Answer first: Clause 4.6 of the Standard Instrument Local Environmental Plan allows a consent authority to grant development consent even where a proposal contravenes a development standard (for example building height, floor space ratio or minimum lot size), provided the applicant’s written request demonstrates that compliance is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify the contravention. It is a DA flexibility tool — not a CDC pathway, not a Building Code variation, and never a guaranteed outcome.
Author: Franz Phan, Senior Planning Consultant, giantA Pty Ltd · Updated 12 September 2026
What is Clause 4.6 and what does it actually do?
Clause 4.6 — Exceptions to development standards — sits in Part 4 of the Standard Instrument—Principal Local Environmental Plan (2006 EPI 155a). Its stated objectives are to provide an appropriate degree of flexibility in applying certain development standards, and to achieve better outcomes for and from development by allowing flexibility in particular circumstances.
In plain terms for designers and owners: if your Local Environmental Plan (LEP) sets a numerical or other development standard that the design cannot meet while still delivering a good planning outcome on that site, Clause 4.6 is the formal pathway — lodged with a Development Application — to ask the consent authority to grant consent despite that contravention.
Typical LEP development standards people seek to vary include:
- maximum building height
- floor space ratio (FSR)
- minimum lot size (subject to the rural/environmental subdivision restrictions in clause 4.6(6))
- other LEP provisions that meet the legal definition of a development standard
Always confirm the precise control in the LEP applying to the land. Council DCP “controls” are not automatically Clause 4.6 development standards; many DCP provisions are assessed under section 4.15 of the Environmental Planning and Assessment Act 1979 as matters for consideration, not via Clause 4.6.
Sources: Standard Instrument LEP clause 4.6 · NSW Planning — Variations review.
What is Clause 4.6 not?
| Pathway / instrument | Is Clause 4.6 the right tool? |
|---|---|
| Varying an LEP development standard (height, FSR, lot size, etc.) with a DA | Yes — subject to the clause tests and any exclusions |
| Complying Development Certificate (CDC) under a SEPP | No — Clause 4.6 does not apply to development standards for complying development (clause 4.6(8)(a)) |
| Departing from National Construction Code / Building Code of Australia requirements | No — that is a different certification / performance solution pathway |
| Varying a BASIX commitment arising under the regulations | No — expressly excluded (clause 4.6(8)(b)) |
| Changing zoning or rewriting the LEP control itself | No — that requires a planning proposal / LEP amendment pathway |
| Seeking flexibility only against DCP design guidance | Usually no — address under s 4.15 merit assessment; confirm whether any LEP standard is also breached |
If you are still choosing between Exempt, CDC and DA, start with giantA’s pathway guide: Exempt Development vs CDC vs DA NSW 2026.
What must a written Clause 4.6 request demonstrate?
From 1 November 2023, clause 4.6(3) requires the consent authority to be satisfied that the applicant has demonstrated that:
- compliance with the development standard is unreasonable or unnecessary in the circumstances; and
- there are sufficient environmental planning grounds to justify the contravention of the development standard.
The Environmental Planning and Assessment Regulation 2021 section 35B requires a DA that proposes to contravene a development standard to be accompanied by a document setting out those grounds (the familiar “written request”). The Department’s Guide to Varying Development Standards also provides a template Request to vary a development standard.
How do practitioners usually frame “unreasonable or unnecessary”?
NSW case practice (often traced to Wehbe v Pittwater Council [2007] NSWLEC 827 and later authorities) commonly explores ways to show that strict compliance is unreasonable or unnecessary — for example where the underlying objectives of the standard are still achieved despite the numerical departure. The November 2023 reforms expressly note that consideration of the objectives of the standard can remain relevant to that first limb, even though the former stand-alone “public interest because consistent with objectives of the standard and the zone” test was removed from clause 4.6 itself.
Do not treat case “ways” as a checklist that guarantees approval. The consent authority must be satisfied on the facts of this site, this standard and this design.
