NSW Planning – Changes in Response to COVID-19

In recent days, the NSW Government has announced a number of changes to NSW planning legislation in response to COVID-19 and the need for social distancing. Many of these changes are the result of Orders issued by the Minister for Planning and Public Spaces, the Hon. Rob Stokes, under newly created section 10.17 of the Environmental Planning and Assessment Act 1979. Changes will remain in place until the COVID-19 pandemic is over, or the advice of NSW Health changes.

Building and Construction
The Minister released the Environmental Planning and Assessment (COVID-19 Development-Construction Work Day) Order 2020 on 31 March 2020 to allow construction and demolition works to be undertaken on Saturdays, Sundays and Public Holidays, provided all feasible and reasonable measures to minimise noise are taken. The development must be the subject of a development consent, and comply with all other conditions of that consent. Work cannot involve the carrying out of extremely noisy activities such as rock breaking, rock hammering sheet piling or pile driving. In a media release issued on 2 April 2020, Minister Stokes said the move allows workers to abide by social distancing rules while keeping construction projects progressing by allowing building work to be spread across more days of the week.

Commercial Kitchens and Food Trucks
The Minister also issued the Environmental Planning and Assessment (COVID-19 Development – Takeaway Food and Beverages) Order 2020 on 31 March 2020 to make it easier for food trucks and ‘dark kitchens’ to set up and operate. ‘Dark kitchens’ (also known as virtual kitchens, cloud kitchens, or ghost kitchens) cook meals soley for delivery, rather than eat-in diners. The Order permits certain premises to be used as ‘dark kitchens’ including a community facility, educational establishment, business or office premises that had been operating as a cooking school, a food and drink premises or a function centre. Additionally, mobile food and drink outlets (i.e. food trucks) can now operate on any land, at any time, provided they have landowners consent. Social distancing measures and other conditions must be abided by. In a recent media release, the Minister acknowledged that the food and beverage industry has been one of the hardest hit by the COVID-19 pandemic.

Health Services Facilities
The Environmental Planning and Assessment (COVID-19 Development – Health Services Facilities) Order 2020 permits a change of use of any building or place to a health services facility without the need for approval. This Order, the third issued by Minister Stokes on 31 March 2020, also allows the construction or installation of a temporary structure, and temporary alterations or additions to a building or work. Construction works can be undertaken at any time although steps must be taken to reduce noise. Development must be carried out by or on behalf of the NSW Government or other public authority.

Supermarkets and Pharmacies
In response to the increased demand for groceries, medical supplies and other consumer goods, the Minister issued the Environmental Planning and Assessment (COVID-19 Development – Extended Operation) Order 2020 on 25 March 2020, permitting supermarkets, pharmacies, corner stores and other retail premises to operate 24 hours per day. This excludes liquor sales. Additionally, amendments to State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 allows supermarkets to receive deliveries 24 hours per day, regardless of existing development consent conditions. Amendments made to the Retail Trading Act 2008, new section 8B, to exempt supermarkets from restricted trading hours over Easter and Anzac Day. Media releases – operation of premises, and 24/7 deliveries

Home Businesses
The Extended Operations Order also provides greater flexibility for home-based business. Home businesses and home industries are permitted to operate 24 hours a day and employ up to five people to work from a premise, providing social distancing requirements and all other existing consent conditions are adhered to. In a media release issued on 25 March 2020, Minister Stokes said that such a change was important as more and more people work from home and need flexible working arrangements.

Takeaway Liquor
To minimise financial impact on small bars and other licensed restaurants and cafes, which are temporarily restricted to takeaway only sales, such premises will be permitted to sell takeaway alcohol and deliveries. This has been made possible by the Deputy Secretary of the Better Regulation Division of the Department of Customer Service issuing a Statement of Regulatory Intent.

Land and Environment Court
The Land and Environment Court has directed that all listings proceed via telephone or audio visual link. In addition the LEC Registry requires that all documents are filed online, via post, or via an unstaffed drop box. The Court has issued a protocol for using telephone and audio visual links.

Keep up to date with the latest news on our blog, and the NSW Department of Planning, Industry and Environment’s COVID-19 response webpage.

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