Clause 4.6 variations in the Land and Environment Court

In Gejo Pty Ltd v Canterbury-Bankstown Council, the Land and Environment Court revisited the legal test for clause 4.6 variations under local environmental plans.

The law

A local environmental plan (LEP) is a piece of legislation that guides planning decisions for local government areas through zoning and development controls. Each local government area will have one or more LEPs.

In 2006, the Department of Planning & Infrastructure (Department) created a common format and structure for LEPs to be rolled out across all local government areas. Known as the Standard Instrument LEP, it was progressively rolled out and is now used throughout New South Wales. The Standard Instrument LEP has mandatory clauses that must be implemented in every LEP, and optional clauses that may or may not be included in the LEP.

Clause 4.6 is a mandatory clause that must be implemented in every LEP. Relevantly, it states:

4.6   Exceptions to development standards

(1)  The objectives of this clause are as follows:

(a)  to provide an appropriate degree of flexibility in applying certain development standards to particular development,

(b)  to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

(2)  Development consent may, subject to this clause, be granted for development even though the development would contravene a development standard imposed by this or any other environmental planning instrument. However, this clause does not apply to a development standard that is expressly excluded from the operation of this clause.

(3)  Development consent must not be granted for development that contravenes a development standard unless 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.

(4)  Development consent must not be granted for development that contravenes a development standard unless:

(a)  the consent authority is satisfied that:

(i)  the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and

(ii)  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

(b)  the concurrence of the Secretary has been obtained.

Gejo’s development application and appeal

Gejo Pty Ltd (Gejo) lodged a development application to demolish two existing dwelling houses and erect a 6-story mixed-use building in Punchbowl. The development was to consist of two buildings with 39 units, 2 ground level commercial units, a communal roof terrace and two levels of car parking. Similar developments had been proposed and approved on surrounding properties.

The proposal by Gejo did not comply with the maximum height allowable in the Canterbury Local Environmental Plan 2012 (CLEP). The CLEP establishes a maximum height of 18m. The proposed development was not compliant with this control – the buildings were proposed to reach heights of 18.09m and 20.95m respectively.

Gejo lodged an appeal with the Land and Environment Court once the assessment period had concluded and the application was deemed to be refused (read more about deemed refusals here).

Canterbury-Bankstown Council (Council) opposed the grant of development consent on a number of reasons. One of the reasons was that the proposed development did not comply with the development standard for maximum height. The Council did not support the request under clause 4.6 to vary the height standard.

Considerations for a clause 4.6 variation

A clause 4.6 variation can be granted by the Land and Environment Court where:

  1. the proposed development will be consistent with the objectives of the zone;
  2. the proposed development will be consistent with the objectives of the standard in question;
  3. the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and
  4. the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard.

(Please note that additional steps need to be taken by local councils when considering a clause 4.6 variation – have a look at the useful documents below).

Observations from the Court

The Land and Environment Court considered each of the four tests above and concluded that the variation should be allowed.

1. The proposed development will be consistent with the objectives of the zone.

The objectives for the B5 Business Development zone in the CLEP are:

  • To enable a mix of business and warehouse uses, and bulky goods premises that require a large floor area, in locations that are close to, and that support the viability of, centres.
  • To provide for residential use in conjunction with mixed use development to create an attractive streetscape supported by buildings with a high standard of design.
  • To support urban renewal that encourages an increased use of public transport, walking and cycling.
  • To encourage employment opportunities on Canterbury Road and in accessible locations.

The Land and Environment Court found that the proposed development provided for residential use in conjunction with mixed-use development. In doing so, it would support the viability of the location around which there would a mix of uses. The proposed development, along with similar surrounding developments, was considered to be consistent with supporting urban renewal, increased walking, and employment opportunities in an area accessible from Canterbury Road. The Court was satisfied that the proposed development would be consistent with the objectives of the zone.

2. The proposed development will be consistent with the objectives of the standard in question.

The objectives for the height standard in the CLEP are:

  • To establish and maintain the desirable attributes and character of an area.
  • To minimise overshadowing and ensure there is a desired level of solar access and public open space.
  • To support building design that contributes positively to the streetscape and visual amenity of an area.
  • To reinforce important road frontages in specific localities.

The Land and Environment Court emphasised that similar developments had been approved on adjacent properties, and there was no development control for the number of stories in the locality. Furthermore, Gejo had taken steps to minimise overshadowing, achieve solar access, create active street frontages, provide communal open spaces, and design a building with increased setbacks to contribute positively to the streetscape. There were no important road frontages in the location, and so objective (d) of the height standard was found to be not relevant. The Court was satisfied that the proposed development would be consistent with the objectives of the height standard.

3. The written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case.

The Land and Environment Court noted that Council had appeared to abandon the 18m height control on adjoining developments, and had considered that 6 storey developments as appropriate types of developments on Weyland Street. In this way, the Court found that “the development standard had virtually been abandoned by the Council’s own actions in departing from the standard”. Therefore, the the Court found it would be unreasonable to require the proposed development to comply with the height standard.

4. The written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard.

The written request stated that the sound urban planning outcome for the site would be a building that continues the scale of buildings and mid-block courtyards (as approved on surrounding land), and could provide amenity to its residents through the roof terrace. Overall, the Court was satisfied that the written request from the applicant demonstrated sufficient environmental planning grounds to justify contravention of the development standard.

Key points to take away from this case

  • A clause 4.6 variation can be granted by the Land and Environment Court when:
    • the proposed development will be consistent with the objectives of the zone;
    • the proposed development will be consistent with the objectives of the standard in question;
    • the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case; and
    • the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard.
  • When determining whether to grant a clause 4.6 request, the Land and Environment Court will consider surrounding development approvals and look at the emerging character of the locality.
  • It is important that a written request for a clause 4.6 variation considers and analyses how the development as a whole can satisfy the four considerations for a clause 4.6 variation. The Court was critical of the written request, and emphasised that if an applicant is seeking a clause 4.6 variation, it must be based on more than “environmental planning grounds”.

Useful documents

Additional steps need to be taken by local councils when considering a clause 4.6 variation. The Development Site will publish an article on this topic in 2018. In the meantime, please see the documents below for further guidance.

If you would like legal assistance, you can contact Alyce Kliese directly by clicking here.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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