Clause 4.6 variations by Councils

We’ve previously discussed how the Land and Environment Court will approach a clause 4.6 variation request – but what about local councils?

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.

Development standards are imposed by LEPs or other environmental planning instruments (such State Environmental Planning Policies). Development standards are used to control development and achieve particular environmental planning objectives, for example, the maximum height of buildings in a particular location.

Clause 4.6 is a mandatory clause that must be implemented in every LEP. Clause 4.6 allows for the variation of development standards in certain situations. 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.

Considerations for a clause 4.6 variation

In considering a clause 4.6 variation, a council must give consideration to legislative requirements, and additional matters specified by the Department.

1. Legislative Requirements

The applicant must provide the council with a written request to vary the development standard. The written request must justify the variation of the development standard by demonstrating that compliance with the development standard is “unreasonable or unnecessary” in the circumstances, and demonstrate that there are sufficient environmental planning grounds to justify a contravention of the development standard.

The council must consider the written request, and can only grant development consent if:

  • 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;
  • the written request adequately demonstrates that there are sufficient environmental planning grounds to justify contravening the development standard; and
  • the council has received concurrence from the Secretary (this does not mean that the council has to ask the Secretary for concurrence for every variation request – in many situations, councils can assume that the Secretary has provided concurrence).

2. Additional matters specified by the Department

In Varying Development Standards: A Guidethe Department specified additional matters that councils should be aware of when assessing and determining variations to development standards. Councils should consider:

  • the cumulative effect of similar approvals and whether they will undermine the objective of the development standard or the planning objectives for the zone; and
  • special laws in the Environmental Planning and Assessment Regulations 2000 for development applications involving existing uses – these laws cannot be varied by clause 4.6.

Councils are also required to keep records of all approved clause 4.6 variations. This record must be provided to the Department on a quarterly basis.

Internal processes in councils

A development application that requests to vary a development standard may take longer to assess than a fully-compliant development application. This is because additional internal processes will need to be followed, on top of the usual assessment of the development application. The request will often be considered by more than one council officer before it is approved.

In some instances, a council officer may not have the power (also known as the “delegation”) to approve the variation due to its size or type. Instead, a report will be prepared for a council meeting, and Councillors will make the final decision to approve or reject the variation.

Useful documents

Please see the documents below for further guidance.

You can also read more about the approach of the Land and Environment Court to clause 4.6 variations here.

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

Posted by

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.

One thought on “Clause 4.6 variations by Councils

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s