Development Application For Material Change Of Use For An Entertainment & Dining Business - Type 1 Food & Beverages At 2/18 Duke Street Sunshine Beach (MCU15/0029)

DEVELOPMENT APPLICATION FOR MATERIAL CHANGE OF USE FOR AN ENTERTAINMENT & DINING BUSINESS - TYPE 1 FOOD & BEVERAGES AT 2/18 DUKE STREET SUNSHINE BEACH (MCU15/0029)

Document information

Author	Coordinator Planning, Denis Wallace
Planning & Infrastructure Department

Index	ECM/ Application/ MCU15/0029

Attachments	1. 	Proposal Plan

APPLICATION DETAILS
Applicant	Raveside Pty Ltd Tte C/- RG Strategic
Proposal	Entertainment & Dining Business Type 1 - Food & Beverages
Properly Made Date	20 April 2015
Information Request Date	30 April 2015
Information Response Date	28 May 2015
Decision Due Date	19 August 2015
Number of Submissions	41

PROPERTY DETAILS
Property Address	Common Property &  Unit 2, 18 Duke Street Sunshine Beach  Qld  4567
RP Description	Lots 0 & 2 BUP 105943
Land Area	28m2 (Lot 2) 4.2m2 (Common Property)
Existing Use of Land	Offices

STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Locality	Eastern Beaches
Zone	Visitor Mixed Use
Assessment Type	Impact

RECOMMENDATION
That Council note the report by the Coordinator Planning to the Planning & Organisation Committee Meeting dated 21 July 2015 regarding Application No. MCU15/0029 for a Development Permit for Entertainment & Dining Business Type 1 - Food & Beverages situated at Common Property & Unit 2, 18 Duke Street Sunshine Beach and approve the application in accordance with the following 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 Plan
Development undertaken in accordance with this approval must generally comply with the approved plan of development. The approved plans are listed in the following table unless otherwise amended by these conditions.
Plan No.	Rev.	Plan/Document Name	Date
-	-	Site Plan drawn by Linda McDougall for RG Strategic	03/04/15
Nature and Extent of Approved Use
The approved use must not operate outside the hours of 6am to 10pm Monday to Sunday.
Service vehicle movements associated with the approved use (including loading and unloading) must not occur outside the hours of 7am to 6pm Monday to Saturday and not at all on Sundays or public holidays.
The outdoor dining area within the site must not exceed 5m2.
No structure or use area within the road reserve is approved or implied by this development permit, with a separate permit process applicable.
Noise
External speakers or amplified music are not permitted.
Amplified music must not be audible outside the building before 7.00am or after 7.30pm.
Prior to the commencement of the use the operator must submit and obtain Council approval of a Noise Management Plan for the site, addressing the following development aspects (as a minimum) in order to minimise noise from the development:
Fitout design to minimise internal noise reverberation and patron noise;
Use of outdoor dining areas
Patron management and responsible service of alcohol
Refuse management
Opening and closing procedures
The use shall operate in accordance with the approved Noise Management Plan.
Noise emission from the use shall not exceed Maximum Background + 5dB(A) between the hours of 7.30pm to 10pm.  Where Council reasonably believes the noise limit has been exceeded, noise monitoring must undertaken by a suitably qualified acoustic engineer and provided to Council to demonstrate compliance with the noise limit.
Noise emission from any new mechanical equipment associated with the use shall comply with the following requirements:
Air-conditioning and Refrigeration
7am to 10pm: Maximum Background + 5dB(A)
10pm to 7am: Maximum Background + 3dB(A)
Submission of written certification from a suitably qualified person confirming that the noise levels from any new mechanical equipment comply when measured at either the residential boundary or outside the most exposed part of an affected building, whichever is the closest to the equipment.
The assessment and certification is required immediately after installation of the equipment and prior to any occupation of the building, and in a format approved by Council.  All equipment should be operating at the same time to test the overall noise level created.
Advice: It is highly recommended that the person you engage to certify the installation is involved at the plan development stage so they can recommend where this equipment is best located. They can also advise about noise enclosures and can make other suggestions to avoid noise problems.  It is a lot more costly to try and deal with noise problems after everything is built.
Refuse
Refuse containers must be provided in accordance with the requirements of the Environmental Protection (Interim Waste) Regulation 1996 and (Waste Management) Regulation 2000, for the storage and collection of refuse.
Landscaping
Landscaping upgrades shall be undertaken to the frontage areas generally in accordance with the submitted plan titled “Landscaping Plan” drawn by Lynda McDougall for RG Strategic dated 15/04/15.
Advisory Notes

