Covid-19 Pandemic – NSW Planning Response

The NSW Government has implemented a number of reforms in response to the COVID-19 Pandemic with the aim of keeping people in jobs and stimulating the economy. Here is a brief summary of some of the reforms:

  • 1 July 2021 – Commencement of the first stage of the Environmental Planning & Assessment Amendment (Major Projects) Regulation 2021 and related policies and guidelines. The changes apply to State Significant Development (SSD) and State Significant Infrastructure (SSI).

Stage 1 introduces an automatic expiry on the Secretary’s Environmental Assessment Requirements (SEARs) 2 years after they have been issued for SSD and SSI projects, provides for the Secretary to extend the expiry date of SEARs by up to a further two years if requested by the proponent, and applies sunset dates to SEARs issued before 1 July 2021. Stage 1 amendments also enable fees for SSI to be determined within 14 days of the EIS being submitted.

Stage 2 commences on 1 October 2021 and includes the introduction of new SSD and SSI Guidelines which will be required to be taken into account by proponents when requesting SEARs, preparing EISs, responding to submissions, amending applications and seeking to modify SSD consents and SSI approvals. The Department will also be able to issue industry-specific SEARs in 7 days, instead of the usual 28 day period.

Stage 3 commences on 1 July 2022 and will require EISs for State significant projects to contain a declaration from a Registered Environmental Assessment Practitioner (REAP) stating that the EIS meets certain requirements. Two REAP schemes, each administered by the Planning Institute of Australia and the Certified Environmental Practitioner Scheme, have been accredited by the Planning Secretary.

