Like many other areas of the law, the planning and environment space was disrupted by the pandemic.

From a policy perspective, 2020 can be characterised as a year in three parts:

  • from January to March, the industry watched, waited and frantically sought to re-organise itself in response to the new demands around remote working and tremendous uncertainty about what the future would look like
  • from March to May, some fairly radical legislative reforms were introduced in response to the pandemic to seek to keep businesses going and supply chains ticking over
  • from May to December, an emphasis was placed on fast-tracking projects in the system to create an ongoing stimulus and economic opportunities.

It was only in the last three months of the year that anything was approaching a return to life before the pandemic, with a focus on wider and more structural reforms to the planning systems focusing on the continued roll-out of ePlanning, improved assessment processes around State significant development and refocusing on a development contributions reform.

With so much negative being said about the impact of the pandemic, perhaps the focus for the year in review should be on the positives.

NSW government's timely response

The NSW government's response in the planning space was timely and impressive. State government agencies learnt much from the Global Financial Crisis.

Legislative changes that extended lapsing periods and provided more time for appeals were all rolled out quickly and effectively.

Provisions relating to exempt development were judiciously used to extend trading hours for retail supply chain premises with a minimum of planning red tape.

A new Ministerial order power was introduced in the Planning Act that enabled the Minister for Planning and Public Spaces to, among other things, allow weekend working and extended hours of operation.

Changes to the regulation that underpins the system were made to facilitate online meetings and public hearings for various planning panels, remove existing requirements for physical copies of planning documents and mandate online lodgement across most councils in the state.

Detour in the Standard Instrument

The Standard Instrument Local Environmental Plan has been around since 2006. At this point, almost all local environmental plans adopt the Standard Instrument.

What couldn't be anticipated was how useful the Standard Instrument would become for controlling our ability to move and gather during the pandemic.

During this period, our understanding of what constitutes a "nightclub" or a "recreation facility (major)" has come to mean either intentionally or unintentionally the same thing as in the Standard Instrument LEP.

We may never look at a "take away food and drink premises" in the same way again.

A flexible planning and environment court

The response of the Land and Environment Court to the pandemic has once again demonstrated the benefits of a specialist planning and environment court.

The Court responded well to the challenges posed by the pandemic. In a relatively short space of time, most processes were moved online. Useful guidance was given to practitioners and the Court demonstrated a willingness to listen to feedback from stakeholders and troubleshoot problems as and when they arose.

Most practitioners adopted relatively quickly to new ways of working and with a minimum of fuss. Even though most practitioners would concede that something was lost from an inability to get out on site quite so much and for resident objectors to be able, in some instances, to give their objections from within their homes, most would agree that the end of the cattle call of directions hearings and the time spent both travelling to Court and waiting in line to be heard couldn't have come soon enough.

While the early days of the pandemic were characterised by complex arrangements whereby a solicitor had to witness the signing of an affidavit through a closed window, changes that were made that allow for witnessing by video link were again both welcome and hopefully a durable legacy of this pandemic time.

A brave forecast for 2021

The pandemic is here to stay so let's make peace with that now. Hopefully, many of the innovations brought in in 2020 will prove their usefulness. The pandemic has accelerated the trend towards online lodgement. Hopefully, the considerable investment made in ePlanning over the past few years will continue to bear fruit.

A focus on acceleration can never be a bad thing. Potentially, a re-assessment of existing systems to reduce both complexity and timeframes will bring benefits to the wider system.

Towards the end of 2020, some of the larger more endemic planning policy problems like development contributions started to be examined again with a fresh eye.

The response to the pandemic has shown that things can change quickly, and sometimes for the better. The old adage of never letting a good crisis go to waste can be applied to the problem of fixing development contributions once and for all—but again that may just be very brave forecasting.

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