A statutory mechanism introduced by NSW with the goal of allowing developers to deviate from standard planning controls when warranted by circumstance is having the opposite of its intended effect.

Local Environmental Plans (LEPs) throughout NSW all contain Clause 4.6, which seeks to provide greater latitude for “exceptions to development standards” that enable projects to flout LEP controls with respect to height or floor space ratio (FSR) under special circumstances.

The ostensible goal of the clause is to permit greater flexibility when it comes to housing or building outcomes, instead of forcing all developments to comply with iron-clad planning controls.

According to Michael Rowe of urban design consultancy JBA, the statutory mechanism is failing to achieve its intended goal of permitting greater deviation from planning requirements.

“Clause 4.6’s purpose is to allow for more flexibility in planning controls, but because of way the courts have treated it and the councils have implemented, it’s the furthest thing from allowing for the flexibility originally intended,” he said. “It’s essentially a guilty until proven innocent rather than an innocent until proven guilty system for how we look at planning variations.

“You immediately start on the back foot if you’re hoping to challenge a planning control, even if there’s a much better outcome that can be achieved by not complying.”

Rowe attributes the ineffectiveness of the statutory measure to the historical legacy that underlies its developments.

“One of the overarching problems is that the clause itself is borne of the historical legacy of the original State Environmental Planning Policy (SEPP),” he said. “There have been even more court cases over time that have essentially led to a far more complicated and less merit based form of assessing applications, that then translates into Clause 4.6.”

The system as it currently stands results in prolonged delays to projects for even basic deviations from planning controls that local councils are readily willing to approve.

“It’s common, for example, for a council to say that it will support extra height, but you will to have to amend the LEP the change to be supported,” Rowe said. “So you have a process for amending the height control which takes 12 months at a minimum to do, in order to secure the support of council.

“What was the whole point if the council supported it at the beginning – why are we going down a 12-month process in order to get an outcome that we could have had at the outset? Why we would be stopping the developer from adding an additional floor and providing another eight apartments?

“For me it relates to addressing issues with housing affordability and housing supply.”

Rowe points to Queensland as an excellent example of a planning approval system which provide a large of measure stability and predictability to development outcomes via the imposition of controls, while at the same time allowing for deviations from requirements when merited by specific developments or circumstances.

“There needs to be certainty for all stakeholders via those key fundamental planning controls which inform development, while also avoiding the imposition of unnecessary planning controls that restrict development or cause delays in planning,” he said. “Queensland has two different assessment pathways – you can either go through a code assessment or do a merit assessment.

“The code assessment basically sets out detailed guidelines, and if you tick all the boxes you can get a fast-tracked planning approval where you don’t have to go through the normal council type assessment process. It’s extremely streamlined.

“But if you think you can get a better outcome by varying it – which might mean greater height, then you can choose to apply for the merit assessment process, where the focus is variation from those control.”

Rowe notes that under the Queensland system, planning approvals are issued far more expeditiously than those in NSW.

“If you do everything in accordance with what council wants, you don’t have to go through a six to 12-month process to get to that approval. It can all happen in 20 days – pretty quick turnaround,” he said. “In NSW, you can have a fully compliant development, and very often it will still take you six to twelve months to get it through the council.”

NSW’s sluggish approvals process could be having a negative effect upon the state’s broader housing development situation – an issue of critical importance for residents given ongoing problems with affordability.

“It’s a factor in housing supply and affordability,” said Rowe. “We’ve got a planning system that prevents development from happening rather than facilitating good development, which means the pipeline for supply gets slowed down with it.

“Nor are we getting the best design outcome, because sometimes it’s better to comply in order to get things passed faster by council.”