Legal Project Management Plan & Checklist
Purpose of this Guide: This fork activates when the proposed development breaches a development standard under the applicable Local Environmental Plan (LEP) (such as maximum building height, maximum floor space ratio, minimum lot size, or minimum setback), or when the development physically encroaches on third-party land. A Commissioner has NO legal power to grant consent or accept a s 34 Agreement unless all jurisdictional prerequisites are satisfied. Under ***Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245***, this includes satisfying the Court that either: (a) all development standards are complied with; OR (b) a valid Clause 4.6 written request has been submitted and the two-part test is satisfied (compliance is unreasonable or unnecessary in the circumstances AND there are sufficient environmental planning grounds to justify the variation). For encroachments on third-party land: either written landowner consent is obtained, or parallel proceedings to impose an easement must be commenced under s 40 of the . This guide covers: identifying the breach, assessing Clause 4.6 viability, drafting the written variation request satisfying the two-part test, obtaining landowner consent or filing a s 40 easement application, and preparing the Jurisdictional Statement for the s 34 Agreement in compliance with ***Joseph v Spencer [2026] NSWCA 46***.
Jurisdiction: Land and Environment Court of New South Wales - Class 1. Parallel s 40 easement proceedings are also in the LEC. Verify current guidelines on the official NSW Legislation.
The Process at a Glance: The development standard breach is identified in the Issues Register. Clause 4.6 viability is assessed against the two-part test. A formal written variation request is drafted establishing both limbs. For encroachments: landowner consent is sought first; if refused, a s 40 easement application is filed in the LEC as parallel proceedings. The Clause 4.6 request and all jurisdictional prerequisites are compiled into the Jurisdictional Statement appended to the s 34 Agreement. Verify current guidelines on the official NSW Legislation. Access services via the NSW Courts.
* 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.
Verify all prerequisite documentation has been obtained, cross-reference against the statutory requirements for this matter type, and confirm compliance with practice direction protocols.
The Clause 4.6 two-part test is strict. Courts have rejected Clause 4.6 requests where: (a) the applicant merely asserts compliance is 'unreasonable' without identifying specific site constraints or design imperatives; or (b) the environmental planning grounds offered are generic or unconnected to the character of the site. The town planner's supporting evidence must specifically address why THIS development on THIS site in THIS zoning context warrants the variation, not merely that variations of this type are commonly granted.
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.
Prepare the relevant forms and supporting materials required under the applicable legislation, ensuring all mandatory fields are completed and all attachments are properly certified.
The Commissioner has all the information required to satisfy themselves of jurisdictional compliance before making consent orders under s 34 of the LEC Act.
Coordinate the collection and review of all financial documentation required for disclosure, including statements, valuations, and supporting schedules as mandated by the rules.
Draft and dispatch formal correspondence addressing the procedural requirements at this stage, including any required notices, requests for information, or proposals for resolution.
Al Maha Pty Ltd v Huajun Investments Pty Ltd [2018] NSWCA 245: Held that a Commissioner must affirmatively satisfy themselves of each jurisdictional prerequisite before making consent orders under s 34. The Commissioner cannot simply rely on the parties' assertions without positive evidence. A Jurisdictional Statement that fails to address a prerequisite (even one that was overlooked) may result in the Commissioner declining to make orders, returning the matter to the registry, and incurring additional delays and costs.
Joseph v Spencer [2026] NSWCA 46: The Court of Appeal confirmed that a Commissioner is entitled to rely on a joint Jurisdictional Statement prepared by the parties' solicitors where there is no obvious error on the face of the statement. This moderated Al Maha's practical burden on Commissioners, but the obligation on solicitors to ensure the Jurisdictional Statement is accurate and comprehensive remains absolute.
Practical tip: the most common jurisdictional prerequisite that is overlooked is the concurrence requirement under SEPPs. Practitioners should systematically work through each applicable SEPP (including SEPP (Biodiversity and Conservation) 2021, SEPP (Resilience and Hazards) 2021, SEPP (Transport and Infrastructure) 2021) to identify all concurrence obligations before finalising the Jurisdictional Statement.