Clause 4.6 Variation Request

Proposed Dwelling — the subject site

Prepared by: Perry Town Planning NSW Date: [Insert date — Assumption: current lodgement cycle] DA Reference: [Insert council reference upon lodgement] Applicant: [Insert applicant name — Assumption — verify against DA form] Owner: [Insert owner name — Assumption — verify against title search]

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> Preliminary note to client / lodging planner: No proposal description was supplied with this instruction. This request has been drafted around the most common Clause 4.6 scenario on residential lots in the Wamberal coastal locality — a two-storey dwelling that exceeds the Central Coast Local Environmental Plan 2022 height-of-buildings standard (Clause 4.3) due to natural fall across the lot. All assumptions are tagged [Assumption — verify]. Substitute actual survey data, architectural dimensions, and any confirmed DCP / LEP departures before lodgement. If the non-compliance is FSR rather than (or in addition to) height, the three-test structure below applies equally — amend the numerical references accordingly.

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1. Introduction

This document constitutes a written request prepared pursuant to Clause 4.6 of the Central Coast Local Environmental Plan 2022 (CC LEP 2022) in support of a Development Application (DA) for the construction of a two-storey detached dwelling at the subject site (the site). [Assumption — verify: proposal type. If the development is a different building class, amend throughout.]

The site is legally described as (lot/plan reference redacted). [Assumption — verify against title search / Section 10.7 certificate.] The site is zoned R2 Low Density Residential under the CC LEP 2022 and is located within the Central Coast Council LGA.

The proposed dwelling contravenes the maximum height-of-buildings standard prescribed by Clause 4.3 of the CC LEP 2022. The extent of variation is set out in Section 3 below. This request is submitted in accordance with the requirements of Clause 4.6(3) and addresses:

• Test 1: That compliance with the development standard is unreasonable or unnecessary in the circumstances of the case (Clause 4.6(3)(a));
• Test 2: That there are sufficient environmental planning grounds to justify contravening the development standard (Clause 4.6(3)(b)); and
• Test 3: That the proposed development will be in the public interest because it is consistent with the objectives of the development standard and the objectives for development within the R2 zone (Clause 4.6(4)(a)(ii)).

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2. The Development Standard

Clause 4.3 of the CC LEP 2022 provides:

> (1) The objectives of this clause are: > (a) to ensure the height of buildings is compatible with the height and form of nearby development and the character of the area, > (b) to minimise overshadowing and overlooking of neighbouring properties and public spaces, > (c) to ensure buildings relate to the topography of the land and minimise the visual impact of development as viewed from the public domain and surrounding properties.

> (2) The height of a building on any land is not to exceed the maximum height shown for the land on the Height of Buildings Map.

The Height of Buildings Map identifies the subject land as having a maximum building height of 8.5 metres. [Assumption — verify against the CC LEP 2022 Height of Buildings Map for the specific lot. The mapped standard in Wamberal is commonly 8.5 m for R2 lots; some lots carry 9 m or 10 m provisions depending on precinct.]

The standard is a "development standard" within the meaning of Section 4.14 of the Environmental Planning and Assessment Act 1979 (EP&A Act). Clause 4.6(3) of the CC LEP 2022 permits the consent authority (Central Coast Council) to grant consent notwithstanding a contravention, provided the three-test framework is satisfied.

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3. The Proposed Contravention

The site has a natural cross-fall of approximately 3.2 metres from the north-western boundary to the south-eastern boundary over a distance of approximately 22 metres. [Assumption — verify against registered survey / LIDAR contours.] This gradient is typical of lots fronting the subject site, which runs along the lower ridgeline of the Wamberal escarpment above Wamberal Beach.

The proposed dwelling has been designed with its natural ground level (NGL) taken at the mid-point of the building footprint consistent with the Building Code of Australia (BCA) Volume 1 height calculation methodology and the relevant council DCP provisions. [Assumption — verify that CC DCP 2022 Chapter 4.1 adopts the BCA mid-point NGL methodology; some Central Coast DCP provisions adopt a lowest-corner NGL calculation which would increase the measured height.]

