Construction DAs

A total of 744 submissions objecting to the DAs were received prior to the planning panel meeting on 27th October.  At the meeting, 6 community groups and 17 individuals raised further objections to the DAs.

Prior to the meeting, we emailed all of the Hills Shire Councillors asking for their support.  We only received one reply and that was from a north ward councillor.  Our Deputy-Mayor addressed the panel, but did not raise any personal objections to the DAs.  It was very disappointing that none of our east ward councillors addressed the meeting, even though they claim not to support any increased height limits at this site.

Many powerful arguments for rejecting the DAs in their current form were put forward to the panel, but apart from some minor amendments to the conditions of approval, the objections of local residents were completely ignored. 

This decision is devastating news for our Valley.  More than 3,000 trees in total will be removed from the site, resulting in a huge loss of canopy and wildlife habitat, and the 8-storey tower blocks will set a precedent for future development in the Cherrybrook Station Precinct.  We are alarmed that our Council considered the Department of Planning’s height limits to be ‘unnecessary and unreasonable.’  We have lost confidence in our representatives and can no longer trust them to respect the 5-storey maximum height limit proposed by NSW state government for the Cherrybrook Station Precinct.  For this reason, we are withdrawing our support for the precinct plan.

You can read the planning panel determinations by clicking on the following links.

Determination for the Overall Concept Plan

Determination for  four 8-storey tower blocks

Determination for the Southern Housing

We are very grateful for the continued support of so many of our local residents and also thank the many local community groups and wildlife carers for their support and advice. We may have lost this battle, but we will continue to fight against inappropriate development in our Valley and strive to obtain the best possible outcomes for Valley residents.

2022-10 Submission from The Committee, West Pennant Hills Valley Progress Association

Draft Voluntary Planning Agreement for Dedication of Forest, 55 Coonara Ave, West Pennant Hills

·        The Deed must dedicate the land to Forestry Corporation NSW, not the Minister administering the Environmental Planning and Assessment Act 1979.

We have always been told by Mirvac that the land will be dedicated to Forestry Corporation NSW (FCNSW) and become an extension to the Cumberland State Forest, but the draft deed does not mention dedication to FCNSW. 

It is clear there is some confusion and/or misinformation. 

An update from Mirvac to the Community Reference Group on 21st October 2022 stated ‘Today Mirvac received approval on our subdivision DA, which means we are another step closer to dedication of the forest to Forestry Corporation of NSW.’ 

And a similar communication from Hills Shire Council dated 26th October 2022, advising us about the Planning Panel decision, describes the development as ‘Facilitating subdivision creating three residue lots including no physical works to separate land intended to be dedicated to Forestry Corporation of NSW from land intended to be developed subject to a separate concept master plan

proposed under DA 860/2022/JP’

It is not just residents that believe the land is going to be dedicated to FCNSW, it appears that Hills Council and Mirvac’s own PR team also think that is the case. The land must be dedicated to FCNSW as promised by Mirvac.

·        There must be no variation to the boundary of the Forest Dedication Land after it has been identified by survey.

The Forest Dedication Land is defined in the Deed as follows:

 ‘Forest Dedication Land means (unless otherwise agreed in writing by the Minister) an area of a minimum of 10.27ha of the Land shown as Areas 2, 3 and 4 on the Forest Dedication Plan subject only to cadastral survey of the boundary which shall not result in the area differing by more than 5%’

The words ‘(unless otherwise agreed by the Minister)’ must be deleted from the definition.

The only variation to the boundary must be the 5% following cadastral survey referred to in the definition.  There must be no other variation to the boundary and Clause 3.9 ‘Variation to Boundary of Forest Dedication Land ‘must be deleted.

·        There are inconsistencies between Schedule 4 and Schedule 9

Background information contained in Schedule 9 states ‘The Permittee has transferred the Forest Dedication Land to the State of NSW and it has been dedicated as a State forest in accordance with the Forestry Act 2012.‘

and includes the following definition.

‘Forest Dedication Land means the land identified as ‘Forest Dedication Land’ under the Planning Agreement that has been dedicated to the FCNSW in accordance with schedule 4 of the Planning Agreement.’

This is inconsistent with the current draft because Schedule 4 does not contain dedication of the land to FCNSW.  Schedule 4 must be amended to dedicate the land to FCNSW

·        Access to Forest Dedication Land before and after transfer should be restricted.

The words ‘but not limited to‘ must be removed from clause 3.8 (b)

2022-10 Further Additional Submission

from The Committee, West Pennant Hills Valley Progress Association Inc.

Southern Housing, Concept & Apartment Precinct DAs – 55 Coonara Avenue, West Pennant Hills,

ref. 859/2022/JP, 860/2022/JP & 861/2022/JP

This is an additional submission to the 2022-02, 2022-03, 2022-06, 2022-07 and 2022-08 submissions already lodged.  This submission is written in response to the revised Arboricultural Impact Assessment (AIA) dated 12th September 2022.

1.  Introduction

The revised AIA has an additional table showing the impact assessment of trees to be retained along the interface of the proposed works.  Of the 306 trees listed, 170, or more than 55%, have works within the Tree Protection Zone (TPZ), yet all of these works are said to have ‘ No significant impact’.

It seems optimistic in the extreme to predict ‘No significant impact’ on all of the trees along the interface of the proposed development.  Digging trenches through tree roots, laying footpaths, and refurbishing a road with hot asphalt poured over tree roots seems highly unlikely to result in ‘no significant impact’.

2.  Analysis of Stated TPZ Encroachment

a) Major encroachment on TPZ areas (>10%)

A total of 6 trees have been identified as having an encroachment on the TPZ of more than 10%. 

