As the COVID-19 crisis has gathered pace globally and nationally, we’ve been confronted with a period of unprecedented transformation and enormous uncertainty. However, the huge environmental challenges we face on climate and biodiversity loss remain and EDO continues to use the law to squarely face them.
Our national team is actively navigating the legal system as it moves online. Importantly, our lawyers are still scrutinising government decision-making at all levels. Indeed, the current crisis requires us to be even more vigilant in our legal watchdog role.
EDO lawyers have been watching as, in response to COVID-19, State and Territory governments across the country have passed laws or made amendments which alter planning and environmental controls and access to courts, tribunals and planning panels.
Nicole Sommer, Managing Lawyer Hobart, and Revel Pointon, Senior Solicitor Brisbane, have now prepared an overview of changes to planning and environment laws and hearing rights.
You can download our table with links to the new legislation and also read below in more detail about the changes, grouped under Commonwealth, State and Territory.
While laws differ in each State and Territory jurisdiction, in general they provide broad discretion on a Minister to vary or alter the usual planning process, to make planning law exemptions and to allow alterations to the operation of, and public access to, the Courts. In some States (including Tasmania, NSW and Victoria), these powers are temporary, with legislated sunset clauses, while others have introduced broad discretionary powers that will continue to be available to be called on after COVID-19 has passed – for example, in Queensland.
To date, these powers have been used on the whole to implement the immediate measures necessary to respond to COVID-19 – to shore up food and medical supply chains, prepare for a potential need for new medical centres, allow businesses to operate from home and ensure provision of access to the Courts.
It is important that these measures are transparently and consistently applied and that powers are exercised rationally, proportionately and for a proper purpose, as decisions made now could have long-lasting impacts on communities and the environment. Many people have called the EDO asking questions and raising concerns about ongoing public consultation and government reforms, which communities are struggling to respond to during this significant disruption to our lives. There are concerns about access to justice, particularly in NSW where the Independent Planning Commission is continuing with its assessment of the Narrabri Gas Project without allowing key procedural rights for about 23,000 community members.
EDO lawyers across the country are carefully watching the exercise of these powers and will step in where necessary. For example, we have written to State governments about:
- NSW – to ask the Independent Planning Commission not to hold hearings while the communities affected cannot adequately or meaningfully participate
- Tasmania – to ask the Planning Minister and Attorney-General to hold off on public consultation on major projects and Tribunal reform Bills
- Queensland – to ask the government to exercise emergency powers proportionately and in the public interest.
These are just the first of many steps we will take.
As restrictions start to be lifted across the country and our attention turns to what is required for recovery and economic stimulus, we see the focus on planning and environment laws increase. There are questions about the extent to which these powers can be used for economic stimulus by facilitating development.
NSW and Victoria have announced formal arrangements aimed at speeding up assessment processes (eg. the Planning System Acceleration Program and the Building Victoria’s Recovery Taskforce), Tasmania has established an Economic and Social Recovery Advisory Council and has draft major projects legislation under consultation, the WA Act allows powers to be exercised for “recovery” from an emergency and the NT government is amending planning laws to provide small-scale works without planning approvals. The Federal Environment Minister has indicated she will speed up assessments under the national environment law and consider amendments to the EPBC Act prior to the completion of the statutory review which would “prevent unnecessary delays”.
Our national team is tracking trends and working through the critical issues in response to the immense scale and significance of this disruption:
- to ensure continued access to justice, open and transparent decision making,
- that key protections for the environment and the community are not removed
- and that decisions we make now seize the opportunity to recover in a way that puts Australia on a pathway to a safe and stable climate.
We will continue to update our website in the coming weeks.
The Federal Parliament has passed laws for budget appropriation but no laws changing legal requirements.
There has been no national legislative response on changes to environmental laws, although Federal Environment Minister Susan Ley has indicated an intention to remove delays under the Environment Protection and Biodiversity Conservation Act 1999 (Cth) by:
- Ensuring all assessments in the system are processed by 30 June 2020; and
- Considering introduction of amendments to the EPBC Act prior to the completion of the current statutory review to “prevent unnecessary delays and improve environmental standards”.
