Steley v Waverley City Council - [2025] NSWLEC 1037

Land and Environment Court

New South Wales

Amendment notes

Medium Neutral Citation: Steley v Waverley City Council [2025] NSWLEC 1037
Hearing dates: 19-20 September 2024. Final submissions received 29 October 2024.
Date of orders: 24 January 2025
Decision date: 24 January 2025
Jurisdiction: Class 1
Before: Porter C
Decision:
The Court orders:
(1) The appeal is dismissed.
(2) Development application No. 392/2023 for alterations and additions to the existing semi-detached dwelling including integrated parking, basement extension and installation of a vehicle turntable at 24 Dudley Street Bondi is refused.
(3) The exhibits are returned except for B, 1, 3 and 8.

Catchwords:
DEVELOPMENT APPEAL – dwelling – second driveway - on street parking – streetscape – verge garden – public interest – public benefit

Legislation Cited:
Environmental Planning and Assessment Act 1979, ss 4.15, 8.7
Land and Environment Court Act 1979, s 34AA
Roads Act 1993, ss 6, 138
Environmental Planning and Assessment Regulation 2021, s 39
Waverley Local Environmental Plan 2012

Cases Cited:
Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167

Texts Cited:
Australian Standards 2890.5:2020 Parking facilities On-street parking, April 2020
Waverley Development Control Plan 2022

Category: Principal judgment
Parties: Bruce Steley (First Applicant)
Michelle Steley (Second Applicant)
Waverley City Council (Respondent)
Representation:
Counsel:
A Hemmings (Applicants)
J Ede (Solicitor) (Respondent)
Solicitors:
HWL Ebsworth Lawyers (Applicants)
Wilshire Webb Staunton Beattie Lawyers (Respondent)

File Number(s): 2024/92536
Publication restriction: Nil

JUDGMENT

COMMISSIONER: This appeal is about balancing the private interests of landowners seeking a second driveway to provide off-street car parking and the reasonable impacts on the community in a location experiencing high demand for on-street parking and co-located with a community verge garden.
The Applicants, Bruce and Michelle Steley (Steley) 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 392/2023 (DA). The DA seeks development consent for alterations and additions to the existing semi-detached dwelling comprising basement car parking accessed from Wilga Street with associated works at 24 Dudley Street Bondi.
The appeal is a residential appeal and in accordance with s 34AA of the Land and Environment Court Act 1979 (LEC Act), commenced as a conciliation conference. As agreement could not be reached between the parties to resolve the issues, the conciliation conference was terminated, and the hearing commenced immediately. The parties agreed for the evidence from the site viewing and conciliation discussions to be considered in the hearing.
As a result of joint expert reporting and discussions between the parties, the remaining contentions pressed by Council include the loss of on-street car parking, streetscape and deep soil impacts and the public interest.
As set out below, I find that the proposed development warrants refusal as the second driveway does not meet the objectives in minimising impacts to the streetscape and on-street parking, and that the development would be contrary to the public interest due to its impacts on the community verge garden.

Amended Application

During the hearing, Steley sought and was granted leave to amend the DA pursuant to s 39 of the LEC Act (amended DA). The amendment was unopposed by Council. The amendments are as follows:

Increased garage basement side setback with associated reduction in demolition and reduced volume of excavation.

Deletion of existing pile to facilitate clearance to the turntable.

Permeable paving for driveway (in the road reserve).

Driveway at the property boundary widened to 3.5m.

Decrease in demolition footprint for the driveway.

The site and context

The site is known as 24 Dudley Street, Bondi and legally described as Lot Y in DP 442567 (site). The site is approximately 205.2m² in size and has a frontage of 6.44m to Dudley Street, including an existing driveway with car space. The site has a rear boundary of 4.8m to Wilga Street.
A large road reserve runs along the southern side of Wilga Street, which has previously been used for previous construction related activities.
A Council approved verge garden currently occupies a large portion of the road reserve.
Development in the visual catchment generally comprises a mix of dwelling house typology, with some residential flat buildings present. The site and block are zoned R3 Medium Density Residential under the Waverley Local Environmental Plan 2012 (WLEP).
The hearing commenced on site. After hearing from objectors, the parties took the Court on site, along Dudley Street and along Wilga Street. The viewing included observations of the community garden, existing basement area and gate, the Wilga Street character, driveways and number of entries.

