Posted on July 24, 2015 by Stuart Simington

Is an Objection Under Clause 4.6 More Onerous to Establish Than Under SEPP1?

In two respects, the answer is generally ‘yes’.  A recent case in the Land and Environment Court also shows that Applicants need to carefully frame their objections to ensure they comply with the particular requirements of clause 4.6 which differ in important respects from those under SEPP 1.

Under SEPP 1 (which only applies in areas which have not adopted standard instrument LEPs), it is sufficient in order to establish that the application of a development standard is unreasonable or unnecessary in the circumstances of the case to show that the development achieves the objectives of the development standard: Wehbe v Pittwater Council [2007] NSWLEC 827 at [42].

There are, however, demonstrated in the caselaw, other ways that that requirement can be satisfied as follows:

• the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary
• the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable
• the development standard has been virtually abandoned or destroyed by the Council’s own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary and unreasonable
• the zoning of particular land is unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to that land and that “compliance with the standard in that case would also be unreasonable or unnecessary.

The decision in Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 indicates, however, that merely showing that the development achieves the objectives of the development standard will be insufficient to justify that a development is unreasonable or unnecessary in the circumstances of the case for the purposes of an objection under Clause 4.6, (and 4.6(3)(a) in particular).

Further,  the requirement in cl4.6(3)(b) to justify that there are sufficient environmental planning grounds for the variation, may well require identification of grounds particular to the circumstances of the proposed development – as opposed merely to grounds that would apply to any similar development on the  site or in the vicinity.

Clause 4.6   Exceptions to development standards

…

(3)       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, and

(b)       that there are sufficient environmental planning grounds to justify contravening the development standard.

(4)       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), and

(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, and

The decision in Four2Five is interesting because the starting point was that Commissioner Pearson was satisfied that the mixed use development proposed was, despite the breach of the relevant development standard, in the public interest within the meaning of cl4.6(4)(a)(ii) because it was consistent with the objectives of the particular standard and the objectives for development within the zone. Under SEPP 1 this would have been almost the end of the enquiry.

However, Pain J upheld Commissioner’s Pearson’s decision that the objection further needed to justify under clause 4.6(3)(a) that the development standard was unreasonable or unnecessary on grounds other than that the development achieved the objectives of the development standard.

This was because consistency with objectives of the standard and the zone in which the development was proposed to be carried out were already a separate matter that the consent authority was required to be satisfied of under cl4.6(4)(a)(ii): at [34].

If so,  the meaning of ‘unreasonable or unnecessary‘ in clause 4.6(3)(a) must necessarily have been intended to exclude that matter. As a result, the meaning of that phrase in cl 4.6 differs from its meaning in SEPP 1. In cl4.6 it is a narrower concept.

Pain J also found no error in the exercise of the Commissioner’s discretion in finding that the environmental planning grounds relied upon by the Applicant were insufficient for the purposes of justifying the objection under cl4.6(3)(b).

In that regard, the Applicant had relied upon:

• public benefits arising from the additional housing and employment opportunities that would be delivered by the development, noting (at p 5) the close proximity to Ashfield railway station, major regional road networks and the Ashfield town centre;
• access to areas of employment, educational facilities, entertainment and open space;
• provision of increased employment opportunities through the ground floor retail/business space; and
• an increase in the available housing stock.

However, Commissioner Pearson had held that these were not matters  particular to the circumstances of the proposed development – but merely  grounds that would apply to any similar development for mixed use development on the site or in the vicinity.

The Commissioner found at [60] that to accept such matters as ‘sufficient’ would not promote the proper and orderly development of land as contemplated by the controls applicable to the B4 zoned land which was an objective of the EPA Act (s5(a)(ii))and therefore assumed to be an environmental planning ground counting or weighing against the objection.

Implications

The Commissioner’s decision in Four2Five Pty Ltd (and Pain J’s endorsement the reasoning) indicates that councils and the Court on appeal have a very broad discretion in which to assess whether the environmental planning grounds for a departure from a development are sufficient and in any particular case.

It may well now be necessary for applicants to show sufficient grounds particular to the development in the objection.

It is not necessarily easy to identify what those matters are likely to be, but it would appear that applicants will need to be able to show that the breach or other specific aspects of the development outweigh the countervailing objective that controls ought generally to be observed .

So this may have the effect of considerably reducing the circumstances in which variations can be achieved. Much will depend on the attitude of other commissioners and judges. As the decision is discretionary, others may not take as restrictive an approach as did Commissioner Pearson. But by the same token, Commissioner Pearson’s approach having been endorsed in this case may well be persuasive for other Commissioners.

The other effect of the decision is that it is  necessary to show that the application of the development standard is unreasonable or unnecessary not merely because the development is  consistent with the zone objectives. Again, this puts the barrier to a successful objection higher than it is under SEPP 1.