Using clause 4.6 of the Standard Instrument to vary development standards

Councils and developers are continuing to grapple with the process of amending development standards under clause 4.6 of the standard instrument local environmental plans. However, the trend in recent cases, including the recent decision in Zhang v Council of the City of Ryde , has been towards taking a more liberal approach to allowing variations to development standards.

Clause 4.6

Clause 4.6 allows a consent authority to grant consent for development, even though the development would contravene a development standard imposed by an environmental planning instrument, where the following requirements are met;

1. the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:

a.  that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and
b.  that there are sufficient environmental planning grounds to justify contravening the development standard.

2. the consent authority is satisfied that:

a.  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and
b.  the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and

3. the concurrence of the Secretary has been obtained.

Four2five Pty Ltd v Ashfield Council [2015] NSWLEC 9 was one of the first appeal cases to consider clause 4.6. In this case, the Court refused to vary the relevant development standards for two primary reasons:

1. the written request failed to demonstrate that the grounds for departing from the standard were particular to the circumstances of the proposed development on the subject site; and

2. the applicant had not demonstrated that compliance with the development standard was unreasonable or unnecessary, in addition to demonstrating that the proposal was consistent with the objectives of the standard.

The Four2five case, other recent cases demonstrate a trend towards allowing variations where these two elements are not necessarily met. This is facilitated by the broad discretion given to the consent authority under clause 4.6.

Applying clause 4.6 – a recent example

Zhang v Council of the City of Ryde is the latest in a series of cases to apply clause 4.6. The case involved an application for the construction of in-fill affordable housing (multi-dwelling housing) in the low density residential zone (R2). The proposed development exceeded the 5m height requirement which applied and also exceeded the density controls for the zone.

The applicant had prepared a written request to vary the relevant height and density controls. He argued that strict compliance with the standards was unnecessary, in part, because the proposed development would not have any unreasonable adverse impacts and would facilitate the provision of an additional dwelling house to be dedicated as affordable rental housing for a period of 10 years. Similar reasons were put forward to justify departure from controls on environmental planning grounds. The Council did not support the written request.

Commissioner Brown reiterated that clause 4.6 imposes three preconditions which must be satisfied before the application could be approved:

1. The consent authority must be satisfied that the proposed development will be consistent with the objectives of the zone;

2. The consent authority must be satisfied that the proposed development will be consistent with the objects of the standard which is not met; and

3. The consent authority must be satisfied that the written request demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances and there are sufficient environmental planning grounds to justify contravening the development standard.

It is only if all of these conditions are met that consent can be granted to the application, subject to an assessment of the merits of the application.

The Commissioner applied the now familiar approach to determining consistency with zone objectives by considering whether the development was antipathetic to the objectives. Like most zone objectives, the R2 zone objectives were relatively general. They did not specifically relate to building height and, although the objectives referred to the provision of housing within a low density residential environment, that term was not defined. The Commissioner accepted that the proposed development was consistent with the zone objectives.

The Commissioner was also satisfied that the proposed development was consistent with the relevant objectives of the height controls, accepting that the development was both compatible with the character of the local area and would avoid any overshadowing impacts. The LEP did not include any specific objectives for the density standards and, although the development control plan did contain provisions which addressed density, these were in conflict with the density controls in the local environmental plan and were of limited assistance.

The Commissioner went on to find that there were sufficient grounds to justify contravening both development standards in this case and approved the application on its merits. However, in contrast to four2five, the reasons relied on to justify the departure from the standards in this case were not necessarily site specific.

The decision in Zhang follows another recent case, Randwick City Council v Micaul Holdings , in which the Court allowed a departure from development standards in comparable circumstances. Provided the processes required by clause 4.6 are followed, it therefore seems that a consent authority has a broad discretion as to whether to allow a departure from development standards under clause 4.6, even where the variation is not justified for site or development specific reasons.