COVID-19 planning regulations in NSW extended to 2021 - Construction & Planning

The NSW Government has extended the expiry date of temporary changes to the planning system in light of the ongoing COVID-19 pandemic. The changes, due to expire shortly, have been extended for six months until 25 March 2021.

In March the Government amended the Environmental Planning and Assessment Act 1979 (NSW) (Act) to insert a new regulation making power at section 10.17 of the Act. This new power enabled the Minister to issue a range of new Ministerial Orders (Orders) in response to the pandemic.

Since the new power came into effect on 25 March 2020, Minister for Planning and Public Spaces the Honourable Robert Gordon Stokes MP has made nine Orders, including to:

extend permitted retail trading hours;
allow weekend construction for certain developments and infrastructure; and
permit extended hours for takeaway food and beverage outlets.

A list of all current Orders and the full text of each is available here, under the heading ‘Ministerial Orders 2020'. Any Order made by the Minister will remain in force for the ‘Prescribed Period', which is defined in the Act as the period of six months from the commencement of the amendments on 25 March 2020, being 25 September 2020.

The Act also allows the Minister to extend the Prescribed Period for a further six months, which he has done by making the Environmental Planning and Assessment Amendment (COVID-19 Prescribed Period) Regulation 2020 (Regulation). A copy of the Regulation is available here. Accordingly, those currently taking advantage of one or more of these Orders may do so for a further six months. Orders will now lapse on 25 March 2021.

A copy of the Ministerial Media Release is available here.

Other provisions extended

The extension of the prescribed period under the Regulation also applies to the following planning provisions:

public inspection of documents through the NSW Planning Portal (section 10.18 of the Act);
ministerial directions relating to the timing of payment of infrastructure contributions (section 7.17 of the Act); and
special provisions for public hearings or public meetings of planning bodies during COVID-19 pandemic (clause 294 of the EP&A Regulation).

Codes SEPP provision extended

The Minister has also made a minor amendment to Part 2 of the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 (Codes SEPP) concerning relaxed trading restrictions for retail supply chain premises.

Earlier this year a new Division 4 was added to Part 2 of the Codes SEPP, permitting retail supply chain premises to operate 24/7, provided that the operators of the premises:

otherwise complied with all conditions of an operative development consent; and
took steps to reduce noise when operating outside the hours of operation provided for by that consent.

This Division contained a repeal clause, and was scheduled to be automatically repealed on 1 October 2020.

The Minister has made the State Environmental Planning Policy (Exempt and Complying Development Codes) Amendment (COVID-19 Special Provisions) 2020 (Amending Instrument), which replaces this repeal clause with a reference to the Prescribed Period under the Act. The effect of this is to harmonise the repeal date of this special concession under the Codes SEPP with the expiration date of the Orders mentioned above.

Division 4 of Part 2 of the Codes SEPP will now be repealed at the end of the Prescribed Period on 25 March 2021.

A copy of the amending instrument is available here.

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