visual intrusion of vehicle access points.
Controls
(a) One vehicle access point per development (including any access for service vehicles and parking for non-residential uses within mixed use developments) is permitted.
(b) Vehicle access is to be from lanes and secondary streets where available, and not from primary street fronts or streets with major pedestrian activity.
(c) Vehicle access points are to be integrated into the building design.
(d) Vehicle access is to be designed to minimise the impact on the street, site layout and the building façade design.
(e) Doors to vehicle access points are to be tilting doors fitted behind the building façade and to be of materials that integrate with the design of the building and contribute to a positive public domain.
(f) Vehicle entries are to have high quality finishes and detailing. No service ducts or pipes are to be visible from the street.
(g) Vehicle access may not be required for, or may be denied to some heritage buildings.
(h) New developments are to utilise existing vehicle access points in adjoining developments where possible.
(i) New developments are to provide vehicle access points that are capable of underground shared access at a later date. Internal on-site signal equipment is to be used to allow for safe shared access.
(j) Vehicle access should be:
(i) Located taking into account any services within the road reserve, such as power poles, drainage inlet pits and existing street trees.
(ii) Located a minimum of 10m from the perpendicular of any intersection of any two roads.
(iii) Locate vehicle access a minimum of 3m from pedestrian entrances.
(k) Wherever practicable, vehicle access is to be a single lane crossing with a maximum width of 2.7m over the footpath, and perpendicular to the kerb alignment. In exceptional circumstances, a double lane crossing with a maximum width of 5.4m may be permitted for safety reasons.
(l) Driveway widths must comply with the relevant Australian Standards.
(m) Car space dimension, driveway grades, vehicular ramp width/grades and passing bays must be in accordance with the relevant Australian Standards. Vehicular ramps less than 20m long within developments and parking stations must have a maximum grade of 1 in 5 (20%).
(n) Vehicle access ramps parallel to the street frontage will not be permitted.
(o) Vehicular access must not ramp along boundary alignments edging the public domain, streets, lanes parks, water frontages and the like.
(p) Access ways to underground parking should not be located adjacent to doors or windows of the habitable rooms of any residential development.
(q) Access ways and driveways are to enable vehicles to enter the parking space in a single movement, and to leave the space in a maximum of two turning movements.
7.2.2. Car Parking Provision Rates
Objectives
(a) To provide car parking rates which reflect the proximity of development to existing public transport, services and the availability of on-street parking.
(b) To balance the need to meet parking demand on site with the need to contain parking and promote sustainable transport.
(c) To establish controls for parking that reflect the characteristics of the area in terms of urban form, land use and proximity to public transport.
Controls
(a) Approval for on-site parking will only be granted where the site and locality conditions permit.
(b) Car parking must be designed to complement the design of the building and streetscape to which it relates and incorporate a range of appropriate materials and design.
(c) Car parking structures are to be located behind the front building line to reduce visual impact upon the streetscape.
(d) Driveways and vehicular access should be designed to minimise the loss of onstreet parking wherever possible.
(e) Car park access is to be provided from secondary streets or lanes where possible.
(f) Adjacent properties are to share driveways and vehicle crossings where possible to minimise service entries and increase safety for pedestrians.
…
7.2.4 Parking for Low Density Residential Development
Controls
(a) For new dwellings, car parking should not exceed the rates outlined in Table 4.
(b) Notwithstanding the above, a reduced rate (or no parking) may be required in the following circumstances, where:
(i) Parking may have a detrimental impact on the character of the streetscape, heritage item or heritage conservation area, or health of a mature or significant tree.
(ii) A driveway cannot comply with maximum gradients and design standards required by the Australian Standards.
(iii) Vehicle entry and exit may have a detrimental impact on pedestrian and traffic movements and safety or nearby services or infrastructure.
(iv) The access to the on-site car parking will result in the loss of more than 1 on-street car parking space.
