With the constraints of COVID-19 ushering in changes to planning laws in some states, we look at the changes and explore what they might mean for community engagement in a post-pandemic world.
Social distancing creates obvious barriers to usual, person-to-person community engagement. In addition to the physical barriers posed by COVID-19, some states have recently passed laws that allow ministers to circumvent normal planning processes and conditions of approval. In certain instances, they can now approve new projects without stakeholder consultation.
The planning changes are intended to ensure that governments can move as quickly as possible to establish critical facilities such as fever hospitals, and also to facilitate much-needed economic activity.
But these changes are unusual in their reduction of citizens’ opportunities to participate in the planning process, particularly at a time when community interest in the planning process was strong – as demonstrated by the large number of submissions to various planning applications. While some of these changes are temporary, others are permanent.
Changes by jurisdiction
Australia-wide: Changes to the Environmental Protection Biodiversity Conservation (EPBC) Act
Pending change: Move to enable States to assess and approve EPBC Act Matters (July 2020)
Details:
- July 2020, Professor Graeme Samuel completed a scheduled 10-year review of the EPBC Act. He found it was inefficient, ineffective and poorly enforced.
- Recommendations included a move to a national set of environmental standards that are consistent and legally enforceable, and set clear rules for decision-making and allowing states to approve developments should they meet this strong set of national environmental standards. Also, that an independent body be formed to monitor compliance with the EPBC Act.
- Australian Government says it won’t establish an independent regulator, but has moved to take up the ‘single touch’ approval process.
- On 24 July, Cabinet endorsed a plan to move to a single touch assessment process, which will devolve decision making on EPBC Act Assessments to the States through bilateral agreements, provided it is passed by the Senate.
- Interim standards in preparation, moving to national environmental standards.
- The Australian Government has also set a target to reduce assessment timeframes by a further 25% to 30 days by the end of 2020.
NSW – temporary changes to Environmental Planning and Assessment Act 1979
Change: Fast Tracking of Project Assessments under the Planning System Acceleration Program (April 2020)
Details:
The Planning System Acceleration Program focuses on ensuring that fast-track projects (which are already at an advanced stage of planning) can finalise their assessment within four weeks. The assessment process is being accelerated, not changed. The usual planning rules and policies will apply, and all projects will be assessed under the Environmental Planning and Assessment Act 1979.
The Planning System Acceleration Program aims to:
- Fast-track assessments of State Significant Developments, development applications (DAs) and rezoning, with more decisions to be made by the Minister if necessary
- Support councils and planning panels to fast-track locally and regionally significant DAs
- Expand the list of works that can be carried out without the need for planning approval, or under the fast-tracked complying development pathway
- Introduce a ‘one stop shop’ for industry to progress projects that may be ‘stuck in the system’
- Clear the current backlog of cases in the Land & Environment Court with additional Acting Commissioners
- Invest $70 million to co-fund vital new community infrastructure in North West Sydney including roads, drainage and public parks to unlock plans for the construction of thousands of new houses.
The three essential criteria for eligibility are:
- Jobs – Does the project create jobs during construction and ongoing?
- Timing
– Can a decision on the project be made quickly?
– For DAs, can the project commence within six months?
– For planning proposals, can the project proceed to DA within six months? - Public benefit – Can the project deliver or support public benefits (e.g. affordable housing or new public space and parklands)?
- Since 28 April 80 projects have undergone fast-track assessment in four tranches with a fifth tranche of 10 projects currently under consideration.
- This includes several controversial projects, including Inland Rail and the Crows Nest Metro Station.
Change: Planning Minister orders can authorise development “without the need for any approval under the Act or consent from any person” (March 2020)
Details:
- Temporary change to the Environmental Planning and Assessment Act (EP&A Act) 1979 means the Planning Minister can approve new developments without consultation with anyone except the Health Minister provided the Minister is “reasonably satisfied that the making of the order is necessary to protect the health, safety and welfare of members of the public during the COVID-19 pandemic”
- Order can apply to single developments or classes of development
- Order operates as a development consent and can include conditions
This change applies for 6 months from 25 March 2020, with possible extension for up to 6 months.
Change: Practical changes to the exhibition of documents
Details:
- Temporary change to the Environmental Planning and Assessment Act (EP&A Act) 1979 means the Public exhibition of planning documents can be done by website or NSW planning portal instead of hard copy
- Websites must be approved by DPIE Secretary.