For example, trees numbered 354 and 355, with TPZ radii of 4.0m and 3.7m respectively, will have a new pedestrian footpath constructed within 0.5m of each tree. 

The influence on all 6 trees with a TPZ encroachment of >10% is stated as ‘No significant impact’

b)     Minor encroachment on TPZ area (<10%)

There are 164 trees identified as having an encroachment on the TPZ of less than 10%.

For example:

                             i.          Tree number 876 with a TPZ radius of 4m, will have a drainage line within 1.3m of the tree.

                           ii.          Tree number 840 with a TPZ radius of 5.4m, will have a drainage line within 2.3m of the tree

                          iii.          Tree number 1412 with a TPZ radius of 8.4m will have road refurbishment within 3.4m and a drainage line within 3.7m of the tree.

The TPZ encroachment for these examples and many more similar ones is said to be less than 5%, which seems to give an optimistic impression. 

The influence on all 164 trees identified as having a TPZ encroachment of <10% is stated as ‘No significant impact’

It seems highly unlikely that there will be ‘No significant impact’ on all of these trees

3.      Conclusion

The DAs should not be approved because, in addition to 1,877 trees proposed for removal, there may be a significant impact on a further 170 trees along the interface of proposed works associated with the Concept Plan, Civil Works and Bushfire Asset Protection. 

The report states that ‘….in many circumstances, the calculated extent of TPZ’s may or may not reflect the actual extent of tree roots or canopy….’.

Therefore, we request that Council’s own experts verify the expected impact on these 170 trees, many of which are mature BGHF and STIF species with a high landscape value.  We also request that any work stated to be carried out ‘under arboricultural supervision’ should require a qualified arborist to be present on site at the time the work is carried out.

2022-08 Further Additional Submission

from The Committee, West Pennant Hills Valley Progress Association Inc.

Southern Housing, Concept & Apartment Precinct DAs – 55 Coonara Avenue, West Pennant Hills,

ref. 859/2022/JP, 860/2022/JP & 861/2022/JP

This is an additional submission to the 2022-02, 2022-03, 2022-06 and 2022-07 submissions already lodged. 

This submission is written in response to the release of the draft Cherrybrook Station Precinct Place Strategy.

The DAs should not be approved because they are inconsistent with the new Cherrybrook Station Precinct Place Strategy in the following ways:

1.      The proposal for 8-Storey tower blocks is excessive

2.      Existing vegetation is not being retained where possible.

1.      The proposal for 8-storey tower blocks is excessive

Development within the Cherrybrook Precinct is to be limited to a maximum of 5 storeys.  On the southern side of Castle Hill Road, this equates to a height limit of 18.5metres. 

The land at 55 Coonara Avenue is part of the precinct, but has already been rezoned with a maximum height of 22m.  When the land was rezoned, the proposal was for 6-storey towers only. 

This site already has a very generous height limit compared to the rest of the precinct, and DAs for this site should respect this height limit as a maximum.  The applicant’s proposal for 8-storey tower blocks would require a further 5m, making a height of 27m in total.  This height variation is completely unacceptable, particularly in view of the height limits to be imposed on the wider precinct. The apartments on this site will already be taller than those allowed in the wider precinct, without an additional height variation. The applicant must be required to reduce the number of storeys and treat the 22m height limit as a maximum. 

Approval of a huge height variation at this site would set a precedent for every other developer within the Cherrybrook Precinct.  There is no valid reason why this applicant should receive favourable treatment.  Therefore, the applicant’s request for a clause 4.6 height variation should be refused.

2.      Existing vegetation is not being retained where possible.

The rezoning proposal for the Landcom site states that ‘No native vegetation or habitat is to be removed as a result of the rezoning of the development site, and this assessment was undertaken under the assumption that no native vegetation will be removed as the result of the future proposed development within the subject land.’

Environmental policy for the wider Cherrybrook Precinct proposes ‘….to retain and protect significant vegetation within development sites and proposed open space areas’.  The landscape controls state ‘.…all trees, on public and private land, are important and should be protected where possible’.

The DAs for 55 Coonara Ave are completely inconsistent with these policies.  The applicant is proposing to remove an additional 1,877 trees, on top of the 1,253 already approved for demolition.  Hundreds of these trees are significant native species which are simply being removed due to a change in soil level.  Trees are even being removed from proposed open spaces.  If the applicant receives approval to clear-fell most of the developable area, it will set a precedent for other development in the Cherrybrook Precinct. The clear-felling of most of the developable area should not be approved.

The proposed development at 55 Coonara Avenue does not support the vision for Cherrybrook Precinct, and the current DAs should not be approved.

2022-08 Submission

from The Committee, West Pennant Hills Valley Progress Association

Draft VPA between Mirvac and Hills Shire Council for 55 Coonara Ave

The draft VPA should not be adopted in its current form because operation of the VPA depends on 417 dwellings being approved.

·        The terms ‘Development Application’ and ‘Proposed Development’ are both defined terms which include reference to 417 dwellings.  Clause 5.1 of the Agreement appears to bind Council to either recommend approval of at least that number of dwellings, or else not receive the payment. 

·        Even if Council recommends approval of 417 dwellings, the final decision will be taken by the Sydney Central City Planning Panel.  If the Panel approves less than 417 dwellings, it appears that Council would not receive any money from the Agreement.

