Posted on August 31, 2018 by Stuart Simington

Clause 4.6: Is a neutral or better outcome a requirement for success?

In an important decision, Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118, Preston CJ has further clarified the correct approach to the consideration of clause 4.6 requests including that the clause does not require that a development that contravenes a development standard must have a neutral or better environmental planning outcome than one that does not.

[Update: A more recent decision in the Court of Appeal has raised doubt, without deciding, about whether Preston J’s decision is correct: see Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 at [21]-[24]]

Clause 4.6 of a standard instrument LEP permits a consent authority to grant development consent for development that would contravene a development standard where the consent authority is satisfied that:

• cl4.6(4)(a)(i): a written request from the applicant adequately demonstrates that compliance with the development standard is unreasonable or unnecessary(cl4.6(3)(a)), and that there are sufficient environmental planning grounds to justify the contravention (cl4.6(3)(b)), and
• cl4.6(4)(a)(ii): the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development within the relevant zone.

In the subject matter, the applicant sought development consent for a residential flat building that did not comply with the applicable development standard for height under the Woollahra Local Environmental Plan 2014 (‘WLEP‘).

It made a written request under clause 4.6 of the WLEP seeking to justify the contravention. Commissioner Smithson (‘Commissioner‘) heard the appeal at first instance and found that the contravention was not justified by the request and so refused the appeal.

On appeal, the applicant contended that the Commissioner had misinterpreted and misapplied clause 4.6 of the WLEP and Preston CJ agreed.

As held in Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7 at [39], Preston CJ confirmed (at [25]) that the test in 4.6(4)(a)(i) does not require the consent authority to directly form the opinion of satisfaction regarding the matters specified. Rather, it needs to do so only indirectly in forming its opinion of satisfaction that the applicant’s written request has adequately addressed the matters required to be demonstrated.

By contrast, the test in cl4.6(4)(a)(ii) requires that the consent authority must be directly satisfied about the matter in that clause (at [26]); namely that the development 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 (at [27]).

The applicant’s written request 

In this case, Preston CJ held that the Commissioner addressed cl4.6(4)(a)(i) incorrectly in two respects:

1. the Commissioner directly determined the matters referred to in cl 4.6(4)(a)(i), namely that she herself considered that compliance with the height development standard was unreasonable or unnecessary, rather than her determining whether the Applicant’s written request had adequately addressed that matter.
2. the Commissioner required that in order that compliance with the height development standard be considered unreasonable or unnecessary, the non-compliance with the  standard needed to have a neutral or beneficial effect relative to a development that complied with that standard (in this case, no view loss or less view loss). His Honour said at [87]:

‘Clause 4.6 does not directly or indirectly establish a test that the non-compliant development should have a neutral or beneficial effect relative to a compliant development. This test is also inconsistent with objective (d) of the height development standard in cl 4.3(1) of minimising the impacts of new development on adjoining or nearby properties from disruption of views or visual intrusion. Compliance with the height development standard might be unreasonable or unnecessary if the non-compliant development achieves this objective of minimising view loss or visual intrusion. It is not necessary, contrary to what the Commissioner held, that the non-compliant development have no view loss or less view loss than a compliant development.’

Preston CJ further held that the Commissioner misdirected herself as to whether there were ‘sufficient environmental planning grounds to justify the contravention‘ by requiring that the development which contravened the height development standard result in a ‘better environmental planning outcome for the site‘ relative to a development that complied with the height development standard. Preston CJ said at [88]:

‘Clause 4.6 does not directly or indirectly establish this test. The requirement …is that there are sufficient environmental planning grounds to justify contravening the development standard, not that the development that contravenes the development standard have a better environmental planning outcome than a development that complies with the development standard.’

The public interest

Preston CJ further found (at [94]) that the Commissioner had incorrectly applied the test in cl4.6(4)(a)(ii) concerning the consistency of the development with the objectives of the height development standard in five ways:

1. In considering the consistency of the development with objective (a) of the height development standard, the Commissioner used the wrong referent (the heights of the adjoining, interwar, residential flat buildings and other buildings in the vicinity rather than the desired future character of the neighbourhood) and the wrong test for comparison (whether the height of the development exceeds the height of the adjoining residential flat buildings or other buildings in the vicinity rather than whether the height of the development was consistent with the desired future character of the neighbourhood).
2. In considering the consistency with objective (b) of the height development standard, the Commissioner made a simple factual comparison of the height of the development (exceeding 14m), the maximum height in the R3 zone (10.5m) and the maximum height in the adjoining R2 zone (9.5m), without addressing the question, which cl 4.6(4)(a)(ii) required to be addressed, of whether the height of the development was consistent with objective (b) of establishing a transition in scale to protect local amenity.
3. In holding incorrectly that the lack of adverse amenity impacts on adjoining properties is not a sufficient ground justifying the development contravening the development standard, when one way of demonstrating consistency with the objectives of a development standard was to show a lack of adverse amenity impacts (see Randwick City Council v Micaul Holdings Pty Ltd at [34]).
4. In asking the wrong question by discerning whether the non-compliant development generated a benefit to the neighbouring properties relative to a lower, height compliant development, which was inconsistent with cl 4.6(4)(a)(ii) and the objectives of the height development standard.
5. In considering the consistency of the development with objective (d) of the height development standard, the Commissioner held that it was not sufficient that the development minimised the impacts on adjoining or nearby properties because impacts still arose, which was inconsistent with objective (d) of the height development standard that development should [merely] minimise impacts on adjoining or nearby properties.

Implications 

This decision demonstrates the importance of a proper analysis of the basis for a clause 4.6 request as well as the actual form of the request being ‘adequate’ to address the relevant cl4.6(3) matters.  The case confirms that a request that is otherwise meritorious may fail at the first hurdle because it is not well drafted.

Equally, the decision is important in so far as it rejects the notion that a request must necessarily result in a neutral or better outcome in comparison to a compliant development in relation to the development standard at issue.

Some previous blogs about clause 4.6 can be read here and here.