This change applies for 6 months from 25 March 2020, with possible extension for up to 6 months.
QLD – permanent changes to Planning Act (2016).
Pending Change: Changes to the method and content of notices, and to the designation process for critical infrastructure (August 2020)
Details:
Changes to the Development Assessment Rules would modify the Rules by:
- Permanently changing the method of giving
public notice in newspapers
- Changing the content of public notices placed on development sites
- Requiring both adjoining owners and occupiers to be given notice of applications and changing the content of the notice.
Changes to the Minister’s Guidelines and Rules aim to:
- Streamline the
Ministerial and local government designation processes for critical
infrastructure
- Clarify the process for a local government to make interim amendments to its local government infrastructure plan.
- In March Queensland’s planning legislation was amended to:
- Allow the Minister to decide when an essential business or use, for example supermarkets, should be able to operate and restock 24 hours per day, seven days a week, during an event such as the COVID-19 public health emergency, or other future disasters
- Provide the opportunity for any person to seek relief from existing development application conditions or other operating constraints through a simple application to the state for a temporary use license made to the state
- Introduce flexibility for the Minister to suspend or extend any of the statutory timeframes across the planning framework.
These provisions are now a permanent part of the planning framework, providing flexibility to respond not only to COVID-19, but also to floods, bushfires, cyclones and other disasters. However, the effect of these powers is temporary and only applies for the duration of the declared event.
The COVID-19 emergency was initially declared to be an ‘applicable event’ for the period from 20 March 2020 to 20 June 2020. The applicable event period has now been extended until 31 October 2020.
Victoria
Change: Modified construction hours and work site rules (August 2020)
Details:
- From August 8, in response to a second wave of infections, Victoria imposed ‘Stage 4’ restrictions, shutting all ‘non-essential’ businesses and effectively putting residents under 23-hour lockdown within a 5km radius of their homes
- Under Stage 4 restrictions, the number of workers on Victoria’s Big Build construction project sites was significantly reduced to support safety protocols put in place by the Chief Health Officer
- After an in-depth evaluation and safety analysis process, construction will continue on the State’s most critical projects
- The works that have been declared Critical State Construction Projects include some of the largest transport projects, as well as urgent maintenance works for public housing and hospitals
- These projects will continue with strict COVID-19 health and safety protocols in place
- To help slow the spread of COVID-19 in the community, the decision has been made to suspend works on a number of non-critical projects.
Change: Practical changes to documents and the conduct of meetings
Details:
Temporary changes have been made to the Planning and Environment Act 1987 under the COVID-19 Omnibus (Emergency Measures) Bill 2020 (24 April) which at this stage will be in place for six months.
- Planning documents previously required to be physically available to view at state and local government offices are now only required to be available for online inspection
People can view and participate in Planning Panels Victoria hearings electronically
Change: Project fast tracking under the Building Victoria Recovery Taskforce (May 2020)
Details:
- Since April 2020 Building Victoria’s Recovery Taskforce has sought to identify shovel-ready building and construction projects of Victorian State and Regional significance
- Applications for priority project fast-tracking in the Taskforce’s pilot phase closed on Friday 5 June, 2020
- The Taskforce received 295 applications for assessment of projects to be considered for fast-tracking. The Taskforce has now triaged all 295 applications and is on track to complete detailed assessments of eligible projects.
Western Australia
Change: Passed the Planning and Development Amendment Act 2020 (June 2020) which includes specific actions around community consultation.
Details:
- The Planning and Development Amendment Act 2020 (WA) (Act) was passed by the Western Australian Parliament on 24 June 2020
- The amendments are part of the Action Plan for Planning Reform which identifies three goals for reform of the planning system and 19 reform initiatives to achieve the goals.
Of particular relevance to the infrastructure sector:
Initiative A3: Land use and infrastructure planning is coordinated
- A Cabinet taskforce, comprising Ministers responsible for key infrastructure agencies, will be established with a mandate to address the infrastructure barriers to urban consolidation and development
- Research and trials will be undertaken to determine effective new arrangements for infrastructure coordination in priority areas, including infill locations and land identified as urban and industrial deferred in region schemes
- Data regarding forward infrastructure planning and staging by State agencies will be collated and disseminated by the WAPC to inform strategic planning at a local level.
Initiative B2: Engagement and consultation processes are consistent and effective
Background: Many community stakeholders told the WA Government that they find the planning system difficult to understand and feel increasingly excluded from the decision-making process. Some feel as though they do not have a fair say about proposals for development in their community.
