New South Wales

The NSW Government announced on Wednesday 28 July 2021 that work on most construction sites in NSW can resume from Saturday 31 July 2021, subject to some new or ongoing restrictions, following the recent shutdown across the Greater Sydney region. It also announced that certain preparatory works could be carried out on construction sites in some areas of Greater Sydney from 29 July 2021.

The Public Health (COVID-19 Additional Restrictions for Delta Outbreak) Order 2021 (as amended by the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Amendment (No 17) Order 2021 made on 29 July 2021) contains restrictions that apply to construction sites in NSW from Saturday 31 July 2021.  Notably, work on construction sites in the following local government areas continues to be prohibited: City of Blacktown, City of Campbelltown, Canterbury-Bankstown, Cumberland, City of Fairfield, Georges River, City of Liverpool, City of Parramatta and any others specified by the Chief Health Officer (affected LGAs).

‘Construction site’ is defined in the Public Health Order and includes places at which works or excavations are performed on a building or structure (including civil works) but does not include occupied residences.

From 31 July 2021, construction sites in Greater Sydney are also required by the Public Health (COVID-19 Gathering Restrictions) Order (No 2) 2021 (as amended by the Public Health (COVID-19 Gathering Restrictions) Order (No 2) Amendment Order (No 3) 2021 made on 28 July 2021), to develop and comply with (and keep onsite a copy of) a COVID-19 Safety Plan that addresses the matters required by the approved COVID-19 safety checklist for constructions sites in Greater Sydney. Resources and guidance from the NSW Government on how to complete a COVID-19 Safety Plan for construction sites can be found here. All constructions sites in NSW are required to maintain electronic entry records.

The NSW Government also announced that construction sites will be able to operate on Sundays and public holidays for the remainder of 2021 to make up for any time lost as a result of the recent shutdown.

All construction work in the Greater Sydney region was paused, with limited exceptions, on 19 July 2021 as a result of the Minister for Health and Medical Research’s directions in the Public Health (COVID-19 Temporary Movement and Gathering Restrictions) Amendment (No 8) Order 2021. Under those directions, work could only be carried out on a construction site if it was urgently required:

•    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 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; and/or
•    because of an emergency.

These exceptions for urgent construction work continue to apply from 31 July 2021 in affected LGAs where construction work is otherwise not permitted.

South Australia

Construction sites across South Australia were permitted to fully reopen from 28 July 2021, in line with the lifting of the state-wide stay-at-home lockdown that had been in force since 20 July 2021, by the Emergency Management (Activities – Associated Direction No 6) (COVID-19) Direction 2021.

On 20 July 2021, South Australia was declared subject to level 5 (“Stay at home”) restrictions by the Emergency Management (Activities – Associated Direction No 3) (COVID-19) Direction 2021. This Direction, in conjunction with the then existing Emergency Management (Activities – General No 2) (COVID-19) Direction 2021, and similar Directions that followed, had the effect of pausing all works carried out on construction sites across the state, except works undertaken by authorised workers.  Authorised workers were those required to perform work that was essential for the continued operation of, among other things:

•    essential infrastructure, as defined in the Planning, Development and Infrastructure Act 2016 (SA);
•    essential services, as defined in the Essential Services Act 1981 (SA);
•    services required to maintain and protect human health, safety and wellbeing, including:
  •    electricity, gas, water, sewerage, drainage and liquid fuels and refinery operations;
  •    waste and recycling services provided to commercial contractors; and
  •    construction, maintenance and repair of schools, roads and other essential infrastructure; and
•    critical repairs or works to any facility, site or premises required for emergency or safety, or to maintain and ensure the integrity of critical plant, equipment or asset, including partly completed works that would otherwise deteriorate.

Considerations for Contractors

A number of contractual considerations and issues are likely to arise as a result of the restrictions on construction sites in NSW and SA, including regarding extensions of time, additional costs, compliance with notice requirements and force majeure clauses.  Contracting parties should be conscious of contractual implications of the restrictions including, for example, whether entitlements to claim extensions of time or additional costs have arisen and, if so, the notice requirements which need to be satisfied under the relevant contracts to do so.