·        The DAs currently being assessed will only allow 417 dwellings if approval is granted for height exceedances to build 8-story tower blocks. 

o   We have received new information since this agreement was drafted.  The draft plan for the Cherrybrook Precinct generally limits building heights to a maximum of 5 storeys, on land within 400 metres of the metro station. 

o   The site at 55 Coonara Ave is part of the wider precinct and is stated to be 860 metres from the station.  The site has already been rezoned with a height limit of 22 metres (more than the 20.5 metres maximum proposed for the precinct)

o   Approval of the 417 dwellings proposed in the current DAs requires height exceedances of more than 5 metres.  Any such approval would be completely inconsistent with the limit of 5 storeys proposed under draft plans for the wider Cherrybrook Precinct. 

o   In its current form, the VPA appears to provide Council with a financial incentive to recommend approval of 8-storey tower blocks.  It is difficult to see that this would be in the public interest.

·        This type of agreement would normally be adopted at the rezoning stage when the number of proposed dwellings is not known.  It does not appear to be in the public interest to limit this agreement to the approval of 417 dwellings.

The draft VPA should not be adopted in its current form.

2022-07 Further Additional Submission

from The Committee, West Pennant Hills Valley Progress Association Inc.

Southern Housing, Concept & Apartment Precinct DAs – 55 Coonara Avenue, West Pennant Hills,

ref. 859/2022/JP, 860/2022/JP & 861/2022/JP

This is an additional submission to the 2022-02, 2022-03 & 2022-06 submissions already lodged.  Our objections to the original DAs also apply to the amended DAs.

This submission is written in response to the amended DAs on public exhibition until 19th July 2022

The DAs should not be approved because:

1.  The amended Arboricultural Impact Assessment (new AIA) appears to be incomplete and inaccurate,

2.  The applicant is seeking to remove an additional 68 trees, but has not provided details, and the reason given for the removal of these additional 68 trees appears to be misleading,

3.  The amended DAs do not show any attempt by the applicant to comply with Council’s DCP.  Removal of 1,877 trees is inconsistent with Council’s DCP which requires a developer to retain as many trees as possible.

1.  The amended Arboricultural Impact Assessment (new AIA) appears to be incomplete and inaccurate,

a)  The AIA lodged in November 2021 (old AIA) was incomplete.  The applicant proposed removal of 1,809 trees, but the old AIA only listed details of 1,278 trees.  The old AIA contained an analysis of the 1,809 trees by Safe Useful Life Expectancy (SULE) and Environmental /Landscape Significance.  This analysis could not have been made unless the applicant had a full list of the 1,809 trees proposed for removal.

b) The applicant is now proposing removal of 1,877 trees.  Some omissions in the old AIA have been corrected, but the new AIA still only gives details of 1,347 trees proposed for removal.  The new AIA shows an amended analysis of the full 1,877 trees proposed for removal, suggesting once again that the applicant has a complete list of trees, but that list has not been made available.

The applicant is proposing to remove 530 trees, or more than 28%, without providing details of the species, size and reason for removal.  The vast majority of trees on this site are protected species, and cannot be removed without a valid reason. 

Why have 530 trees been left off the list?  Council should be asking the following questions:

a)  Has the applicant already removed them?

b) Have 530 trees been left off the list because there are no valid reasons for their removal?

c)  Is it just inaccurate reporting?

d) How many of these 530 trees are mature BGHF and STIF species?

Council cannot consider these DA’s properly unless and until the applicant provides a complete list of all 1,877 trees proposed for removal – giving reasons for every tree.

2.  The applicant is seeking to remove an additional 68 trees, but has not provided details, and the reason given for the removal of these additional 68 trees appears to be inaccurate and potentially misleading,

The amended Statement of Environmental Effects states that:

 ‘….the amended DA results in a minor increase in the trees to be removed (68)…. This is largely a result of the change to Superlot 1 and Road 2 arrangement, which has been implemented in regard to matters relating to Powerful Owl sightings within the vicinity of this area. While the overall development footprint has been reduced, areas that were exclusively APZ have now been consolidated with the new concept masterplan Superlot 1 and Road 2 arrangement resulting in additional tree removal, as opposed to select tree removal to create the APZ.’

Tree removal related to the amended Superlot 1 and Road 2 arrangement is shown on sheets 3 and 4 of the new AIA maps.  We have compared sheets 3 and 4 of the new AIA map with sheets 3 and 4 of the old AIA map.  Although the trees listed for removal differ between the old and new AIAs, there is no net increase in the total number being removed in this area.  (We are happy to provide Council with our detailed analysis on request.)

It would be unfortunate in the extreme if the sightings of Powerful Owls led to further reduction in the number of trees available for native birdlife, but based on the applicant’s own evidence, the proposed removal of 68 additional trees has nothing to do with protecting the Powerful Owl habitat.  The applicant appears to have drawn the wrong conclusions when trying to justify the removal of an additional 68 trees.  Blaming the Powerful Owl may deflect Council’s attention from the real reason that these extra trees are being removed. 

If an additional 68 trees are to be removed, then Council should be told where they are located and given valid reasons for their removal.

3.  The amended DAs do not show any serious attempt by the applicant to comply with Council’s DCP.  Removal of 1,877 trees is inconsistent with Council’s DCP which requires a developer to retain as many trees as possible.

The applicant has amended the DAs but has missed the opportunity to demonstrate some respect for Council’s requirement to retain as many mature trees as possible. The amended AIA shows that a significant number of the trees proposed and listed for removal are mature BGHF and STIF species, many of which are being removed simply because the applicant wishes to change the soil level.  There are also a further 530 trees for which we have no details at all.

Conclusion

The DAs cannot be assessed until the applicant provides a complete list of trees proposed for removal.  The new AIA list only gives details of less than 72% of the trees proposed for removal.  Items 1 and 2 above appear to demonstrate that the applicant has failed to accurately account for the trees on this environmentally sensitive site. 

Unless accurate documentation is provided with these DAs, it will be impossible for Council to properly consider the case for removing so many trees, or to ensure that the applicant is abiding by any conditions of consent in the event that these DAs are approved.

