- The power of a consent authority to vary a development standard under clause 4.6 of the Standard Instrument is an important aspect of planning regulations in NSW.
- Recent decisions of the Land and Environment Court assist in identifying the threshold for a successful clause 4.6 variation request.
- These decisions demonstrate that the consent authority has a broad discretion to determine where that threshold is and the circumstances in which it is met.
The Standard Instrument (Local Environmental Plans) Order 2006 (‘Standard Instrument’) was introduced in 2006 so as to create a common format and content for local environmental plans in NSW. All 152 Local Government authorities in NSW have now adopted local environmental plans based on the Standard Instrument (see: www.planning.nsw.gov.au/plans-for-your-area).
Clause 4.6 of the Standard Instrument allows a consent authority to grant consent to a proposed development ‘even though the development would contravene a development standard’.
In circumstances where it applies, clause 4.6 replaces the power previously found in State Environmental Planning Policy No. 1 – Development Standards.
We are now starting to see cases come before the Land and Environment Court challenging the application of clause 4.6. This short article reviews three of those cases, with a view to establishing the threshold for a well-founded clause 4.6 variation request.