(v) There is low on-street parking availability and no net car parking public benefit.
(c) Where an applicant proposes to provide more than the number of on-site car spaces specified in (a) the additional spaces will contribute to the Gross Floor Area calculation and additional justification must be provided to cover matters such as, but not limited to the impact of:
(i) Parking compared to alternatives such as landscaping;
(ii) Any increased building bulk on the streetscape;
(iii) Any increased building bulk on the amenity of adjoining properties;
(iv) The loss of existing on-street parking illustrating existing and proposed off street parking;
(v) The level and impact of any excavation; and
(vi) Access to public transport.
…
11.1 Design
Objectives
(a) To ensure development contributes to the architectural and overall urban design quality of Waverley.
(b) To encourage variety in architectural design and character across large developments.
(c) To identify the key components of good urban design.
(d) To increase the value of site and context analysis and promote site specific design responses.
Controls
(a) Development is to achieve a high standard of architectural design, materials and detailing appropriate to the building type and location.
(b) The form and external appearance of development is to improve the quality and amenity of the public domain.
(c) Development is to consider and retain view corridors. Development will not be supported where detrimental impacts upon views and vistas is imposed, particularly those views from the public domain.
(d) Development must not have a detrimental effect upon the amenity of public plazas and public open spaces.
(e) Development must consider the following:
(i) The suitability of the land for development;
(ii) Existing and proposed uses and use mix;
(iii) Heritage issues and streetscape constraints;
(iv) The relationship of the development to other development (existing or proposed) on the same site or on neighbouring sites in terms of separation, setbacks, amenity, and urban form;
(v) Bulk, massing and modulation of buildings;
(vi) Street frontage heights;
(vii) Environmental impacts such as sustainable design, overshadowing, wind and reflectivity;
(viii) The achievement of the principles of ecologically sustainable development;
(ix) Pedestrian, cycle, vehicular and service access, circulation requirements; and
(x) The impact on, and any proposed improvements to, the public domain.
…
B13 Excavation
Objectives
(a) To set maximum acceptable volumes of excavation which achieve the following objectives.
(b) To minimise the impact of excavation on the natural environment, neighbouring properties, and streetscape.
(c) To ensure the physical environment is preserved and enhanced through minimal site disturbance and the geotechnical stability of landfill and excavations.
(d) To minimise cut and fill on sloping sites.
…
Controls
(a) The total volume of excavation permitted is to be no greater than the volume shown in Figures 26 and 27.
15.1 Public Domain
The public domain is Waverley’s shared space for residents and visitors alike. It is important that development that addresses the public domain is attractive, safe and accessible. The public domain should be characterised by accessibility, excellence in design, high quality materials and well-integrated public art. This Part is to be read in conjunction with Council’s Street Design Manual and Public Domain Technical Manual which provide further details on the application of the controls outlined in this Part.
Objectives
(a) To ensure that the public domain receives adequate solar access.
(b) To protect significant views and vistas from the public domain.
(c) To ensure that development contributes to the activity, safety, amenity and quality of the public domain.
(d) To ensure that development adjoining the public domain is of a high quality.
(e) To provide legible and accessible development.
(f) To reinforce the character of the area.
(g) To minimise the use of, and ameliorate the effect of, blank walls at ground level.
(h) To minimise risks to the community of natural or environmental hazards, including urban heat islands or localised flooding.
(i) To maximise the accessibility and security of public open space.
(i) To improve nighttime movement and activation of street frontages.”
“1.0 General Objectives
(a) To ensure that the scale of lower density residential accommodation is appropriate for allotment sizes and other dwellings in the vicinity.
(b) To ensure that lower density residential accommodation does not significantly detract from the amenity, privacy and views of other dwellings and public view corridors.
(c) To ensure that the consent authority has regard to the principles of ecologically sustainable development when assessing applications.