Disabled Access
The plans for the proposed building work have NOT been assessed for compliance with the requirements of the National Construction Code - Building Code of Australia (Volume 1) as they relate to people with disabilities.  Your attention is also directed to the fact that in addition to the requirements of the National Construction Code as they relate to people with disabilities, one or more of the following may impact on the proposed building work:
the Disability Discrimination Act 1992 (Commonwealth);
the Anti-Discrimination Act 1991 (Queensland); and
the Disability (Access to Premises – Buildings) Standards.
Development Compliance Inspection
Prior to the commencement of the use, please contact Council's Development Audit & Response Unit to arrange a Development Compliance Inspection.
Food Premises
Where any food premise is included in this development, the following is required:
Plans and application is to be made to Council’s Waste and Environmental Health Section for approval prior to any building approval, fitting out or use of the premises.
A statement indicating the purpose of the food premises, type of food sold, proposed menu and maximum number of patrons at any time, is to accompany the application for plan approval.
Construction of the food premises must comply with the Toolbox Fit-out Guide and the Food Safety Standards (both available from Council or www.lgtoolbox.qld.gov.au).
Toilets for customers and staff to be provided in accordance with Building Code of Australia.  Obtain advice from a building certifier on numbers and standards, including disabled access.
Plans and approval is required for any mechanical exhaust ventilation system, which should comply with AS1668.  A certificate from the installer certifying the system complies with the Standard must be obtained and lodged with Council prior to commencement of trade.
Any licensable food business as defined in Chapter 3 of the Food Act 2006, must obtain a licence from Council prior to use of those premises.
Environmental Protection
The development should be undertaken in a manner that causes no unlawful environmental nuisance under the Environmental Protection Act 1994 by the creation of excessive noise, lighting, waste, atmospheric pollutants (including dust or odours) or other releases to the environment.
In accordance with the Environmental Protection Act 1994, all sand, silt, mud, paint, cement, concrete, builder’s waste or other prescribed contaminants should not to be released to or be placed where it could reasonably be expected to move into a roadside gutter, storm water drain or a watercourse.  On the spot fines apply for such offences.

REPORT
PROPOSAL
The application seeks approval to convert an existing office tenancy and adjacent common property area to a licenced café/restaurant.  The building is a 2-storey office building divided into 4 tenancies.  The new café/restaurant is proposed in a small downstairs tenancy of 38m2, though only 28m2 will be occupied by the new use, with an existing Optus data exchange continuing to occupy 10m2.  Outdoor use areas are also proposed with further seating areas proposed within the common property area of the building (4.2m2) and footpath dining areas (9.8m2).  The footpath areas (within road reserve) do not form part of this application and will require a separate permit issued through Council’s property unit.

The applicant indicates a total net use area for patrons of approximately 20m2 within the site under this development application and suggests a likely patronage of up to 24 persons.  Trading hours originally sought were 6.00am – 10.00pm Sunday to Thursday and 6.00am – 12.00pm Friday to Saturday, however, during the assessment the applicant advised it would accept a 10.00pm trading curfew to address noise impacts.

No new carparks or significant external works are proposed.  The proposal plan is included as Attachment 1 and an extract is shown in Figure 1 below. Figure 2 shows a photograph of the existing premises and outdoor decks and seating to be used.

Figure 1 – Proposal Plan Extract (Note - property boundary shown dashed)

Figure 2 – Existing Premises and Outdoor Area
site details
Background
A development permit for 4 commercial office tenancies on the site was approved by Council in 1996 (3B-447).  Four on site parking spaces were provided with the development and a cash contribution was paid in lieu of 2 further spaces.

The tenancy has recently operated as a gallery and a coffee shop (Bean Drop/Droplet Cafe) without planning approval.  Complaints were received about the unapproved café and its patrons’ use of adjoining toilets in late 2014 and the use ceased in January 2015.

Pre-lodgement discussions were held with the applicant about this application, with noise highlighted as the primary assessment issue.
Site Description & Surrounding Uses
The corner site slopes gently down to the east along the Duke Street frontage.  The existing development is a 2 storey office building with 4 tenancies.  Garden beds and outdoor terrace areas are located in front of the subject tenancy.