The requirements and processes for community engagement and consultation are inconsistent between different planning authorities and tend to be reactive rather than proactive. Industry and stakeholders have expressed support for modernising community engagement practices and regulatory requirements so that they are more consistent and provide more opportunity for early engagement of the community in strategic planning.
Early actions on Initiative B2 will include:
- Engagement: The DPLH will lead by example in engaging with stakeholders and community by preparing a new engagement toolkit and implementing this through its own strategic and policy projects
- The Western Australia Planning Commission (WAPC) has initiated a pilot project to explore community attitudes on urban consolidation. In addition to exploring community views towards greater density and infill development, it aims to identify engagement methods and techniques that can be used for other strategic planning and policy projects and will inform preparation of the toolkit
Consultation: A working group will be established to review and propose contemporary consultation and notification requirements for statutory planning proposals to be implemented consistently among planning authorities within the metropolitan area and regional centres.
Australian Capital Territory
Pending change: Current parliamentary review into engagement with the DA process in tandem with $35 million in fast-tracked local infrastructure spending. Recommendations delivered. (April 2020)
Details:
The Standing Committee on Planning and Urban Renewal reviewed engagement with Development Application (DA) processes in the ACT, in March with regard to community engagement and participation in the DA process and the accessibility and effectiveness of DA processes.
The final report of the Committee was tabled in April and is being considered. Among a suite of recommendations on promoting transparency, proactive engagement and capacity building, the committee recommended that the ACT Government:
- Release updated pre-DA consultation guidelines containing detailed information on best practice methods and stronger recommendations on expectations of the level of required community consultation
- Require proponents to provide with their DA a report on pre-DA consultation, including actions taken as a result of community feedback
- Require public meetings to be conducted with adequate notice for stakeholders
- Provide training for proponents on best practice consultation
- Proactively notify the community of DAs that are likely to be of wide community interest
- Ensure more complex/higher impact DAs are more widely notified.
How significant are these changes?
Australia has a long history of public participation in infrastructure project assessment and regulatory decision-making.
Statutory requirements to consult at various points in the assessment and decision-making process are common. Legal rights for members of the public to challenge decisions in the courts also exist in certain cases.
While project assessment and approval laws change with each new wave of reform, it is rare to see any erosion of those requirements and rights. On the contrary, some State governments have recently enhanced the quality of community engagement in assessment and decision-making processes and have expanded that engagement to other phases in a project’s life cycle.
For example, the NSW Department of Planning, Industry and Environment Social Impact Assessment Guideline for State significant mining, petroleum production and extractive industry development (2017) is proposed to be included in the assessment requirements for major infrastructure projects as well.
How necessary are these changes?
The dramatic effects of COVID-19 on the economy mean that governments are looking to infrastructure projects to provide much needed economic activity. Statements by leaders, including the Deputy Prime Minister, indicate that Governments are eager to roll out the stimulus without delay – even if it means addressing green and red tape.
Importantly, infrastructure professionals working with the Next Generation Engagement Program say that communities expect to have a say about projects and activities that impact their lives. They also rate stakeholder opposition as one of the leading causes of project delay.
The question as to whether a perceived need to act quickly in the interests of economic health will come ahead of any community’s desire to have a say is critical to address.
Given the legal restrictions on movement and social gatherings, changes to any law about how public participation is done, including provision for public exhibition via the internet, are important for ensuring that project assessments can continue during the COVID-19 crisis. However, it is difficult to see how reforms that may allow proper community consultation to be bypassed can be justified.
There is also a real question about whether these reforms will benefit infrastructure projects in the long run or whether they may sow the seeds of costly community opposition.
What other options are available?
Especially where a project will create significant community impacts it is important to retain the key elements of community engagement. Tools such as 1-800 community numbers, online forums, video conferences and responsive social media platforms all offer opportunities to continue to connect and consult.
Planning authorities could also ask project proponents to demonstrate that they have assessed potential community impacts through activities such as online research, surveys, telephone polls and meetings with staff from other projects who are operating in the same geographic area. They would need to demonstrate that they have a plan to mitigate issues that would likely be raised through a full consultation in normal times. Closing the loop is also very important. Proponents should be able to show that they have provided feedback to community members as to how and why their feedback was used (or not) and how community input has informed the design of their project through this consultation.
Planning authorities could also limit the opportunities for streamlined assessment where community impacts are deemed likely to be significant.