Objections

A number of objectors provided further oral lay evidence on site and assisted the Court and parties to better understand the issues that had been raised. The oral and written objections raised the following issues:

The site already has a driveway and parking off Dudley Street. This proposal would take away on-street parking from residents of Wilga Street.

Impacts on the community garden in verge. Various residents described the area as a meeting place for the community and play area for children.

Further works of the approved verge garden have been on hold due to ongoing construction from 24 Dudley Street.

Reduction in public green space and visual impacts on the streetscape.

Safety impacts as Wilga Street is a steep street.

Structural and excavation concerns from the basement works.

Precedent.

Key Issues

Council raised the following contentions in its Statement of Facts and Contentions (SOFAC) (Ex B):

Contention 1 – Loss of on-street car parking.

Contention 2 – Parking design.

Contention 3 – Streetscape and visual impacts.

Contention 4 – Deep soil provision and environmental impacts.

Contention 5 – Excessive excavation and associated impacts.

Contention 6 – Public interest.

Contention 7 – Insufficient information relating to a street analysis.

Council confirmed that contentions 2, 5 and 7 had been resolved and are not pressed.
During the proceedings, the Court requested the parties to address FSR and owners’ consent for the road reserve works. The comprehensive submissions of the parties addressed these matters. In response to queries about the proposal, the Applicant’s confirmed that consent under s 138 of the Roads Act 1993 is not sought in the DA and would form a condition of consent for it to be obtained from Council.
The remaining contentions can be summarised as one key issue, being the impact of the proposed driveway to on-street car parking, the streetscape, deep soil and the verge garden.

Expert Evidence

Expert evidence for the planning issues was submitted in a joint expert report (Planning JER) (Ex C) by John McFadden for the Applicants and David Knight for Council.
Expert evidence for traffic issues was submitted in a joint expert report (Traffic JER) (Ex D) by Ben Liddell for the Applicants and Paul Corbett for Council.
All experts gave oral evidence.

Issue – Impacts from the proposed driveway and basement garage

Council presses the central issue arising from the proposed basement driveway and its impacts on the streetscape. The relevant controls are set out below.
Section 6 of the Roads Act 1993 state as follows:

6 Right of access to public road by owners of adjoining land
(1) The owner of land adjoining a public road is entitled, as of right, to access (whether on foot, in a vehicle or otherwise) across the boundary between the land and the public road.
(2) The right conferred by this section does not derogate from any right of access that is conferred by the common law, but those rights are subject to such restrictions as are imposed by or under this or any other Act or law.

The parties agree that due to the lodgement date of the DA, that Waverly Development Control Plan 2022 (WDCP) amendments 1 and 4 apply.
The relevant parts of Part B7 of the WDCP include:

Part B7 Transport
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.

The relevant parts of B11 Design Excellence of the WDCP include:

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.

The relevant parts of B15 of the WDCP include:

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.
To improve nighttime movement and activation of street frontages.
Controls
…

(i) The ground floor of developments is to be designed so that there are regular opportunities for direct surveillance of the adjacent street or public domain.

The relevant parts of Part C1 Low Density Residential Development of the WDCP include:

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
…
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.
…
(f) Vehicle access is not to remove existing street planting without consent. Any street tree approved for removal is to be replaced with two like mature species or Council- approved alternate species, where practicable in front of the subject site. If only one replacement tree is practicable in front of the subject site, the second replacement tree is to be planted preferably in another Council determined location in the street, or on the site itself.
(g) Where parking is provided for dual occupancies parking is to utilise shared access ways. Parking to dual occupancies is to be located behind the front building line and to utilise open spaces between residences preferably screened from the street.
…
(j) All parking accommodation is to be constructed or installed so that any roof or surface water is disposed of into the existing stormwater drainage system.
(k) The surface and slope of driveways must be designed to facilitate stormwater infiltration on site such as the use of wheel strips or alternatively porous materials.
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.
….

