Clause 4.6 Variations – MS Windsor St v Hawkesbury City Council

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 (with emphasis added):

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.

The Applicant’s development application and appeal

MS Windsor St Pty Ltd (the Applicant) appealed against the deemed refusal of their development application by Hawkesbury City Council (the Council). The application sought consent for the demolition of the existing retail units and construction of a three-storey shop top housing development at 197 Windsor Street, Richmond.

The 4.6 variation request issue

The proposal was in breach of the maximum height standard.

At the hearing, the Council maintaned that the development application should be refusal by the Court for several reasons, including that the proposal exceeded the maximum building height standard and in the absence of a written request to vary the standard, the Court does not have the power to grant consent to the development (in this regard, see the statements which are emphasised above under The law which state that development consent must not be granted in circumstances where there is no written request).

The Applicant’s position was that the exceedance was capable of being resolved by the imposition of a deferred condition of consent as follows:

Height condition – The northern building shall have an RL of 31.85 at the top of the lift, to be achieved by reducing the first and second floor levels by 130mm. Such amended plans shall be provided to Council in satisfaction of this condition.

Observations from the Court

The Court determined that the development application for which consent was sought was required to not exceed the maximum development standard. If it did, then it must be supported by a written request seeking to vary the height development standard pursuant to clause 4.6 of LEP for the Court to have the power to grant consent. Given that the Court did not have the power to grant consent , it meant that the issue could not be fixed by way of a deferred commencement condition. The written request was a “precondition” to the granting of consent. 

Since the Applicant did not provide a written request seeking to vary the height development standard, and since there was a breach, the Court was unable to grant consent.

For this reason alone, the appeal was dismissed.

Key take-aways

  1. A proposal that seeks to vary a development standard cannot be remedied by way of a condition of consent.
  2. If an Applicant does not wish to pursue the variation to a development standard, it is best to vary the proposal by way of amended documentation.
  3. Alternatively, if a proposal shows a variation to a development standard, a clause 4.6 variation request must accompany that proposal, even in circumstances where the Applicant does not wish to pursue that variation.

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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.