​17. Planning & Environment

A.  Overview

Restrictions imposed in response to COVID-19 may have implications for the timing and feasibility of planning proposals, and for the preparation and hearing of administrative review proceedings, as well as implications for environmental management generally.

B.  Legislation

Victoria:
Made under the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic):  
Planning and Environment Act 1987 (Vic) amended by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic).
 
Made under the Planning and Environment Act 1987 (Vic):  
Environment Protection Amendment Act 2018 (Vic) amended by the COVID-19 Omnibus (Emergency Measures) Act 2020 (Vic) to delay its commencement.
 
New South Wales:
Environmental Planning and Assessment Act 1979 (NSW) amended by:
  • COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (NSW); and
  • COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020​ (NSW):
    • ​Item [1] of the amendments to the Environmental Planning and Assessment Act 1979 (NSW) (the Principal Act) by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020​ (NSW) extends the period for the lapsing of development consents that come into operation during the period of two years after 25 March 2020 (the prescribed period) or that were already in operation when the prescribed period commenced. The lapsing of those development consents is extended by two years. A development consent granted during the prescribed period will now lapse seven years after it comes into operation, unless the consent authority specifies a lesser period when granting consent. However, that lesser period must not be less than five years after the development consent comes into operation. Item [2] of the proposed amendments makes similar changes to the lapsing of development consents with deferred commencement provisions. Item [3] makes a consequential amendment.
    • Items [4] and [5] provide that, during the prescribed period, an existing use, or other lawful use, under the Principal Act is abandoned if that use ceases for a continuous period of three years (rather than 12 months, as is currently the case).
    • Item [6] permits the Minister for Planning and Public Spaces (the Minister) to give two additional directions to a consent authority in relation to local infrastructure contributions. The first relates to the pooling of funds received by the consent authority for different purposes under a contributions plan or under different contributions plans. The second permits the Minister to specify the time at which a monetary contribution or levy is to be paid.
    • Item [7] extends the period within which a person may appeal against a decision relating to a development consent if the right to the appeal arises during the prescribed period or had arisen before the prescribed period and had not lapsed at the commencement of the prescribed period. In the case of an appeal by an objector, the period is extended from 28 days to 56 days and for any other appeal the period is extended from six months to 12 months.
    • Section 9.23 of the Principal Act permits an investigation officer under that Act to require a person to answer questions about certain matters, if the investigation officer suspects on reasonable grounds that the person has knowledge of the matter. Item [8] enables the investigation officer to authorise the questions to be answered using an audio link (for example a telephone) or an audio visual link (for example a video conferencing application).
 
Made under the Environmental Planning and Assessment Act 1979 (NSW):  
Amendments to the following pieces of environmental legislation by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020​ (NSW) to permit various officers to require persons to answer questions by audio or audio visual link: ​
Community Land Management Act 1989 (NSW) amended by the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020​ (NSW): the amendments provide that regulations may be made to provide for the following matters--
  1. altered arrangements for convening meetings of associations, including for the issue or service of notices and other documents in relation to those meetings;
  2. altered arrangements for the way a vote may be conducted at meetings;
  3. an alternative to affixing the seal of the association;
  4. extending the time period in which a thing is required to be done under the Act.

The amendments also provide that a variation of a time period prescribed by the regulations continues to have effect for the specified time despite the repeal of the section or the expiry of the regulation. The regulations expire six months after commencement, unless earlier resolved by Parliament. The amendments are repealed on 13 November 2020, unless the regulations prescribe a later date for the repeal, being not later than 13 May 2021.

Made under the Conveyancing Act 1919 (NSW):
Note also that on 24 March 2020, the NSW Land and Environment Court published its COVID-19 Pandemic Arrangements Policy which among other things, provides for hearings to proceed via telephone and imposes social distancing requirements on any site inspections. 

Queensland:
Economic Development Act 2012 (Qld) amended by the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 (Qld).
 
Planning Act 2016 (Qld) amended by the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 (Qld).

Made under the Forestry Act 1959 (Qld), Nature Conservation Act 1992 (Qld) and Recreation Areas Management Act 2006 (Qld):
Made under the Environmental Protection Act 1994 (Qld):
  • Environmental Protection Regulation 2019 amended by the Environmental Protection (Reef Protection Measures) Amendment Regulation 2020: According to the Explanatory Notes, "The primary objective of the [Amendment Regulation] is to defer the commencement of the requirements for 'no net decline' in Great Barrier Reef water quality from new agricultural and industrial development (e.g. sewage treatment, waste disposal, certain mining activities, and land-based aquaculture) in the Great Barrier Reef catchment until 1 June 2021. These requirements will be delayed from taking effect to allay potential impacts on stakeholders and the government during the COVID-19 pandemic. The pandemic is expected to have a significant impact on the capacity of the agricultural sector and industry to adequately prepare for the new regulatory requirements".

Tasmania:
Made under the COVID-19 Disease Emergency (Miscellaneous Provisions) Act 2020 (Tas):
South Australia:
Made under the Development Act 1993 (SA):
Western Australia:
Made under the Planning and Development Act 2005 (WA): ​
C.  Case law

The uncertainty created by COVID-19 may be a factor relevant to determining the appropriate term for a development approval: Murphy v Moreton Bay Regional Council & Anor [2020] QPEC 10, [12]-[14], [27].

The NSW Land and Environment Court may accept documentary evidence in lieu of a site inspection being conducted in respect of applications for development consent under the Environmental Planning and Assessment Act 1979 (NSW): Parker Logan Property Pty Ltd (ACN 121 055 178) v Woollahra Municipal Council [2020] NSWLEC 1215, [17].

D.  Further resources