Gunawan v Bayside Council

[2025] NSWLEC 1167

Land and Environment Court

New South Wales

Medium Neutral Citation:

Gunawan v Bayside Council [2025] NSWLEC 1167

Hearing dates:

22, 23 December 2024

Date of orders:

19 March 2025

Decision date:

19 March 2025

Jurisdiction:

Class 1

Before:

Targett C

Decision:

The Court orders that:

(1) The appeal is upheld.

(2) The Development Control Order issued by the respondent under s 9.34 and Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 to the applicant on 12 April 2024, requiring the applicants to stop use of land identified as Lot 105, Sec A, Deposited Plan 11368, known as 57 Bardwell Road, Bardwell Park (Premises), as a “home business/home occupation motor vehicles repairs”, is revoked.

(3) The exhibits are returned except for Exhibits B, C, 4 and 5.

Catchwords:

DEVELOPMENT CONTROL ORDER – stop use order - whether premises used for prohibited purpose – vehicle repair station

Legislation Cited:

Environmental Planning and Assessment Act 1979, ss 8.10, 8.18, 9.34, Sch 5

Land and Environment Court Act 1979, ss 17, 39

Bayside Local Environmental Plan 2021

Cases Cited:

Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107

(1957) 96 CLR 493; [1957] ALR 277

Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157

Category:

Principal judgment

Parties:

Lia Gunawan (First Applicant)
Indra Mustika (Second Applicant)
Bayside Council (Respondent)

Representation:

Counsel:
A Britt (Applicant)
R White (Respondent)

Solicitors:
N/A
Houston Dearn O’Connor (Respondent)

File Number(s):

2024/163442

Publication restriction:

No

Judgment

COMMISSIONER:

1. This is a Class 1 Development Appeal pursuant to s 8.18 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the Development Control Order issued by the respondent under s 9.34 and Part 1 of Schedule 5 of the EPA Act to the applicant on 12 April 2024, requiring the applicants to stop use of land identified as Lot 105, Sec A, Deposited Plan 11368, known as 57 Bardwell Road, Bardwell Park (Premises), as a “home business/home occupation motor vehicles repairs”.

2. The Court has power to dispose of these proceedings under its Class 1 jurisdiction pursuant to s 17(d) of the Land and Environment Court Act 1979 (LEC Act).

Background

3. The Premises is zoned R2 Low Density Residential under the Bayside Local Environmental Plan 2021 (BLEP).

4. The applicants are the registered proprietors of the Premises.

5. It is the respondent’s contention that the Premises was being used for “motor vehicle repairs” at the time the Order was issued, being a prohibited use in the R2 zone under the BLEP. It is the applicant’s position that the Premises was not being used for “motor vehicle repairs” or any type of mechanical operation or business at the time the Order was issued (or at any relevant time) and is instead used as a residential dwelling, being a permissible use in the in R2 zone.

6. Notably, the respondent contended in oral submissions that it was content that the Premises was no longer being used for motor vehicle repairs and invited the Court to make findings that the Order had been validly issued and subsequently been complied with. The respondent submitted, however, that the Order should not be revoked in circumstances where it had been validly issued.

7. The respondent gave the applicant a Notice of Intention to Give an Order (Notice) on 8 August 2023.

8. On 29 August 2023, the applicants provided written representations as to why an order should not be issued.

9. On 31 August 2023, Mr Tony De Keivet (Environmental Compliance Officer, Bayside Council) sent a letter (Ex B, Annexure D) to Ms Gunawan stating that:

“… As long as activities occurring on site are as explained, there is no need for any further action by Council. Some activities can be conducted from home, as long as they comply with the provisions allowable”

10. On 12 April 2024, the respondent issued the Order to the applicants pursuant to s 9.34 and Item 1 “Stop use order” in Part 1 of Schedule 5 of the EPA Act. The order as issued to the applicants required the applicants to “stop conducting an activity (Home business/Home Occupation motor vehicles repairs) at the premises”.

11. The applicants commenced Class 1 proceedings on 2 May 2024 in respect of the Order, being within the time period specified in s 8.18(3) of the EPA Act.

12. The matter was listed for a conciliation conference on 28 August 2024. This conciliation was unsuccessful and the conciliation conference terminated on the same day.

