Limit exclusions of development standards from clause 4.6 variation.
When a proposal introduces or alters an exclusion to clause 4.6 (or an equivalent variation provision), the authority must have regard to the Department's Guide to exclusions from clause 4.6. Such exclusions must be minimised and only applied where consistent with the criteria in Part 2 of that Guide.
Clause 4.6 of a Standard Instrument LEP is the mechanism that lets a council (as consent authority) approve a development that breaches a numerical or other development standard where strict compliance would be unreasonable or unnecessary. Some LEPs, however, list certain development standards as being excluded from that flexibility — meaning no variation is ever possible for them, no matter how good the case. Direction 1.4A governs when councils can create or change those exclusions through a planning proposal (an amendment to an LEP).
The policy intent is to keep clause 4.6 flexibility as the norm and treat exclusions as the exception. So when a planning proposal authority drafts a proposal that would add a new exclusion, or alter an existing one, it must actively work to keep exclusions to a minimum and can only exclude a standard where doing so fits the criteria in the Department's November 2023 Guide. The authority must also consult that Guide throughout the drafting process.
The practical consequence is that a council cannot simply lock a favoured standard (say a height or density control) out of the variation process. It must justify any such lock-out against the Guide's criteria; otherwise the planning proposal will be inconsistent with the direction and, absent Secretary sign-off, should not proceed in that form.
Planning proposal authorities (typically councils, but also other bodies) preparing a planning proposal that would introduce or alter an exclusion from clause 4.6 of a Standard Instrument LEP or an equivalent provision in another environmental planning instrument.
When a planning proposal authority prepares a planning proposal that proposes to introduce a new exclusion, or alter an existing exclusion, to clause 4.6 of a Standard Instrument LEP (or an equivalent provision of any other environmental planning instrument).
A planning proposal may be inconsistent with the direction only if the planning proposal authority satisfies the Secretary (or a nominated Departmental officer) that it is inappropriate in the circumstances to allow flexibility in the application of the development standard.
Operates in relation to clause 4.6 of a Standard Instrument LEP made under the Standard Instrument (Local Environmental Plans) Order 2006, or an equivalent provision in any other environmental planning instrument, and is governed by the Department of Planning and Environment's 'Guide to exclusions from clause 4.6 of the Standard Instrument' dated November 2023.
In preparing the planning proposal the authority must have regard to the Department's 'Guide to exclusions from clause 4.6 of the Standard Instrument' (dated November 2023).
The planning proposal must minimise the exclusion of development standards from variation under clause 4.6 (or an equivalent provision).
A development standard must not be proposed for exclusion unless the exclusion is consistent with the criteria set out in Part 2 of the Guide.
Kiama LEP is a Standard Instrument LEP, so this direction bites whenever Kiama Council prepares a planning proposal that would add or change an exclusion from clause 4.6 variation — for example, seeking to make a height, floor space or minimum lot size standard non-variable in its heritage towns or coastal areas. Council could not simply lock such a control out of the variation pathway to resist future variation requests; it would have to keep any exclusion to a minimum and justify it against the Guide's Part 2 criteria, or otherwise satisfy the Secretary. It does not affect ordinary DAs; it only applies at the LEP-amendment (planning proposal) stage.
1.4A Exclusion of Development Standards from Variation Objective The objective of this direction is to maintain flexibility in the application of development standards by ensuring that exclusions from the application of clause 4.6 of a Standard Instrument Local Environmental Plan (Standard Instrument LEP) or an equivalent provision of any other environmental planning instrument, are only applied in limited circumstances. Application This direction applies when a planning proposal authority prepares a planning proposal that proposes to introduce or alter an existing exclusion to clause 4.6 of a Standard Instrument LEP or an equivalent provision of any other environmental planning instrument. Direction 1.4A (1) In preparing a planning proposal the planning proposal authority must have regard to the Guide to exclusions from clause 4.6 of the Standard Instrument. (2) A planning proposal to which this direction applies must: (a) minimise the exclusion of development standards from variation under clause 4.6 of a Standard Instrument LEP, or an equivalent provision of any other environmental planning instrument; and (b) not propose to exclude a development standard from variation under clause 4.6 of a Standard Instrument LEP, or an equivalent provision of any other environmental planning instrument unless the exclusion is consistent with the criteria in Part 2 of the Guide to exclusions from clause 4.6 of the Standard Instrument. Consistency A planning proposal may be inconsistent with the terms of this direction only if the planning proposal authority satisfies the Secretary (or an officer of the Department nominated by the Secretary) that it is inappropriate in the circumstances to allow flexibility in the application of the development st andard. Note: In this direction: • ‘Standard Instrument LEP’ means any local environmental plan that adopts the standard instrument set out in the Standard Instrument (Local Environmental Plans) Order 2006. • ‘Guide to exclusions from clause 4.6 of the Standard Instrument’ means the Guide to exclusions from clause 4.6 of the Standard Instrument prepared by the Department of Planning and Environment dated November 2023. Date commenced: 1 November 2023
Reproduced from the NSW Department of Planning, Housing and Infrastructure (planning.nsw.gov.au), © State of New South Wales, under Creative Commons Attribution 4.0. Text extraction may introduce minor formatting artefacts — rely on the official source for anything decision-critical.
This is an unofficial reproduction provided for convenience. It is not the official version of the legislation. For the official, in-force version, see legislation.nsw.gov.au.