Is there a COVID-19 development silver lining?

What you need to know

• The COVID-19 pandemic has prompted a number of changes to the NSW planning regime.
• The new Planning System Acceleration Program will fast-track the assessment of State Significant Development, development applications and re-zoning, with an aim to stimulate the economy and promote employment.
• Emergency amendments to the Environmental Planning and Assessment Act 1979 (EP&A Act) allow the Minister to make an order authorising a development without the need for regular planning approval or consents if it is necessary to protect the health, safety and welfare of the public during the COVID-19 pandemic.
• Further, any documents previously required to be made available for physical inspection can now be made available on the NSW planning portal website and planning bodies (including the Independent Planning Commission) can hold public hearings and meetings via telephone and video conference.

What you need to do

• Consider whether your development assessment can be fast-tracked under the shortened timeframes in the Planning System Acceleration Program.  
• Consider whether your development can be carried out without planning approval under the emergency amendments to the EP&A Act. 
• Consider if there is any significant risk to your ability to comply with your environment protection licence.

The COVID-19 pandemic has prompted a number of changes to the NSW planning regime.  The Minister for Planning and Public Spaces Rob Stokes and NSW Premier Gladys Berejiklian have both emphasised the need for the planning system to deliver jobs and boost the economy. 

Further changes are likely in response to both practical measures required to control the COVID-19 outbreak and streamlining regulations in order to support the economy during a resulting downturn. This update summarises some of the key responses which may affect your development.

Planning System Acceleration Program - can my development assessment be fast-tracked?

On 28 April, the Department of Planning, Infrastructure and Environment announced the first tranche of projects which will be developed under the Planning System Acceleration Program. The purpose of the program is to fast-track the assessment of State Significant Development (SSD), development applications (DAs) and re-zoning, with an aim to stimulate the economy and promote employment. 

A full list of the first tranche of developments can be found here. 

Fast-tracked projects will still undergo comprehensive assessment involving the checks and community consultation that would ordinary be required by the Environmental Planning and Assessment Act 1979 (EP&A Act). However, the aim is for projects to be determined within 4 weeks once selected for the Program.  All 24 projects included in the first tranche are intended to be determined by 21 May 2020. 

To be considered for a fast-tracked assessment, your development or re-zoning application must:

• already be in the system;
• demonstrate an ability to create jobs during and after construction; 
• deliver a public benefit (with a focus on housing, public spaces, transport/ services infrastructure and links to state/ commonwealth priorities); and
• be able to commence construction (for SSD/SSI applications) or progress to a further assessment/determination (for DAs and re-zoning) within six months.

Guidelines on the criteria to be applied can be found here.

The first tranche of projects identified to date have completed the exhibition and community consultation phase.  

Further tranches will be announced once tranche 1 is determined and will continue to be announced over the next 6 months.  This is an opportunity to consider if your project can benefit from the shortened timeframes.  

Amendments to the EP&A Act – what development can be carried out without planning approval?

Emergency amendments to the EP&A Act allow the Minister for Planning and Public Spaces to make an order authorising a development to be carried out without the need for regular planning approval or consents. The Minister can only make such an order if the Minister believes that it is necessary to protect the health, safety and welfare of the public during the COVID-19 pandemic. So far, these orders include:

• Extended time frames for lapsing of development consents and legal appeals for decisions relating to development consents;
• Extended working days for construction work to allow for work on Saturdays, Sundays and public holidays;
• Conversion of buildings to health services facilities and temporary workers' accommodation; and
• Extended retail trading hours.

The government has expressed its intention to expand the list of works that can be carried out without the need for planning approval, or under the fast-tracked complying development pathway as part of the Planning System Acceleration Program.

How can I make documents available for public inspection/ hold public hearings?

Under the new section 10.18 of the EP&A Act, any documents previously required to be made available for physical inspection can now meet inspection requirements through making the document available on the NSW planning portal website or any other website as approved by the NSW Planning Secretary.

In addition, the Environmental Planning and Assessment Regulation 2000 has been amended so that planning bodies (including the Independent Planning Commission) can hold public hearings and meetings via telephone and video conference.

Is there any leniency for compliance with my environmental protection requirements?

The NSW EPA has confirmed that it will continue to exercise its regulatory powers (including issuing penalty notices and clean-up notices) and require environment protection licence holders to continue to comply with licence conditions. However, in practice we have seen some reduction in activity in this area. 

You should consider if there is any significant risk to your ability to comply with your environment protection licence.

Authors: Crystal Gluch-Martin, Graduate; Emily Andrews, Associate; Rebecca Dixon, Partner.