March 27 - May 2, 2022: Issue 523


Community disquiet over Whale Beach Restaurant Proposal + manner in which they have been not informed of same

The approved for development site and the old glassfront red brick building - this has now been cleared.

Residents are concerned about a proposal to increase the capacity for a restaurant/café at 231 Whale Beach road, at the front of the structure, facing Surf road, due to the effects this will have on residents amenity and street safety as demand on already limited parking would be increased.

The proponents are seeking to have Condition 99 in the Approved Conditions of Consent changed.

Condition 99 states;

Capacity of Ground Floor Café or Restaurant 

The capacity of the Ground Floor café/restaurant premises is limited to 44 indoor patrons, 20 outdoor patrons and 6 staff members. 

Reason: To ensure residential amenity is protected and maintained.

The DA modification documents (Mod2021/0983) state the proponents wish to have capacity in Retail 1 for 170 occupants and 18 staff (ground level), with outdoor seating (53 square metres); 140 inside and 30 outside. The ground floor retail tenancy has been designed to provide a covered outdoor seating area.

The proposed operating hours for the eatery are 7am to 10 pm 7 days a week, with an alcohol approval to be sought to make this a licensed premises.

The café is adjacent to Surf Road, with safer access than that which existed for the café on the street frontage on Whale beach road, and is accessible to the beach and beach carpark. Placed here it will have greater exposure to passing pedestrian traffic and incidental walk-ins. The retail space has been pushed further back into the building which the proponents state will provide a more flexible space and mitigate any noise or privacy impacts.

A café originally proposed to Level 3 (Retail 2; 78 square metres), fronting the Whale Beach road side of the structure, was revised to a neighbourhood shop in The Review of Determination (REV2021/0034) SECTION 8.2 REVIEW document of 2021. The applicant’s agent states this will provide less pedestrian and vehicular traffic movements, acoustic impacts, privacy impacts and potential plant noise to the quieter Whale Beach Road frontage, which is surrounded by dwellings. 

Noise impacts and parking are prevalent among residents concerns, especially for those who live alongside the site, as well as those who lived within the Whale Beach amphitheatre itself. The curved landscape of hills meeting surf magnifies and bounces any sound. Roads into and out of Whale Beach are narrow and do not provide capacity for on street parking.

However, the council’s own Traffic and Parking Report for this proposal concluded that ample parking opportunities exist in the surrounding streets to cater for the additional parking demand of the original 64 patrons. The applicant’s agent also stated in The Review of Determination (REV2021/0034) SECTION 8.2 REVIEW document that ‘’parking opportunities in the surrounding streets and within the beach carpark, which combined with the number of parking spaces provided will address any concerns regarding parking. It is also not desirable or likely that retail customers visiting the site will use the basement carpark.’’

The applicant’s agent states that past commercial enterprises in the locality such as “Ripples Restaurant” at 24 The Strand, Whale Beach, which provided no on-site parking, did not create a parking problem in the area. It was further noted that the old “Ripples Restaurant building has been demolished to be replaced by a recently approved residential dwelling as per its residential zoning, leaving the proposed development as the only retail premises in the Whale Beach vicinity.’’

Moby's, now operating as a weddings and events venue, with capacity for around 150 patrons, is just 2 doors up and is a retail outlet. Jonah's, atop Whale Beach and on Bynya road, is also a commercial enterprise.

Parking on The Strand at Whale Beach allows for around 90-100 car park spaces. These are free to use for residents who have a residential parking sticker and incur a fee of $10 per hour for those who do not.

Whale Beach Kiosk/Ripples patrons all parked in the beach carpark, which residents know is always at capacity during the summer season, with the overflow filling the streets surrounding the beach and making negotiating these a dangerous one way flow of vehicles.

At the March 22nd 2022 council meeting Cr. Sprott tabled a Motion to have parking inclusions for secondary dwellings, asking that the council recognise the increased parking congestion on some residential streets that additional secondary dwellings/granny flat residences are causing and write to the NSW Minister for Planning calling on him to amend the parking controls for secondary dwellings in the State Environment Policy (Housing) 2021 to require the provision of one off-street parking space to secondary dwellings to ease the congestion of on-street parking in local streets.

The Motion was Lost by one vote. Those voting for this Motion were Cr Heins, Cr Korzy, Cr Gencher, Cr Bingham, Cr De Luca, Cr Sprott and Cr Robins. 