  • 10 June 2021 – Environmental Planning & Assessment (COVID-19 Development – Construction Work Days) Order (No 2) 2021. This allows building or demolition work on a Saturday between the hours of 7am and 5pm and specified works on a Sunday between the hours of 9am and 5pm.
  • 8 June 2021 – Planning Circular – Delegation of plan making decisions. This provides information about delegations of local environmental plan (LEP) making functions under Part 3 of the Environmental Planning & Assessment Act (EP&A Act) for the Rezoning Review process.
  • 25 March 2021 – extension of the prescribed period for the temporary planning measures until 31 March 2022. The extension continues the following measures:
  • Allowing retail premises, including supermarkets, to receive deliveries 24 hours a day;
  • Ministerial Orders;
  • Enabling the public inspection of documents through the NSW Planning Portal;
  • Special provisions for public meetings and public hearings of planning bodies; and
  • Ministerial Direction relating to the timing of local infrastructure contribution payments.
  • February 2021 – New Practice Note on Planning Agreements released by the NSW Department of Planning, Infrastructure and Environment to assist parties (a planning authority and a developer) in the preparation of voluntary planning agreements (VPAs).
  • 29 January 2021 – State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (Miscellaneous) 2021 – minor amendments were made to the SEPP and various Codes to clarify various provisions and facilitate Code development.
  • 1 December 2020 – a Statewide NSW outdoor dining trial commenced to streamline planning approvals for outdoor dining on footpaths and public areas. The Codes SEPP was amended to extend the existing exempt development pathway for outdoor dining available to restaurants and cafes, to small bars and pubs. The trial will end on 31 October 2021.
  • 18 September 2020 – State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (COVID-19 Special Provisions) 2020 – allows supermarkets and other retail outlets to receive deliveries 24 hours a day.
  • August 2020 – Changes to Local Planning Panels to speed up panel determinations by:
  • applying a ‘10-or-more’ objection trigger for public panel meetings to reduce the need to conduct public panel meetings for non-contentious matters;
  • reducing the number of modification applications going to panels;
  • reducing panel deferrals and assessment timeframes by obliging panel chairs to more actively manage development applications (DAs) coming to the panels;
  • allowing chairs to bring forward determination on DAs that are experiencing unreasonable delays of over 180 days from lodgement; and
  • introducing panel performance measures.
  • August 2020 – The NSW Planning Reform Action Plan introduces measures to:
    • reduce assessment times for planning proposals, regionally significant development applications (DAs) and major projects;
    • provide new resources for the Land and Environment Court to appoint new Acting Commissioners and establish a new class of appeals for rezoning planning proposals;
    • reduce concurrence and referral cases between agencies;
    • expand complying development; and
  • accelerate precinct coordination.
  • July 2020 – A new Planning Delivery Unit was introduced to progress significant priority planning projects, including DAs and planning proposals, where there have been unreasonable delays in the assessment process.
  • 28 April 2020 – the NSW Government announced a new Planning System Acceleration Program– to redirect resources within the Department of Planning, Industry and Environment to accelerate the assessment and determination of significant projects. The usual planning rules and policies apply, with all projects under the program assessed under the Environmental Planning and Assessment Act 1979. The program aims to:
    • Fast-track assessments of State Significant Developments, development applications (DAs) and rezoning, with more decisions to be made by the Minister if necessary.
    • Support councils and planning panels to fast-track locally and regionally significant DAs.
  • Invest $75.9 million to co-fund new community infrastructure in high growth areas of Blacktown and The Hills Local Government Areas (LGAs) in north west Sydney through the Accelerated Infrastructure Fund (AIF), including funding for councils to deliver local roads, drainage and public parks to unlock plans for development of new homes and employment land. The objectives of the AIF are to:
    • Fund infrastructure that unblocks development approvals and enables development activity;
    • Stimulate construction activity by investing in ‘shovel-ready’ infrastructure projects;
    • Reduce local developer contributions; and
    • Encourage developers to enact development approvals and invest in construction.
  • 25 March 2020 – COVID-19 Legislation Amendment (Emergency Measures) Act 2020 No 1 – New sections 10.17 and 10.18 inserted into the EP&A Act. Section 10.17 enables the Minister to make an order authorising development to be carried out on land without the need for any approval under the Act or consent from any person, if the Minister has consulted with the Minister for Health and Medical Research and 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. Section 19.18 enables any document that is required to be made available for inspection to instead by made available on the NSW Planning Portal or any other website approved by the Planning Secretary.
  • 25 March 2020 – Environmental Planning & Assessment (COVID-19 Development – Extended Operation) Order 2020, which allows for retail premises such as supermarkets, pharmacies and convenience stores, and home businesses, to operate 24 hours per day and for waste removal from retail premises at any time.
  • 25 March 2020 – Amendments to the EP&A Act include:
  • Extensions to lapsing dates of development consents and deferred commencement consents so that:
  • all consents and deferred commencement consents granted in the two year period from 25 March 2020 will have a 5-year lapsing period that cannot be reduced by the consent authority,
  • for consents and deferred commencement consents granted prior to 25 March 2020 that had not already lapsed, the lapsing date has been extended by 2 years; and
  • consents and deferred commencement consents that have lapsed since 25 March 2020 are revived and extended by 2 years from the date they lapsed.
  • Extensions to merit appeal periods:
  • The period of time an applicant has to make an appeal to the NSW Land and Environment Court has been doubled from 6 months to 12 months for merit appeals. The change applies to determinations (or deemed refusals) of development applications and modification applications made from 6 months before 25 March 2020 and for those made 2 years after 25 March 2020.
  • The period of time an objector has to make an appeal to the NSW Land and Environment Court has been doubled from 28 days to 56 days for merit appeals. The change applies to determinations for designated development or state significant development that would have been designated development made from 28 days before 25 March 2020 to 2 years after 25 March 2020.
  • Extension of abandonment period for existing and continuing use rights – The period after which an existing or other lawful use is considered abandoned has been extended from one year to three years from 25 March 2020. This will be in place for two years.

If you require advice on how any of these reforms may affect you, please contact us.

 

Amanda Johnstone

Partner

Connor & Co Lawyers

About Connor & Co Lawyers

We are a Law firm located at Level 5, 50 Margaret Street Sydney NSW 2000 specialising in Business law, Banking & Finance, Dispute Resolution, Litigation and Environment & Planning matters.

Email: contact@connorco.com.cau Website: www.connorco.com.au: Phone: 0292996696