Council Planning Report MCU17/0049

MCU17/0049 – development application for material change of use for home based business type 3 – swim school at 8 mckenna ct, noosaville

Document information

Author	Assistant Development Planner, Billy Glover
Environment & Sustainable Development

Index	MCU17/0049

Attachments	Nil

APPLICATION DETAILS
Applicant	Noosa Town Planning
Proposal	Development Permit for Material Change of Use of Premises – Home-based business Type 3 - Swim School
Properly Made Date	18 May 2017
Information Request Date	14 June 2017
Information Response Date	29 June 2017
Decision Due Date	10 September 2017
Number of Submissions	19

PROPERTY DETAILS
Property Address	8 McKenna Ct NOOSAVILLE  QLD  4566
RP Description	Lot 75 RP 869151
Land Area	680 Square Metres
Existing Use of Land	Detached House

STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Locality	Noosaville
Zone	Detached Housing
Overlays	None
Assessment Type	Impact
RECOMMENDATION
That Council note the report by the Assistant Development Planner to the Planning & Environment Committee Meeting dated 10 October 2017 regarding Application No. MCU17/0049 for a Development Permit for (Home Based Business Type 3 - Swim School), situated at 8 McKenna Ct Noosaville and:
Refuse the application for the following reasons:
1.	The application is contrary to The Noosa Plan and Home-based Business Code as the proposed use will adversely impact on the amenity of surrounding residents due to noise generated by the business and unsatisfactory provision of on-site car parking.
2.	The applicant has not satisfactorily demonstrated that noise generated by the business activities will be satisfactorily mitigated for surrounding residents.
3.	The scale and nature of the business is not appropriate or relative to the residential property and is likely to dominate and conflict with the surrounding area given the number of classes and operating hours proposed.
4.	A number of properly made submissions were received from surrounding residents raising valid objections to the proposed business.
Advise the applicant that the business is currently operating in breach of the Noosa Plan and the Planning Act 2016 and must cease operating by the 16 November 2017.

REPORT
PROPOSAL
The application seeks approval for a Type 3 Home-based business – Swim School at 8 McKenna Ct, Noosaville.
The home based swim school business is proposed to operate Monday to Friday, commencing at 8:30am and concluding at 6:00pm, with a break between 12:00pm (midday) and 2:30pm. The classes are proposed to be held for 30 weeks a year, from January to the beginning of May and recommencing at the end of August through to the beginning of December, relative to the school terms. The proposed business will not run on public holidays or during the Christmas holidays.
A maximum of 10 classes and 3 students in each class will be held each day. Each class is proposed to run for 30 minutes and have a 15 minute break between classes to prevent the overlap of visiting clients on the site. The applicant has indicated there are 3 car parking spaces to accommodate the visitors to the site, one in the dwelling’s double garage and two in the driveway.
To mitigate noise from the business the applicant has indicated a willingness to construct an acoustic fence along a portion of the eastern boundary.

