Amendments to clause 4.6 of the Standard Instrument now active

On 1 November 2023 amendments to clause 4.6 of the Standard Instrument Local Environmental Plan (Standard Instrument) Order commenced. The amendments affect development applications lodged after this date that seek to vary any development standard(s) that apply to the development in question under the applicable Local Environmental Plan (LEP).

This article offers a comprehensive overview of the key amendments.

What are development standards?

Development standards may specify requirements for any aspect of a development, such as a requirement relating to the character, location, scale, or facilities associated with a building or work. A NSW environmental planning instrument, such as an LEP or State Environmental Planning Policy (SEPP) may impose development standards on development.

Development standards must be complied with before consent may be granted for the development, unless it is demonstrated to the satisfaction of the relevant consent authority that the development satisfies the test for ‘Exceptions to a Development Standards’ contained in clause 4.6 of the Standard Instrument LEP.

Overview of key amendments

The changes apply to all development applications (DAs) in NSW proposing to vary a development standard pursuant to clause 4.6.

The following changes include:

• Consent authorities now need to be ‘satisfied’ as opposed to have ‘considered’ that a DA proposing the contravention of a development standard(s) has demonstrated why compliance with the development standard is ‘unreasonable’ or ‘unnecessary’ in the circumstances. Consent authorities must also be ‘satisfied’ that the applicant has provided sufficient reasoning on ‘environmental planning grounds’ qualifying the contravention.

• Applicants will continue to provide these justifications in an extra document included in the DA, however now, consent authorities are to keep a record of the DA assessment. The requirement for these more complex DAs to have accompanying documentation justifying reasons for a DA’s lack of Development Standard compliance shifts from the Standard LEP to the Environmental Planning and Assessment Regulations.

• Local councils, planning panels (including regional planning panels) and Sydney District Panels are required to provide notice to the NSW Planning Secretary upon approving a DA contravening a Development Standard. The NSW Planning Secretary no longer needs to ‘concur’ with the DA approval, in consideration of factors such as the ‘public benefit’.

• Consent authorities looking to grant an exception to comply with a Development Standard/s, are no longer required to be ‘satisfied’ that the proposed development is in the ‘public interest’ and ‘consistent with’ zone development objectives. Development objectives, however, remain relevant in so far as they apply to the document accompanying the DA setting out justifications for the proposal on environmental planning grounds.

Key takeaways

The changes are intended to simplify the process for assessing approval of a DA which does not satisfy Development Standards. The largely box-ticking-exercise, of having the concurrence of the NSW Planning Secretary has been eliminated, with plans for a ‘new reporting framework’ to take its place. The changes apply uniformly to both standard and non-standard LEPs across the state.

The test determining when ‘Exceptions to Development Standards’ may apply has been significantly stripped back. Applicants are no longer constrained by requirements for their DA seeking Development Standard exceptions, to have consistency with objectives for development within the zone in which the development is being sought. Despite the newfound simplicity, the new approval threshold could be interpreted as edging slightly higher in some regard, given consent authorities must now be ‘satisfied’ with each matter the application addresses, and keep records of their decision-making reasoning.

The changes aim to bolster transparency and accountability within local government decision-making processes. The amendments facilitate the Planning Secretary’s easy access across the State, to consent authorities’ assessments and reasonings in relation to DA approvals which do not comply with applicable Development Standards.

These amendments are likely to particularly affect more complex development proposals, requiring greater expertise in the application process. The amendments require practical, minor, but strategic drafting changes, especially to the accompanying document, justifying Development Standard compliance as ‘unreasonable’ and ‘unnecessary’ in the circumstances and providing the sufficient reasoning on ‘environmental planning grounds’.

How can we help?

McCullough Robertson is well placed to assist developers and planners to draft and review a development’s proposed justification(s) for contravention of a Development Standard. For further expert advice concerning drafting and review of such a development application, contact our Environment and Planning team.

This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.