The NSW Government is committed to the ongoing improvement of the NSW planning system to ensure it is easy to use and understand. From time to time we introduce changes that promote strategic planning and integrity and reduce the risk of corruption.
The review of clause 4.6 of the Standard Instrument Local Environmental Plan (Standard Instrument LEP) is part of our commitment to ongoing improvement.
The Standard Instrument LEP sets out development standards that need to be met when preparing a development application. Clause 4.6 allows consent authorities such as local councils to vary development standards in certain circumstances.
Confusion over how the clause has been applied has contributed to delays and cost burdens for applicants and councils. This has had resourcing implications for local councils and the courts.
The Independent Commission Against Corruption (ICAC) Inquiry in 2021 into allegations of impropriety at Canterbury Council (Operation Dasha), indicated concerns that varying development standards can dilute transparency in the planning system and allow opportunities for corruption.
The proposed changes to clause 4.6 clarify the requirements for variations to development standards and improves transparency and accountability in the planning system by introducing a monitoring and performance framework.
A case for change
We published an explanation of intended effect (EIE) and sought feedback on proposed amendments to clause 4.6 of the Standard Instrument LEP.
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 would need to be satisfied that the applicant’s written request demonstrates consistency with the objectives of the related development standard and land use zone.
- Applicants would have to demonstrate that 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 would result in an improved planning outcome, the consent authority is to consider the public interest, environmental outcomes, social outcomes or economic outcomes.
An alternative test may be developed to enable flexibility in situations where the variation is so minor it is difficult to demonstrate an improved planning outcome, but the proposed variation is appropriate to the particular circumstances of the site and the proposal.
We sought feedback to guide the development of this alternative test.
An amendment to the Environmental Planning and Assessment Regulation 2000 will contain the procedural and reporting requirements of variations to development standards.
They include 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. This is in line with the recommendations of Operation Dasha.
Consultation and feedback
We welcomed your feedback on the proposed changes to clause 4.6 of the Standard Instrument LEP during its public exhibition from 31 March until 12 May 2021. Thank you to everyone who made a submission and provided feedback
We are considering the submissions and will use them to inform the development of the proposed changes.