APPROVED Negotiated Decision Notice MCU16/0137

Officer:	Lisa Pienaar
Direct Telephone:	53296514
Our Reference:	MCU16/0137
Your Reference:	02111

18 August 2017

Gelherult No 2 Pty Ltd
C/- Martoo Consulting Pty Ltd
PO Box 1684
NOOSA HEADS  QLD  4567

Dear Sir/Madam

Negotiated Decision Notice
Sustainable Planning Act 2009
I refer to your application and the representations you made in respect to the decision notice. On 17 August 2017 Council decided your representations.
Details of the decision are as follows:
application details
Application No:	MCU16/0137
Street Address:	Noosa Home 5/8 Selkirk Drive Noosaville
Real Property Description:	Lot 5 SP 188669
Planning Scheme:	The Noosa Plan (28 October 2016)
Decision details
Council on 15 June 2017 decided to issue the following type of approval:
Development Permit for Material Change of Use of Premises - Entertainment & Dining Business Type 2 - Recreation, Amusement & Fitness (Fitness Centre)
In relation to representations made, Council on 17 August 2017 decided to:
A.	Agree to change condition 7.
Relevant period of approval
The relevant period for this development approval is 4 years starting the day that this development approval takes effect.
assessment manager conditions
PLANNING
When Conditions must be Complied With
Unless otherwise stated, all conditions of this Decision Notice must be complied with prior to the use commencing, and then compliance maintained at all times while the use continues.
Approved Plans
Development authorised by this approval must be undertaken generally in accordance with the Approved Plans listed within this Decision Notice.
Plan No.	Rev.	Plan Name	Date
Job No. 2016/61	A	Proposed Ground Floor Plan, drawn by Architectural Solutions – Building Design	2 October 2016
Job No. 2016/61	A	Proposed Mezzanine Floor Plan, drawn by Architectural Solutions – Building Design	2 October 2016
Nature and Extent of Approved Use
Approval is for a Fitness Centre in tenancy No. 5 in the Noosa Home complex with a total gross floor area of 719m2.
The Fitness Centre class size must not exceed a maximum of 20 persons at any one time.
The Fitness Centre may operate 24 hours a day, Monday to Sunday.
The number of overlapping fitness classes between the hours of 8am and 4pm on weekdays is limited to 2 and there must be no more than 3 overlapping classes between 5.30pm and 6.30am on weekdays. Overlapping classes are classes that either directly overlap in time, or where there is less than half an hour between the conclusion of one class and the start of another.
Acoustics
7.	The use must be in accordance with the David Moore & Associates Pty Ltd report ‘Desk Top Environmental Noise Level Impact Assessment of Proposed Fitness Centre, 5/8 Selkirk Drive Noosaville’, conducted for Gelherdt No.2 Pty Ltd, Report No. R17015/D3218/Rev.0/1.03.2017, unless varied by the following:
a.	Ensure all windows and doors facing Walter Hay Drive are locked shut;
b.	The fitness room is to be sound proofed;
c.	Noise emanating from the premises, including amplified or non-amplified sound, must not exceed:
i.	daytime (0700 to 1800 hours): 94 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
ii.	evening (1800 to 2200 hours): 89 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
iii.	night-time (2200 to 0700 hours): 84 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
d.	All amplified sound at the premises must be conducted through a sound limiting device at all times to ensure that noise does not exceed levels prescribed in condition c);
e.	The sound limiting device is to have a locking mechanism or be located within a locked enclosure, which is to be locked at all times except for inspection or maintenance work on the device;
f.	Access to the sound limiting device, except for maintenance work, is restricted to the gym manager, nominee and the person in charge of the premises at any time; and
g.	The sound limiting device must be checked and if necessary adjusted by a qualified acoustic consultant at least every 12 months to ensure compliance with condition c). Acoustic certification is to be kept on site.
Advertising Signage
Any advertising sign or device must comply with Council's policies on advertising.
referral agencies
Not Applicable
Advisory notes
The assessment of this development was based on a proposal having a gross floor area of 719m2, as depicted on the Approved Plans.
This Development Permit will trigger an “Infrastructure Charge Notice” to be issued in accordance with Council’s “Charges Resolution” made pursuant to the Sustainable Planning Act 2009 and in conjunction with the State Planning Regulatory Provision (Adopted Charges).
property notes
Not Applicable
preliminary approval overriding planning scheme
Not Applicable
further development permits required
Development Permit for Building Works (All Building Work)
self assessable codes
Advertising Devices Code
submissions
There was 1 properly made submission about the application. In accordance with Sustainable Planning Act 2009, the name and address of the principal submitter for each properly made submission is provided and attached.
reasons/grounds for approval
The following are sufficient grounds to justify the decision despite the conflict with the Planning Scheme:
Gyms (fitness centres) are generally floor area intensive and require tenancies within industrial units that are most readily found in the Industrial Zone;
Some sport and recreational uses are accepted an Industry zone given the potential impacts of sport and recreation uses; and
The fitness centre is of a similar size and scale to other approved Entertainment & Dining Business’s Type 2 within the Noosaville Industrial area.
RIGHTS OF APPEAL
You are entitled to appeal against this decision. A copy of the relevant appeal provisions from the Sustainable Planning Act 2009 is attached.
During the appeal period, you as the applicant may suspend your appeal period and make written representations to Council about the conditions contained within the development approval. If Council agrees or agrees in part with the representations, a “negotiated decision notice” will be issued. Only one “negotiated decision notice” may be given. Taking this step will defer your appeal period, which will commence again from the start the day after you receive a “negotiated decision notice”. (Refer to Part 8 “Dealing with decision notices and approvals” - Division 1 “Changing decision notices and approvals during applicant’s appeal period” of the Sustainable Planning Act 2009.)
OTHER DETAILS
If you wish to obtain more information about Council’s decision, electronic copies are available on line at www.noosa.qld.gov.au, or at Council Offices.
Yours faithfully

