Emergency health crisis calls for emergency planning powers – State Government of Queensland has amended the Planning Act 2016 and the Economic Development Act 2012 through the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020

In brief

This article concerns the recent amendments to the Planning Act 2016 (PA), Local Government Act 2009 (LGA) and the Economic Development Act 2012 (EDA) by the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 (Amendment Act), which was assented to on 19 March 2020.  

Declaration COVID-19 emergency is an applicable event

The Amendment Act inserts a new part, Part 4B (Applicable events), into Chapter 7 (Miscellaneous) of the PA. Part 4B contains new provisions in respect of an "applicable event", which is defined in section 275D (Definitions of this part) of the PA to be an event declared under section 275E (Declarations of applicable events) of the PA to be an applicable event for the purpose of Part 4B. 

The Minister for the Department of State Development, Manufacturing, Infrastructure and Planning (Minister) has declared that the COVID-19 emergency is an applicable event for the purpose of section 275E of the PA. The declaration is available here. The declaration applies to all of Queensland and is in effect until 20 June 2020, but, under section 275F (Extensions of applicable event periods) of the PA may be extended in certain circumstances.

The following divisions have also been inserted under Part 4B of the PA, and apply in relation to an applicable event notice for an applicable event, or to premises located in part of the State to which an applicable event notice for an applicable event applies: 

1. Division 3 (Temporary use licences).

2. Division 4 (Declaring uses and classes of uses).

3. Division 5 (Extending and suspending periods under the Act).

Temporary use licences

Division 3 of Part 4B of the PA allows a person to apply to the Chief Executive of the PA (Chief Executive) for a temporary use licence for a relevant change, which includes the following under section 275H (Applications for temporary use licences):

"(a) if a development approval for a material change of use is in effect for the premises— changes a condition of the development approval;

(b) if the premises is designated premises— provides that a use of the premises is not required to comply with a requirement about the use stated in the designation for the premises;

(c) otherwise—changes the existing lawful use of the premises, including, for example, by—

(i) increasing the intensity or scale of the existing lawful use; or

(ii) adding a new use; or

(iii) replacing the existing lawful use with a new use."

The Chief Executive can only grant a temporary use licence where, having regard to the nature of the event, there are reasonable grounds for the relevant change during the applicable event period for the applicable event notice (see section 275I of the PA). A temporary use licence is only in effect until the applicable event period ends (see section 275K of the PA). 

Whilst a temporary use licence is in effect, the offence and infrastructure agreement provisions of the PA are varied in effect. For example:

• a person does not, during the period the temporary use licence is in effect, commit a relevant offence under the PA in relation to the relevant change (see sections 275L(3) and (4) of the PA); and

• an infrastructure agreement does not apply instead of a part of the relevant change to the development approval (see section 275L(5) of the PA).

Declaring uses and classes of uses

Division 4 of Part 4B of the PA allows the Minister to, by notice published on the relevant department's website, make a declaration in respect of a use, or a class of uses, for the applicable event. The declaration may be made in respect of all or part of the area to which the applicable event notice applies, and will have effect from the date of publication to the end of the applicable event period for the applicable event notice. 

The declaration has the following effect on provisions, requirements and conditions which limit the hours of operation of the use, or a use of the class, or restricting the movement of goods in relation to the use, or a use of the class under section 275P(2) (Effect of declaration under s 275O) of the PA:

"(2) For the period the declaration is in effect, the provision, requirement or condition does not apply in relation to the carrying out of the use, or a use of the class, on premises in the area to which the declaration applies."

Currently, this provision is being used in respect of provisions, requirements and conditions that limit the operational hours for certain shop uses, allowing them to operate and resupply 24 hours a day, 7 days a week (refer to the declaration of the Minister dated 20 March 2020, which is accessible here).

Extending and suspending periods under the Planning Act

Division 5 of Part 4B of the PA allows the Minister to, by notice published on the relevant department's website, make a declaration in respect of the extension of a period under the PA for the doing of a thing, or the suspension of a period under the PA for the doing of the thing (see sections 275R and 275S of the PA). An example of a period under the PA for the doing of a thing includes the following:

• the period mentioned in section 25(1)(a) of the PA for reviewing a planning scheme;

• the period for notifying an application stated in the development assessment rules under section 68 of the PA. 

As at the date of this article, no extension or suspension periods have been given yet (refer to the relevant department's website here). 

Amendment of the Economic Development Act

The Amendment Act also amends the EDA in similar terms to those of the PA, by inserting a new Part 3B (Applicable events) into Chapter 5 (General) of the EDA, which includes the following new divisions in Part 3B:

• Division 2 (Temporary use licences).

• Division 3 (Effect of particular declarations under Planning Act 2016) – referring to the declarations in relation to a use or class of uses made under section 275O of the PA.

• Division 4 (Extending and suspending periods under Act).

Amendment to other Acts in respect of the quadrennial election for 2020

It is worth noting that the Amendment Act also make amendments to the Electoral Act 1992 (Electoral Act), Local Government Electoral Act 2011 (LG Electoral Act), Local Government Act 2009 and City of Brisbane Act 2010  in respect of the upcoming quadrennial election for 2020, being the local government elections to be held on 28 March 2020. Some of the most interesting amendments include the following:

• Powers to postpone the polling day in respect of a by-election (see section 392D of the Electoral Act).

• Powers to allow electronically assisted voting for electors of a particular class (see section 392G of the Electoral Act and 200F of the LG Electoral Act).

• Powers to suspend or terminate the election in relation to the notice of election published on 22 February 2020 in circumstances where it will minimise serious risks to the health and safety of persons caused by the public health emergency involving COVID-19 (see sections 200B and 200C of the LG Electoral Act).

• A regulation making power which may include certain types of provisions, or  retrospective provisions, in the relevant regulation in respect of the quadrennial election for 2020 (see section 260AB of the Electoral Act and 200L of the LG Electoral Act).