Environment and Planning: COVID-19 legislative amendments and key measures for NSW

Supplementary Update

Since the publication of this article on 17 April 2020, there have been a number of announcements by the NSW Government in response to the COVID-19 pandemic. Below we provide a summary of the key environment and planning changes as at 24 April 2020.

There have been a number of developments relating to the COVID-19 pandemic over the last two weeks, as Commonwealth and State Governments bring in policy and legislative change to respond to community needs as well as keeping the construction industry moving.

Businesses can now take advantage of the removal of certain restrictions around construction hours and movement of goods, as well as a relaxation on controls relating to retail and restaurant/cafe operations.

The NSW Government has also announced the acceleration of the assessment of major projects and rezonings, however detail around this programme has not yet been released.

In addition, whilst some regulators have relaxed some of their enforcement activities, others, such as the NSW Environment Protection Authority (NSW EPA), have reminded businesses that despite the COVID-19 pandemic, compliance with environmental obligations is mandatory and continues on a ‘business as usual’ basis.

Below we summarise some of the key measures which may be of interest to your business.

National agreement on planning approvals

An unprecedented agreement has been reached between Australian State and Territory Governments to ensure planning approvals maintain their usual pace throughout the COVID-19 pandemic in order to protect jobs, businesses and the economy. A set of guiding principles has been agreed to by each respective government on how planning systems should operate during this time.

The agreed principles are:

• 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.

Whilst changes will be made on a State by State basis to legislation and policy as needed, the agreement is an acknowledgement that swift changes are required to keep up with the demand for approvals.   

There has also been acknowledgement that despite the immediate action required, consultation with stakeholders and the community will still be an integral part of the system, along with transparency of decision making. As this presents its own challenges due to social distancing requirements and limitations on mass gatherings, State and Territory governments will need to utilise technology to ensure information is reaching its constituents, as well as allowing public participation in the decision making process.  
 
Transport and road projects 
 
Transport and Roads Minister Andrew Constance has announced that the NSW Government will deliver $57.5 billion worth of road and transport infrastructure in the next four years to keep people in jobs and the economy moving. 
 
Taking advantage of the decreased vehicle movements and flexibility in construction hours under approvals, projects and maintenance has been fast-tracked throughout the State including resurfacing the M5 East Motorway and maintenance on the Sydney Harbour Tunnel.  
 
We expect that additional significant projects may be announced in the coming weeks.  
 
Fee waiver and tax assistance 
 
The NSW Government has made a number of changes to fees and taxes by waiving or deferring payments to assist small business. Changes include:

• Payroll tax changes including an increase in the tax-free threshold to $1 million; 
• Deferral of payment of payroll tax for businesses with payrolls over $10 million for 6 months;
• An additional three-month deferral for businesses with payrolls of $10 million or less who received a three-month waiver in the first package; and 
• Deferral of gaming tax for clubs, pubs and hotels, and lotteries tax for six months, conditional on these funds being used to retain staff.

Changes to NSW Government fees include:

• Deferral of parking space levy for six months;
• Deferral of rents for six months for commercial tenants with less than 20 employees in all NSW Government-owned properties;
• Licence, registration and permit fees will be automatically waived for 12 months on new applications and renewals lodged by eligible businesses and individuals for liquor licences and the like;
• Waiving fees for building related licences including building contractor licences and SafeWork organisation licences.

Changes to council fees

The NSW Government has announced changes to local council fees to provide financial relief for businesses and residents, as well as allowing local councils to focus on their response to the COVID-19 pandemic. 

Amendments to local government regulations include:

• Allowing councils to delay sending out first quarterly rates notice for 2020-21 and extend payment deadlines by a month;
• Enabling councils to immediately waive or reduce fees for services such as food premise inspections and footpath usage for COVID-19 affected businesses, without the need to provide 28 days public notice;
• Providing councils with a one-month extension to adopt their 2020-21 operational plans and budgets and submit their 2019-20 audited financial statements and annual reports;
• Removing the requirement for documents to be made available for inspection at council offices, so long as it is available electronically; and
• Removing the requirement for council notices to be advertised in newspapers and instead allow the relevant notice to be published on the council’s website.

The changes grant flexibility to councils to adjust in rapidly shifting circumstances.  

Introduction

There have been a number of developments relating to the COVID-19 pandemic over the last two weeks, as Commonwealth and State Governments bring in policy and legislative change to respond to community needs as well as keeping the construction industry moving.

Businesses can now take advantage of the removal of certain restrictions around construction hours and movement of goods, as well as a relaxation on controls relating to retail and restaurant/cafe operations.

The NSW Government has also announced the acceleration of the assessment of major projects and rezonings, however detail around this programme has not yet been released.

In addition, whilst some regulators have relaxed some of their enforcement activities, others, such as the NSW Environment Protection Authority (NSW EPA), have reminded businesses that despite the COVID-19 pandemic, compliance with environmental obligations is mandatory and continues on a ‘business as usual’ basis.

Below we summarise some of the key measures which may be of interest to your business.

COVID-19 Legislation Amendment (Emergency Measures) Act 2020

This is the key piece of legislation under which the Minister for Planning and Public Spaces (Minister) can now make orders which allow the carrying out of development without the need for approval under the Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act), or the consent from any person.

As at 14 April 2020, the Minister has made six of these orders.

The Minister’s ability to make such orders is, however, not without limitations. The Minister must firstly consult with the Minister for Health and Medical Research, and must be “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”.

A copy of the legislation is available here.

