Legal Project Management Plan & Checklist
Use this fork when the proposed development breaches a development standard in the applicable Local Environmental Plan (such as maximum building height, maximum floor space ratio, minimum lot size, or minimum setback), or when the approved plans physically encroach on a neighbouring property. A Commissioner has no legal power to grant consent or accept a s 34 Agreement unless all jurisdictional prerequisites are first satisfied. If the development breaches a standard, a valid Clause 4.6 written variation request satisfying a strict two-part test must be lodged. If there is a physical encroachment on third-party land, written consent from the landowner must be obtained or parallel proceedings to impose an easement must be commenced under s 40 of the Land and Environment Court Act 1979 (NSW).
This fork operates in the Land and Environment Court of New South Wales, Class 1, with parallel s 40 easement proceedings in the LEC if landowner consent cannot be obtained for encroachments.
The development standard breach is identified in the Issues Register generated from joint expert conferencing. Clause 4.6 viability is assessed against the strict two-part test. A formal written variation request is drafted addressing both limbs: (1) that compliance with the standard is unreasonable or unnecessary in the circumstances; and (2) that there are sufficient environmental planning grounds to justify the variation. For encroachments, the neighbouring landowner is approached for written consent. If consent is refused, a s 40 easement application is filed in the LEC as parallel proceedings. All Clause 4.6 materials and jurisdictional prerequisites are compiled into the Jurisdictional Statement appended to the s 34 Agreement. The Jurisdictional Statement is carefully verified for compliance with the requirements confirmed by the Court of Appeal.
Key legislation: Environmental Planning and Assessment Act 1979 (NSW) Clause 4.6 (standard Local Environmental Plan template for development standard variations - two-part test: unreasonable or unnecessary compliance, plus sufficient environmental planning grounds); Land and Environment Court Act 1979 (NSW) s 40 (jurisdiction to impose easements over third-party land). Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245: a Commissioner has no jurisdiction to grant consent or accept a s 34 Agreement unless all development standards are either complied with or a valid Clause 4.6 written request satisfying the two-part test is before the Court. Joseph v Spencer [2026] NSWCA 46: sets out the current requirements for the Jurisdictional Statement accompanying a s 34 Agreement, including the need to identify each jurisdictional prerequisite met and to confirm that the consent would not be inconsistent with the objects of the Act. Note: Clause 4.6 does not permit variation of development standards that are expressed as mandatory requirements (non-variable standards) - always check the relevant LEP clause before advising the client.
* Disclaimer: We're nobody's lawyer, because we aren't lawyers. You are, so you know better than to take legal advice from an app. We also aren't accountants or dog trainers - just digital spirit guides taking zero liability for any of this. This site exists to gather the collective knowledge of practitioners like you. Verify everything and submit your feedback on the Planning: Development Appeal - LEC Class 1 (Applicant) - Jurisdictional Obstacles - Clause 4.6 Variation or Development Standard Breach matter plan to improve the playbook. THIS IS NOT LEGAL ADVICE, it's a request for input.
This legal matter plan provides a structured workflow for REAL_ESTATE cases, outlining the standard DISPUTE_LITIGATION process. Utilize these tracking templates to manage your legal cases efficiently.
The jurisdictional obstacle is precisely identified and a clear strategy for overcoming it (Clause 4.6 variation, landowner consent, or s 40 easement) has been established.
The Clause 4.6 written request is in place and any encroachment is being actively resolved. The appeal can proceed toward the conciliation conference with the jurisdictional obstacles being addressed.
The Commissioner has all the information required to satisfy themselves of jurisdictional compliance before making consent orders under s 34 of the LEC Act.
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