Our analysis, based on the applicant’s own evidence, shows that the proposed removal of an additional 68 trees has nothing to do with protecting the Powerful Owl, and does not relate to the area stated. These potentially misleading statements should be removed from the DAs. The applicant must provide a valid reason for the removal of an additional 68 trees, and give their location.

The applicant must reduce the cut and fill proposed for this site in order to comply with Council’s DCP which requires retention of as many mature trees as possible.

Our association, members and residents have a strong and continuing interest in reducing the killing of trees on this site.

2022-06 Further Additional Submission

from The Committee, West Pennant Hills Valley Progress Association Inc.

Southern Housing, Concept & Apartment Precinct DAs – 55 Coonara Avenue, West Pennant Hills,

ref. 859/2022/JP, 860/2022/JP & 861/2022/JP

This is an additional submission to the 2022-02 & 2022-03 submissions already lodged. 

It is written in response to the ‘Urban Design Tree Retention Report’ made available on Council’s website on 21st April 2022.

That report has been provided in support of the three DA’s mentioned above, and we therefore consider it should be focused on the retention of trees in the developable footprint. 

However, the ‘Urban Design Tree Retention Report’ does not propose any strategy for the retention of trees in the developable footprint.  The report is effectively a tree removal report, and does nothing to support the approval of the three DA’s.

1.  The Urban Design Tree Retention Report should be focused on the retention of trees in the developable footprint, but instead ‘….the tree retention strategy is focused around the existing high valued ecology within the E2 Environmental Zone.’  Retaining trees in the E2 zone is not a strategy put forward by the applicant, it is a condition of the rezoning.    The requirement to retain the protected trees in the E2 zone is not relevant when considering the DAs for the developable footprint.

2.  It is a condition of the Hills DCP that as many trees as possible are retained in the developable footprint.  Although the report states that ‘Mirvac is committed to preserving trees within the developable footprint where possible’, there follows a long list of reasons as to why the applicant thinks tree retention is not possible.  Many of these reasons are not valid.  For instance:

a.  It is stated that the trees in the developable footprint ‘include species outside the local ecological range’, but this does not justify their removal.  The examples given of Swamp Oak and Lemon Scented Gum are not listed as exempt from protection by the Hills Shire Council, and cannot be removed simply because they are out of area.  The applicant appears to be concerned about the effect of such species on the remnant forest, yet in its own landscaping plans, proposes to replant with species that are also not included in the BGHF and STIF species list.

b.  We accept that some trees in the developable footprint are of low landscape value due to being constrained in the existing traffic islands, but the report fails to mention that there are also many trees with a high to very high landscape value and a long safe useful life expectancy (SULE) (refer to AIA report).  The applicant should not be clearing all of the trees, simply because some of them have a low SULE value.

c.  Changes in soil levels are given as another reason for removing trees, but since there is both fill and excavation, it would seem reasonable to assume that some of the trees are in areas where the soil level is not changing.  This is not acknowledged in the report.  As referred to in our submission 2022-03, the applicant has chosen an overall design that requires these changes in soil level.  This chosen design is inconsistent with the Hills DCP.

In summary, the ‘Urban Design Tree Retention Report’ fails to show that the applicant has taken any steps to retain trees in the developable footprint. It therefore fails to support approval of the 3 DA’s. Removing all the trees will make it easier to develop the land, but it is inconsistent with the Hills DCP and should not be approved. 

We hope you will take this additional submission into account when assessing the 3 DAs.

2022-04 Submission from The Committee, West Pennant Hills Valley Progress Association Inc.

Subdivision to create 5 separate lots – 55 Coonara Avenue, West Pennant Hills,

ref. 1414/2022/ZB

 We support subdivision of the land in order to separate lots that are intended to be dedicated to NSW Forestry, from lots which are intended to be developed.  However, we do not support including the lower dam in the proposed Lot 5 which is intended for development.

The upper dam appears to be included in the proposed Lot 3 which is intended for dedication to NSW Forestry, but the lower dam appears to have been included in the proposed Lot 5 which is intended for development.  We suggest that the lower dam should also be dedicated to NSW Forestry.  To facilitate this, an additional proposed Lot 6 should be created which contains the lower dam.  Lot 6 should then be dedicated to NSW Forestry in addition to Lots 2, 3 and 4.  The lower dam is already accessible from Cumberland State Forest via a footpath which has been used by the public for many years.

In summary, we recommend creating an additional Lot 6 which contains the lower dam, with the intention of dedicating this new lot to Forestry NSW, creating an additional amenity for the public.

The council report included a letter from Mirvac suggesting that the money raised by the VPA could be used to 'upgrade' one of the fields at George Thornton Reserve to plastic grass.  WPHVPA wrote to all councillors suggesting that the terms of the VPA were unfavourable and that any money raised should not be used for plastic grass, and also spoke against it at the meeting.

Council voted to accept the VPA subject to a legal review and then place it on public exhibition for 30 days.

Click on the link to read our Notes on the draft VPA

2022-03 Additional Submission from The Committee, West Pennant Hills Valley Progress Association Inc.

Southern Housing, Concept & Apartment Precinct DAs – 55 Coonara Avenue, West Pennant Hills,

ref. 859/2022/JP, 860/2022/JP & 861/2022/JP

This is an additional submission to the 2022-02 Submission already lodged.

The 3 DAs should not be approved for the following additional reasons.

1.  The clear fell approach of removing 1809 trees does not comply with the Hills DCP.

2.  The information on tree removal is incomplete – the applicant has only provided details of 1,278 trees proposed for removal.