Figure 1 – Site Location
site details
Background
One resident of the Detached House has been operating a swim school from the site since October 2016. Council received a complaint some months after commencement of the use. The operator at the time advised that they had been informed the business was a Type 1 Home-based business and did not require approval for the use. The business however, is clearly defined as a Home-based business Type 3 use, due to the business being conducted outdoors and involving noise generating activities. Council officers responded to the complaint and notified the operator accordingly. The applicant subsequently engaged Noosa Town Planning to submit the home-based business application to Council seeking approval.
Throughout the application process, Council officers attended the McKenna Ct site, surrounding streets and adjoining properties to better understand the proposal and determine the proposal’s potential impact on the area in regard to noise, carparking and overall amenity.
Council officers also met with the applicant to discuss the application and any changes that could be made to better protect surrounding resident’s amenity and address the issues raised by submitters prior to finalising the Council report. The applicant responded advising that flexibility is required in the operating days and the number of classes available for her clients, but is willing to reduce the maximum number of classes from 10 to 9 classes per day Monday to Thursday and to 4 classes on Friday. The applicant also further submitted that the proposed acoustic fence would appropriately mitigate any noise from the business.
Site Description
The site is described as 8 McKenna Ct, Noosaville, on Lot 75 RP 869151 and is located in the Detached Housing Zone of the Noosaville Locality. The site is 680 square metres and has a 20m road frontage to McKenna Ct. The pool used for the swim school business is located at the south-east corner of the lot to the rear. The pool is adjacent to the outdoor entertaining areas of the dwellings of the adjoining neighbours.
Surrounding Land Uses
McKenna Ct is a residential cul-de-sac of 19 residential properties, located not far off Goodchap St.  Properties on the northern side of McKenna Ct back on to Wallace Park.
assessment
Statutory Instruments – Planning Scheme
The proposed swim school use is identified as an inconsistent use within the zone and is required to follow an impact assessable application process. Home-based Business Type 3 is identified as an inconsistent use for residential properties as Type 3 businesses operate outside and include noise generating activities. Home-based Business Type 3 is only identified as consistent for the rural settlement and rural zones which generally provide much greater separation distances for residents.
Locality Provisions
The Detached Housing zone is intended to provide for a high level of residential amenity for residents and recognises the locality’s neighbourhoods are of varied character. Specific Outcomes O1 of the Noosaville Locality Code seeks to ensure uses avoid significant adverse impacts on the amenity enjoyed by residents, including acoustic qualities. The proposed swim school has the potential to significantly impact on surrounding resident’s amenity due to the noise from classes, and the number and frequency of classes being held. A number of inspections and discussions with nearby neighbours showed that the swim class instructions and noise from students receiving instruction are clearly audible to residents adjacent the pool and at times other residents in the area.  In this regard, submitters have indicated that some children attending classes cry throughout their lesson and this is very disturbing. The respective location of the pool on the subject site is shown below (Refer to figure 2).

Figure 2 – Location of pool on site
Home-Based Business Provisions
Noise
The noise generated by the business is currently clearly audible to residents adjacent to the site’s pool throughout the operating hours of the use. While the proposed acoustic wall may assist in reducing noise levels of the proposed swim school to the adjoining property on the eastern boundary somewhat, it is unlikely to be fully effective. (Refer to Figures 3 and 4).
Councils Environmental Health Coordinator has advised that noise from the business’s activities would travel over the proposed acoustic fence and the fence would need to be higher to satisfactorily mitigate noise. Council’s Environmental Health Coordinator advises that the pool would have to be fully enclosed to satisfactorily mitigate noise impacts for adjoining residents. The noise cannot be suitably contained within the boundaries of the site without significant works and the applicant has advised that enclosing the pool would not be viable.

Figure 3 – Pool perspective facing the eastern fence and boundary of the site

Figure 4 – Pool perspective facing the southern fence and boundary of the site
Car parking
The applicant has suggested carparking provision for 3 visitors and one resident. The Noosa Plan requires provision of 4 visitor carparks for a Type 3 Home-based business use. The proposed site is capable of providing 3 visitor car parking spaces but this includes the use of the garage for one of those carparking spaces. It is considered that the garage is not a practicable visitor carpark space and is unlikely to be used by clients and for the most part clients are likely to park in the street. Therefore, the proposal does not meet the Noosa Plan’s requirements for onsite carparking (Refer to Figure 5).

Figure 5 – Visitor car parking designation			(Noosa Town Planning 2017)
The current on street vehicle parking is pictured below. These vehicles are likely to include other residents and their visitors as well as cars associated with the swim school. Notably at the time this picture was taken, the swim school was operating and there were no cars parked in the driveway. (Refer to figure 6).

