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08 Apr 2020

No time to hibernate as NSW Government moves to maintain development during the pandemic

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 the changes to planning controls permitted by COVID-19 Legislation Amendment (Emergency Measures) Act 2020, 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 – four new Acting Commissioners were appointed today, and we have commented more on Court processes and timelines below; 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 previously indicated 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.

For more details on how the changes to the planning legislation may affect you, please contact our team.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.