13. The matter was subsequently listed for hearing on 23 and 24 December 2024.

14. The Court attended a site view on the first day of the hearing accompanied by the parties. This involved inspecting the front of the Premises, including the inside of the garage, and walking part of Bardwell Road and Lambert Road, Bardwell Park.

Issues

15. Based on the way the case was pleaded by the parties at hearing, the issues for determination in this case are:

1. What was the use of the Premises as at the date of the Order?

2. Was the Order validly issued, having regard to matters of procedural fairness?

16. For the reasons that follow, I consider it appropriate to uphold the appeal and revoke the Order.

The role of the Court on appeal

17. In hearing the appeal, the Court re-exercises the functions of the Council in determining whether the order should be issued. Section 39 of the LEC Act provides as follows:

39 Powers of Court on appeals

…

(2)  In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3)  An appeal in respect of such a decision shall be by way of rehearing, and fresh evidence or evidence in addition to, or in substitution for, the evidence given on the making of the decision may be given on the appeal.

18. Section 8.18(4) of the EPA Act gives the Court broad powers on an appeal against a development control order, as follows:

8.18 Appeals concerning orders(cf previous s 121ZK)

…

(4) On hearing an appeal, the Court may:

(a) revoke the development control order; or

(b) modify the development control order; or

(c) substitute for the development control order any other order that the relevant enforcement authority who gave the order could have given, or

(d) find that the development control order is sufficiently complied with, or

(e) make such order with respect to compliance with the development control order as the Court thinks fit, or

(f) make such other order with respect to the development control order as the Court thinks fit.

Evidence

19. The applicants rely on the following evidence:

1. Affidavit of Lia Gunawan filed 4 December 2024 (Ex B); and

2. Affidavit of Indra Mustika filed 4 December 2024 (Ex C).

20. The respondent relies on the following evidence:

1. Expert evidence of Ms Phoebe Mikhiel (town planning) filed 22 October 2024 (with the exception of [2.6] and [2.10.3] which were not read and [2.9], [2.10], [2.10.1], [2.10.2] and [2.10.4] which were either amended by the respondent or directed by me to be amended following objection by the applicants) (Mikhiel Report) (Ex 3);

2. Affidavit of Ms Zoi Adams (55 Bardwell Road, Bardwell Park) filed 18 October 2024 (Ex 4); and

3. Affidavit of Mr Angelos Mantzouranis (59 Bardwell Road, Bardwell Park), filed 18 October 2024 (Ex 5).

Legislative and planning framework

21. Section 9.34 of the EPA Act relevantly provides that development control orders may be given in accordance with the table in Pt 1 of Sch 5 of the EPA Act.

22. Relevant to this matter is item 1, extracted as follows:

Column 1	Column 2	Column 3
To do what?	When?	To whom?
1	Stop Use Order To stop using premises or a building Not to conduct or to stop conducting an activity on the premises	Premises are being used— •  for a prohibited purpose, or •  for a purpose for which a planning approval is required but has not been obtained, or •  in contravention of a planning approval. Building is being used— •  inconsistently with its classification under this Act or the Local Government Act 1993, and •  in a manner that constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and •  in a manner that is not regulated or controlled under any other Act by a public authority. Premises are being used for an activity (that would or would be likely to require planning approval) that— •  constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and •  is not regulated or controlled under any other Act by a public authority.	•  The owner of premises or building •  The person using the premises or building

23. As set out at [3], the Premises is zoned R2 Low Density Residential under the BLEP. The objectives of the R2 zone, to which I have had regard, are extracted below:

•  To provide for the housing needs of the community within a low density residential environment.

•  To enable other land uses that provide facilities or services to meet the day to day needs of residents.

•  To ensure land uses are carried out in a context and setting that minimises impact on the character and amenity of the area.

•  To enable residential development in accessible locations to maximise public transport patronage and encourage walking and cycling.

24. Relevantly to the way the case was run at hearing, “home occupations” are permitted without consent and “dwelling houses”, “home businesses” and “home industries” are permitted with consent in the R2 zone.

25. These terms are relevantly defined in the dictionary to the BLEP as follows:

dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.

dwelling house means a building containing only one dwelling.

Note— Dwelling houses are a type of residential accommodation—see the definition of that term in this Dictionary.

