Development standards are set within the Local Environmental Plan (LEP) and Development Control Plan (DCP).
Varying development standards in the LEP
Ordinarily, development standards in an LEP are fixed and cannot be varied, however, clause 4.6 provides for a limited opportunity to vary development standards for assessment with a development application.
Clause 4.6 provides a degree of flexibility so better development outcomes can be achieved for a proposed development, subject to demonstrating the development standard is unreasonable or unnecessary given the circumstances of the proposed development and land. There is no automatic right to vary a development standard, therefore, the onus is on the applicant to provide justification for the variation.
When considering whether a variation should be granted, Council must consider both the mandatory zone objectives as well as any additional objectives for the standard. Council must also consider whether non-compliance with the development standard raises any matter of significance for State and regional planning, and the public benefit of maintaining the adopted planning controls. As part of the consideration, Council examines whether the proposed development is consistent with the State, regional or local planning objectives for the locality.
All variations to a development standard granted by Council are reported quarterly to the Department of Planning, Industry & Environment. The link at the bottom of this page provides a list of all development standard variation approvals from the 2016-2017 financial year to the present.
Varying development standards in the DCP
Under the Environmental Planning & Assessment Act 1979, Development Control Plans (DCP) are required to be applied flexibly and consent authorities are required to allow for alternate solutions to DCP requirements so that otherwise permissible development may be carried out. The role of the DCP is to give effect to the LEP by supporting the aims of the instrument, the range of permitted development under the LEP and the objectives of applicable land use zones. Council will consider variations to the development controls set out in the DCP where a proposed development can otherwise demonstrate that it achieves or improves upon the applicable planning objectives. Council will consider variations to the DCP provisions as set out below:
- Where a proposal does not comply with a particular development control, the applicant may propose an alternative solution. In some circumstances, variations can produce improved and innovative solutions for a particular site.
- A written variation request must:
- Identify the development control that is to be varied and detail the extent of variation proposed;
- Identify the general and/or specific objectives of that control and how the variation complies with the objectives;
- Justify why the specific provisions of the policy do not make appropriate provisions with regard to the subject application; and
- Demonstrate why compliance with the provisions of this DCP is unreasonable or unnecessary in the particular circumstances of the case.
Note: Variations to a development control(s) will only be considered where the specific development objective can be met.
From 1 January 2021, Development Applications lodged via the NSW Planning Portal may seek a variation to an LEP development standard within the Portal application. However, Development Applications lodged outside the Portal must be supported with a completed Request for Variation of an LEP Development Standard Form and lodging it with the development application.
All requests to vary a Development Control Plan (DCP) standard must be supported by a completed Request to vary the Development Control Plan Form. The applicable form must be lodged with a Development Application. The completed form must be uploaded as a support document for applications lodged via the NSW Planning Portal.