Trouble with TOD: Challenges facing the State Government's Transport Oriented Development program

July 29, 2024

The NSW Government has made several planning changes this year in response to rising housing prices and a shortage of affordable housing, with more changes foreshadowed. One significant change was the introduction of the State Environmental Planning Policy (Housing) Amendment (Transport Oriented Development) 2024 (TOD Amendment) on 13 May 2024.

It has been over 2 months since the commencement of the TOD Amendment. In that time, Ku-ring-gai Council has commenced legal proceedings challenging the validity of the Amendment, and more recently, has requested the NSW Minister for Heritage to make interim heritage orders which would impact the implementation of the TOD Amendment in large parts of the Ku-ring-gai LGA.

This article discusses the TOD Amendment and the challenges brought by Ku-ring-gai Council.

What is the TOD Amendment?

In May 2024, the State Environmental Planning Policy (Housing) Amendment (Transport Oriented Development) 2024 (TOD Amendment) commenced which inserted a new Chapter 5 into the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) titled "Transport Oriented Development".

The TOD Amendment makes development permissible with consent for the purpose of residential flat buildings (RFB) in a relevant residential zone¹ and for the purpose of shop top housing in a relevant employment zone², on land to which the TOD Amendment applies.

The TOD Amendment introduced development standards for such development, being a maximum building height of 22m for RFBs, a maximum building height of 24m for shop top housing, and a maximum floor space ratio of 2.5:1 for both types of development. These are non-discretionary development standards, which means that, if the standards are complied with, the consent authority is prevented from requiring a more onerous height or floor space ratio standard.

For RFBs and shop top housing on land to which the TOD Amendment applies, the Amendment also includes affordable housing requirements for developments exceeding a gross floor area of 2000m2, a minimum lot width of 21m at the front building line (although minimum lot size restrictions are removed) and a requirement for consent authorities to consider the Apartment Design Guide. For RFBs in the E1 zone (or the B2 zone in Canterbury-Bankstown), the TOD Amendment also includes an active street frontage requirement.

The TOD Amendment applies to the "Transport Oriented Development Area" identified on the Transport Oriented Development Sites Map³. The land on this map is generally land within a 400m radius of specified train stations and excludes certain land, such as land which contains a local heritage item.

As at the time of writing, areas surrounding 18 train stations have been mapped as the Transport Oriented Development Area, being Adamstown, Booragul, Corrimal, Gordon, Hamilton, Killara, Kogarah, Kotara, Lidcombe, Lindfield, Morisset, Newcastle Interchange, Roseville, Teralba, Turrella, Wyong, Cardiff and Woy Woy stations. The State Government is proposing to progressively include areas surrounding other train stations in the Transport Oriented Development Area over the next year⁴.

Challenges brought by Ku-ring-gai Council

Judicial review proceedings

Ku-ring-gai Council has commencement judicial review proceedings in the Land and Environment Court against the State Government which, at time of publication of this article in July 2024, seek an order that the TOD Amendment be declared invalid. These proceedings raise several grounds of review including:

1. Firstly, Ku-ring-gai Council claims that the Planning Secretary failed to form an opinion on whether the TOD Amendment would adversely impact critical habitat or threatened species, populations or ecological communities, or their habitats, as required under s 3.25(2) of the Environmental Planning and Assessment Act 1979 (EP&A Act). Prior to the commencement of the TOD Amendment, Ku-ring-gai Council made a submission regarding the impact of the draft amendment on two critically endangered ecological communities, being the Sydney Turpentine Ironbark Forest and Blue Gum High Forest and two threatened species, being the Powerful Owl and the Grey-headed Flying-fox;
   
   
2. Secondly, Ku-ring-gai Council claims that the Minister for Planning and Public Spaces failed to form an opinion on the steps, if any, appropriate or necessary to publicise an explanation of the intended effect of the proposed TOD Amendment and to seek and consider submissions from the public on the amendment, as required by s 3.30 of the EP&A Act;
   
   
3. Thirdly, Ku-ring-gai Council claims, in the alternative, that the material published by the Minister for Planning and Public Spaces would not constitute an explanation of the intended effect for the TOD Amendment, as required by s 3.30 of the EP&A Act because:
   • The online mapping which defines the Transport Oriented Development Area is different to the proposed area notified in this material, since this material stated that the amendment would apply to properties within a 400m radius from a station entry, but the published mapping uses an arbitrary point to determine the 400m radius, which is not referrable to a station entry;
   • Heritage items were included in the original online mapping of the Transport Oriented Development Area published on the NSW Planning Portal, despite contrary representations to Ku-ring-gai Council;
   • This material failed to identify and/or misrepresented the impact of the TOD Amendment on infrastructure capacity, since the material stated that the TOD Amendment had been based on "planning, infrastructure and spatial data, along with expert advice and feasibility analysis" but no such material has been provided; and
4. Finally, Ku-ring-gai Council claims that, in making the TOD Amendment, the Minister for Planning and Public Spaces failed to follow the community participation plan prepared by the Planning Secretary and dated November 2019, which the Minister was required to follow pursuant to s 2.23(3)(a) of the EP&A Act, because the Minister did not publish a draft of the TOD Amendment as required by this plan.

We understand that, as at the time of writing, no hearing date has been allocated in these proceedings. At the first directions hearing on 19 July, the proceedings were adjourned for further directions on 4 October 2024.

Request for Interim Heritage Orders

At the Ordinary Meeting of Council on 16 July 2024, Ku-ring-gai Council made a resolution to request the NSW Minister for Heritage to make an interim heritage order which would apply to the heritage conservation areas within the Ku-ring-gai LGA that are subject to the TOD Amendment. While the TOD Amendment does not apply to heritage items, it does apply to properties within heritage conservation areas.

If an interim heritage order is made by the NSW Heritage Minister, this would mean that approval would be required under the Heritage Act 1977 for development within the heritage conservation areas subject to the order. The interim heritage order would apply for 12 months, or any shorter period specified in the order. Ku-ring-gai Council is requesting an interim heritage order to be made to "protect these conservation areas under the NSW Heritage Act 1977 while their significance is assessed".

Conclusion

While the TOD Amendment has only been in force for a couple of months, it is already facing a number of changes, which may impact the validity of the amendments, how they are implemented, or lead to further changes.

1. A relevant residential zone is defined as zones R1, R2, R3 and R4 and equivalent land use zones. Development for the purpose of a residential flat building is also permissible with consent in zone E1 and equivalent land use zones and, in Canterbury-Bankstown only, in zone B2.
2. A relevant employment zone is zones E1 and E2 and, in the Canterbury-Bankstown local government area (LGA) only, zone B2, and, in Gosford city centre only, zone B3.
3. This map is available online on NSW Planning Portal Spatial Viewer (https://www.planningportal.nsw.gov.au/spatialviewer/#/find-a-property/address) under "State Environmental Planning Policies".
4. The full list of train stations and proposed timing for inclusion in the Transport Oriented Development Area is available here: https://www.planning.nsw.gov.au/policy-and-legislation/housing/transport-oriented-development-program/transport-oriented-development.