Clause 4.6 Reforms

On 15 September 2023, the following three legislative instruments were made to effect substantive reforms to the system of varying development standards in New South Wales:

1. Standard Instrument (Local Environmental Plans) Amendment (Exceptions to Development Standards) Order 2023 (“the Amending Order”);
2. Environmental Planning and Assessment Amendment (Exceptions to Development Standards) Regulation 2023 (“the Amending Regulation”); and
3. State Environmental Planning Policy Amendment (Exceptions to Development Standards) 2023 (“the Amending SEPP”).

The previous version of clause 4.6 of the Standard Instrument contained a cumbersome but familiar process for establishing the power to grant development consent to a development proposing the variation of a development standard in a LEP or SEPP. Under this test, the consent authority was required to be satisfied as to the following matters:

1. That the written request adequately demonstrates that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (cl 4.6(3)(a) and cl 4.6(4)(a)(i));
2. That the written request adequately demonstrates that there are sufficient “environmental planning grounds” to justify contravening the development standard (cl 4.6(3)(b) and cl 4.6(4)(a)(i));
3. That the proposed development is in the public interest because it is consistent with the objectives of the standard in question (cl 4.6(4)(a)(ii));
4. That the proposed development is in the public interest because it is consistent with the objectives of the zone (cl 4.6(4)(a)(ii)); and
5. That the concurrence of the Planning Secretary has been obtained (cl 4.6(4)(b)). 

The reforms follow on from the exhibition of an explanation of intended effect in April 2021.

Amending Order

The Amending Order omits clause 4.6(3)-(5) and (7) and inserts the following amended sub-clauses:

“(3) Development consent must not be granted to development that contravenes a development standard unless the consent authority is satisfied the applicant has demonstrated that—

     (a) compliance with the development standard is unreasonable or unnecessary in the circumstances, and

     (b) there are sufficient environmental planning grounds to justify the contravention of the development standard.

(4) The consent authority must keep a record of its assessment carried out under subclause (3).”

The key differences between the previous and amended clauses are:

• The consent authority must now be positively satisfied that the applicant has demonstrated that compliance is unreasonable or unnecessary and that there are sufficient environmental planning grounds, rather than being satisfied that the written request demonstrates such matters;
• There is now no requirement for the consent authority to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the relevant standard and zone; and
• There is no longer any requirement to obtain the Secretary’s concurrence.

It is understood that the requirement to be satisfied that a development is in the public interest was removed due to a perception that it duplicated existing mandatory considerations in determining a development application. These include clause 2.3 in the Standard Instrument (requiring consideration of zone objectives), section 4.15(1)(e) of the Environmental Planning and Assessment Act 1979 (requiring consideration of the public interest) and in demonstrating that compliance is unreasonable or unnecessary because the development is consistent with the objectives of the development standard notwithstanding the contravention (the first “way” referred to in Wehbe v Pittwater Council (2007) 156 LGERA 446).

Amending Regulation

The Amending Regulation introduces the following changes:

• Section 35A requires a development contravening a development standard to be accompanied by a document setting out the grounds upon which the applicant seeks to demonstrate that compliance is unreasonable or unnecessary and that there are sufficient environmental planning grounds; and
• Section 90A will require councils to notify the Planning Secretary of the council’s or a panel’s reasons for approving or refusing a development proposing the contravention of the development standard.

Amending SEPP

The amending SEPP replicates the same changes made in the Amending Order in respect of non-standard LEPs and certain SEPPs, such as the various precinct SEPPs.

Moving Forward

The Amending Order and Amending SEPP commence operation on 1 November 2023.

Development applications made but not determined prior to the commencement of the Amending Order will benefit from the savings provision in clause 8 of the Standard Instrument (Local Environmental Plans) Order 2006, and will be required to be assessed and determined in accordance with the historical clause 4.6 framework.

The Amending SEPP also introduces savings provisions into the various instruments it affects.

Sections 35B and 90A introduced by the Amending Regulation are similarly expressed only to apply to a development application made on or after 1 November 2023.

In addition to these reforms, it is understood that an update to the NSW Planning Portal will be made as of 1 November 2023 enabling a register of all variation requests to be viewed by the general public in an effort to increase transparency in planning decisions. The Department has also indicated that written guidance will be published in due course to assist councils with the reforms and the assessment of development applications proposing variations, in addition to an updated written request template.

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.