In the news – Clause 4.6 variations

Following an inquiry into the former Canterbury City Council, ICAC has made some interesting recommendations in relation to the use of clause 4.6 variation requests.

In particular, it has recommended:

1. “Assumed concurrence” of the Secretary – that the Department of Planning, Industry and Environment (DPIE) reviews the concept of “assumed concurrence” with respect to clause 4.6 variations.


2. Parameters around “assumed concurrence” – that DPIE identifies the circumstances and establishes criteria to determine when the secretary’s “assumed concurrence” will be granted and when it will be withdrawn.


3. New guidelines – that DPIE prepares and, following a period of public consultation, makes public new guidelines on varying development standards for councils that consider the criteria for assessing variations to development standards that are applicable to clause 4.6.


4. New processes to incorporate reviews and updates – that the DPIE establishes a clear process to ensure that guidelines for councils on varying development standards are subject to regular review and can accommodate advice or changes arising from decisions of the NSW courts.


5. Framework for risk-based audits – that the DPIE prepares and publicises guidelines that establish a framework for conducting risk-based audits on the use of clause 4.6 by consent authorities.


6. Advice to councils regarding risks – that the DPIE provides advice to councils regarding the inclusion of clause 4.6 in the cycle of audits conducted by the audit and risk committees of councils.

Read more about the investigation and recommendations on the ICAC website 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.