…

home business means a business, whether or not involving the sale of items online, carried on in a dwelling, or in a building ancillary to a dwelling, by 1 or more permanent residents of the dwelling and not involving the following—

(a)  the employment of more than 2 persons other than the residents,

(b)  interference with the amenity of the neighbourhood because of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise,

(c)  the exposure to view, from adjacent premises or from a public place, of unsightly matter,

(d)  the exhibition of signage, other than a business identification sign,

(e)  the retail sale of, or the exposure or offer for retail sale of, items, whether goods or materials, not produced at the dwelling or building, other than by online retailing,

but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises.

home industry means an industrial activity, whether or not involving the sale of items online, carried on in a dwelling, or in a building ancillary to a dwelling, by 1 or more permanent residents of the dwelling and not involving the following—

(a)  the employment of more than 2 persons other than the residents,

(b)  interference with the amenity of the neighbourhood because of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise,

(c)  the exposure to view, from adjacent premises or from a public place, of unsightly matter,

(d)  the exhibition of signage, other than a business identification sign,

(e)  the retail sale of, or the exposure or offer for retail sale of, items, whether goods or materials, not produced at the dwelling or building, other than by online retailing,

but does not include bed and breakfast accommodation or sex services premises.

Note— See clause 5.4 for controls relating to the floor area used for a home industry.

home occupation means an occupation that is carried on in a dwelling, or in a building ancillary to a dwelling, by one or more permanent residents of the dwelling and that does not involve—

(a)  the employment of persons other than those residents, or

(b)  interference with the amenity of the neighbourhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, waste water, waste products, grit or oil, traffic generation or otherwise, or

(c)  the display of goods, whether in a window or otherwise, or

(d)  the exhibition of any signage (other than a business identification sign), or

(e)  the sale of items (whether goods or materials), or the exposure or offer for sale of items, by retail,

but does not include bed and breakfast accommodation, home occupation (sex services) or sex services premises.

26. The R2 zone prescribes that any development not specified as being permitted without consent or permitted with consent is prohibited in the zone. Notably, “motor vehicles repairs” (being the description of the offending activity in the Order) is not a defined term in the BLEP. However, for the purposes of the hearing and construing the Order, the respondent submitted that the following uses as defined in the BLEP were relevant (and prohibited in the R2 zone):

vehicle body repair workshop means a building or place used for the repair of vehicles or agricultural machinery, involving body building, panel building, panel beating, spray painting or chassis restoration.

vehicle repair station means a building or place used for the purpose of carrying out repairs to, or the selling and fitting of accessories to, vehicles or agricultural machinery, but does not include a vehicle body repair workshop or vehicle sales or hire premises.

What was the use of the Premises as at the date of the Order?

27. As the respondent submits that the relevant prohibited use of the Premises (however characterised) has subsequently ceased, the relevant question in this matter is what was the use of the Premises as at the date of the Order. This subsequently assists with determining whether the Order was validly issued and whether it should be upheld or revoked.

28. Relevantly in this case, pursuant to column 3 of Item 1 in Pt 1 of Sch 5 of the EPA Act, in order for the Order to have been validly issued, the Premises must have been being used by the applicant for a “prohibited purpose” or “a purpose for which a planning approval is required but has not been obtained”.

29. The respondent submits that the use of the Premises by the applicants does not require specific characterisation, other than to find that it was either a prohibited use, or a use requiring development consent that was being carried out without such consent. However, the respondent did submit that the use of the Premises at the time the Order was issued could most appropriately be characterised as a “vehicle repair station”, being a prohibited use in the R2 zone, such that the Order was validly issued and the appeal should be dismissed. The respondent noted that the use of the Premises for vehicle repairs was of sufficient scale and intensity that it could not be found to be ancillary to a permissible residential use of the Premises. In other words, the vehicle repair use could qualify as an individual purpose having regard to the principles in Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157, notwithstanding that the activity may be found to be a hobby and non-commercial in nature.

30. Conversely, the applicants submit that the Premises was and is being used as a dwelling house, being a permissible use. The applicants further submit that although Mr Mustika is an automotive enthusiast and has worked on his own and friends’ vehicles on occasion, this is incidental or ancillary to the primary dwelling house purpose and that no business was or is being carried out at the Premises. The applicant therefore argues that the Order should be revoked and the appeal upheld.

31. Relevantly, it became apparent during the hearing that both parties agreed that the Premises was not being used as a “home occupation”, “home business”, “home industry” or “vehicle body repair workshop” as at the date the Order was issued. I will therefore not consider these uses further.

