Posted on May 20, 2020 by Katie Mortimer and Stuart Simington

COVID-19 EPA Act Amendments – Extensions of Time, Investigations via AVL & additional powers for Local Infrastructure Contribution Directions

On 14 May 2020 significant changes were made to the Environmental Planning and Assessment Act 1979 (EPA Act) to implement emergency measures in response to the COVID-19 pandemic.

Extension of Time to commence Class 1 Appeals 

Previously, a person had 6 months after the date of deemed refusal, or the date a decision is notified or registered on the planning portal (relevant date), to commence an appeal in the Land and Environment Court in relation to an application for development consent.

That has been changed via amendments to s8.10. Now, if the relevant date occurs between 25 March 2020 – 25 March 2022, or had already occurred between 25 September 2019 – 25 March 2020, a person has 12 months to commence an appeal.

In the case of an appeal by an objector, the appeal period has been extended from 28 days to 56 days from the relevant date, provided the relevant date occurs between 26 February 2020 – 25 March 2022.

After 25 March 2022, the position will revert, and a person will have 6 months to commence an appeal from the relevant date, and objectors will have 28 days.

Extension of Time before Existing or Other Lawful Uses presumed abandoned 

Usually, an existing use or other lawful use will be presumed to be abandoned if it ceases to be actually so used for a continuous period of 12 months.

Between 25 March 2020 – 25 March 2022, a use will only be presumed to be abandoned if it ceases for a continuous period of 3 years. This has occurred via the insertion of new ss4.66(4) and 4.68(4) to the EPA Act.

Investigation Officers may require answers and record evidence via Audio Visual Link

New ss9.23(6) – (9) have been inserted to Division 9.2 of the EPA Act, that governs investigative powers of departmental or council officers.

Rather than requiring a person to attend at a specified place and time to answer questions, investigation officers may now, authorise a person to answer questions using audio link or audio visual link of a kind approved by the investigation officer.

If audio link or audio visual link is to be used, the person answering questions must ensure the technology is operated appropriately, so that the answers given are clear to the investigation officer.

These new provisions will be repealed on 13 November 2020. It remains the case that the preconditions in s9.23(1) must be satisfied before an investigation officer requires a person to answer questions.

Power for Minister to give two Additional Directions concerning Local Infrastructure Contributions 

The Minister for Planning and Public Spaces (Minister) has been given power under s7.17 to give two additional directions to consent authorities concerning local infrastructure contributions:

  • new s7.17(1)(g) allows the Minister to direct how money paid under Division 7.1 of the EPA Act for different purposes in accordance with the conditions of development consents is to be pooled and applied progressively for those purposes,
  • new s7.17(1)(h) allows the Minister to direct the time at which a monetary contribution or levy is to be paid.

A provision of a development consent granted before and which is inconsistent with a direction given under s7.17(1)(h) is taken to be modified so as to be consistent with the direction, but only for contribution and levies not paid before the direction is given.

A direction under s7.17(1)(h) is temporary. Such a direction may only be given by the Minister within 6 months from 25 March 2020. However that time frame may be extended by regulation for an additional 6 months.

Lapsing of Development Consents 

Changes have also been made allowing an extension of time before development consents will lapse. Read our blog on that change here.

Read the Bill which amended the EPA Act here: COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Bill 2020

If you have any questions regarding this post please contact Katie Mortimer on 8235 9716 or Stuart Simington on 8235 9704.

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