On 13 May 2020, the NSW Parliament passed the COVID-19 Legislation Amendment (Emergency Measures—Miscellaneous) Act 2020 (the Miscellaneous Amendment Act) to amend various Acts and Regulations in response to the COVID-19 pandemic.

Of particular importance for those working with or for councils are a number of amendments made by the Miscellaneous Amendment Act to NSW’s Environmental Planning and Assessment Act 1979 (the Act). These amendments impact on important planning matters such as development consent lapsing periods, appeal rights for development applicants and objectors, as well as expanding the scope of Ministerial Directions related to developer contributions.

What’s changed?

• Consent lapsing periods. Amendments to s4.53 of the Act may extend the timeframe for when a development consent lapses depending on when the consent would otherwise lapse in relation to the defined ‘prescribed period’, which is provided by new s4.53(8) to commence on 25 March 2020 and end on 25 March 2022.
  The net effect of the amendments are:
  1. Consents which commence during or after the prescribed period will lapse five years after commencement
  2. Consents commencing before 25 March 2020 which have not lapsed as at 25 March 2020 will lapse two years after the date on which they would otherwise have lapsed.
  A consent authority may in certain circumstances – by the terms of a consent – reduce the lapsing period for a consent granted before or during the prescribed period.
  Any consent that would otherwise have lapsed after 25 March 2020 but before the date of commencement of the new provisions will be extended by a further two years after its usual lapsing date.
• Extended periods of non-use for existing use rights. The period during which a property may remain unused before existing use rights are lost has been extended to three years (from 12 months) during the period commencing on 25 March 2020 and ending on 25 March 2022 by amendments to s4.66 of the Act.
• Extended powers for Ministerial Directions on contributions. Section 7.17 of the Act has been amended to extend the Minister’s powers to direct councils during the limited period defined in s10.17(7) in relation to handling of developer contributions. Allowable Ministerial Directions now include directions as to how money paid to the council for different purposes may be pooled and applied, and the time at which a monetary contribution or levy is to be paid. This power applies to consents granted before the relevant Ministerial Direction but only to contributions that have not been paid before the Direction is made.
• Time limits for appeals extended. A new s8.10 of the Act extends the period within which an applicant or objector may appeal against a determination or deemed refusal of a development application if the right of appeal arises during the prescribed period. For applicants, the appeal period has now been extended from six months to 12 months. For objectors, the period is extended from 28 days to 56 days.
• Extension of powers for investigating officers. Section 9.23 of the Act allows investigating officers to require a person to answer questions about certain matters if the officer suspects on reasonable grounds that the person has knowledge of the matter. New subsections 9.23(6)-(8) provide investigating officers with power to utilise video and audio links to question people of interest. These expanded powers will be removed on 13 November 2020.