All development within local government areas (LGAs) in NSW is controlled by an environmental planning instrument called a Local Environmental Plan, or LEP for short. The LEP outlines, amongst other things, what can be built, for what purpose a building or land may be used and includes a variety of controls or “development standards”, designed to ensure that developments fit the character of the local area, mitigate negative environmental impacts, and promote social benefits. However, sometimes a proposed development achieves objectives of the LEP, but does not comply with specific development standards contained in the LEP. In these instances, it is necessary to request a “clause 4.6 variation” which allows a consent authority (usually the local Council) to relax the development standard in that particular circumstance. A clause 4.6 variation request must be in writing.
It’s important to understand that a clause 4.6 variation only applies to development standards and not development prohibitions.
The term ‘development standards’ is defined in the Environmental Planning and Assessment Act 1979 as “provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development”. Essentially, development standards are provisions in Environmental Planning Instruments (EPIs) that specify how development is to be carried out (ie. building heights, minimum lot sizes, floor space ratio, etc).
However, a prohibition is a criteria which is essential to determining if a development is at all permissible. For example, clause 7.1(1) of the Wollondilly LEP states:
(1) Development consent must not be granted to development unless the consent authority is satisfied that any of the following services that are essential for the proposed development are available or that adequate arrangements have been made to make them available when required—
Wollondilly Local Environmental Plan 2011
(a) the supply of water,
(b) the supply of electricity,
(c) the disposal and management of sewage.
In this example, the supply of water, electricity and disposal and management of sewage are essential preconditions for development consent and cannot be varied.
When requesting a clause 4.6 variation, the objectives of the development standard as well as the extent to which the standard is being breached must be considered. According to the standard template LEP, applications must address whether:
(a) strict compliance with the standard, in the particular case, would be unreasonable or unnecessary and why,
(b) and demonstrate that there are sufficient environmental planning grounds to justify contravening the development standard.
Clause 4.6 variation requests have been mentioned in numerous Land & Environment Court judgments and can be very complex. The variation request must show that there are legitimate planning grounds to justify the variation. It is not sufficient to simply showcase the perceived benefits of the development as a whole. The clause 4.6 variation request must focus on the particular standard to be varied. It is recommended that you seek expert assistance to prepare any clause 4.6 variation request. It’s important to ensure your application is completed thoroughly and professionally to ensure efficient and hassle-free processing through Council.
If you’d like the help of experts to ensure your clause 4.6 variation is completed comprehensively, professionally, and precisely, get in contact with the town planners at Precise Planning here.
