On 14 August 2018, Preston CJ of the Land and Environment Court of NSW handed down judgment in the matter of Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (Initial Action). The Judgment provides an update on the approach to be taken by Consent Authorities considering requests for variation made under clause 4.6 of a Local Environmental Plan derived from clause 4.6 of the Standard Instrument (Local Environmental Plans) Order 2006. The Judgment serves as a helpful refresher for those drafting and considering these requests.

Clause 4.6(4) establishes preconditions that a Consent Authority must be satisfied of before it can grant a variation to a development standard:1

  1. Does the written request adequately address all of the following matters:2
    1. Compliance with the development standard is unreasonable or unnecessary in the circumstances;3 and
    2. Sufficient environmental planning grounds to justify contravening the development standard;4 and
    3. The proposed development will be in the public interest because it is consistent with the objectives of the development standard and the zone;
  2. Has the concurrence of the Secretary has been obtained?

This is summarised in the flow chart below.

Compliance being unreasonable or unnecessary

The position that compliance with the development standard is unreasonable or unnecessary may be demonstrated in one or more of the following ways:5

  • The objectives of the development standard are achieved notwithstanding non-compliance with the standard
  • the underlying objective or purpose is not relevant to the development
  • The underlying objective or purpose would be thwarted if compliance with the standard was required
  • The development standard has been virtually abandoned or destroyed by the Council’s decisions in granting development consents that depart from the standard
  • The Zoning of the land is unreasonable or inappropriate (though this limb is limited)
  • Some other way.

Sufficient environmental planning grounds

In demonstrating that there are sufficient environmental planning grounds to justify contravening the development standard, the grounds must be:6

  • “environmental planning grounds” by their nature7, being grounds that relate to the subject matter, scope and purpose of the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act)(including section 1.3 of the EPA Act);8 and
  • Be “sufficient” in that they are adequate to:
    • Justify contravening the development standard, not simply promote the benefits of the development. The focus should be the element of the development that contravenes the development standard, not on the development as a whole.
    • Demonstrate that there are sufficient environmental planning grounds to justify contravention so that the Council can be satisfied that the written request has adequately addressed the matter.

Is the proposed development in the public interest?

Unlike the previous two limbs, this is a matter that the Consent Authority must be satisfied of. It is not sufficient for the Consent Authority to be satisfied that the written request has adequately addressed the question. The Consent Authority must be satisfied that the proposed development will be in the public interest because it is consistent9 with the objectives of:10

  1. the particular development standard;
  2. the zone in which the development is proposed to be carried out.

Has the concurrence of the Secretary has been obtained?

The Secretary for Planning, under clause 64 of the Environmental Planning and Assessment Regulation 2000 (NSW), has given written notice to consent authority that the Secretary’s concurrence is to be assumed for exceptions to development standards requested under clause 4.6 (except for those excluded by Planning Circular PS 18-003 issued 21 February 2018). Concurrence can also be assumed by local or regional planning panels determining requests for departure from a development standard, unless excluded (Planning Circular PS 18-003).

Conclusion

Clause 4.6 written requests must be made with sufficient detail. Consent authorities will not simply accept requests if they fail to address the requisite tests set out in Initial Action. Failure by proponents to satisfy the above tests will lead to either the development application being deferred or refused. Accordingly, proper care and skill must be exercised when drafting these written requests.