(d) To ensure that new development and alterations and additions to existing lower density residential accommodation is sympathetic in bulk, scale and character with the desired future character of the area.
(e) To encourage lower density residential accommodation to have high design standards and are built in accordance with the objectives and controls of this Part.
…
1.3 Streetscape and Visual Impact
Controls
(a) New development should be visually compatible with its streetscape context. It should contain or at least respond to essential elements that make up the character of the surrounding area.
…
1.8 Car Parking
Objectives
(a) To provide convenient and accessible parking that is appropriately designed and located.
(b) To achieve a high standard of urban design and retain the visual quality of lower density residential accommodation, streetscapes and landscapes.
(c) To protect the amenity and safety of pedestrians.
(d) To ensure that car parking accommodation does not dominate or adversely impact on the existing built or landscape character of the street.
(e) To encourage the use of alternative modes of transport in areas well serviced by public transport.
(f) To ensure on-street parking supply is protected by minimising impacts of additional vehicular kerb crossings.
Controls
1.8.1 Design Approach
(a) Approval for on-site parking will only be granted where the site and locality conditions permit.
(b) Car parking must be designed to complement the design of the building and streetscape to which it relates and incorporate a range of appropriate materials and design.
(c) Car parking structures are to be located behind the front building line to reduce visual impact upon the streetscape.
(d) Driveways and vehicular access should be designed to minimise the loss of onstreet parking wherever possible.
(e) Access to car parking and car parking structures are to be provided from secondary streets or lanes where possible.
1.8.2 Parking Rates
(a) Development is to comply with the provisions of Table 4 in Part B8 Transport.
(b) Notwithstanding the above, a reduced rate (or no parking) may be required in the following circumstances, where:
(i) Parking may have a detrimental impact on the character of the streetscape, heritage item or heritage conservation area, or health of a significant tree.
(ii) A driveway cannot comply with maximum gradients and design standards required by the Australian Standards.
(iii) Vehicle entry and exit may have a detrimental impact on pedestrian and traffic movements and safety or nearby services or infrastructure.
(iv) The access to the on-site car parking will result in the loss of more than 1 on-street car parking space.
(v) There is low on-street parking availability and no net car parking public benefit.
…
1.8.3 Location
…
(b) For existing development, car spaces should be sited having regard to the following hierarchy (refer to Figure 11):
i. Hardstand, carport or garage located at the rear of the site with access from secondary streets or lanes;
ii. Hardstand, carport or garage located at the side of the dwelling behind the building alignment; or
iii. Hardstand car space forward of the front building line
1.8.4 Design
(a) All car parking should be designed to complement the style, massing and detail of the dwelling to which it relates.
(b) Car parking is to be sympathetically integrated into the design of residences and to be secondary in area and appearance to the primary residence and related site.
…
(d) Car parking is to preserve the natural features of the site and incorporate substantial screen planting to both the surrounds and any structure facing the street.
1.8.6 Driveways
(a) Where possible driveways to off-street car parking should be located so they may provide vehicle access to adjacent properties.
(b) Provide a maximum of 1 vehicle crossing per property. Properties with more than 1 dwelling, are required to share a vehicle crossing to reduce the impact to street parking and allow more space for street trees.
(c) Driveways are to be 3.0m wide at the gutter (excluding the splay) and may splay to the property boundary as required.
(d) Vehicle crossings will not be permitted where one off street parking space will result in the loss of two or more on street parking spaces.
(e) A street analysis is required illustrating the number of on-street spaces provided before and after the proposed vehicle crossing.”
The appeal is a residential development appeal and commenced with a conciliation conference in accordance with s 34AA of the Land and Environment Court Act 1979 (NSW) (Court Act). The conciliation conference commenced on site and included a view encompassing Wilga Street, Roland Avenue, Fletcher Street and Sandridge Street. The view included observations of the streetscape, built form within and adjacent to the road reserve, provision of on and off-street parking, the council-approved community garden in the road reserve at the western end of Wilga Street, and the rear part of the site at issue in Steley v Waverley City Council [2025] NSWLEC 1037 (Steley). There were no submitters present.
