Radical changes to NSW planning and local government laws to help with COVID-19

The COVID-19 Legislation Amendment (Emergency Measures) Act 2020, passed yesterday and expected to commence operation imminently, makes key changes to planning and local government laws, and is significant not only for what it says, but also for what it doesn’t say, as we explain below. Those changes including that:

• the Minister for Planning and Public Spaces may, by order, allow development to go ahead without any planning approval if necessary to protect public health, safety and welfare during the COVID-19 pandemic;
• local government elections, which are currently scheduled for September, may be postponed; and
• local council meetings can be attended remotely.

This Alert focuses on the changes to planning laws.

Development consent by Ministerial order

The Emergency Measures Act 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).

What’s next?

As we’ve seen across society already since COVID-19 was recognised as a pandemic, government measures in response have been changing rapidly, and the duration of those measures is uncertain.

The Emergency Measures Act gives the Planning Minister significant scope to allow development to go ahead, but we suspect it won’t be the only radical change to environment and planning laws as the COVID-19 pandemic continues.