A National Communique from the Planning Ministers on Land Use Planning and the COVID-19 Pandemic on 20 April 2020 agrees that:
- Planning systems and the development approvals pipeline in Australia must continue to function during the COVID-19 crisis so that jobs and businesses can be maintained at this critical time and that the system supports economic recovery.
- Changes to planning systems should be on the following principles:
- Decision making in the public interest is a paramount theme in all planning systems and this must continue as a guiding consideration.
- Transparency for stakeholders about changes to systems and particular decisions.
- Decisions made within jurisdictions are consistent, where possible.
- Consideration of the level of public interest in a particular planning change or development proposal.
- Balancing administrative and legal review rights with the need to address the pandemic emergency and to assist community and economic recovery.
- All reasonable effort is made to maintain the usual pace of planning approvals, recognising, as far as practical, community consultation will continue through new forms of communication recognising social distancing requirements.
The communique post-dates many of the amendments to planning legislation and actions taken by States and Territories in response to the COVID-19 pandemic, outlined below.
Courts: The Federal Court and High Court continue to operate. The Federal Court has made directions that all hearings are to be through video or telephone conferencing unless required to be in person. There is no clear provision for hearings to be made public. Hearing procedures appear to be considered on a case by case basis. The High Court is continuing to deliver judgments and special leave applications, including hearings as necessary. It will not be sitting in Canberra or on circuit in April, May or June, with all hearings by video-conferencing. The High Court’s website indicates that hearings are public and audio-visual recordings are available for Full Court hearings.
The Australian Capital Territory has passed COVID-19 related legislation, namely the COVID –19 Emergency Response Act 2020 (ACT) (ACT Act) effective from 8 April 2020. The ACT Act does not provide any new rights around development decision making. The Act obliges relevant Ministers to report to Parliament monthly on the application of COVID-19 measures for as long as a COVID-19 declaration is in force.
Courts: ACT courts are generally closed to the general public but journalists are still able to attend – see the practice direction here. Hearings may be heard in person still but other matters are to occur via telephone. For more information on ACT court responses to COVID-19, go here.
The Northern Territory government has passed some legislation in response to COVID-19, however there have been no specific planning and environment legislative changes.
Amendments have been made to Northern Territory Planning Scheme by order of the Planning Minister:
- For food and retail businesses, to lift all permit conditions that limit operating hours or delivery times
- To allow temporary medical and health centres to be set up quickly (see Amendment 550 here)
- To allow people to work from home
- To suspend the need for a planning permit for certain building works for business, clubs and homeowners undertaken under the Business Improvement Grant, the Immediate Works Grant and the Home Improvement Scheme (see Amendment 551 here).
For more information on planning law changes, see here.
Courts: Like other jurisdictions, Northern Territory Courts and Tribunals are continuing to operate, with hearings being held online or by telephone. There is limited information as to whether hearings are open to the public. The government passed the Courts Legislation Amendment Act 2020 (NT), to allow documents to be issued or transmitted electronically and to waive certain procedures requiring signatures or sealing of documents.
Meetings of the Development Consent Authority is proceeding by teleconference, although two meetings scheduled by the Darwin Development Consent Authority for April were cancelled.
The NSW government passed the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), which commenced on 25 March 2020. This Act amends the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act).
The key change in the Act is that it gives the Planning Minister broad powers to make Ministerial orders during the ‘prescribed period’ to exempt development from planning requirements (s.10.17).
This Planning Minister’s power can only be exercised where:
- the Minister first consults with the Minister for Health and Medical Research; and
- the Minister 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.
The ‘prescribed period’ in which this power can be exercised is 6 months from the date the Act came into effect and expires on 25 September 2020 (or other date prescribed by regulation, no greater than 12 months).
The Minister has made a number of orders under this power, relating to construction hours, food trucks, temporary workers accommodation. A full list of these orders can be found here.
Changes have also been made to:
- alter the requirements for public inspection of documents (s.10.18 of the Act); and
- allow notices and other documents previously published in a local newspaper to instead be published online from 17 April 2020 (by Regulation). Environmental Planning and Assessment Amendment (Public Exhibition) Regulation 2020
The Planning Minister has announced a Planning System Acceleration Program which includes a range of measures to fast-track certain development. No legislative changes are expected to implement this Program and current development assessment processes, including requirements for environmental assessment and community participation remain unchanged.