Figure 6 – Current on street vehicle parking
The application has been assessed against the Home-based Business Code. Specific Outcome O53 of this Code seeks to ensure uses do not interfere with the amenity of the neighbourhood including acoustic qualities. Specific Outcome O59 seeks to ensure adequate off-street vehicle parking is provided without causing adverse impact to the residents of adjoining properties.
The pertinent issues arising out of the assessment against the Home-based Business Code are discussed below:
Code	Discussion
Home-based business code	Noise It is determined that the noise from the business use will not be able to be suitably contained within the boundaries of the site, without the pool being enclosed. Car parking The available car parking provisions and class times are not suitable to accommodate for the users of the proposed business and requirements of The Noosa Plan. Submitters have indicated that the on street car parking generated by the business is impacting on them and use of McKenna Ct.
The areas of non-compliance with the Home-based business code are addressed below:
Home-based business code	Proposed	Compliance
O53 The Home-based business does not interfere with the amenity of the neighbourhood from the operation of machinery or electrical equipment or from light, noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, grit, oil, dust, waste water, waste products, electrical interference, traffic generation or otherwise;	The noise generated by the business use interferes with the amenity of neighbouring residents located adjacent to the swimming pool.  The proposed reduction in class numbers and times does little to address these amenity impacts.	X
O54 The scale and nature of the business is relative to the lot size and does not dominate or conflict with the area in which it is situated;	The size of the property and location of the pool in relation to surrounding properties does not provide sufficient separation for surrounding residents. The business use proposes up to 9 classes each day and operates from Monday to Friday, which is likely to dominate the amenity for those immediate neighbours.	X
O59 Adequate off-street vehicle parking is provided for the users of the operation without causing adverse impact to the residents of adjoining properties.	The site does not provide adequate off-street vehicle parking for users of the operation.	X
O60 The hours of operation do not cause environmental nuisance to neighbouring residents.	The hours of operation of the business are Monday to Friday 8:30am to 6:00pm, with a break between 12:00pm (midday) to 2:30pm is considered excessive for a use that operates outside in a residential area with associated noise impacts.	X
cONSULTATION
Other Referrals
Not applicable
Public Notification
The application was publicly notified for 15 business days in accordance with the Sustainable Planning Act 2009. The development proposal was publicly notified in the Noosa Today Newspaper on Thursday 6 July and on site from Thursday 6 July to Friday 28 July 2017. 19 properly made submissions were received. 10 submissions were made in support and 9 submissions in objection to the development application. The following table provides a summary and assessment of the issues raised by submitters. A map below shows the locations of the submitters identifying those objecting and in support of the application. (Refer to Figure 7).
Issues	Comments
Impact to amenity (Noise, parking)	7 submissions (object) were made in regards to the negative affect on the surrounding amenity. This included noise generation concerns from the use and impact on surrounding neighbours. Concerns were also raised in regard to street amenity impacts, as parking and manoeuvrability in the street was said to be negatively impacted by the proposed use.
Community need	6 submissions (support) were made in regards to the home based business being an asset and benefit to the community.
No impact to surrounding area	4 submissions (support) were made in regard to the home based business not having any affect to neighbouring properties and on street parking.
Inconsistent use (Residential area)	2 submissions (object) were made in regard to the inconsistent and incompatible business use in a residential area, submissions suggested that the particular use belongs in a community area (public pool).

Figure 7 – Map of submitters

conclusion
The proposed business use is considered to be unsuitable for the site, due to the noise generated by the business, the proposed extensive operating hours, close proximity to neighbouring houses and limited off-street vehicle parking availability. This is evidenced by the objections received from those residents directly adjacent the pool. The proposed reduced number of classes does little to address these amenity impacts and similarly an acoustic fence is unlikely to be effective in this instance due to its restricted height. The applicant has further not been able to provide satisfactory car parking on site and this is likely to contribute some nuisance and disruption in the street for residents.
It is further recommended that the applicant be advised that they must cease operating the swim school which is currently operating in breach of the Noosa Plan and the Planning Act 2016. In this regard a period of 20 business days from Council’s decision is considered a reasonable time frame for the applicant and parents to make alternative arrangements for swimming lessons, considering the impacts of the business on adjacent residents
Departments/Sections Consulted:
	Chief Executive Officer	X	Community Services		Corporate Services
	Executive Officer		Community Development		Financial Services
	Executive Support		Community Facilities		ICT
			Libraries & Galleries		Procurement & Fleet
			Local Laws		Property
		X	Waste & Environmental Health		Revenue Services
					
	Executive Services	X	Environment & Sustainable Development		Infrastructure Services
	Community Engagement		Building & Plumbing Services		Asset Management
	Customer Service	X	Development Assessment		Buildings and Facilities
	Governance		Economic Development		Civil Operations
	People and Culture		Environmental Services		Disaster Management
			Strategic Land Use Planning		Infrastructure Planning, Design and Delivery
					

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT	10 OCTOBER 2017

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