Background
Andrew Asvestas appealed under s 8.7 of the Environmental Planning and Assessment Act 1979 (NSW) after the City of Canada Bay Council refused DA 2025/0179. The application sought minor alterations to the front of his dwelling at 65 Edenholme Road, Russell Lea, and a concrete hardstand and driveway for one off-street vehicle space.
The proposed hardstand was 5.17 metres long and 2.9 metres wide. It required removal of part of the front lawn, garden walls, a portion of the facade, part of the street gutter and a Council-owned water gum. A previous approval for a larger, compliant front hardstand had lapsed without being acted on.
The Court’s Holding
Acting Commissioner Young dismissed the appeal and refused development consent. Although development-control-plan provisions are not mandatory and must be applied flexibly where reasonable alternative solutions meet their objectives, the proposed undersized space was not a reasonable alternative solution under s 4.15(3A)(b).
The Court held that the “small car” exception in AS/NZS 2890.1:2004 applied to spaces in a parking module, not to this single residential off-street space. The applicable standard was therefore a 5.4-metre-long by 2.4-metre-wide space. The 5.17-metre proposal risked vehicle encroachment onto the footpath, created an ongoing pedestrian-safety concern, and could not practically be made acceptable by a condition restricting vehicle size or use.
The proposal would also replace a compliant on-street parking opportunity with a non-compliant off-street one, effectively losing an on-street space. While its visual impact was not significant, it also failed relevant front-setback and landscaping controls: the dwelling setback was 5.17 rather than 5.5 metres, and only 35% rather than 50% of the front setback would remain landscaped.
Key Takeaways
- Flexible application of a development control plan does not require approval of every alternative proposal.
- The AS/NZS 2890.1 “small car” exception did not apply to a standalone residential parking space.
- A parking-space shortfall that may obstruct a footpath can justify refusal despite limited visual impacts.
Why It Matters
The decision confirms that applicants cannot rely on a small dimensional departure where it compromises the design purpose of established parking standards. The Court gave weight to the standards’ B99 vehicle basis, positioning tolerances, pedestrian safety and the practical difficulty of enforcing conditions on future occupants.
For residential hardstands, the case also illustrates that compliance must be assessed cumulatively: parking dimensions, street-parking effects, front setbacks and landscaping can together show that a proposal is unsuitable for the site and contrary to the public interest.