MCU15/0086 Representations to Council approval for Village Bicycle

Page 2

        Bicycle is a venue which deliberately wants to be a place where local residents mingle and interact
        in the evenings and where a sense of community is fostered. For example the venue supports local
        charities such the Salvation Army during the recent Red Shield Appeal in funding providing aimed at
        local youth.

    (c) Council has conceded that the proposed use can comply with noise level limitations until 12pm
        under noise limits set by Noosa Council which are stricter than those applied under both the State
        Liquor Act 1992 and Liquor Regulation 2002 and the State Environmental Protection (Noise) Policy
        2008 once a 2.6m high wall is constructed as required by Council in the above decision notice and
        in compliance with other conditions of approval. It would therefore seem both logical and
        reasonable that if the proposed use is approved to operate on its busiest trading evenings until
        12pm four (4) nights a week, then it should not be an issue to operate on the remaining three (3)
        nights when local patronage is commonly lower.

    (d) Interestingly the feedback obtained by The Noosa Junction Association (who represents business
        owners and land owners in The Junction) is that The Junction can appear a somewhat inactive and
        uninviting place during these three week nights. The Association is therefore of the opinion that
        having The Village Bicycle open during these three (3) nights will assist The Junction be
        differentiated from the Noosa Civic and other more retail and commercial focused precincts.

    (e) The applicant however has experienced Council’s continued opposition to the use which commonly
        only operates in the late afternoons/evenings operating after 10pm between Tuesday and Thursday
        any week. As indicated above, the Village Bicycle is operates so as to provide a venue for local
        residents, particularly those working in the local hospitality industry. These part-time workers tend
        to be better placed to use this type of venue on Tuesday to Thursday nights during holiday periods
        when they are likely to be more actively employed because of increased patronage of other
        hospitality related venues during such periods.


Requested Response: The applicant requests that Condition 3 be amended as follows:-

    3. “The approved use must not operate outside the hours of 5am to 12pm”


    Alternatively that Condition 3 be amended as follows:-

    3. “The approved use must not operate outside the hours of 5am to 12pm, with use of outdoor dining
       area permitted after 10pm only on Friday to Monday nights of Tuesday to Thursday nights when a
       public holiday, school holiday (i.e. State school holiday for South-East Queensland) or show holiday
       (i.e. Noosa Council area).”



Condition 4 – “Patrons in the outdoor dining area must be seated and limited to 50.”


Representation to condition 4 –

The original application identified areas within which outdoor dining was proposed to occur because, among
other things, of the need to balance that area within the existing premises that will not be used for seating
and the like as a result of this development proposal. Our subsequent submission to Council dated 5th May,
2016 quoted that the applicant can provide up to 70 seats within that outdoor dining area as identified in the
original development application. This submission also identified concern to Council’s requirement for all
patrons to be seated and suggested that following condition –

      ‘Patrons in the outdoor dining area must be have a seat allocated on the premises and the number of
      seats in the external dining area is 70.‘

In the above decision notice Council decided to impose the above condition 4. The applicant remains
concerned that confusion could result from that condition as currently worded. The applicant would prefer
that each patron has an allocated seat given that such a condition may further complicate any claims of

Page 3

noncompliance of Council’s approval. Council appears to be convinced that only 50 seats are possible
within the proposed outdoor dining area. It is unknown how Council arrived at this figure with such
confidence. In order to further assist Council in this regard, the applicant has prepared the attached scaled
seating diagram which confirms the 70 seats remain possible as previously quoted to Council.


Requested Response: The applicant requests that Condition 4 be amended as follows:


        ‘Patrons in the outdoor dining area must be have a seat allocated on the premises and the maximum
        number of seats in the external dining area is 70 and generally in accordance with the seating
        diagram as provided to Council. ‘



Condition 7 – “This development permit lapses on 21 June 2017, unless an application is received
to extend the approval. In assessing an extension to the approval, Council will have regard to any
breach details available from the Office of Liquor & Gaming Regulation and any other relevant
matters ”

Representations to condition 7 –

The applicant wishes to register a number of concerns with this condition with Council in these
representations. These concerns include that the condition:-

      (a) lacks clarity;
      (b) is in conflict with relevant provisions of the Sustainable Planning Act; and
      (c) lacks certainty/finality.


(a)     Those matters that more specifically identify the applicant’s concern with respect to a perceived lack
        of clarity include:-

             I.    Condition 7 states that “an application” needs to be lodged. It is assumed that this
                   reference is to a type of formal development application under the Sustainable Planning
                   Act. It is unclear what specific “application” is required to be lodged by this condition. It
                   may be that Council is referring to a formal request to extend the relevant period under
                   Section 383 of the Sustainable Planning Act or perhaps the change/deletion of condition 7
                   is considered by Council to be a permissible change that can occur by a request to change
                   an existing development approval under Section 369 of the Sustainable Planning Act (as
                   amended).

             II.   Condition 7 suggests that all Council requires is for an “application” to be simply lodged
                   before 21 June, 2017 and then the current development approval does not lapse. It is
                   unclear if that “application” needs to be also decided and approved by Council.

            III.   Procedurally, Condition 7 does not address the status of this current development approval
                   between 21 June, 2017 and any Council approval of the assumed request to extend the
                   relevant period. It is uncertain if Village Bicycle need to cease operations after 21 June,
                   2017 until Council decides the application/request. The condition is therefore considered to
                   be unclear on this aspect as well.

