Covid-19 and Changes to the Environmental Planning and Assessment Act

The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 commenced on 25 March 2020 and made a number of amendments to the Local Government Act 1993 (LG Act) and the Environmental Planning and Assessment Act 1979 (EPA Act).

On 14 May 2020, the NSW Government also passed the COVID-19 Legislation Amendment (Emergency Measures - Miscellaneous) Act 2020 (Emergency Measures Miscellaneous Act) to make further changes to the EPA Act and LG Act (as well as other legislation) in response to the COVID-19 crisis. This update provides details of the changes to the EPA Act and LG Act.

Changes to the EPA Act

The Emergency Measures Miscellaneous Act extends various time periods in the EPA Act for events that occur during the “prescribed period”, commencing on 25 March 2020 and ending on 25 March 2022. Amendments have also been made authorising the Minister to make directions about infrastructure contributions and enabling investigative powers to be carried out using audio-visual technology.

Lapsing of development consent

The period for the lapsing of development consents that come into operation during the prescribed period (or that were already in operation when the prescribed period commenced) has been extended by 2 years. A development consent granted during the prescribed period now lapses 7 years after it comes into operation, unless the consent authority specifies a lesser period when granting consent (which must not be less than 5 years after the development consent comes into operation).

These amendments also extend to the lapsing of development consents with deferred commencement provisions under section 4.16(3) of the EPA Act.

Extension of appeal time

The time to commence an appeal against a decision relating to a development application has also been extended for decisions made during (or immediately before) the prescribed period.

The time to commence an appeal (except an objector appeal) has been extended from 6 months to 12 months if the decision being appealed against occurs during the prescribed period or during the 6-month period immediately before the prescribed period.

In the case of an appeal by an objector, the appeal period is extended from 28 days to 56 days if the relevant decision occurs during the prescribed period or during the 28 day period immediately before the prescribed period.

Abandonment of an existing use or other lawful uses

The EPA Act was amended to provide that during the prescribed period, an existing use or other lawful use under section 4.66 or 4.68 of the EPA Act is presumed, unless the contrary is established, to be abandoned if that use ceases for a continuous period of 3 years. Previously such a use was presumed abandoned after 12 months.

Directions by the Minister

Section 7.17 of the EPA Act was amended to permit the Minister to give additional directions to a consent authority about local infrastructure contributions. The additional directions allow the Minister to specify:

(a) how money paid under a contributions plan or under different contributions plans for different purposes in accordance with the conditions of development consents is to be pooled and applied progressively for those purposes, and

(b) the time at which a monetary contribution or levy is to be paid.

A direction under (b) above may only be given during the prescribed period.

A direction made under (b) will apply to modify conditions of a development consent granted before the direction, but only if the contribution or levy (or a component of a contribution or levy) has not been paid.

Investigative powers to require answers

An investigation officer can now (until 13 November 2020) authorise a person to answer questions about certain matters that the investigation officer suspects the person has knowledge of, using an audio link or an audio-visual link.

This power extends to investigation officers (and similar officers) exercising powers under the EPA Act, Biodiversity Conservation Act 2016, Crown Lands Management Act 2016, Fisheries Management Act 1994, Protection of the Environment Operations Act 1997 and Water Management Act 2000.

Changes to the LG Act

Amendments to the LG Act have now commenced, which:

• allow for a Council to recover shortfalls in rates and charges in a particular year by increasing rates and charges in later years, and
• require a Council to consider certain matters before commencing proceedings for the recovery rate or charge during the prescribed period.

Proposed changes to the LG Act that would have restricted Councils undertaking major building work to certain Council buildings and permitted the Minister to cap general income from rates and charges were not accepted by the Legislative Council and have not been made.

If you have any questions in relation to this article, please feel free to contact a member of our specialised local government and planning law team.