OPEN LETTER TO THE DEPARTMENT OF PLANNING AND ENVIRONMENT
5th October 2018
RE: PLANNING PROPOSAL - to facilitate a medium and high density housing development at
55 Coonara Avenue, West Pennant Hills
We the undersigned residents' community groups, object to The Hills Shire Council's latest request to the NSW Department of Planning and Environment, resolved at the Council meeting of 25th September 2018, to "endorse an alternate approach" to the Department's Gateway Determination dated 31st October 2017 and subsequent Gateway Alteration dated 13th June 2018.
Council's request for the Department to consider an alternate approach to the Gateway Determination to permit a Site Specific Provision in the Hills Local Environmental Plan (the local provision) for 86m² micro-lots is inconsistent with the Alteration of Gateway Determination dated 13th June 2018, which still required the proposal to be updated to seek amendments to the minimum lot size map. As stated on page 111 of Council's Report of 25th September 2018, "The amended Gateway Determination did not support this approach and instead requested that minimum lot size be applied using the minimum lot size map only".
We consider that Council's request for the Department to "endorse an alternate approach" is not only inconsistent with the Gateway Determination but that the Gateway Determination and subsequent Alteration of Gateway Determination are more appropriate approaches to this development proposal.
We feel that Council's recent approach to the Department and its proposed zoning methodology is lacking in transparency. The current proposed zoning map shows minimum 700m² lots for the area covered by Figure 6 on page 113 of Council's Report of 25th September 2018 whereas Council's Report states that the medium density residential lot sizes for the area covered by Figure 6 will range between 86m² and 300m², not 700m².
We believe this is inconsistent with the Department's Gateway Determination that requires Council to rezone the site in accordance with Part 2 of the Hills LEP 2012.
Furthermore, we object to the following:
1. A change to the proposal to delete the general-purpose community facility.
The community has been promised a community facility in respect of a meeting room of 250m². Mirvac's proposals have, up until the September Council meeting, included this community facility. It was referenced in the Department's covering letter for the Gateway Alteration dated 13th June 2018 whereby the Department understood "that Council is currently working with the proponent towards the dedication of 2.49ha for potential public open space (including the adjoining car park and a general purpose community facility room) through a Voluntary Planning Agreement (VPA)". Yet no general-purpose community facility room has been included in the draft Voluntary Planning Agreement attached to Council's September 2018 Report. We are aggrieved that Mirvac has elected to delete this facility as we believe there is a dire need for such facilities in the local area, where such facilities are fully booked at popular usable times.
Furthermore we consider that the financial contribution to local infrastructure contained in the Voluntary Planning Agreement is also inadequate. At the same Hills Shire Council meeting on 25th September a smaller planning proposal (12/2016/PLP) for 460 dwellings in Cecil Ave, Castle Hill was approved with a Voluntary Planning Agreement which included landscaped open space PLUS a $15,558.326 local infrastructure contribution. In contrast Mirvac is proposing to provide an existing playing field and carpark, dedication of an onsite access road to Council and NO monetary contribution to local infrastructure beyond the site's boundaries. We feel that this VPA is inequitable.
2. No provision for contributions to State public infrastructure.
The Gateway Determination dated 31st October 2017 sought "to include a satisfactory arrangements provision for contributions to State public infrastructure". This Point 1(e) of the Determination was not deleted by the Gateway Alteration dated 13th June 2018. This site is within the Cherrybrook Planning Precinct (Appendix 1). No provision has been made by the proponent for contributions to State public infrastructure to contribute to the increased burden on roads, rail, buses, schools, hospitals and emergency services generated by the Planning Precinct. We agree with the NSW Parliament's brief that a developer should share some of the cost of State public infrastructure as financial beneficiary of the consequent uplift in land values of these sites.
3. No updated supporting studies have been provided to Council.
The Gateway Determination Point 1(d) required "updated supporting studies as identified in Council's report dated 25 July 2017". According to that report, the supporting studies required were:
An Urban Design Analysis to "demonstrate that the smaller lot products are suitable in this locality and will provide adequate outcomes in terms of setbacks, building design and bulk, landscaping, privacy, solar access, private outdoor areas and on street and off street parking". To the best of our knowledge no urban design analysis has been provided to Council. Two simple "Artists Impressions" of the site were provided together with an "Example micro terrace floor plan". This does not constitute an urban design analysis which should have been provided as a stand-alone report covering at the very least all proposed envelopes, transition perspectives, roadways, shadow diagrams and compliance with the Medium Density Housing Guide.