Kerri Coyle
Manager – Development Assessment

cc	Unitywater

Enc:	Infrastructure Charge Notice
Approved Plans/Documents
List of Submitters
Appeal Rights

	List of Submitters SUSTAINABLE PLANNING ACT 2009 & SUSTAINABLE PLANNING REGULATION 2009

Only Properly Made Submissions are to be included in this notice (s335 (1) (l))

Author	Address1	Address2
C Porter	Noosa Domain Village	[email protected]

	Appeal Rights SUSTAINABLE PLANNING ACT 2009 & SUSTAINABLE PLANNING REGULATION 2009

The following is an extract from the Sustainable Planning Act 2009  (Chapter 7).
MATERIAL CHANGE OF USE, RECONFIGURING A LOT & OPERATIONAL WORKS

Division 8 	Appeals to court relating to development applications and approvals

461 	Appeals by applicants
(1) 	An applicant for a development application may appeal to the court against any of the following—
(a) 	the refusal, or the refusal in part, of the development application;
(b) 	any condition of a development approval, another matter stated in a development approval and the identification or inclusion of a code under section 242;
(c) 	the decision to give a preliminary approval when a development permit was applied for;
(d) 	the length of a period mentioned in section 341;
(e) 	a deemed refusal of the development application.
(2) 	An appeal under subsection (1)(a), (b), (c) or (d) must be started within 20 business days (the applicant’s appeal period) after—
(a) 	if a decision notice or negotiated decision notice is given—the day the decision notice or negotiated decision notice is given to the applicant; or
(b) 	otherwise—the day a decision notice was required to be given to the applicant.
(3) 	An appeal under subsection (1)(e) may be started at any time after the last day a decision on the matter should have been made.

462 	Appeals by submitters—general
(1) 	A submitter for a development application may appeal to the court only against—
(a) 	the part of the approval relating to the assessment manager’s decision about any part of the application requiring impact assessment under section 314; or
(b) 	the part of the approval relating to the assessment manager’s decision under section 327.
(2) 	To the extent an appeal may be made under subsection (1), the appeal may be against 1 or more of the following—
(a) 	the giving of a development approval;
(b) 	any provision of the approval including—
(i) 	a condition of, or lack of condition for, the approval; or
(ii) 	the length of a period mentioned in section 341 for the approval.
(3) 	However, a submitter may not appeal if the submitter—
(a) 	withdraws the submission before the application is decided; or
(b) 	has given the assessment manager a notice under section 339(1)(b)(ii).
(4) 	The appeal must be started within 20 business days (the submitter’s appeal period) after the decision notice or negotiated decision notice is given to the submitter.

