29 May 2020
The NSW Government has passed various legislation which reforms planning, development and environment laws.
The COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (NSW) (NSW Act) commenced on 14 May 2020, along with two other COVID-19 related Bills. The NSW Act amends the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), including to:
- Extend time limits for appeals by applicants or objectors of a decision made under the EP&A Act within 25 March 2020 – 25 March 2022, or 6 months prior to this period.
- Extend the lapsing date or deferred commencement of development consents by 2 years for consentsthat would otherwise lapse between 25 March 2020 and 25 March 2022.
- Defer the repeal of the Environmental Planning and Assessment Regulation 2000 (NSW), until 1 March 2022, unless repealed earlier, to give time to finalise the new Regulation.
- Where a document is to be made available for inspection under the EP&A Act, the document is taken to be available if accessible on the NSW planning portal or other approved website.
- Permit authorised officers to conduct compulsory interviews remotely, including compelling answers as part of compliance investigations, under a range of Acts, including the EP&A Act, the Protection of the Environment Operations Act 1997 (NSW), the Biodiversity Conservation Act 2016 (NSW), and the Mining Act 1992.
- Give the EPA broad powers to exempt a person, or class of persons, from any specified provision of the Waste Avoidance and Resource Recovery Act 2001 or the related regulations, for a limited period (by 26 September or no later than 26 March 2021 if prescribed by the Regulation) and with the ability to request reasons.
- Empower regulations to be made under the Interpretation Act 1987 (NSW) to modify statutory time periods,modify or suspend limitation and other statutory time periods, or to alter requirements for physical attendance and meetings, for the purposes of responding to the COVID-19 public health emergency.
The NSW Government also passed the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW), which commenced on 25 March 2020. This Act also amends the EP&A Act. Amongst other things, it gives the Planning Minister broad powers to make Ministerial orders during the ‘prescribed period’ to exempt development from planning requirements. 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’ 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; and
- allow notices and other documents previously published in a local newspaper to instead be published online from 17 April 2020 under the Environmental Planning and Assessment Amendment (Public Exhibition) Regulation 2020
Other regulatory amendments include:
- Environmental Planning and Assessment Amendment (COVID-19 Planning Bodies) Regulation 2020 – made on 30 April 2020, 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.
- Environmental Planning and Assessment Amendment (Lapsing of Consent) Regulation 2020, made on 15 May 2020, to specify that the carrying out of certain preliminary work (including soil or water testing or surveying) is not of itself sufficient to prevent a development consent from lapsing.
- State Environmental Planning Policy Amendment (COVID-19 Response) 2020
- State Environmental Planning Policy (Exempt and Complying Development Codes) 2008
- Environmental Planning and Assessment (COVID-19 Development – Infrastructure Construction Work Days) Order 2020
- Environmental Planning and Assessment (COVID-19 Development – Takeaway Food and Beverages) Order 2020
- Environmental Planning and Assessment (COVID-19 Development – Health Services Facilities) Order 2020
Stimulus initiatives and advisory bodies
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. Under this Program, development proposals are being considered in tranches. Tranche One was announced on 28 April 2020. All 24 projects included in Tranche One were determined by 21 May 2020. Tranche Two was announced on 22 May 2020. All 24 projects in Tranche Two will be determined by 18 June 2020
Non-COVID related environmental regulation reforms
- Better Regulation and Customer Service Legislation Amendment (Bushfire Relief) Act 2020 No 3 (NSW), passed on 25 March 2020 to provide for the waiver, reduction, postponement or refund of fees in particular circumstances, to provide relief associated with the bushfires.
- Water Supply (Critical Needs) Amendment (Bathurst Water Supply) Regulation 2020, made on 24 April 2020 under the Water Supply (Critical Needs) Act 2019, to ‘declare the water supply for the locality that includes Bathurst, Raglan, Eglinton and Perthville and the area serviced by the Bathurst water supply system to be a critical town or locality water supply under the Water Supply (Critical Needs) Act 2019,’ and ‘to prescribe certain development within that locality as development that is exempt from development control legislation.’
- Water Management (General) Amendment (Access Licence) Regulation (No 2) 2020, made on 1 May 2020, to ‘amend the Water Management (General) Regulation 2018 to create an additional specific purpose access licence, namely the Mathoura Temporary Critical Conveyance access licence.’
- Environmental Planning and Assessment Amendment (Sydney Gateway) Order 2020, made on 6 May 2020, ‘to declare certain development for the purposes of the Sydney Gateway to be State significant infrastructure and critical State significant infrastructure. The development is in Tempe, St Peters and Mascot and includes the construction and operation of multi-lane roads around the St Peters Interchange, Sydney Airport Terminals 1, 2 and 3, the Alexandra Canal and the Botany Rail Line, the construction of cycle and pedestrian pathways along the Alexandra Canal and other works.’
- Protection of the Environment Operations (General) Amendment (Railway Systems Activities) Regulation 2020, made on 1 May 2020, to amend the Protection of the Environment Operations (General) Regulation 2009 to provide an extension of 3 months to the period during which a requirement to hold an environment protection licence for the operation of rolling stock on a track is imposed on the occupier of the land on which the track is situated.
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 may choose to hold public meetings. So far 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. Proceedings of these hearings and meetings will be streamed ‘live’ online and a transcript published on the Commission’s website.
The Commission has stated that it will continue to accept written submissions or comments up to one week (7 days) after the public hearing or meeting, providing an additional opportunity for participation outside of the Electronic Public Hearing (EPH) or Electronic Public Meeting (EPM). In line with its existing policies, the Commission will give at least two weeks’ (14 days) notice of an EPH or EPM.