Posted on May 25, 2016 by Stuart Simington

Clause 4.6 Objections – Update on the Four2Five Decision

My earlier post in July 2015 (see below) about the Land and Environment Court’s decision in Four2Five has been one of our most read posts.  It is timely to provide an update on what has happened since.

Firstly, on 20 August 2015, the NSW Court of Appeal handed down its decision on appeal from the Land and Environment Court’s decision: Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248. The case upheld Commissioner Pearson’s original decision in regard to clause 4.6 but it interpreted the approach taken by the Commissioner differently to Pain J. In doing so, the decision largely confines Commissioner Pearson’s decision to the particular facts of that case and the particular exercise of discretion by the Commissioner.

More recently, a Commissioner of the Land and Environment Court applied the Court of Appeal’s approach in Moskovitch v Waverley Council [2016] NSWLEC 1015 apparently confirming a greater flexibility.

Court of Appeal decision in FourtoFive

Firstly, Leeming JA did not agree that the Commissioner’s decision in Four2Five proceeds on the basis that establishing that compliance with a standard is ‘unreasonable or unnecessary‘ in clause 4.6(3)(a) must necessarily exclude consideration of consistency with the objectives of the development standard and the objectives for development in the zone.  Rather, Leeming JA considered that Commissioner Pearson’s decision was that ‘consistency with objectives remained relevant, but not exclusively so‘ at [16].

Secondly, while Leeming JA found no error in the approach taken by the Commissioner in relation to her dissatisfaction with the environmental planning grounds relied upon, that was a matter for the Commissioner on the facts of the particular case and not a general principle. Leeming JA said at [16]:

It is sufficient to state that no error, and certainly no error of law, is disclosed…It is clear that the Commissioner approached the question of power posed by subclause[4.6] (3)(b) on the basis that merely pointing to the benefits from additional housing and employment opportunities delivered by the development was not sufficient to constitute environmental planning grounds to justify contravening the development standards in this case …

Moskovitch

In Moskovitch, Commisioner Tuor applied the Court of Appeal’s decision.

The parties, and it appears the Commissioner, agreed that the question of “sufficient environmental planning grounds” (cl 4.6(3)(b)) was one of fact and that there were no specific limitations on the Court exercising its discretion as to the satisfaction as to that matter under subclause (4)(a)(i), subject to the usual constraints on the exercise of administrative power.

Furthermore, it was agreed that consistency with the objectives of the standard remained relevant to the question of whether compliance with the development standard was unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a)), but not exclusively so.

The Applicant’s cl 4.6 request, which the Commissioner upheld, sought to vary the FSR development standard on grounds that:

• compliance with the development standard was unreasonable or unnecessary in the circumstances of the case as required by cl 4.6(3)(a) because the relevant objectives of the standard were met by the proposal and would not be achieved or would be thwarted by a complying development;
• there were sufficient environmental planning grounds for the variance because of the lack of environmental impact of the development and the environmental benefits of the replacement of two residential flat buildings with poor amenity.

Conclusions

It seems that establishing a clause 4.6 objection does still involve an additional hurdle for an Applicant to convince the consent authority in relation to the sufficiency of the environmental planning grounds.  However, consistency with objectives remains relevant to the question posed by cl4.6(3)(a).

The approach taken by Commissioner Pearson in Four2Five seems to be just one approach on the particular facts in that case.  There was no error in that approach but other Commissioners and consent authorities alike have a broad discretion as to the approach they take.

You can read my earlier post here.