The site is adjacent to multiple dwellings within the Attached Housing and Semi-Attached Housing zones to the southwest, northeast and north.  Some individual houses still remain on some lots within these zones.  Dolphins backpacker hostel is located over multiple lots across Douglas Street to the northwest.

Figure 3 – Aerial Photograph & Zonings

assessment
Instruments for Statutory Assessment
Under the Sustainable Planning Act 2009 the application must be assessed against each of the following statutory planning instruments to the extent they are relevant to the development:
State Planning Policies;
the South East Queensland Regional Plan;
State Planning Regulatory Provisions;
the Planning Scheme for the local government area; and
any Temporary Local Planning Instrument in place for the local government area.
Of these, the statutory planning instruments relevant to this application are discussed in the sections that follow.
State and Other Statutory Instruments
State Planning Policy
The change of use does not trigger separate assessment against the State Planning Policy.
South East Queensland (SEQ) Regional Plan 2009 - 2031
The site is located within the urban footprint area of the SEQ Regional Plan. The proposal is consistent with the regional policies and regulatory provisions of the SEQ Regional Plan.
Statutory Instruments – Planning Scheme
The subject site is located in the Eastern Beaches Locality and is zoned Visitor Mixed Use Zone. The proposed entertainment and dining use is identified as consistent use within the zone and is required to follow an impact assessable application process.
Locality Provisions
The Eastern Beaches Locality Code states the following Overall Outcomes sought for the locality overall and for the Visitor Mixed Use Zone:
7.8.2 (a) 	New uses and works are located, designed and managed to—
be compatible with other uses and works;
maintain the safety of people and works;
avoid significant adverse impacts on the amenity enjoyed by users of other premises, including acoustic and visual qualities;
avoid significant adverse impacts on the natural environment, including native habitat removal, fragmentation and attrition; and
protect the natural beach experience and overall visual amenity for beach users;
7.8.2 (c) 	The Eastern Beaches Locality retains its primary role as a residential area, though continues to provide some visitor accommodation and a range of local retail and commercial functions at Sunshine Beach, Sunrise Beach and Peregian Beach;
7.8.2(m) For Sunshine Beach—
…
v 	the Sunshine Beach neighbourhood centre, zoned Visitor Mixed Use on Map ZM4, is characterised by mixed-use development that encourages an active street front; and
vi 	the high quality building design within the Sunshine Beach neighbourhood centre, with its variation and separation of building forms, contributes to the casual beachside character and provides a popular meeting place for residents and visitors;
7.8.2(u) 	For the Visitor Mixed Use Zone— Business Uses are integrated with Multiple housing, where development—
typically provides for local Business Uses on the ground floor that promote an active street front;
provides Business Uses that directly service visitors and residents in the local area;
contributes to the economy of Noosa through tourism and hospitality; and
has a scale and bulk consistent with surrounding residential development;
The proposed use broadly aligns with these outcomes and the type of development anticipated for the Visitor Mixed Use zone.  The business will add to the mix of entertainment and dining businesses in Sunshine Beach and venue for locals and visitors.  Since the use is consistent within the zone, The Noosa Plan provisions indicate it can be supported, provided the applicant demonstrates it will not cause undue impacts on the residential amenity of the area.
The proposal introduces some unique amenity considerations because it is the first licenced premises proposed at the south-western end of the neighbourhood centre (i.e toward the Douglas Street corner of Duke Street).  The site is adjacent a number of houses and unit buildings, which are accustomed to low levels of noise from the existing commercial uses at that end of the Duke Street neighbourhood centre, with these comprising offices, hairdresser and a daytime café (Costa Noosa).  Residents’ concerns with potential noise impacts have been reflected by the number of public submissions objecting to the development.  As such, noise associated with a new licenced premises in this location forms the critical assessment issue.
Noise
Following a Council request for further information, the applicant provided an Acoustic Assessment prepared by Road Pro Acoustics, which identifies the following potential noise sources:
Vocalisations from patrons, particularly in the outdoor areas;
Music;
Waste disposal from the kitchen to the bins at the rear of the site;
Vehicles at the rear of the site; and
General operational sounds e.g. roller doors being opened and closed, kitchen, sounds associated with dining such as cutlery, plates and glasses making contact with each other or another hard object, chairs moving etc.
The report states the proponent will seek a “subsidiary on-premises” liquor licence to allow for alcohol consumption in association with meals.  It adopts peak noise limits (at receptors) as identified by the Liquor Regulation 2000 for hospitality venues, being:
Between 6.00am and 10.00pm – LA10, adj ≤ background level LA90 + 10dB(A)
Between 10.00pm and 6.00am - LA10, adj ≤ background level LA90 + 5dB(A)
Adoption of liquor licencing noise criteria provides a practical approach because State Office of Liquor and Gaming Regulation (OLGR) officers are best equipped to monitor and enforce noise limits of licenced premises.  However, it is important to note Liquor Regulation limits represent relatively audible noise levels above background and are applied to venues in entertainment precincts, city CBD’s, and the like.  As such, Council may find those limits unsuitable to protect residential amenity in this location.
The applicant’s acoustic assessment provides only a desktop analysis and has not undertaken monitoring of background noise levels or noise generation by similar businesses.  It assumes background levels and adopts corresponding peak noise criteria, as follows:

Figure 3 – Background Noise Levels and Criteria
The assumed evening and night-time background levels of 40dB(A) and 35dB(A) are considered reasonably conservative and appropriate for the location.  They correlate with quiet suburban settings without significant traffic noise or allowances for wind/surf noises that occur intermittently in Sunshine Beach.
The assessment makes the following key findings:
Patron noise is likely to be the dominant noise source
Some operational aspects of the business, such as rubbish disposal and use of roller doors, have potential for noise nuisance and should be managed
Since the fitout of the premises is yet to be undertaken, design elements to minimise internal noise reverberation (and corresponding patron noise and noise spill) should be considered
The applicant’s consultant estimates a peak patron noise generation of 45dB(A), complying with the applicant’s adopted noise criteria up to 10pm only.  Critically, the noise assessment finds: after 10.00pm, noise from patrons could potentially exceed the criterion for that time and doesn’t identify any practical means of attenuating or managing patron noise after this time.  Council’s Environmental Health Officer reviewed the assessment and agrees noise generation after 10pm is a primary concern.  The issue was raised with the applicant who confirmed in writing it has no objection to a 10pm limit on trading.
In regard to patron noise in the evening prior to 10pm, the predicted peak noise generation of 45dB(A) correlates to the estimated background level +5dB(A), which is consistent with standard Council limits for residential areas.  Importantly, the noise assessment includes outdoor areas both within the site and on the adjacent footpath reserve.  Should the evening operation be found to cause undue noise Council would have the option to rescind any temporary footpath dining permit it issues.
While noise presents the primary risk and assessment issue for the application, it is considered that the new small venue can be supported, provided suitable noise conditions are applied to its operation.  Detailed conditions are included in the recommendation to address the following:
No trading after 10pm
No external speakers or amplified music
No amplified music to be audible outside the building after 7.30pm
Preparation of a Noise Management Plan addressing design and operation issues.
Noise limit of Maximum Background + 5dB(A) between 7.30pm to 10pm.
Land Use & Works Provisions
The following further codes which regulate land use and design are applicable to this application:
Business Uses Code
Driveways & Carparking Code
The application has been assessed against each and the pertinent issues arising out of the assessments are discussed below:
Code	Discussion
Business Uses Code	The code reiterates the need for new uses to avoid noise impacts on the surrounding area, as discussed above.  Further conditions are recommended to address screening of any new mechanical equipment.
Driveways & Carparking Code	Existing on-site parking for the office premises are limited, however, the new use meets scheme requirements of the code, as follows: Existing Office = 38m2 x 1space/20m2 = 2 spaces Proposal =  19.5m2 on site net use area  x 1space/10m2 = 2 spaces It is also noted a development contribution in lieu of 2 spaces not provided on site was previously paid for the site, with that contributing toward public parking and transport facilities the area.
cONSULTATION
IDAS Referral Agencies
Nil.
Other Referrals
The application was forwarded to Council’s Environmental Health Officer, whose comments form part of this report.
Public Notification
The application was publicly notified for 15 business days in accordance with the Sustainable Planning Act 2009.  41 properly made submissions were received of which 19 were objections and 22 were in support. The following table provides a summary and assessment of the issues raised by submitters.

