Posted on September 18, 2023 by Katie Mortimer and James King 19

ALERT: Reforms to Clause 4.6 Exceptions to Development Standards – commencing 1 November 2023

On 15 September 2023, the NSW Government published a package of amendments that will change the operation of clause 4.6 across all local environmental plans. The changes will commence on 1 November 2023 and follow consultation in 2021 by the Department of Planning and Environment (DPE) on a revised clause 4.6 test.

Changes to Clause 4.6 

The principal change is best understood set out in full. From 1 November 2023, clause 4.6(3) – (5) and (7) of the Standard Instrument—Principal Local Environmental Plan will be omitted. These clauses presently provide:

(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

(b)  the concurrence of the Planning Secretary has been obtained.

(5)  In deciding whether to grant concurrence, the Planning Secretary must consider—

(a)  whether contravention of the development standard raises any matter of significance for State or regional environmental planning, and

(b)  the public benefit of maintaining the development standard, and

(c)  any other matters required to be taken into consideration by the Planning Secretary before granting concurrence.

…

(7)  After determining a development application made pursuant to this clause, the consent authority must keep a record of its assessment of the factors required to be addressed in the applicant’s written request referred to in subclause (3).

Inserted instead will be:

(3)  Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

(a)  compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and

(b)  there are sufficient environmental planning grounds to justify the contravention of the development standard.

(4)  The consent authority must keep a record of its assessment carried out under subclause (3). 

Key Changes 

Removal of Two Thirds of the Present Clause 4.6 Test 

As is clear from the extracts above, the amendments remove 2 of the 3 hurdles that presently exist in order for development that contravenes a development standard to be approved:

1. A consent authority need not be satisfied that a 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
2. The concurrence of the Planning Secretary is not required.

The Public Interest

DPE’s announcement material states that ‘The existing test that applicants must meet in order to seek to vary development standards will not change’. DPE state that the removal of specific references to the public interest in clause 4.6, simplify the drafting, noting that consent authorities are already obliged to consider the public interest.

However, it has been established in respect of the current ‘public interest requirement’ in clause 4.6, that:

‘The matter in cl 4.6(4)(a)(ii), with which the consent authority or the Court on appeal must be satisfied, is not merely that the proposed development will be in the public interest but that it will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development of the zone in which the development is proposed to be carried out. It is the proposed development’s consistency with the objectives of the development standard and the objectives of the zone that make the proposed development in the public interest.’

see: Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118

An argument under section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979 that approval of a development is in the public interest is not so confined and can take into account wider considerations.

The Planning Secretary’s Concurrence 

Rather than a requirement to obtain the Planning Secretary’s concurrence prior to determination, the amendments only require notification to the Planning Secretary as soon as practicable after determination. In practice this change may have little effect given that most variations are currently dealt with via ‘assumed concurrence’ of the Planning Secretary.

Requirements for Written Documents 

Clause 4.6(3) presently requires the consent authority to consider a written request seeking to justify a contravention of a development standard.

The amendments will move this requirement for a written statement to the Environmental Planning and Assessment Regulation 2021 (EPA Reg). New clause 35B will be inserted to the EPA Reg stating:

(1) This section applies to a development application that proposes, in accordance with a relevant EPI provision, development that contravenes a development standard imposed by any environmental planning instrument.
(2) The development application must be accompanied by a document that sets out the grounds on which the applicant seeks to demonstrate that—
(a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and
(b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

Whilst this seems to be a mere re-location of the requirement for a written document, given the Court of Appeal’s recent comments that requirements of environmental planning instruments are only to be taken into consideration and should not be applied as binding statute (see our posts here and here), the change gives more force to the need for clause 4.6 requests to accompany all DAs proposing a contravention of a development standard. Time will tell how this change is interpreted in future challenges to development consents.

Consistency Across all LEPs 

To ensure a consistent approach across all planning instruments that provide for clause 4.6 exceptions, a State Environmental Planning Policy Amendment is making changes to:

• the various non-standard Local Environmental Plans which commenced prior to the commencement of the Standard Instrument in March 2006 and have not been repealed,
• the Precinct State Environmental Planning Policies (introduced in 2021),
• the provisions in relation to Western Sydney Employment Area under the State Environmental Planning Policy (Industry and Employment) 2021, and
• the provisions in relation to the three ports (Port Botany, Port Kembla and Port of Newcastle) under the State Environmental Planning Policy (Transport and Infrastructure) 2021.

Savings Provisions 

The changes commence on 1 November 2023.

The SEPP Amendment and amendment to the EPA Reg include savings provisions providing that development applications made on or before 1 November 2023 are to be determined as if changes had not commenced. Clause 8 of the Standard Instrument (Local Environmental Plans) Order 2006 will have the same effect for the Standard Instrument LEP.

You can read the package of amendments here:

• Environmental Planning and Assessment Amendment (Exceptions to Development Standards) Regulation 2023
• Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023
• State Environmental Planning Policy Amendment (Exceptions to Development Standards) 2023

In addition, DPE has also released an updated section 9.1 Ministerial Direction: Exclusion of Development Standards from Variation & a guideline document: Guide to exclusions from clause 4.6 of the Standard Instrument for standards that are excluded from the application of clause 4.6.

Our earlier blog on DPE’s proposed reforms to clause 4.6 is available here.

If you wish to discuss this post please contact Katie Mortimer on 8235 9716 or James King on 8235 9722.