Mediation or Capitulation?

Ku-ring-gai Council on 5 December 2024 stated it “welcomed a NSW Government statement supporting the Council developing alternative locally-responsive planning controls in the Transport Oriented Development (TOD) precincts at Roseville, Lindfield, Killara and Gordon.”

Please read Ku-ring-gai Council Media Release below:

At its 26 November meeting, Council went into confidential session to consider the outcomes of mediation between Council and the NSW Government, which was undertaken as part of Council’s legal action seeking to invalidate the TOD State Environmental Planning Policy.

At the meeting, Council resolved to accept the mediation agreement(PDF, 93KB).

Ku-ring-gai Mayor Christine Kay said the agreement allowed Council to continue its work delivering dwelling capacity in the four precincts, which was at least equivalent to that envisaged under the government’s TOD scheme.

“As I stated upon the release of our alternative scenarios in mid-November, Ku-ring-gai Council is willing to do its bit to support housing supply, but in a way which is responsive to our unique local area,” Mayor Kay said.

“As I also stated, we are keen for planning in these areas to consider the views of the community and key stakeholders, which is how planning should be done.

“Today’s statement confirms the importance of this work and simply gives this council the same status as other Sydney councils who’ve prepared locally-responsive plans in the TOD precincts.

“While I expect we may receive many inquiries from landowners in response to today’s statement, we are unlikely to be able to provide additional information – beyond what’s covered in the government’s statement – until we complete our work investigating the best housing scenario in the TOD precincts.”

The Mayor said that landowners should take the opportunity to put in a submission on their preferred housing scenario before the closing date of 17 December. The detailed scenarios and ways to give feedback are at the engagement hub.

“While Council’s litigation challenging the TOD SEPP remains on foot, it is hoped that agreement on planning controls can be reached with the NSW Government before the final hearing date, expected to be in mid 2025. Council will be working with NSW Government planning officials to achieve that”, Mayor Kay said.

In November, Council commenced community engagement on five housing scenarios for Roseville, Lindfield, Killara and Gordon, including a scenario based on the government’s TOD controls, Each scenario will deliver around 23,200 homes over 15 years.

Council’s four alternative scenarios include measures (in varying degrees) to protect tree canopy and heritage areas and items, reduce impacts on isolated or adjoining landowners and revitalise and strengthen Ku-ring-gai’s commercial centres.

Ku-ring-gai Council v State of New South Wales

Land and Environment Court Proceedings 2024/00173748

Mediation Agreement reached on 21 November 2024 between Ku-ring-gai Council and the
State of NSW (subject to approval by Council at the Ordinary Meeting on 26 November 2024)

The parties have agreed to take the following steps:

Council to continue public consultation on specific alternative planning options for
the precincts in Ku-ring-gai LGA affected by the TOD SEPP. Council officers will
collaborate with the Department in developing those alternative planning options
from the date of this agreement.
New South Wales Government to make a public statement to the following effect –
Consistent with the approach it has taken with other Councils, the NSW
Government is supporting Ku-ring-gai Council as it develops specific planning
controls that deliver at least equivalent dwelling capacity to the TOD program,
intended to culminate in an amendment to the TOD SEPP. As a consequence,
the planning controls applicable to the Ku-ring-gai LGA in the TOD SEPP
might change. The process is expected to be completed by May 2025.
Council will use its best endeavours to put relevant proposals to Council for approval
in Council meetings in both February and April 2025.
In the event of a satisfactory proposal being finalised, Council and the Department
will work towards implementation of that proposal in or before May 2025.
The proceedings will remain on foot and the mediation will be adjourned (or left
open) as necessary for the purposes of reaching a final settlement.
The parties agree to continue to prepare the proceedings for hearing in the usual
manner and, at an appropriate time, seek a hearing date in June 2025 or as early as
is appropriate (given the readiness of the proceedings for hearing) after June 2025.
The terms of this agreement will remain confidential until the Statement referred to
in clause 2 is made publicly.

Council Resolution accepting the Mediation Agreement

At the Ordinary Meeting of Council on 26 November 2024, Council resolved as follows in
relation to item C.1 – Land and Environment Court – Transport Oriented Development SEPP
01 Land and Environment Court – Transport Oriented Development SEPP

File: S14468

Vide: C.1

In accordance with the Local Government Act 1993 and the Local Government
(General) Regulation 2021, in the opinion of the General Manager, the following
business is of a kind as referred to in section 10A(2)(g), of the Act, and should be
dealt with in a part of the meeting closed to the public.

Section 10A(2)(g) of the Act permits the meeting to be closed to the public for
business relating to advice concerning litigation, or advice that would otherwise be
privileged from production in legal proceedings on the ground of legal professional
privilege.

This matter is classified confidential under section 10A(2)(g) because it contains
advice concerning a legal matter that:

(a) is a substantial issue relating to a matter in which the Council is involved

(b) is clearly identified in the advice, and

(c) is fully discussed in that advice.

It is not in the public interest to release details of the legal advice as it would
prejudice Council’s position in court proceedings.

Report by General Manager dated 22 November 2024.

Resolved:
(Moved: Councillors Spencer/Pettett)

That Council accept the proposed mediation agreement detailed in this report.

CARRIED UNANIMOUSLY