Memo re COVID-19 Bill Changes to EPAA and LGA

02 April 2020

The COVID-19 pandemic has signalled a time of unprecedented uncertainty which, as we have seen over the last few weeks, has resulted in a need for government to be extremely responsive and mobile to the constantly evolving circumstances surrounding the pandemic. We have been watching the business, legal and social communities across the world implement the ever increasing social distancing measures and it is appropriate that Australia now responds to the threat.

On 24 March 2020, the NSW Parliament passed the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW) (Amendments). Its purpose is to implement urgent, temporary changes to 20 NSW Acts in response to the COVID-19 pandemic. The Amendments commenced on 25 March 2020 and included amendments to (among others) the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) and the Local Government Act 1993 (NSW) (LG Act), as well as other associated Acts.

The Amendments relate to reducing the risk of transmission by limiting unnecessary human interaction, and introducing flexibility into procedures to ensure that certain functions can continue to be carried out by Local Government and businesses during the Pandemic. This will allow government, law enforcement, business and the community to respond to changing circumstances involving COVID-19 as soon as possible.

The Amendments generally will expire anywhere between 6 and 12 months from commencement.

Local Government meetings of councils and committees are not exempted from the ‘Public Health (COVID-19 Gatherings) Order 2020’ as ‘essential gatherings”, and councils must comply with restricting gatherings in indoor spaces exceeding 100 persons.

We have prepared table with the below an overview of those amendments most relevant to the area of planning, environment and local government.

New ProvisionsSummary/PurposeExpiry DateĀ 
EPA Act s 10.17Enables the Minister for Planning and Public Spaces to identify development that can be carried out without the need for any approval under the Act (subject to development standards) and allow this development to integrate back into the planning system.

The Minister may only make an order if the Minister has consulted the Minister for Health and Medical Research, and the order is necessary to protect the health, safety and welfare of the members of the public during the pandemic.

While the minister must be satisfied as to the above, these new powers are nonetheless extraordinary broad. That is, the kind of development contemplated ranges from obvious public health initiatives such as building hospitals, to more remote objectives such as extending the trading hours of essential goods and services providers. Indeed, we have already seen supermarkets and pharmacies granted permission to trade 24 hours a day pursuant to these powers.

Other examples contemplated by the Attorney General during the course of the parliamentary debate include allowing the minister to:

  • Approve the conversion of business and buildings and land into vital services;
  • Transform buildings into temporary hospitals;
  • Transform community centres into homeless shelters; and
  • Convert restaurants to dark kitchens.
6 to 12 months (as prescribed by regulations)
EPA Act s 10.18Provides that requirements for documents to be available in hard copy or for inspection in premises can be met by being available online.
For example, s 10.18 would alter the requirement of:

  • s 3.45(4), which, provides that copies of Development Control Plans must be available for inspection at the principle office of the relevant planning authority that prepared the plan;
  • s 4.58, which requires councils to keep a register of applications for development consent, determinations etc., available for public inspection at the office of the council during ordinary office hours;
  • s 26(1) of the Environmental Planning and Assessment Regulation 2000 (NSW) (EPA Regs), which requires that copies of contributions plans must be available for inspection and purchase from the offices of the Department; and
  • s 37-38 of the EPA Regs, which requires councils to make certain documents available for inspection, including its contributions plans, annual statements and its contributions register.

This measure seeks to reduce the risk of transmission by limiting unnecessary human interaction.

6 to 12 months (as prescribed by regulations)
Subordinate Legislation Act 1989 (NSW) Schedule 5The following regulations, which were due for repeal in 2020, will now stay in force until September 2021, unless sooner repealed.

  • Environmental Planning and Assessment Regulation 2000;
  • Local Government (General) Regulation 2005;
  • Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005;
  • Protection of the Environment Operations (Clean Air) Regulation 2010; and
  • Protection of the Environment Operations (General) Regulation 2009.

Which was scheduled for automatic repeal on 1 September 2020, to stay in force until 1 March 2021.

This will ensure that Regulations do not expire and allow time for the new replacement regulations to be made.

1 March 2021 unless repealed by Parliament sooner
Local Government Act s 318B, 318B(8)Enables the Minister for Local Government to postpone the requirements relating to the holding of ordinary council elections and by-elections if the Minister believes it is reasonable to do so. According to the NSW Office of Local Government Circular 20-10, the September 2020 local government elections will be postponed to address the risks posed by the COVID-19 virus.

This measure seeks to reduce the risk of transmission by limiting unnecessary human interaction.

12 months
Local Government Act s 747ARemoves the need for persons to attend council meetings, in particular by expressly providing that Councillors can fulfil meeting attendance requirements by attending remotely. The meetings may be held remotely by audio visual link or in any other manner approved by the Minister for Local Government. A Guide to Webcasting Council and Committee Meetings is contained in Circular 20-08.

Members of the public are to be given access to the meeting by webcast or in any other manner approved by the Minister. According to Circular 20-09, if councils are not able to comply with new requirements, they should advise OLG in writing so that alternative arrangements may be considered for approval.

This measure seeks to reduce the risk of transmission by limiting unnecessary human interaction.

6 to 12 months (as prescribed by regulations)
Local Government Act s 747BAllows for the making of regulations under the LGA to modify the application of that Act for the purposes of responding to the public health emergency caused by the COVID-19 pandemic.

This measure ensures that the Minister for Local Government can adapt to increasing restrictions that aim to reduce the risk of transmission, providing for flexibility should the application of the Act need to change to meet such restrictions.

6 to 12 months (as prescribed by regulations)

HWL Ebsworth is here to support its valued clients during this time of unprecedented uncertainty and will be happy to assist with your legal queries in relation to the Amendments.

This article was written by John Paul Merlino, Special Counsel, James Fyfe, Graduate at Law, Jordie Petit, Graduate at Law.

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