Clause 4.6 Variations in NSW: When a Council Can Approve a Breach of Height or FSR

The height limit and the floor space ratio on a council's maps are development standards. In most cases a proposal that breaches one cannot simply be approved, but the Standard Instrument local environmental plan has a pressure valve: clause 4.6, headed exceptions to development standards. Developers use it often enough that it is worth understanding before a design is priced on it.

The standards themselves are covered in our post on floor space ratio and height limits. This post is about what happens when a design goes over them.

What does clause 4.6 do?

Subclause 2 says development consent may be granted for development even though it would contravene a development standard imposed by the local plan or any other environmental planning instrument. The exception is a standard that the plan expressly excludes from the clause.

The clause is marked compulsory in the Standard Instrument, so it is in every NSW local environmental plan built from the template. Its two stated objectives are to give an appropriate degree of flexibility in applying certain standards to particular development, and to achieve better outcomes for and from development by allowing flexibility in particular circumstances.

What does the applicant have to show?

Subclause 3 says consent must not be granted unless the consent authority is satisfied that the applicant has demonstrated both of the following:

• compliance with the development standard is unreasonable or unnecessary in the circumstances, and
• there are sufficient environmental planning grounds to justify the contravention.

Both tests apply, and a case that satisfies only one fails. A note to the clause adds that the Environmental Planning and Assessment Regulation 2021 requires a development application that proposes to contravene a standard to be accompanied by a document setting out the grounds on which the applicant seeks to demonstrate those two matters. In practice that document is usually called a clause 4.6 variation request, and it is written by the town planner on the project.

Subclause 4 requires the consent authority to keep a record of its assessment of the request. The clause is about reasons, and a council that approves a breach has to be able to show why.

What can't be varied under clause 4.6?

Subclause 8 lists what the clause does not allow consent to be granted for. In the Standard Instrument version these are development that would contravene:

• a development standard for complying development
• a standard that arises in connection with a commitment in a BASIX certificate, for buildings to which the BASIX policy applies
• clause 5.4, and clause 5.5

A note on the clause says additional exclusions may be added, so a council's own plan can have a longer list. The second item is why a dwelling cannot trade away its water and energy commitments through a variation. The first is why a complying development certificate has no equivalent path: a proposal that fails a complying development standard has to move to a development application, as in the CDC and DA pathways post.

Subclause 6 adds a separate limit for subdivision in the RU1, RU2, RU3, RU4, RU6, R5, C2, C3 and C4 zones. Consent cannot be granted under the clause if the subdivision would result in two or more lots below the minimum area, or at least one lot below 90% of the minimum area. A variation therefore cannot be used to create a string of undersized rural or large lot residential lots.

How should this change a feasibility?

A variation request is a request, and the outcome sits with the consent authority. Three practical points follow from the text of the clause.

1. A design that complies carries no variation risk. A design that breaches carries the cost of the request, the time to assess it and the chance that the council is not satisfied on one of the two tests. That risk belongs in the numbers, not in the assumptions.
2. The grounds have to be specific to the site. The test is whether compliance is unreasonable or unnecessary in the circumstances, so a general argument that more floor area would be profitable is not what the clause asks for.
3. Where the application is refused or sits undetermined, the appeal routes in the deemed refusal and Land and Environment Court post apply.

The clause has also been the subject of Land and Environment Court decisions that shape how councils read the two tests. Those decisions change over time, so take planning advice on the current approach before relying on a variation for a project.

What to settle before you rely on a breach

• Which standard is breached, by how much, and whether it is one the plan allows to be varied.
• Whether the proposal is a development application at all, or complying development, where the clause does not apply.
• Whether the numbers still work if the council holds the standard.
• Who is preparing the written request and what site-specific grounds they will rely on.

We test a design against the compliant case first, so you can see what a variation adds and what it puts at risk. Ask us for an assessment and both versions come back with the yield and the risk set out.

Common questions

What is a clause 4.6 variation in NSW?

Clause 4.6 is the exceptions to development standards clause in the Standard Instrument local environmental plan. It lets a consent authority grant consent for development that breaches a standard such as a height limit or floor space ratio, provided the applicant has shown that compliance is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify the breach.

What must an applicant demonstrate under clause 4.6?

Two things. First, that compliance with the development standard is unreasonable or unnecessary in the circumstances. Second, that there are sufficient environmental planning grounds to justify the contravention. The Environmental Planning and Assessment Regulation 2021 requires a development application that proposes to breach a standard to be accompanied by a document setting out those grounds.

Can any development standard be varied under clause 4.6?

No. The clause does not apply to a standard that the plan expressly excludes from it. It also cannot be used to breach a development standard for complying development, a standard arising from a BASIX commitment, or clauses 5.4 and 5.5. Subdivision in rural, large lot residential and certain environmental zones has a further limit under subclause 6, including a cap tied to 90% of the minimum lot area.

Does a clause 4.6 variation guarantee approval?

No. It gives the consent authority power to approve, and the council still has to be satisfied on both tests and must keep a record of its assessment. A feasibility that depends on a variation being granted is carrying approval risk that a compliant design does not carry.