15 April 2020

Planning and development during COVID-19 – States respond with emergency planning legislation and changes to planning controls

This article was written by Mark Beaufoy, Sally Audeyev, Matthew Austin, Debra Townsend, Anna Vella, Eleni Carrol and Joel Bond.

Following emergency legislative changes that were passed through Queensland and New South Wales Parliaments giving new planning powers, Victoria has followed suit with a state-wide amendment to the planning provisions via Amendment VC181. It is anticipated that emergency COVID-19-related legislation will follow in Victoria which will include other planning and local government measures. South Australia and Western Australia have also introduced amendments to the planning regimes in those States to respond to physical distancing and other COVID-19 related requirements.

Queensland

On 19 March 2020 we published an update on the legislation introduced by the Queensland Government to planning decision making in response to COVID-19. The Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 (Qld) made amendments to the Planning Act 2016 (Qld)[1] (the update can be found here), including:

  • enabling the Planning Minister to make a declaration of an applicable event, being ‘an event has, is, or is likely to take place’ that may affect a State interest which includes events the Minister is satisfied affects an economic or environmental interest of the State;[2]
  • the introduction of temporary use licences which are designed to ensure ‘important services may continue to be provided to the community, as needed during declared applicable events, by allowing operators to change lawful existing use rights’;
  • the power of the Minister to temporarily extend or suspend timeframes for the planning framework;
  • the power of the Minister to make declarations about particular uses and classes of uses, to ensure that that there is ‘an immediate ability to manage supply chains for businesses by allowing 24 hours, seven days per week operating conditions in order to provide goods and services to the community during the applicable event’.[3]

On 20 March 2020, the Minister declared that the COVID-19 emergency was an applicable event for the whole of Queensland for the period from 20 March 2020 to 20 June 2020.

New South Wales

In New South Wales the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 (NSW) passed both Houses (the Legislative Assembly and the Legislative Council) on 24 March 2020 and was assented on Wednesday 25 March 2020. (COVID-19 Act)

The COVID-19 Act amended various NSW Acts in response to the COVID-19 pandemic including the Environmental Planning and Assessment Act 1979 (EPA Act) and the Local Government Act 1993 (NSW).[4]

The EPA Act amendments have been described as necessary to ensure that any developments that protect the health, welfare and safety of the community during the pandemic can proceed without the normal development approvals.[5] Schedule 2.8 of the COVID-19 Act outlines the amendments to the EPA Act, including that:

  • the Minister for Planning and Public Spaces can make an order authorising development to be carried out on land without the need for any approval under the EPA Act or consent from any person, during the ‘prescribed period’ (being either 6 or 12 months). The order can be made only if the Minister is reasonably satisfied that the order is necessary to protect the health, safety and welfare of members of the public.
  • a requirement to make a document available at a physical location such as an office is satisfied if the document is made available on the NSW planning portal or any other website approved by the Planning Secretary.

A number of orders have already been made under legislation by the Minister relating various activities.[6] Each of those orders expires on 25 September 2020. Changes to the Local Government Act 1993 are found in Schedule 2.12 of the COVID-19 Bill and provide that:

  • the Minister for Local Government may postpone the requirements relating to the holding of ordinary council elections and by-elections, where the Minister believes it is reasonable to do so.[7]
  • persons will no longer be required to attend council meetings as meeting will instead be held remotely and members of the public will be given access to the meeting by webcast or other forms approved by the Minister.

Schedule 2.12 also contains a power for regulations under the LGA to modify the application of the LGA for the purposes of responding to the public health emergency caused by the COVID-19 pandemic.

The COVID-19 Act also keeps a number of planning and environmental regulations which were due to be repealed on 1 September 2020 in force for either 6 or 12 months.[8]

Victoria

Amendment VC181 was adopted by the Minister for Planning on 31 March 2020 and gazetted on 6 April 2020. The Amendment changes the Victorian Planning Provisions and all planning schemes by replacing clause 52.18 [No Content] with new clause 52.18 (State of emergency exemption) to allow deliveries of food and other essential goods to be made at any time of the day to enable supermarkets, hospitals, pharmacies and other essential businesses, in order to meet the significant community demand arising from COVID-19.  