Courts and public hearings: The NSW Land and Environment Court is closed to the public and all hearings are online or by telephone. Changes to the Court’s practice and procedure are set out on its website.
The NSW Independent Planning Commission (IPC) has made changes to processes for public meetings and hearings. The IPC will no longer hold public meetings and scheduled meetings have been cancelled. The IPC is instead accepting written submissions on existing assessments. Public hearings (which the IPC has been directed to conduct by the Minister) will proceed, but in a changed format. Currently, this affects three State Significant Developments: the Vickery Extension Project; the Narrabri Gas Project and McPhillamys Gold Mine. To facilitate this, on 30 April 2020 the NSW Government made the Environmental Planning and Assessment Amendment (COVID-19 Planning Bodies) Regulation 2020 which inserts clause 294 into the EP&A Regulation to provide for public hearings and public meetings of planning bodies to be held by means of an audio link or audio visual link for 6 months during the COVID-19 pandemic.
The Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 (Qld) (Amendment Act) was introduced and passed in Queensland Parliament on 18 March 2020.
Amongst other things, the Amendment Act makes some key amendments to the Planning Act 2016 (Qld), to empower the Planning Minister to issue temporary use licences, remove restrictions on hours of operation and movement of goods, and extend notices periods and the like under that Act.
The Minister can exercise the power where there has been a declaration by the Planning Minister of an “applicable event”, where an “event” is, has or is likely to take place that may affect a “state interest”. An “event” is defined to include a disaster such as a cyclone, an attack against the state or an epidemic.
The Planning Minister is empowered to:
- Issue temporary use licencesthrough an application
process, which can:
- change the conditions of a development approval;
- allow non-compliance with a planning designation; or
- otherwise change the existing lawful use of premises.
The decision criterion is whether there are sufficient grounds for the change, in light of the nature of the applicable event. Temporary use licences remain in effect only while the applicable event declaration remains in effect.
- Lift restrictions on hours of operation or restrictions on the movement of goods, by declaring uses or use classes by notice published on the Department’s website.
- Extend or suspend periods for doing things under the Act, by notice published on the Department’s website, at any time up to 30 days after the end of the applicable event period.
The Planning Minister declared the COVID-19 pandemic an “applicable event” effective from 20 March to 20 June 2020, and has issued notices to:
- Issue declarations for “shop”, “warehouse” and “transport depot” use classes to allow 24 hour operation from 20 March 2020;
- Issued temporary use licences for a number of premises.
All notices and licences can be found here.
A new broad power has been introduced to allow statutory time frames (including to make a decision, give reasons for a decision, or perform a function) that are otherwise able to be amended, to be amended for any purpose under this new Act.
The Queensland Act empowers the Court to modify statutory time frames relevant to Court proceedings by notice to the parties with reasons, either on application or by its own volition. The Act allows for regulations to be made to:
- further amend statutory time frames in Courts for particular persons or matters;
- allow appearances and actions to occur via other methods that do not require in person attendance.
Courts: Queensland Courts are open and hearing matters, including in person where urgent and required, but all pre-hearing matters are being conducted by telephone, video link or on the papers[RP3] . See here for information on Queensland Courts.
South Australia has multiple different new laws that affect planning and environment.
The principal Act is the COVID-19 Emergency Response Act 2020 (SA) (SA COVID Act),which came into effect on 9 April 2020.
The SA Act:
- Empowers the Governor, by regulation, to:
- extend time limits, terms of appointment or any matter under an Act or law, limited to a maximum period of 6 months;
- suspend or modify requirements under an Act/law/instrument, relating to the preparation, signing, witnessing, attestation, certification, stamping or other treatment of any document.
- Allows electronic service of notices;
- Allows meetings required under statute to occur via audio-visual or other means.
There are some provisions of note not found in other COVID legislation:
- An immunity from liability for any acts or omissions of the SA Government related to a power or function under the Act or directions in accordance with the Act.
- Reports or other documents to be tabled in both Houses of Parliament can now be delivered to the President of the Legislative Council or the Speaker of the House of Assembly, then published on a website and distributed to each member of both Houses.
