Background
The applicant, Peter Dellimanolis, appealed to the NSW Land and Environment Court after the Canterbury Bankstown Council refused his development application. The proposal was to demolish a house and build a two-storey, 65-place child care facility on Robertson Road, Chester Hill. While child care facilities are permissible in the zone, the Council rejected the application based on a specific clause in its Local Environmental Plan (CBLEP).
The central issue was the interpretation of Clause 6.13 of the CBLEP. This clause states that development consent “must not be granted” for a child care facility if its vehicular access is from a cul-de-sac or a road with a carriageway less than 10 meters wide. The proposed site’s access road, Robertson Road, was both a cul-de-sac and had a width of only 9.2 meters.
The applicant argued that Clause 6.13 was a “development standard,” not an absolute prohibition. If it were a development standard, he could request a variation under Clause 4.6 of the plan, which allows for flexibility where strict compliance is unreasonable or unnecessary. The Council argued that Clause 6.13 was a clear prohibition based on the road’s characteristics, and therefore could not be varied.
The Court’s Holding
The Court dismissed the appeal, upholding the Council’s refusal of the development application. Acting Commissioner Swan found that Clause 6.13 of the CBLEP is not a development standard and is therefore a strict prohibition that cannot be varied by a Clause 4.6 request. As a result, the Court had no power to approve the development.
The Court’s decision rested on the statutory definition of “development standards” in the Environmental Planning and Assessment Act 1979. A provision must regulate an “aspect of that development” to be a standard. The Court held that the nature of the adjoining public road (being a cul-de-sac and its width) is an external feature of the surrounding environment, not an aspect of the proposed development itself. The clause did not regulate how the facility should be built, but rather established a precondition for where it could be located based on existing infrastructure.
Following established case law, the Court drew a distinction between a rule that says “on land of characteristic X, no development may be carried out” (a prohibition) and one that says “on such land, development may be carried out in a particular way” (a standard). Clause 6.13 was found to be the former. Since the development was prohibited by a clause that was not a development standard, the request to vary it was irrelevant and the application had to be refused.
Key Takeaways
- A planning control that establishes a precondition for development based on an external factor, such as the type or dimension of an existing public road, is likely to be classified as a prohibition, not a flexible development standard.
- The distinction between a “development standard” (which can often be varied) and a “prohibition” (which cannot) is crucial. A provision must relate to an “aspect of the development” itself to be considered a standard.
- Developers cannot use variation clauses (like Clause 4.6 in NSW) to overcome clear prohibitions in a planning instrument that are based on the inherent characteristics of the land or its surroundings.
Why It Matters
This decision reinforces the power of local councils to enact strict, non-negotiable controls to manage development impacts on local infrastructure, safety, and residential amenity. It clarifies that when a planning rule is tied to fixed, external conditions like the nature of a public road, it is likely to be interpreted as a firm prohibition that is not subject to the flexibility afforded to typical development standards like height or setback controls.
For developers and legal professionals, the case is a reminder that the ability to vary a planning control depends entirely on its legal character. A control that functions as a gateway test or a precondition based on the surrounding environment presents a much higher, and often insurmountable, barrier to development approval compared to a control that merely regulates the physical form of the proposed building or works.