Clause 52.18 will override any permit conditions or other requirements that limit the hours or days which goods can be dispatched, delivered, loaded or unloaded when a state of emergency such as COVID-19 is in force, and for three months after. Specifically, new clause 52.18-1 provides that:

Any requirement of a planning permit, including any condition, or any provision of this planning scheme, that limits, or has the effect of limiting, the hours or days during which goods may be dispatched, delivered, loaded or unloaded does not apply to the dispatch, delivery, loading or unloading of:

  • Food, drink, groceries, medicine, or cleaning, sanitising, health, hygiene, medical or personal protection equipment, supplies, or products, or the like.
  • Any goods to a supermarket, market, hospital, medical centre, pharmacy, residential aged care facility or retirement village.[9]

Such permit conditions and other restrictions are in place to minimise community amenity impacts, particularly from noise and other emissions, however it was considered that the benefits of delivering food and other essential goods to respond to significant community demand as a result of COVID-19 outweighed this impact. Prior to the Amendment, councils had been using their discretion in relation to the enforcement of deliveries out of hours and had been using secondary consent provisions in permits to amend existing permits to allow for deliveries contrary to existing permit conditions.  

Victorian industry association, the Victorian Planning and Environmental Law Association (VPELA),[10] held a very helpful webinar this week to discuss the responses to COVID-19 with speakers from DELWP and number of councils. It is expected that further COVID-19 emergency legislation will follow including relevant changes to planning and local government legislation. In the meantime, it is anticipated the Planning Minister will use powers of intervention for emergency planning scheme amendments under section 20(4), or calling in permit applications for determination under section 97B of the Planning and Environment Act 1987 (Vic).

Western Australia

Amendments to the Planning and Development (Local Planning Schemes) Regulations 2015 (WA) were made on 3 April 2020.  These amendments provide the Minister for Planning with authority to temporarily override requirements and conditions set out in a local planning scheme, and existing conditions in planning approvals.  These powers only have effect when a state of emergency is declared in relation to the whole or any area of Western Australia.

As a result of these amendments the Minister can authorise a range of exemptions, including exemption from:

  • a requirement to obtain a development approval;
  • a requirement under a condition of a development approval; and
  • a requirement relating to permissibility of uses of land.

However, an exemption can only be issued if the Minister considers that it is necessary to do so for the purpose of facilitating response to, or recovery from, the emergency to which the state of emergency declaration relates.  Every exemption will contain an expiry date, which will be:

  • when the state of emergency declaration ceases to be in force; or
  • not later than 5 years after the date on which the exemption is granted.

On 3 April 2020, the Department of Water and Environmental Regulation (DWER) advised that all statutory obligations still remain in place, subject to any directions issued under the Emergency Management Act 2005 (WA) or the Public Health Act 2016 (WA).  DWER has requested that if there is any risk of failing to comply with obligations, particularly in relation to environmental reporting and monitoring, that DWER be notified by email.[11]  All notifications should include sufficient detail to allow DWER to understand and assess the reasons for any anticipated non-compliance or risk of non-compliance.

South Australia

In South Australia, the Development Regulations 2008 (SA) (Regulations) were amended on 19 March 2020 and again on 9 April 2020 in response to the COVID-19 emergency. 

The 19 March amendments waived conditions on all development approvals that restrict trading hours and the loading and unloading of goods on land used as shops for the retail sale of foodstuffs.

The 9 April amendments expand upon the 19 March amendments.  These amendments are operative until the earlier of 30 September or a day determined by the Minister for Planning and include -

