Gunawan v Bayside Council

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…