As agreement could not be reached between the parties, the conciliation conference was terminated and the hearing commenced forthwith. The parties agreed for the evidence from the site view and conciliation discussions to be considered in the hearing.
Expert evidence for the planning issues was submitted in a joint expert report (Planning JER) (Ex 3) by Anthony Betros for the Applicants and Rebecca Englund for Council. Expert evidence for traffic issues was submitted in a joint expert report (Traffic JER) (Ex 4) by Lachlan Ellson for the Applicants and Simon Mueller for Council. All experts gave oral evidence.
After the hearing, the parties provided submissions in relation to draft conditions of consent (filed 31 July 2025).
At the commencement of the hearing, the applicants sought and were granted leave to amend the DA pursuant to s 39 of the Court Act. The amendment was unopposed by Council. In general, the amendments comprise reductions in the size of the proposed garage and driveway and revisions to the landscape plan and to the proposed balustrading.
Some issues were resolved through the amendment of the DA. The issues which remained in contention may be summarised as follows:
Excessive earthworks
Adverse impacts upon streetscape
Traffic, parking, manoeuvring and pedestrian access
Public interest
The experts agree that the DA has been designed to minimise impacts to the extent possible while still adding a garage for off-street parking. The experts agree that the DA would have an effect on the likely future use or redevelopment of the land. While Mr Mueller gave evidence that there are no current proposals to widen Wilga Street or otherwise redevelop the road reserve, it is his opinion that there is a small possibility that works could be undertaken in future. This might include works to bring Wilga Street into compliance with the Disability Discrimination Act 1992 (Cth) (DDA) or to construct a bicycle lane. The experts agree that the DA would not outright preclude such redevelopment, but would impede it (Ex 4, p 3). In particular, the top of the structure would set a new level for the footpath which could make DDA compliance challenging.
The experts agree that the site is in an area with high demand for parking, particularly associated with events such as Sculpture by the Sea. The parking survey shows that the on-street parking is almost at maximum capacity (Ex 4, p. 8). The experts also agree that the area has low traffic volumes and good accessibility for public and active transport.
The experts agree that the numerical control on excavation in Part B13 of WDCP is imprecise and should be applied flexibly. The experts agree that the control indicates a numerical limit in the order of 110 cubic metres of excavation for each of the two properties comprising the site. The experts also agree that the measures for calculating the volume of excavation proposed are imprecise, varying depending on whether the architectural or engineering plans are used and on the assumptions made about matters such as piling, the garage door setback and whether the centre wall is included. Mr Betros’ opinion is that the excavation proposed is 98m3 at 7 Wilga Street and either 110 or 122m3 at 5 Wilga Street. Ms Englund’s opinion is that the excavation proposed is 107m3 at 7 Wilga Street and 126.2 or 128.5 m3 at 5 Wilga Street. Ms Englund notes that these calculations do not include the additional excavation required for matters such as footings and drainage, nor do they include the significant excavation which would be required through the sloping embankment in the road reserve.
Mr Betros is of the opinion that the amendments suitably minimise excavation, and that the landscape plan demonstrates that a desirable outcome would be achieved, including planting in accordance with Council’s Verge Policy which would enhance the public domain. The DA proposes the maximum car parking (1 space per property) permissible under control 7.2.2 of WDCP. It is Mr Betros’ opinion that the garage would be imperceptible apart from when standing directly opposite. Both pedestrian and vehicle traffic volumes are low in Wilga Street. Mr Betros said that the DA is compatible with the character of the streetscape, and gave evidence of other examples of driveways through sloping verges in the Waverley City Council area (Ex C). These include both historical examples and recent approvals. It is Mr Betros’ opinion that the proposal sensibly balances streetscape impact, design and amenity considerations.
