Hawkesbury City Council v Agostino [2009] NSWLEC 130

Land and Environment Court of New South Wales

CITATION : Hawkesbury City Council v Agostino [2009] NSWLEC 130

APPLICANT: Hawkesbury City Council

PARTIES : FIRST RESPONDENT: Francesco Agostino

SECOND RESPONDENT: Caterina Agostino

FILE NUMBER(S) : 40172 of 2009

CORAM: Biscoe J

KEY ISSUES: PRACTICE AND PROCEDURE :- application to adjourn class 4 civil enforcement proceedings re using premises for a prohibited use to enable respondent to make a development application

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss 124(3), 127(7)

CASES CITED: Calardu Penrith Pty Ltd v Pipven Pty Ltd [2009] NSWLEC 119

DATES OF HEARING: 22 July 2009

EX TEMPORE JUDGMENT DATE : 22 July 2009

APPLICANT: Mr S Griffiths SOLICITORS Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENTS: Mr M J Stevens, barrister SOLICITORS A R Walmsley & Co

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

BISCOE J

22 July 2009

40172 of 2009

HAWKESBURY CITY COUNCIL v AGOSTINO & ANOR

EX TEMPORE JUDGMENT 1 HIS HONOUR: This is a contested motion by the respondents, Francesco Agostino and Caterina Agostino, in these class 4 proceedings for an order to vacate the hearing dates and an order that the proceedings be stayed pending determination of a development application lodged by them with the applicant, Hawkesbury City Council, on 2 July 2009. The proceedings are listed for hearing for three days in three weeks' time, from 12 to 14 August 2009. 2 The background is that the respondents have premises on Bells Line of Road, which it operates as a retail shop. The premises were built as a fruit packing shed in the 1950s. The fruit packing use ceased in or about the early 1970s when the property was sold. Thereafter the premises were used for general farm storage purposes. From about 1978 to 2003 they were occupied and used to build childrens' rocking horses. It seems that at some time during that period that occupier used the premises for the display and sale of rocking horses. Later he added other toys to the items displayed and sold from the premises.