Engineering Evidence

The experts jointly acknowledge the existence of the previously approved driveway crossing and parking space, accessed from Dudley Street and differ on its relevance.
The traffic engineering experts agree that there are no safety concerns or manoeuvring issues to Wilga Street as a result of the proposed driveway. Further, that pedestrian and vehicle volumes along Wilga Street are relatively low.
Given the narrowness of Wilga Street and demand for on-street parking, the experts agreed that on street reversing / manoeuvring could benefit from use of the proposed driveway.
The experts agreed that there are no particular controls or Australian Standards that apply to the road configuration at the end of Wilga Street for on street parking, described as unusual given the lack of turning head for the dead end street that faces a high wall. The experts agreed that various parking conditions observed on site were a breach of the NSW Road Rules.
Mr Corbett, traffic engineering expert for Council, says that the dwelling has an existing driveway to its car space from Dudley Street, which required the removal of an on-street car space and a net reduction in on-street parking.
Mr Corbett’s evidence about the WDCP’s controls limiting access to one driveway is that one private on-site car space is not of equal value to one publicly available on-street car space.
The publicly available on-street car space is of a much higher social value as it can be used at any time by any person. On-street car parking can be used by others when a car is utilised for travel. Further, on-street parking can be used for other short term purposes such as servicing, loading, deliveries and other public amenities on the verge. A private car space is reserved for the sole use of occupants on the dwelling.
Mr Corbett considered that the distance between the driveway at 1 Rowland Avenue and the western end of Wilga Street, at 24.5m, would facilitate four on-street car spaces. The proposed development would result in a loss of one car space, resulting in three on-street car spaces. Using AS 2890.5 (2020) lengths for on-street parallel parking spaces, Mr Corbett’s evidence is that the minimum lengths in 3.2.2 of AS 2890.5 (2020) accommodates four spaces including a 7.1m end space, which is longer than the recommended end space of 6.3m where it is obstructed by a kerb or barrier.
Mr Corbett disagrees that 8m length should be applied to the end space. Mr Corbett’s swept paths demonstrate that a length of 7.1m is adequate, being 0.8m longer than a usual end space of 6.3m. The swept path analysis utilised a B35 small car, where Mr Corbett relies on AS 2890.1 (2020) that drivers can manoeuvre smaller than the swept paths modelled. Mr Corbett says that drivers in larger vehicles would therefore also be able to enter and exit the car space. Mr Corbett’s evidence is that a review of aerial photographs from Near Map show four cars historically parking in this part of Wilga Street (3.3.6 of the Traffic JER) and that the Traffic and Transport Management Report dated 10 November 2023 (Traffic Report) infers four on-street parking spaces and states that the new driveway would result in the removal of one space. Whilst unlawful parking may have occurred in Wilga Street, that should not be the base line for assessment.
Mr Corbett accepted in cross examination that a B99 was the usual requirement for public on street car parking and that multiple manoeuvres to enter/exit the end space would be required, even with a small car.
Mr Corbett says that this type of street configuration is unusual but not in the Waverley LGA, with reference to three other streets. Mr Corbett’s evidence is that based on the parking surveys in the Traffic Report, there is a high demand for parking, with as few as five vacant car spaces out of 73 on one of the days surveyed. On-street car parking is highly competitive in the LGA, as stated on the WDCP and many local residents do not have a private car space and rely on on-street car parking.
Mr Corbett’s evidence is that the removal of a vital community asset to benefit a site who already has off-street car parking is not reasonable and contrary to WDCP B7, 7.2.2.2, C1, 1.8.1 and 1.8.6 which seek to minimise loss of on-street parking.
Mr Liddell, traffic engineering expert for Steley, says that the Dudley Street car space approval is historical and does not form part of this DA.
Mr Liddell’s evidence is that the proposed driveway moves the resident’s vehicle off the street, into the site and therefore does not impact on the availability of on-street parking.
In addressing the WDCP provisions seeking to limit access to one driveway, Mr Liddell says that the site has dual frontages to separate roads, they cannot be seen together, the proposed driveway minimises on street impacts by the kerb length and that the driveway is safe as the turntable facilitates front in front out egress.
Mr Liddell considered several car parking surveys and reviewed similar dead end street scenarios. In the Traffic JER, Mr Liddell’s evidence is that the parking survey undertaken by an independently engaged consultant (Traffic Information Specialist) who identified four car parking spaces, Mr Liddell’s evidence is that there are three functional parking spaces. This is due to the dead end street to high wall conditions. This scenario needs to be considered on merit. A reverse manoeuvre cannot be achieved into the end space due to the high wall and a distance for that space would need to be 8m as per Note 3 of AS 2890.5. Given the slope of Wilga Street and need for public car spaces to operate independently of other users, a distance of 8m or more is needed for safe manoeuvring. On-street car parking should be designed to accommodate B99 vehicles in accordance with AS2890.5 (2020), not B35. The swept path analysis of a B99 into the end space shows that four spaces cannot be achieved with an end space of 7.1m. Accordingly, only three compliant car spaces can currently be parked.
Mr Liddell stated in cross examination that whilst he accepted the aerial photographs showed four cars parking in this area, he was unsure how the cars in the end space were able to get in or out.
The WDCP, C1 1.8.6 (d) states that vehicle crossings will not be permitted where two or more on street parking spaces are lost. The DA does not result in the loss of any kerb space or on-street parking.

