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Last updated: 8 April 2020

Environmental management and compliance preparedness

When COVID-19 impacts and operations may be disrupted by illness and / or self-isolation, steps should be taken to ensure that there is a contingency and continuity plan for meeting any environmental and compliance obligations.

Some environmental regulators, such as the Victorian EPA, have already issued advice to duty holders that environmental obligations remain in force, and that licence and approval conditions must continue to be complied with. They have also specifically advised duty holders to ensure they are able to maintain and operate pollution control equipment during this challenging time, and continue to consign and dispose of waste appropriately and lawfully. This will similarly apply in other jurisdictions.

As part of preparedness for disruptions, now is the time to urgently review (and, if necessary, update) contingency and continuity plans to confirm that your company or organisation can:

  • comply with any environmental conditions;
  • meet environmental monitoring obligations;
  • meet environmental reporting obligations (whether because of conditions or statute); and
  • ensure that sites are able to continue to operate in compliance with environmental conditions and so as to not cause environmental harm, in the event that staff numbers are either reduced or entirely depleted.

Contingency measures that should be considered include:

  • automation of monitoring systems where possible;
  • testing of automated systems to ensure reliability;
  • training of additional staff on roles that may have significant environmental performance functions;
  • remote monitoring and management of site controls;
  • ensuring that sites are left in a safe and shut down condition where possible, in the event that staff are unable to attend at site with little or no notice;
  • clear roles and responsibilities for the Contingency Response Team;
  • a timeline for internal responses and accountability;
  • a communication protocol, including internal reporting obligations and daily tool box talks or emails to keep staff up to date with changes in planning to respond to social distancing or other recommended controls;
  • procedures to ensure the environmental monitoring and reporting obligations or the organisation are met;
  • procedures for environmental incident response (including statutory notification obligations and clean-up) in the absence of employees responsible for implementing environmental management and incident response plans. See our CU SAFE app in the event of a serious safety or environmental incident; and
  • seeking advice on emergency approval options (if required and available), and engaging with environmental regulators at the earliest opportunity in relation to the potential need for such approvals.

As the COVID-19 pandemic develops, operational changes to meet social-distancing and self-isolation protocols for health and safety may have implications for continuity of environmental monitoring and management onsite. Queensland's Department of Environment and Science has not yet issued any guidance with respect to how it will deal with non-compliance and environmental harm issues which occur during the COVID-19 pandemic.

Queensland

As the COVID-19 pandemic develops, operational changes to meet social-distancing and self-isolation protocols for health and safety may have implications for continuity of environmental monitoring and management onsite. Queensland's Department of Environment and Science has not yet issued any guidance with respect to how it will deal with non-compliance and environmental harm issues which occur during the COVID-19 pandemic.

Tools to facilitate necessary changes to environmental authority conditions or to respond to incidents where environmental harm is caused or threatened are a temporary emissions licence (TEL) or transitional environmental program (TEP). The Department of Environment and Science also has emergency direction powers.

What is a temporary emissions licence?

Under the Environment Protection Act 1994 (Qld) (EP Act) a TEL permits the temporary relaxation or modification of specified conditions of an EA or TEP to allow the release of a contaminant into the environment in response to an applicable event.

An "applicable event" is an event, or series of events, either natural or caused by sabotage, that:

  • was not foreseen; or
  • was foreseen but, because of a low probability of occurring, it was not considered reasonable to impose a condition on the authority to deal with the event or series of events;

When approved, the TEL will apply instead of the specified EA or TEP conditions.

Who can apply for a TEL?

A holder of an EA or TEP can apply for a TEL.

When can you apply for a temporary emissions licence?

A TEL can be applied for:

  • in anticipation of an applicable event (eg. an application to release a contaminant into water when flood waters are due to reach the site of an activity within hours or days); or
  • in response to an applicable event (e.g. an application to allow a waste transfer station to change the types of material it receives, as part of a flood response after flood waters have receded).

Some other practical examples for when it may be appropriate to apply for a TEL are where a relaxation or modification of conditions in response to the applicable event are needed to:

  • change the monitoring frequency;
  • change operating hours;
  • change the arrangements for waste disposal or types of material received;
  • allow for short term releases or change emission limits where necessary due to resourcing limitations.

