Agostino v Penrith City Council [2010] NSWCA 20

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 2010

JUDGMENT OF: Giles JA at 1; Tobias JA at 2; McClellan CJ at CL at 60

(a) Extend the time for the filing by the appellants of their summons for leave to appeal up to and including 30 July 2009; DECISION: (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

Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 LEGISLATION CITED: Local Government Act 1919 Penrith Local Environmental Plan No 201 State Environmental Planning Policy No 1 Uniform Civil Procedure Rules 2005