By Aaron Gadiel, Partner and Scott Higgins, Partner

The NSW Government has published a public health order banning work on all construction sites across ‘Greater Sydney’.

The ban applies across Sydney, including the local government areas Hawkesbury, Blue Mountains and Wollondilly, as well as the Central Coast, the City of Shellharbour and the City of Wollongong.

With some exceptions, all construction work on a construction site is unlawful from the beginning of Monday 19 July (today) until the beginning of Saturday 31 July 2021.

The government says that the order is ‘necessary to further limit the spread of the COVID-19 Delta strain’.

The government has described this as a ‘pause’ in construction activity.

On 18 July 2021, the Premier of NSW, Gladys Berejiklian, said that the government had ‘given the commitment to allow a level of the construction industry to come back after 30 July, but we are constantly reviewing settings’.

The ban was initially set out in the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Amendment (No 8) Order 2021 published late on 17 July 2021.

However, within only 24 hours, the government further revised its position on key issues in the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Amendment (No 9) Order 2021.

A construction site

The ban applies to a ‘construction site’.

This is defined as a place at which work (including related excavation) is being carried out to erect, demolish, extend or alter a building or structure (or at which civil works are being carried out).

It does not include work for an occupied dwelling.

Ban on attending a construction site

There is also a ban on any person attending a construction site, other than in relation to the exceptions.

Exceptions

Work on a construction site that is urgently required may be carried out, despite the ban, if it is for the following purposes:

• to ensure the safety or security of the construction site;
• to deal with environmental risks;
• to maintain and ensure the integrity of critical plant, equipment or assets, including partially completed works, that would otherwise deteriorate;
• to receive deliveries of supplies that would otherwise deteriorate;
• to maintain public utilities;
• to ensure the safe operation of existing transport infrastructure;
• by or on behalf of NSW Health in response to the COVID-19 pandemic;
• because of an emergency.

Work at residences

There is also a ban on any person visiting a place of residence in ‘Greater Sydney’ to engage in non-urgent:

• cleaning work; or
• work for repairs, maintenance, alterations, additions or other trades.

The ban is legally enforceable against:

• each adult member of a household; and
• the visitor (ie the person who would have carried out the work).

This ban is also in place until the beginning of Saturday 31 July 2021.

Contract administration

A deluge of contractual claims is likely to follow.  Contractors will very likely be entitled to extensions of time (EOTs) under construction contracts.

Programming evidence and critical path analysis (identifying the situation immediately prior to the public health order) will be an essential part of contractor claims.

The treatment of delay costs will vary — depending on the terms of the contract.  Claims for additional costs via alternate approaches (such as ‘change in law’ clauses’) are inevitable.

Renewed scrutiny ought to be applied to the precise language of those contracts (to identify whether they contemplate the public health order).

Principals ought to be wary of being asked to issue suspension notices under contracts.  This may change the nature of the rights of the parties.

If you would like advice with understanding your contractual position — or with making or responding to such claims —please contact our construction law team (partners Scott Higgins, Andrew Wallis, Scott Laycock or Peter Meades, contact details below).

Ban on workers from Fairfield, Canterbury-Bankstown and Liverpool areas

Additionally — even when construction work is permitted under the exceptions — work may be hampered by additional stay-at-home rules for the residents of Fairfield, Canterbury-Bankstown and Liverpool local government areas.

The amended stay-at-home order prevents such individuals from travelling outside their local government area for work.  This rule is also in place until the beginning of Saturday 31 July 2021.

However, there is a list of ‘authorised workers’ who can leave these local government areas for work, despite the new ban.

This list includes workers employed or engaged to provide services that are necessary for:

• warehousing;
• some road transport;
• ‘pipeline and other transport’;
• transport support services;
• vehicle repairs and critical maintenance including disinfection;
• towing services;
• critical safety operational staff for transport;
• electricity services;
• operation of energy systems;
• gas services;
• liquid fuels;
• water supply, sewerage, sanitation and drainage services; and
• waste resource recovery services (including collection, treatment and disposal services).

The order also applies to anyone who has temporary accommodation in those local government areas.

Penalties

It is a criminal offence under the Public Health Act 2010 for individuals or corporations to breach the bans.

Individuals face a penalty of imprisonment for up to six months or a fine of up to $11,000 (or both) plus a further $5,500 fine each day the offence continues. Corporations may be fined up to $55,000 and $27,500 each day the offence continues.

On-the-spot fines can also be issued for violations — $1,000 for individuals and $5,000 for corporations.

Exemptions

The NSW Minister for Health, Brad Hazzard, has the discretion to exempt some gatherings in writing (conditionally or otherwise).  There is no requirement for those exemptions to be made public.

Merit appeal rights

The order giving effect to the ban has not been made using the state government’s emergency powers.  A ‘state of emergency’ has not been declared by the NSW Government.

This means that it is possible for impacted people or businesses to seek an independent merit review of the ban.  This would need to be dealt with by the NSW Civil and Administrative Tribunal.

If you need advice in this regard, you can contact our planning and environment team (partners Aaron Gadiel, Anthony Whealy or Matt Sonter, contact details below).