The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 makes key changes to planning and local government laws.
Development consent by Ministerial order
The Emergency Measures Bill will amend the Environmental Planning and Assessment Act 1979 (Planning Act) to allow the for Planning Minister to authorise development by order published in the Government Gazette, without the need for any further approval under the Planning Act.
The Planning Minister may only authorise development by order if he or she:
- has consulted the Minister for Health and Medical Research; and
- is reasonably satisfied that the making of the order is necessary to protect the health, safety and welfare of members of the public during the COVID-19 pandemic.
- overrides any limitation that might otherwise arise under an environmental planning instrument or consent;
- is taken to be the grant of a development consent;
- can contain conditions, and these are taken to be conditions of development consent;
- can also provide that specified “regulatory instruments” do not apply to development specified in the order (or apply with any modifications specified in the order), to the extent necessary to allow that development to be carried out; and
- can relate to a class of development, in which case, it is taken to be a separate development consent for each development in the class.
The power to suspend regulatory instruments is similar to the existing Planning Act provisions which allow a planning instrument (such as a State environmental planning policy or a local environmental plan) to do so. However, the Emergency Measures Act has fewer consultation requirements than the existing Planning Act provisions.
The effect of this suspension power is potentially very wide. The kinds of “regulatory instruments” which it covers include “any Act (other than the Planning Act), rule, regulation, by-law, ordinance, proclamation, agreement, covenant or instrument by or under whatever authority made”.
The Minister may issue an order during the six-month period following the commencement date. This period can be extended by regulation to 12 months.
How far could the Minister for Planning's new powers go?
These are clearly extraordinary powers. While the Minister must be reasonably satisfied that an order is necessary for public health, safety and welfare reasons, this does not mean that only public health developments (such as hospitals or other medical facilities) can be authorised by an order. There’s a wide range of developments which could be necessary for the protection of public health and safety, and the ability to make orders in relation to classes of development could be used to significantly streamline the process.
The Parliamentary debates, while not binding, give some indication of the way in which the Planning Minister is likely to exercise this power. The Attorney General stated that the Planning Act amendment “is a circumscribed ability to make orders” and gave the following examples of converting
- business and buildings and land into “vital services”
- buildings into temporary hospitals
- community centres into homeless shelters; and
- restaurants to “dark kitchens”.
He also referred, in his Second Reading Speech, to “COVID-19 clinics”. So, at this stage, it may be used quite specifically for COVID-19 emergency responses.
Given the definition of "regulatory instrument", this power is very broad. In addition, people should be aware that their contractual rights and even property rights (such as easements) can be overcome by an order if it suspends those kinds of “regulatory instruments”.
It also seems possible that an order could be used to “re-authorise” development which already is approved and subject to existing laws, but the “re-authorisation” could provide a broader approval for the development.
What doesn’t the Emergency Measures Act say?
The focus of the Emergency Measures Act for development seems to be authorising development. However, it does not provide specific exemptions from other regulatory requirements such as pollution, nuisance and other environmental laws. While the NSW Government has not addressed these issues specifically, the Victorian EPA has already said publicly that it expects operators to continue to comply with environmental controls during the COVID-19 pandemic
Also, unless an order suspends other legislation, it is possible that a development which the order seeks to facilitate might still need approval under another law (eg. an EPA licence).
Public and private sector developments are starting to benefit from major initiatives which the NSW Government has announced in an effort to maintain economic activity through development projects, and proponents should consider their development pipeline as further details on these initiatives are expected over the coming weeks.
Further to these changes, the NSW Minister for Planning and Public Places on Friday 3 April 2020 announced that the NSW Government was going to cut green tape and fast-track planning processes to keep people in jobs, including the construction industry, in an attempt to support the economy.
Planning Acceleration Program
As part of its response to support the economy the NSW Government has introduced the Planning Acceleration Program which includes:
- creating opportunities for more than 30,000 construction jobs in the next six months;
- fast-tracking assessments of State Significant Developments, rezonings and development applications, with more decisions to be made by the Minister if required – this may include, for example, deploying additional Department of Planning Industry and Environment (DPIE) personnel to assessment teams;
- supporting councils and planning panels to fast-track local and regionally significant DAs;
- introducing a "one stop shop" for industry to progress projects that may be stuck in the system – this could take many forms, and one which has been mentioned is a new agency with similarities to Queensland’s State Agency Referral Agency;
- clearing the current backlog of cases stuck in the Land and Environment Court with additional Acting Commissioners; and
- investing $70 million to co-fund vital new community infrastructure in North West Sydney including roads, drainage and public parks to unlock plans for the construction of thousands of new houses – we understand this is separate from other reforms to development contributions schemes which are being considered.
It is not clear yet how the Program will operate as no further details have been released at this stage. The Program is likely to commence in the coming few weeks and we have already seen real engagement from parts of DPIE which have been tasked with COVID-19 responses.
Emergency Planning Measures
As noted above, the Act permits the Minister for Planning and Public Spaces to authorise development to be carried out on land without the need for any approval under the Act if it is necessary to protect public health, safety and welfare during the COVID-19 pandemic.
The following Orders have now been made by the Minister to permit specified development without consent:
- Environmental Planning and Assessment (COVID Development – Extended Operations) Order 2020: permits extended hours of trading;
- Environmental Planning and Assessment (COVID Development – Health Services Facilities) Order 2020: permits changes of building use to health services facilities;
- Environmental Planning and Assessment (COVID Development – Construction Work Days) Order 2020: permits construction and building works to be carried out on Saturday, Sunday and Public holidays (the order currently is expressed to apply only to development which is the subject of a “development consent”, but we understand work is underway to extend it to development which is subject of a State significant infrastructure approval;
- Environmental Planning and Assessment (COVID Development – Takeaway food and beverages) Order 2020: permits the use of existing premises to prepare and sell food, beverages or any other goods.
Land and Environment Court Changes
The Land and Environment Court has been one of a number of Courts to release a policy to deal with all court sittings during this crisis. According to the COVID 19 Pandemic Arrangements Policy (which commenced on 23 March 2020) all Court sittings, including directions hearings, section 34 conferences and hearings, are to be conducted so as to ensure social distancing is accommodated.
After the release of this Policy, the Court further updated its procedures to minimise personal attendances at Court listings (including hearings, conciliations, mediations and onsite views) and directed that all listings proceed by telephone or AVL. If it is determined that the matter cannot proceed, the listing date will be vacated and the matter will be listed for further directions. At this stage matters that cannot proceed are being listed for directions in October/November 2020. While the Government’s proposal to increase the number of Commissioners to reduce the backlog of cases is a welcome initiative, these restrictions are likely to limit the Court's ability to reduce that backlog.
Matters to remain aware of
While the NSW Government has relaxed the planning controls for certain development and is now looking to fast track approvals, the NSW Government has not relaxed the timing for deemed refusal appeals, or the requirement for compliance with environmental requirements. This needs to be borne in mind, particularly by property developers.
A failure to miss the deemed refusal period coupled with a potential delay for assessment and determination (subject to the effect of the Acceleration Program) could mean lengthy delays before development can ultimately be approved and therefore commenced.