Representations in relation to Development Application MCU13/0069 situated at Sound Park - 90 Noosa Parade, Noosa Heads

Representations in relation to Development Application MCU13/0069 situated at Sound Park - 90 Noosa Parade, Noosa Heads

Document information

Author	Planning Technical Officer, Glen Conforti
Planning & Infrastructure Department

Index	ECM/Application/MCU13/0069 & Subject / Material Change of Use

Attachments	1.	Locality Map
2.	Site Plan

APPLICATION DETAILS
Applicant	Ogilvie Bacon Partnership
Proposal	Development Permit for Material Change of Use of Premises Entertaining & Dining Business Type 1 - Food & Beverages (Outdoor Dining)
Representations Received Date	21 January 2014
Number of Submissions	14 properly made submissions; and 1 not properly made submission

PROPERTY DETAILS
Property Address	Sound Park - 90 Noosa Parade, Noosa Heads
RP Description	Lot 32 N 21854
Land Area	3050m²
Existing Use of Land	Parkland and Outdoor Dining

STATUTORY DETAILS
SEQRP Designation	Urban
Locality	Noosa Heads
Zone	Open Space Recreation
Assessment Type	Impact

RECOMMENDATION
That Council agree in part to the representations submitted in relation to application MCU13/0069, situated at Sound Park described as Lot 32 N 21854 situated at 90 Noosa Parade, Noosa Heads, and issue a Negotiated Decision Notice in accordance with the following:
Approve a change to condition 9 to read as follows:
The approved use must not operate outside the hours of:
7am to 10pm Sunday to Thursday
except during the Christmas, Easter and September school holidays where the use may operate from 7am to 10.30 pm Sunday to Thursday. The dates for these holidays must be in accordance with the Department of Education, Training and Employment (Education Queensland) - School holidays for Queensland state schools.
7am to 12 midnight Friday and Saturday
The requirements of this condition must be included in any lease agreement for the outdoor dining areas.
Agree to delete condition 10.

REPORT
background
A Development Permit for Material Change of Use of Premises (Entertaining & Dining Business Type 1 - Food & Beverages (Outdoor Dining) was issued on the 16 December 2013. The application sought to intensify and formalise the existing outdoor dining areas associated with the adjoining 6 restaurant and shop tenancies that adjoin the parkland (Sound Park).
At the time the application was publicly notified 14 properly made submissions and 1 not properly made submission were received. The submitters were generally supportive of the outdoor dining in the park with some concern raised in regard to the noise generated by the use.
The applicant suspended the appeal period on 19 December 2013 and made representations to the development approval conditions on 21 January 2014 and further information was provided on 16 April 2014. The representations are detailed below but primarily relate to the hours of operation.
The following table shows the key details of the approved outdoor dining areas:
Dining area number indicated on plan	Proposed Outdoor Dining Area in the Park	Associated Lot/restaurant on adjoining property	Existing Improvements in the Park
2	24m²	Lot 2 – Rock Salt	concrete pad (tiled) low level landscaping dividing wall shade structure including clear roll down café blinds.
3	26m²	Lot 3 – currently unused	concrete pad (tiled) low landscaping dividing wall approval for a shade structure.
4	24m²	Lot 4 – currently unused	concrete pad (tiled) approval for a shade structure.
8	31 m²	Lot 8 -  Rickys Wood Fire Grill	concrete pad (tiled) low level landscaping wall incorporated as a seat shade structure including clear roll down café blinds.
9	22 m²	Lot 9 - Rickys Wood Fire Grill	concrete pad (tiled) approval for a shade structure
10	52 m²	Lot 10 Rickys	concrete pad (tiled) shade structure including clear roll down café blinds.
	The total outdoor dining area is 179m² or 5.8% of the total parkland.
Council is Trustee of the Reserve for Park (Sound Park). Various approvals for outdoor dining have been approved by the Council over many years (dating as far back as 1987) for dining areas in the Park in accordance with the applicable local law and planning controls at the time and, most recently under Council policy ‘Commercial Use of Community Land’. Only Lot 8 has planning approvals issued on 27 January 1987 and 21 July 1987 for outdoor dining (TPC 1774 & TPC 1916) with a number of other planning applications for outdoor dining refused in the past. Historically, Local Law outdoor dining permits have been issued for the outdoor dining in the Park even though no planning approvals were in place.
A noise and ‘private use of public land’ complaint, prompted Sunshine Coast Council to review the use of the Park for commercial purposes and the associated permanent structures. The review found that the existing permanent structures and commercial use of the park conflicted with the reserve purpose under the Land Titles Act 1994 and the Trustee Lease (Councils Trustee lease over State owned Land) and any current permits were incorrectly issued. To progress to a resolution, the State agreed for Sunshine Coast Council to enter into an informal licence agreement with the lot owners to allow trading to continue until a permanent resolution was in place.
Both the Trustee Lease and the Land Titles Act 1994 include provisions to allow for inconsistent uses in the Park. The Land Titles Act 1994 requires Ministerial approval and the Trustee Lease requires the preparation of a Trust Land Management Plan for the Park. Subsequently a Land Management Plan was prepared by Sunshine Coast Council in 2012 and approved by the Minister. Upon this development application being approved, the lot owners must enter into a sub-lease Trustee Lease Agreement with the Noosa Council as Lessors.
The Land Management Plan involved community engagement including a “meet in the park” event, stakeholder interviews, questionnaires online, and in the library and at the adjacent convenience store. Questionaries were also sent to local residents and business owners. The Land Management Plan sets a clear vision to ensure the use of the Park is regulated lawfully under the Land Titles Act 1994, the Trustee Lease, Council policies and the local planning instrument. The Land Management Plan includes a Landscape Site Analysis – Functionality Plan, Connectivity Plan, Concept Plan, intended upgrade and maintenance to the park facilities and the requirement for a development application for the existing outdoor dining areas to be lodged.
assessment
An assessment in relation to each of the submitted representations is provided below.

