In brief - An overview of the unprecedented changes to NSW's planning laws

In the two weeks since our COVID-19 and the built environment article, amplified powers and restrictions have been introduced to NSW's planning and environmental laws in response to COVID-19, and to various pieces of cognate law - not least the Constitution Act 1902 (NSW). As we stated then, human fear is transposed into executive power, which is exactly what has unfolded.

Through rapid and unprecedented regulation, the state's citizens are now in effect in "lockdown" (though that word is not formally used), unable to leave their residence without reasonable excuse. Many businesses have also been shut down under these new powers. Paradoxically, normal curfews that apply to some corporations have been lifted under the state's planning laws providing the most liberal operating hours some industries have seen ever. 

The swift legal changes to our planning laws attempt to enable new industry practices and means of operation to adapt to society's needs, while the changes to our public health legislation institute behavioural changes in attempt to mitigate the potential impacts of the virus.

The enabling legislation is now in place. New regulations and orders underneath this will continue to be made to deal with the crisis. 

New power for the Minister for Planning and Public Spaces

The COVID-19 Legislation Amendment (Emergency Measures) Bill was passed in the NSW Parliament on 25 March 2020, allowing the NSW Government to make changes to a number of Acts, including our chief piece of planning and environmental legislation - the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).

New sections introduced to Environmental Planning and Assessment Act 1979 (NSW)

Sections 10.17 and 10.18 are two new sections that were introduced to the EP&A Act. They apply for a minimum of 6 months and were effective immediately.

Section 10.17 gives the Planning Minister broad power to make an order that authorises development to be carried out on land without the need for any approval under the Act or consent from any person. Regard need not be had to environmental planning instruments or development consents. The exercise of the power would obviate the need for development consent under Part 4 of the EP&A Act and also the need to obtain owner's consent, or the consent of a Council (being a "person" because it is a body politic under section 220 of the Local Government Act 1993 (NSW), which is included in the definition of persons under the Acts Interpretation Act 1901 (Cth)). 

In the second reading speech for the Bill, the Attorney General, Mark Speakman, said:

If we need to construct a COVID-19 clinic, we need, for the period of this crisis, to have the unfettered ability to be able to do that.

Following on from this, the Environmental Planning and Assessment (COVID-19 Development—Health Services Facilities) Order 2020 was announced, which aims to facilitate the use of buildings or places as health services premises, and to allow health services facilities under construction to be completed sooner. This means that construction of make-shift hospitals on public open space can be completed quickly if demand for hospital beds and health care facilities grows.

It appears that the difficulties involved navigating Part 5 of the Act, normally used when "activities" on behalf of a public authority occur, will have no work to do because the conditions for carrying out the development would be within the order, which is taken to be a grant of development consent (section 10.17(4) of the EP&A Act).

The power is conditional on the Minister consulting with the Minister for Health and Medical Research and also being 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. 

The power is unlikely to become a replacement to the old Part 3A, used to call in contentious new developments unrelated to health, safety and welfare of the public. The full extent of the power is yet to be seen and has not yet, for obvious reasons, been tested in the courts.

Section 10.18 confirms that the requirement to make a document available for inspection at a physical location (such as a Council chambers) is satisfied if the document is made available on the NSW Planning Portal or any other website approved by the Planning Secretary. This ensures consistency with the public health social distancing restrictions. Councils that were required to make documents physically available for inspection (e.g., development consents) now need to make the documents available online.

Amendments to Local Government Act 1993 (NSW)

The Bill has also amended the Local Government Act 1993 (NSW) (LG Act), which is the source of power for local councils who primarily implement the planning laws. The LG Act was amended to:

  • give the Minister for Local Government the power to postpone elections if the Minister believes that it is reasonable in the circumstances (see section 318B of the LG Act). The Minister for Local Government, Shelley Hancock, has enlivened this power and confirmed the September 2020 elections are to be postponed for 12 months. This is different to Queensland where local government elections proceeded over the weekend of 28 March, 2020.