Ms Englund’s opinion is that the proposed excavation is excessive. She says that the DA would significantly reduce the scope for deep soil planting. Noting Council’s contentions regarding insufficient information and the requirement for 450mm clearance in New Developments – Deployment of nbn Pit and Conduit Network (Ex 5), Ms England was not satisfied that the DA was consistent with the provision of services to the site or to other properties on Wilga Street. Ms Englund disagrees that the proposed excavated driveway, retaining walls and handrails would not be visible on approach to the site, particularly from the downslope, including from the corner of Sandridge Street. While Ms Englund accepts that the DA has minimised the excavation necessary for a garage, she notes that there is no requirement for the provision of on-site parking and that WDCP expressly states that off-street parking will not be approved where it is not characteristic of the streetscape. Ms Englund notes that all but one of the examples of tunnelled driveways provided by Mr Betros are in the suburb of Bronte, and appear to come from streetscapes with different characters. The one Bondi example is a historical development at a residential flat building. In Ms Englund’s opinion, the DA is uncharacteristic of Wilga Street, would be visually dominant in the public domain and would have adverse impacts on the amenity of the adjoining road reserve and on the streetscape.
Council has not provided consent for excavation in the road reserve. The parties agree that the Court has jurisdiction to do so pursuant to s 39(2) of the Court Act.
Mr Eastman submits that the numerical controls on excavation in WDCP are “aspirational” and compliance with these is not necessary, since excavation is imprecise and the exceedance would be imperceptible in this case. The current controls, while not applicable in this matter, are qualitative only and emphasise the need to encourage minimisation and avoid unnecessary excavation. A flexible approach is required. Mr Eastman says that this DA sets a high standard in collaborating between neighbours to minimise excavation. The streetscape must include Roland Avenue as well as Wilga Street, and in Roland Avenue there is a row of garages. These and the examples provided by Mr Betros show that the DA is not uncharacteristic of and would not dominate the streetscape (the test in Part B7.1 of WDCP).
Council contends that the DA is inconsistent with the objectives of the R3 zone, including to encourage public transport, walking and cycling, to provide development compatible with the desired future character and amenity of surrounding development, to promote planning and design measures to reduce the urban heat effect, and to improve tree canopy by increasing the provision of deep soil. Council contends that the DA should be refused pursuant to cl 6.2 of WLEP as the extent of excavation is excessive and results in adverse impacts upon the amenity and the likely future use and development potential of the adjacent road reserve. Likely future uses include: service provision, public access, footpath upgrades for DDA compliance and planting of street trees.
Council contends that the DA does not satisfy the objectives or controls in Chapter B13 of WDCP. While the proposed development at 7 Wilga Street is now compliant with the numerical control for excavation, the proposed development at 5 Wilga Street exceeds the control by 16.2-18.5m3. Mr Ede submits that this is not an insignificant exceedance, particularly given it does not include the excavation in the public domain. Ms Englund’s evidence should be preferred on visual impacts, the DA would be viewed as an additional level with planting above and beside the driveway but no shielding. Roland Avenue is not part of the relevant streetscape and the garages there differ from this proposal. The examples provided by Mr Betros are not characteristic of the streetscape.
I accept that the provisions of WDCP are not determinative and must be considered pursuant to s 4.15(1)(a) and 4.15(3A) of the EPA Act. I accept also that WDCP should be a fundamental consideration and focal point to determine whether development consent should be granted: Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167 at [75].
I accept the evidence of Ms Englund and Mr Mueller that the proposed excavation would have a negative impact on amenity and the likely future use and development of the road reserve, including provision of services, deep soil and tree planting, car-parking and infrastructure for pedestrians and cyclists. The exceedance of the numerical control in B13 supports this conclusion, particularly given the significant additional excavation in the public domain.
