In the recent Land and Environment Court decisions of Elimatta Pty Ltd v Read and Anor [2021] NSWLEC 75 in relation to rural minimum lot size provisions, and Canterbury Bankstown Council v Dib [2022] NSWLEC 70 in relation to a boarding house, the Court takes a close look at whether specific provisions are development standards.

The significance of determining whether a provision in a planning instrument is a development standard arises because:

1. Clause 4.6 (in most Local Environmental Plans) provides that development consent may be granted even if the proposed development would breach a development standard imposed by the planning instrument (subject to satisfying certain tests).
2. If a provision is not a development standard, and therefore must be complied with (without variation), failure to comply will most likely (and in most cases must) result in refusal.

Elimatta v Read – rural subdivision

In this case, Elimatta challenged the validity of a development consent for subdivision granted by Yass Valley Council to the consent holder, Mr Warren Read.

A ground of review related to the Council’s construction and application of the following provisions in the Yass Valley Local Environmental Plan 2013:

• Clause 4.1(3) specified the minimum lot size for subdivision of land by reference to the Lot Size Map, and
• Clause 4.1B(3) provided that “[d]espite clause 4.1, development consent may be granted to subdivide land in Zone RU1 Primary Production or Zone RU2 Rural Landscape if (a) the average of all the lots created will be at least 40 hectares…”

As the proposal did not comply with either clauses 4.1(3) or 4.1B(3), the Applicant relied upon a clause 4.6 request seeking to vary the ‘development standard’ in clause 4.1B(3).

The key question for the Court was whether clause 4.1B(3) was a development standard.

Findings

Robson J found that clause 4.1B(3) is not a development standard that can be varied by a clause 4.6 variation request and ultimately found that the consent was invalid.

In reaching that conclusion, Robson J held that in determining whether a provision is a development standard, the starting point is the definition of development standards in section 1.4 of the Environmental Planning & Assessment Act 1979.

The definition includes the phrase “provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development”. His Honour found that clause 4.1B(3) did not itself specify or fix anything. Instead the words “[d]espite clause 4.1” indicates that clause 4.1B(3) does not operate on its own but acts as an exception to clause 4.1 and would allow the granting of development consent if each subclause of 4.1B(3) is satisfied.

Interestingly, the Court found that:

• It was not useful to consider whether a clause has ‘prohibitive’ wording or ‘permissive’ and ‘facilitative’ wording to determine if a provision is a development standard, and
• Although clause 4.1B was found under the heading ‘Principal development standards’, the heading is not determinative of whether clause 4.1B is a development standard.

Canterbury Bankstown Council v Dib - boarding house

These proceedings related to an appeal against the Court’s decision to grant development consent for a boarding house with 21 rooms. In this case, Chief Judge Preston considered whether clause 30AA of the (now repealed) State Environmental Planning Policy (Affordable Rental Housing) 2009 was a development standard and therefore could be varied under clause 4.6 of the Bankstown Local Environmental Plan 2015 (BLEP).

Clause 30AA provided that “[a] consent authority must not grant development consent to a boarding house on land within Zone R2 Low Density Residential or within a land use zone that is equivalent to that zone unless it is satisfied that the boarding house has no more than 12 boarding rooms.”

Findings

Chief Judge Preston found that clause 30AA was a development standard.

In reaching that conclusion, his Honour looked to the definition of development standards and identified the test has made up of two elements, those being:

1. Whether the provision is in relation to the carrying out of development, and
2. Whether the provision by or under which requirements are specified or standards are fixed in respect of any aspect of that development.

His Honour held that the first element was satisfied. The starting point must be to identify the development that clause 30AA permits (that is, not the development proposed under the development application), which he found was a boarding house.

The second element was also satisfied as clause 30AA sought to specify a requirement or fix a standard in respect of boarding houses. That requirement meant clause 30AA indirectly specified a requirement or fixed a standard in respect of the size or density of a boarding house (within paragraph (c) of the definition of development standards).

Chief Judge Preston found that it did not matter that the heading to clause 30AA and the clause itself does not use the words ‘development standards’. What is relevant, is whether a provision meets the definition of ‘development standards’.

As clause 30AA was a development standard, it could be varied under clause 4.6 of the BLEP. As such his Honour dismissed the appeal.

Key Takeaways

These decisions are important reminders that when preparing or assessing clause 4.6 requests, the key question to consider is whether the relevant provision is actually a development standard.

To answer that question, one must consider whether the provision satisfies the definition of development standards in section 1.4 of the Environmental Planning and Assessment Act.

The Court has made it clear that whether a heading to a clause or the clause itself include the word ‘standards’ is not determinative of whether a provision is a development standard. Additionally, this determination does not require any consideration of whether the language of the provision is prohibitive of facilitative.

The Planning, Environment and Government team at Dentons wishes all PIA members a happy and safe festive season, and best wishes for 2023!