In response to the COVID-19 pandemic, the Queensland Government introduced and passed the Public Health and Other Legislation (Public Health Emergency) Amendment Act 2020 (Amending Act) on 18 March 2020. The majority of the operative provisions of the Amending Act came into force on 19 March 2020.
The Amending Act amends a number of pieces of legislation to allow the Queensland Government to deliver an effective response to this public health emergency. Primarily, it seeks to strengthen powers under the Public Health Act 2005 (Qld) to support social distancing measures. It also contains provisions which will allow greater flexibility for the upcoming local government elections and, if necessary, the State elections if they are affected by the COVID-19 pandemic.
This legal update focuses on the amendments to the Planning Act 2016 (Planning Act) and the Economic Development Act 2012 (Qld) (Economic Development Act). The amendments to each statute are intended to achieve the same purpose – ensuring essential goods and services are provided during public health emergencies.
What do you need to know?
These amendments do not just apply to the current COVID-19 pandemic but to any declared ‘applicable event’ during the relevant ‘applicable event period’.
Where an applicable event has been declared, the amendments allow for the following on a temporary basis:
- the approval of uses of premises or changes to conditions (by way of a temporary use licence);
- the relaxation of hours of operation or restrictions regarding the movement of goods; and
- the suspension or extension of relevant statutory periods.
The discussion below relates to the changes to the Planning Act. However, it is important to note that similar changes have been made to the Economic Development Act for the same purpose.
What is an applicable event?
An applicable event can be declared where:
- an event has taken place, is taking place or is likely to take place; and
- the event may affect a State interest (which is an interest that affects an economic or environmental interest of the State or part of the State).
The term ‘event’ is defined by reference to the Disaster Management Act 2003 (Qld) which includes epidemics (such as the COVID-19 pandemic), natural disasters such as cyclones and floods, explosions, fires and gas leaks and attacks against the State.
An applicable event will be declared for a certain period of time, which can be extended (called an applicable event period) and can apply to all or part of the State.
Applicable event notices will be published on the website of the Department of State Development, Manufacturing, Infrastructure and Planning (DSDMIP).
On 20 March 2020, the Minister declared the COVID-19 emergency to be an applicable event. The applicable event period is between 20 March 2020 to 20 June 2020 (noting this may be extended).
Temporary use licences
The amendments allow a person to apply to the chief executive of DSDMIP for a temporary use licence in relation to a premises during the relevant applicable event period. It is intended to allow the premises to be used for public heath purposes.
Where an applicable event has been declared for only part of the State, the premises must be located within that area. A single application may be made over multiple premises.
A temporary use licence, if granted, may:
- change a condition of a development approval;
- provide that a use of designated premises is not required to comply with a requirement about the use stated in the designation for the premises;
- change the existing lawful use of the premises (e.g. by adding a new use, increasing the intensity or scale of the existing lawful use or replacing the existing use with a new use).
The chief executive may only grant the temporary use licence if satisfied that ‘having regard to the nature of the applicable event, there are reasonable grounds for the relevant change’. The chief executive may impose conditions on the temporary use licence.
The term of the temporary use licence cannot extend beyond the relevant applicable event period. This should be taken into account when making the application as it may not allow for significant works to be carried out to effect the change of use. This will, of course, depend on the length of the applicable event period.
Amendments to the Planning Regulation 2017 are required before applications for a temporary use licence can be made. A register of temporary use licences will be made available on the DSDMIP website.
Hours of operation and movement of goods
We have seen the impact of COVID-19 on the delivery of essential services such as the re-stocking of food and other goods in supermarkets and, as more of us work from home (and produce more domestic waste), the collection and disposal of waste.
The amendments to the Planning Act allow the Minister to declare a use or class of uses for an applicable event. The declaration may be made for a smaller part of the area to which the applicable event notice applies. For example, if an applicable event notice applies to South East Queensland, the declaration of a use may apply only to Brisbane. Declarations will be published on the DSDMIP website.
If the Minister makes such a declaration, then restrictions on the hours of operation or the movement of goods in relation to the use (or class of uses) will not apply, allowing the activities to be carried out 24 hours a day, 7 days a week. Those restrictions may be imposed by the Planning Act itself, a development approval condition or a requirement of a designation.
On 20 March 2020, the Minister declared the uses of shop, warehouse and transport depot. The declaration defined ‘shop’ to mean the use of premises primarily for the sale of goods ordinarily acquired for personal, domestic or household use or consumptions such as food, toiletries and medicine (but excludes uses such as health care services, food and drink outlets and garden centres).
Extensions of relevant periods under the Planning Act
Where the Minister is satisfied that it is necessary because of a declared applicable event, the Minister may extend or temporarily suspend a period prescribed under the Planning Act or the State Development Assessment Provisions (SDAP). This is done by way of an extension notice or suspension notice and may relate to, for example, the period for notifying a development application under SDAP.
Extension notices and suspension notices will be published on the DSDMIP website. As at the date of this article, no extension notices or suspension notices were given.
We will keep you updated on all COVID-19 related developments. Please get in touch if you would like to know more.