How will COVID-19 Legislation Amendment (Emergency Measures) Act 2020 affect Local government?

The NSW Government has introduced and passed an emergency Bill to Parliament that will have the effect of amending existing legislation to enable public authorities to respond appropriately to the COVID-19 crisis. The COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (COVID-19 Emergency Measures Act) commenced on 25 March 2020.

Of relevance to local councils, amendments will be made to the Local Government Act 1993 (LG Act) and the Environmental Planning and Assessment Act 1979 (EPA Act). In summary, these changes will:

• allow councils to hold official meetings electronically
• authorise the Minister for Local Government to postpone September council elections for at least 12 months
• allow regulations to be made to modify the LG Act for the purposes of responding to public health emergencies caused by the COVID-19 pandemic
• permit certain development that protects the health, welfare and safety of the community to be carried out without approval under the EPA Act, and
• make provision for electronic exhibition of documents.

Council meetings

The amendments to the LG Act will remove the need for councillors (and others) to personally attend council meetings. Meetings will be able to be held by audio visual link or, if audio visual links are unavailable, in another manner approved by the Minister for Local Government. Public access to the meeting can be given by webcast or, if webcast is not practicable, informing members of the public of what occurred at the meeting in a manner approved by the Minister. These provisions will apply for a period of 6 months, which may be extended to 12 months if prescribed by the regulations.

Council elections

Section 318B(1) of the LG Act will be amended to allow the Minister for Local Government to postpone the requirements for holding council elections and by-elections if the Minister considers it reasonable having regard to the COVID-19 pandemic. The section will be repealed 12 months after commencement. The September 2020 elections have now been postponed for 12 months.

Regulation making power

Under the new s 747B of the LG Act, regulations will be able to be made that will have the effect of modifying the Act, for the purposes of responding to the public health emergency caused by the COVID-19 pandemic. These regulations will only be able to be made if Parliament is not sitting, or likely to sit within 2 weeks. The Minister for Local Government must be of the opinion that the regulations will be consistent with the advice of the Minister for Health and Medical Research or the Chief Health Officer and are reasonable to protect the health, safety and welfare of persons. Regulations will only have effect for a period of 6 months, or less. Section 747B will be repealed 6 months after commencement, or a later date, not more than 12 months after commencement if prescribed by the regulations.

COVID-19 Development Order

The amendments will give broad ranging powers to the Minister for Planning and Public Spaces to make an order authorising development to be carried out without the need for any approval under the EPA Act or consent from another person. An order will have effect, despite any environmental planning instrument or development consent. The Minister must be reasonably satisfied that the order is necessary to protect the health, safety and welfare of members of the public during the COVID-19 pandemic.

Public exhibition of documents

New section 10.18 of the EPA Act provides that any requirement to make a document available for inspection at a physical location can be satisfied if the document is made available on the NSW planning portal or another website approved by the Planning Secretary. This provision will apply for a period of 6 months after commencement, which may be extended to 12 months after commencement under the regulations.

What this means for councils

Councils have been raising concerns about the impact of the COVID-19 pandemic on council functions and operations. The COVID-19 Emergency Measures Act will mean that councils can continue to operate effectively and respond appropriately during this time. The questions we are being frequently asked are addressed below. 

Can council meetings be cancelled?

Yes, but not for an extended period. Section 365 of the LG Act requires councils to hold at least 10 meetings, each in a different month.  

Depending on the delegations made by each council, many decisions will be able to be made by the General Manager or another person with delegated authority. Certain functions listed under s 377 of the LG Act, such as the borrowing of money or the purchase or sale of land, cannot be delegated. A resolution of council (and therefore a council meeting) will be required to exercise those functions.

Can council meetings be held online?

Each council has a Code of Meeting Practice that requires councillors to attend meetings of the council and committees personally. This is a mandatory provision in the Model Code of Meeting Practice.

The COVID-19 Emergency Measures Act will remove the requirement for people to attend a council meeting in person and allow council meetings to be held by audio visual link. The requirement under s 10 of the LG Act for meetings to be open to the public can be satisfied by webcasting the meeting.

As of 14 December 2019, all councils should now be webcasting meetings (in accordance with clause 5.19 of the Model Code of Meeting Practice). “Webcast” is defined in the Model Code of Meeting Practice as “a video or audio broadcast of a meeting transmitted across the internet either concurrently with the meeting or at a later time”.

Each council is required to specify in its Code of Meeting Practice whether webcasts of Council meetings will be live-streamed or if recordings will be uploaded at a later date. Notwithstanding that, the COVID-19 Emergency Measures Act will mean that a meeting does not need to be live-streamed. A recording of the meeting can be uploaded to the council’s website at a later date.

Can members of the public be excluded from attending council meetings?

The requirement under s 10 of the LG Act for council meetings to be open to the public, can now be satisfied if a webcast of the meeting is made public.

If council offices (and libraries) are closed to the public, how are documents on public exhibition provided for inspection?

Under the new s 10.18 of the EPA Act, any requirement to make a document available for inspection at a physical location can be satisfied if the document is made available on the NSW planning portal or another website approved by the Planning Secretary.

How can documents be executed under council seal?

No changes have been made (as yet) to clause 400 of the Local Government (General) Regulation 2005. Accordingly, the seal of the council may be affixed to a document only in the presence of two people, generally the Mayor and the General Manager. Two people will therefore need to be present to execute the document. Presently, however, social distancing requirements should be able to be implemented when doing so.

Can documents be signed electronically?

Many documents that do not require execution under council seal can be executed electronically. Cloud-based software can be used to electronically sign documents. For most types of contracts, an electronic signature will satisfy the requirements for contract formation. There are some types of contracts, such as deeds and contracts for the sale of land, that may not be able to be executed electronically. The COVID-19 Emergency Measures Act also amends the Electronic Transactions Act 2000 so that regulations can be made under specified legislation for alternative arrangements for signing and witnessing documents. We recommend that specific advice is sought for each contract to determine whether or not it can be executed electronically. 

Can council reduce or waive fees and charges because of hardship due to the COVID-19 pandemic?

Section 610E(1) of the LG Act provides that a council may waive payment of, or reduce a fee, but only if the council is satisfied that the case “falls within a category of hardship or any other category in respect of which the council has determined payment should be so waived or reduced”. At present, a council is required to determine the relevant categories before it can agree to waive or reduce a fee. Council is required to give public notice of the proposed category of cases for reduction or waiver of fees in the same way it is required to give public notice of a proposed fee (ss 610E(2) and 610F(2) and (3) of the LG Act). Regulations may be able to be made under the new s 747B of the LG Act that modify s 610E to allow councils to waive fees and changes for those specifically affected by the COVID-19 pandemic.

Can council reduce or waive licence or lease payments because of hardship?

Leases, licences and other contracts can be amended by agreement to waive obligations or reduce or defer payment amounts during the COVID-19 pandemic.

If you have any questions in relation to this article, please feel free to the Planning, Environment & Local Government team.