The recent decision in Petersham High Pty Ltd v Inner West Council offers insights into the use and assessment of clause 4.6 variation requests.

Background

The proceedings involved a development application for the adaptive reuse of the former Salvation Army Citadel in Petersham into a co-living housing development with 18 rooms, communal spaces, and parking facilities. The site, located within an R2 Low Density Residential zone, presented challenges due to planning controls under the Inner West Local Environmental Plan 2022 (the LEP) and the State Environmental Planning Policy (Housing) 2021 (the Housing SEPP).

The Council refused the application, citing non-compliance with floor space ratio, landscaping, and room limits.

The Applicant appealed the decision to the Land and Environment Court, relying on clause 4.6 variation requests to address the non-compliances.

The Applicant’s approach to clause 4.6

As practitioners would be aware, clause 4.6 enables flexibility in planning instruments by allowing a consent authority to approve development that contravenes certain development standards. The Applicant in this case invoked clause 4.6 to address two primary non-compliances:

1. Landscaping – the landscaped area provided fell significantly short of the Marrickville Development Control Plan’s requirement of 315.2m².
2. Number of rooms – the Housing SEPP limits co-living housing in R2 zones to 12 rooms, but the proposal included 18 rooms.

For each non-compliance, the Applicant submitted written requests demonstrating how strict compliance was unreasonable or unnecessary and why the proposal was in the public interest.

The Court’s analysis

The Court carefully considered whether the Applicant satisfied the requirements of clause 4.6.

With respect to landscaping, the landscaping shortfall was addressed with a written request highlighting increased landscaping compared to the site’s previous use in-part as a car park, and provision of elevated communal open space which was able to offer comparable amenity. The Court accepted that the constraints of adaptive reuse made strict compliance impractical and that the proposed landscaping still aligned with the objectives of the relevant planning controls.

With respect to the control in the Housing SEPP on the number of rooms, the Court acknowledged that limiting the number of rooms might be appropriate for new developments but found that this rationale was less compelling for adaptive reuse projects. It was satisfied that:

1. The additional rooms contributed to the Housing SEPP’s objectives by providing affordable rental accommodation.
2. The scale and bulk of the existing building could accommodate 18 rooms without adverse impacts.

Key takeaways for Practitioners

1. Establish objectives clearly – a robust clause 4.6 request must demonstrate how the development meets the objectives of the standard being varied and the broader planning instrument objectives.
2. Address environmental planning grounds – a clause 4.6 request should provide clear, evidence-based reasons why compliance is unreasonable or unnecessary. Factors like site constraints and adaptive reuse can be compelling arguments.
3. Comprehensive evidence – high-quality plans, expert reports, and robust reasoning are essential to support variation requests.
4. Prove public interest (or not!) – while the test under clause 4.6 previously required developments to demonstrate consistency with the public interest, it has been removed from the standard clause 4.6 across NSW planning instruments. Despite this change, some judgments, including this one, require the application of the old test because of the timing of lodgment of the development application. This highlights the transitional nature of planning law and serves as an important reminder for practitioners to be mindful of evolving standards and how they can be applied differently during this period.

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You can access a copy of the judgment below.