COVID-19 – Ministerial Orders under the EPA Act

The Environmental Planning and Assessment Act 1979 (EPA Act) has been amended to enable the Minister of Planning to make orders and authorise development without the need for any approval. At 8 May 2020, seven such orders have been made.

Section 10.17 of the EPA Act was introduced on 25 March 2020 and relevantly states:

10.17 COVID-19 pandemic—Ministerial orders

(1) During the prescribed period, the Minister may, by order published in the Gazette, authorise development to be carried out on land without the need for any approval under the Act or consent from any person.

(2) An order has effect despite any environmental planning instrument or development consent.

(3) The making of an order under this section for development is taken to be a grant of development consent for the development and any conditions of the order are taken to be conditions of the development consent.

(4) A single order may relate to a class of development and in that case the order is taken to be a separate development consent for each development carried out under the order.

(5) The Minister may make an order under this section only if the Minister—

(a) has consulted the Minister for Health and Medical Research, and

(b) 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.

(6) For the purpose of enabling development to be carried out in accordance with an order, the order may provide that, to the extent necessary to serve that purpose, a regulatory instrument specified in the order does not apply to the development or applies subject to the modifications specified in that order.

(7) In this section—

prescribed period means the period—

(a) starting on the commencement of this section, and

(b) ending on—

(i) the day that is 6 months after the commencement, or

(ii) the later day, not more than 12 months after the commencement, prescribed by the regulations.

regulatory instrument has the same meaning as in section 3.16.

At 8 May 2020 the Minister has made seven orders under this provision:

  1. the Environmental Planning and Assessment (COVID Development – Extended Operations) Order 2020  was made to enable the use of retail premises at any time, and the carrying out of home businesses or home industry at any time;
  2. the Environmental Planning and Assessment (COVID Development – Health Service Facilities) Order 2020 was made to enable the change of use of a health services facilities to another health services facility, including the construction and installation of temporary structures, alterations, additions, buildings and works;
  3. the Environmental Planning and Assessment (COVID Development – Temporary Workers Accomondation) Order 2020  was made to enable Bayswater Power Station and Liddell Power Station to be used for temporary workers’ accomodation for persons working in the energy or resources sector;
  4. the Environmental Planning and Assessment (COVID Development – Construction work days) Order 2020 was made to enable building work, work, and demolition approved under development consents to occur on a Saturday, Sunday or public holiday;
  5. the Environmental Planning and Assessment (COVID Development – Takeaway food and beverages) Order 2020 was made to enable the use of various facilities (including community facilities, educational establishments, food and drink premises, function centres, and mobile food and drink outlets) for the preparation and sale of food, beverages or both;
  6. the Environmental Planning and Assessment (COVID-19 – Infrastructure Construction work days) Order 2020 was made to enable building work, work, and demolition approved by way of a State significant infrastructure approval, approval under division 5.1 of the EPA Act, or authorisation under Part 3 of the Water Supply (Critical Needs) Act 2019 to occur on a Saturday, Sunday or public holiday; and
  7. the Environmental Planning and Assessment (COVID-19 – Planning Bodies) Order 2020 was made to enable public hearings and public meetings of planning bodies (including the Independent Planning Commission, Sydney district planning panels, regional planning panels, local planning panels and panels established by the Minister or Secretary under section 2.3 the EPA Act) to be held by means of an audio link or audio visual link for 6 months during the COVID-19 pandemic.

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Alyce is a civil engineer and a practicing lawyer, who has a desire to share her insights on the legal and practical realities of the development industry.

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