            IV.    The above decision notice approves the use within the existing premises between 5am and
                   12pm seven (7) nights a week as well as the outdoor dining area between 5am and 10pm
                   seven (7) nights a week and between 10pm and 12pm on four (4) nights a week. The
                   condition would mean that the development approval would no longer apply to the
                   proposed use both within the existing premises and in the outdoor dining area at all times.
                   The business would therefore need to close unless some form of limited development was
                   possible under the then relevant planning scheme. This is not only unclear but
                   unreasonable.

Page 4

(b) Those matters that more specifically identify the applicant’s concern with respect to being in conflict
    with relevant provisions of the Sustainable Planning Act include:-

       I.     Condition 7 identifies a date (i.e. “21 June, 2017”) and not a period from when the approval
              takes effect. Section 341 of the Sustainable Planning Act provides the ability for a
              development approval to state ‘a different period from when the approval takes effect’.

      II.     It is to be noted that the current approval requires works the following works to be
              completed and the applicant is agreeable to undertaking such works:-

              ‘Condition 13: The 2.6m acoustic fence recommended by the approved Acoustic Report
              must be erected within 3 months of this approval taking effect. The fence must meet the
              construction standards required by the approved Acoustic Report.’ 9..

              ‘Condition 16: Dense native screening shrubs up to 3m in height must be established on
              the Bottlebrush Avenue side of the new acoustic fence for its full length to visually screen
              the fence.’

              Obviously these works will only be commenced if this development approval takes effect.
              It is suggested that, despite the condition nominating a date and not a period from when
              the development approval takes effect, the 21 June, 2017 date is not appropriate for a
              number of related reasons. These reasons include that the compliance of such conditions
              may not have had such a sufficient time to have had any noticeable impact by such a date.

(c) Those matters that more specifically identify the applicant’s concern with respect to a lack of
    certainty/finality:-

        I.    The condition provides no certainty for the applicant as to the continuation of the approved
              use noting that it is not possible for the use to be viable for significantly reduced hours and
              the like.

       II.    It is also unrealistic for Council to require the construction of an acoustic fence and ‘dense
               native screening shrubs’ to grow to grow to at least 3 metre high when the use may only
               be viably operate for 10 months from when the approval possibly takes effect and perhaps
               7 months from when the fence is completed and vegetation planted.

       III.   Condition 7 does not clearly indicate what Council will take into consideration when it is
              assessing what is assumed to be a request to extend the relevant period under the
              Sustainable Planning Act. The conditions states that I ‘Council will have regard to any
              breach details available from the Office of Liquor & Gaming Regulation and any other
              relevant matters’. Such criteria are considered to be vague and uncertain.

      IV.     The applicant considers that the following are particularly relevant in this regard:-

                 a.    Existing premises has never had a breach issued by the Office of Liquor &
                       Gaming Regulation and intends for this to continue. However there are some
                       breaches that could be issued which are of no relevance to whether Council
                       agrees to extend the relevant period. Such an open reference is not considered
                       appropriate.

                 b.    More importantly Council is essentially deferring to others such as the Office of
                       Liquor & Gaming Regulation for a proper determination of a critical town planning
                       consideration, namely whether the use will continue after 21 June, 2017. The
                       condition therefore purports to reserve the right to make a further assessment to
                       others as well as Council and is therefore considered to be clearly ultra vires.

                 c.    The reference to ‘other relevant matters’ is a concern because it is considered to
                       lack finality and therefore offends the finality principle under law and the condition
                       should be deleted.

Page 5

                       d.   In this condition Council has essentially reserved the right to restrict hours of
                            operation should a nuisance occur by refusing to extend the relevant period after
                            21 June, 2017. There are numerous authorities in different planning regimes in
                            Queensland and New South Wales where such a condition was deemed to be
                            unlawful.

                       e.   The condition leaves for later decision an important aspect of the development,
                            and the decision on that aspect could alter the proposed development in a
                            fundamental way, namely it will cease as at 21June, 2017. Consequently the
                            current decision notice with Condition 7 cannot be regarded as final. The condition
                            offends the finality principle and should therefore be deleted.

            V.      In any regard, with Condition 7 making such a vague and open reference of Council’s
                     assessment criteria, it may be that a determined neighbour may continue to lodge regular
                     complaints directed at the Village Bicycle with Council. To date Council has not been
                     forthcoming with providing the applicant with any information on such complaints or even
                     communication with the Office of Liquor & Gaming Regulation. Given the investigations by
                     Council following certain complaints with the applicant, it would appear that such
                     complaints can at times relate to other nearby premises and not the Village Bicycle
                     premises. Council should therefore keep accurate records of any such complaint and
                     thoroughly investigate each complaint and concisely document its findings of any such
                     complaint may be considered by Council to be ..’any other relevant matter.’ The applicant
                     should also be given complete access to such complaints and to Council’s documented
                     findings of any such complete these complaints and/or findings may be relied on by
                     Council in any way to close Village Bicycle at 21 June, 2017.


Requested Response: That Condition 7 be deleted from the development permit.


The applicant requests that these representations be assessed by Council as soon as possible and that
Council issues a Negotiated Decision Notice which amends the original Decision Notice as requested
above.

Please do not hesitate to contact our Sunshine Coast office if Council requires any further information and/or
clarification in relation to these representations.



Yours faithfully,




Greg Martoo
Principal
martoo consulting

Encl. (1)

Seating Diagram for Village Bicycle