Town Planning Evidence

Council’s planning expert, Mr Knight says that the proposed development negatively impacts on the public domain, streetscape and users of Wilga Street. Mr Knight says that the rear garage opening is uncharacteristic of Dudley Street properties. The garage location and configuration is a significant distance away from the road, resulting in a greater visual impact than other driveways and is out of place in the streetscape.
Mr Knight says that the proposed development will result in a negative impact through the loss of a partly grassed and soil verge area through the proposed concrete driveway and subsequent reduction in visual amenity for residents and the streetscape. The DA is contrary to Part B7.2.1 of the WDCP 2022 which permits one vehicular access and contrary to the objectives of B7, B7.2.4, B11.1 and 7.1 due to the impacts on the streetscape and public domain.
Steley’s planning expert, Mr McFadden, says that Part C1.8.3 of the WDCP sets out a hierarchy of parking locations. Parking access from the rear is ordinarily preferred, which is proposed. The proposed driveway and garage parking is consistent with the visual catchment, including 1 Rowland Avenue (with vehicular access to a double garage from Wilga Street), 10 and 10A Wilga Street.
Mr McFadden says that the proposed development minimises hard surface areas and the visual impact through the curved design and proposed new soft landscaping. The garage opening is not visible from Wilga Street.
Mr McFadden says that the verge garden located in the verge is not a ‘community garden’ and there is no approval under s 138 of the Roads Act 1993 for the garden. The approved and planted verge garden are different and include species different to the approved Council list. ‘Area 1’ of the approved verge garden has not been planted in order to allow for construction access for the Applicant.
Mr McFadden’s evidence is that the proposed development enhances the verge through its landscaped design and proposed landscaping. This area of the verge has previously been a dumping area for rubbish and neglected, shown in photos in the Planning JER.
Mr McFadden says that the site is unique and many of the WDCP controls are not directly relevant. Control 7.2.1 (b) recognises dual frontage sites and preferences vehicular access from lanes and secondary streets, which is proposed. The WDCP permits two on site car parking spaces for the existing dwelling.

