In our previous article published last year, Trouble with TOD: Challenges facing the State Government's Transport Oriented Development program, we discussed the introduction of the NSW Government’s Transport Oriented Development program (TOD Program), one of its flagship policies to address the shortage of affordable housing in NSW, and Ku-ring-gai Council’s legal challenge to the validity of the TOD Program.

This article provides an update on the status of Ku-ring-gai Council’s legal challenge to the TOD Program, including the mediation agreement between Ku-ring-gai Council and the NSW Government and Ku-ring-gai Council proposal to replace the TOD Program in the Ku-ring-gai Local Government Area (LGA).

Re-cap: What is the TOD Program?

The TOD Program introduced a new Chapter 5 into the State Environmental Planning Policy (Housing) 2021 (Housing SEPP) titled “Transport Oriented Development”, which applies to areas around select train stations mapped as the “Transport Oriented Development Area” (TOD Area) on the Transport Oriented Development Sites Map.

The TOD Program introduced non-discretionary development standards for residential flat buildings (RFBs), shop top housing and independent living units in TOD Areas, including a maximum building height of 22m for RFBs, a maximum building height of 24m for shop top housing and independent living units, and a maximum floor space ratio of 2.5:1 for all of these types of development. The TOD Program also introduced an affordable housing requirement of 2% of gross floor area for sites of at least 200m2. Further bonuses for maximum height and floor space ratio are also available under Chapter 2 of the Housing SEPP if additional affordable housing is provided.

Update on Ku-ring-gai Council’s Legal Challenge

On 10 May 2024, Ku-ring-gai Council commenced judicial review proceedings in the NSW Land and Environment Court seeking an order that the TOD Program be declared invalid. Our previous article summarises the grounds of review raised by Ku-ring-gai Council in the proceedings.

On 21 November 2024, Ku-ring-gai Council and the NSW Government reached a mediation agreement in the proceedings. As part of the mediation agreement, the NSW Government agreed to support Ku-ring-gai Council to develop its own planning controls to amend the TOD Program in the Ku-ring-gai LGA, which deliver at least equivalent dwelling capacity to the TOD Program.

On 5 June 2025, Ku-ring-gai Council formally adopted an alternative plan to replace the TOD Program in the Ku-ring-gai LGA (Alternative Plan), which it has now submitted to the NSW Government for review. The NSW Government advised Council that it may take up to 3 months until any amendments to the TOD Program are introduced. The amendments, if accepted by the NSW Government, are proposed to be introduced as a self-repealing State Environmental Planning Policy, which will introduce changes to the TOD Program and the Ku-ring-gai Local Environmental Plan 2015 (LEP).

On 13 June 2025, the NSW Government published a revised Transport Oriented Development Sites Map, which turns off the TOD Program in the Ku-ring-ai LGA except for sites that have already been the subject of development applications to Council, state significant development applications or Secretary's Environmental Assessment Requirements (SEARs) relying on the TOD Program. The intention of this amendment is to prevent further development applications being lodged under the TOD Program in the Ku-ring-gai LGA until the NSW Government has made a decision on Ku-ring-gai Council’s Alternative Plan, while “saving” development applications that have already been lodged. The TOD Program will continue to apply to those applications.

In the meantime, the parties have obtained an adjournment of the proceedings until 1 August 2025, at which time we assume the parties will need to update the Court on their progress in reaching a settlement agreement, and, if agreement is not likely, the Court may consider allocating a hearing date.

For completeness, we also note that the application by Ku-ring-gai Council for interim heritage orders to protect heritage conservation areas from the TOD Program, which was referred to in our previous article, was refused by the NSW Minister for Heritage.

What is Ku-ring-gai Council’s Alternative Plan?

Ku-ring-gai Council has published draft LEP maps setting out its Alternative Plan for the four suburbs in the Ku-ring-gai LGA affected by the TOD Program: Gordon, Killara, Lindfield and Roseville.

The draft LEP maps propose, among other things, to rezone these areas and make changes to the maximum building height, the maximum floor space ratio, and the affordable housing provisions applying to these areas.

In preparing its Alternative Plan, Ku-ring-gai Council sought to move areas marked for high density development away from heritage conservation areas, and to create a transition between areas of different densities.

Like the TOD Program, the draft LEP maps focus on the areas in the vicinity of the train stations in these suburbs. However, Ku-ring-gai Council has adjusted the boundaries of the areas marked for high density development, with some properties that were included in the TOD Area now being excluded from an uplift in planning controls under Council’s Alternative Plan, while other properties that were not in the TOD Area are subject to an uplift.

The planning controls under the Alternative Plan are also different to the TOD Program, in that some properties will be subject to a decrease in maximum height and floor space ratio, and other properties will be subject to an increase if the Alternative Plan is introduced.

Unlike the TOD Program, Ku-ring-gai Council’s Alternative Plan also amends the zoning of areas subject to increased height and floor space ratio controls, and includes heritage items in the areas subject to an uplift (the TOD Program excludes heritage items).

What’s Next

Will the NSW Government accept Ku-ring-gai Council’s Alternative Plan?

The Alternative Plan is not in effect.

The NSW Government has indicated that it will take up to 3 months to review the Alternative Plan and make any changes to the TOD Program. We are yet to see whether the NSW Government will accept the Plan or whether it will request any changes.

If the NSW Government accepts the Alternative Plan, what will the savings and transitional provisions look like?

According to Ku-ring-gai Council, around 11 development applications and 31 state significant development applications (including applications for which only SEARs have been issued) have been lodged for sites within the Ku-ring-gai LGA relying on the TOD Program.

Ku-ring-gai Council is concerned about the NSW Government’s proposal to “save” these development applications due to the inconsistency between the TOD Program and Council’s Alternative Plan.

The NSW Government has introduced a revised TOD Area map which currently saves these development applications by including the properties the subject of these applications within the TOD Area, but excluding all other properties within the Ku-ring-gai LGA from the TOD Area.

We are yet to see the drafting of the savings and transitional provisions the NSW Government proposes to introduce to “save” these development applications (if Council’s Alternative Plan is accepted). It remains to be seen how such provisions propose to deal with properties which adjoin sites the subject of “saved” applications in an effort to address the inconsistency between the planning controls under the TOD Program and the planning controls under Council’s Alternative Plan (such as in respect of heritage items which are excluded from the TOD Area but included in the uplift in planning controls under Council’s Alternative Plan).

If you would like advice on how the TOD Program or Council’s Alternative Plan affects your property, don’t hesitate to contact us.