Weekend work authorised by COVID-19 Planning Response Order: What the change means for existing construction contracts
The Minister for Planning and Public Spaces (Planning Minister) has made an order under section 10.17 (COVID-19 pandemic—Ministerial orders) of the Environmental Planning and Assessment Act 1979 (EP&A Act).
The new order making power, which was introduced in response to the COVID-19 pandemic, allows the Minister to make an order which can authorise development to be carried out on land without the need for any approval under the EP&A Act or consent from any person.
The making of an order is taken to be a grant of development consent for the development and any conditions of the order are taken to be conditions of the development consent.
Such orders must be made in consultation with the Minister for Health and Medical Research and can be made where the Planning 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.
Such an order will potentially remain in force until 25 September 2020, or for a longer period if extended by regulation.
The Environmental Planning and Assessment (COVID-19 Development—Construction Work Days) Order 2020 which was published on 2 April 2020 (Working Days Order) takes effect from that date and allows construction activities to occur on a Saturday, Sunday and Public Holidays despite any conditions in the relevant development consent.
Work on a Saturday, Sunday or Public Holiday must still comply with the hours of operation that applies to the working week. It is also not possible to carry out activities like rock breaking, rock hammering and sheet piling on weekends or Public Holidays. All activities must also comply with orders under the Public Health Act 2010 that relate to social distancing.
The Planning Minister has said that the order is about ensuring that workers can practice social distancing without a loss of productivity or jobs.
What the order means for parties to a construction contract
Many construction contracts will make reference to the days of work mandated by the consent conditions. This was likely drafted on the assumption that the consent conditions contained the most onerous requirement (or at the very least, no matter what, breach of the conditions should not be mandated by the contract). The Working Days Order turns such an assumption on its head. Parties are now faced with the prospect of a seven-day working week being permitted. However this may clash with other obligations of the parties, including arrangements under subcontracts and other agreements affecting the site.
It should not be assumed by contracting parties that the contract will permit the extended days of work. Depending upon the contract, the principal's consent might be required, or there might be another agreement (e.g. a precinct agreement or a lease) or rules (e.g. building rules) which will prevent the contractor from working the newly available days.
Contractors are likely to be faced with higher labour costs on the newly available days which may not have been factored in to any agreed contract price, capped or liquidated delay damages. Subject to who owns the float under the program, it may not be financially desirable for contractors to utilise these additional days.
Parties are recommended to carefully check their contracts and consult with one another as to the impact of the Working Days Order for their project.
A copy of the order can be found here.
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