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Difficulties due to COVID-19 not an excuse to vacate a hearing date

A recent decision in the Land and Environment Court to set aside a Registrar’s order that a three-day hearing be set aside substantially due to the difficulties associated with the COVID-19 pandemic has shown the Court’s willingness to facilitate the continuation of hearings, where appropriate, despite the difficulties associated with virtual hearings.

In DVCI Pty Ltd v City of Parramatta Council [2020] NSWLEC 31, during a general call over of all matters pursuant to the Court’s adoption of the COVID-19 Pandemic Arrangements Policy, the solicitor for the City of Parramatta Council sought an order that the hearing the subject of the Class 1 Appeal, scheduled to take place in May 2020, be vacated.

The hearing was scheduled to be heard before Acting Commissioner Bindon, who had, as part of the section 34 process, attended the subject site and heard submissions from nearby residents. Council argued that the hearing should be vacated as it was necessary for all relevant parties to attend the site as part of the hearing, which would be difficult in the current climate. Further, Council had only recently retained a planning expert who had not yet attended the site, and was unwilling to go the site due to COVID-19. Despite submissions from the developer as to the prejudice to the developer if the hearing was vacated, and a submission that the matter should proceed by way of audio-visual link due to the fact that Acting Commissioner Bindon had already attended the site and heard from residents, the Registrar ultimately made the decision to vacate the hearing date.
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State Government Regulations: Public Meeting and Hearing Restrictions

With restrictions on physical interaction during the COVID-19 pandemic, the State Government has implemented the Environmental Planning and Assessment Amendment (COVID-19 Planning Bodies) Regulation 2020 (COVID Regulation). The COVID Regulation which was put into action on 25 March 2020 requires the holding of public meetings and public hearings by planning bodies to be held through electronic means. These include:

  1. By way of audio link or audio visual link; and
  2. In a means that permits it to be heard or viewed electronically by members of the public whilst the meeting or hearing is being held.

The COVID Regulation applies to:

  • Local planning panels;
  • Regional planning panels;
  • District planning panels;
  • The Independent Planning Commission;
  • Any other panels established by the Planning Secretary or Minister under section 2.3 of the Environmental Planning and Assessment Act 1979 (EPA Act).

Such meetings or hearings must be held live and available to the public, and thus is not permitted to record the meeting or hearing and subsequently make the recording publicly available. Under clause 294(6) of the EPA Regulation, a person who is required to attend the public hearing or meeting satisfies the requirement by participating by way of audio or audio visual input, in contrast to attending in person.
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Environmental Planning and Assessment Regulation 2000 Repeal Postponed

The Environmental Planning and Assessment Regulations 2000 (NSW)(EP&A Reg) has been delayed in its repeal and replacement on 1 March 2021, pushing the date back a year to the 1 March 2022. This delay allows appropriate consultation time for further reviewing of the provisions and preparing a replacement regulation once the pandemic has subsided.

The current requirements in the EP&A Reg will continue to apply for an additional 12 months – but what does this mean?

 Changes to lapsing dates for Development Consents and Deferred Commencement Consents

All lapsing dates have changed for development consents and deferred commencement consents. They have been changed so that:

  • Both consents granted within the 2 year period from 25 March 2020 will have a five-year lapsing period that cannot be reduced,
  • Consents granted prior to 25 March 2020 that have not already lapsed will be extended by 2 years, and
  • The lapsing date has been extended for 2 years consents that have lapsed since 25 March 2020.

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UTSG Pty Ltd v Sydney Metro (No 6) [2020] NSWLEC 63

A recent Land and Environment Court claim brought in respect of Class 3 proceedings to determine the compensation payable for the compulsory acquisition of a leasehold interest has resulted in the determination that the applicant be awarded nil compensation taking when into consideration outstanding occupation fees, as well as an order for a non-party cost against the director of the applicant company.

