Tony Khattar and Tony Draybi v Auburn Council

[1998] NSWLEC 140

Land and Environment Court

of New South Wales

CITATION:	Tony Khattar and Tony Draybi v. Auburn Council [1998] NSWLEC 140
PARTIES:	APPLICANT Tony Khattar RESPONDENT Auburn Council
FILE NUMBER(S):	10051 of 1998
CORAM:	Talbot J
KEY ISSUES:	:-
LEGISLATION CITED:
CASES CITED:
DATES OF HEARING:	21/08/98
DATE OF JUDGMENT:	08/25/1998
LEGAL REPRESENTATIVES:	APPLICANT Mr P Clay (Barrister) Ms L Byrne (Barrister) Williams Hussain Solicitors RESPONDENT Mr P Schofield (Solicitor) Pike Pike & Fenwick Solicitors

JUDGMENT:

1. When the hearing of this class 1 appeal commenced before the Senior Assessor on 9 June 1998, the applicants informed the Court that they wished to rely on changes to the subject plans which originally indicated three levels of residential units over shops on the ground floor at street level. The changes are to delete the reference to shops and to nominate the same unit spaces as commercial premises. The proposed changes were foreshadowed in a letter to the respondent's solicitors dated 27 May 1998.

2. Development for the purpose of residential flat buildings is prohibited in the zone whereas residential flat buildings over commercial premises are permissible with consent. It is an agreed fact that the unamended proposal for a residential flat building over shops is prohibited development.

3. The respondent has raised the issue of whether the proposed changes could be properly and validly dealt with as an amendment to the subject development application. It appears the Senior Assessor was reluctant to deal with the issue as a perceived question of law.

4. Notwithstanding submissions on behalf of the council that it was within his competence and jurisdiction to proceed with the hearing, an adjournment was granted by the Senior Assessor to allow the applicants to consider their position.

5. At a subsequent callover, the Registrar directed the respondent to formulate an appropriate question of law and set the hearing of that question down before a Judge. Neither party was able to explain the basis for the Registrar's action.

6. The council's solicitor has formulated the following question of law in response to the Registrar's direction:-

Whether a development application lodged pursuant to the Environmental Planning and Assessment Act 1979 can be amended from an application which seeks consent for development which is prohibited to one which seeks consent for development which is permissible with consent without the lodgment of a fresh development application.

7. There was no real dispute during argument before me that the proper test to be applied to determine whether an amendment to an application brings about a demand for a new application is whether the changes are so significant as to convert the original concept into something so substantially different that it amounts to a new application. I agree. It is necessary to have regard to the whole development and then determine whether the changes are sufficiently material to alter the concept or substance of the proposal.

8. I propose to proceed to deal with the question of law on that basis.

9. Mr Schofield conceded, when pressed by the Court, that there could be circumstances where amendments made to a proposal in order to avoid offending the requirements of an LEP might be permitted. He recognised that elements of a building such as height, floor space ratio or set back might be changed in order to comply with a development standard, provided the development remained, in essence, the same development. A reduction in the number of prescribed employees in order to fit the definition of a home occupation otherwise prohibited as commercial development was also cited during submissions.

10. Even without the concession made by Mr Schofield, common sense dictates that the submitted question of law does not provoke a simple answer in the affirmative or the negative. The definitive answer is that each case will be depend on the merits and its own facts.

11. The consequences of the proposed amendments in planning terms have not been addressed in this hearing. The argument has been confined to the issue of whether the proposed changes, from what is prohibited development to development permissible with consent, standing alone as the sole fact, are sufficient to generate a legal requirement for a new and fresh development application.

12. I am not prepared to hold than any amendment which results in a change from prohibited development to a proposal for development permissible with consent necessarily renders the existing development application nugatory. No authority to that effect has been cited by either party and I am not aware of any. Furthermore, as a matter of principle, it would not, in my opinion, be correct.

13. When the matter again comes before an Assessor for hearing it will be a matter for the Assessor to determine as a question of fact whether what is now proposed is so substantially different to the original concept as to amount to an original application.

14. Compliance with the zoning and other requirements of the relevant environmental planning instrument does not create a prima facie entitlement to an approval. It merely creates a context for the consent authority to exercise its discretionary power taking into account the matters it is obliged to take into consideration pursuant to s 90 of the EPA Act. If the changes are material to that context, then the extent of the amendment must be assessed to determine whether a new development has been substituted for the original one.

15. The fact that the development as presently proposed is prohibited development is a factor that the Assessor will be entitled to take into account when determining whether a fresh development application is required. After the Assessor has had the benefit of the relevant evidence that fact may even be determinative, but not as a matter of legal necessity.

16. The matter will be referred back to the Registrar for callover and setting down for hearing in accordance with the recognised test.