Reported Decision: 172 LGERA 380
New South Wales
Court of Appeal
CITATION: Agostino v Penrith City Council [2010] NSWCA 20 HEARING DATE(S): 3 February 2010
JUDGMENT DATE:
3 March 2010JUDGMENT OF: Giles JA at 1; Tobias JA at 2; McClellan CJ at CL at 60 DECISION: (a) Extend the time for the filing by the appellants of their summons for leave to appeal up to and including 30 July 2009;
(b) Grant leave to appeal;
(c) Dismiss the appeal with costs.CATCHWORDS: APPEAL – Practice and procedure – New South Wales – Extension of time for appeal – Summons for leave to appeal filed late – Delay in the seeking of alternative advice with respect to the prospects of a successful appeal from the decision of the primary judge – Whether application for an extension of time in which to seek leave to appeal should be granted - ENVIRONMENT AND PLANNING – Environmental planning – Planning schemes and instruments – New South Wales – Local environmental plans – Penrith Local Environmental Plan No 201 – Development may be carried out for the purposes of a fruit and vegetable store with a maximum floor area of 150 sq. m – Development application to increase size of existing fruit and vegetable store from 150 sq. m to 765 sq. m – Application refused by Penrith City Council – Whether the words “with a maximum floor area of 150 sq. m” constitute a development standard or a prohibition upon development LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Local Government Act 1919
Penrith Local Environmental Plan No 201
State Environmental Planning Policy No 1
Uniform Civil Procedure Rules 2005CATEGORY: Principal judgment CASES CITED: Agostino v Penrith City Council [2009] NSWLEC 76
Agostino v Penrith City Council [2002] NSWLEC 222; (2002) 123 LGERA 305
Blue Mountains City Council v Laurence Browning Pty Ltd [2006] NSWCA 331; (2006) 150 LGERA 130; (2006) 67 NSWLR 672
Lowy v The Land and Environment Court of NSW and Others [2002] NSWCA 353; (2003) 123 LGERA 179
North Sydney Municipal Council v P D Mayoh Pty Ltd [No 2] (1990) 71 LGRA 222
Residents against Improper Development Inc and Another v Chase Property Investments Pty Ltd [2006] NSWCA 323; (2006) 149 LGERA 360
Strathfield Municipal Council v Poynting [2001] NSWCA 270; (2001) 116 LGERA 319
Woollahra Municipal Council v Carr (1987) 62 LGRA 263PARTIES: Antonio Agostino
Barbara Agostino
Penrith City CouncilFILE NUMBER(S): CA 40254/09; 2009/298385 COUNSEL: A: D Wilson
R: A Galasso SCSOLICITORS: A: A R Walmsley & Co,
R: Sparke HelmoreLOWER COURT JURISDICTION: Land & Environment Court LOWER COURT FILE NUMBER(S): L&E 10015/09 LOWER COURT JUDICIAL OFFICER: Pain J LOWER COURT DATE OF DECISION: 4 June 2009 LOWER COURT MEDIUM NEUTRAL CITATION: Agostino v Penrith City Council [2009] NSWLEC 76
CA 40254/09
LEC 10015/09Wednesday 3 MarchGILES JA
TOBIAS JA
McCLELLAN CJ at CL
ANTONIO AGOSTINO & ANOR v…
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Details
- Case
- [2010] NSWCA 20
- Decision Date
CaseChat Overview and Summary
The case of *Agostino v Penrith City Council* concerned an appeal to the New South Wales Court of Appeal. The appellants sought an extension of time to file a summons for leave to appeal against a decision concerning a development application. The primary dispute involved a development application to increase the size of an existing fruit and vegetable store from 150 square metres to 765 square metres, which had been refused by Penrith City Council.
The central legal issue before the Court of Appeal was whether the phrase "with a maximum floor area of 150 sq. m" within Penrith Local Environmental Plan No 201 constituted a development standard or a prohibition upon development. This determination was crucial for assessing the prospects of a successful appeal.
The Court considered the appellants' delay in seeking alternative advice regarding the prospects of appeal. Ultimately, the Court decided to extend the time for the filing of the summons for leave to appeal, granted leave to appeal, but then dismissed the appeal itself. The reasoning for dismissing the appeal, while not detailed in the provided text, led to the final orders.
The central legal issue before the Court of Appeal was whether the phrase "with a maximum floor area of 150 sq. m" within Penrith Local Environmental Plan No 201 constituted a development standard or a prohibition upon development. This determination was crucial for assessing the prospects of a successful appeal.
The Court considered the appellants' delay in seeking alternative advice regarding the prospects of appeal. Ultimately, the Court decided to extend the time for the filing of the summons for leave to appeal, granted leave to appeal, but then dismissed the appeal itself. The reasoning for dismissing the appeal, while not detailed in the provided text, led to the final orders.
Orders
Orders of the court
(a) Extend the time for the filing by the appellants of their summons for leave to appeal up to and including 30 July 2009;
(b) Grant leave to appeal;
(c) Dismiss the appeal with costs.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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