463 	Additional and extended appeal rights for submitters for particular development applications
(1) 	This section applies to a development application to which chapter 9, part 7 applies.
(2) 	A submitter of a properly made submission for the application may appeal to the court about a referral agency’s response made by a prescribed concurrence agency for the application.
(3) 	However, the submitter may only appeal against a referral agency’s response to the extent it relates to—
(a) 	if the prescribed concurrence agency is the chief executive (environment)—development for an aquacultural ERA; or
(b) 	if the prescribed concurrence agency is the chief executive (fisheries)—development that is—
(i) 	a material change of use of premises for aquaculture; or
(ii) 	operational work that is the removal, damage or destruction of a marine plant.
(4) 	Despite section 462(1), the submitter may appeal against the following matters for the application even if the matters relate to code assessment—
(a) 	a decision about a matter mentioned in section 462(2) if it is a decision of the chief executive (fisheries);
(b) 	a referral agency’s response mentioned in subsection (2).

464 	Appeals by advice agency submitters
(1) 	Subsection (2) applies if an advice agency, in its response for an application, told the assessment manager to treat the response as a properly made submission.
(2) 	The advice agency may, within the limits of its jurisdiction, appeal to the court about—
(a) 	any part of the approval relating to the assessment manager’s decision about any part of the application requiring impact assessment under section 314; or
(b) 	any part of the approval relating to the assessment manager’s decision under section 327.
(3) 	The appeal must be started within 20 business days after the day the decision notice or negotiated decision notice is given to the advice agency as a submitter.
(4) 	However, if the advice agency has given the assessment manager a notice under section 339(1)(b)(ii), the advice agency may not appeal the decision.

465 	Appeals about decisions relating to extensions for approvals
(1) 	For a development approval given for a development application, a person to whom a notice is given under section 389, other than a notice for a decision under section 386(2), may appeal to the court against the decision in the notice.
(2) 	The appeal must be started within 20 business days after the day the notice of the decision is given to the person.
(3) 	Also, a person who has made a request under section 383 may appeal to the court against a deemed refusal of the request.
(4)	An appeal under subsection (3) may be started at any time after the last day the decision on the matter should have been made.

466 	Appeals about decisions relating to permissible changes
(1) 	For a development approval given for a development application, the following persons may appeal to the court against a decision on a request to make a permissible change to the approval—
(a) 	if the responsible entity for making the change is the assessment manager for the application—
(i) 	the person who made the request; or
(ii) 	an entity that gave a notice under section 373 or a pre-request response notice about the request;
(b) 	if the responsible entity for making the change is a concurrence agency for the application—the person who made the request.
(2) 	The appeal must be started within 20 business days after the day the person is given notice of the decision on the request under section 376.
(3) 	Also, a person who has made a request under section 369 may appeal to the court against a deemed refusal of the request.
(4)	An appeal under subsection (3) may be started at any time after the last day the decision on the matter should have been made.

467 	Appeals about changing or cancelling conditions imposed by assessment manager or concurrence agency
(1) 	A person to whom a notice under section 378(9)(b) giving a decision to change or cancel a condition of a development approval has been given may appeal to the court against the decision in the notice.
(2) 	The appeal must be started within 20 business days after the day the notice of the decision is given to the person.

[word/footer1.xml]
PD-DA-FM387/1-13/04/2010	Page 10 of 3

[word/footer2.xml]
PO Box 141		P. (07) 5329 6500	[email protected]	
	TEWANTIN  QLD  4565	F. (07) 5329 6501	www.noosa.qld.gov.au
				Page 1 of 7

[word/footer3.xml]
Page 2 of 7

[word/footer4.xml]
PD-DA-FM387/1-13/04/2010	Page 1 of 3

[word/header3.xml]
MCU16/0137

[Attachment: image3.png (image text)]
K Coy fs


[Attachment: image4.png (image text)]
 
 
 

 
 
 

a
mm

  

NOOSA
COUNCIL