I accept that effort has been made to minimise excavation and its impacts by providing one access point for two properties. These efforts must be considered against the option of not constructing any garage, since there is no entitlement to on-site car parking and Council policy is to discourage its provision. While WDCP permits one vehicle access point (control (a) of 7.2.1) and up to one parking space (control (a) of 7.2.4), these are not entitlements but subject to other objectives and controls. Relevant controls include: vehicle access is not permitted where off-street parking is not characteristic of the streetscape (control (b) in 7.1), approval is to be granted only where site and locality conditions permit (control (a) in 7.2.2 and in C1 1.8.1), and reduced or no parking may be required where parking may have a detrimental impact on the streetscape (control (b) in 7.2.2 and C1 1.8.2). The objectives and controls in WDCP provide guidance in determining what is excessive and what is reasonable in the circumstances, showing a strong preference for public benefits (urban design, streetscape, accessibility, amenity and sustainability) over the private benefits of on-site car parking. The objectives of the R3 zone show a similar emphasis on sustainability, encouraging walking, cycling, public transport, deep soil, tree canopy and local amenity. Accordingly, I find that the proposed earthworks are excessive and, pursuant to cl 6.2 of WLEP, development consent should not be granted. I find also that owner’s consent for excavation in the public domain should not be granted pursuant to s 39(2) of the Court Act.
There was considerable overlap in the evidence and submissions on excavation, streetscape impacts and design excellence.
I accept Mr Ede’s submission that the streetscape is limited to Wilga Street, noting the site is located on the southern side of Wilga Street which is characterised by a high sloping embankment not found on other parts of Wilga Street nor on Roland Avenue. The test for whether vehicle access should be permitted under B7.1(b) and C1.8.2(b)(i) of WDCP is not whether the proposal is compatible with the streetscape, but whether off-street parking is characteristic of the streetscape. I accept the evidence of Ms Englund that off-street car parking is not characteristic of the streetscape. I accept the evidence of Ms Englund that a tunnelled garage would visually dominate the streetscape, contravening controls B7.1(c) and C1.3(d). I note that the applicant did not provide images of the view from the corner of Sandridge Street or other parts of the streetscape to support Mr Betros’ evidence that the garage would not be visible from further away. Whether the streetscape includes Roland Avenue or not, I find that the DA would have a detrimental impact on the streetscape, contravening the controls in B7.2.4(b)(i) and C1.8.2(b)(i). I accept Ms Englund’s evidence that the DA would not improve the quality and amenity of the public domain and would have detrimental impacts on views and vistas, including from the public domain, contravening controls B11.1(b) and (c).
I accept Council’s contentions that variations to these controls are not warranted given the DA is not consistent with the objectives of those controls, of B7 of WDCP and of Waverley’s People, Movement and Places. I find that the DA would have adverse impacts on the streetscape and does not achieve design excellence.
The experts agree that the space for parking on the south side of Wilga Street between Roland Avenue and Sandridge Street is approximately 52m, but they do not agree on the precise measurement. Mr Ellson says it is 51.5m. The experts agree that this space is sufficient for 8 spaces which comply with the requirements of Australian Standard/New Zealand Standard 2890.5 Parking Facilities – On-Street Car Parking (AS 2890.5). They also agree that the space is used at present for up to 9 vehicles, as documented in Ex 6. Mr Mueller notes that AS 2890.5 provides for discretion in its application and that Council could relocate the No Stopping sign to increase the space available for off-street parking.
The experts agree that the space to the east of the proposed driveway would provide 5 parking spaces which comply with AS 2890.5, with another 2 spaces to the west. The experts disagree on the number of cars which could effectively be parked to the east. Mr Ellson says 6 cars could fit, though he would not say this would be safe, just as he would not say the current arrangement of 9 cars along the whole section of Wilga Street is safe. Mr Mueller says the DA would result in only 5 spaces to the east of the proposed driveway.