32. The respondent relies on the affidavit and oral evidence of Ms Adams and Mr Mantzouranis, residents of the dwellings on either side of the Premises, to establish that the Premises was being used as a “vehicle repair station” as at the date the Order was issued.

33. In her affidavit, Ms Adams alleges that “for the last 18 months to 2 years”, Mr Mustika had “been working on vehicles in his driveway and garage and also on the roadway out the front of 57 Bardwell Road and in Lambert Road” (at Ex 4, [4]). Ms Adams states (at par 4) that Mr Mustika works on vehicles “at all times of the day and night”. Ms Adams made an “event log” described as documenting “instances where Indra (Mr Mustika) has been working on motor vehicles including times when I have been disturbed” (at par 5). The event log is exhibited to Ms Adams affidavit. Her affidavit is also supported by phone footage which was played in Court and photographs.

34. Photographs demonstrate car bonnets open in the applicants’ driveway on three occasions (being 5 November 2023, 10 November 2023 and 15 November 2023) and a van being parked on Bardwell Road in proximity to the Premises. Ms Adams also included photographs purporting to show Mr Mustika working on vehicles in Bardwell Road, however, this was not possible to discern from the photographs provided.

35. Phone video footage depicted:

1. unidentified cars parked on Bardwell Road with engines running and headlights on at nighttime on various dates;

2. sounds of engines running or being revved at various times purportedly from the Premises although it is not possible to confirm this based on the footage provided;

3. unidentifiable people looking and potentially working under the bonnet of a vehicle parked outside the Premises on 13 December 2023 (approximately 8:49pm) and 21 March 2024 (approximately 7:48pm);

4. a vehicle with its bonnet up parked in the driveway of the Premises on 10 November 2023 (approximately 6:12pm) and 24 March 2024 (approximately 3:27pm);

5. a vehicle with its bonnet up parked on the street outside the Premises on 24 March 2024 (approximately 4:14pm);

6. a white van parked in Bardwell Road;

7. the sound of hammering purportedly coming from the Premises on 3 August 2023 at nighttime (although the source of the noise was not possible to confirm from the footage provided);

8. an unidentifiable man inspecting a vehicle parked in the vicinity of the Premises on Bardwell Road during on 21 March 2024 (approximately 8:01pm); and

9. various other footage the subject of which was not able to be discerned.

36. Ms Adams explained in her affidavit that she was trying to be “covert” in capturing photographic and video footage so as “not to provoke a reaction from Indra or Lia [the applicants]” (at par 12). Similarly, in oral evidence, Ms Adams explained that it was difficult to obtain clear images and videos due to fear of the applicants’ reaction. Ms Adams also explained that she lives with, and cares for, her sick and elderly mother. In the event log, Ms Adams makes numerous entries alleging noise from the “idling” of vehicles and the “revving of [a] motorbike”.

37. The respondent also relies on the affidavit and oral evidence of Mr Mantzouranis who alleges that (at par 3):

“Indra started carrying out mechanical repairs and servicing of vehicles from his house, driveway and garage and also on the roadway. Working on vehicles normally starts around 5pm and continues late into the night sometimes finishing at midnight.“

38. Mr Mantzouranis also kept a log of the vehicles he understood Mr Mustika to be “working on”. This log is exhibited to Mr Mantzouranis’s affidavit (and separately exhibited (Ex E). Mr Mantzouranis asserts that at various times tow trucks have delivered vehicles at nighttime (11pm on one occasion) for servicing or repair (see pars 17-18) and that Mr Mustika regularly and loudly revs his motorbike (see pars 21-22). Mr Mantzouranis took numerous photographs either on his phone or through his CCTV system and two videos purporting to show Mr Mustika working on vehicles either at the Premises or on the street or Mr Mustika revving his motorbike. It was clear from both Mr Mantzouranis’ oral evidence and entries in his log book, that Mr Mantzouranis cares for his sick and elderly wife and also has health issues himself.