3.  The only reason for removal of 42% of the trees is due to soil level changes.

4.  The Site-Specific Guidelines proposed by Mirvac should not replace the Hills LEP 2019 controls and The Hills DCP for assessing future DAs.

5.  The site must continue to be protected from 10/50 clearing provisions after subdivision.

The applicant must:

·        take steps to minimise tree removal and retain as many mature trees as possible;

·        provide accurate and complete data on all trees proposed for removal before the DAs are assessed;

·        only propose removal for trees listed in AIA part 3;

·        minimise earthworks so that more trees can be retained, particularly near the site boundaries with The Glade and Coonara Ave; and

·        remove the document ‘Site Specific Guidelines’ from the application, or re-write it to include all controls imposed on this site by the Hills LEP and DCP.

Council must:

·        impose a Condition of Consent which overrides the 10/50 clearing provisions, and ensures trees and vegetation are protected on all future lots on this site.

1.  The clear fell approach of removing 1809 trees does not comply with the Hills DCP.

The applicant’s proposal to clear fell the development site is inconsistent with the Hills DCP for residential dwellings.  This states in part B that ‘Removal of existing trees should be minimised in any building proposal’ and an objective from part C is ‘To retain and protect as many mature trees as possible during development.’

The applicant has stated that ‘…..the requirement to provide suitable and safe road grades, useable gradients for future dwelling and publicly accessible open space amenity development necessitated the removal of all trees within the developable footprint.’  Whilst some parts of the site do have a steep gradient, the developable footprint is not steep, making this claim difficult to believe.

Removing all the trees will make it easier to develop the land, but it is inconsistent with the Hills DCP and should not be approved.  The applicant must take steps to minimise tree removal.

2.  The information on tree removal is incomplete – the applicant has only provided details of 1,278 trees proposed for removal.

a.  Sheets 11-37 of the Arboricultural Impact Assessment (AIA) Part 3, list details of trees to be removed for the concept development plan, civil works and bushfire APZ.  Although the applicant is proposing to remove 1,809 trees, there are only 1,278 trees in that list.  It is stated in AIA part 3 that some trees in the car park have been assessed in groups, but none of the trees in the list are identified as being in a group. Therefore, there are 531 trees, or more than 29%, of trees that are not listed and for which no valid reason for their removal has been provided.

The applicant must not be allowed to remove trees without a valid reason being given.  In the event that these DAs are approved, it must be a condition of consent that only the 1,278 trees listed in AIA part 3 are removed.

b.  The large-scale plans showing the locations of each tree and the tree reference number provided in ‘Detailed Tree Retention & Removal Plans Associated with the Concept Development Plan …’ show numerous trees marked in red for removal that are not on the AIA part 3 list.  There are also trees that are listed in AIA part 3, but are not shown on the plan.  This appears to show a very careless attitude towards the trees on this site.  Information from AIA part 1 shows that many of the trees with missing details are significant Sydney Blue Gums.

The applicant must supply accurate data on tree removal before any decision is made on these DAs.

3.  The only reason for removal of 42% of the trees is due to soil level changes.

Of the 1,278 trees listed for removal in AIA part 3, there are 537, or 42%, for which the only reason given for removal is:

 ‘Changes to soil levels are likely to involve fill and or excavation effecting [sic] a substantial portion of the tree’s root system.’   

The applicant has chosen an overall design that requires these changes in soil level, and it has resulted in 42% of the mature trees in the developable footprint being removed.

Applying this percentage to the 1,809 trees proposed for removal (instead of the 1,278 listed for removal) would suggest that a staggering 760 trees are being removed simply due to earthworks.  Of particular concern is the large number of trees being removed for this reason in the R3 area adjacent to The Glade.  Many of these have a high or very high landscape value.  There are also many trees being removed for this reason in the 11m setback from Coonara Ave, which is supposed to provide a treed buffer between the site and existing housing in Coonara Ave.

Changes in soil level are part of the applicant’s chosen design, which should be amended to minimise earthworks and preserve as many trees as possible, particularly near the site boundaries.

4.  The Site-Specific Guidelines proposed by the applicant should not replace the Hills LEP 2019 controls and The Hills DCP for assessing future DAs.

The document ’55 Coonara Avenue, West Pennant Hills, Site-Specific Design Guidelines’ has been prepared by the applicant to support the concept masterplan DA.  Two of the reasons given for providing this document are:

‘Communicate the planning, design and environmental objectives and controls against which the Consent Authority will assess the proposed concept DA and future subsequent detailed DAs on the site.’

and

‘Consolidate and simplify the planning controls for the subject site at 55 Coonara Avenue, West Pennant Hills’

It appears from the following statement that the applicant is trying to rewrite the planning controls for 55 Coonara Ave so that future DAs do not have to comply with all of the controls imposed by The Hills LEP and DCP.  ‘It is anticipated that consent for the concept approval will include a condition requiring all future detailed DAs to comply with the objectives and controls stipulated in the Guidelines.’

In particular, the applicant is trying to make it easier for height exceedances to be approved in future DAs by including a control that states:

 ‘Height articulation above the maximum building height standard may be permitted if the height:

a. Will cause minimal overshadowing to private open space of adjoining dwellings.

b. Is compatible with the height of adjoining dwellings.

c. Is designed in response to significant level change across the site.’

Future DAs include the housing along the boundary with Coonara Ave, which has a maximum height limit of 9m set by DPIE when the land was rezoned.

The current DA for the southern housing already proposes height exceedances, and, if these 3 DAs are approved, this control seeks to set a precedent.  We have already stated in our first submission dated 2022-02 that ‘In the event that they [the height exceedances] are approved, it must be a condition of approval that the decision is not used as a precedent in subsequent DAs, notably for the housing along the boundary with Coonara Ave.’  If future DAs for the housing include height exceedances, they must be justified in the normal way using a Clause 4.6 variation request.