What are “sufficient environmental planning grounds”?
Environmental planning grounds are planning reasons tied to the proposed contravention — not generic design preference, not cost alone, and not “neighbours did it”. Stronger requests typically connect the departure to site constraints, better built-form outcomes, reduced amenity impacts compared with a compliant alternative, or alignment with the strategic intent of the controls while still explaining why the number cannot be met. The Department’s guide emphasises clarity, evidence and a direct link between the grounds and the contravention sought.
Sources: Changes related to clause 4.6 FAQ (PDF) · Variations review.
What changed on 1 November 2023 — and what still matters in 2026?
The clause 4.6 reforms commenced on 1 November 2023 and continue to frame practice in 2026:
| Topic | Position after 1 November 2023 |
|---|---|
| Core tests | Unreasonable/unnecessary + sufficient environmental planning grounds retained |
| Public-interest-via-objectives test inside cl 4.6 | Removed as a separate cl 4.6 satisfaction matter (public interest and zone objectives still arise under broader DA assessment, including EP&A Act s 4.15 and LEP clause 2.3) |
| Planning Secretary concurrence | Removed for DAs lodged after commencement |
| Written request / document | Still required (now anchored in EP&A Regulation s 35B) |
| Transparency | Variation requests and determination reasons reported through the NSW Planning Portal; public variations register |
| Quarterly council variation reports under old PS 20-002 | Replaced by Portal-based monitoring (Part B of the Guide) |
| Savings | DAs lodged but not determined before commencement continue under the previous clause |
giantA tip: when you inherit a stalled DA, check the lodgement date. Pre-1 November 2023 lodgements can still sit under the former concurrence arrangements; post-commencement lodgements follow the reformed clause and Portal reporting.
Which standards cannot be varied under Clause 4.6?
Clause 4.6(8) does not allow consent for development that would contravene, among other things:
- a development standard for complying development
- a development standard that arises under the regulations in connection with a BASIX commitment for a relevant building or land
- clause 5.4 and clause 5.5 of the Standard Instrument (and any additional LEP-specific exclusions added under the Direction)
Clause 4.6(6) also restricts use of the clause for certain rural, environmental and large lot residential subdivision outcomes below minimum lot size (including the 90% rule for at least one lot).
Councils may also have LEP-specific exclusions. A new section 9.1 Ministerial Direction and Guide to Exclusions from clause 4.6 constrain when new exclusions can be created via planning proposals after 1 November 2023. Always read clause 4.6(8) and any local exclusions in the LEP that applies to the site before promising a variation pathway.
Sources: Standard Instrument clause 4.6 · Variations review — exclusions framework.
How should architects and designers document a Clause 4.6 DA package?
Treat the written request as a decision document, not a cover letter. A practical documentation sequence we use at giantA:
- Confirm the exact development standard — quote the LEP clause number, map annotation and numerical standard (for example maximum height in metres / RL, or FSR).
- Measure the contravention clearly — proposed vs permitted, absolute and percentage departure, and where on the building the exceedance occurs.
- Explain the compliant alternative — briefly show what a strictly compliant scheme would look like and why it is a poorer planning outcome (or otherwise makes compliance unreasonable/unnecessary on the facts).
- Address the two statutory limbs in order — unreasonable/unnecessary, then environmental planning grounds — with evidence, not adjectives.
- Tie drawings to the request — height planes, FSR diagrams, sections and envelopes must match the numbers in the written request.
- Coordinate amenity evidence — where height or bulk is in issue, solar access, privacy and streetscape material often decide credibility. See Shadow diagrams NSW DA 2026 when overshadowing is live.
- Check exclusions early — CDC standards, BASIX-linked standards, cl 5.4/5.5 and local exclusions kill variations before merits debate.
- Use pre-DA wisely — raise the likely variation at a council pre-lodgement meeting with marked-up envelopes. See Pre-DA meetings in NSW 2026.
What should you check before you lodge?
