Clause 4.6 variation requests under Local Environmental Plans (LEP) are often relied upon where Development Applications (DA) contain a contravention of a local development standard. Specifically, a consent authority, or a Court acting in a consent authority’s capacity, have the power to approve a DA that would contravene a development standard, provided that the authority or Court is satisfied, inter alia, of the two following criteria under clause 4.6(4)(a):
Firstly, pursuant to clause 4.6(3), that the applicant’s written request adequately demonstrates that compliance with the DA is unreasonable or unnecessary in the given circumstances and that there are sufficient environmental planning grounds to justify contravening the development standard.
Secondly, that 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 proposed development is proposed to be carried out.
Recently, the NSW Land and Environment Court (Court) has provided clarity regarding how consent authorities are to correctly assess clause 4.6 requests by way of the decision in Initial Action Pty Ltd v Woollahra Municipal Council  NSWLEC 118 (Initial Action).
Initial Action concerned a written request by the applicant prepared pursuant to clause 4.6 of the Woollahra Local Environment Plan 2014 (WLEP) which sought to justify a contravention of the development standard for height. The applicant’s DA proposed the development of a residential flat building that reached a maximum height of 14.25 metres, exceeding the WLEP’s 10.5 metre height limit.
The applicant’s appeal to the Court against Woollahra Council’s (Council) deemed refusal of its development application was unsuccessful. In determining to refuse the applicant’s DA, Commissioner Smithson (the Commissioner) had held that the applicant’s 4.6 request did not justify the contravention of the height development standard. Appealing against the Commissioner’s decision on a question of law pursuant to 56A of the Land and Environment Court Act 1979, the applicant successfully argued that the Commissioner had applied the wrong test with regards to clause 4.6 of the WLEP.
Setting aside the Commissioner’s decision, Preston CJ held that Commissioner Smithson had misinterpreted and misapplied clause 4.6 and ordered the proceedings be remitted to an alternative Commissioner of the Court for re-determination in accordance with the reasons for his judgment. His Honour’s judgment determined:
- Regarding the criteria in clause 4.6(4)(a)(i):
- Commissioner Smithson erred in determining that she was not satisfied that compliance with the height development standard was unreasonable or unnecessary. Rather, Preston CJ held that the relevant consent authority is merely required to be satisfied that the applicant’s written request has adequately addressed the matters described in clause 4.6(3)(a) .
- Commissioner Smithson erred in finding that clause 4.6 requires a non-compliant development to have a neutral or beneficial effect relative to a development that complies with the development standard .
- Commissioner Smithson erred in establishing that a development purporting to contravene maximum height standards of an LEP must result in a better environmental planning outcome for the site .
- In regards to the requirements of clause 4.6(4)(a)(ii) relating to the development’s consistency with the objectives of the height development standard, Commissioner Smithson misapplied the ‘public interest’ test in 5 ways (outlined in ) by way of asking the wrong question and applying the wrong test concerning the consistency of the development with the objectives of the height development standard in clause 4.3. For example, Commissioner Smithson used the wrong referent in comparing the heights of the adjoining, interwar, residential flat buildings and other buildings in the vicinity rather than the desired future character of the neighbourhood.
Preston CJ’s judgment in Initial Action highlights how important it is for consent authorities to properly assess clause 4.6 requests, to ensure the relevant matters set out in clause 4.6(3) are appropriately addressed. This is evident in four key findings:
- Firstly, the rejection of the notion that the consent authority must directly form the opinion of satisfaction pertaining to matters under clause 4.6(4)(a)(i) in favour of a less onerous threshold that requires only satisfaction that the applicant’s written request adequately addresses the matters referred to in clause 4.6(3)(a) and (b).
- Secondly, the rejection of the ‘neutral or beneficial effects’ test in relation to clause 4.6(4)(a)(i).
- Thirdly, that a clause 4.6 request need not practically result in a better environmental outcome for the site relative to a development that does not contravene development standards.
- Fourth and finally, that the ‘public interest’ test in clause 5.6(4)(a)(ii) should be interpreted with regards to, inter alia, the desired future character of the neighbourhood in conjunction with other, less onerous standards for developers to satisfy.
For applicants, Initial Action offers important guidance in relation to what matters they must address within any clause 4.6 request prepared.