Clause 4.6 variation requests: ensuring satisfaction post Initial Action

Introduction

Developers proposing to carry out development that breaches a development standard in an environmental planning instrument (EPI)¹, such as the maximum height, maximum floor space ratio or minimum lot size, need to be aware of the recent strict approach to clause 4.6 variation requests taken by consent authorities, including the Land and Environment Court, following the decision of Preston CJ in Initial Action Pty Ltd v Woollahra Municipal Council² (Initial Action).

A clause 4.6 written request is an essential jurisdictional hurdle to the granting of development consent. If it does not satisfy the strict legal requirements, the consent authority must refuse the DA.

Two states of satisfaction required of the consent authority – “direct” & “indirect”

In Initial Action Preston CJ differentiated the consent authority’s role in assessing a clause 4.6 written request from its role in assessing the development as a whole – something his Honour referred to as two “positive states of satisfaction”. The first state of satisfaction is “indirect” while the second is “direct”.

First positive state of satisfaction – Does the written request adequately address the matters required to be demonstrated by clause 4.6(3)³?

This focuses on the written request itself which is ordinarily drafted by a planner.
The written request must “adequately address” and “demonstrate”:

1. That compliance with the development standard is unreasonable or unnecessary in the circumstances (cl 4.6(3)(a)); and
2. That there are sufficient environmental planning grounds to justify non-compliance with the development standard (cl 4.6(3)(b)).

Compliance with the development standard is unreasonable or unnecessary

This is typically demonstrated through one of the five Wehbe⁴ “methods” (although the methods outlined are not exhaustive).⁵ The most common Wehbe method is to demonstrate that the objectives of the development standard are achieved, notwithstanding the non-compliance. This requires close attention to the wording of the specific objectives of the development standard in the relevant EPI, and specifically how they are “achieved” (in the case of the first Wehbe method).

For example, if the objective of the height control is to “minimise the visual impact of development” then the justification that the non-compliant building is “compatible with the likely future character of the area” will likely not demonstrate how that particular objective is achieved.⁶ 

Sufficient environmental planning grounds to justify non-compliance with the development standard

This is often the most elusive aspect of the process of drafting a written request and must be considered carefully.

“Environmental planning grounds” take their colour from the subject matter, scope and purpose of the Environmental Planning and Assessment Act 1979 (EPA Act), including its objects.⁷ 

Many written requests considered by the Court post Initial Action have failed because the environmental planning grounds provided in the written request are unrelated to the subject matter, scope and purpose of the EPA Act.⁸

Many overlook that the focus is on the specific aspect of the development that does not comply with the development standard, and not on the development as a whole.⁹ For example, arguments that promote only the benefits of carrying out the development generally will struggle to withstand scrutiny by consent authorities.¹⁰

Further, a submission that there will be no significant amenity impacts as a result of non-compliance is not, of itself, a reason that justifies the non-compliance.¹¹ Something more is needed that demonstrates why the dispensation from compliance with the development standard is called for in that instance.

Second positive state of satisfaction – Is the proposed development in the public interest (clause 4.6(4)(ii))¹²?

A consent authority must be “directly” satisfied that the proposed development is in the public interest because it is consistent with:

1. the objectives of the development standard; and
2. the objectives of the zone.

“Consistency” means “not antipathetic to” rather than the higher threshold of “promotes” or “is compatible” with the objectives.¹³

The consent authority is not limited by the written request,¹⁴ nevertheless, omitting to address these requirements in the written request may lead to the consent authority reaching the conclusion that the state of satisfaction is not met.

What does this mean for developers and planners?

There will always be circumstances where even a well written clause 4.6 variation request will not be upheld by the consent authority because the non-compliance cannot be justified. However, many decisions of the Court post Initial Action show that clause 4.6 variation requests can fail needlessly because of drafting and failing to adequately address the requirements of clause 4.6.

For instance, in Lu Projects Pty Ltd v Fairfield City Council¹⁵, the clause 4.6 variation request did not even refer to or state whether there was sufficient environmental planning grounds.

Written requests that do not:

• address each of the specific requirements of clause 4.6,
• address each of the specific objectives of the relevant development standard,
• include strong and well-articulated reasons to justify the non-compliance

are likely to not to be upheld by the consent authority with the consequence that the DA must and will be refused.

Developers, their architects and planners should invest time and resources at the early design phase of the development in considering:

• whether any non-compliances can be justified by way of a clause 4.6 variation request and if so, having the written request prepared by a consultant planner and then reviewed by a planning lawyer before the DA is lodged; and  
• whether a planning proposal to amend the development standard in the EPI is likely to be required.

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1. A development control in a development control plan is not a development standard.
2. [2018] NSWLEC 118.
3. Initial Action at [25]; Standard Instrument cl 4.6(3)(a)–(b).
4. Wehbe v Pittwater Council (2007) 156 LGERA 446 (Wehbe).
5. Initial Action at [16].
6. SH7 Best Rd Pty Ltd v Blacktown City Council [2018] NSWLEC 1640 at [65]-[70].
7. Initial Action at [23]. The objectives of the  EPA Act in s1.3 were amended on 1 March 2018.
8. Peric v Randwick City Council [2018] NSWLEC 1509 (Peric) at [47].
9. Initial Action at [24].
10. Initial Action at [24].
11. Peric at [47].
12. Initial Action at [26]; Standard Instrument cl 4.6(4)(a)(ii).
13. Schaffer Corporation v Hawkesbury City Council  (1992) 77 LGRA 21 at [27].
14. Initial Action at [26]; Knight v Coffs Harbour City Council [2018] NSWLEC 1569 at [44].
15. [2019] NSWLEC 1021.

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