Posted on August 5, 2019 by Liam Mulligan and Stuart Simington 6

Clause 4.6 requests – further developments in the law

In an earlier post (here), we blogged about some developments in the law surrounding clause 4.6 requests. As flagged in our earlier blog, there was an apparent tension between the the approach adopted by Basten JA in Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245 (‘Al Maha‘) and that set out by Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 (‘Initial Action‘).

In two recent decisions (one in the Court of Appeal and one in the Land and Environment Court), Preston CJ further clarified the requirements for clause 4.6 requests and sought to unify the approaches in Initial Action and Al Maha.

Baron Corporation Pty Limited v Council of the City of Sydney [2019] NSWLEC 61

The proceedings involved a development application (‘DA‘) for alterations and additions to a residential flat building. Relevantly, the effect of the DA would have been to increase the number of units from 27 to 39 and increase the approved gross floor area (and floor space ratio (‘FSR‘) of the development.

The DA had the effect that the resultant building (i.e. the approved residential flat building as altered by the DA) contravened the FSR development standard in the Sydney Local Environmental Plan 2012 (‘SLEP‘). Accordingly, a request under cl 4.6(2) of the SLEP, was submitted in respect of the standard.

At first instance, Grey C refused development consent to the DA. One of the bases on which consent was refused was that the Commissioner was not satisfied that the Applicant’s 4.6 variation request had adequately addressed the matters required to be demonstrated by cl 4.6(3).

On appeal to a judge of the Land and Environment Court (Preston CJ), Baron argued that the Commissioner had misdirected herself by asking whether she was ‘directly and reasonably satisfied‘ with the reasons given in the 4.6 request. The applicant made this submission in reliance on Preston CJ’s statement in Initial Action (at [25]) that:

…the consent authority, or the Court on appeal, does not have to directly form the opinion of satisfaction regarding the matters in cl 4.6(3)(a) and (b), but only indirectly form the opinion of satisfaction that the applicant’s written request has adequately addressed the matters required to be demonstrated by cl 4.6(3)(a) and (b). 

After a detailed consideration of the issue (at [74-[81]), His Honour rejected the applicant’s argument. At [78], His Honour held:

The consent authority’s consideration of the applicant’s written request, required under cl 4.6(3), is to evaluate whether the request has demonstrated the achievement of the outcomes that are the matters in cl 4.6(3)(a) and (b). Only if the request does demonstrate the achievement of these outcomes will the request have “adequately addressed the matters required to be demonstrated” by cl 4.6(3), being the requirement in cl 4.6(4)(a)(i) about which the consent authority must be satisfied. The request cannot “adequately” address the matters required to be demonstrated by cl 4.6(3) if it does not in fact demonstrate the matters.

These remarks should be read in the context of Basten JA’s statements in Al Maha (at [21]-[23]) that:

…the matters [in cl. 4.6(4)(a)(i)] would not be “adequately” addressed unless they in fact justified the non-conformity. In other words, the Commissioner had to be satisfied that there were proper planning grounds to warrant the grant of consent, and that the contravention was justified.

The decision in Baron Corporation seemed to indicate that the approach in Al Maha is the settled position in respect of cl. 4.6 requests, despite what appeared to be contrary indications in Initial Action (extracted above).

RebelMH Neutral Bay Pty Limited v North Sydney Council [2019] NSWCA 130

Subsequent to the decision in Baron Corporation, the Court of Appeal once again considered the proper construction of clause 4.6 in RebelMH. Preston CJ sat in the Court of Appeal and delivered the Court’s reasons.

The development in question contravened the height development standard set out in the North Sydney Local Environmental Plan 2013 (‘NSLEP‘) and a clause 4.6 variation request was therefore required.

At first instance, Moore J dismissed the appeal as he was not satisfied that the request had adequately addressed the matters required to be demonstrated by cl 4.6(3) of the NSLEP. His Honour also found that the proposed development was not in the public interest because it was not consistent with objectives (b) and (f) of the height development standard. Objective (b) was to promote the retention and sharing of existing views and Objective (f) was to encourage an appropriate scale and density of development that was in accordance with the character of an area.

On appeal, the applicant argued that Moore J had misconstrued and misapplied cl 4.6 by finding that to ‘adequately address’ the matters required to be demonstrated in cl 4.6(3), the request had to actually demonstrate those matters, rather than merely seek to demonstrate those matters.

The Court rejected this argument. After setting out Preston CJ’s conclusions in Baron Corp, the Court reaffirmed (at [51]):

… in order for a consent authority to be satisfied that an applicant’s written request has “adequately addressed” the matters required to be demonstrated by cl 4.6(3), the consent authority needs to be satisfied that those matters have in fact been demonstrated. It is not sufficient for the request merely to seek to demonstrate the matters in subcl (3) (which is the process required by cl 4.6(3)), the request must in fact demonstrate the matters in subcl (3) (which is the outcome required by cl 4.6(3) and (4)(a)(i)).

Key points

As identified in our earlier blog, there was a clear tension between the remarks of Preston CJ in Initial Action and those of Basten JA in Al Maha. Initial Action had suggested that the Court (or any consent authority) need not be ‘directly satisfied‘ (but only indirectly) about the matters in cl 4.6(3)(a) and (b). Al Maha suggested that this was precisely what was required.

In our view, the decisions in Baron Corp and RebelMH make clear that the position set out in Al Maha is now the settled law on cl. 4.6 requests. A request under cl. 4.6 will only adequately address cl. 4.6(3) if the consent authority is satisfied that the matters have in fact been demonstrated.  This is, in our view, a different test and a higher standard than was required under the test in Initial Action.

If you would like to discuss any of the issues discussed in this blog, please contact Liam Mulligan on (02) 8235 9715.