While the COVID-19 pandemic is a health emergency event, as opposed a flood emergency event used as an example in the EP Act or bushfire event used as an example in the Department of Environment and Science Guideline – Temporary emissions licence, there is no express wording in the provisions which suggest that a TEL could not be granted in the appropriate circumstances so that an EA or TEP holder can continue to operate during the COVID-19 pandemic.

Given the temporary nature of a TEL, if longer term changes are required, an amendment of the EA or TEP may be warranted. A TEL can however be issued so that it does not take effect until certain trigger events occur. It can therefore be used to manage compliance in the event of foreseeable risks.

What is considered when deciding an application for a TEL?

The Department of Environment and Science must have regard to:

  • the extent and impact of the applicable event, including the potential economic impact of granting or not granting the TEL;
  • if the application is for a licence in anticipation of an applicable event:
    • the likelihood of the applicable event happening; and
    • when the applicable event is likely to happen; and
    • what circumstances need to exist before the licence takes effect;
  • the character, resilience and values of the receiving environment;
  • the likelihood of environmental harm and any measures necessary to minimise the harm;
  • the likelihood that the release will adversely impact the health, safety or wellbeing of another person (e.g. a release that adversely impacts another person is a release of an emission that could affect the quality of downstream drinking water);
  • the cumulative impacts of all releases authorised or directed under this Act, including releases under other temporary emissions licences that have been issued or applied for; and
  • the public interest.

When will an application for a temporary emissions licence be decided and what can be decided?

The Department of Environment and Science must decide the application as soon as practicable, but no later than 24 hours after receiving it and may impose conditions or refuse to grant the licence.

When would you use a TEP instead of a TEL?

A TEP is a specific program that, if approved and complied with, achieves compliance with the EP Act for the activity to which it relates by doing one or more of the following:

  • reducing environmental harm caused by the activity;
  • detailing the transition to an environmental standard;
  • detailing the transition to comply with:
    • a condition of an environmental authority;
    • a development condition; or
    • an agricultural ERA standard that applies to an agricultural ERA.

A TEP would be used instead of a TEL when particular actions need to be taken progressively and generally over a longer term to achieve compliance and manage the risks of environmental harm. The Departmental Guidelines indicate that TEPs are not appropriate where there is non-compliance because of under-investing in pollution controls or persistent non-compliance.

In comparison, a TEL is specifically designed for emergency events and where temporary measures need to be implemented on a more immediate basis.

More information about TEPs can be found in the DES Transitional Environmental Program – Guideline.

When can the Department issue emergency directions?

Under the EP Act, an emergency direction can be given by the Department of Environment and Science if:

  • either human health or safety is threatened or serious or material environmental harm has been or is likely to be caused; and
  • urgent action is necessary to:
    • protect the health or safety of persons; or
    • prevent or minimise the harm; or
    • rehabilitate or restore the environment because of the harm.

An emergency direction may permit environmental harm which would otherwise be unlawful. An emergency direction can be initiated by the Department or be requested by an individual or company and would likely be used for one-off releases. Whether or not all reasonable and practicable measures have been taken to minimise the risk will be relevant to the Department's decision on whether to issue an emergency direction.

Planning

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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.

An order:

  • 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:

  1. Environmental Planning and Assessment (COVID Development – Extended Operations) Order 2020: permits extended hours of trading;
  2. Environmental Planning and Assessment (COVID Development – Health Services Facilities) Order 2020: permits changes of building use to health services facilities;
  3. 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;
  4. 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.

The Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 amends the Planning Act 2016 and the Economic Development Act 2012 (ED Act) to:

  • introduce the concept of an "applicable event" (such as the current COVID-19 epidemic) which can be declared by the Minister;
  • allow the Minister to make a declaration that uses, or a class of uses, that has the effect that provisions that limit hours of operation or movement of goods has no effect for the period of the declaration;
  • ensure that important services may continue to be provided to the community during an "applicable event", through the introduction of new "temporary use licences";
    provide the ability to temporarily suspend or extend statutory timeframes for the planning framework, where there is a need.

Businesses should be aware of these amendments as they apply to the current COVID-19 public health emergency.

In particular, they should make a conscious effort to review any conditions of their development approval, or any other existing lawful use of their premises, to confirm whether they might need to apply for a temporary use licence to ensure that they will not be committing a development offence during the current stated applicable event period for COVID-19 (ie. until 20 June 2020).

