Posted on March 26, 2020 by Sue Puckeridge 5

COVID-19 Emergency Measures Act Amends Planning and Local Government Laws

On 24 March 2020, the NSW Parliament passed the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (‘Emergency Measures Act‘).  The Act commences on the date of assent.  According to the NSW Parliament’s website, assent occurred on 25 March 2020.

The Emergency Measures Act amends various statutes including the  Environmental Planning and Assessment Act 1979 (‘EPA Act‘) and the Local Government Act 1993 (‘LG Act‘).    This blog discusses the amendments relevant to these statutes.

The amendments to the statutes discussed in this blog are temporary.  They will operate for 6 months from the date of assent but may be extended by regulation to operate for up to 12 months.

EPA Act Amendments

A new s10.17 has been introduced.  The section permits the Minister for Planning and Public Spaces to make an order authorising development to be carried out on land without the need for any development consent or approval under the EPA Act from any person. Such an order is taken to be the grant of development consent and it has effect despite any provision of an environmental  planning instrument. Any conditions on the order are taken to be conditions of development consent.

One order may relate to a class of development.

Before making an order under s10.17, the Minister must:

• consult with the Minister for Health and Medical Research, and
• be satisfied that the order is necessary to protect the health, safety and welfare of members of the public.

A new s10.18 provides that a requirement in the EPA Act or the regulations to make a document available for inspection at a physical location, such as an office, will be satisfied if the document is instead made available on the NSW planning portal or any other website approved by the Planning Secretary.

LG Act Amendments

The Emergency Measures Act permits councils to hold ‘virtual meetings’ for ordinary council or committee meetings.  This is intended to overcome the requirement in the Model Code of Meeting Practice for Local Councils in NSW, 2018  that a councillor must attend meetings personally.

If audio visual links are not available, the Minister may approve another way in which the meeting can take place.

Meetings that are required to be open to members of the public will satisfy this requirement if they are webcast.

The regulations may provide that these measures do not apply to a particular council or a particular class of meeting.

Most significantly, a new section 747B has been introduced.  This section effectively permits the Minister to amend the LG Act by regulation if such a regulation is necessary to respond  ‘to the public health emergency caused by the COVID-19 pandemic.’

This is a very wide power but is limited as follows:

• it only operates when Parliament is not sitting and unlikely to sit within two weeks after the regulations are made, and
• in the Minister’s opinion:
  • the regulations are in accordance with health advice issued by Minister for Health and Medical Research or the Chief Health Officer, and
  • are reasonable to protect the health, safety and welfare of persons.

In our opinion, general principles of judicial review would apply to the exercise of this power.

The Emergency Act also enables the Minister to postpone a local government election for up to 12 months, if the Minister believes that this is reasonable. Subsequently, the  Minister for Local Government has announced via OLG Circular that the September 2020 elections will be postponed.

Subordinate Legislation Act 1989

This statute is amended by extending the currency of various regulations.  The amendments provide for the following regulations (among others) to remain in force for extended periods:

• Environmental Planning and Assessment Regulation 2000 will remain in force until 1 March 2021 (unless sooner repealed).
• Local Government (General) Regulation 2005 will remain in force until 1 September 2021
• Local Government (Manufactured Home Estates, Caravan Parks, Camping Grounds and Moveable Dwellings) Regulation 2005 will remain in force until 1 September 2021.

To discuss this article, please leave a comment or call Sue Puckeridge on 02 8235 9702.