Posted on April 5, 2020 by Megan Hawley and 3

UPDATE 14 April 2020: COVID-19 Emergency Measures – Development Orders

We previously posted this blog regarding the enactment of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 which inserted s10.17 into the Environmental Planning and Assessment Act 1979 (EPA Act) in response to the COVID-19 pandemic.

The Minister for Planning and Public Spaces, the Hon. Rob Stokes, MP (Minister), has, to date, made six Ministerial Orders under the new s10.17.

To recap, the new s10.17 provides that the Minister may, by order published in the Gazette, authorise the carrying out of any development (including a class of development) that is necessary to protect the health, safety and welfare of members of the public during the COVID-19 pandemic, without the need for any approval under the EPA Act or consent from any person.

The making of an order under s10.17 is taken as a grant of development consent, and any conditions of the order are taken as conditions of the development consent. Any such order has effect despite any environmental planning instrument or development consent.

The orders made to date (as at 14 April 2020) are as set out below.

Ministerial Orders made under s10.17 of the EPA Act

Environmental Planning and Assessment (COVID-19 Development—Extended Operation) Order 2020

This Ministerial Order commenced on 25 March 2020 when it was published in the Gazette.

Terms used in the order have the same meaning as in the Standard Instrument (Principal Local Environmental Plans) Order 2006.

The order authorises the use of retail premises at any time, including for the removal of waste from the premises without any approval under the EPA Act, where:

• the premises are the subject of an existing development consent,
• all conditions other than any condition that restricts hours of trading or operation are complied with, and
• steps have been taken to reduce noise when operating outside the usual hours of trading or operation.

The order also authorises a home business or home industry to operate at any time without any approval under the EPA Act, where:

• the business or industry is the subject of an existing development consent or may be carried out without development consent;
• the business or industry employs more no more than 5 persons other than the permanent residents of the dwelling;
• all conditions of consent or the provisions of any applicable environmental planning instrument other than any condition or provision that restricts hours of operation or the number of employees are complied with; and
• steps have been taken to ensure that operation outside of usual hours has no adverse impact on the amenity of the neighbourhood due to the emission of noise, smell, fumes or waste products.

Environmental Planning and Assessment (COVID-19 Development—Health Services Facilities) Order 2020

This Ministerial Order commenced on 1 April 2020 when it was published in the Gazette.

Terms used in the order have the same meaning as in the Standard Instrument (Principal Local Environmental Plans) Order 2006.

The order authorises without any approval under the EPA Act:

• a change of use of a building or place to a health services facility;
• a change of use of an existing health services facility to another health services facility; and
• the construction or installation of a temporary structure, and a temporary alteration or addition to a building or work for purpose of a health services facility,

if the following conditions are satisfied:

• the development is carried out by or on behalf of the Health Administration Corporation or another public authority that owns the land;
• where the development is not located within the boundaries of an existing health services facility owned by a local health district or statutory health corporation – the written consent of the owner of the land has been obtained;
• steps have been taken to reduce noise when operating outside the usual hours of operation which would apply but for the order; and
• in the case of any temporary structure, alteration or addition to a building or work, must not remain in place for more than 4 months after the prescribed period (being the period expiring 6 months after the commencement of s10.17  or 12 months, if the operation of the section is extended).

The order also extends the construction hours in respect of construction of a health services facility by or on behalf of a public authority without any approval under the EPA Act if the following conditions are met, subject to specified conditions including that the development must:

• be the subject of an existing development consent, State significant infrastructure approval or environmental assessment under Div5.1 of the EPA Act granted or carried out before s10.17 commenced operation; and
• comply with all conditions of consent or approval, or limitation (as relevant) other than those that restrict the hours of construction, or frequency or movement of vehicles; relate to noise; or require anything to be done before the building is occupied.

Environmental Planning and Assessment (COVID-19 Development—Temporary Workers’ Accommodation) Order 

This Ministerial Order commenced on 1 April 2020 when it was published in the Gazette.

Unlike the other orders, the purpose of this order is to facilitate isolation of workers in separate accommodation at the Bayswater Power Station and Liddell Power Station in the Hunter Region of New South Wales. The order only applies to the site of those power stations.

It authorises a change of use of a building or place to temporary workers’ accommodation, and the construction or installation of a temporary structure, and a temporary alteration or addition to a building or work, and other supportive works, including drainage and earthworks and hardstand areas, for that purpose, without any approval under the EPA Act.

Such development is subject to specified conditions, including to ensure appropriate social distancing and safety of any structures.

Temporary workers accommodation is defined in the order as ‘any habitable buildings and associated amenities erected or used on a temporary basis for the purpose of providing a place of temporary or short -term accommodation for persons working in the energy or resources sector’.

Environmental Planning and Assessment (COVID-19 Development—Construction Work Days) Order 2020

This Ministerial Order commenced on 2 April 2020 when it was published in the Gazette.