A revised Ecological Assessment "to reflect the new development concept of 600 dwellings but (which) should formally acknowledge previous concerns raised by Council in particular appropriate buffer distances around Powerful Owl nest trees". To the best of our knowledge no revised Ecological Assessment has been provided to Council. We understand that there is a nesting site adjacent to the proposed High Density Residential zone so it is imperative that a revised Ecological Assessment be provided. The Ecological Assessment by Keystone Ecological dated February 2016 even stated that the "proposal would need to be accompanied by a comprehensive ecological impact assessment and management plan for the retained vegetation, including strategies to protect and manage Powerful Owl habitat", which has not been provided.
The Council Report of 25th July continued "In addition, Bushfire Asset Protection Zones are to be excluded from known nest and roost trees and buffers, riparian habitat and corridors". To the best of our knowledge no Assessment has been provided showing the proposed Bushfire Asset Protection Zones.
A revised Bushfire Assessment was required which "address(ed) the new development concept".
A Geotechnical Investigation was required "to identify if there is any potential landslip affectation of the site and, if required, propose a stabilisation strategy". The latest report available, which is desktop-only, is dated 11 April 2017, prior to "Council's report dated 25 July 2017".
To the best of our knowledge none of these updated supporting studies have been provided to Council by the proponent as required by the Gateway Determination dated 31st October 2017.
Furthermore we believe that the traffic report by GTA Consultants dated 10th August 2018 does not identify any "traffic and transport accessibility improvement options for the Cherrybrook precinct" as required by the Gateway Determination dated 31st October 2017. GTA Consultants were engaged by Council (page 118 of Council's 25 September Meeting Agenda) and it provides two recommendations based on an outdated report from 2010 for improvements on the southern side of the West Pennant Hills Valley in West Pennant Hills but no improvement options for the actual Cherrybrook precinct.
4. No legally binding contract has been entered into to conserve the Critically Endangered Ecological Communities of Sydney Blue Gum High Forest and Sydney Turpentine Ironbark Forest.
It is gratefully acknowledged that the Department of Planning and Environment has supported the rezoning of the areas containing Critically Endangered Ecological Communities for "the highest level of protection to relevant portions of the site". We are very pleased that the Department, Council and the proponent appear to be in agreement that these portions of the site should be rezoned as E2 Environmental Conservation.
However at the Hills Shire Council meeting on 25th September 2018 Mirvac advised that they had made an 'offer' to the State Government in March 2018 with respect to the Critically Endangered Ecological Communities of Sydney Blue Gum High Forest and Sydney Turpentine Ironbark Forest (the 'Forest') areas of the site, but that Mirvac have "heard nothing". Seven months later the community still has no certainty that the 'Forest' will be conserved and protected or who will 'own' and conserve the 'Forest'.
Mirvac had advised the community in 2017 that the Critically Endangered Ecological Communities would be utilized as a BioBanking site, as briefly discussed in the Keystone Ecological Assessment. It appears that Mirvac is no longer pursuing this option, thereby forgoing a lucrative income stream. We feel that commercial considerations should not delay any agreement between the proponent and NSW Parks and Wildlife Service.
While we understand that Mirvac may not be inclined to commit to a binding agreement at this time, we firmly believe that no further Gateway approval or alternate approach should be considered until Mirvac enters into a legally binding agreement to preserve the 'Forest'.
5. No facility has been provided in the Voluntary Planning Agreement for Council to purchase the E2 Environmental Conservation zone should it be necessary.
The Hills Shire Council has obtained independent legal advice that supports the inclusion of a "clause in the draft Voluntary Planning Agreement stating that should any acquisition liability arise, Council may purchase the land for $1" (page 108 of Council's Report). The proponent also supports this inclusion in the VPA. The Council Report states "The proposed VPA clause reduces any risk (to ratepayers) to an acceptable level" yet this clause has not been included in the VPA. We believe in light of their legal advice that Council should not have omitted this clause from the VPA.