The Review of Determination (REV2021/0034) SECTION 8.2 REVIEW document provided by the applicant’s agent states that the Council made it clear in the pre-lodgement meeting and in the clarification of the shop top housing zoning, that the applicant was required to provide retail facilities on both Surf Road and Whale Beach Road. The development is also required by the P21DCP to provide appropriate parking for the development. This can only be provided on this site by a basement carparking level. 

The proponents' agent states that the Council cannot reasonably expect the applicant to provide a shop top housing development on this site without “a substantial extent and depth of excavation to accommodate the proposed development.” 

To suggest that accessible retail facilities and associated parking can be provided on this site with B1 Neighbourhood Centre zoning without a substantial extent and depth of excavation is not only unrealistic, but also unreasonable.’ the proposals’ documents state.

Since this development was first proposed residents have objected to the scale of the structure to be erected on the site – now 6 storeys (with basement as part of those levels) and with an Effective Height of 18.1m (RL23.300 – RL5.200 = 18.1).

The council’s Assessment Report found, in first rejecting the proposal, that; 

'The proposal exceeds the two storeys requirements in any one place, the proposal presenting as a 3- 5 storey building when viewed from different vantage points. The design of the proposed development is found to be inconsistent with the requirement of the controls relating to sloping sites, in that the development does not incorporate sufficient "stepping down" of the built form to reduce the overall bulk and scale of the development, such that it integrates with the landform and landscape and minimises site disturbance. The development does not maintain the landforms and natural environment of the site, in that the proposal includes a substantial extent and depth of excavation to accommodate the proposed development. The proposal lacks sufficient landscaping to soften the built form and to mitigate the visual impacts when viewed from adjoining properties and adjoining public spaces as referenced in the Landscape Officer comments in the referral section of this report.'

However, the proponents’ agent revised the plans and also points out this site is the only B1 zoned site in the locality and therefore will be different to adjoining E4 residential dwellings in character.

A B1 zoning  is defined as small-scale neighbourhood centres that serve the needs of the surrounding area. It may include retail uses, business premises, community uses and a residential component.

The proponents agents state that this ‘’is a permissible use, complies with all envelope/massing controls, and is therefore consistent with the desired future character of the locality. Similarly, the level of activity and nature of activities (mixed residential and retail) are dictated by the controls, which permit, and indeed encourage, shop top housing of the nature proposed.''


‘’Council requires the applicant to provide retail facilities on both Surf Road and Whale Beach Road and the associated basement parking. This necessitates both a significant excavation to accommodate the proposed development and a building that will present as a 3-5 storey building when viewed from certain vantage points. Nevertheless, numerous amendments have been made to the original design to be more consistent with the desired future character of the locality, including increasing the side setbacks, significantly reducing the extent of excavation, significantly increasing the extent of landscaping around the building, particularly to the side setbacks, maintaining more of the existing ground levels to the side setbacks, increasing the apparent stepping of the building, reducing bulk and scale and softening the material palette.''

Neighbours state; ‘’The development will be hugely profitable, and making it more so at the expense of the whole character of the area is completely at odds with the LEP and DCP and consequently should be rejected. This is not as purported a minor amendment.’’

Others have expressed support although find the increased patrons capacity for the café/restaurant excessive.

The proponents' agent has stated this amount of patrons capacity would be required to make any venture in the premises financially viable.

Residents have also expressed dissatisfaction with the limited time given to provide feedback - just 2 weeks - and the small amount of residents who were notified – just the 6 immediate residences surrounding the site - when a proposal of this scale, introducing 170+ people to the site until 10pm, coupled with the impact of Moby’s venue patrons, whose guests routinely park across residents driveways or add to the already choked streets, and leave in a noisy manner after festivities at night where alcohol has been served, would impact on all living in a quiet tucked away suburb.

Whale Beach is, apart from those three retail outlets, a residential area.

Although the time to make a submission of support or objection within the official exhibition period has elapsed, you can still make a submission to the application which will be considered by Council, if received prior to the determination of the application.

If you do wish to make a submission please send via email to quoting the relevant application number (Mod2021/0983).

The site circa 1959 - this has now been cleared. Section from a Frank Hurley aerial photo.

The kiosk and former 'tea rooms' on the beach on February 28th, 2015 - author's photo