Essential Guide

Essential Guide to Clause 4.6 Requests

WRITTEN BY Tomas Bush

Introduction

Development standards play an important role in ensuring that new developments complement the character of the local area, avoid harm to the environment and are beneficial to the public. [1] Development standards can be found in most environmental planning instruments. Within a local environmental plan (LEP) development standards commonly set standards for a wide range of matters such as minimum lot size requirements, maximum building heights, bulk, scale and density, as well as the provision of access, landscaping and parking.

However, development standards ‘are not ends in themselves’ but a means of achieving the planning and environmental objectives of the Environmental Planning and Assessment Act 1997 (the Act) and the LEPs that contain them.[2]  As such, strict compliance with a development standard can sometimes be neither necessary nor reasonable.[3]

For this reason, all ‘standard instrument’ LEPs include the ability to vary development standards under clause 4.6. Clause 4.6 allows an application to be made to the consent authority to vary a development standard when the preconditions set out in that clause have been met.  In this way, clause 4.6 allows flexibility in the application of development standards where this will achieve a positive planning outcome.

Court decisions on clause 4.6 requests have emphasised the need to ensure that all of the various requirements of the clause are satisfied in each case. This essential guide provides a simplified outline of the statutory requirements which apply to the making and assessment of clause 4.6 applications, including a brief review of some decisions of the Land and Environment Court which illustrate the approach which needs to be followed in interpreting and applying clause 4.6.

Legal requirements of a clause 4.6 variation request

Each of the following elements must be met before development consent can be granted for development that contravenes a development standard:

  • Clause 4.6(3) provides that the consent authority must have considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating that:
    • compliance with the development standard is unreasonable or unnecessary in the circumstances of the case;[4] and
    • there are sufficient environmental planning grounds to justify contravening the development standard[5].
  • Clause 4.6(4) provides that the consent authority must be satisfied that:
    • the applicant’s written request has adequately addressed the matters required to be demonstrated by cl. 4.6(3);
    • 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,
    • the concurrence of the Planning Secretary has been obtained[6].

The various elements which must be satisfied under cl.4.6 are jurisdictional.[7] As such, if a proposal does not meet all of these requirements, development consent cannot be granted by the consent authority. We have explained each of these requirements further below.

Matters the cl. 4.6 request must address

First, development consent may only be granted for development that contravenes a development standard if the consent authority is satisfied that the written request has adequately addressed two factors –

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

The language of cl.4.6, in requiring that an application ‘adequately address’ these two matters, means that the consent authority needs to be satisfied that those matters have, in fact, been demonstrated in the request documentation. It is not sufficient for the request merely to seek to demonstrate the matters, the consent authority needs to be directly satisfied that the written request has in fact demonstrated both that compliance is unreasonable or unnecessary in the circumstances of the case and also that there are sufficient environmental planning grounds to justify the contravention. [8]

Unreasonable or Unnecessary

The Court has identified 5 common methods, sometimes referred to as the ‘Wehbe tests’, an applicant may use to establish that compliance with a development standard is unreasonable or unnecessary in the circumstances of the case:

  1. by showing that the objectives of the development standard are achieved notwithstanding noncompliance with the development standard;[9]
  2. by establishing that the underlying objective or purpose is not relevant to the development, such that compliance is unnecessary;[10]
  3. by establishing that the underlying purpose is defeated or thwarted if compliance is required, such that compliance becomes unreasonable;[11]
  4. by illustrating that the Council itself has granted development consent that departs from the standard, and arguing from this that the development standard has been ‘virtually abandoned or destroyed,’ rendering it unnecessary and unreasonable;[12]
  5. by establishing that the zoning area of the proposed development was ‘unreasonable or inappropriate’ such that the development standard which is appropriate to that zoning is no longer reasonable or necessary for the particular area. Preston CJ has explained that the focus of this reason is that the zoning of the land in question is unreasonable or inappropriate, rather than the standard being inappropriate in that zone.

An applicant may rely on more than one of these methods to justify non-compliance with a development standard in the circumstances of a particular case[13] and there may be other ways of demonstrating that compliance with a development standard is unreasonable or unnecessary in particular circumstances.

Sufficient Environmental Planning Grounds

A developer’s application must also demonstrate that the contravention is justified on ‘sufficient environmental planning grounds’. Such grounds include matters that ‘relate to (the) subject matter, scope and purpose of the Act, including the objects in s 1.3.’[14] This leaves developers with a wide range of grounds on which they can rely to justify a 4.6 request, including, for example, that the variation will promote good design and amenity, will allow for the orderly and economic development of land or that it will promote ecologically sustainable development by integrating relevant economic, environmental and social considerations.

Is the Consent authority satisfied that the development is in the public interest?

If the consent authority is satisfied that the applicant’s written application has adequately addressed the above two factors, then it must go on to consider – and be satisfied – that the development would also be in the public interest because it is consistent with:

  • the objectives of particular development standard; and
  • the development objectives of the zone in which the development is proposed.[15]

As such, the public interest test is not simply whether the development is in the public interest in the broad sense. Rather, the test is whether the development would be in the public interest “because” it is consistent with the objectives of both the development standard and the relevant zone. If the consent authority forms the view that the proposed development is not consistent with the objectives of the standard or the zone, or both, it will not meet the public interest test.[16]

The term ‘consistency’ in this context has been interpreted to be synonymous with the term ‘compatible’ and ‘capable of existing together in harmony’. The requirement for development to be ‘consistent’ with the relevant objectives is a less onerous test than actually achieving the particular objectives[17].