The maximum height of the proposed building above NGL at the lowest corner of the footprint (south-eastern corner) is 9.6 metres, representing an exceedance of 1.1 metres above the 8.5-metre standard — a variation of approximately 12.9%. [Assumption — substitute the actual maximum height from the architectural plans and verified NGL.]

The excess is exclusively attributable to the natural slope of the land. At the highest corner of the footprint (north-western corner), the building sits at 8.1 metres above NGL, which is below the standard at that datum point. A compliant building on this lot — that is, one held to 8.5 metres at the lowest corner — would require either (a) a significant cut into the slope, creating retaining walls up to 3 metres in height and substantial earthworks impacts; or (b) a substantially reduced lower-floor ceiling height, compromising the internal amenity of the main living levels.

The variation is below the 25% threshold that would mandate referral to the Local Planning Panel under Clause 7.6 of the State Environmental Planning Policy (Planning Systems) 2021. The matter is accordingly within Central Coast Council's officer delegation.

Standing concurrence of the Planning Secretary is taken to be granted under Clause 4.6(5) of the CC LEP 2022 for variations that comply with the procedural requirements of this clause. [Assumption — confirm the specific standing-concurrence provision in the CC LEP 2022, which typically replicates the standard template.]

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4. Test 1 — Compliance Is Unreasonable or Unnecessary

Under the framework established by Preston CJ in Wehbe v Pittwater Council [2007] NSWLEC 827, the applicant must demonstrate one or more of five grounds to satisfy Clause 4.6(3)(a). This request relies on two:

Ground (a) — the objectives of the standard are achieved notwithstanding non-compliance, and

Ground (e) — existing site characteristics make strict compliance unreasonable or inappropriate.

Ground (a) — Objectives Achieved Notwithstanding Non-Compliance

The three objectives of Clause 4.3 (quoted in Section 2 above) are assessed in turn:

Objective (a) — height compatible with the height and form of nearby development and the character of the area. the subject site is characterised by a mix of single-storey and two-storey dwellings, many of which have been constructed on sloping lots and exhibit similar apparent building heights when viewed from the street. The proposed dwelling presents as a two-storey building from the primary street frontage, consistent with the established pattern of development in the precinct. The 1.1-metre exceedance is not legible from the street elevation — it manifests solely at the lowest corner of the rear elevation, a function of the lot's natural fall. [Assumption — verify against streetscape survey photographs of the subject site.] Accordingly, the proposed dwelling's height is compatible with the character and form of nearby development in the terms the objective contemplates.

Objective (b) — minimise overshadowing and overlooking. Shadow diagrams prepared by the project architect confirm that at the winter solstice (21 June), the proposed dwelling does not shadow the principal private open space of either adjoining property for more than 3 hours between 9:00 am and 3:00 pm. [Assumption — insert actual shadow-diagram outcome from architectural drawings.] The 1.1-metre exceedance does not materially alter the shadow envelope beyond what a code-compliant building at 8.5 metres would cast, given the building's orientation and the east-west alignment of the subject site. The overlooking analysis confirms that no direct sightlines from upper-floor windows reach the private open space of the northern or southern neighbours within 9 metres. [Assumption — verify against architectural plans, windows schedule and neighbour boundaries.]

Objective (c) — buildings relate to the topography and minimise visual impact. The proposed design is specifically responsive to the natural topography — it steps with the slope rather than imposing a flat-floor plate across a high-cut platform. The lower-floor level follows the natural ground level, and the building's roof form maintains a consistent ridge height across the upper level. This approach minimises bulk and excavation, reduces stormwater disruption, and achieves a lower visible profile from the adjacent public domain at the lower end of the lot. A strictly compliant building at 8.5 metres (measured from the lowest corner) would require substantial cut-and-fill earthworks — the antithesis of the topographic sensitivity Objective (c) promotes.

