MCU15/0086 - Attachment 1

Page 2

PLANNING & ORGANISATION COMMITTEE MEETING AGENDA                          2 FEBRUARY 2016


PLANNING
      When Conditions Must be Complied With
1.    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
2.    Development undertaken in accordance with this approval must generally comply with
      the approved plan of development. The approved plan is listed in the following table
      and may be further amended by these conditions.
       Plan No.     Rev.    Plan/Document Name                                Date
       A0             -     SITE PLAN                                         October 2015

      Nature and Extent of Approved Use
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 and Saturday nights.
4.    Patrons in the outdoor dining area must be seated and limited to 50.
5.    The outdoor dining areas within the site must be in accordance with those shown on
      the approved plan, with no more than 40m2 used at any one time.
6.    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.
      Noise
7.    External speakers or amplified music are not permitted.
8.    Internal amplified music must be directed away from the Bottlebrush Avenue frontage.
9.    Refuse disposal, particularly glass bottles and the like, must be considerate of noise at
      all times.
10.   Management must ensure patrons leave the premises and street frontage promptly
      after nightly closing time and do not mingle or otherwise cause noise nuisance to
      residents on Bottlebrush Avenue.
11.   The development must be undertaken in accordance with the recommendations of the
      Acoustic Report prepared by ATP Consulting Engineers (Reference ATP150314-NIA-
      02) dated 24 June 2015 and ATP’s addendum letters dated 9 October 2015 and 10
      December 2015.
12.   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.
13.   Noise emissions from any new mechanical equipment associated with the
      development shall comply with the following requirements:
      13.1. Air-conditioning and Refrigeration
            7am to 10pm: Background + 5dB(A)
            10pm to 7am: Background + 3dB(A)




                                                                                      Page 7 of 81

Page 3

PLANNING & ORGANISATION COMMITTEE MEETING AGENDA                              2 FEBRUARY 2016


14.   Written certification must be submitted from a suitably qualified person confirming
      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 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 the person you engage to certify the installation is involved
      prior to installation of any equipment so they can recommend where equipment is best located.
      They can also advise about noise enclosures and make other suggestions to avoid noise
      problems. It is a lot more costly to try and deal with noise problems after installation.
      Landscaping
15.   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.
      Refuse
16.   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.


REPORT
1.    PROPOSAL
The application seeks development approval for a Material Change of Use of Premises for
an Entertainment & Dining Business - Type 1 Food & Beverages at 2 Bottlebrush Avenue,
Noosa Heads. The proposal seeks to ratify the use of outdoor dining areas currently being
used in front of the Village Bicycle and Bean Drop businesses. The food and beverages
business use of the existing internal tenancies can occur as-of-right, subject to self-
assessable provisions under The Noosa Plan. However, addition of new outdoor dining
areas triggers a code assessable development application.

The proposed outdoor dining areas comprise:
   A 40m2 L-shaped area around the front and side wall of Village Bicycle
   An 18m2 area in front of Bean Drop Cafe

The applicant indicates the businesses operate during the following hours:
   Bean Drop Café 5am – 2pm
   Village Bicycle 2pm – 12pm

The proposal plan shows a portion of shared outdoor dining area in front of the Village
Bicycle to be used at varying times, with no more than 40m2 to be used at any one time.
The proposal plan and site photographs are included as Figures 1–5 below. The application
is before Council due to noise concerns raised by neighbours.




                                                                                          Page 8 of 81

Page 4

PLANNING & ORGANISATION COMMITTEE MEETING AGENDA        2 FEBRUARY 2016




                        Figure 1 – Proposal Plan




                     Figure 2 – Proposal Plan Extract



                                                                Page 9 of 81

Page 5

PLANNING & ORGANISATION COMMITTEE MEETING AGENDA              2 FEBRUARY 2016




                          Figure 3 – Street View




                 Figure 4 – Village Bicycle Site Photograph




                                                                     Page 10 of 81

Page 6

PLANNING & ORGANISATION COMMITTEE MEETING AGENDA                         2 FEBRUARY 2016




       Figure 5 – Village Bicycle Outdoor Area Adjacent to Bottlebrush Ave frontage
                               (looking toward Noosa Drive)

2.   SITE DETAILS
2.1. Background
A Town Planning Consent was issued in 1976 for the use of the site as offices (TPC 578).