Declaration of "applicable events"

The Amendment Act amends the Planning Act and ED Act to allow the Minister to issue a notice that will declare an event an "applicable event" if "an event has taken place, is taking place or is likely to take place, and the event may affect a State interest". "Event" is relevantly defined to mean any of the following:

  • an extreme weather event (eg. a cyclone, weather, earthquake, or other natural happening);
  • an explosion or fire;
  • an infestation, plague or epidemic;
  • a failure of, or disruption to, an essential service or infrastructure; or
  • an attack against the State.

The Minister has the discretion to extend the applicable event period if satisfied that such an extension is necessary, taking into account the nature of the applicable event and the effect it may have on a State interest.

The Minister has already declared the period 20 March 2020 to 20 June 2020 as an applicable event for the COVID-19 epidemic.

Temporary use licences

In circumstances where an applicable event notice has been issued, a person may apply to the chief executive for a "temporary use licence" in relation to premises that do any of the following (each a "relevant change") under the Planning Act:

  • if a development approval for a material change of use is in effect for that premises, the temporary use licence may change a condition of the development approval;
  • if the premises is designated premises, the temporary use licence may provide that a use of the premises is not required to comply with a particular requirement about the use stated in the designation for the premises;
  • for any other premises, a temporary use licence may be issued which changes the existing lawful use of the premises. This includes, for example, increasing the intensity or scale of the existing lawful use, adding a new use, or replacing the existing lawful use with a new use.

    The amendments to the ED Act mirror those for the Planning Act in relation to temporary use licences for premises within a priority development area (or premises that are PDA-associated land for a priority development area), save that:

    • the application for the temporary use licence is made to MEDQ; and
    • as there is no designated process under the ED Act, that circumstance (as outlined above) does not apply.

The chief executive or MEDQ (as applicable) may give the temporary use licence only if satisfied, having regard to the nature of the applicable event, there are reasonable grounds for the relevant change the subject of the licence. The chief executive or MEDQ (as applicable) may also delegate their powers to issue temporary use licences.

A temporary use licence will apply from the date of issue until the end of the period of the applicable event as prescribed in an applicable event notice. For COVID-19, this is for until 20 June 2020.

Importantly:

  • subject to the extent a temporary use licence varies the use of premises, the effect of any temporary use licence is such that:
    • a person does not, during the period of the licence, commit an offence under the Planning Act or ED Act in relation to the changed use, unless the person contravenes a condition of the licence;
    • an infrastructure agreement does not apply instead of a part of a development approval changed as a result of a licence; and
  • the Amendment Act does not provide for any amendments to the appeal provisions in the Planning Act and ED Act to address the chief executive or MEDQ's decision (as applicable) regarding temporary use licences. The decision to either issue a temporary use licence, or refuse an application for a temporary use licence, is, therefore, not appealable under the Planning Act or ED Act.

Further information regarding temporary use licences, and a register of each temporary use licence, will be provided on the Queensland Government's website following consequential amendments to the Planning Regulation 2017 that are yet to be introduced.

Declarations concerning particular uses

If an applicable event notice has been issued, the Minister may also declare a use, or a class of uses, for the applicable event for all or a part of an area to which that notice applies.

Any restrictions on the hours of operation, or the movement of goods which may be existing in statute or a condition of a development approval under the Planning Act, or a PDA development condition of a PDA development approval under the ED Act, will not apply to that declared use. This means that operating hours for essential services, such as supermarkets, may be extended at the Minister's discretion, ignoring statutory timeframes.

The Minister has already made such a declaration for the applicable event notice issued for COVID-19 for shops (specifically those that sell goods ordinarily acquired for personal, domestic or household consumption, such as food, toiletries, or medicine), and for warehouses and transport depots where directly necessary for the supply of goods to a shop.

Extending and suspending periods under the Planning Act and ED Act

The Amendment Act permits the Minister or MEDQ (as applicable) to extend, or suspend, a period under the Planning Act or ED Act to take a particular action (eg. a period for notifying an application stated in the development assessment rules for the Planning Act) because of an applicable event. This power is broad, and applies to anything under the Planning Act or ED Act, as applicable.

Similar to applicable event notices, these notices must be published on the Department's website, and must be published before the day that is 30 business days after the end of an applicable event period (eg. for COVID-19, at the moment, such a notice could only be published up until 31 July 2020). These time periods can be further extended, or suspended, by the Minister or MEDQ (as applicable).