  • the Minister has a new power to expand the kinds of premises that can load and unload goods outside approved hours, beyond just shops used for the retail sale of foodstuffs (being the only use nominated by the 19 March amendments);
  • the Minister has a new “call-in” power for development applications, which allows the Minister to appoint the State Commission Assessment Panel (SCAP) (rather than a council) as the relevant planning authority for classes of development designated in a notice published on the SA Planning Portal;[12]
  • once appointed by the Minister, SCAP can “take over” a planning assessment already commenced (but not completed) by a council.[13] Further, the relevant council’s rights to make comments to SCAP about a development are then removed in various circumstances;
  • where a referral agency (e.g., the EPA, the Commissioner of Highways, etc) seeks further information from an applicant, the agency should nominate 5 days as the time for the applicant to respond (albeit this period can still be extended);
  • a referral agency only has 20 business days to provide its response to referrals made after 9 April (albeit this period can still be extended);
  • referral agencies can only request further information from an applicant on one occasion only;
  • clarification that any requirement to keep prescribed information at, or to make it available for inspection at, a planning authority’s principal office will be satisfied if the information is kept “in a manner accessible to the public, or made available to the public for inspection, on a website”.
  • clarification that various kinds of public meetings, including for a Development Plan Amendment (DPAs), Environmental Impact Statement (EIS) or Public Environmental Report (PER) can occur remotely by using audio-visual technology or other electronic means, so that interested persons are able to observe the meeting and are given an opportunity to make representations or make submissions.[14]

As we stated in our earlier update, these legislative responses will provide flexibility to meet the changing need for land use and development, emergency accommodation to support essential industries, re-purposing of land and buildings and the delivery of services in response to the COVID-19 pandemic. Please contact us if we can assist you or if you have any queries on these planning responses.


[1] And the Economic Development Act 2012 (Qld).

[2] ‘Events’ are broadly defined under the section 16 of the Disaster Management Act 2003 (Qld) to include, inter alia, prescribed extreme weather events, epidemics; and the failure of, or disruption to, an essential service or infrastructure.

[3] See Public Health (Declared Public Health Emergencies) Amendment Act 2020 (Qld) Division 4.

[4] The Explanatory Note to the COVID-19 Bill provides a concise description of the amendments. Note also that for the majority of amendments, the provisions apply for a minimum period of 6 months and may apply for a total of 12 months if the regulations prescribe a longer period.

[5] See the NSW Government website for an overview of all the amendments introduced by the COVID-19 Act.

[6] The Environmental Planning and Assessment (COVID-19 Development—Extended Operation) Order 2020 [NSW] contains provisions regarding retail premises trading and operating hours, and home businesses and home industries operating hours; Environmental Planning and Assessment (COVID-19 Development—Construction Work Days) Order 2020 [NSW] facilitates social distancing by spreading construction work over more days in a week; Environmental Planning and Assessment (COVID-19 Development—Temporary Workers’ Accommodation) Order 2020 [NSW] allows workers at the Bayswater and Liddell power stations to be isolated in separate accommodation; Environmental Planning and Assessment (COVID-19 Development—Takeaway Food and Beverages) Order 2020 [NSW] allows greater access to food and beverages on a takeaway basis; and Environmental Planning and Assessment (COVID-19 Development—Health Services Facilities) Order 2020 [NSW] facilitates the use of buildings or places as health services premises and allow health services facilities under construction to be completed sooner.

[7] This provision will be repealed after 12 months.

[8] The Environmental Planning and Assessment Regulation 2000 will remain in force for a further period of 6 months (that is until 1 March 2021) and the Local Government (General) Regulation 2005, the Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005, the Protection of the Environment Operations (Clean Air) Regulation 2010 and the Protection of the Environment Operations (General) Regulation 2009, will remain in force for a further period of 12 months (that is until 1 September 2021) after the date on which those regulations would otherwise be repealed by the Subordinate Legislation Act 1989.

[9] The Amendment VC181 documents can be accessed here: https://www.planning.vic.gov.au/schemes-and-amendments/browse-amendments?query=&sort=dmetad&search_mode=id&d3=&meta_d3=&d4=&meta_d4=&f.Category%7CamendmentType=VC#Amendments--VC181

[10] https://www.vpela.org.au/ - a recording of the webinar should be available on the VPELA website soon.

[11] Emails should be sent to [email protected]

[12] The SA Planning Portal can be accessed here.

[13] Including by adopting a council’s previous assessment, finding or determination in relation to that development.

[14] See also s. 17 of the COVID-19 Emergency Response Act 2020 (SA), passed on 9 April 2020.

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COVID-19: Implications for Business

The spread of Coronavirus (COVID-19) has forced us to think and act differently. Beyond the human response, now is the time to think about what the consequences may be on your business, and how best you can prepare for those.

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