NSW Planning Minister permits construction work on weekends and public holidays

Proponents of projects under construction in NSW can now take advantage of relaxed work day restrictions under new COVID-19 amendments.

Snapshot

• New Ministerial Orders may impact may impact the construction, operation and decommissioning of a project.
• Construction work may now be undertaken on weekends and holidays. However, some limitations on the type of work that can be performed still apply.
• In the current circumstances, proponents should monitor the issue of any further Ministerial Orders to keep up to date with the rapidly changing NSW planning framework.

New powers for the Planning Minister

In the current circumstances, the Minister for Planning and Public Spaces (Planning Minister) has been given broad new powers under the Environmental Planning and Assessment Act 1979 (EP&A Act).

The COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 amended the EP&A Act to enable the Planning Minister to issue orders that authorise development to be carried out on land without the need for any approval under the EP&A Act or consent from any person (Ministerial Orders).

We explore the Planning Minister’s use of these new powers to ease social distancing pressures for construction sites during the pandemic below.

Construction work days extended

On 31 March 2020, the Planning Minister issued the Environmental Planning and Assessment (COVID-19 Development—Construction Work Days) Order 2020 (CWD Order) to facilitate social distancing by spreading construction work over more days in a week.

The CWD Order effectively overrides any condition of a development consent issued under Part 4 of the EP&A Act which restricts the carrying out of any building work or work, or the demolition of a building or work on a Saturday, Sunday or public holiday. However, the CWD Order does not apply to an approval for an activity under Part 5 of the EP&A Act (i.e. an activity carried out by a public authority).

The CWD Order permits work or operations to be carried out on a Saturday, Sunday or public holiday despite any restriction to the contrary in an existing development consent. Under the CWD Order, work or operation that is now permitted on a Saturday, Sunday or public holiday must:

• comply with the conditions of the development consent that restrict the hours of work or operation on any other day;
• not involve the carrying out of rock breaking, rock hammering, sheet piling, pile driving or similar activities; and
• take all feasible and reasonable measures to minimise noise.

The CWD Order also contains a suspension of laws clause in accordance with section 3.16 of the EP&A Act. The effect of this clause is that the following instruments do not apply to the extent they impact on the extension of construction days under the CWD Order:

• any agreement (i.e. a land access arrangement), covenant or other similar instrument that restricts the carrying out of that development; and
• an environment protection licence (EPL) under the Protection of the Environment Operations Act 1997 that was issued before the commencement of the CWD Order. However, all other EPL conditions continue to apply.

Additional Ministerial Orders

At this time, additional Ministerial Orders made by the Planning Minister relate to:

• the use of retail premises at any time, including the removal of waste from those premises and the carrying out of a home business or home industry at any time;
• takeaway food and beverages;
• development for the use of a building as a health services facility; and
• temporary workers’ accommodation for Bayswater and Liddell Power Stations employees.

All Ministerial Orders are available to view in full here.

If you have any issues or queries relating to these latest planning changes, please get in touch with our team.

By Peter Briggs, Partner, Tom Dougherty, Senior Associate, and Michael Themis, Solicitor.

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