6. Replacement of playing fields with synthetic turf without an Ecological Impact Assessment.
We believe this is an ecologically unsound choice in an area bounded on three sides by Critically Endangered Ecological Communities (CEEC). There has been no Environmental Impact Assessment of the effect of altering such a large surface area from a natural surface to an artificial surface. There has been no information provided with respect to filtration of stormwater runoff into the first and second order tributaries of Darling Mills creek. The updated Ecological Impact Assessment must include an analysis of the proposed installation, operation, filtration and maintenance of this synthetic surface with respect to the 'Forest' and the waterways. Any potential for toxic emissions from the synthetic surface in the event of a bushfire must also be addressed in the Assessment.
7. The position and area of the High and Medium Density Residential zoning have been extended.
The High Density Residential (R4) zoning has been extended to include the footprint of the current IBM multi-storey carpark (Appendix 2). In the December 2017 Council Report that area was to form part of the Environmental zoning (Appendix 3).
The expanded High Density Residential zoning area now covers the Critically Endangered Ecological Community which surrounds the second 'pond', located between the multi-storey carpark and the playing field carpark (Appendix 4). This is inconsistent with the Department's objective to protect the relevant portions of the CEEC.
This second 'pond' forms part of the first order tributary for Darling Mills Creek (Appendices 5 & 6). As such the pond on this tributary must not form part of the High Density Residential zone. The headwaters of Darling Mills Creek must be conserved. Darling Mills Creek, together with Toongabbie Creek, are the two third order Creeks that in turn form the headwaters of Parramatta River.
The Green Grid Project Priority Matrix states that the Darling Mills Creek corridor has not only the highest Ecological value available, it has the highest Hyrological value, the highest Recreational Value and the highest Connectivity Value available in the Plan. The Greater Sydney Commission Plan's associated Biodiversity Investment Opportunities Map envelopes the site within a Core Priority Investment Area being the Darling Mills Creek corridor and Cumberland State Forest which forms part of the Regional Corridor. The E2 Environmental Conservation zone must be extended eastwards right up to the Cumberland State Forest boundary to include this tributary. It is noted that the proposal does not show any dwellings on this area of newly expanded R4 zone.
Furthermore the Medium Density Residential (R3) zoning has been extended to include the natural forest regrowth in the northern portion of the site (reference Appendix 2 vs Appendix 4) providing no buffer between this zone and the Cumberland State Forest. As the Mirvac proposal shows no dwellings proposed for this portion of the site, we feel it is concerning that the proponent has elected to significantly expand this Medium Density Residential zone seemingly for no reason.
8. Concern that the proposal lacks transparency.
We are very concerned that the R4 zoning is being applied to the multi-storey carpark area without any indication in the proposal of what will be built on this area. Obviously it will not be left as a patch of dirt. The carpark footprint was initially to have been a community centre (Appendix 7) but that has been deleted and it had become a community room (Appendix 8), which has in the latest iteration also been deleted. Given that the proponent is seeking R4 zoning over that large additional area, we feel that once this proposal has final approval, Mirvac may then seek to amend the proposal to add further dwellings.
It is noted that the Recommendation put to the Council meeting on 25th September 2018 included the wording "Council request the Department of Planning and Environment endorse an alternate approach under the current Gateway Determination so that the local provision is able to facilitate suitable assessment of the subdivision and development of micro lot housing, in addition to the maximum 600 dwellings over the site". This Recommendation was not approved by Councillors.
It must be noted that part of this expanded R4 zone is classified as flood prone land (Appendix 4) which we think should preclude this area from being included in the R4 zone. We certainly feel that there is a lack of transparency with the proposal around the multi-storey carpark that must be clarified before this proposal proceeds further.
9. Council's request is inconsistent with Ministerial Directions regarding Site Specific Provisions
The objective of Ministerial Direction 6.3 with regard to Site Specific Provisions "is to discourage unnecessarily restrictive site specific planning controls". The relevant planning authority must either:
4)(a) allow that land use to be carried out in the zone the land is situated on, or
(b) rezone the site to an existing zone already applying in the environmental planning instrument that allows that land use without imposing any development standards or requirements in addition to those already contained in that zone, or
(c) allow that land use on the relevant land without imposing any development standards or requirements in addition to those already contained in the principal environmental planning instrument being amended.