- Oversight by the Public Works Committee is waived for ‘prescribed public works’, which would normally provide oversight and reporting for investment of amounts exceeding $4,000,000. ‘Prescribed public works’ is defined as a public work that is necessary as a result of circumstances brought about by the COVID-19 pandemic (or as a result of any measures taken to address the COVID-19 pandemic) or to provide economic stimulus during and after the COVID-19 pandemic.
The Local Government (Public Health Emergency) Amendment Act 2020 gives a broad power to the Local Government Minister to vary or suspend (by Gazette) the operation of the Local Government Act where:
- a public health emergency has been declared; and
- the Minister is satisfied that the variation or suspension of the specified provisions is reasonably necessary as a result of the emergency.
- The Minister has first consulted with the local government association before making the notice.
The power will enable alterations to council processes, but cannot restrict a council’s power to impose rates or charges. The power expires on 31 December 2021, however a review is to occur 6 months prior to that date.
The Development (Public Health Emergency) Variation Regulations 2020 provide for:
- variation of the powers and timeframes for referral agencies in development applications;
- enables flexible opening hours and loading /unloading times;
- removal of the requirement for a Development Assessment Commission report for development under reg. 38(2)(b), applicable until 30 Sept 2020.
Courts and hearings: All public meetings for Environmental Impact Statements and Public Environment Reports can occur online and allows for public attendance at those hearings.
All impacts relevant to courts in South Australia can be found here. In general court matters are to be dealt with via email via telephone conference and only in person if necessary, for example for urgent matters where there has not been time for the parties to agree a position or for civil matters with limitations on time for the hearing.
On 27 March 2020, the Tasmanian Parliament passed COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tasmanian Act).
The Tasmanian Act provides broad power to the Premier, Attorney General and Treasurer to alter specified legislative requirements, by issuing notices published in the Government Gazette.
This includes the power of the Minister to alter planning requirements, including:
- To reduce or extend statutory timeframes
- To amend or revoke a provision of a planning permit or approval under any prescribed Act;
- To provide protection from planning offences where necessary to comply with a public health or emergency requirement, direction or authorisation;
- Extend statutory appointments;
- To allow meetings to be conducted by telephone or electronic communication.
A notice can be issued where the Minister is of the opinion that the “relevant emergency circumstances” exist in relation to the notice. The “relevant emergency circumstances” will be taken to exist where the Minister is satisfied that the notice is “necessary or desirable” because of:
- the presence or risk of the virus in Tasmania,
- a restriction on movement required by legislative instrument,
- a reduction in the number of people available to carry out the activities to which the notice relates, or
- to secure supply of goods and services, the supply of which is hindered.
There are limits on the issue of a notice:
- Notices must be issued with the approval of the emergency manager, and, where relevant, made at the request of the Court, Tribunal or public authority concerned.
- Notices will cease to take effect after 12 months, or within 60 days of the cessation of a state of emergency, whichever is sooner.
- Notices must be laid before both houses of Parliament and be provided to the Subordinate Legislation Committee of Parliament within 14 days of issue.
To date, notices relevant to planning and environment functions, including the Courts include:
- To alter public notice requirements such that documents need only be displayed on the relevant council website, or be available for collection on payment of a fee
- To allow the Supreme Court and Magistrates Court hearing processes to be altered, including to allow online and telephone hearings and not to comply with public hearing requirements.
Further information can be found here.
Courts and hearings: Tasmanian courts, tribunals and hearings are proceeding with hearings and listings. The Tasmanian Supreme Court is conducting hearings online or by telephone, with hearings in person where necessary. No specific arrangements have been made to allow public to attend hearings.
RMPAT and the Tasmanian Planning Commission hearing processes are being conducted online or by telephone. Both allow for members of the public to attend hearings: in RMPAT, by application, in the Commission, by filing a notice.
The Tasmanian Government is consulting on a suite of planning reform, including a draft Land Use Planning and Approvals Amendment (Major Projects) Bill 2020, a review of the Tasmanian Planning Commission and a proposal for a new Tasmanian Civil and Administrative Tribunal. The Tasmanian Premier has announced the formation of an Economic and Social Recovery Advisory Council, which will provide recommendations to the Premier on “how to best mitigate the economic and social impacts of the pandemic”. For more, see the Premier’s speech to Parliament.
The COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) (Victorian Act) was assented to on 24 April 2020. The Victorian Act provides powers to create Regulations to address COVID-19 related matters, with a limit of 6 months on this power.
The Victorian Act does not directly affect planning and environment powers. There are existing powers in the Planning and Environment Act 1987 (Vic) to exempt use and development from planning schemes or to alter planning scheme amendments which may have been relied on for interim measures.
The Victorian Act relevantly provides that:
- access to information under existing rights to inspect is enabled to occur via websites;
- local government meetings can be undertaken electronically, however it requires that local government meetings must be able to be made public, unless confidential;
- addresses open justice provisions by:
- allowing for Planning Panels Victoria to satisfy the requirement to conduct hearings in public if the hearing is available for viewing by electronic means, either during the hearing or as soon as reasonably practicable afterwards.
- empowering the head of a court to take measures they see fit for safety and ongoing admin of justice during COVID.
Courts and hearings: The Victorian Civil and Administrative Tribunal is hearing matters via telephone and non-urgent matters have been adjourned. There is no clear provision to allow for public access to hearings.
The Court of Appeal is conducting all hearings via video link, with all other courts minimising as much as possible any in person hearings, and no provision for public to attend hearings.
Planning Panels Victoria are not listing any new face to face hearings and are exploring arrangements for online hearings. Directions hearings are proceeding via teleconference. Arrangements will be made to comply with the requirements of the Victorian Act.
Of note is the decision to postpone key environmental reforms, by deferring the commencement of the Environment Protection Amendment Act 2018 (Vic) to 1 July 2021. The EPA says this is to “ease the burden on business and industry as they address the impacts of the current circumstances”.
A Building Victoria’s Recovery Taskforce has been formed within the Department of Environment, Land, Water and Planning. It will initially focus on overseeing the fast-tracking of existing major building and development projects and will provide advice on “a pipeline of building and development projects over the longer term”. It will run for an initial period of three months.
The Western Australian government made changes to planning laws by amending the Planning and Development (Local Planning Scheme) Regulations 2015 (WA) to allow the Planning Minister to temporarily override requirements and conditions of local planning schemes and approvals.
Under the Regulations, the Planning Minister can issue a notice published in the Government Gazette that authorises exemptions from planning requirements where:
- If the Minister considers it is necessary to do so “for the purpose of facilitating response to, or recover from the emergency…”;
- If a state of emergency declaration is in force under the Emergency Management Act 2005 (WA)for all of part of the State, or if not in force if necessary for the above purpose; and
- Unless impracticable due to urgency, the Minister has first consulted with the WA Planning Commission and Local Government Association and given notice to the relevant local council or WALGA.
The exemptions include exemptions from requirements to obtain permits for use, works, or permit conditions, to overcome prohibitions, to re-enliven non-conforming uses, and to alter requirements in relation to consultation, advertisement, applications, time limits or forms. Notably, the exemption power does not extend to an environmental condition that applies as a result of an assessment carried out under the Environmental Protection Act 1986 (WA).
A notice must state when it expires, which is either at the end of the state of emergency or a date no later than 5 years after the date it was issued.
A Notice of Exemption was issued by the Planning Minister as at 11 April 2020 which:
- Extends the time for commencement of all planning permits by 2 years, issued on or before the cessation of the State of Emergency
- Made specified use and development exempt from planning approvals subject to conditions, including:
- Medical or health-related facilities required in response to the COVID-19 pandemic;
- Truck and logistic companies needing to deliver goods but currently with restricted loading and unloading times;
- Use and temporary works to allow businesses to adapt and change uses, including shops, restaurants, cafés, convenience stores, consulting rooms and offices in a commercial or mixed use zone, and industry, light industry, trade supplies, warehouse/storage and transport depot in an industrial zone;
- Home occupation and home business uses, to allow people to work from home in residential zones.
The exemptions remain in effect until 90 days after the end of the State of Emergency.
Courts and hearings: The Supreme Court and Magistrates Court continue to be open to the public. Persons with symptoms are directed not to attend court premises. The Supreme Court has also requested (but not directed) members of the public (who are not legal professionals, litigants or media) not to attend. Directions hearings and case management conferences are to be held remotely wherever possible.
The WA Planning Commission continues to hear deputations by telephone or video conference.