The Environmental Impacts of COVID-19 Recovery
The planning system has been identified as having a critical role to play in supporting the economy during this time. To ensure that the planning system is able to adapt to the challenges presented by COVID-19, a number of amendments have been made to planning legislation in NSW in an effort to stimulate economic activity. Whilst there are many economic benefits associated with these amendments, it is inevitable that these changes to the planning system will create some tension with maintaining high levels of environmental protection and standards of planning practice. The question for government and industry is how we will collectively respond to these challenges. Time will tell whether and how the new changes to the planning system will impact the quality of the projects being delivered.
The environmental Kuznets curve is an environmental economics theory that predicts that periods of economic development will initially result in environmental decline, however after a level of economic growth has occurred, this reduces as society improves its response to environmental degradation through targeted policies and directing investment towards cleaner sources of energy and environmentally sustainable development solutions. The environmental Kuznets curve might predict that the downward pressure on the economy as a result of COVID-19 will result in a corresponding regression in environmental and planning performance in society.
Waiving compliance with conditions of an approval
Early legislative amendments allowed the Planning Minister to authorise changes to development consent conditions during the COVID-19 emergency, including for example to extend operating hours for shopping centres to enable the deliver of goods outside of approved hours. These changes are understandable during the pandemic but will bring with them new impacts on surrounding land uses and infrastructure networks.
Despite these changes, it is important to recognise that in the absence of any express legislative exemptions, in general COVID-19 cannot be relied upon to justify a non-compliance with development consent conditions or environmental requirements.
Practically we are seeing that some regulators will take a more flexible approach to environmental enforcement and compliance action in recognition of the challenges businesses face due to COVID-19, but others will still expect strict compliance with licence conditions.
Fast-tracked development assessment – will the economic benefits outweigh the environmental outcomes?
The NSW government has already made a number of changes to the planning system which are hoped to support the economy now and into the post COVID-19 future. The fast-tracking of certain project assessments across the State under the Department of Planning, Industry and Environment’s ‘Planning System Acceleration Program’ is one of the key strategies being implemented to deliver jobs and boost the economy. For those projects selected to be fast-tracked, the Department has committed to assessing and determining these developments within just 4 weeks. By accelerating the assessment of select projects, which will keep the construction industry moving, the government expects that more than 30,000 jobs will be created by the end of September 2020.
Whilst the economic benefits associated with the Acceleration Program may be clear, it raises the question of whether the Department will be able to deliver on its commitment to ensuring the same level of rigorous environmental assessment is applied to those projects that are set to be fast-tracked. Ultimately only projects that are already in the Department’s system that are able to demonstrate compliance with specific criteria, including the following ‘essential’ criteria, are being considered as part of the Acceleration Program:
- Jobs – does the project create jobs during construction and ongoing?
– can a decision on the project be made quickly?
– for development applications – can the project commence within six months?
– for planning proposals – can the project proceed to development application stage within six months?
- Public benefit – can the project deliver or support public benefits (e.g. affordable housing or new public space and parklands)?
To ensure that the NSW Department is able to determine projects identified for fast-tracked assessment in 4 weeks, a new ‘one-stop-shop’ comprised of all key State Government agencies has been created within the Department. Coupled with additional resources, the NSW Department is confident that whilst the assessment process may be accelerated for selected projects, the process and level of assessment that these projects are subjected to under the NSW Environmental Planning and Assessment Act 1979 (NSW) will not change. With this in mind, it remains critical that developers and d the Government strictly comply with the statutory processes that apply to such developments to minimise the risk of any judicial review proceedings being commenced which may undermine an approval and delay the commencement of works.
Other steps already taken in response to COVID-19
A number of temporary changes to legislation have recently been introduced including the following:
- the lapsing period for certain development consents has been extended;
- the 12 month assumption of abandonment in relation to existing use rights has been extended;
- the Planning Minister has been given the ability to issue additional directions to consent authorities in relation to the pooling of development contributions and the timing of when contributions must be paid; and
- increasing the period in which applicants or objectors may commence an appeal to the Land and Environment Court of NSW.
Many of these changes have been made in recognition of the fact that, as the economic impacts of COVID-19 continue, developers are likely to need more time than usual to obtain finance for projects and physically commence construction work and trigger the operation of their development consent.
Despite the practical and economic challenges faced by society as a result of COVID-19, it remains imperative for Government and industry to ensure compliance with planning and environmental laws and approvals which have been put in place to protect and enhance the environment and all stakeholders with in it. If these standards are not maintained, then there is a risk of longer term impacts being caused.
This publication covers legal and technical issues in a general way. It is not designed to express opinions on specific cases. It is intended for information purposes only and should not be regarded as legal advice. Further advice should be obtained before taking action on any issue dealt with in this publication.