Mr Ellson says that the proposal would result in the loss of 1 on-street parking space, which is a positive outcome since the DA would provide 2 off-street parking spaces. Mr Mueller says that the proposal would result in the loss of 2 on-street parking spaces and that even if only 1 space was lost, this would be a negative outcome because on-street parking is of far greater public value in this high demand area. A private off-street parking space cannot be shared among members of the public in the way that an on-street parking space can be shared.
The experts agree that the swept path for the 99th percentile vehicle encroaches slightly into the driveway opposite during ingress movements. Mr Ellson says that this can be avoided with a double-movement ingress. Mr Mueller says that the swept path analysis relies on ideal conditions which should be approached with caution given the high parking demand context. Mr Mueller says that the proposed structure and immediately adjacent on-street parking would limit visibility for vehicle drivers reversing, creating a safety issue.
The experts agree that the DA would create potential for conflict between pedestrians and vehicles as the proposed retaining wall runs to the street. Pedestrians would need to walk into the road reserve.
The applicant says it is reasonable for a dwelling adjoining a road to have vehicular access and on-site parking. Mr Eastman submits that there are numerous controls within WDCP which contemplate off-street parking, and that a contribution per space lost is contemplated by the fees and charges of Council as reflected in Condition 21.
The applicant contends that the DA would result in a net gain in parking, and that the Court should follow the approach to expert evidence on the loss of on-street parking taken by Espinosa C in Cloke v Mosman Municipal Council [2025] NSWLEC 1308 (Cloke). Alternatively, the applicant says that if the Court accepts that the relevant section of Wilga Street currently provides 9 parking spaces then the Court should also conclude that there would be 6 parking spaces to the east of the proposed driveway, a total of 8 after the proposed development.
Council says that the loss of parking and impacts on traffic and pedestrian safety are not reasonable. Mr Ede notes that there is no entitlement to off-street parking, and there are objectives and controls in WLEP and WDCP to reduce car-parking and encourage walking, cycling and public transport. While minor, the swept path and visibility issues described in evidence by Mr Mueller point to the site’s lack of suitability for the development (s 4.15(1)(c) of the EPA Act). In practical terms, the DA would result in a loss of 2 parking spaces. Depending on the measurement, there is a shortfall of 0.8 – 1.5m across the 9 spaces at present. Wilga Street pre-exists AS 2890.5, and there is no road rule requiring parking to comply with that standard. Mr Ellson acknowledged that the average road user is unlikely to know that the space falls short. Ex 6 shows that the space is currently used for parking by up to 9 cars. The loss of even one parking space is significant in a high demand area. This was the conclusion of Porter C in Steley.
I find that the DA would reduce safety for pedestrians, contravening the objectives in B6.1 accessibility and the controls in 7.2.1(a), 7.2.4(b)(iii) and C1.8.2(b)(iii) of WDCP. Reducing safety for pedestrians to accommodate private vehicles is inconsistent with the transport hierarchy in B7 and Waverley’s People, Movement and Places. I accept also that the swept path and visibility issues create additional safety issues at odds with these objectives and controls.
Coupled with the extensive excavation and tunnelling of the public domain proposed, I accept that swept path and visibility issues indicate that the site is not suitable for the DA. Pursuant to s 4.15 of the EPA Act, I find that consent should not be granted for the proposed development.
I accept that the current practice of parking 9 cars along this section of Wilga Street is at odds with the guidance in AS 2890.5, with a shortfall of 0.8 - 1.5m across the 9 spaces equating to 8.9 – 17cm per space. There is no evidence of any safety issues arising from the current car parking arrangement. I accept that parking spaces are not line marked and this shortfall would not be apparent to people using the street for car parking. I accept that there are no road rules requiring vehicles to be parked in compliance with AS 2890.5 and I note that the decision in Cloke was made without the benefit of expert traffic evidence from the Respondent in that case.