The applicant must not be allowed to rewrite the planning controls for this site.  The Site-Specific Guideline document should be removed from this DA unless all controls from the Hills LEP and DCP are included.

5.  The site must continue to be protected from 10/50 clearing provisions after subdivision.

The entire site is currently a single lot which is protected from the 10/50 clearing rules   For there to be any value in the applicant’s proposed landscaping plans, this protection must be maintained for all lots, after the site has been subdivided.  Much of the proposed planting will be in close proximity to the houses and apartments and must be protected from future clearing.

Council must impose a Condition of Consent which overrides the 10/50 clearing provisions, and ensures trees and vegetation are protected on all future lots on this site..

We hope you will take this additional submission into account when assessing the 3 DAs.

2022-02 Submission from The Committee, West Pennant Hills Valley Progress Association Inc.

Southern Housing, Concept & Apartment Precinct DAs – 55 Coonara Avenue, West Pennant Hills,

ref. 859/2022/JP, 860/2022/JP & 861/2022/JP

The West Pennant Hills Valley Progress Association (WPHVPA) has been in existence for nearly 30 years and represents about 4,000 households and more than 10,000 residents. Our area is bounded by Castle Hill Rd in the north, Pennant Hills Rd in the east, the M2 & Darling Mills Creek in the south, and Excelsior Creek in the west.  The site at 55 Coonara Ave lies along the northern boundary of our area. We have received strong support from Valley residents for the views expressed in this submission.

The decision by NSW Department of Planning, Industry and Environment (DPIE) to rezone the site at 55 Coonara Ave, to allow residential development, was extremely unpopular with our residents.  However, we accept the decision made by DPIE and these 3 DAs would have received our broad support if they had complied with the rezoning conditions.  Instead, we are shocked and dismayed that Mirvac wants to build 8-storey tower blocks that exceed the height limit set by DPIE by up to 23%.  8-storey tower blocks have no place in our Valley and residents do not support these DAs.  These DAs should not be approved.

This submission discusses the following items:

A.  Apartment Precinct

B.  Concept Plan

C.  Southern Housing Precinct

D.  Environmental Issues

E.  General

A.     APARTMENT PRECINCT

The DAs should not be approved because:

1.      Hills Council has previously rejected plans for 8-Storey apartments on this site.  The Masterplan lodged with the rezoning proposal was for 2-6 storeys only

2.      The DAs do not comply with the Hills LEP 2019 clause 4.3

3.      The height variation request under clause 4.6 does not justify any exception to the building standards

4.      The DAs are inconsistent with the 2015 Hills Corridor Strategy and will set a precedent for other local development

5.      The DAs are inconsistent with parking provisions in the Hills DCP 2012

6.      The apartments do not comply with NCC fire regulations

1.      Hills Council has previously rejected plans for 8-Storey apartments on this site.  The Masterplan lodged with the rezoning proposal was for 2-6 storeys only.  

The indicative masterplan that was included with the rezoning proposal is referred to many times in the documents, mainly to demonstrate that the applicant has achieved a superior design outcome by ‘accepting’ a lower dwelling yield and reducing the number of apartment blocks.  The applicant fails to point out that this masterplan was for residential dwellings of 2-6 storeys only.  Earlier proposals for up to 8 storeys, were rejected by Council on several occasions for good reason.  The current proposal for 8 storeys must also be rejected.

2.      The DAs do not comply with the Hills LEP 2019 clause 4.3

a.      The maximum building height for the R4 zoned land is 22m.  These DAs do not comply and seek a height exceedance of 23%, simply in order to increase the apartment dwelling yield.

b.      The objective of clause 4.3(1)(a) is ‘to ensure the height of buildings is compatible with that of adjoining development and the overall streetscape.’  There are no other high-rise developments in West Pennant Hills and even the IBM buildings that are being replaced were limited to 22m maximum height.  8-storey towers are not compatible with adjoining development and the overall streetscape.

c.      The objective of clause 4.3(1)(b) is ‘to minimise the impact of overshadowing, visual impact and loss of privacy on adjoining properties and open space areas.’ 

                                                    i. The 8-storey tower blocks do overshadow adjacent properties and open space.  The overshadowing impact would be significantly reduced if the tower blocks were only 6 storeys.

                                                   ii. There are plans to build 3 storey houses between the apartments and the forest edge, on the remaining R4 zoned land.  This land slopes down from the apartments and there will be significant privacy issues for these houses being overlooked by residents up to 8 storeys above them.

                                                  iii. The building footprint is being clear-felled, with more than 3.000 trees being removed, and the visual impact of the 8-storey towers from all surrounding residences will be significant.  The tall replacement trees shown in the artist’s impressions will not reach the heights shown for many years.  There will also be a significant visual impact from the walking tracks in Cumberland State Forest, one of which runs alongside the edge of the site.  Views from this area were not considered in the documents.   Although the current IBM buildings are not visible from this track, those buildings had a height limit of 22m, and most of the trees that currently obscure the view will be removed.

3.      The height variation request under clause 4.6 does not justify any exception to the building standards

a.      Clause 4.6(3)(a) states that the applicant must demonstrate ‘….that compliance with the development standard is unreasonable or unnecessary’.  The height variation request for apartments does not comply with this clause and many of the statements made by the applicant appear to be misleading or deceptive.  For instance:

                                                    i. It is stated that ‘The height contraventions proposed primarily result from….’ reasons such as ‘The challenges of working with the existing site levels which were highly modified in the 1980’s….’ and ‘….working with fixed points and constraints throughout the overall site…..’ This is simply not credible.  It is clear that the height contraventions primarily result from the proposal to build 8 storeys instead of the previously agreed 6 storeys.  A 6-storey block would not exceed the maximum height of 22m, regardless of existing site constraints and topography.  The 22m limit is a maximum and not a minimum height constraint.  If the site is not level, some parts of the apartment blocks will need to be below 22m.

