Agostino v Hawkesbury City Council [2009] NSWLEC 1422

Agostino v Hawkesbury City Council [2009] NSWLEC 1422

Clause 22(2) of the Hawkesbury Local Environmental Plan 1989 is a prohibition, not a development standard, because it prohibits specified uses, including a general store, on land in specified zones with direct vehicular access to a main or arterial road. Its focus is on characteristics of land and overriding the...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
17 December 2009
Procedural Posture
Class 1 Development Appeal / Determination of Whether Clause 22(2) of the Hawkesbury Local Environmental Plan 1989 Is a Prohibition or a Development Standard Before Any Merit Hearing
Outcome
Appeal dismissed after determination that clause 22(2) is a prohibition of development for the purposes of a general store.
Legal Topics
['development Standards' 'prohibition of Development' 'state Environmental Planning Policy No 1 Objections' 'local Environmental Plans' 'statutory Construction' 'development Consent for General Store']
['planning and Environment Law'] ['development Standards' 'prohibition of Development' 'state Environmental Planning Policy No 1 Objections' 'local Environmental Plans' 'statutory Construction' 'development Consent for General Store']

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Procedural Posture

Class 1 Development Appeal / Determination of Whether Clause 22(2) of the Hawkesbury Local Environmental Plan 1989 Is a Prohibition or a Development Standard Before Any Merit Hearing

Legal Issues

  1. 1 ['Whether clause 22(2) of the Hawkesbury Local Environmental Plan 1989 is a prohibition of development for the purpose of a general store or a development standard capable of objection under State Environmental Planning Policy No 1.']

Ratio Decidendi

Clause 22(2) of the Hawkesbury Local Environmental Plan 1989 is a prohibition, not a development standard, because it prohibits specified uses, including a general store, on land in specified zones with direct vehicular access to a main or arterial road. Its focus is on characteristics of land and overriding the zoning permissibility in clause 9, not on regulating an aspect of the proposed development. Clause 22(3), unlike clause 22(2), deals with the design of access and may be a development standard, but it does not convert clause 22(2) into one.

Court Disposition

Appeal dismissed after determination that clause 22(2) is a prohibition of development for the purposes of a general store.

Orders

  • ['I determine that clause 22 (2) of the Hawkesbury Local Environmental Plan 1989 is a prohibition of development for the purposes of a general store.' 'I dismiss the appeal.']