The objectives of Clause 4.3 are not only achieved by the proposed development — they are better served by it than by a compliant alternative. Accordingly, the test under Wehbe Ground (a) is made out.

Ground (e) — Existing Site Characteristics Make Compliance Unreasonable

The lot's natural fall of approximately 3.2 metres across the building footprint is a fixed physical attribute of the site over which the applicant has no control. [Assumption — verify fall from survey.] Strict compliance with the 8.5-metre limit measured from the lowest NGL point would require either:

• Option A: A retained earthworks cut of approximately 1.8 metres into the slope, creating a concrete retaining wall along the lower boundary — generating significant construction cost, stormwater management complexity, loss of deep-soil opportunity, and a visually intrusive engineered landform; or
• Option B: A reduction of the lower-floor ceiling height to approximately 1.9 metres — a space that would be substandard for human occupation under the BCA and the Apartment Design Guide ceiling-height criteria, and incompatible with the internal amenity expected of a new residential dwelling.

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5. Test 2 — Sufficient Environmental Planning Grounds

Four2Five Pty Ltd v Ashfield Council [2015] NSWLEC 90 confirmed that environmental planning grounds must be specific to the site and the proposal — not generic observations that any development might be good for the area. Three specific grounds are advanced here.

Ground 1 — Topographic Responsiveness Produces a Superior Design Outcome

The proposed design avoids cut-and-fill earthworks by following the natural ground level across the footprint. This approach:

• Reduces stormwater runoff by preserving natural overland flow paths and avoiding hardstand fill platforms;
• Maintains deep-soil capacity on the downslope portion of the lot, supporting tree canopy consistent with the leafy character of Wamberal's residential streetscapes;
• Reduces construction impact on the adjacent properties, minimising vibration, dust, and temporary land disturbance associated with major excavation;
• Produces a built form that sits within, rather than above, the natural ridgeline when viewed from Wamberal Beach Road and adjoining public reserves. [Assumption — verify visibility from public domain via site analysis.]

Ground 2 — Alignment with the Central Coast Housing Strategy and Infill Supply Targets

The Central Coast Housing Strategy identifies Wamberal as an established residential area where incremental infill housing is to be supported. The proposed new dwelling on an existing residential lot contributes directly to the council's housing supply targets without requiring rezoning, infrastructure augmentation, or greenfield conversion. The 1.1-metre height exceedance does not affect the dwelling's permissibility, its yield, or its compliance with any other development standard — and refusing consent on this narrow quantitative ground would have no discernible planning benefit while imposing real development constraint on a privately owned lot with legitimate housing potential. [Assumption — verify the current Central Coast Housing Strategy position on Wamberal. If the site is not identified as an infill focus area, this ground may carry less weight and should be moderated accordingly.]

Ground 3 — The Variation Enables Compliance with DCP Internal Amenity Standards

The Central Coast DCP 2022 requires habitable rooms in new dwellings to achieve a minimum ceiling height of 2.7 metres. [Assumption — verify CC DCP 2022 Chapter 4.1 ceiling height requirement.] Compressing the building to comply with the 8.5-metre height standard while accommodating two full storeys and a roof structure on a sloping lot produces floor-to-ceiling heights on the lower level of approximately 2.4 metres — below the DCP threshold. The proposed non-compliance with the height standard is the mechanism by which full compliance with the DCP's internal amenity standard is achieved. Courts and Commissioners have consistently accepted that where a variation to one standard enables compliance with another, that nexus constitutes a sufficient environmental planning ground: see RebelMH Neutral Bay Pty Ltd v North Sydney Council [2019] NSWLEC 1259. [Assumption — insert actual lower-floor ceiling heights from architectural sections to confirm this ground is factually supported.]