Submissions

The parties provided helpful, comprehensive submissions following the hearing, which I have considered in detail.
Council submits that the site already benefits from a vehicular crossing and off-street parking from Dudley Street that resulted in a decrease in on-street parking. The loss of on-street car parking needs to be considered in the context of the low on-street parking availability as demonstrated in the parking survey results in the Traffic Report. Further, on-street car parking has a greater value than private off-street parking. The offer of surrendering the resident parking permits should not be accepted as the Applicants would still be eligible for the permits, even when providing two off-street spaces on site.
Council submits that nothing turns on the status of the footpath garden or community garden. An application was made in September 2018 for the verge garden, which was supported by Council around the same month with conditions and a plan. The plan identified two areas. Area 2 could proceed. Area 1 could not proceed until construction works for the site were finished. In August 2019, part of Area 1 was allowed to proceed. This approval far precedes the lodgement of the subject DA. The resident submissions (oral and written) reinforce the value of the garden to the community and detrimental impacts if partly lost.
Council submits that references to any inconsistencies in the verge garden approval are entirely irrelevant and are a matter for Council. The Council has not indicated that it is dissatisfied with the verge garden. It is Council’s intention for the remaining area of the verge to be part of the verge garden, as approved.
Steley submits that the existing parking space on Dudley Street has been previously assessed on its own merits and has little relevance. Relevant to the application is the proposed relinquishment of the Applicants’ existing parking permit that will result in an increase in on-street parking. The provisions of the WDCP are not development standards and cannot effectively prohibit the development. C1 1.8.6 (d) also applies, which provides that a vehicular crossing will not be permitted where it results in the loss of two or more on street spaces. The proposed development is a rearrangement of parking spaces with no net on street loss and meets the objectives of 1.8.6.
Steley submits that there is no approval for a ‘community’ garden. The existing verge garden will be retained and will be minimally impacted. The verge garden does not have a DA consent or a s 138 Roads Act 1993 approval. Instead, Council’s letter of consent and Verge Guidelines are clear that the permission for the verge garden is revocable with 28 days notice. This was further made clear in a letter to the owner of the adjoining site from Council that if the proposed development was granted consent, that the plants in the verge garden would be removed. The verge garden should not result in refusal of the proposed development as it has been constructed in breach of three items in the permission and is contrary to the siting or vegetation allowed in the permission and 2022 and 2013 Verge Guidelines. Council can require that the verge area and areas of non-compliance be returned to turf at any time.

Findings

Section 6 of the Roads Act 1993 grants rights for owners of adjoining land to access a public road across the boundary between the land and public road.
Section 4.15(3A) of the EPA Act requires that more onerous standards than a DCP are to be applied and that flexibility of those provisions is to be allowed for reasonable alternatives that achieve the objects of a particular standard.
I accept Mr Ede’s submissions that the provisions of the 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] (Zhang).
I accept Ms Hemmings’ submissions that the provisions of the WDCP are not determinative and I have considered them pursuant to s 4.15(1)(a) and 4.15(3A).
The WDCP contains various controls seeking to limit driveways to one per development. B7 7.2.1 Vehicle Access, control (a) permits one vehicle access point per development. C1 1.8.6 (b) also seeks to provide a maximum of one vehicle crossing per property. To the extent that this may have been inferred, I accept that 1.8.6 (d) is complied with as the proposed vehicle crossing would not result in the loss of two or more on street spaces. I consider this to be separate control from 1.8.6 (b). However the proposed development still seeks flexibility to 1.8.6 (b) and 7.2.1. Section 4.15(3A) of the EPA Act mandates that flexibility should be applied where the objectives are achieved.
I accept the evidence of Mr Corbett and Mr Knight that the proposed development would have a detrimental impact to the streetscape, reduce the availability of on-street car parking and unreasonably impact on the amenity of the verge garden for the reasons set out below.
I find that the existing driveway and car space benefiting the site from Dudley Street is relevant to the consideration of this application as it necessarily forms part of the consideration of development and development consents that have been granted for the site.

