29 May 2020

NSW

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  • Defer the repeal of the Environmental Planning and Assessment Regulation 2000 (NSW), until 1 March 2022, unless repealed earlier, to give time to finalise the new Regulation.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:

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

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.