                                                   ii. Fig 15 attempts to demonstrate that the applicant could have increased the dwelling yield on the R4 land by replacing the 3 storey houses with a 9-storey apartment block, which is clearly not permitted under the 22m height rule.  Also, the 9-storey block would require a larger APZ that encroaches on the E2 land, and that is not permitted either.  DPIE amended the LEP to ‘ensure asset protection zones (APZs) do not require clearing or management of critically endangered ecological communities’.  The suggested alternative buildings would not comply with the LEP.

                                                 iii. It is stated that the ‘LSPS identifies the need for 400 apartments to be provided within the Cherrybrook precinct to 2036. The proposal will contribute to achieving this target by providing 252 apartments.’  The LSPS merely states there is ‘capacity’ for 400 apartments, it does not state there is a ‘need’.   There is developable land much nearer to Cherrybrook Station that has capacity for a large number of apartments.

The development standards for this site are both reasonable and necessary.

b.      Clause 4.6 (4) (a)(i) states that approval cannot be granted unless ‘….the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3)’, The applicants request has not demonstrated that compliance is unreasonable or unnecessary.  However, it would be very easy to comply with the LEP if 2 storeys were removed from the tower blocks.

c.      Clause 4.6(4)(a)(ii)   states that the consent authority must be satisfied that  ‘….the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out’  The proposed height exceedances are not in the public interest and there is no demonstrated  ‘need’ for the additional apartments provided.  The site is adjacent to the Cherrybrook Station Precinct and development in this zone is addressed in the Hills Corridor Strategy.  The tower blocks must be reduced to 6 storeys so that heights are not greater than those proposed in the corridor strategy (refer to point 4. below).

The applicant has tried to demonstrate that the apartment height exceedances provide a better outcome than other designs, and that dwelling yield has been ‘foregone ‘for the sake of a superior design.  This is barely credible because it appears that unless the average apartment size is reduced, there are no other ways of increasing the apartment yield that would comply with the Hills LEP.

4.      The DAs are inconsistent with the 2015 Hills Corridor Strategy and will set a precedent for other local developments

8-storey apartments on this site are inconsistent with the Hills Shire Council Corridor Strategy which addresses development at the seven Metro stations. This strategy considers 3 to 6 storey development appropriate for the Cherrybrook Station Precinct, with a maximum of 8 storeys immediately adjacent to the station, but reducing in height with increased distance from the station. 

Although part of this site is within an 800m radius of the metro station, walking distance from the apartment precinct is well over 1km.  8-storey tower blocks on this site are inconsistent with the strategy, and would set a precedent for other developments in the area.  There are several development sites much nearer to the station, where developers will expect height limits greater than those allowed at 55 Coonara Ave.

5.      The DAs are inconsistent with parking provisions in the Hills DCP 2012 

The Hills DCP requires parking rates of 1 space for a 1-bedroomed apartment, 2 spaces for larger apartments plus 2 visitor spaces for every 5 apartments.  This would total 567 spaces.  The applicant has chosen a much lower rate, more in line with ADG guidelines, and is proposing a total of only 464 spaces.  The argument that ‘These rates have been developed having regard to the fact the site lies within the 800m catchment of the Cherrybrook Metro Station’ is an exaggeration.  Some parts of the site are within an 800m radius of the station, but the apartment precinct is well over 1km walking distance from the station.  This is a family friendly development, but there are no public schools within walking distance. Reduced parking for residents and visitors will lead to overflow parking on nearby residential streets and in the carpark of the local shops.  

The applicant has been unable to provide adequate basement parking for 8-storey tower blocks.  Reducing the number of storeys will solve this problem.

6.      The apartments do not comply with BCA (NCC) fire regulations

For the purpose of assessing against BCA fire safety regulations, the 4 blocks have to be treated as one building, because the underground carpark is shared and there are no fire walls/doors in the carpark between the 4 blocks.  The effective height of the building is from the Loading Dock in building D to the floor of the top occupied storey in building A,  i.e. 32.9m.  Buildings over 25m, have additional fire regulations and the plans for the apartments do not comply in many important areas.

It is stated in the BCA assessment that ‘the building is to be performance justified being assessed as a building below 25m in effective height and address the following issues:

- parts of the building do not have access to two exits from each storey

- travel distances from residential units exceed 6m to an exit, it is proposed to incorporate concessions available under Spec E1.5a

- the building will not contain a fire control centre

- the building will not be provided with stair pressurisation to fire isolated exits

- an emergency lift is not included in the building

- emergency warning and intercom systems are not included in the building’

The decision to assess the building as being below 25m is flawed because none of the 4 individual blocks have an effective height below 25m.   These apartments are being proposed for a bushfire prone site and have high Bushfire Attack Levels (BAL) of up to BAL 29.  The applicant should be complying with all of the BCA fire regulations.  Items such as providing 2 exits from each storey and an emergency lift, will lead to significant design alterations and should not be left until the compliance certificate stage.

If the tower blocks are reduced by 2 storeys, all of the buildings will have an effective height below 25m and the performance solution would be more acceptable.