The Noosa Plan allows for shops, offices and restaurants to establish within existing
buildings within the Business Centre zone, subject to self assessment. Bean Drop cafe has
been operating from the site for 4 years and Village Bicycle opened in April 2014.

Discussions with the Village Bicycle owners indicate they sought verbal planning advice
about the requirements for changing the use of the existing office premises to food and
beverages prior to establishing but did not advise Council staff of the intention to add new
outdoor dining areas.

The Village Bicycle is a licensed premises and sought changes to its liquor license through
the State Office of Liquor & Gaming Regulation (OLGR) in July 2015 to allow patrons to
stand and vary the amplified entertainment restrictions. The OLGR sought Council’s advice
in relation to the change and Council officers objected on the basis the use of the outdoor
areas was occurring without a development permit. The current application has been lodged
in response.

The changes sought by the applicant to its liquor licence are understood to have originated
from compliance action undertaken by the OLGR in response to noise complaints from an
adjacent resident. OLGR officers have since attended site on a number of occasions to
monitor compliance with its liquor licence conditions, including requirements for patrons to
be seated when outside and on site noise limits. The complainant to OLGR and two other
adjacent unit residents/owners have written to Council about the application asking for noise
to be addressed with this application.


                                                                                   Page 11 of 81

Page 7

PLANNING & ORGANISATION COMMITTEE MEETING AGENDA                         2 FEBRUARY 2016


2.2. Site Description
The site is located on the corner of Noosa Drive and Bottlebrush Avenue in Noosa Junction
and is within the Business Centre zone. The site slopes moderately down along its Noosa
Drive frontage toward the south. The site has been developed with an existing single-storey
commercial building of 3 tenancies, being Village Bicycle, Bean Drop and a Backpacker
Travel Agency.

The Village Bicycle tenancy is setback 4m from the Bottlebrush Avenue frontage and
approximately 3m below the existing road level. The site has been terraced to provide a
paved level area around most of the building’s frontage.

A locality and zoning plan of the site and surrounding area is shown in Figure 6 below.




                             Figure 6 – Locality & Zoning Plan
2.3. Surrounding Land Uses
Adjoining the site to the west along Noosa Drive are three small shop and restaurant
tenancies.
Adjoining the site to the south fronting Bottlebrush Avenue is the Noosa Central professional
offices.
Across the road to the east is the Nomads backpacker accommodation and the Koala Bar.
The property has n 1993 approval for a Motel and Hostel including a bar and restaurant –
TPC 2474.
Approximately 30m across the road to the north east are 12 townhouse units at No.1
Bottlebrush Avenue shown in Figure 6 below. Further detached houses and units are along
Bottlebrush Avenue to the southeast.



                                                                                   Page 12 of 81

Page 8

PLANNING & ORGANISATION COMMITTEE MEETING AGENDA                          2 FEBRUARY 2016




                      Figure 6 – Adjacent Bottlebrush Terraces Units
3.   ASSESSMENT
3.1. 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; and
   The Noosa Plan;
Of these, the statutory planning instruments relevant to this application are discussed in the
sections that follow.
3.2. State and Other Statutory Instruments
The site is located within the Urban Footprint Area of the SEQ Regional Plan. The proposed
use is consistent with the regional policies and regulatory provisions of the SEQ Regional
Plan.
3.3. Statutory Instruments – Planning Scheme
The site is located in the Noosa Heads Locality and is zoned Business Centre. The
proposed use is identified as a consistent use within the zone and is required to follow a
code assessable application process.
Land Use & Works Provisions
The following codes which regulate land use and design are applicable to this application:
    Noosa Heads Locality Code;
    Business Uses Code;
    Landscaping Code; and
    Engineering Works Codes
The application has been assessed against each of the above applicable codes. The
pertinent issues arising out of the assessment against the codes are discussed below:


                                                                                   Page 13 of 81

Page 9

PLANNING & ORGANISATION COMMITTEE MEETING AGENDA                             2 FEBRUARY 2016


Carparking and Use Areas
The Driveways and Parking Code calculates parking demand for food and beverage
businesses based on net use areas, exclusive of kitchens and the like. The proposal seeks
to maintain the development’s existing net use by limiting the use of the outdoor dining area
to 40m2 at any one time. This is considered reasonable and a condition is recommended
accordingly.
Noise
Noise is the critical aspect of the assessment. The introduction of outdoor dining areas on
the site introduces new noise sources with the potential to negatively impact on the amenity
of existing residences in Bottlebrush Avenue. In particular, the areas are within the line of
sight of some units in the adjacent Bottlebrush Terraces at 1 Bottlebrush Avenue and noise
complaints have been received from residents. Outcome O20 of the Business Uses Code
requires:
Development is designed and sited to avoid noise emissions that unreasonably diminish the
amenity of the area or surrounding uses.
The Noosa Heads Locality Code similarly seeks to protect the amenity of existing residents.
The applicant engaged acoustic consultants, ATP Consulting Engineers, to assess the
development’s noise impacts. The originally submitted Noise Impact Assessment report
material applied a maximum noise criteria at the nearest receiver at the Bottlebrush Terraces
of Background+5dB(A) and modelled marginal compliance with this limit based on the
construction of a 2.0m acoustic fence along the site’s Bottlebrush Avenue boundary.
Council planning and health officers had concerns with the potential for noise impacts under
the modelled scenario and requested the applicant provided further noise assessment
addressing:
      More stringent noise criteria of Background + 3dB(A) after 10pm;
      Use of more robust noise attenuation measures;
      Consideration of relocating some parts of the outdoor dining area.
The amended acoustic assessment resulted in the following noise criteria at sensitive
receivers:




The assumed evening and night-time background levels of 45dB(A) and 40dB(A) are
considered reasonable and appropriate for the location. They correlate with urban settings
having some traffic and commerce noise and are supported by the ATP’s background noise
recordings in the area.
ATP’s assessment notes the existing OLGR liquor licence applies the following enforceable
limit:
Noise emanating from the premises including amplified and non-amplified noise and patron
noise must not exceed 75dB(C), fast response, when measured approximately 3 metres
from the primary source of the noise.



                                                                                    Page 14 of 81

Page 10

PLANNING & ORGANISATION COMMITTEE MEETING AGENDA                             2 FEBRUARY 2016


ATP’s assessment finds both the OLGR criteria and the sensitive receiver criteria listed
above can be achieved provided the following measures are undertaken:
 Erection of a 2.6m high acoustic fence constructed of ship-lapped timber, fibre cement or
   similar;
 To ensure compliance with the day-time/evening (6am to 10pm) noise limit the
   instantaneous volume level in dB(A), at 3m from any of the speakers, must not exceed
   80dB(A);
 To ensure compliance with the night-time (10pm to 6am) noise limit the instantaneous
   volume level in dB(C), at 3m from any of the speakers, must not exceed 84dB(C) with bi-
   fold glass doors open.
 No speakers or live entertainers to be located outside of the building perimeter at any-
   time. The speakers shall always be located along the north-eastern wall facing in the
   south-westerly direction.
A 2.6m fence exceeds a standard 2m fence height limit but is considered acceptable in this
location, given the fence sits below the footpath, as shown below.




                    Figure 7 – Existing Timber Fence (Approx. 1.5m high)


Overall, the assessment of noise impacts for this development is vexed. The site is within
Noosa Junction’s Business Centre zone and is unique in having a primary frontage to Noosa
Drive and a secondary frontage to Bottlebrush Avenue. The Noosa Drive end of Noosa
Junction is increasingly becoming a focal point for food and beverage businesses that add to
the vitality of the area and serve an important function for both locals and tourists. While it is
desirable to see the vitality of Noosa Junction continue to increase, The Noosa Plan also
seeks to protect the amenity of existing residences. Future development of sites east along
Bottlebrush Drive could potentially raise major noise conflicts for residents opposite.
The submitted noise assessments indicate reasonable noise criteria can be achieved but are
based on modelled predictions and there is risk actual levels will exceed modelled levels.
Council asked the applicant to consider additional attenuation measures such as an acoustic
roof and wall to better enclose the outdoor area, as well as reduced business hours but the
applicant only proposed the acoustic fence and requests existing business hours be
maintained. In regard to business hours it submits:



                                                                                       Page 15 of 81

Page 11

PLANNING & ORGANISATION COMMITTEE MEETING AGENDA                          2 FEBRUARY 2016


“Our current trading hours are 4pm-midnight Mon-Sat, and 12.30-midnight Sun. Our kitchen
is open every night to 11.30pm. We cater to a lot of the hospitality staff who work in Noosa
that don't usually finish work until after 10pm when most other kitchens in Noosa are closed
apart from McDonald's. We have worked very hard to establish late night dining, so to lose
this would be very detrimental to our business. We feel a restriction on our trading hours
would be slightly unfair considering other businesses within very close proximity are allowed
to trade until midnight (and beyond). It was always our goal to create a relaxed social
environment within our community and in our short time of trading have secured a rather
large local following. The majority of which are made up of local hospitality workers who
know they can have an after work drink with something to eat.”
Discussions with State Liquor Licencing officers indicate they consider the business location
to be problematic and currently causing unacceptable levels of patron noise for adjacent
residents.   They advise patron noise is pervasive late at night and difficult to
contain/manage. To date OLGR investigation and resolution of complaints about the Village
Bicycle remain unresolved and OLGR is awaiting the outcome of this application.
On balance, use of the outdoor area to midnight 7 days a week in this location is not
supported by Council officers because of the likely ongoing amenity impacts on residents.
Outdoor use to midnight is only recommended on Fridays and Saturdays, which is consistent
with The Noosa Plan’s provisions for the Visitor Mixed Used zoned areas along Gympie
Terrace and Hastings Street and provides residents with some respite.
Further noise management measures should comprise:
   Construction of the 2.6m high acoustic fence to the Bottlebrush Avenue.
   Planting of dense native shrubs to 3m high to screen the acoustic fence.
   External speakers or amplified music are not permitted.
   Internal amplified music to be directed away from the Bottlebrush Avenue frontage.
   Patrons in the outdoor use area to be seated and limited to 50 (per current seating).
Conditions are included in the recommendation accordingly.


4.   CONSULTATION

4.1. IDAS Referral Agencies
Not Applicable

4.2. Other Referrals
The application was forwarded to the following internal Council specialists:
   Environmental Health Officer

4.3. Public Notification
Not Applicable




                                                                                   Page 16 of 81

Page 12

PLANNING & ORGANISATION COMMITTEE MEETING AGENDA                                   2 FEBRUARY 2016


5.     CONCLUSION
The application is for a consistent food and beverages use within the Business Centre zone
and triggers code assessment due to the addition of outdoor dining areas. The site’s
secondary frontage to Bottlebrush Avenue raises specific noise concerns and complaints
about patron noise have previously been received from adjacent residents in Bottlebrush
Avenue.

The noise assessment for this development is considered vexed. Food and beverages uses
add to the vitality of Noosa Junction and the area toward Noosa Drive increasingly supports
restaurant and bar businesses valued by locals and tourists. It is desirable to see the area
continue to revitalise, provided new uses respect the amenity of existing residents.

The applicant’s acoustic modelling indicates the development can comply with relatively
strict noise limits at the nearest residences via the construction of an acoustic fence and
other measures. However, the noise assessment is a modelled scenario only and patron
noise at licensed premises is known to be difficult to control. The current daily use of the
outdoor area to midnight is not considered appropriate in this location close to adjacent
residents and The Noosa Plan seeks to limit late night trading to Fridays and Saturdays in
similar circumstances within the Visitor Mixed Use zone. As such it is recommended use of
the outdoor area be limited to those two nights and the following noise management
measures be required:

     Construction of the 2.6m high acoustic fence to the Bottlebrush Avenue.
     Planting of dense native shrubs to 3m high to screen the acoustic fence.
     External speakers or amplified music not permitted.
     Internal amplified music to be directed away from the Bottlebrush Avenue frontage.
     Patrons to be seated in the outdoor dining area and limited to 50, per current seating
       numbers.

The application is recommended for approval, subject to conditions.

Departments/Sections Consulted:

     Chief Executive Officer                x   Community Services                 Corporate Services
     Executive Officer to the Mayor & CEO       Community Facilities               Financial Services
     Executive Support                          Community Development              ICT
                                                Libraries & Galleries              Procurement & Fleet
                                                Local Laws                         Property & Facilities
                                            x   Waste & Environmental Health       Revenue Services

x    Executive Office                       x   Planning & Infrastructure
     Community Engagement                       Building & Plumbing Services
     Customer Service                           Civil Operations
     Economic Development                       Infrastructure Planning & Design
     Governance                             x   Planning & Environment
     Human Resources                            Strategic Land Use Planning
     Sustainability




                                                                                               Page 17 of 81