Australia: Preparing clause 4.6 requests to vary development standards in NSW: A guide for applicants

Last Updated: 1 December 2018
Article by Breellen Warry, Georgia Appleby and Blake Dyer

Most Read Contributor in Australia, December 2018

The NSW Land and Environment Court (Court) has recently rejected numerous appeals on the basis that the written requests to vary development standards did not meet the necessary requirements outlined in clause 4.6(3) of the Standard Instrument – Principal Local Environmental Plan (Standard Instrument). The Court has also highlighted the correct approach for consent authorities when dealing with a written request under clause 4.6 of the Standard Instrument.1

These recent decisions show that the consequences of failing to address the prescribed elements of clause 4.6(3) of the Standard Instrument can be fatal to a development application and, consequently, quite costly for applicants.

This guide aims to assist applicants by outlining the correct approach to preparing a clause 4.6 written request (4.6 Request) to vary a development standard so that the consent authority is able to determine your application.

Clause 4.6 – a recap

As many would be aware, clause 4.6 of the Standard Instrument provides that:

  1. 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
    • (b) that there are sufficient environmental planning grounds to justify contravening the development standard.
  1. 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)
      • (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
    • (b) the concurrence of the Secretary has been obtained.

As the Court has recently noted in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, the consent authority must first consider whether a 4.6 Request has adequately addressed the matters required to be addressed in clause 4.6(3) of the Standard Instrument. If the consent authority is not satisfied that these matters have not been adequately addressed, the consent authority simply does not have the power to grant consent. It is, therefore, essential that all 4.6 Requests clearly address each of the required elements of clause 4.6(3).

How should a 4.6 Request be structured?

Fortunately, Senior Commissioner Dixon has provided applicants with clear guidance regarding how a 4.6 Request should be structured.

In Brigham,2 the Senior Commissioner emphasised that a 4.6 Request should have the following features:

  • it should address each element of clause 4.6(3) in the order that it is read. This checklist approach helps to avoid legal error and ensure that all relevant subclauses are referred to in the written document
  • it must make specific reference to the particular subclause being addressed, rather than using a general topic heading
  • it should not paraphrase but rather, use the precise wording from the relevant clause when addressing particular considerations in respect of the development
  • it should be direct and to the point. The request should not include discussions of irrelevant matters such as the historical case law or comments by a commissioner or judge.

What should a 4.6 Request contain?

Many 4.6 Requests fall down because they do not contain the necessary information required under clause 4.6(3) of the Standard Instrument. It is, therefore, essential to review your 4.6 Request to ensure that it contains the following information:

  • it must identify the development standard that the applicant seeks to vary
  • as required by clause 4.6(3)(a), it must demonstrate that compliance with the development standard is unreasonable or unnecessary in the circumstances. This can be done by outlining how the 4.6 Request falls within one of the justifications raised in Wehbe,3including:
    • the objectives of the development standard are achieved notwithstanding non-compliance with the standard
    • the underlying objective or purpose of the standard is not relevant to the development
    • the underlying objective or purpose would be defeated or thwarted if compliance was required
    • the standard has been virtually abandoned or destroyed by the Council's own actions in granting consents departing from the standard and/or
    • the zoning of land was unreasonable or inappropriate, such that the standards for that zoning are also unreasonable or unnecessary.
  • As required by clause 4.6(3)(b), it must demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard. When addressing this, applicants should:
    • identify the aspect or feature of the development that contravenes the relevant development standard, rather than discussing the development generally
    • justify why the contravention of the development standard is acceptable, rather than simply promoting the benefits of carrying out the development as a whole4
    • explain on what basis there are sufficient environmental planning grounds to justify contravening the development standard. This explanation must be detailed enough so as to enable the consent authority to be satisfied that the written request has adequately addressed the matters outlined in cl 4.6(3).5
  • A prudent applicant will also include a discussion of how the proposed development is in the public interest. In demonstrating this, it is not enough to say that the proposed development will be in the public interest generally. Rather, the 4.6 Request needs to show that the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the relevant zone.6

The overall goal

When preparing a 4.6 Request, it is critical to remember that the onus is on the applicant to demonstrate that the matters in clause 4.6(3)(a) and (b) have been adequately addressed. This is because the 4.6 Request must enable the consent authority (or the Court on appeal), to satisfy themselves that the 4.6 Request is adequate.7 If they cannot do this, they simply do not have the authority to grant consent to the proposed development.

With this role in mind, it is highly recommended that any applicant strictly and expressly address those matters specified in clause 4.6(3) (as summarised above) and also, where possible, address why the development is in the public interest. This will go a long way to assisting a decision maker to satisfy themselves of that there are sufficient grounds to justify contravening the standard.

Given the strict manner in which the Court is interpreting these requirements, it is highly advisable that an applicant seek legal advice prior to submitting a 4.6 Request to vary a development standard.

Footnotes

1Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118.

2 Brigham v Canterbury–Bankstown Council [2018] NSWLEC 1406.

3 Wehbe v Pittwater Council [2007] NSWLEC 827 (Wehbe) at [42] – [48].

4 Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 at [15].

6 Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 at [31].

7 Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 at [25].

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

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