38. Photographs demonstrate:

1. Photograph A: a car being worked on stated to be on 16 January 2023 at 1.30pm;

2. Photograph C: a vehicle being worked on stated to be on 31 March 2023 at 9:29am;

3. Photograph AB: car with bonnet up in Premises driveway stated to be on 16 November 2023 at 7.20pm;

4. Photograph AC: car with bonnet up in Premises driveway stated to be on 25 March 2024 at 5:48pm;

5. Photograph AH: car with bonnet up in Premises driveway stated to be on 6 March 2024 at 6:22pm;

6. Photograph AL: car with bonnet up outside Premises stated to be on 16 [non-transcribable] 2023 at 6:39pm;

7. Photograph AP: car with bonnet up in Premises driveway stated to be on 21 August 2022 at 10am;

8. Photograph: car with bonnet up in Premises driveway stated to be on 5 April 2023 at 7:31pm

40. Video footage depicting sounds of repeated and loud vehicle revving purportedly emanating from the Premises on 17 November 2023 and 3 June 2024.

41. I note that both Ms Adams and Mr Mantzouranis have included numerous additional photos in their affidavits. I have only referenced photographs that depict images relevant to the case.

42. The respondent also relies on the expert evidence of Ms Mikhiel who prepared the Mikhiel Report and gave oral evidence during the hearing.

43. Ultimately the respondent submits that the evidence of Ms Adams and Mr Mantzouranis, and in particular, their real time recordings documented in their respective log books of incidents, is compelling evidence as to the prohibited use of the Premises.

44. The applicant relies on the affidavit and oral evidence of Mr Mustika and affidavit evidence of Ms Gunawan, to establish that the Premises was and is being used as a dwelling house.

45. Ms Gunawan relevantly states in her affidavit that:

1. “Neither my husband or I are conducting a motor vehicle repair business at our house” (at par 32).

2. “In addition my husband has done some minor work general maintenance on our cars” (at par 33).

3. “I can recall that on a few occasions where friends and family have asked Indra to look at their engine and on occasion to change a tyre for a friend” (at par 34).

4. “In respect to paragraph 3 [of Mr Mantzouranis’s affidavit], we moved in 2019 not 2018. Mr Mantzouranis never had a friendly relationship with Indra and I. Indra does not start working on vehicles during the week and then late into the night. Indra does not work on motor vehicles on the road. Albeit some of his friends may have shown him their car’s engine when on the road but Indra did not work on these cars…”(at par 43).

5. “In respect to paragraph 6 [of Mr Mantzouranis’s affidavit] the only Mercedes cars that Indra has worked on are the two Mercedes we currently own and our former Mercedes that we have sold. The last sentence is not true” (at par 44).

46. Ms Gunawan’s affidavit also sets out her record of the noise complaints made by Ms Adams and Mr Mantzouranis against her and her husband, the involvement of the police by both Ms Gunawan, Ms Adams and Mr Mantzouranis, and explanations as to the photographs taken by Mr Mantzouranis of delivery vans, including that they were for the delivery of online shopping (clothing) orders.

47. Mr Mustika relevantly states in his affidavit that:

1. “I do not operate a vehicle repair business from this property as alleged” (at par 2).

2. “I do admit I have done some minor work on vehicles owned by my wife and myself on the property and for a small number of friends (as set out below). Our cars are pictured in a number of the pictures relied upon by the Respondent in their evidence” (at par 3).

3. “This work consisted of:

Recommended routine check of fluid levels and conditions such as tyre condition

Brake pad thickness

Oil levels and washer fluid levels, according to recommendation of vehicle Owner’s Manual,

Replacing air filters

Replacing a car battery

Maintain conditions of the vehicle, which includes washing, polishing exterior/interior of the vehicle,

Retrofit extra features/adding additional features such as replacing car speakers/adding additional Dsp (digital sound processor) systems to gain better sound quality” (at par 4).

4. “I have also done some minor work/activities for family and friends on very rare occasions over the last 2-3 years. That work is as follows:

5. Checking/giving recommendations of their vehicle condition before they bring their cars to a Mechanical Workshop to get their Pink Slip (road worthy certificate)/Blue Slip/Historic car registrations. This involves viewing the vehicle and no work on the vehicle.

6. Providing a second opinion from to see if there are other issues that might be related with their vehicle. This involves no work on the vehicle.

7. Helping friends in emergency situations such as: pumping up flat tyres and replacing friends’ batteries. These activities happened in my driveway.

8. Helping friends to scan/diagnose their car before they bring it to a Mechanical Workshop. This is to protect them from fraud/miss diagnose (sic) by another technician. This involves no work on the vehicle.