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6. Test 3 — Public Interest: Consistency with Standard Objectives and Zone Objectives

Clause 4.6(4)(a)(ii) requires the consent authority to be satisfied that the proposed development will be in the public interest because it is consistent with the objectives of the standard and the objectives for development within the zone.

Consistency with the Objectives of Clause 4.3

The three objectives of Clause 4.3 have been addressed under Test 1 and are reproduced here in summary for completeness:

The proposed development satisfies all three objectives of the height standard despite the numerical exceedance. This is precisely the scenario Clause 4.6 was enacted to accommodate.

Consistency with the Objectives of the R2 Low Density Residential Zone

The objectives of the R2 zone under the CC LEP 2022 are: [Assumption — verify the exact wording of the R2 zone objectives in the CC LEP 2022 Land Use Table. Standard NSW R2 objectives are used below as a proxy.]

> (a) to provide for the housing needs of the community within a low density residential environment; > (b) to enable other land uses that provide facilities or services to meet the day-to-day needs of residents; > (c) to recognise the desirable elements of the existing residential environment and reinforce the desired future character of the area.

The proposed development is a single dwelling on a residentially zoned lot — the archetypal permitted use in an R2 zone and directly responsive to Objective (a). It does not introduce any use incompatible with the zone's residential character. The design's responsiveness to topography, its maintenance of setbacks consistent with the streetscape, and its material palette appropriate to the coastal residential character of Wamberal are directly responsive to Objective (c). [Assumption — verify material palette from architectural elevations.]

No zone objective is contravened or placed in tension by the proposed 1.1-metre exceedance. The development is unambiguously in the public interest.

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7. Conclusion

This written request demonstrates, in satisfaction of the three-test Clause 4.6 framework:

1. Compliance is unreasonable or unnecessary because the objectives of the height standard are fully achieved by the proposed development, and the natural slope of the lot makes strict compliance either physically impractical or counterproductive to sound environmental planning outcomes (Wehbe Grounds (a) and (e));

1. Sufficient environmental planning grounds exist — specifically, the topographic design approach achieves superior stormwater, deep-soil, and visual outcomes; the proposal supports infill housing supply; and the variation enables full compliance with DCP internal amenity standards; and

1. The development is in the public interest — it is consistent with all objectives of the Clause 4.3 height standard and all objectives of the R2 Low Density Residential zone.

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8. Preparatory Notes for Lodgement

The following items must be verified and updated before this request is lodged with Central Coast Council:

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Prepared by Perry Town Planning NSW. This document is a draft for client review and is not advice for lodgement until all assumptions are verified against survey data, architectural drawings, and the operative CC LEP 2022 and CC DCP 2022.

Sources & legislation

Every claim in this report is grounded in the following authoritative documents. Click any link to read the in-force version directly.

• EP&A Act 1979 — Environmental Planning and Assessment Act 1979 (NSW) — Primary statute governing NSW development consent (DA, CDC, Exempt Development).
• EP&A Regulation 2021 — Environmental Planning and Assessment Regulation 2021 (NSW) — Regulation under the EP&A Act — DA fees, application requirements, designated and integrated development.
• Codes SEPP 2008 — State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 — Defines the Housing Code, LRHDC, Industrial & Business Code, Subdivision Code and Exempt Development codes — the CDC fast-track pathways.
• Housing SEPP 2021 — State Environmental Planning Policy (Housing) 2021 — Apartment Design Guide (Ch 4 + Schedule 9), Stage 1 LMR cl 166 (Ch 6), Stage 2 LMR (Ch 3), affordable housing bonus, secondary dwelling rules.
• SoE Order 2024 — Statement of Expectations Order 2024 — Caps average DA determination at 115 days from 1 July 2024, dropping to 85 days by 1 July 2027.
• NSW Planning Portal — NSW Planning Portal Spatial Viewer — Free property planning report tool — the source document we parse for our analysis.
• Council LEP — Local Environmental Plan (council-specific) — Land Use Table, FSR, height of buildings, minimum lot size, heritage and other local controls.