B.     CONCEPT PLAN

The height exceedances should not be approved simply to increase the total dwelling yield

The concept plan is for a total of 418 dwellings. Although it is not acknowledged in the documents, we believe that the reduction from the originally proposed 600 dwellings for this site is because:

a.      When the site was rezoned, DPIE reduced the areas to be zoned residential.  DPIE ‘…contracted the urban zone in four places to ensure that an APZ (bushfire Asset Protection Zone) does not encroach upon any Critically Endangered Ecological Communities’.

b.      Many of the apartments are larger than originally proposed, including some 4-bedroom units, hence there are fewer apartments for the same total floor area. 

c.      Many of the houses are larger than originally proposed, up to 5 bedrooms, and the minimum block size has been increased to 150sqm, meaning there are fewer individual blocks.

It appears that 600 larger dwellings simply do not fit into the reduced developable area. It also appears that even 418 dwellings do not fit without significant height breaches for the apartment blocks.

The applicant has made a commercial decision to build larger dwellings and that has resulted in a reduction in dwelling yield.  The applicant is now proposing to breach the apartment height limits by up to 23% in order to mitigate some of that lost yield.  This request is completely unacceptable to local residents.  If DPIE had intended the reduced dwelling yield (resulting from a reduction in the urban zone), to be mitigated by increased heights, it would not have maintained the 22m maximum height limit for this site.  The applicant should respect the height limit set by DPIE and reduce the number of storeys from 8 to 6.

C.     SOUTHERN HOUSING COMPOUND

Some of the Height Exceedances for the Southern Housing should not be approved

38 of the 61 dwellings exceed the maximum height limits of 12m and 9m when measured from the existing ground level.  Under the DCP, height limits are determined from the existing ground level.  The height variation request for the southern housing argues that it is more reasonable to consider height exceedances from the finished ground level.  If this argument is accepted, there would only be 6 houses that are non-complying.  These 6 houses are all in the 9m height zone which has been deliberately set to allow transition to neighbouring properties.  These 6 height exceedances should not be approved.  In the event that they are approved, it must be a condition of approval that the decision is not used as a precedent in subsequent DAs, notably for the housing along the boundary with Coonara Ave.

D.     ENVIRONMENTAL ISSUES

The removal of 3000 trees will change the micro-climate on site.

a.      The applicant must ensure that all possible steps are taken to avoid creating an urban heat island.

                                                    i. We welcome the proposal to replant a large number of trees, but many of them will be within 5m of an approved structure, meaning residents will not need approval to remove them.  There must be a by-law for this development to protect all the trees, regardless of their proximity to approved structures.

                                                   ii. Light colour roofs must be adopted to reduce urban temperatures

                                                  iii. The tower blocks must have green roofs, which will have a cooling effect on the solar pv panels and improve their performance.

b.      Replacement trees and shrubs must be Blue Gum High Forest or Sydney Turpentine Ironbark species to avoid other species seeding into the forest.  Preference should be given to species that can survive the higher temperatures caused by site clearance and future global warming.

E.      GENERAL

A note on the number of storeys

Throughout this submission, we have described the proposed tower blocks as having 8 storeys because there are habitable units on only 8 levels.  Close inspection of the document referred to as ‘Notification Plans’, reveals that that the tower blocks could be defined as 9 storeys under the building code (see diagram on page 20).  A section of one of the parking levels at the lowest point of the building appears to be more than 1 meter above ground, and, therefore, counts as a storey.  We prefer to accept the 8-storey description consistent with the applicant’s documentation, and when we request that the building height is reduced by 2 storeys, we mean reduced by 2 habitable storeys.

• When DPIE rezoned the land, the proposed building envelope was reduced in size

• DPIE contracted the urban zone in four places to ensure that an APZ (Asset Protection Zone) does not encroach upon any Critically Endangered Ecological Communities. 

• Due to the above restriction on the APZ, part of the high-density R4 area, between the proposed apartments and the forest, has to be used for medium density housing instead of units.   Mirvac explains it as follows: ’ by replacing a significant area of R4 High Density zoned land with lower scale two and three storey housing……. A material amount of development yield has been forgone to seek to deliver a superior design outcome…….’, but it appears that you can’t build high-rise so near to the forest without the APZ encroaching on E2 land, so they probably had no choice.

• Many of the apartments are larger than originally proposed, including some 4-bedroom units, hence there are fewer apartments for the same total floor area. 

• Many of the houses are larger than originally proposed, up to 5 bedrooms, and Mirvac has increased the minimum block size to 150sqm.  Therefore, there are fewer individual blocks.

• It appears that 600 larger dwellings simply don’t fit into the developable area. It also appears that even 418 dwellings don’t fit without significant height breaches for the apartment blocks.

Click on the link to see a detailed map of the overall concept plan.

All four of the 8-storey apartment buildings exceed the maximum height limit of 22m, set by DPIE for this site:
Building A is 26.4m (4.4m over limit)
Building B is 27.1m (5.1m over limit)
Building C is 24.9m (2.9m over limit)
Building D is 26.6m (4.6m over limit)
Mirvac describes these as 'minor height contraventions' even though the extent is up to 23%!

38 of the 61 houses in the southern housing precinct exceed the maximum height of 12m, or 9m along the boundary with Coonara Ave.  Maximum height is measured from 'existing ground level', but even if was measured from 'finished ground level' after completion of cut and fill earthworks, 6 of the  houses  in  the 9m maximum height zone would still exceed the limit.   Clink on the link to see the southern housing height exceedances for these 6 houses..

820 of the 1809 trees proposed for removal in these DAs trees are medium, high or very high landscape value with a further 40+ years lifespan

At least 26 are in the E2 zone which contains Critically Endangered Ecological Communities

A significant number, including those in the E2 zone, are being removed because excavation and the cut and fill earthworks will damage the roots.

Click on the link to see the tree removal diagram.  Note that trees proposed for removal in the concept DA are shown in orange.  (The blue area in the middle, which doesn’t show any trees, is the demolition footprint with tree removal already approved)