Condition 9 – Operating hours
The approved use must not operate outside the hours of:
7am to 10pm Sunday to Thursday
except during the Christmas, Easter and September school holidays where the use may operate from 7am to 10.30 pm Sunday to Thursday. The dates for these holidays must be in accordance with the Department of Education, Training and Employment (Education Queensland) - School holidays for Queensland state schools.
7am to 12 midnight Friday and Saturday
The requirements of this condition must be included in the Community Management Statement for any body corporate for the subject site and/or any lease agreement with site tenancies.
Applicant’s Representation
The applicant advises these hours of operation severely impact on the operation of the businesses and jeopardise the economic viability of the restaurant uses. The applicant requests the hours of operation be changed to 7am to 12 midnight, 7 days per week and has provided lengthy reasons in support of these hours. In summary the applicant submits:
Current liquor licence is to 12 midnight, 7 days
Trading 10 years with only 1 noise complaint
Noise report found that external dining in sound park complied with noise limits, with no noise control measures in place at the closest sensitive receptor
An operator has established direct contact with the permanent resident  at the closest sensitive receptor
Operates a double sitting or rolling bookings which would result in moving patrons inside the restaurant premises
The applicant further seeks to remove reference to the condition to be included in the Community Management Statement for the site. The applicant’s representation is provided below.
“The condition is also to be amended to delete reference to the Body Corporate. The applicant notes that they do not control the Body Corporate and cannot accept a condition which requires the terms to be included in the Community Management Statement. The applicant’s solicitor advises that at best they can seek to have the Body Corporate pass a resolution incorporating the provisions of an agreed Condition 9 in to the lease and the condition is recommended to be altered accordingly.”
The applicant requests the requirements of this condition be included in any lease agreement with site tenancies.
Assessment of Representation
Hours of Operation
The application is to intensify the outdoor dining use in the Sound Park and to formalise the current arrangement. Historically, only 3 outdoor dining areas have operated within the parkland, whereas 6 outdoor dining areas are approved which significantly increases the potential number of users of these areas. The Noise Impact Assessment used 60-80 patrons for their assessment; however, the combined number of patrons that could potentially use the outdoor dining is up to approximately 149 persons. Accordingly, there is potential for more noise to be generated than addressed in the Noise Impact Assessment.
It is acknowledged that only 1 noise complaint has been submitted to Council. However, it has come to Councils attention that noise complaints to other government departments have been received. While a restaurant operator has direct contact with the permanent affected resident, visitor/tourist amenity should not be discounted or left unconsidered.  The intent of the condition seeks to protect the amenity of visitors and permanent residents alike.
The condition is also consistent with the planning scheme requirements for many areas of Noosa where commercial uses are located in close proximity to residential uses and not located in the principle business centres such as the Noosa Junction and is considered a reasonable balance between restaurant operators and visitor and resident’s needs.  Notwithstanding that Rickys may have enjoyed extended operating hours to midnight previously, this development approval permits an intensification of outdoor dining in the park, being for 6 restaurants and given patron noise from the outdoor dining areas is unable to be satisfactorily mitigated, no change is recommended to the condition.
Community Management Statement
This was an oversight as there is no Community Management Statement for a park owned by the State and Council as Trustee. It is agreed, this part of the condition be changed to include the hours of operation in the sub-lease Trustee Lease Agreement with Noosa Council.
Condition 10 – Acoustic Screens
Where the approved use operates later than 10pm in accordance with this Decision Notice, temporary acoustic screens (café blinds or the like) must be erected on the sides of the dining areas to screen adjacent noise sensitive premises. The acoustic screens must be a minimum of 2m high and free from any gaps or openings.
Applicant’s Representation
Concerns are raised with erecting the acoustic screens (café blinds) later than 10pm. It is indicated in the noise assessment that the screens do little in terms of reducing noise as they have limited acoustic properties. Furthermore, the mandatory use of the acoustic screens negatively impacts on the operations as it effectively ‘encloses’ the area approved for outdoor dining and would reduce the ambience of the associated restaurants. This would be particularly detrimental during hot summer periods. It is requested the condition be deleted.
Assessment of Representation
The outdoor dining is located within a noise sensitive area and it is the intent of the condition to help reduce/mitigate noise to maintain the amenity of nearby residential uses after 10pm. However, it is agreed the acoustic screens have limited acoustic properties and are unlikely to contribute significantly to mitigating patron noise.

Departments/Sections Consulted:

	Community Services	X	Planning & Infrastructure
	Disaster Management & Public Order		Building & Plumbing Services
	Waste & Environmental Health		DA Planning
	Community Facilities		Strategic Land Use Planning
	Cultural Facilities		Asset Design & Investigations
			Asset Planning
			Civil Operations
			Environment
	Executive Office		Corporate Services
	Community Engagement		Finance
	Customer Service		ICT
	Executive Support		Procurement & Fleet
	Governance		Property & Facilities
	Human Resources		Revenue Services

[word/footer1.xml]
Page 1 of 7

[word/header1.xml]
3

[word/header2.xml]
PLANNING & ORGANISATION COMMITTEE MEETING REPORT	17 JUNE 2014