The fight against rezoning

PYSE obtained initial legal advice which indicated potential grounds for an appeal against the Department of Planning's rezoning. PYSE then obtained a Barrister's advice as to whether they had reasonable prospects of winning a Judicial Appeal. The Barrister advised that even though the rezoning decision was considered not to be a good decision, in their opinion PYSE was unlikely to meet the high bar that is required for a successful Judicial Appeal.

Although PYSE was unable to fight the rezoning in Court, their legal team identified significant issues with the Mirvac proposal.

DPIE amended the proposal rejected by Hills Council last November to:

• reduce areas of land to be zoned R4 high-density and R3 medium-density residential;

• increase areas of land to be zoned E2 environmental protection;

• remove a proposed RE1 Public Recreation zone (and associated synthetic grass playing field);

• include additional local provisions to allow recreation and selected other uses consistent with the objectives of the E2 zone (these provisions only apply to E2 areas previously proposed as R4 and RE1); and

• ensure asset protection zones (APZs) do not require clearing or management of critically endangered ecological communities.

Some of the E2 area may be dedicated to Cumberland State Forest, via a Voluntary Planning Agreement between Mirvac and DPIE, but this was not a condition of rezoning. Mirvac has said this will happen 'prior to the issue of the Occupation Certificate for the final stage of the proposed development' (Construction work is estimated to take at least 5 years)

For more information click on the following links: (the first 3 are extracted from the finalisation report)

Amendments to exhibited zoning map shows the changes to the proposal that was rejected by Hills Council last November

Revised LEP zoning map see conditions below

New E2 areas with additional permitted uses

Complete Finalisation Report published by DPIE

The Hills Local Environmental Plan 2019 Current version for 18 June 2020, site specific conditions for 55 Coonara Ave.

7.15 Development at 55 Coonara Avenue, West Pennant Hills

(1) This clause applies to land at 55 Coonara Avenue, West Pennant Hills, being Lot 61, DP 737386 (the subject land).

(2) Development consent may be granted to a single development application for development on the subject land in Zone R3 Medium Density Residential or Zone R4 High Density Residential that is both of the following—

(a) the subdivision of land into 2 or more lots,

(b) the erection of a dwelling house, an attached dwelling or a semi-detached dwelling on each lot resulting from the subdivision, if the size of each lot is equal to or greater than—

(i) for the erection of a dwelling house—180 square metres, or

(ii) for the erection of an attached dwelling or a semi-detached dwelling—86 square metres.

(3) Development consent must not be granted to development on the subject land unless the building setback of any building resulting from the development is equal to, or greater than, 11 metres from Coonara Avenue, West Pennant Hills.

(4) Clause 7.7 (other than clause 7.7(4)(g)) extends to development on the subject land involving the erection of a new building, or external alterations to an existing building, of any height.

(5) Development consent must not be granted to development on the subject land unless the consent authority is satisfied that the development—

(a) is designed to maximise the use of water permeable surfaces on the land having regard to the soil characteristics affecting on-site infiltration of water, and

(b) includes, if practicable, on-site stormwater retention for use as an alternative supply to mains water, groundwater or river water, and

(c) avoids any significant adverse impacts of stormwater runoff on adjoining properties, native bushland and receiving waters, or if that impact cannot be reasonably avoided, minimises and mitigates the impact.

(6) Development consent must not be granted to development that results in more than 600 dwellings on the subject land.

Click here for the Media Release. The project is described as 'an expansion to Cumberland State Forest'!!

Criteria for Priority Projects can be viewed here. This project does not satisfy the criteria for creating jobs after construction, delivering affordable housing, or timeliness because ecology, bushfire and flooding restraints can't be resolved quickly.

Residents were urged to take immediate action to stop NSW DPIE giving in to pressure from Mirvac.

WPHVPA printed over 6000 leaflets which were delivered by our team of volunteers, together with helpers from other local community groups.

The list was part of a submission made by Urban Taskforce at the request of NSW Treasury Dept, and is supposed to be for projects that are ‘shovel-ready’ but stuck in the NSW planning process. You can read the whole report here. Details for 55 Coonara can be found on page 52 of the report.

Unlike other projects on the list, 55 Coonara was not stuck in the planning system. the proposal was rejected at the Council Meeting on 26^th November 2019. We wrote to several politicians pointing out that 55 Coonara should not be on this list because it is not stuck in the planning system. We asked for 55 Coonara to be removed from the list of projects being considered.

David Elliott replied with the comment ‘‘I’m assured that any stimulation of construction sector won’t be at the expense of integrity of the planning laws.’ The response from Treasury/NSW planning response is here

Links to submissions made by WPHVPA, Hornsby Council and NSW Office of Environment & Heritage:

2019 Additional submission from WPHVPA - 55 Coonara Ave

2019 submission from WPHVPA - 55 Coonara Ave

2019 submission from Hornsby Council - 55 Coonara Ave and

2019 submission from NSW Office of Environment and Heritage - 55 Coonara

Click on the following links for details:

2018-09-25 Council’s revised proposal which includes a proposed new zoning map.
2018-09-25 Council’s proposed Development Control Plan
2018-09-25 The proposed Voluntary Planning Agreement between Council and Mirvac

Most of Council's requests to amend the original Determination were rejected. In particular, Council was requested to seek the highest level of environmental protection for relevant portions of the site, and the Department was satisfied that rezoning of land to E2 does not give rise to the need to compensate a landholder. Also, there was no alteration to the requirement to consider and propose the RE1 Public Recreation Zone.

Read the Gateway Alteration and Letter to Council dated 13-06-2018.

Read the full report on the Council agenda for this meeting, or just read the important bits : Executive Summary & Land Use Zones & Map Far from protecting the forested parts of the site with an E2 zoning, Council supported E3 zoning which would allow residential development on the land. Read the Council Minutes for this item. On 15th December 2017, Council sent a letter to Dept of Planning requesting an alteration to the Gateway Determination to reflect the new zoning proposal.

The Hills Shire Council was required to specify which parts of the Mirvac property it wished to rezone as High Density residential development and which parts were to be reserved for environmental protection. This need for transparency was a significant step forward. More information was required in relation to transport and infrastructure. Council was also required to consult other bodies such as the Rural Fire Service.

Read the Gateway Determination & Letter to Council.

The proposal includes a mix of high and medium density housing, a community building and a sports field. Council agreed by 5 votes to 3 to support the proposal and forward it to the Department of Land and Environment for Gateway Determination. The Gateway process allows for consultation with the NSW government and the public to occur. The Mirvac proposal was lodged with NSW Dept. of Planning and Environment on 14th August 2017.

Click on the following links for more information:

Report on development of 55 Coonara Ave - Hills Shire Council Meeting Agenda 25/07/17

Draft alteration to DCP 2012 - 55 Coonara Ave - Hills Shire Council Meeting Agenda 25/07/17

Minutes from Hills Shire Council Meeting 25/07/17 Item 2 - 55 Coonara Ave

The report included in the meeting agenda recommended rejecting the planning proposal in favour of retaining the current business park zoning. A motion to adopt the recommendation in the report (and reject the proposal for high density residential development) was put to the meeting and carried.

• The proposal being considered by Council was for 800 units up to 8 storeys high. The proposal included converting current open space to a sports ground, retaining the treed area in the southern part of the site and retaining a treed buffer between the Cumberland Forest and new buildings. The existing multi-storey carpark would be retained but the current office buildings would be removed.

• An initial proposal by Mirvac was for 1200 residential units up to 25 storeys. This was rejected by Council as was a second proposal for 1000 residential units.