Clause 4.6 Requests

As many would no doubt be aware, clause 4.6 of the Standard Instrument (Local Environmental Plans) Order 2006 (Standard Instrument), on which local environmental plans are based, provides that development consent must not be granted for development that contravenes a development standard unless:

• The consent authority has considered a written request (4.6 Request) from the applicant that seeks to justify the contravention of the development standard by demonstrating:
  • compliance with the development standard is unreasonable or unnecessary in the circumstances of the case
  • there are sufficient environmental planning grounds to justify contravening the development standard.
• The consent authority is satisfied that the:
  • applicant’s written request has adequately addressed the matters required to be demonstrated (summarised above)
  • 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 development is proposed to be carried out.
• The concurrence of the Secretary has been obtained.

This clause has been relied upon by applicants for years, usually as an opportunity to squeeze out some extra height or floor space than would otherwise be allowed.

However, things changed dramatically in 2018 following a landmark judgment of the Land and Environment Court in Initial Action Pty Ltd v Woollahra Municipal Council [2018] NSWLEC 118 which reinforced the strict nature of the test by striking down a 4.6 Request which failed to meet the mandatory preconditions in the clause.

This led to a significant increase in the scrutiny applied to 4.6 Requests by the Court and by consent authorities.

Now, in Elimatta, the Court has provided further clarification regarding the threshold question of whether the relevant development control is in fact a ‘development standard’ for the purposes of a 4.6 Request.

The Facts

In this case, an objector to a proposal brought proceedings challenging the validity of a consent granted by Yass Valley Council (Council) for the subdivision of land into 10 new lots.

The LEP contained two separate clauses that appeared to set ‘development standards’ for subdivision:

• clause 4.1(3) specified minimum lot sizes for subdivision
• clause 4.1B(3) provided that ‘despite clause 4.1’ development consent could be granted in specified rural and environmental zones (including the zone in which the development was to be undertaken), where the proposed subdivision met specified criteria relating to average lot size.

The development application (DA) did not comply with the controls in either clause 4.1(3) or clause 4.1B(3). To overcome this, the applicant submitted a 4.6 Request as part of the DA. This was based on what the applicant considered to be the ‘development standard’ set out in clause 4.1B(3).

The Question

One of the key arguments raised in the proceedings was whether clause 4.1B(3) was a development standard.

The applicant maintained that the control in clause 4.1B(3) was not a development standard, in which case the numerical requirements of that provision could not be varied under the clause 4.6, the DA remained non-compliant with the subdivision controls, and the Council was not entitled to grant development consent.

The consent holder (Mr Read) and the Council refuted this position. They contended that the words ‘despite clause 4.1’ at the beginning of clause 4.1B(3) had the consequence of effectively switching off the development standard in clause 4.1(3). This meant that, as Mr Read submitted, while clause 4.1(3) provided a ‘general development standard for subdivision of land’, clause 4.1B(3) provided a ‘second, alternative, route to development consent’.

Findings

In considering this question, the Court looked to the definition of ‘development standard’ as it appears in section 1.4 of the Environmental Planning and Assessment Act 1979 (NSW).

That definition relevantly refers to provisions of an environmental planning instrument on 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…’

Based on this definition, the Court found that a development standard must be a provision which specifies a requirement or fixes a standard. Looking to clause 4.1B(3), the Court considered that the clause did not specify or fix anything – but provided an exception to the requirements that were specified in clause 4.1. The words ‘despite clause 4.1’ at the beginning of clause 4.1B(3) indicated that the clause did not operate on its own, but leveraged off the controlling provision in clause 4.1.

Clause 4.1B(3) was therefore not a development standard and could not be varied under clause 4.6.

Interestingly, the Court also noted that the identification of clause 4.1B under the heading ‘principal development standards’ in the LEP was not determinative of whether that provision was, in fact, a development standard.

It follows that the Court declared the consent invalid.

Implications of Elimatta judgment

This case serves as a reminder for those drafting or assessing 4.6 Requests of the importance of considering the threshold question – is the control a development standard?

This is particularly important where an applicant is seeking to rely on controls that may act as ‘alternatives’ or ‘exceptions’ to a general controlling provision, like building height, floor space ratio or minimum lot size.

It is not enough to simply rely on the fact that the clause appears under the ‘principal development standards’ heading in the relevant Instrument, or that the clause relates to or deals with a requirement or standard in respect of development.

As this is a jurisdictional issue which could give rise to grounds to strike down a consent, legal advice should be sought where there are questions about whether a control is a development standard.