Posted on September 24, 2020 by Anzer Khan and Megan Hawley

UPDATE – Extension of COVID Prescribed Period and Special Provisions

We previously posted a blog regarding the enactment of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (Emergency Measures Act) which amended various statutes including the  Environmental Planning and Assessment Act 1979 (EPA Act) and the Local Government Act 1993 (LG Act) in response to the COVID-19 pandemic.

The Emergency Measures Act, amongst other things inserted:

  1. Section 10.17 into the EPA Act; and
  2. Sections 747A, 747AB and 747B into the LG Act.

Our earlier blog indicated that the temporary amendments would operate for 6 months from the date of assent (25 March 2020) but may be extended by regulation to operate for up to 12 months.

On 18 September 2020, regulations were introduced to extend the operation of the abovementioned amendments to 25 March 2021. These are discussed in further detail below.

EPA Act Amendments

Section 10.17 of the EPA Act was introduced by the Emergency Measures Act to permit the Minister for Planning and Public Spaces (Minister) to make an order authorising the carrying out of any development (including a class of development) without the need for any approval under the EPA Act or consent from any person when the Minister:

  1. has consulted with the Minister for Health and Medical Research; and
  2. is reasonably satisfied that the order is necessary to protect the health, safety and welfare of members of the public during the COVID-19 pandemic.

The making of an order under s10.17 of the EPA Act 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.

Extension to ‘prescribed period’ under the EPA Act

The orders made by the Minister under s10.17 of the EPA Act are subject to the “prescribed period” as defined in s10.17(7). The prescribed period was due to expire on 25 September 2020.

The Environmental Planning and Assessment Amendment (COVID-19 Prescribed Period) Regulation 2020 commenced on 18 September 2020 and inserted cl294A into the Environmental Planning and Assessment Regulation 2000 (EPA Regulation). Clause 294A of the EPA Regulation now extends the prescribed period under s10.17 of the EPA Act to 25 March 2021.

Ministerial orders made under s10.17 of the EPA Act

Since our previous blog regarding Ministerial Orders under s10.17 of the EPA Act, the following Ministerial Orders have been made:

  1. Environmental Planning and Assessment (COVID – 19 Development – Temporary Cycleways) Order 2020;
  2. State Environmental Planning Policy (State and Regional Development) Victoria Cross Over Station Order 2020;
  3. Environmental Planning and Assessment (COVID-19 Development-Vehicle Sanitisation Stations) Order 2020; and
  4. Environmental Planning and Assessment (Regions) Order 2020.

Click here to view all of the Ministerial Orders made under s10.17 of the EPA Act.

LG Act Amendments

The Emergency Measures Act had the following effect on the LG Act:

  1. Section 747A of the LG Act was introduced to permit councils to hold ‘virtual meetings’ for ordinary council or committee meetings by audio visual link or any other manner approved by the Minister for Local Government. This was 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, as well as any requirement for meetings to be open to the public;
  2. Section 747AB of the LG Act was introduced to address proceedings for the recovery of unpaid rates commenced against a person by or on behalf of a council; and
  3. Section 747B of the LG Act was introduced to effectively permit the Minister for Local Government 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’, subject to conditions.

Sections 747A, 747AB and 747B of the LG Act are subject to the “prescribed period” as defined in s747AA of the LG Act. The prescribed period was due to expire on 26 September 2020.

Further changes to LG Act

The Local Government (General) Amendment (COVID-19) Regulation (No 3) 2020 commenced on 18 September 2020 and omitted cl 413L and inserted cll 413L-413N into the Local Government (General) Regulation 2005 (LG Regulation). The amendments include the following changes:

  1. clause 413L of the LG Regulation extends the prescribed period under s747AA of the LG Act to 25 March 2021.
  2. clause 413M repeals s747B of the LG Act on 25 March 2021.
  3. clause 413N repeals Division 15 COVID-19 pandemic – temporary measure of Part 13 of the LG Regulation on 25 March 2021.

To discuss this blog please contact Anzer Khan, Lawyer on 02 8235 9717 or Megan Hawley, Partner on 02 8235 9703.