It will facilitate social distancing during the COVID-19 pandemic by spreading construction work over more days in a week.

It authorises the carrying out of construction work, including any building work or work, or the demolition of a building or work on a Saturday, Sunday or public holiday without the need for any approval under the EPA Act, subject to specified conditions including:

• that the development must be the subject of a development consent, and comply with all conditions of that development consent other than any conditions that restrict the hours of work or operation on a Saturday, Sunday or public holiday; and
• work or operation that is carried out on a Saturday, Sunday or public holiday must: comply with the conditions of consent that restrict the hours of work or operation on any other day; not involve rock breaking, rock hammering, sheet piling, pile driving or similar activities during hours of work or operation that would not otherwise be permitted; and take feasible and reasonable measures to minimise noise.

For the purpose of enabling such development to be carried out, the application of any agreement, covenant or other instrument that restricts the carrying out of the development, and any environment protection licence issued under the Protection of the Environment Operations Act 1997 are suspended to the extent necessary for that purpose. However, it is noted that all other conditions of any such environment protection licence continue to apply.

Environmental Planning and Assessment (COVID-19 Development—Takeaway Food and Beverages) Order 2020

This Ministerial Order commenced on 2 April 2020 when it was published in the Gazette.

Terms used in the order have the same meaning as in the Standard Instrument (Principal Local Environmental Plans) Order 2006.

It authorises the use of a variety of existing premises for the preparation and sale of food or beverages (or both) for persons to consume off the premises, subject to specified conditions. These premises include community facilities; educational establishments, business premises or office premises that previously operated as cooking schools; food and drink premises; or function centres. The order does not ‘affect the times at which liquor may be sold’.

Significantly, the conditions of such development include that:

• the premises must be the subject of an existing development consent or may be used for the existing purpose without development consent;
• the development must comply with all conditions of consent or the provisions of any applicable environmental planning instrument other than any condition or provision that restricts: the hours of trading or operation, the use of the premises for food and beverage preparation or delivery purposes, the sale of prepared or packaged food or beverages (or both) for consumption off the premises, and the location of retail sales and food preparation within the premises;
• the premises must have existing kitchen or kitchenette facilities;
• sufficient space must be made available to allow a social distance of at least 1.5 metres between customers;
• the development must not involve any seating for customers; and
• steps must be taken to ensure that operation outside of usual trading or operational hours has no adverse impact on the amenity of the surrounding neighbourhood due to the emission of noise, smell, fumes or waste products.

For the purpose of enabling such development to be carried out, any agreement, covenant or other similar instrument that restricts the carrying out of the development, and Part 1 of Chapter 7 of the Local Government Act 1993 do not apply to the extent necessary to serve that purpose.

The order also authorises the use of mobile food and drink outlets by any person at any time without any approval under the EPA Act for the preparation and sale of food or beverages (or both) for consumption off the premises, where mobile food and drink outlets include a food truck, van, cart or other similar vehicle.

Such development is subject to specified conditions including that it must:

• have the consent of the owner of the land (or consent of a public authority if the public authority has control and management of the land);
• not restrict any vehicular or pedestrian access to or from the land or any building on the land, or obstruct the operation of or access to any utility services on the land or on adjacent land;
• not be located within the canopy of, or result in damage to, any tree growing on the land or adjacent land, or result in any damage to public property on the land or adjacent land;
• make sufficient space available to allow a social distance of at least 1.5 metres between customers;
• not involve any seating for customers; and
• if located on private land, be limited to 1 development on the land and not contravene the conditions of a development consent for any other use carried out on the land.

Environmental Planning and Assessment (COVID-19 Development—Infrastructure Construction Work Days) Order 2020

This Ministerial Order commenced on 9 April 2020 when it was published in the Gazette.

It is in similar terms to the Construction Work Days Ministerial Order gazetted on 2 April 2020 (and referred to above), but applies to projects subject to a state significant infrastructure approval, projects assessed and approved under Division 5.1 of the EPA Act and projects authorised under Part 3 of the Water Supply (Critical Needs) Act 2019. The order of 2 April 2020 only applied to development the subject of a development consent.

This Ministerial Order will lead to some practical difficulties. Section 10.17 makes Ministerial orders made under s10.17 the grant of development consent. So in respect of projects to which this Order applies, the project itself is not subject to a development consent, but any construction carried on pursuant to the Order will be taken to be carried out pursuant to a development consent. If there is any breach of conditions of the approval, care will need to be taken to determine whether there has been a breach of a development consent authorising the construction on Saturdays , Sundays and public holidays or a breach of the initial approval, or both.

To discuss this blog please contact Megan Hawley, Partner on 02 8235 9703 or Sophia Urlich, Lawyer on 02 8235 9708.