Consistent with the evidence of Mr Corbett and the traffic surveys undertaken for the Traffic Report, on-street parking in this location is a premium. I accept that the language and controls of the WDCP seek to minimise off-street car parking, particularly where there are impacts to on-street car parking.
The evidence of the engineering experts is that there are no controls or Australian Standards for scenarios such as Wilga Street, a dead end street without a turning head facing a high wall. Whilst I accept that a longer car space area is desirable and easier for parking manoeuvring, I prefer Mr Corbett’s evidence that four car spaces is achievable using AS 2890.5 for on-street parking as a guide.
I accept that cars parked in breach of the road rules should not form part of the base line analysis, and that parking spaces should be considered on the basis of a road rule compliant scenario. In this instance, the occurrence of a middle car parked with its nose to the high wall would be in breach of the NSW Road Rules. As there are no controls or standards for this scenario, I accept the evidence that four spaces can be accommodated between the driveway of 1 Rowland and the dead end of Wilga Street, which is an agreed low traffic but high parking demand area. I accept Mr Corbett’s use of the minimum lengths of AS 2890.5 for on-street parking as a guide and that the sign posting on Wilga Street requires parallel parking. The relevant length of the parking area in this part of Wilga Street is 24.5m and accordingly would accommodate four spaces based on the minimum measurements set out at 3.2.2 of AS 2890.5 (2020) including the allowance of an end space of a ‘typical obstructed end space’ of more than 6.3m (consistent with Note 3 of 3.2.2), based on Mr Corbett’s evidence.
I therefore accept that an on-street car space would be lost from the proposed driveway. The surrender by the Applicants of their on-street resident parking permit and exchange of a public space for a private space is not like for like. On-street parking is available for use by the public for a variety of parking uses. A private car space is not. I accept and adopt the evidence of Mr Corbett that the public benefit and value of a permanent on-street car parking that can be utilised by anyone in this area of high parking demand is far greater than a trade for a private parking space and residential parking permit. Further, the site already has a driveway and car space available to it and will continue to benefit from that parking arrangement. For these reasons I find that the proposed development is contrary to WDCP C1 1.8, objective 1.8 (f) and control 1.8.1(a) and (d).
The lay evidence of the objectors (oral and written) is that the existing, approved verge garden is an important gathering place for local residents and that children play in the area. Whilst acknowledging that a small area would be impacted, and accepting that Council can revoke the verge garden permission at any time, I find that the removal of part of the garden for a driveway to a dwelling that already has off-street parking on its other frontage is an unreasonable impact to the community, would result in a loss of amenity for the streetscape and is contrary to the public interest.
I accept the evidence of Mr Knight, submissions of Council and with consideration of the resident submissions, that the second driveway does not achieve objectives (a) and (c) of 7.2.1 and (b), (c) and (d) of 1.8. Irrespective of the current driveway and car space being located on a different street, a second vehicle access point with a long driveway through the public domain (road reserve) and impacts on a Council approved verge garden is contrary to prioritising the public domain over vehicular access and reinforcing a high quality public domain (objectives (a) and (c) of 7.2.1). Instead of a verge area, a second driveway will exist for the almost exclusive use of the site occupants with a reduced visual amenity.
Whilst the proposed landscaping would enhance the existing verge area, I accept Mr Knight’s evidence that the long driveway itself would have a visually negative impact through the reduction of landscaped and soil areas. I find that the length and material of the driveway does not achieve a high standard of urban design in this streetscape and would result in a loss of amenity (contrary to objectives 1.8 (b), (c) and (d)).
With consideration of the evidence about the state of the portion of the verge that would primarily accommodate the driveway, the residents’ submissions describe that the area has been used for construction related activities for a significant amount of time. The verge garden approval and various tendered correspondence also shows ongoing verge access for construction by the subject site (Ex F). It is therefore unsurprising that the area lacks the same level of landscaping shown on the other verge areas or the verge garden.
I accept Council’s submissions that potential non-compliances with the verge garden permission are not overly relevant and a matter for Council. There has been no compliance action taken. However, I do place little weight on aspects of the verge garden that have not been planted according to the approval when considering the evidence of the impacts of the proposed development to the verge garden on the basis that there is no approval for those plantings/rocks. To the extent that it is relevant, as I observed on site and questioned the parties on site, there would be some impacts to the planted verge garden areas that are consistent with the approved verge garden by the proposed development. The remainder of the approved Area 1 would also not proceed. I accept that these impacts to the verge and verge garden would unreasonably impact the streetscape and amenity of this part of Wilga Street.
Regarding the proposed materials of a permeable driveway on the road reserve, I accept Council’s submissions that permeable materials do not form part of their preferred materials on public land. Whilst every application is to be assessed on its own merits, in my view, it is unreasonable for an Applicant to seek for Council to abandon its standard drawings for works on public land in order to accommodate the needs of a single site. In any event, my findings would be the same regarding the visual and urban design impacts for a driveway constructed of permeable materials.

