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.
On 25 March 2020, a new section 747A was inserted into the Local Government Act 1993 (NSW) to overcome this problem. This new section, in effect, allows council meetings to be conducted by audio visual links, or in such manner approved by the Minister for Local Government if the audio visual links are not practicable (see, section 747A(1)(a)). Further, section 747A(1)(b) permits the requirement for conducting council meetings in the public to be achieved by making the webcast of the council meetings available to the public. These changes to the requirements for council meetings will be in place for a period of 6 months, and can be extended by regulation to a period of up to 12 months.
The Office of Local Government has also issued a circular to provide guidance on compliance with social distancing requirements and clarify how to implement the changes permitted under the new section 747A. The circular made the following important recommendations:
- Councils should follow the Guide to webcasting council and committee meetings on how to livestream (i.e. webcasting) their meetings;
- To comply with the confidentiality requirements during closed council meetings, individual councillors who attend those closed meetings should ensure they cannot be seen or heard by other people while attending the meetings by audio visual links.
- Public forums, which are usually held before a meeting, may be dispensed with, or they should be conducted through alternate means such as through audio visual links if possible;
- Councils should immediately review their delegations so that decisions could be made outside of Council’s normal meeting cycle; and
- If council meetings cannot be conducted safely, they may be cancelled and the notice of the cancellation should at least be published on council’s website.
Changes to the Public Exhibition Requirements under the Environmental Planning and Assessment Act 1979
The Emergency Measures Act also introduced new provisions to the Environmental Planning and Assessment Act 1979 (NSW) (EPA Act) that changes how councils’ public exhibition duty may be performed.
The new section 10.18 of the EPA Act suspends any existing requirement for public inspection of documents at a physical location if the document is instead made available on the NSW planning portal website, or on any other website approved by the Planning Secretary. For example, the requirements under section 3.45 of the EPA Act for council to make development control plans available for public inspection at the council’s principal office can now be satisfied by making those development control plans available on the NSW planning portal website.
It is also worth noting the new section 10.17 of the EPA Act confers the power on the Minister for Planning to authorise any development that ‘is reasonably satisfied that… is necessary to protect the health, safety and welfare of members of the public during the COVID-19 pandemic’ following consultation with the Minister for Health and Medical Research. If the development is so authorised, it is exempt from the requirement for development consent or compliance with any environmental planning instrument, including any local environmental plan. Such power can last for a period of 6 months, or up to 12 months if extended by regulation.
This section potentially allows the state government to carry out emergency building works in response to the COVID-19 pandemic, such as constructing temporary hospitals or converting existing buildings into isolation centres.