Tony Khattar and Tony Draybi v. Auburn Council [1998] NSWLEC 140

Tony Khattar and Tony Draybi v. Auburn Council [1998] NSWLEC 140

An amendment which results in a change from prohibited development to a proposal permissible with consent does not as a matter of legal principle always demand a new development application; each case depends on whether the amended proposal is so substantially different as to amount to a new application, a question of fact for the Assessor.

Parties
Applicant: Tony Khattar; Applicant: Tony Draybi; Respondent: Auburn Council
Jurisdiction
Australia
Judgment Date
25 August 1998
Procedural Posture
Class 1 Appeal / Hearing of Question of Law Prior to Substantive Hearing
Outcome
Matter referred back for hearing of the substantive application according to the established test; no final determination on the merits of the development application.
Legal Topics
Development Applications, Amendments to Applications, Zoning, Land Use Permissions
Planning Law Environmental Law Development Applications Amendments to Applications Zoning Land Use Permissions

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Parties

Tony Khattar

Applicant

Tony Draybi

Applicant

Auburn Council

Respondent

Procedural Posture

Class 1 Appeal / Hearing of Question of Law Prior to Substantive Hearing

Legal Issues

  1. 1 Whether a development application can be amended from prohibited development to permissible development without lodging a new application

Ratio Decidendi

An amendment which results in a change from prohibited development to a proposal permissible with consent does not as a matter of legal principle always demand a new development application; each case depends on whether the amended proposal is so substantially different as to amount to a new application, a question of fact for the Assessor.

Court Disposition

Matter referred back for hearing of the substantive application according to the established test; no final determination on the merits of the development application.

Orders

  • Referred back to the Registrar for callover and setting down for hearing in accordance with the recognised test.