Agostino & Anor v Penrith City Council [2002] NSWLEC 222

Agostino & Anor v Penrith City Council [2002] NSWLEC 222

Clause 41(3) of the LEP is a prohibition on expansion, not a development standard, and so cannot be the subject of an objection under SEPP 1. The power to consent to the proposed development is not enlivened; accordingly, the application must fail both as to the increase in floor area and in permitted product range.

Parties
Applicants: A. & B. Agostino; Respondent: Penrith City Council
Jurisdiction
Australia
Judgment Date
13 December 2002
Procedural Posture
Class 1 Proceedings / Judgment
Outcome
application dismissed
Legal Topics
Development Application, Planning Instruments, Development Standards, Local Environmental Plans, State Environmental Planning Policy, Permissible Use
Planning Law Environmental Law Development Application Planning Instruments Development Standards Local Environmental Plans State Environmental Planning Policy Permissible Use

Case Brief

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Parties

A. & B. Agostino

Applicants

Penrith City Council

Respondent

Procedural Posture

Class 1 Proceedings / Judgment

Legal Issues

  1. 1 Whether clause 41(3) of the Penrith Local Environmental Plan No. 201 is amenable to an objection under SEPP 1
  2. 2 Whether the SEPP 1 objection ought to be upheld given the specific controls on the development of the land
  3. 3 Whether the application to expand the floor area and product range could be granted

Ratio Decidendi

Clause 41(3) of the LEP is a prohibition on expansion, not a development standard, and so cannot be the subject of an objection under SEPP 1. The power to consent to the proposed development is not enlivened; accordingly, the application must fail both as to the increase in floor area and in permitted product range.

Court Disposition

application dismissed

Orders

  • The application filed 12 December 2001 be dismissed.
  • Exhibits be returned.