Flexible Standards – has the bar for Clause 4.6 variations been lowered?

18 July 2016

Randwick City Council v Micaul Holdings Pty Ltd [2016] NSWLEC 7

After a line of case law that raised the expectations for clause 4.6 variations, Micaul marked a return to a less stringent interpretation of what is required in varying development standards.

The Chief Judge’s decision in Micaul was an appeal against a decision of Commissioner Morris to uphold requests under clause 4.6 of Randwick Local Environment Plan 2012 to justify non compliance with height and floor space ratio (FSR) development standards.

Council submitted that the Commissioner failed to be satisfied that the development was in the public interest and failed to give any reasons for concluding that it was unreasonable or unnecessary for the development to comply with height and FSR standards.

The principal circumstances cited by Commissioner Morris in her finding that the variations to height and FSR were justified were the location of the site at the lowpoint of the locality, its proximity to larger residential¬†flat buildings (RFBs) and its flood affectation. The Commissioner adopted the relevant reasons justifying non-compliance set out in the applicant’s clause 4.6 objections. It is unclear whether these circumstances were particular to the site or development.

It was recognised that the Commissioner did not have to be directly satisfied that compliance with each development standard was unreasonable or unnecessary in the circumstances of the case, but only indirectly by being satisfied that the applicant’s written request has adequately addressed the matter that compliance with each development standard was unreasonable or unnecessary. The reasons given by the Commissioner were found by His Honour to be sufficient to explain why the Commissioner was satisfied that the clause 4.6 objections adequately addressed those matters.

In dismissing the appeal, the Court endorsed the Commissioner’s approach to clause 4.6.

The decision in Micaul is indicative of a move away from the more prescriptive Four2Five1 application of clause 4.6 and essentially recognised the discretion inherent in considering clause 4.6 variations.

The hyped Four2Five authority has been interpreted as requiring (1) an additional way of establishing that compliance with a development standard is unreasonable or unnecessary aside from consistency with the objectives of the development standard and zone objectives and (2) that sufficient environmental planning grounds to justify a contravention of a standard should be particular to the circumstances of the proposed development on the site.

In Four2Five, Commissioner Pearson found that the public benefits to be provided by the proposed development such as increased employment opportunities and housing stock could be equally found at other sites in the vicinity and the planning grounds advocated were not particular to the proposed site or development. Commissioner Pearson’s decision was upheld by a Judge of the Court and Court of Appeal with no error found in the Commissioner’s approach, which turned upon a state of satisfaction that the written request had “adequately addressed” the matters required in clause 4.6 and that there was no specific limitation on the Commissioner exercising her discretion as to whether she was satisfied as to those matters.

Clause 4.6 is directed at allowing flexibility in enforcing development standards in particular circumstances to “achieve better outcomes for and from development.” Micaul brings into question whether clause 4.6 variations need to justify that compliance with a development standard is unreasonable or unnecessary on grounds other than that the development is consistent with the objectives of the development standard. We can draw from this case that what is required under clause 4.6 to satisfy a consent authority is fluid. What will be sufficient to satisfy a consent authority in one case will not be adequate in other circumstances. Micaul and Four2Five highlight the importance of ensuring that any request for variation of a development standard is comprehensive, well articulated and relates to the individual or specific circumstances of the case.

This article was written by Jane Hewitt, Partner and Rachael Knapman, Solicitor.

1Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 1009 per Commissioner Pearson; Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 per Pain J; Four2Five Pty Ltd v Ashfield Council [2015] NSWCA 248 per Meagher JA and Leeming JA.

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