Agostino v Penrith City Council [2010] NSWCA 20

Agostino v Penrith City Council [2010] NSWCA 20

The majority held that the words 'with a maximum floor area of 150 sq. m' in clause 41(3) of Penrith Local Environmental Plan No 201 form an essential element of the development permissible on the relevant land. Accordingly, a store exceeding that floor area falls outside the permissible use and is prohibited; the...

Source-derived case information.

Parties
Appellant: Antonio Agostino; Appellant: Barbara Agostino; Respondent: Penrith City Council
Jurisdiction
Australia
Judgment Date
03 March 2010
Procedural Posture
Appeal / Judgment on Leave to Appeal and Appeal From Interlocutory Decision of Land & Environment Court
Outcome
Appeal dismissed (by majority); extension of time and leave to appeal granted.
Legal Topics
Development Standards Vs. Prohibitions in Planning Instruments, Local Environmental Plans Interpretation, Extension of Time for Appeals, Zoning Provisions, State Environmental Planning Policy No 1
Environment and Planning Law Administrative Law Development Standards Vs. Prohibitions in Planning Instruments Local Environmental Plans Interpretation Extension of Time for Appeals Zoning Provisions State Environmental Planning Policy No 1

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Summary, issues, holding and outcome

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Parties

Antonio Agostino

Appellant

Barbara Agostino

Appellant

Penrith City Council

Respondent

Procedural Posture

Appeal / Judgment on Leave to Appeal and Appeal From Interlocutory Decision of Land & Environment Court

Legal Issues

  1. 1 Whether the words 'with a maximum floor area of 150 sq. m' in clause 41(3) of Penrith Local Environmental Plan No 201 constitute a development standard or a prohibition upon development for the purposes of a fruit and vegetable store exceeding that floor area
  2. 2 Whether the extension of time for filing a summons for leave to appeal should be granted

Ratio Decidendi

The majority held that the words 'with a maximum floor area of 150 sq. m' in clause 41(3) of Penrith Local Environmental Plan No 201 form an essential element of the development permissible on the relevant land. Accordingly, a store exceeding that floor area falls outside the permissible use and is prohibited; the floor space control is not a separable development standard and therefore cannot be relaxed under SEPP 1.

Court Disposition

Appeal dismissed (by majority); extension of time and leave to appeal granted.

Orders

  • Extend the time for the filing by the appellants of their summons for leave to appeal up to and including 30 July 2009.
  • Grant leave to appeal.