Conclusion

The proposed driveway would have an impact on on-street car parking in an area of high on-street car parking demand. The site benefits from an on-street car parking space and driveway from another street, where the WDCP seeks to limit development to one crossing to minimise streetscape impacts and on-street parking impacts. I find that the proposed driveway is inconsistent with the controls and objectives of the WDCP and would detrimentally impact the visual amenity of the verge garden and the Wilga Street streetscape. With consideration of the aspects of the approved verge garden, expert evidence and resident objections, I also conclude that the proposed development is not in the public interest pursuant to s 4.15(1)(e).
The merit issues have not been overcome by the proposed development and the amended DA is refused.

Orders

The Court orders that:

The appeal is dismissed.

Development application No. 392/2023 for alterations and additions to the existing semi-detached dwelling including integrated parking, basement extension and installation of a vehicle turntable at 24 Dudley Street Bondi is refused.

The exhibits are returned except for B, 1, 3 and 8.

S Porter

Commissioner of the Court

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Amendments

29 January 2025 - Fixed an error of legislation in para 6 - EPA Reg to LEC Act

Decision last updated: 29 January 2025

Medium Neutral Citation:	Steley v Waverley City Council [2025] NSWLEC 1037
Hearing dates:	19-20 September 2024. Final submissions received 29 October 2024.
Date of orders:	24 January 2025
Decision date:	24 January 2025
Jurisdiction:	Class 1
Before:	Porter C
Decision:	The Court orders: (1) The appeal is dismissed. (2) Development application No. 392/2023 for alterations and additions to the existing semi-detached dwelling including integrated parking, basement extension and installation of a vehicle turntable at 24 Dudley Street Bondi is refused. (3) The exhibits are returned except for B, 1, 3 and 8.
Catchwords:	DEVELOPMENT APPEAL – dwelling – second driveway - on street parking – streetscape – verge garden – public interest – public benefit
Legislation Cited:	Environmental Planning and Assessment Act 1979, ss 4.15, 8.7 Land and Environment Court Act 1979, s 34AA Roads Act 1993, ss 6, 138 Environmental Planning and Assessment Regulation 2021, s 39 Waverley Local Environmental Plan 2012
Cases Cited:	Zhang v Canterbury City Council (2001) 115 LGERA 373; [2001] NSWCA 167
Texts Cited:	Australian Standards 2890.5:2020 Parking facilities On-street parking, April 2020 Waverley Development Control Plan 2022
Category:	Principal judgment
Parties:	Bruce Steley (First Applicant) Michelle Steley (Second Applicant) Waverley City Council (Respondent)
Representation:	Counsel: A Hemmings (Applicants) J Ede (Solicitor) (Respondent) Solicitors: HWL Ebsworth Lawyers (Applicants) Wilshire Webb Staunton Beattie Lawyers (Respondent)
File Number(s):	2024/92536
Publication restriction:	Nil