Posted on April 13, 2021 by Anzer Khan and Sue Puckeridge

ALERT: Proposed reforms to clause 4.6

The Department of Planning, Industry and Environment (DPIE) has released a discussion paper on proposed amendments to clause 4.6 of the Standard Instrument – Principal Local Environment Plan (Standard Instrument LEP).

Clause 4.6 of the Standard Instrument LEP sets out the circumstances in which development standards applicable to specific development may be varied.

The Case for Change

The published Explanation of Intended Effect entitled Varying Development Standards: A Case for Change (EIE) specifies that the proposed amendments arise:

  • from the manner in which clause 4.6 has been interpreted and applied in practice as identified in feedback from stakeholders. This includes the view that clause 4.6 has become overly complicated and difficult to apply.
  • in response to findings raised by the Independent Commission Against Corruption (ICAC) into allegations of impropriety at the former Canterbury City Council in its Operation Dasha investigation, which includes reform to clause 4.6 as part of its corruption prevention recommendations.

Proposed Changes

Revised planning outcomes test

The revised test requires that a consent authority be directly satisfied that a written clause 4.6 request demonstrates the following essential criteria in order to vary a development standard:

  1. ‘the proposed development is consistent with the objectives of the relevant development standard and land use zone; and
  2. the contravention will result in an improved planning outcome when compared with what would have been achieved if the development standard was not contravened’.

In deciding whether the non-compliance with the development standard results in an approved planning outcome, the consent authority is to consider:

  • the public interest;
  • environmental outcomes;
  • social outcomes; and
  • economic outcomes.

Alternative test

The EIE also refers to an alternative test that may be developed to allow flexibility where variations are ‘so minor that it is difficult to demonstrate an improved planning outcome, but the proposed variation is appropriate due to the particular circumstances of the site and the proposal’.

Other changes

  • Clause 4.6(8) currently prevents variations to certain provisions including development standards relating to complying development, BASIX and clause 5.4. It also permits Councils to include additional development standards that cannot be varied in their own LEPs.  It is proposed that the Standard Instrument LEP be amended to remove the additional clauses inserted for individual LEPs as it is considered that the range and nature of these exclusions undermines the objectives of clause 4.6.  A transitional period is proposed for one year so that current exclusions continue to apply from the commencement of the new clause for this period. Exclusions relating to complying developments or development standards containing BASIX requirements will remain.
  • Requirement for consent authorities to publish reasons for granting or refusing a clause 4.6 variation request on the NSW Planning Portal. This reporting requirement is considered to remove the need for concurrence of the Planning Secretary under clause 4.6(4)(b); and
  • Increased auditing of clause 4.6 determinations by DPIE in order to strengthen accountability and transparency within the planning system.

It is proposed that a range of guidance materials will be available to support the new clause 4.6 rollout which will outline the changes, tests and application of the revised clause to various development types and contexts.

Consultation

Feedback on the proposed amendments to clause 4.6 and the type of guidance material that would be required is being sought. A number of discussion questions have been set out in the EIE. Submissions close 12 May 2021.

To view the EIE and make a submission on the proposed change to clause 4.6 of the Standard Instrument LEP, click here.

The Ministerial Media Release can be viewed here.

If you have any questions about this article, please contact Anzer Khan or Sue Puckeridge.