9. I helped to replace one friend’s front brake pads. I helped him out since I had previously borrowed his car to take my bike to the bike track.

10. I also helped a friend to instal (sic) a radio in his car since he had previously helped me do the same in my car” (at par 5).

11. “I did not charge for or receive payment for any of the work listed above”(at par 6).

12. “I am not responsible for every object parked outside of my property whether it be a portable toilet, boat, motorcycle trailer, uber eats, uber driver, DHL delivery, other neighbours’ car, my own car, police car, truck, tractor and other vehicle. I am allowed to park my cars on the road and so are my friends. The motor vehicles captured in the photographs/videos relied upon by my neighbours are not my customers or clients or vehicles waiting to be repaired. In respect to many of the vehicles in photographs and videos or listed in Angelos’ written document, I have no idea whose vehicles these are” (at par 7).

13. “I currently work at Porsche. I commenced to work there in 2021 as a Diagnostic Master Technician” (at par 8).

48. Mr Mustika’s affidavit also addresses the specific allegations contained in the affidavits or Ms Adams and Mr Mantzouranis.

49. The applicants relevantly submit that in their written submissions (AWS):

1. “…they are not conducting a business or undertaking motor vehicle repair on the premises (other than their own vehicle and a smaller number of friends and on a vehicle they borrowed)” (at par 47);

2. “…the repair of motor vehicles on the premises is a use for the purpose of a dwelling house, or is ancillary to that use. The applicants say that the site can lawfully be used for the purpose of a dwelling house with a development consent and the repair of motor vehicles is for that same lawful purpose or is ancillary to that purpose” (at par 48).

3. “This is consistent with established case law, if a part of land is used for a purpose which is subordinate to the purpose of the use of another part of the land, it is legitimate to disregard the former and to find the dominant purpose is that for which the whole is being used (relying on Foodbarn Pty Ltd v Solicitor General (1975) 32 LGRA 157 at 161, per Glass JA; Abret Pty Ltd v Wingecarribee Shire Council (2011) 180 LGERA 343; [2011] NSWCA 107 at [54], cited in Bardsley-Smith v Penrith City Council [2013] NSWCA 200 at [90]). The use of the driveway by occupants who reside in the dwelling on the property to repair vehicles which are in their possession, and mostly owned by them, is subordinate to the permissible use of the dwelling on the property as a residence by its occupants” (at par 49).

50. The applicants also submit that in a matter such as this where contradictory evidence has been given by the applicants and Ms Adams and Mr Mantzouranis, the Court should place greater emphasis on the photographs and videos tendered in this matter (see AWS pars 69-75).

Consideration

51. This case is an unfortunate example of a dispute between neighbours which has escalated to the point where council, police and multiple Courts have become involved. As the respondent does not rely on any evidence from Council compliance officers, financial documents or Council obtained CCTV footage etc, the evidence in this case is limited to the expert report of Ms Mikhiel, town planner for the respondent, and the conflicting statements of adversarial neighbours.

52. I give little weight to the evidence of Ms Mikhiel on the basis that her expert report, once amended following objections from the applicant, was primarily limited to explaining the concepts and definitions of different types of use, and stating that these uses are prohibited or require development consent in the R2 zone. I also did not give significant weight to Ms Mikhiel’s oral evidence, on the basis that, despite questions from the applicants’ counsel on the basis for issuing the Order, Ms Mikhiel is not a compliance officer and was not involved in the decision to issue the Order. Ms Mikhiel’s evidence was therefore of limited relevance or utility in this case.

53. Two of the main complaints from Ms Adams and Mr Mantzouranis, being the primary evidence on which the respondent relies, was that Mr Mustika was operating repairs on multiple vehicles at both the Premises and street, and that the applicants were repeatedly and loudly revving motorbike engines.

54. In respect of the motorbike revving, it was argued by the applicants and accepted by the respondent, that the motorbikes complained of by Ms Adams and Mr Mantzouranis were the private vehicles of the applicants. I accept the evidence of Ms Adams and Mr Mantzouranis that the applicants’ use of their motorbikes is regular and noisy, and I note that the revving and “warming up” of motorbikes is conceded in the affidavit of Mr Mustika (see Ex C at pars 61(h), 61(i) and 65) as is the applicants’ love and use of their motorbikes (Ex C at pars 24-29). For completeness, I also accept that the noise of motorbikes being “revved” or “warmed up” has been distressing for the applicants’ neighbours, particularly in their role as carers, and I encourage the applicants to be mindful of the noise generated by the revving and warming up of their motorbikes in the future. However, the revving of private vehicles does not establish or evidence the existence of vehicles being repaired, and therefore, a “vehicle repair station”.

