Clause 4.6 variations – Mandile v Sutherland Shire Council

Despite a wide range of issues in contention, the Land and Environment dismissed the entire case based on an inadequate 4.6 variation request.

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.

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.

Mr Mandile’s development application and appeal

Mr Mandile sought permission to install an inclinator on his property. Mr Mandile wanted to address access problems with the site, by installing an inclinator from the existing car parking area at the top of the property, down to a boat shed and private open space at the waterfront. The existing access was by way of steps and steep paths.

The 4.6 variation request issue

Sutherland Shire Council raised four contentions, including that the proposal failed to comply with the minimum 40% landscape area development standard in the Sutherland Shire LEP.

As part of the appeal, Mr Mandile included a written request to vary the development standard under clause 4.6 of the Sutherland Shire LEP.

The Land and Environment Court emphasised that it does not have the power to grant an appeal if the 4.6 variation request is inadequate. Accordingy, the Land and Environment Court said that if the 4.6 variation request was not upheld, the entire appeal must be dismissed.

Observations from the Court

The Land and Environment Court found that the written request was inadequate, and did not provide sufficient planning grounds to justify a variation. In particular, the Land and Environment Court found that the request:

  • reproduced the objectives of the development standard, but did not address the question of consistency with the standard;
  • did not raise the zone objectives;
  • asked for consideration of the Disability Discrimination Act 1992, without explaining how it was applicable; and
  • was not factually accurate in regards to the removal of trees on the site.

Useful sources

Click here to read about how the Land and Environment Court approaches clause 4.6 variation requests.

Click here to read about how local councils approach clause 4.6 variation requests.

If you would like to discuss whether your 4.6 variation request addresses all legal requirements, 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.