In late 2016, Sydney Metro served a Proposed Acquisition Notice on UTSG Pty Ltd (“UTSG”) in respect of its leasehold interest in premises located in Park Street, Sydney, for the purposes of construction of the Sydney Metro – City and South West Project. Sydney Metro had already acquired the freehold interest in the Park Street property, and advised UTSG they required vacant possession of the property by April 2017 and that rent remained payable for occupation of the premises. Rent remained at the amount previously paid by UTSG, being $31,402 per month (plus GST of $3,140) to be paid to Sydney Metro.
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Introduction of Local Government COVID 19 Regulations – Financial Relief

 

The State Government on 17 April 2020 has made the Local Government (General) Amendment (COVID-19) Regulations 2020 (‘COVID-19 Regulation’) to amend the Local Government (General) Regulations 2006 (‘Local Government Regulations’). This amendment was sparked by the strict procedural and financial provisions within the Local Government Act 1993 (‘Local Government Act’), limiting councils in providing financial relief for ratepayers during the COVID-19 pandemic.

These changes to the Local Government Regulations has allowed councils to waiver or reduce fees in response to the pandemic and delay payment of an instalment of rates over the next month (from date amended). Additionally, the COVID-19 Regulation has permitted councils additional time to prepare the following documents over the next month (similar from date amended):

  • Budget review statement for the quarter ended 31 March 2020
  • Annual reports
  • Audited financial reports
  • Operational plan

It also allows council to notify and provide inspection of various documents through their website rather than in newspapers or at council’s officers.
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Matthews Folbigg
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COVID-19: New Amendments Affecting Councils

COVID-19: New Amendments Affecting Councils

On Friday 17 April 2020, the NSW Government made a number of legislative amendments to ensure that Councils can operate effectively in the new environment of COVID-19.

Amendments were made under section 747B of the Local Government Act 1993, which allows the regulations under the act to modify its application for the purposes of responding to the public health emergency caused by COVID-19.  These amendments automatically expire after 6 months, but may be revoked earlier by Parliament.

These amendments have modified the following:

  • Councils may choose to delay issuing the first quarterly rates notices by one month until 1 September 2020, and extend the payment deadline by one month until 30 September 2020;
  • Councils may immediately waive or reduce fees under a new “COVID-19” category without providing 28 days public notice, and at their discretion;
  • Councils have the option of a one month extension to adopting their 2010-2012 Operational Plans, which includes their Revenue Policy Statements of Fees and Charges and their annual budget;

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COVID-19: Changes to Council Meetings and Other Businesses

In response to the COVID-19 pandemic, the Commonwealth and the NSW state governments have taken unprecedented measures to prevent the spread of the virus.

At the time of writing this blog, these measures include the requirement for ‘social distancing’ in the form of maintaining a distance of 1.5 metre from one another, restricting gathering in public spaces to 2 people except in limited circumstances, and requiring owner of premises for indoor gathering to ensure there are at least 4 square metres of space.

On 25 March 2020, the NSW Parliament introduced the COVID-19 Legislation Amendment (Emergency Measures) Act 2020 (the Emergency Measures Act), which made a number of amendments to existing legislation that would have important impact on how local governments may conduct their businesses and perform their functions during the COVID-19 pandemic.

Changes to Council Meeting Requirements

Although there are some exceptions to the social distancing requirements, council meetings or council committee meetings currently do not fall within these exceptions. Depending on the facilities and the number of councillors who ordinarily attend these meetings, it may be impractical for councils to hold these meetings while observing social distancing rules.
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Requests pursuant to GIPA Act

A recent Civil and Administrative Tribunal decision has upheld a local council’s decision to refuse an individual’s request for documents pursuant to the Government Information (Public Access) Act 2009 (the GIPA Act).

A resident and ratepayer (“the applicant”) who resides in the local government area of the Sutherland Shire Council, made a request pursuant to the GIPA Act for documents relating to Council’s stormwater management investigation in respect of a stormwater issue on/near the applicant’s property, including information on who had directed Council’s officers, and who drafted responses on behalf of Council officers. In particular, the applicant sought the following records relevant to this decision:

  1. I request a record of the written report of the ‘visit’ by the relevant officer/s (ref:8/1/19), CR18-301708 Mr Barber’s email 5/12/18, para 3)
  2. Should no record exist for the ‘visit’ in Item 7, then I request the record supporting Mr Barber’s conclusion: there was no ‘problematic overland flow.’

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