55. I have therefore primarily focussed on the evidence of vehicles being repaired in the consideration of whether the use of a “vehicle repair station” has been established on the facts and evidence in this case.

56. Turning then to the evidence of Ms Adams and Mr Mantzouranis, both kept “logs” of the times they considered vehicles were being “worked on” or were making egregious noise. The entries in these log books were partially explained in their affidavits and during oral evidence. I have considered these log books in detail. Both log books make numerous and significant assertions and assumptions that are largely not supported by objective evidence, and, particularly in the case of Mr Mantzouranis, appear to show significant distress and anger towards the applicants. In addition, numerous entries in Mr Mantzouranis’s log book merely state the date and a vehicle registration number. I do accept however, that Ms Adams and Mr Mantzouranis did their best to accurately record what they perceived to be relevant events in this case.

57. Ultimately, I have before me competing facts and versions of events from both the applicants and their neighbours and a dispute which has become heated and acrimonious between those parties. In order to discern objective facts from the considerable emotion in this case, I have therefore placed significant weight on the objective evidence in this matter, being the photographs and videos tendered in this case.

58. From what I can objectively ascertain from the photographs and videos provided, various people (although I accept it likely these people either included or involved Mr Mustika, being located within or in close proximity to his Premises) have looked under the bonnet of various vehicles on approximately 10 occasions in approximately 19 months. It is not possible to ascertain from these photos whether the vehicles were being “repaired” or simply inspected. The photographs establish that two vehicles were worked on (tyres replaced) on two occasions in that 19 month period.

59. In my view, this is not of a sufficient frequency or intensity to establish that the use of the Premises is for a vehicle repair station. Further, photographs or videos of delivery vans such as from DHL, do not demonstrate the provision of vehicle repair parts. Similarly, photographs or videos of different cars parked in the driveway or outside the Premises, do not establish that these vehicles were visiting the Premises for the purpose of repairs or had any relationship to the applicants.

60. Despite the inconsistencies in the evidence given by Ms Adams and Mr Mantzouranis, and the inescapable fact that their affidavits were clearly drafted in large part by solicitors for the respondent, I accept that Ms Adams and Mr Mantzouranis were genuine in their distress and frustration with what they perceived to be inconsiderate and antagonising behaviour of the applicants. I also accept the unrefuted evidence from the applicants that they have also found various interactions with Ms Adams and Mr Mantzouranis to be distressing.

61. Although I accept that Ms Adams and Mr Mantzouranis believe that the applicants are using the Premises for a vehicle repair station, the assertion that the Premises is being used as a vehicle repair station is not made out on the facts and evidence in this case. Rather, I find based on the evidence in this case (including of the applicants themselves) that Mr Mustika is an automotive enthusiast who examines and works on vehicles on various occasions as a hobby, being ancillary to the primary use of the Premises as a dwelling.

62. Having regard to the evidence before me in this case, it has simply not been established that the Premises is being used as a vehicle repair station, either now, or as at the date the Order was issued. It has also not been established that the “hobby” use of the Premises amounts to an individual and separate use of the Premises that would justify a finding that it is more than ancillary to the applicants’ residential use of the Premises.

63. It therefore follows that there was no proper basis for the Order to be issued and it is appropriate that it be revoked. Having made this finding, it is unnecessary to consider whether the Order was validly issued having regard to matters of procedural fairness.

Orders

64. The Court orders that:

1. The appeal is upheld.

2. The Development Control Order issued by the respondent under s 9.34 and Part 1 of Schedule 5 of the Environmental Planning and Assessment Act 1979 to the applicant on 12 April 2024, requiring the applicants to stop use of land identified as Lot 105, Sec A, Deposited Plan 11368, known as 57 Bardwell Road, Bardwell Park (Premises), as a “home business/home occupation motor vehicles repairs”, is revoked.

3. The exhibits are returned except for Exhibits B, C, 4 and 5.

N Targett

Commissioner of the Court

**********

Decision last updated: 19 March 2025