Variations review

The NSW Government is making the planning system faster, simpler and more transparent.

The reforms reduce the risk of corruption and ensure the assessment process remains rigorous and accountable while maintaining the flexibility needed to ensure good planning outcomes.

Clause 4.6 of the Standard Instrument LEP has been simplified to provide more certainty about when and how development standards can be varied.

Environmental Planning Instruments (EPIs), including Local Environmental Plans (LEPs) and State Environmental Planning Policies (SEPPs), set out development standards – such as building heights and floor space ratios – that must be met when preparing a development application.

The reforms came into effect on 1 November 2023.

Clause 4.6 in the Standard Instrument LEP and equivalent provisions in non-standard LEPs and SEPPs have been amended to:

• retain the existing ‘unreasonable and unnecessary’ and ‘sufficient environmental planning grounds’ tests, but requiring consent authorities to consider the same matters as applicants are required to address in their written request
• simplify the drafting, notably removing specific references to considering the public interest in the clause, noting that consideration of the public interest is already an obligation of consent authority
• remove the requirement to obtain the Planning Secretary’s concurrence for a variation. A new reporting framework will replace the concurrence obligations to ensure transparency and accountability in decision making.

The existing test that applicants must meet in order to seek to vary development standards has not changed.

Details of all variation requests under assessment or lodged from 1 November 2023 are available on the NSW Planning Portal, providing increased transparency for the community and monitoring by the department. A new regulation requires councils to enter the reasons for approving or refusing a variation in the NSW Planning Portal.

We have provided an updated Guide to Varying Development Standards to give councils and applicants more clarity on applying for and assessing variations. The guide also outlines councils’ reporting obligations and the approach the department will take to monitoring and reporting on variation decisions. The guideline also includes a template Request to vary a development standard (DOCX, 15 KB).

These changes will only apply to development applications lodged after commencement of the new clause.

The concurrence of the Planning Secretary is required for Development Applications lodged before 1 November 2023 which propose variations to development standards. The Assumed Concurrence Notice dated 21 February 2018 remains in effect for those DAs.

Find out more about the reforms by reading our frequently asked questions (PDF, 131 KB).

Clause 4.6 of the Standard Instrument gives councils the ability to exclude certain development standards in their Local Environmental Plans from variation.

A new framework outlined by a section 9.1 Ministerial Direction (PDF, 118 KB) will guide the use of exclusions to clause 4.6. Exclusions will only be allowed in limited circumstances.

Find out more by reading our Guide to exclusions from clause 4.6 of the Standard Instrument (PDF, 147 KB).

The exclusions framework only applies to new planning proposals seeking to add an exclusion or amend an existing exclusion after 1 November 2023.

Confusion over how the clause has been applied has contributed to delays and cost burdens for applicants and councils. This has had resourcing implications for local councils and the courts.

The Independent Commission Against Corruption (ICAC) Inquiry in 2021 into allegations of impropriety at Canterbury Council (Operation Dasha), indicated concerns that varying development standards can dilute transparency in the planning system and allow opportunities for corruption.

The changes to clause 4.6 clarify the requirements for variations to development standards and improve transparency and accountability in the planning system by introducing a monitoring and performance framework.

An explanation of intended effect showing proposed changes to clause 4.6 was exhibited from 31 March until 12 May 2021. Feedback to the exhibition led to further refinement of the proposed changes.

We consulted on the revised reforms in a series of workshops with councils, industry peak bodies, planning consultants and lawyers during 2022.