Issues	Comments
Objections Patrons will cause noise nuisance to surrounding residential and visitor accommodation properties. Late night trading on Friday and Saturday is particularly concerning.	It is agreed the use has potential to cause noise nuisance, with detailed assessment of the issue provided in this report.  The applicant has agreed to reduce trading hours to 10pm and a number of conditions are recommended to further reduce the risk of noise.
Daytime and early evening trading is supported but not beyond 8pm.	An 8pm limit on trading is not considered reasonable, with the amended proposal of a 10pm close, subject to further noise and trading conditions, considered a balanced outcome.
More people drinking in the area will exacerbate problems with inebriated people on the streets late at night.	There are a number of existing licenced premises in the area, including the large surf club, with some trading to midnight.  The new small venue should not cause significant new impacts relating to unruly behaviour and small venues are commonly linked to improved responsible drinking outcomes.
There is a general shortage of parking in the area and the site will provide inadequate spaces.	Existing parking provision for the site meets the code requirements for the proposal.  Dining areas within the footpath reserve do not form part of the application and are not subject to parking requirements but would be assessed on merit prior to issue of a temporary permit.
Application appears to be for a bar, not a restaurant, given the hours.	The applicant has agreed to reduced trading hours and will be subject to further development conditions and liquor licencing requirements.
Food and delivery trucks will arrive at all hours.	The number of deliveries to the small premises should be limited and conditions are recommended to address noise impacts.
The restaurants in Sunshine Beach should be kept in one area not spread out.	The Visitor Mixed Use zone applies to the site and includes the lots between Duke Street and Douglas Lane.  The Noosa Plan identifies the area as Sunshine Beach’s neighbourhood area and encourages restaurant/café uses in this location, subject to impact assessment.
The venue has been subject to “pop up” events in the past with up to 60 people and caused considerable nuisance.	The applicant acknowledges that a previous unrelated tenant caused nuisance with its events and the noise assessment has sought to address these issues through conditions to control the use.
Conversion from an office will set a precedent and result in an influx of similar businesses at this end of the neighbourhood centre.	The Noosa Plan allows for entertainment and dining uses within the zone, subject to impact assessments.
Property values in the area will drop if the development is approved.	Property values are not a planning matter. The assessment seeks to ensure that residential amenity is protected.
Support The use is low impact, suitable for the setting, and in keeping with the village atmosphere.	Noted.
Will compliment and support existing businesses in the area.	Noted
Will create more jobs in the area.	Noted.
The operator is a professional, well respected member of the community and will enhance the precinct.	Not a planning matter.
Lack of existing places to get a good value lunch / take away in Sunshine Beach.	Noted.
conclusion
The application for a new small licenced café/restaurant premises at the south-western end of the Duke Street neighbourhood centre raises some concerns with potential noise generation.  The use is consistent within the site’s Visitor Mixed Use zone, however, surrounding residents are accustomed to low-noise generating uses from existing commercial premises. Residents’ concerns are reflected by a number of objections received during the application’s public notification period.

Noise formed the primary focus of the assessment, with the applicant’s acoustic report finding that patron noise is only likely to meet acceptable limits prior to 10pm. The applicant advised during the assessment that it would accept a 10pm limit on trading. In addition, the footpath trading area that forms the majority of the proposed outdoor dining area is not the subject of this application and will be subject to a temporary permit only. Council will have the option to rescind any permit for this area. Some patron noise risk remains prior to 10pm but it is considered that the use can be conditioned to appropriately manage that risk. The application is recommended for approval, subject to conditions.

Departments/Sections Consulted:

X	Community Services	X	Planning & Infrastructure
	Disaster Management & Public Order		Building & Plumbing Services
X	Waste & Environmental Health	X	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

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PLANNING & ORGANISATION COMMITTEE MEETING REPORT	21 JULY 2015

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Table 1 Background Noise Levels and Criteria — Café Noise

 

 

 

 

Day (6.00am — Evening (6.00pm — Night (10.00pm —
6.00pm) 10.00pm) 6.00am)
General Criterion LA90 + 10dB(A) LA90 + 10dB(A) LA90 + 5dB(A)
Background Noise 45 dB(A) 40 dB(A) 35 dB(A)
Level Laso
Site-Specific 55 dB(A) 50 dB(A) 40 dB(A)

Criterion Lato,agj