To accommodate 6 cars to the east of the proposed driveway, the space per vehicle would decrease. AS 2890.5 indicates a length of 34.8m (4 x 6m standard spaces + 2 x 5.4m end spaces). This is 1.5m more than the 33.3m the applicant says would be available, a shortfall of 25cm per space. Given this increased shortfall and Mr Ellson’s caution about the safety implications of departing from AS 2890.5, I do not accept that the quality of the 8 spaces the applicant says would be left after the DA are equivalent to the quality of the 9 spaces currently in use.
The DA would cause the loss of one AS 2890.5-compliant parking space. It would also cause either the loss of a second parking space which is not compliant, but which is regularly and apparently safely used, or it would cause a reduction in the length (and presumably the safety) of 6 of the remaining spaces. I find that the DA would result in the loss of more than one on-street parking space, contravening controls B7.2.4(b)(iv) and C1.8.2(b)(iv).
No public submissions were made during the notification period for this DA and, as noted above, no submitters were present at the hearing. Two brief submissions were made in response to the application for review of the determination. I have considered those submissions and find them of limited assistance in determining this matter because they do not address the main issues in dispute. One said only that they did not object to the DA. The other expressed support for the DA, noting the benefits of off-street parking and discussions with the applicants about improving the western section of Wilga Street by extending the community garden.
Both parties say that the DA would create a precedent which is relevant to the public interest. Mr Eastman says that the DA represents the gold standard, providing a model for collaboration between neighbours to provide off-street car parking which minimises impacts, a model which could be applied across the Waverley area. Mr Ede says that the DA would make it harder for Council to achieve policy objectives and enforce planning controls designed to enhance amenity and sustainability, including controls designed to discourage the provision of private car parking and to encourage walking, cycling and public transport.
I accept Mr Ede’s submission that the DA meets the test set out by Lloyd J in Goldin v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 (2002) 121 LGERA 101; [2002] NSWLEC 75 (Goldin) at [28]:
“As I understand the decision, if the Court is entertained with an application for a proposed development which is both objectionable in itself and where there is a sufficient probability that there will be further applications of a like kind, then the fact that a consent would operate as a precedent may be taken into consideration.”
The first part of the Goldin test is whether the proposal is “objectionable in itself”. For the reasons outlined above, I have found that the DA involves excessive excavation and would have adverse streetscape, amenity, parking and road safety impacts. The first test is satisfied. The second test concerns “the probability that there will be further applications of a like kind”. I find that this test is also satisfied, because of the high demand for parking in the locality and because both parties say that the DA would create a precedent.
For the reasons outlined in relation to the contentions above, I find that the DA prioritises private interests to the detriment of the public interest, particularly the public interests in amenity, sustainability and accessibility as set out in WLEP and WDCP. Pursuant to s 4.15(1)(e) of the EPA Act, I find that consent should not be granted for the proposed development.
The DA would require significant excavation in the public domain to which Council is opposed. I find that the private benefits being pursued in the DA are at the expense of public benefits which are set out clearly in the objectives and controls of WLEP and WDCP. For the reasons set out above, I find that the DA is inconsistent with the aims of WLEP, the objectives of the R3 zone and the controls for excavation in cl 6.2. The DA is also inconsistent with the objectives and controls in B7, 11, 13 and C1 of WDCP.
Pursuant to ss 4.15(1)(c) and (e) of the EPA Act, I conclude that the site is not suitable for the proposed development and that the DA is not in the public interest.
The Court orders that:
The appeal is dismissed.
Development application No. 34/2024 for alterations and additions to the existing semi-detached dwellings at 5 and 7 Wilga Street, Bondi is refused.
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Pursuant to r 36.17 of the Uniform Civil Procedure Rules 2005 (the “slip” rule), with the consent of both parties, correction is made to the DA number in order (2), being 34/2024.
Bullen
Waverley City Council [2025] NSWLEC 1610
(2002) 121 LGERA 101
(2001) 115 LGERA 373