In determining whether it is satisfied that a proposed development is in the public interest, the consent authority, including the Court on appeal, is not limited to considering the cl.4.6 request. It is able can take into account the whole of the development application and other relevant evidence before it.[18]

Concurrence

Development consent must also not be granted for development that contravenes a development standard unless the concurrence of the Planning Secretary has been obtained.

The concurrence of the Planning Secretary can be assumed for most applications under clause 4.6,[19] but this is subject to the following two exceptions:[20]

  1. where the developer is seeking an exemption to the minimum lot size and the area being developed is less than 90% of the minimum lot size and the land is within zone RU1, RU2, RU3, RU4, RU6, R5, E2, E3, E4 or an equivalent land use zone and the development is local or regionally significant development; or
  2. if the application is being determined by a delegate of council (rather than the council or its independent hearing and assessment panel) and the development will:
    • contravene a numerical standard by more than 10%, or
    • the variation is to a non-numerical standard.

If, because of either of these circumstances, concurrence cannot be assumed then the consent authority will need to seek (and obtain) concurrence from the Planning Secretary before it can grant consent to the application. The Planning Secretary is required to consider the following when deciding whether to grant concurrence:

  • if the contravention ‘raises any matter of significance for the State or regional environmental planning;’
  • the benefit to the public of maintaining the development standard; and
  • any other matters deemed relevant.

A council must refuse to grant consent to an application for which the Planning Secretary’s concurrence is required but has not been provided. If the concurrence of the Planning Secretary is sought but not given within the time allowed for doing so, development consent may be granted without that concurrence[21].

In a Class 1 appeal to the Land and Environment Court, the Court may determine the appeal whether or not the concurrence of the Planning Secretary has been obtained.  Where concurrence has been obtained but that concurrence is subject to conditions, the Court can also vary or revoke those conditions.  However, the Court must still consider the matters in cl 4.6(5) when exercising the power to grant development consent for development that contravenes a development standard.[22]

Are there times a cl. 4.6 cannot be requested?

Clause 4.6 applications can only be made in respect of “development standards” and not to prohibitions contained in a LEP.  The EP&A Act contains an expansive definition of “development standards”[23].

There are also some development standards which cannot be varied pursuant to cl.4.6. These are:

  • The subdivision of land in certain zones if the subdivision will create two or more lots that are less than the minimum area specified for such a lot, or if it results in (at least) one lot that is less than 90% of the minimum area required by development standards;[24]
  • If the development standard is for complying development[25];
  • If the development standard is one that arises in connection with a commitment set out in a BASIX certificate for a building to which State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 applies or for the land on which such a building is situated[26]; or
  • If it will contravene a control in cl.5.4 relation to miscellaneous permissible uses.[27]

Local environment plans also often contain an additional list of local standards which cannot be varied under cl. 4.6 (in cl.4.6(8)).

Conclusion

Development standards provide important limitations to ensure that development occurs in an environmentally responsible manner and achieves good planning outcomes. However, cl.4.6 recognises that these outcomes can still be achieved without strict compliance with these standards in some circumstances.

This guide explains the requirements of cl.4.6 and the guidance provided by the Land and Environment Court to assist local council’s to correctly assess these requests and determine when a flexible approach can be justified.

The content contained in this Essential Guide is, of course, general commentary only. It is not legal advice. Readers should contact us and receive our specific advice on the particular situation that concerns them.

Please note that the law detailed in this Essential Guide is correct at 12 March 2021.

Our series of NSW Local Government Guides are comprehensive yet simple to understand guides on how to deal with certain legislation and problems that NSW Local Government and Councils often face.

[1] Environmental Planning and Assessment Act 1979, s 1.4.

[2] Wehbe v Pittwater Council (2007) 156 LGERA 446 at [43].

[3] Ibid.

[4] See definition of ‘development standard’ in cl 4.6(3)(a).

[5] Ibid cl 4.6(3)(b)

[6] Ibid cl 4.6(4)(b).

[7] RebelMH Neutral Bay Pty Limited v North Sydney Council [2018] NSWLEC 191 at [42] – [43].

[8] RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130 at [51].

[9] Wehbe v Pittwater Council [2007] NSWLEC 827 at [42] (‘Wehbe’).

[10] Ibid [45].

[11] Ibid [46].

[12] Ibid [47].

[13] Liberty Investments Pty Ltd v Blacktown City Council [2009] NSWLEC 7 at [29].

[14] Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [23].

[15] Ibid [26]; Local Environmental Plan cl 4.6(4)(a)(ii).

[16] Initial Action Pty Ltd v Woollahra Municipal Council at [27].

[17] Kingsland Developments Australia Pty Ltd v City of Parramatta Council [2018] NSWLEC 1241 at [20].

[18] SJD DB2 Pty Ltd v Woollahra Municipal Council [2020] NSWLEC 1112 at [33].

[19] Planning Circular PS 20-002 Variations to Development Standards.

[20] Ibid.

[21] EP&A Act, s.4.13(11). The “time allowed” is 40 days or 21 days after the receipt of the last of any submissions received following the public notification of the application: EP&A Reg, cl. 62.

[22]  Initial Action Pty Ltd v Woollahra Municipal Council at [29].

[23] EP&A Act, s. 1.4.

[24] Standard Instrument—Principal Local Environmental Plan cl 4.6(6).

[25] Ibid cl.4.6(8)(a).

[26] Ibid cl.4.6(8)(b).

[27] Ibid cl.4.6(8)(b).

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