The decision in Ku-ring-gai Council v Pathways Property Group Pty Ltd (Pathways) provides an important precedent on the application of clause 4.6 of a local environmental plan to vary development standards imposed by a State environmental planning policy.

The key conclusions of the Court establish that clause 4.6 of a local environmental plan (LEP) can, in certain circumstances, be used to vary controls in State environmental planning policies (SEPPs).

What the Court said

The Court found that:

1. Clause 4.6 of the LEP applies to SEPP standards
   Clause 4.6(2) explicitly allows variations to development standards imposed by “this or any other environmental planning instrument.” In Pathways, the Court explained that the Seniors SEPP is an environmental planning instrument, and it does not contain an express provision excluding the operation of clause 4.6.
2. The Seniors SEPP does not expressly exclude variations under clause 4.6
   While clause 15 of the Seniors SEPP stated that its provisions override other environmental planning instruments, that did not amount to an express exclusion of clause 4.6. Justice Moore determined that for a SEPP to prevent variations under clause 4.6, it would need to explicitly state that its standards cannot be varied through clause 4.6 of an LEP.
3. Existing planning law supports the application of clause 4.6 to SEPPs
   The Court referenced previous decisions, including Georgakis v North Sydney Council [2004] NSWLEC 123 and Principal Healthcare Finance Pty Ltd v Council of the City of Ryde [2016] NSWLEC 153, which confirmed that development standards set by a SEPP can be varied unless expressly excluded.
4. The clause 4.6 test still applies
   While the Court confirmed that while clause 4.6 could apply to SEPPs, it also emphasised that a development proponent must still satisfy the requirements of clause 4.6. This includes demonstrating that strict compliance with the development standard is unreasonable or unnecessary and that the variation is in the public interest.

Implications of the decision

This decision clarifies that clause 4.6 can be a useful tool to seek flexibility in complying with SEPP standards. However, the judgment also highlights that councils can prevent this by expressly excluding clause 4.6 from applying to their SEPPs. For councils, this means that if they intend for SEPP standards to be absolute, they must ensure the SEPP explicitly states that clause 4.6 cannot be used to vary them.

For applicants, this ruling provides a clear pathway for seeking variations to SEPP standards where appropriate, provided they meet the clause 4.6 test. It is a reminder that careful preparation of variation requests is essential to ensure they justify the proposed non-compliance effectively.

The Pathways case is a significant decision for planning law in NSW, reinforcing the importance of legislative clarity and the practical application of flexibility provisions in environmental planning instruments.

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You can access the full judgment below.