Ku-ring-gai Council on Sydney’s north shore has alleged the state government’s signature housing density policy is unlawful because it failed to properly consider the potential impact on threatened species such as the powerful owl and grey-headed flying fox.
A summons filed in the Land and Environment Court, seen by the Herald, asserts the government could not have reasonably or rationally formed the view that its transport-oriented development program would not adversely affect critical habitat and ecological communities.
Ku-ring-gai Council says the powerful owl and other species are under threat from development.Credit: SMH
The council claims the TOD program impacts two such communities in its municipality: Sydney Turpentine-Ironbark Forest and Blue Gum High Forest.
And it alleges there is “no evidence” in the Planning Department’s published material about the TOD program showing officials consulted the Office of Environment and Heritage about possible adverse impacts of the policy on critical habitat and threatened species.
That office sits within the NSW Department of Climate Change, Energy, Environment and Water. Consultation is required under the Environmental Planning and Assessment Act if the planning secretary believes the policy will or may have such an impact.
The department declined to comment as the matter was before the court. But planning experts played down the significance of Ku-ring-gai’s legal campaign, saying even if it scored a technical win, the Labor state government would override it anyway.
“All that happens is the proponent then goes and follows due process, and it just rolls forward,” said Peter Phibbs, an emeritus professor of planning at Sydney University’s Henry Halloran Trust. “You win the battle – which they did in Sirius – but you just lose the war.”
In 2017, campaigners won a case against former heritage minister Mark Speakman’s decision not to heritage list the brutalist Sirius building in Millers Point, after a judge found Speakman (who is now opposition leader) made two errors of law. It forced the then Coalition government to “remake” the decision, and a few months later the government again decided not to list the building.
Ultimately, Sirius was sold for $150 million in 2019 to developer JDH, which opted to renovate the building rather than knock it down.
Macquarie Law School professor Cathy Sherry, who supports the TOD scheme, said while decision-makers had to tick legal boxes: “The reality is the state government can actually do what it wants.”
Ku-ring-gai Mayor Sam Ngai says the lawsuit’s purpose is to help the council “buy time” to do its own planning work.Credit: Jessica Hromas
Ku-ring-gai Council has four stations that are part of the TOD program: Roseville, Lindfield, Killara and Gordon. Planning controls have been changed within 400 metres of those stations to allow for residential apartment buildings up to six or seven storeys. Many property owners are considering selling and have already been approached by developers and real estate agents.
The government believes the program will create capacity for 170,000 new homes across the 37 suburbs where it applies, over the next 15 years, or an average of 4600 homes around each train station. Ku-ring-gai Council has staunchly opposed the program since it was unveiled.
Mayor Sam Ngai, who is a member of the Liberal Party but was elected as non-aligned, rejected suggestions the lawsuit was a stunt ahead of council elections in September. He said its primary purpose was to “buy time” so the council could plan its own precincts.
“We are already underway with identifying density scenarios and will be consulting the community later this year,” he said.
The second function of the lawsuit was that, if successful, the council could buy up land for public open space at pre-TOD prices, saving ratepayers millions of dollars. “The cost of acquiring private land for public recreation has escalated very significantly,” Ngai said.
He said he was pursuing the legal challenge “reluctantly” and it would have been unnecessary if Planning Minister Paul Scully had granted Ku-ring-gai the same deferred commencement of the TOD program given to other councils.
Scully would not comment on details of the matter before the court, but said consultation on the program has been ongoing. “Ku-ring-gai Council had plenty of time to suggest an alternative housing plan,” he said. “Instead, they have spent scarce ratepayers’ money on anti-housing advertising and high-paid lawyers.”
The matter is listed for a directions hearing on July 5. Separately, the Coalition is pursuing legislation that would allow the parliament to disallow any or all of the government’s TOD locations.
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