COVID-19 Update: New powers for NSW Planning Minister to permit development without consent during the COVID-19 pandemic

As part of the COVID-19 Legislation Amendment (Emergency Measures) Act 2020, the NSW Minister for Planning has been given a temporary power1 to make orders authorising development to be carried out on land without any approval under the Environmental Planning and Assessment Act 1979 (EPA Act) or consent from any person.

The new section 10.17 of the EPA Act is directed at forms of development that may be required to deal with the COVID-19 pandemic.

To date, the power has been used by the Planning Minister, Rob Stokes, to extend the hours of operation of retail premises and home-based industries and businesses across the State by permitting them to operate at any time.

It is likely that further orders will be made to specifically address the medical crisis by, for instance, allowing land and existing buildings to be used for the purpose of medical facilities and related infrastructure. The power could also be used to approve shelters for persons rendered homeless by the evolving public health crisis and to address any increased demand for warehouses and distribution centres to meet the food, grocery and essential items needs of the population in self-isolation.

The extent of the Planning Minister’s power

Debate on the Bill raised concerns that the emergency power should not be used for development that is directed solely at economic stimulus.

The Planning Minister’s power is not unlimited and it is clear that the power cannot be used to approve development directed solely to stimulate the economy.

The Minister may only make an order if:

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

An order has effect despite any environmental planning instrument applying to the land. As such, an order could approve development otherwise prohibited on the land.

The making of an order is taken to be a grant of development consent and any conditions of the order are taken to be conditions of development consent.

Environmental Planning and Assessment (COVID-19 Development—Extended Operation) Order 2020 (Order) made on 25 March 2020

Retail premises can now operate 24 hours a day subject to their existing conditions of consent

The Order is not confined to supermarkets and pharmacies, as the Minister’s press release suggested.2 The extended trading hours apply to all retail premises,3 including food and drink premises (such as restaurants and cafes), cellar door premises, kiosks, markets and shops.4 The Order however, does not affect the times at which liquor may be sold.5

Cafes, restaurants and fast food outlets could make use of the extended trading hours to reduce financial losses likely to be caused by the necessary restrictions on patrons dining in which have forced many cafes and restaurants to close their doors.

Food and drink premises affected by the take-away-only rule and the four-square-metre rule currently in effect must continue to comply with these restrictions.6 The extended trading hours also apply to the removal of waste from the premises, however all other conditions of consent (other than the conditions relating to trading hours) must be complied with, such as noise or signage requirements.7

The order follows other recent COVID-19-related changes that have been made to meet the demand for food, groceries, other essential items and medical supplies.

An amendment to the State Environmental Planning Policy (Exempt and Complying Development) 2008 (Codes SEPP) permits “retail supply chain premises” (port facilities, warehouses or distribution centres and retail premises) to be used at any time for the purpose of supplying goods directly to retail premises as exempt development.8

The premises must operate under an existing development consent, comply with the conditions of that consent (other than any condition that restricts the hours of operation or the frequency or movement of vehicles) and steps must be taken by the retail premises to reduce noise when operating outside its regular hours of operation.

Further changes to the Retail Trading Act 2008 also permit supermarkets to open on Good Friday, Easter Sunday and all hours on Anzac Day.9

Home businesses and home industries can now operate 24 hours a day with additional persons at the premises subject to any existing conditions of consent or controls under an environmental planning instrument

The order also permits lawful home businesses and home industries across the State to operate 24 hours a day and with more than 2 persons but no more than 5 persons in addition to the permanent residents of the dwelling from which the business or industry operates.10

What to expect in the future…

The power granted to the Planning Minister is a broad emergency power designed to provide flexible planning and environmental responses to the evolving public health crisis. The Order and the amendments to the Codes SEPP made to date are aimed primarily at meeting the demand for food, groceries and other essential items and to ensure that existing home businesses and home industries can continue to operate lawfully and comply with the public health self-isolation restrictions.

The Order also has the consequential effect of ensuring that hospitality businesses and other small businesses can operate and continue to provide employment.

Further orders are likely to be made in the coming weeks.

The information in this article is accurate as at 27 March 2020.

1.The Minister can exercise the power for a period of 6 months (i.e. up until 25 September 2020) or for up to 12 months if prescribed by the Environmental Planning and Assessment Regulation 2000. Following that period the emergency power will have no effect.
2. Rob Stokes, Minister for Planning and Public Spaces, Supermarkets and pharmacies now able to operate 24/7’, 25 March 2020 (
3. A cellar door premises means a building or place that is used to sell wine by retail and that is situated on land on which there is a commercial vineyard, and where most of the wine offered for sale is produced in a winery situated on that land or is produced predominantly from grapes grown in the surrounding area.
4. Under the Standard Instrument a shop means premises that sell merchandise such as groceries, personal care products, clothing, music, homewares, stationery, electrical goods or the like or that hire any such merchandise, and includes a neighbourhood shop and neighbourhood supermarket, but does not include food and drink premises or restricted premises.
5. Order cl. 4(3).
6. Pursuant to the Public Health (COVID-19 Gatherings) Order (No 3) 2020 and Public Health (COVID-19 Places of Social Gathering) Order 2020.
7. Order cl. 5(2).
8. State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 Part 2 Div 4.
9. Under the RT Act, a supermarket is any retail store or market selling food and other domestic goods, whether or not by self-service operation and regardless of size, but does not include a department store.
10. Order cl. 6(1).

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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.