The NSW Government is committed to the ongoing improvement of the NSW planning system, to ensure it is easy to use and understand, promotes strategic planning and integrity, and reduces the risk of corruption. As part of this commitment, the department is seeking feedback on how to improve the way clause 4.6 operates and provide certainty to councils and industry. In NSW, the Standard Instrument Local Environmental Plan (Standard Instrument LEP) sets out development standards that need to be met when preparing a development application.
Clause 4.6 of the Standard Instrument LEP provides flexibility in the application of development standards in certain circumstances allowing consent authorities, such as local councils, to approve a variation to development standards.
The department has received feedback from council and industry stakeholders that there are several issues with how clause 4.6 has been interpreted over time. This has resulted in a convoluted and unclear application of clause 4.6, contributing to delays and cost burdens for applicants and councils in the development application process and resourcing implications for local councils and the courts. As indicated in the recent NSW Independent Commission Against Corruption (ICAC)’s Inquiry into allegations of impropriety at Canterbury Council (Operation Dasha), there are also concerns that varying development standards can dilute transparency in the planning system and subsequently open up opportunities for corruption.
In response to the issues above, the proposed changes to clause 4.6 of the Standard Instrument LEP aims to clarify the requirements for varying development standards, and improve transparency and accountability in the planning system.
A case for change
The department exhibited an Explanation of Intended Effect (EIE) on the proposed amendments to clause 4.6 of the Standard Instrument LEP from the 31 March until 12 May 2021.
The proposed revised clause 4.6 will ensure that applications to vary development standards have a greater focus on the planning outcomes of the proposed development and are consistent with the strategic context of the site. The proposed revised clause 4.6 gives weight to the relevant planning objectives that have been developed by councils in consultation with communities and ensures variations are considered in that context.
The EIE also sought feedback on proposed measures to increase transparency, accountability and probity by strengthening council reporting requirements on variation decisions, in line with ICAC recommendations.
Revised test for variations
Under the proposed revised clause 4.6, the consent authority must be directly satisfied that the applicant’s written request demonstrates the following essential criteria in order to vary a development standard:
- the proposed development is consistent with the objectives of the relevant development standard and land use zone; and
- the contravention will result in an improved planning outcome when compared with what would have been achieved if the development standard was not contravened. In deciding whether a contravention of a development standard will result in an improved planning outcome, the consent authority is to consider the public interest, environmental outcomes, social outcomes or economic outcomes.
If appropriate, an alternative test may be developed to enable flexibility to be applied in situations where the variation is so minor that it is difficult to demonstrate an improved planning outcome, but the proposed variation is appropriate due to the particular circumstances of the site and the proposal. Feedback was sought to inform the development of this alternative test.
An amendment to the Environmental Planning and Assessment Regulation 2000 will contain the current requirements to fulfil certain procedural and reporting requirements when development standards are varied, including the new requirement that councils must publish the reasons for granting or refusing a variation request on the NSW Planning Portal in the interests of improving transparency, probity, and governance, in line with the recommendations of the recent ICAC Inquiry (Operation Dasha).
Consultation and feedback
Thank you to everyone who made a submission and provided feedback during the public exhibition from the 31 March until the 12 May 2021. Submissions will be considered and will inform the development of the proposed changes.
If you have any questions, please contact the department via our online form.