- Pull the current LEP, Height of Buildings / FSR maps and clause text for the lot.
- Obtain or refresh a planning certificate context for zoning and applicable instruments — see Section 10.7 planning certificates NSW 2026.
- Confirm whether the control is truly a development standard capable of variation.
- Quantify the departure and mark it on plans and a 3D/section height plane.
- Draft the written request against clause 4.6(3) and Regulation s 35B.
- Align SEE/planning report narrative with the same two limbs (avoid contradictory justifications).
- Expect Portal transparency: variation details and reasons for approval or refusal are part of the modern reporting framework.
How do councils and panels typically assess the request?
The consent authority must be satisfied the applicant has demonstrated both limbs of clause 4.6(3), and must keep a record of that assessment (clause 4.6(4)). Under the reformed framework, councils, local planning panels and Sydney district / regional planning panels report reasons for approving or refusing the contravention through the NSW Planning Portal (EP&A Regulation s 90A — noting Land and Environment Court determinations on appeal are treated differently for that reporting obligation).
Where there is no local planning panel, Department guidance continues to expect DAs with larger variations (commonly discussed as over 10%) to be reported to the elected council for determination — providing additional oversight. Always check the council’s current delegations and panel referral criteria; do not assume a percentage alone decides the pathway.
A Clause 4.6 request can be refused even where the architecture is carefully resolved. Conversely, a modest numerical departure with weak grounds can also fail. The written request quality matters as much as the millimetres of exceedance.
When is a planning proposal smarter than Clause 4.6?
The Department’s LEP-making guidance notes that where a proposal is otherwise permissible and only needs limited flexibility against a development standard, Clause 4.6 can be more efficient than amending the LEP. But if the project needs a control change that is strategic, recurring across multiple lots, or excluded from variation, a planning proposal may be the honest path. Discuss that fork early with the consent authority rather than forcing a variation that cannot lawfully be granted.
Does Clause 4.6 guarantee council approval if we meet both tests on paper?
No. Meeting the statutory structure of the written request is necessary but not sufficient. The consent authority must be satisfied on the evidence, and the DA is still assessed against the full suite of section 4.15 considerations. giantA never guarantees consent outcomes.
Can we use Clause 4.6 on a CDC?
No. Clause 4.6(8)(a) prevents using the clause to contravene a development standard for complying development. If the design cannot meet CDC standards, the usual alternative is a DA (with or without a Clause 4.6 request against LEP standards, as applicable).
Do we still need Planning Secretary concurrence in 2026?
For DAs lodged after 1 November 2023, the reforms removed the requirement to obtain the Planning Secretary’s concurrence. Older undetermined DAs lodged before commencement can still sit under the previous concurrence arrangements. Confirm lodgement timing on the file.
Is “public interest” irrelevant now?
Not as a planning concept. The stand-alone public-interest-via-objectives satisfaction test was removed from clause 4.6, but public interest and zone objectives remain part of ordinary DA assessment under the EP&A Act and LEP clause 2.3. Address them in the broader SEE; do not ignore them because cl 4.6 was simplified.
What should owners budget time for?
Variation DAs often attract deeper scrutiny, possible panel referral and requests for further information on height planes, FSR calculations and amenity. Build programme contingency after pre-DA feedback rather than assuming a “minor” percentage means a fast consent.
How can giantA help?
giantA Pty Ltd prepares and coordinates NSW residential and commercial DA documentation, including Clause 4.6 written requests aligned to LEP standards, drawing sets and amenity evidence. We work as senior practitioners — clear about lawful pathways, transparent about risk, and careful never to invent controls or promise outcomes.
Ready to test whether your height, FSR or setback departure is a variation candidate or needs redesign? Contact giantA.
This article is general information for NSW practice as at 12 September 2026. Always verify the LEP and instruments applying to the land and obtain site-specific advice. Official sources: legislation.nsw.gov.au and planning.nsw.gov.au.