12 October 2023
Amongst the various mechanisms in environmental planning instruments used to increase development yield, clause 4.6 is probably the most well-known. In fact, the most cited Land and Environment Court case in 2022 on Austlii was Wehbe v Pittwater Council (2007) 156 LGERA 446 (Wehbe), which summarised the common ways in which an applicant might demonstrate that compliance with a development standard is 'unreasonable or unnecessary’.
From 1 November 2023, development applications seeking an exception to a development standard will need to address an amended clause 4.6 of the Standard Instrument – Principal Local Environmental Plan (Standard Instrument), together with associated amendments to the Environmental Planning and Assessment Regulation 2021 (EPA Regulation 2021).
For the most part, the amendments are not too different from the existing requirements. However, as the abundant caselaw on clause 4.6 requests has shown, the devil is always in the detail and both the development industry and government should keep a close watch on how these minor changes are addressed going forward.
Minor changes to clause 4.6(3) will expressly require the consent authority to be ‘satisfied that the applicant has demonstrated’ that compliance with the standard is unreasonable or unnecessary and that there are sufficient environmental planning grounds to justify contravention of the development standard.
The current drafting of clause 4.6(3) only requires the consent authority to ‘consider’ a written request that seeks to justify the contravention by demonstrating these matters.
This update reflects the way caselaw has evolved on the interpretation of clause 4.6(3). For example, in RebelMH Neutral Bay Pty Limited v North Sydney Council  NSWCA 130 Justice Preston (sitting in the Court of Appeal) held at :
“…in order for a consent authority to be satisfied that an applicant’s written request has adequately addressed” the matters required to be demonstrated by cl 4.6(3), the consent authority needs to be satisfied that those matters have in fact been demonstrated. It is not sufficient for the request merely to seek to demonstrate the matters in subcl (3) …”
Under what will be the new clause 4.6(4) of the Standard Instrument, a consent authority will need to keep a record of every assessment of a clause 4.6 request that it carries out. This is a logical flow on from the ‘satisfaction’ requirement, and an element of good decision-making in any case.
New section 35B of the EPA Regulation 2021 will require that a DA is accompanied by a ‘document’ setting out the grounds on which the applicant seeks to demonstrate the matters in clause 4.6(3). The requirement for a written request was previously in clause 4.6 itself.
Included in the suite of changes is the repeal of the requirement in clause 4.6(4)(b) for the proposed development to be in the public interest because it is consistent with:
(the Public Interest Test).
This change will be of particular interest to applicants for development consent who will no longer have to grapple with the Public Interest Test in the way that it has been set out to date.
While the Public Interest Test has been removed, the objectives of a development standard may still be relevant to a clause 4.6 variation request.
This is particularly the case where an applicant seeks to show that compliance with a development standard is ‘unreasonable or unnecessary’ because the objectives of the development standard are achieved despite the non-compliance (which is ground 1 from Wehbe).
The advantage of the clause 4.6 amendment to these applicants will be in instances where the proposed development is not consistent with the objectives of the zone.
With the Public Interest Test removed from clause 4.6, we may see an increase in requests where the development is neither consistent with the zone objectives, nor achieves the objectives of the development standard.
As a result, we may see a greater exploration of grounds 2 - 5 of Wehbe (and perhaps new grounds not previously contemplated), being ways in which an applicant might demonstrate that compliance with a development standard is unreasonable or unnecessary without consistency with the objectives of the development standard.
The consent authority will still be required to ‘have regard’ to the zone objectives under clause 2.3(2) of the Standard Instrument, and the public interest generally under section 4.15(1)(e) of the EPA Act.
The concurrence of the Planning Secretary under clause 4.6(4)(b) will no longer be required. While relevant to the content of clause 4.6 variation requests, this change is unlikely to be a substantive change for most applications as this requirement currently has little work to do as concurrence can be assumed in most circumstances by virtue of Planning Circular PS 20-002.
The EPA Regulation 2021 will also include a new section 90A which will require councils to notify the Planning Secretary via the NSW planning portal of a council’s or planning panel’s reasons for approving or refusing the contravention of a development standard.
This will create a State-wide repository of assessments which may prove instructive for future policy reform seeking to ensure consistency across NSW local government areas.
The changes will apply to equivalent provisions in non-standard local environmental plans (LEP) and state environmental planning policies (SEPP).
The amendments are made by:
The Department exhibited an Explanation of Intended Effect (EIE) dated March 2021 from 31 March 2021 to 12 May 2021 seeking feedback on proposed amendments to the clause 4.6 framework.
While the final amendments do incorporate a number of changes proposed in the EIE, some of the more drastic amendments previously proposed have not been adopted.
For example, the Department has not adopted amendments proposed in the EIE that would have:
While a Council’s power to exclude development standards from the operation of clause 4.6 has not been removed, additional guidance has been provided by the Ministerial Direction Exclusion of Development Standards from Variation dated 6 September 2023 which will commence alongside the clause 4.6 amendments on 1 November 2023.
The direction will apply when a planning proposal authority proposes to exclude a development standard from the operation of clause 4.6 of the Standard Instrument (or an equivalent provision in any other EPI).
Any such planning proposal will need to ensure the exclusion is consistent with the criteria in Part 2 of the Guide to exclusions from clause 4.6 of the Standard Instrument dated November 2023.
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