COVID-19 Update: How the government can promote planning and development activity during hibernation

As noted in another Addisons Focus Paper last week “New powers for NSW Planning Minister to permit development without consent during the COVID-10 pandemic” the NSW Parliament has passed the Legislation Amendment (Emergency Measures) Act 2020 (Act) to give, among other things, the NSW Planning Minister power to authorise development without an approval under the Environmental Planning and Assessment Act 1979.

Such action is a positive move, but more can be done to ensure that during the so-called hibernation or #stay-at-home economy, project and precinct planning can occur, not be delayed and not have to play catch up when workers are allowed out of their homes or isolation. Some possible actions that the NSW Government could pursue include:

1. An extension of time to automatic lapsing of development consents that are due to lapse in 2020 by 6-12 months.
2. An extension of time for satisfaction of deferred commencement conditions due to be satisfied in 2020 by 6-12 months.
3. Deemed refusal of applications – allow 1 year not 6 months to appeal to the Land and Environment Court or review decisions given many Councils will not have adequate resources to assess and determine applications in the usual timeframes and a deemed refusal occurs as early as 42 days after lodgement.
4. Abandonment of existing uses cannot occur during the “prescribed period” ( a phrase used in the Act).
5. Applications to extend temporary consents such as for licensed premises and late night trading are not required for 6-12 months and the temporary consent is automatically extended.
6. Enable businesses to modify a development consent and treat it like a minimal environmental impact modification or modification to correct a minor error where it seeks and the consent authority is satisfied it is to deal with COVID-19 related issues such as by giving flexibility or additional timing for satisfaction. If a modification application is required under section 4.55(2) then the process is much longer. Examples could include modifying conditions relating to staging of development, deferral of management plans, changing the content of management plans where physical testing or monitoring is not possible, inspection requirements replaced with certification or other evidence, change in activity areas e.g. restaurant to take away, making minor alterations to allow for reconfigurations because of the change in use.
7. Enabling the modification of a voluntary planning agreement without a formal exhibition period of 28 days where the change is minor or to deal with COVID-19 related issues such as timing and staging.
8. Amending the Environmental Planning and Assessment Act 1979 to make it clear that regional planning panels do not need to be parties to voluntary planning agreements (including modifications to existing planning agreements) where they are the consent authority. Most planning agreements are negotiated and agreed directly with the Council and it adds another layer of red tape to require it to be formally executed by the planning panel.
9. Expanding the exempt and complying development provisions to allow for greater flexibility in minor alterations and changes in building uses to cope with COVID-19. e.g. pop up stores. This should be expanded to local heritage items and to some of the other areas currently excluded from complying development provisions particularly where it has no impact on the heritage item itself.
10. Permitting all registers and documents that Council must keep and have publicly available to be online only (e.g. planning agreements, DA registers, contributions plans, development control plans).
11. Permitting planning panels and the Independent Planning Commission to undertake public participation and public hearings via audio visual means such as a combination of webcast and submissions via email. This has already been done for local Council meetings and will temporarily replace Community Participation Plans and Codes.
12. Amending the Land and Environment Court Act to allow proceedings that must be by way of on-site hearings (section 34AA) to proceed via electronic means and for greater flexibility to not require site inspections in certain instances or for there to be unattended site inspections. Site inspections are necessary for many matters but commissioners do not inspect the premises without the presence of the parties. In certain matters inspections could be done by the Commissioner separately and with the parties pre-empting the inspection with a list of areas or perspectives to inspect the site or neighbouring site from (where contact with persons can be managed).
13. Funding Councils for staff to be able to work remotely and for the technology it needs to conference and engage via electronic means.
14. Funding Councils to undertake stakeholder engagement to be able to pursue its strategic planning via electronic means.
15. Ensuring State referral agencies for development applications are adequately resourced to remotely respond to referral requests. Anecdotal reporting is that these State agencies and authorities are holding up progress on development applications.
16. Issuing State-authorised guidelines for conducting site inspections. Anecdotal reporting is that employers, for an abundance of caution, are not permitting their staff to conduct site inspections even where the site is unoccupied and there is no requirement to touch anything. The assessment of many applications and certifications cannot progress unless inspections are allowed to occur.
17. Allowing the electronic execution of documents for lodgement of documents with Land Registry Services. Whilst it understandable that not all authorisations would be appropriate via electronic means, it is possible that some authorisations would be appropriate in this form such as lessee and mortgagee consents, registration of voluntary planning agreements, subdivision certificates etc.

The government should also be planning now for post- hibernation activity and to deal with the likely backlog by:

1. Providing funding for the appointment of additional acting commissioners or judges of the Land and Environment Court to deal with any backlog. Many matters are now being deferred to October and November which means a development application appeal will take a year to progress through the Court.
2. Providing flexibility for and fund Councils to appoint additional local planning panel members so that meetings can occur twice a month if necessary
3. Provide funding for the appointment by Councils of secondees or temporary contract workers to progress delayed applications or strategic planning matters.

Liability limited by a scheme approved under Professional Standards Legislation.
© ADDISONS. No part of this document may in any form or by any means be reproduced, stored in a retrieval system or transmitted without prior written consent. This document is for general information only and cannot be relied upon as legal advice.