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The planning system has been identified as having a critical role to play in supporting the economy during this period. To ensure that the planning system is able to adapt to the challenges presented by COVID-19, a number of changes have been made to planning legislation in each jurisdiction in an effort to stimulate economic activity. While these changes have many economic benefits, it is inevitable that these changes to the planning system will create tension with maintaining high levels of environmental protection and standards of planning practice. The question for government and industry is how we collectively respond to these challenges. Time will tell if and how new changes to the planning system will impact the quality of the projects delivered.
The Environmental Kuznets Curve is a theory of environmental economics that predicts that periods of economic development will initially lead to environmental decline, but after a level of economic growth, this decreases as society improves its response to environmental degradation. environment through targeted policies and investment orientation towards cleaner energy sources and environmentally sustainable development solutions. The Kuznets environmental curve could predict that the downward pressure on the economy resulting from COVID-19 will cause a corresponding regression in environmental and planning performance in society.
Waiver of compliance with the conditions of an authorization
Recent Queensland omnibus legislative changes have given the minister the power to make declarations waiving the requirement to comply with certain conditions of an environmental approval and to authorize temporary environmental authorities where such actions are reasonable due to the COVID-19 emergency.
Likewise, previous legislative changes allowed the Minister of Planning to authorize temporary user licenses and change the terms of a development approval during the COVID-19 emergency. We have seen this power used to allow places to produce hand sanitizer, change hours of operation and access requirements for vehicles and pedestrians. These changes are understandable during the pandemic, but will lead to new impacts on surrounding land uses and infrastructure networks.
Rather, the NSW legislative change has focused on a rapid assessment of development and lengthening the lapse and abandonment periods.
Despite these changes, it is important to recognize that in the absence of express legislative exemptions, in general, COVID-19 cannot be invoked to justify non-compliance with development consent conditions or environmental requirements.
In practice, we see that some regulators will take a more flexible approach to environmental law enforcement and compliance measures in recognition of the challenges businesses face as a result of COVID-19, but others will expect always in strict compliance with the license conditions.
Expedited Development Assessment – will the economic benefits outweigh the environmental results?
The NSW government has already made a number of planning system changes that are expected to support the economy now and into the post-COVID-19 future. The expedited follow-up of some project evaluations statewide under the “Planning System Acceleration Program” of the Ministry of Planning, Industry and Environment is one of the key strategies implemented. implemented to create jobs and stimulate the economy. In order for the selected projects to be accelerated, the Ministry has undertaken to assess and determine these developments in just four weeks. By speeding up the assessment of some projects, which will keep the construction sector on the move, the government expects more than 30,000 jobs to be created by the end of September 2020.
While the economic benefits associated with the acceleration program may be obvious, this raises the question of whether the Department will be able to deliver on its commitment to ensure that the same level of rigorous environmental assessment is applied to projects that should be quick. monitoring. Ultimately, only projects that are already in the Department’s system and that are able to demonstrate compliance with specific criteria, including the following “ essential ” criteria, will be considered:
- Jobs – does the project create jobs during construction and in progress?
- can a decision on the project be taken quickly?
- for development applications – can the project start within six months?
- for planning proposals – can the project move to the development request stage within six months?
- Public interest – can the project provide or support public benefits (for example, affordable housing or new public spaces and parks)?
To ensure that the NSW Department is able to determine which projects are identified for expedited assessment within four weeks, a new “one stop shop” comprising all key state government agencies has been created within the Department. This one-stop-shop will operate in the same way as the Queensland State Assessment and Referral Agency, which was successfully established almost 10 years ago. Coupled with additional resources, the NSW Department is convinced that while the assessment process can be expedited for selected projects, the process and level of assessment to which these projects are subject under NSW Environmental Planning and Assessment Act 1979 (NSW) (EP&A Act) will not change. With this in mind, it remains essential that developers strictly adhere to statutory processes that apply to such developments in order to minimize the risk of judicial review proceedings being initiated that could compromise an approval.
Delay or stimulate the growth of the renewable energy industry?
It is expected that the significant growth experienced by the renewable energy industry in recent years will be affected by COVID-19, due to the global financial contraction that resulted from the pandemic, as well as the marked reduction in oil prices. . While the pressure to plan for changes to be implemented that further support the growth of renewable energy projects has been a priority for state and Commonwealth governments for some time, reducing economic activity, which in turn leads to reductions in demand for electricity, may slow down the transition to renewable energy targets for some time.
Despite this, we note that the recent amendments to the
National environmental planning policy (infrastructure) 2007(ISEPP) that have been implemented to encourage more investment in innovative renewable energy projects in New South Wales (focusing on particular solar energy systems) reflects one of the recent steps taken to stimulate the growth of the renewable energy industry.
With a number of studies suggesting that renewable energy projects create more jobs on a per dollar basis compared to investments in fossil fuel projects, despite the economic impacts of COVID-19, the long-term trend towards renewable energy is expected to continue although for a period of time it may be slowed down. This trend would support the Kuznets environmental curve hypothesis, which suggests that if the investment is directed towards renewable energy projects, then economic growth and environmental protection may be compatible.
Other measures already taken in response to COVID-19
A number of temporary legislative changes have recently been introduced, including the following:
- declaring certain store uses in Queensland that can operate 24/7 during the COVID-19 emergency, and the ability to make additional use declarations if necessary;
- the power of the Queensland Minister to extend or suspend the periods provided for by the Planning Act;
- the expiration period of some development consents in New South Wales has been extended;
- the 12-month waiver of existing user rights has been extended in New South Wales;
- the Minister for New South Wales has been given the opportunity to give further instructions to the consent authorities regarding the pooling of development contributions and when contributions are to be paid; and
- increase the period during which claimants or opponents can appeal to the NSW Land and Environmental Court.
Many of these changes were made in recognition that, as the economic impacts of COVID-19 continue, developers will likely need more time than usual to secure funding for projects and physically begin work. construction and trigger the exploitation of their development. consent.
Keeping up to date with the latest changes and guidance documents released by regulatory authorities is essential to be able to successfully assess compliance risks for businesses during COVID-19.
How will these changes to the planning system affect you?
McCullough Robertson Lawyers’ Planning and Environment team recognizes that COVID-19 has affected government, individuals and businesses in significant and varied ways.
The content of this article is intended to provide a general guide on the subject. Specialist advice should be sought on your particular situation.