5) A planning proposal must not contain or refer to drawings that show details of the development proposal.
However, as page 111 of the 25th September 2018 Council Report states, the intention is for "Inclusion of a mechanism to facilitate small lot housing through a site specific local provision". The section continues "Potential wording for a new local provision including a mechanism to achieve the proposed small lots is discussed..." It is therefore clear that the small lot and micro-lot housing, is intended to be a site specific provision. It should be noted that page 103 refers to "a site specific mechanism to facilitate small lot housing on lots as small as 86m²".
Additionally, the Environmental Planning and Assessment Act definition of "development standards" is as follows:
"development standards means provisions of an environmental planning instrument or the regulations in relation to the carrying out of development, being provisions by or under which requirements are specified or standards are fixed in respect of any aspect of that development, including, but without limiting the generality of the foregoing, requirements or standards in respect of:
(a) the area, shape or frontage of any land, the dimensions of any land, buildings or works, or the distance of any land, building or work from any specified point,
(b) the proportion or percentage of the area of a site which a building or work may occupy,
(c) the character, location, siting, bulk, scale, shape, size, height, density, design or external appearance of a building or work,
(d) the cubic content or floor space of a building,
(e) the intensity or density of the use of any land, building or work,
(f) the provision of public access, open space, landscaped space, tree planting or other treatment for the conservation, protection or enhancement of the environment,
(g) the provision of facilities for the standing, movement, parking, servicing, manoeuvring, loading or unloading of vehicles,
Council is proposing that all of the above highlighted development standards are to be imposed on this development, which we believe is inconsistent with Ministerial Direction 6.3 (4) (b). Additionally there are no less than four (4) drawings contained within the Draft DCP which we believe are inconsistent with Ministerial Direction 6.3 (5). We believe that Council should abide by the Gateway Alteration to have no Site Specific Provisions other than the 600 dwelling cap that is approved in the Gateway Alteration dated 13th June 2017. We raise the question of whether the requirement in the draft DCP that "The land is to be owned and developed by a single entity" should be supported.
10. Including site specific micro-lots within the first development to proceed within the Cherrybrook Planning Precinct would set a terrible precedent.
The proposed micro-lots would "facilitate a new type of housing product in the Shire", on 86m² lots, as stated in Council's Report. This is the equivalent of 8 dwellings and 8 garages on the 700m² zoned block. The Mirvac development would be the first development to be approved and built in the Cherrybrook Planning Precinct. If a Site Specific Provision is permitted for Mirvac which would allow this new type of housing product in the Planning Precinct, Council could not in all fairness object to other developers within the Precinct being afforded the same opportunity that Mirvac is being provided. A Site Specific Provision that would allow the first development within the Precinct to include these Mirvac micro-lots would, we believe, have dire consequences for the future development and character of the Cherrybrook Planning Precinct.
In conclusion, we the undersigned residents' community groups, object to The Hills Shire Council's latest request as we firmly believe that:
There must be no Site Specific Provisions other than the 600 dwelling cap
The amended planning proposal must be transparent in substance and extent
Contributions to State public infrastructure should be provided
Community facilities must be provided as promised
Updated supporting studies must be provided
A legally binding contract to protect the Critically Endangered Ecological Communities must be entered into prior to any further progress of this proposal to ensure their conservation
The Darling Mills Creek tributaries must be protected and conserved
Synthetic products should not be used for the playing fields
Approval of the site specific Mirvac micro-lots would set a terrible precedent for the Cherrybrook Planning Precinct
We reiterate that we consider Council's request for the Department to "endorse an alternate approach" is not only inconsistent with the Gateway Determination but that the Department of Planning and Environment's Gateway Determination and subsequent Alteration of Gateway Determination are more appropriate approaches to this development proposal.
Taking into consideration all of the above we the undersigned residents' community groups, respectfully but strongly urge that the Department of Planning and Environment refuse The Hills Shire Council's request to endorse an "alternative approach" to the current Gateway Determination to include a Site Specific Provision and ensure that all of the requirements of the Gateway Determination dated 31st October 2017 and the Gateway Alteration dated 13th June 2018 are met by the proponent and Hills Shire Council.