1. Order for Extended Hours of Operation

This order allows retail premises to be used at any time, effectively switching off any development consent conditions which limit the hours of operation to certain days and times. To take advantage of this, businesses must be the subject of an existing development consent. In addition, steps must be taken to ‘reduce noise levels’ during operational hours.

The same benefit also applies to home businesses and home industries.

A copy of the order is available here.

2. Order relating to Health Service Facilities

This order gives powers to the Health Administration Corporation, or another public authority (on their own land) to change the use of a building to a health services facility, as well as carry out temporary construction work for that purpose. In addition, conditions which restrict construction hours, movement of vehicles, noise and occupation have been removed from existing approvals for health service facilities when constructed by public authorities.

These changes will allow the Corporation and other public authorities to construct health facilities in response to the COVID-19 pandemic quickly, and may result in an increase of construction contracts being awarded by the Corporation, as well as jobs.

A copy of the order is available here.

3. Order relating to Construction Work Days

This order extends construction hours for development to boost the construction industry. More specifically, the Order allows “the carrying out of any building work or work, or demolition” on a Saturday, Sunday or public holiday where the development is the subject of an existing development consent, subject to some limitations (for example, rock breaking).

A copy of the order is available here.

A second order was subsequently published to extend this benefit to State significant infrastructure approvals, environmental assessments under Part 5, Division 5.1 of the EP&A Act and authorisations under Part 3 of the Water Supply (Critical Needs) Act 2019.

A copy of the order is available here.

These changes are particularly useful for construction projects that are currently underway. In addition, the changes may encourage businesses to commence shovel-ready projects which has a positive flow on effect for the construction industry generally.

4. Order relating to Takeaway Food and Beverages

This order allows the preparation and sale of food and/or beverages at a number of existing premises, including community facilities, cooking schools, food and drink premises and function centres, without the need for approval under the EP&A Act.

The order also allows the use of a mobile food and drink outlet at any time for the sale of food or beverages (or both) for consumption off the premises, so long as the consent of the owner of the land is obtained.

This order is a response to the increased demand in services we have been seeing over the past few weeks, as well as to allow existing cafes and restaurants to serve takeaway food and beverages to keep their businesses afloat.

A copy of the order is available here.

5. Temporary Workers Accommodation

This order permits the construction of temporary workers’ accommodation at the Bayswater Power Station and Liddell Power Station.

A copy of the order is available here.

Planning System Acceleration Program

The Minister announced through a media release that the NSW Government will cut red tape and fast-track planning processes to keep people in jobs and the construction industry moving during the pandemic.

The Minister announced that the following steps will be taken:

• Fast-track assessments of State significant developments, rezonings and development applications, with more decisions to be made by the Minister if required
• Support councils and planning panels to fast-track local and regionally significant development applications
• Introduce a ‘one stop shop’ for industry to progress projects that may be ‘stuck in the system’
• Clear the current backlog of cases stuck in the Land and Environment Court with additional Acting Commissioners
• Invest $70 million to co-fund vital new community infrastructure in North West Sydney including roads, drainage and public parks to unlock plans for the construction of thousands of new houses

This will be of great benefit to those who are looking to obtain an expedited approval for their projects, as well as fast tracked rezonings which can often take years to achieve.

In addition, clearing the backlog of cases in the Land and Environment Court will serve to assist those with cases that are currently active. Increased court activity has more recently seen cases taking many months longer, and sometimes years longer, to obtain resolution, significantly delaying investment in and construction of projects.

Changes to supply chains and heavy vehicle movements

State Environmental Planning Policy Amendment (COVID-19 Response) 2020 (SEPP) allows the use of retail supply chain premises (the subject of an existing development consent) at any time for the purpose of supplying goods directly or indirectly to retail premises. A retail supply chain means port facilities, warehouse or distribution centres or retail premises. These changes are in response to the high demand for goods and services, particularly in the supermarket and retail space.

A copy of the SEPP is available here.

Changes to the Heavy Vehicle National Law also commenced on Thursday 9 April 2020 to remove certain travel condition restrictions on heavy vehicle travel times during the COVID-19 pandemic. The restrictions are those relating to travel on State controlled roads in NSW and Victoria during public holidays, such as Easter. It should be noted however that any restrictions on vehicle movements under a development consent or other approval under the EP&A Act still apply.

A copy of the amendments to the Heavy Vehicle National Law are available here.

However, as the COVID-19 pandemic continues, we may see State and Territory governments place restrictions on the interstate transport of goods via freight trucks, rail and cargo. Businesses should continue to monitor how supply chains for goods and services are affected during the COVID-19 pandemic and plan for contingencies.

Compliance with environmental legislation and implementation of business continuity plans

The NSW EPA has confirmed that it expects businesses and individuals to continue to comply with all licence conditions. The NSW EPA will continue to issue clean up notices and prevention notices where necessary. The NSW EPA may however consider requests for exemptions on a case-by-case basis in accordance with the Protection of the Environment Operations Act 1997 (NSW).

In addition, the NSW EPA strongly recommends that businesses implement a continuity plan, which takes into account the updated advice being provided by NSW and Commonwealth health officials. Pollution Incident Response Plans should also be checked to ensure everything is in place to enact those plans if required.

The NSW EPA has released a number of fact sheets and other publications to assist the waste and recycling sector during the COVID 19 pandemic. These publications can be found here.

For a more detailed discussion on this item, please listen in to our podcast here.

If you have any questions about the practical impact of these developments, please get in touch.