Posted on October 10, 2017 by Liam Mulligan and Carlo Zoppo

Applicant misses the bus on clause 4.6 request

Written requests under clause 4.6 are many and varied and while the Land and Environment Court has provided clear guidance as to what is required to found an exception, applicants continue to test the boundaries of what a clause 4.6 request can address. This blog looks at one such example.

Clause 4.6 of the Standard LEP provides an exception to development standards and in certain circumstances permits a consent authority to grant consent where a development  standard has been breached.

In the recent decision of the Land and Environment Court’s in Katerinis v Canterbury-Bankstown Council [2017] NSWLEC 1479 the applicant sought consent for the construction of multi-dwelling housing.

The proposed buildings were to be between one and four storeys each and five of the dwellings were nominated to be dedicated as affordable housing. Accordingly, the proponent sought to rely on the Division 1 of Part 2 of State Environmental Planning Policy (Affordable Rental Housing) 2009 (ARH SEPP) and the generous concessions found within the SEPP. Without the concessions the proposed development significantly departed from the applicable standard for floor space ratio (“FSR”).

However, cl. 10(2) of the ARH SEPP provides that Division 1 of Part 2 applies only to development within an “accessible location” (as defined in cl. 4). The parties agreed that the development site was not an accessible area, as there was no railway or light rail station within the required distance of the site, and bus services did not operate during the hours required by the ARH SEPP.

The question then arose whether cl. 10(2) was properly considered a “development standard”, such that it was amenable to variation pursuant to cl 4.6 of the Canterbury Local Environment Plan 2012 (CLEP).

Is cl. 10(2) of the ARH SEPP a development standard? 

A “development standard”, as defined in s 4 of the Environmental Planning and Assessment Act 1979 (EPA Act), is a provision of an environmental planning instrument (or a regulation) which relates to the carrying out of development and which specifies requirements or standards in respect of any aspect of that development.

The proponent argued that cl. 10(2) of the ARH SEPP was a development standard, relying on the “two-step” approach set out by Giles JA in Strathfield Municipal Council v Poynting (2001) 116 LGERA 319, being:

  1. does the clause prohibit the proposed development in any circumstance;  and
  2. does the clause specify a requirement or fix a standard in relation to an aspect of the proposed development.

The applicant submitted that cl. 10(2) – which does not prohibit the development – fixed a requirement (in terms of accessibility) which constituted a development standard, and which was therefore capable of being varied under cl. 4.6 of the CLEP.

Council argued that clause 10(2) does not in fact contain provisions related to carrying out development, but rather specifies the circumstances in which Part 2 of Division 1 applies to development. Read in this way, the clause simply states that unless certain criteria are met, the Division is not “switched on” and its beneficial provisions do not apply to the development.

Commissioner Gray accepted Council’s submissions that cl. 10(2) is not a development standard but instead is properly considered ‘a pre-condition to the application of Part 2 Division 1 of the ARH SEPP’ (see paragraph 33 and following).

Having accepted that position, the Court found that it was erroneous to apply the “two step” approach put forward by the proponent. However, the Court found that, even if the “two step” approach were appropriate, cl. 10(2) failed the second stage of the test, as it does not meet the definition of ‘development standard’ in the EPA Act.

The use of the ARH SEPP, and its beneficial provisions, is increasingly common in relation to in-fill development, secondary dwellings and boarding houses. The Court’s decision in this matter addresses one of the more interesting arguments raised regarding the operation of ARH SEPP and clause 4.6 requests.

Click here for the judgement

Should you wish to discuss the case, please contact Carlo Zoppo Partner on 8235 9705 or by email, at carlo.zoppo@lindsaytaylorlawyers.com.au