In brief - Expect new powers in planning and environmental laws

It is likely that the fear associated with the COVID-19 pandemic will lead to new government powers as we have now seen with the Public Health (COVID-19 Public Events) Order 2020 in New South Wales. That Order criminalises certain public events where there are, or are likely to be, more than 500 people in attendance.

We see fear transposed into power regularly in our planning and environment laws. The fear of certain types of development leads to the exercise of government power curbing the extent to which one can use land, the conditions within which works can occur on land, and ultimately the design of the finished development itself. 

We say this without criticism as the law seeks to provide an appropriate restraint to the way land is used so that one land use sits harmoniously with other surrounding land uses and contributes to the social and economic fabric of a city, town, or locality. 

Given the economic impact the coronavirus has had and will have, and the impact on human health projected, combined with the fears and behaviours the coronavirus has generated, it will only be a matter of time before those fears translate into the exercise of new powers in our planning and environmental laws and the planning instruments that sit beneath them given the way design of the built environment can impact public health. In relation to COVID-19, we have already seen the first significant change to our planning laws with State Environmental Planning Policy Amendment (COVID-19 Response) 2020 lifting the planning curfews on "retail supply chain premises" until 1 October 2020 given the supermarkets could not restock shelves fast enough.

Two aims within section 1.3 of the Environmental Planning and Assessment Act 1979 (NSW) clearly facilitate this:

(g)  to promote good design and amenity of the built environment,
(h)  to promote the proper construction and maintenance of buildings, including the protection of the health and safety of their occupants.

Building design and public health

The way many buildings are designed adds to the threat to public health and productivity in the economy, particularly in dense urban environments: door handles in offices, restaurants and bathrooms; crowded lifts with buttons to press; offices without poor light, fresh air and greenery. Already, innovations such as pedestrian lights without needing to press buttons have been implemented in the City of Sydney. 

The way our vulnerable are accommodated and the sick hospitalised should also be further considered so that they are protected and risks are mitigated when these events arise. 

Our courts are not immune from these design problems and access to justice over the next few months will now be restricted as many of the nation's courts, including the High Court, close or reduce their functioning face-to-face. Again, it does not take long to see the design of many of the country's court rooms as potentially impacting public safety when it comes to a pandemic given the high stress environment our courts preside over, the crowded registrar's lists in crammed court rooms with no natural light, and at times poor functioning ventilation. 

Our cities can contribute to better health and with good design can make it easy for people to make healthy choices. That might reduce some of the underlying conditions increasing the potential strain on the health system at this time. These measures should not and need not be at the expense of affordability and new supply. 

Perhaps it is time to renew focus on these measures in development control plans (NSW), Australian Standards and Apartment Design Guide reducing pathogenic risk, and whilst it sounds trite, encouraging the creation of design that entices people into healthy activities - outdoor recreation, walking and bike riding - to avoid public health problems that increase disease threat. 

The market also has a role. In addition to green ratings, perhaps it is now time for health ratings to be given, not just to food, but also to our built environment, since our environmental surroundings contribute to our physical (as well as mental) health.  

Of course, viruses are not new and civilisation will continue. But our planning laws could better incentivise a deeper improvement in the underlying conditions that contribute to the vulnerabilities that make this pandemic such a significant risk, as well as engendering spaces designed to reduce exposure to pathogens (whilst at the same time being vibrant, interesting, and social). 

Our laws sometimes narrowly concentrate on things that we do not need to, and ignore where urgent action is required. Health and safety may take a new direction in design after the dust settles. 

Caution will need to be exercised to consider how these costs might be shared and allocated given the last thing the development industry needs now are more barriers and higher costs given the contribution to the economy the industry provides.

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 2024.

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