  • remove the need for persons to attend council meetings and allowing the meetings to be held remotely by audio visual link (see section 747A of the LG Act). It should not necessarily be assumed all councils will move to online meetings as not all councillors have the technological ability to move to online meetings.

  • allow the regulations made under the LG Act to modify the application of that Act for the purposes of responding to the public health emergency caused by the COVID-19 pandemic. There are conditions of when this can occur directed towards urgently dealing with matters should they arise. See section 747B of the LG Act.

Retail, home businesses and construction

The biggest practical changes to NSW's planning laws have been in: 

  • lifting the curfews impeding supply 

  • lifting the curfews on operating hours to allow consumers more flexible times to access goods, and 

  • enabling the construction industry to continue untrammelled 

Retail supply chain and retail trading operating hours

The State Environmental Planning Policy Amendment (COVID-19 Response) 2020 introduced provisions to allow the use of retail supply chain premises at any time for the purpose of supplying goods directly or indirectly to retail premises. Retail supply chain premises means port facilities, warehouse or distribution centres and retail premises. 

The Environmental Planning and Assessment (COVID-19 Development – Extended Operation) Order 2020 (Extended Operation Order) allows retail premises such as supermarkets, pharmacies and corner stores to operate 24 hours per day. It does not affect the times when liquor may be sold, however.

This allows people the flexibility to shop at varied times throughout the day (if shops elect to increase their operating hours) and without fear of interacting with large numbers of people. However, some of the major supermarket operators (Coles and Woolworths) have reduced their store operating hours to allow restocking of shelves and implemented designated shopping hours for those with greater need.

The Extended Operation Order also allows for waste disposal from retail premises at any time, but did not go so far as to allow all waste facilities to operate 24 hours per day. 

Where retailers operate as part of hotels and motels, they are able to provide food and beverages 24 hours per day for guests to consume in their rooms. 

All other conditions continue to apply as normal, and where retailers are operating outside of normal hours, under this Extended Operation Order they must take steps to reduce noise.

The upcoming holidays in April, which are usually "restricted" working days under the Retail Trading Act 2008, are conditionally exempt in light of the COVID-19 pandemic. Supermarkets are allowed to operate all day on Good Friday, Easter Sunday and ANZAC Day, provided that the staff working on those days have "freely elected" to do so. 

Home businesses and home industry operating hours

The Extended Operation Order also allows home businesses to operate 24 hours a day, and to employ more than two people, but not more than five, provided that they follow social distancing rules. This restriction does not conflict with the Public Health (COVID-10 Restrictions on Gathering and Movement) Order 2020 made under the Public Health Act 2010 (NSW), which limits gatherings in a public place of more than two persons, as long as the gathering is essential for the purposes of work or education. 

Home businesses are required to take steps to ensure no adverse impact on the amenity of the neighbourhood by reason of noise, smell, fumes or waste products. These measures are in place until the crisis is over, or another order amends these measures. 

Public Health (COVID-19 Restrictions on Gatherings and Movement) Order 2020

Under the NSW Government's public health laws, some types of gatherings have been banned based on the use of land

"Gatherings" in public places have now been restricted to no more than two persons. The Public Health (COVID-19 Restrictions on Gatherings and Movement) Order also places a burden on owners and occupiers of premises to prevent overcrowding by not allowing persons to enter and stay on their premises. The Order also added a number of venues that would be closed to the public, and placed further restrictions on activities such as sport, property inspections and auctions, and weddings and funerals. 

Section 10 of the Public Health Act 2010 (NSW) provides that failure to comply with a Ministerial direction under the Act is an offence, with a maximum penalty of 6 months imprisonment, or a fine of up to $11,000 (or both), as well as a further $5,500 fine each day that the offence continues. For corporations, the fine is up to $55,000 and a further $27,500 for each day the offence continues. 

Essential gatherings that are not subject to restrictions, include gatherings at construction sites, office building, factories, warehouses and mining sites that are necessary for the normal operation of the site. This means, for now, that construction may continue, provided that those on site adhere to social distancing rules.

Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020

On 2 April 2020, the government introduced a further Order - the Environmental Planning and Assessment (COVID-19 Development – Construction Work Days) Order 2020 - to ease restrictions around operating hours of construction sites in a bid to keep people employed, to encourage businesses to continue to operate and to help the economy all the while making social distancing easier to achieve. 

Construction sites will now be permitted to operate on weekends and public holidays, in the same way as their normal weekday hours. The Order applies to the carrying out of any building work or work, or the demolition of a building or work that are the subject of a development consent. All conditions (except for the restrictions on operating on weekends and public holidays) must be complied with. To balance the impact on residential neighbours, the work must not involve the carrying out of rock breaking, rock hammering, sheet piling, pile driving or similar activities. All feasible and reasonable measures to minimise noise must also be taken.

In some ways, construction has never been easier. With traffic eased, the pre-COVID-19 phenomenon of concrete pours occurring after hours due to late concrete trucks, with Council Rangers waiting to issue Penalty Infringement Notices, should disappear. 

However, no orders have as yet been made in relation to the waste industry. The orders made to date allow industries that generate waste to expand their hours of operations. With that, comes the inevitable requirement for either increased or adjusted waste disposal and recycling needs. To ensure that waste is managed properly and the environment is protected, waste operators may need to be granted the same leniency with respect to hours of operation. Such an order is likely to be welcomed.

Environmental Planning and Assessment (COVID-19 Development—Takeaway Food and Beverages) Order 2020

The Environmental Planning and Assessment (COVID-19 Development—Takeaway Food and Beverages) Order 2020 allows the "unrestricted operation" of "dark kitchens", which are commercial kitchens and restaurants without an eat-in component. This allows greater access to food and beverages on a takeaway basis where most eat-in options are now all closed.

Food trucks are able to operate on any land across NSW, provided they have consent from landowners to do so and do not obstruct the normal use of that land in any way. The Planning Minister said that the orders have been designed to "help keep people in work and also help keep our community safe". 

Status of projects in the pipeline

The NSW Government has confirmed that construction and planning activities are currently essential services and can continue. We are also aware that consent authorities are being asked to consider their "risk profiles" and to ensure expedited decision-making occurs so that a larger number of "shovel ready" projects exist when the pandemic lifts. On Friday 3 April 2020, the NSW Government announced that it will cut red-tape and fast-track planning processes to help keep people in jobs and to ensure the strength of the construction industry is retained throughout the COVID-19 crisis.

For those whose projects are within the Land and Environment Court, the situation is not as straight forward - each matter listed before the end of June is being reviewed by the Court as to the practicability of the matter being run by AVL or telephone. The Court issued a Practice note regarding its arrangements, which directed parties to predominantly move online, with the Online Court and Online Registry operating 24 hours a day. Where the Online Court is not practicable, the Court is accessible via telephone, for judgements, submissions etc.

Regarding site inspections, parties must consider whether they are necessary and appropriate in the circumstances, and are able to be conducted in compliance with social distancing rules. Anecdotally, we understand that this has meant hearings have been (and are expected to continue to be) delayed where councils insist on the need for a site inspection and one cannot be enabled. Accordingly, there will be a backlog of litigated matters to clear after courts return to normal functioning impacting the desire to increase the number of shovel ready projects.

While the desire for efficiency is laudable, competence is important. As we saw post-GFC, there was a spike in the number of defects that arose. Poorly drafted conditions of consent and rushed developments can lead to more work as issues need to be regularised down the track. All of this is occurring at a time the new Building Commissioner is introducing significant reform in the development and construction industry to restore confidence in building products.

Conclusion

In January, we stated in our article The bushfire crisis and its implications for NSW planning and environment laws that 2020 will be a year marked by legal "VUCA" - volatility, uncertainty, complexity and ambiguity - for planning and environment law. That description could not be more apt since within the space of a few months there has been an extraordinary and unprecedented amount of unplanned change to the state's planning laws.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.