Posted on March 22, 2020 by Stuart Simington 1

COVID-19 – NSW Government amends planning law to address retail supply constraints

The Minister for Planning and Public Spaces has responded to the COVID-19 pandemic by seeking to address certain planning law impediments to the replenishment of retail stocks in the light of unprecedented demand. State Environmental Planning Policy Amendment (COVID-19 Response) 2020 (SEPP)  overrides certain restrictions on restocking and loading activities outside of the business hours permitted by  development consents.

The SEPP amends the State Environment Planning Policy (Exempt and Complying Development Codes) 2008 by the inclusion of a new form of exempt development, namely:

The use of retail supply chain premises at any time for the purpose of supplying goods directly or indirectly to retail premises is development specified for this code.

“Retail supply chain premises” are defined as “port facilities“, “warehouse or distribution centres“, and “retail premises“.

The permitted exempt development may be carried out “at any time” subject to the following standards:

• there being a development consent for use as a retail supply chain premise;
• compliance with all conditions of consent for the use of those premises other than those conditions that restrict hours of operation,or the frequency or movement of vehicles; and
• taking steps to reduce noise when operating outside of the relevant conditions.

The amendments are currently set to be  automatically repealed on 1 October 2020.

In a statement released on 20 March 2020, the Minister stated that “[t]he SEPP makes clear that truck deliveries are able to supply shops and retailers with essential goods at all times“.

While the intention of the amendment is clearly laudable in the current emergency, there remain questions whether the SEPP achieves the intention.

The exempted development focuses on the use of the  premises from which goods are sourced rather than the premises on which goods are to be replenished.  This seems to leave any loading restrictions applicable to the premises being replenished unaffected.  In other words, the purpose of the development to which the amended SEPP applies being “supplying goods directly or indirectly to retail premises” seems to exclude the ability of the retail premises to receive the goods where the consent for those premises restricts same at certain hours.

In that regard, however, the Minister has also published a ‘message’ (apparently not legally enforceable) directing councils to be flexible and pragmatic as regards enforcement and compliance action:

The pandemic is creating new challenges that require changes in peoples’ behaviour. This is disrupting the way businesses and service providers ordinarily operate.

For instance, over the past week some retailers, supermarkets and other businesses are struggling to meet the unprecedented consumer demand we are experiencing. Restrictions on delivery times and truck movements in development consents are exacerbating this situation by limiting retailers’ ability to respond to community needs.

Councils across the State are to support communities through this period by adopting a flexible and pragmatic approach to enforcement and compliance action during the period while any Orders under the Public Health Act 2010 to deal with public health risk of COVID-19 apply. This includes taking appropriate and necessary measures to respond to the issues arising in these exceptional circumstances including:

• • Relaxing time restrictions and movement caps for deliveries in existing development consents for retailers such as supermarkets and other key service providers;
  • Relaxing restrictions on the use of footpaths for food premises to facilitate effective social distancing of patrons. [our emphasis]

The SEPP as gazetted can be found here and the Minister’s message can be found here.

If you wish to discuss this post or the issues discussed, please contact Stuart Simington on 8235 9704 or James Fan on 8235 9706.