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 APPLICANT Tony Khattar PARTIES : 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

APPLICANT Mr P Clay (Barrister) Ms L Byrne (Barrister) LEGAL REPRESENTATIVES: 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.