29 May 2020
Various amendments have been made that reform Queensland planning, development and environment laws in response to COVID-19.
The Justice and Other Legislation (COVID-19 Emergency Response) Amendment Act 2020 (Qld) (Justice Amendment Act) was passed with amendments on the 21 May 2020, proceeding as an urgent Bill without being referred to a Committee for scrutiny or an opportunity for input from the community sector. The Qld Act amends the Environmental Protection Act 1994 (Qld) (EP Act) to:
- empower the Minister to grant ‘Temporary Authorities’ to authorise environmentally relevant activities (ERAs) that have increased in intensity or scale as a result of the COVID-19 emergency; and
- empower the Minister to grant exemptions from compliance with conditions of environmental authorities (EAs) and other approvals under the Act.
The exemptions power is limited in duration to 30 June 2021 and the Minister must be satisfied that the approval-holder is unable to comply with the condition due to COVID-19 and that the making of the declaration is ‘a necessary and reasonable response to the effect of the COVID-19 emergency’.
Neither new power contains an express requirement for the decision-maker to have regard the risks to the environment or the community of the proposed decision, beyond the general obligation in the existing section 4 of the EP Act.
ThePublic Health and Other Legislation (Public Health Emergency) Amendment Act 2020 (Qld) (PH Amendment Act) was introduced and passed in Queensland Parliament on 18 March 2020. Amongst other things, the PH 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 licences through 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.
The COVID-19 Emergency Response Act 2020 (Queensland Act) has a purpose which includes ‘easing regulatory requirements’ for those impacted by COVID-19, among other things. 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.
Stimulus initiatives and advisory bodies
Prior to COVID-19, in October 2019, the Department of State Development commenced the new Exclusive Transaction initiative, whereby complex private sector commercial proposals can seek an exclusive mandate with government. While this is not a COVID-19 initiative, it can certainly be used for stimulus ventures. Under this initiative proposals must:
- ‘align with government priorities
- justify its exclusive dealing with government
- represent value for money
- be financially feasible with an investor that has the financial and technical capacity, capability and experience to deliver the proposal.’
The Department will then commit to provide ‘a clear and coordinated entry point for industry proposals and requests for support; personal engagement to explore proposals and guidance on how they are best progressed within government; priority for proposals and investors who have a demonstrated capacity to convert ideas into reality in a timely manner; a single cross agency panel that will oversee the assessment of, and recommendations for, private proposals that involve direct negotiations with government.’
Regulation amendments have been provided via:
- The Nature Conservation and Other Legislation (COVID-19: Fee Waiver) Amendment Regulation 2020, made on 15 May 2020, which operates to waive daily activity fees for commercial activity permits under the Forestry Regulation 2015, Nature Conservation (Administration) Regulation 2017 and Recreation Areas Management Regulation 2017 due to COVID-19.
- The Environmental Protection (Reef Protection Measures) Amendment Regulation 2020, made on 22 May 2020, providing amendments to the Environmental Protection Regulation 2019 to defer the commencement of the requirements for ‘no net decline’ in Great Barrier Reef water quality from new agriculture and industrial development in the Reef catchment until 1 June 2021. This is stated in the explanatory notes to be to allay potential impacts on stakeholders and government from COVID-19.
Non-COVID related environmental regulation reforms
We note that recently there have been other amendment Acts passed that impact on these laws but are unrelated to COVID-19, for example the:
- Mineral and Energy Resources and Other Legislation Amendment Act 2020 – which provides various amendments to resource related legislation, including bringing in elements of the mining rehabilitation framework that has been under extensive review in recent years;
- Justice and Other Legislation Amendment Act 2020 – which, amongst other things, amends the Land Court Act 2000 (Qld) to introduce a rule that each party pays their own costs in Land Court mining objection hearings unless an exemption applies, similar to the rules of the Planning and Environment Court.
- Fisheries Quota (Spanner Crab Fishery) Amendment Declaration 2020, made on 8 May 2020, amending the fisheries quota for spanner crab fishing;
- Natural Resources and Other Legislation Amendment (Postponement) Regulation 2020, amending the commencement date to 24 May 2021 for provisions of the Natural Resources and Other Legislation Amendment Act 2019 (Qld) not yet commenced.
- The Forest Wind Farm Development Bill 2020 was introduced into the Queensland Parliament on 20 May 2020, relating to a wind farm project undertaken via the Queensland Government’s new ‘Exclusive Transactions’ process, as mentioned here.
Courts: Queensland Courts are open and hearing matters, including undertaking site-visits and holding hearings in person where urgent and required, but all pre-hearing matters are being conducted by telephone, video link or on the papers. See here for information on Queensland Courts.