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51981.3345.01 & 51984.3154.01 APPPLICATION FOR A MINOR CHANGE TO DEVELOPMENT APPROVALS FOR A SEAFOOD KIOSK AT 185 WEYBA ROAD, NOOSAVILLE (Referred from Planning & Environment Committee dated 10 September 2024 - Item 5.2) · ATTACHMENT 1 - (51981.3345.01 & 51984.3154.01) - PLANNING OFFICER'S REPORT

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                              10 SEPTEMBER 2024



     ATTACHMENT 1 – (51981.3345.01 & 51984.3154.01) – PLANNING OFFICER’S REPORT


REPORT
1.     PROPOSAL
The applicant seeks approval to change two (2) existing development approvals for a takeaway
seafood kiosk to establish a bakery. To accommodate the bakery some alterations are proposed
to the building’s internal layout, including increasing the use area by 7m2, with a corresponding
reduction to the existing dwelling. It is also proposed to provide that table and chairs for up to 10
persons be provided on site for consumption of food and drinks within a 48m2 outdoor dining area.
The bakery is proposed to initially operate from 6am to 5pm from Wednesday to Sunday, increasing
to 7 days a week as business permits. The applicant has advised that there will be up to 5 staff
on site at any time with:
•    Two bakers (kitchen staff) to commence their shifts at 4:30am and 5:00am respectively. It is
     noted that the applicant originally proposed a baker to be on site from 4:00am, however
     subsequently changed this start time to 4:30am during the application process.
•    Two front of house staff to begin their shifts at 6:00am and 7:30am respectively.
•    A third front-of-house staff member will be added during busier periods such as Saturdays and
     school holidays, commencing at 6:30am.
•    Deliveries three times per week, after 8:00am.
The applicant has advised that the residents occupying the adjacent dwelling on site will be the
bakers who will be first person on shift each morning.
The applicant has provided a plan showing parking for 2 cars in an existing undercover carport.
No external changes are proposed to the building or to the site apart from removal of a garden
shed and garden bed to improve accessibility to the carport, with recent renovations undertaken to
the building’s façade to Weyba Road.




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Page 2

PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                   10 SEPTEMBER 2024




                     Figure 1 & 2 - Locality Plan & Site Aerial




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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                          10 SEPTEMBER 2024




                            Figure 3 - 1 May 1986 QLD Globe




               Figure 4 – Existing Floor Plan of Seafood Kiosk and Dwelling




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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                          10 SEPTEMBER 2024




                 Figure 5 – Proposed Floor Plan of Bakery and Dwelling




                         Figure 6 – Site Layout & Car Parking




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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                           10 SEPTEMBER 2024




                Figure 7 & 8 – Subject Site (August 2023 & August 2021)




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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT              10 SEPTEMBER 2024




                        Figure 9 – Outdoor ‘waiting area’




                      Figure 10 - Existing Access Driveway


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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                               10 SEPTEMBER 2024


2.        APPLICATION BACKGROUND
•    It is noted that the applicant did not seek any advice from Council on the proposal, either via a
     Written Advice or a Prelodgement Meeting, prior to lodging the minor change application.
•    The minor change application was lodged on 9 June 2023.
•    A request for Further Advice was issued by Council on 5 July 2023.
•    A site meeting was attended by Council Officers with the consultant on 25 July 2023.
•    A response to the Further Advice was received on 9 August 2023.
•    A second request for Further Advie was issued on 15 September 2023.
•    A response to the second Further Advice was received on 26 October 2023.
•    Discussions were held with the consultant following receipt of the second response where it
     was conveyed that Council was not supportive of the proposed minor change application.
•    The applicant provided further documentation on 25 January 2024 stating that they did not
     believe that an approval was required for the proposed minor change, as the proposal did not
     constitute a ‘material change of use’.
•    Council responded on 4 February 2024 confirming that an application is required, and that the
     proposal in fact did not constitute a minor change given the proposal results in a substantially
     different development to the approved use as the proposed changes would introduce new
     impacts and increase the severity of known impacts when considered in the context of the sites
     location in a residential area. It was recommended that the applicant withdraw the minor
     change application and submit a new Material Change of Use for a Food and drink outlet. It
     was also reiterated that the site is zoned Medium Density Residential and a Food & Drink Outlet
     is required to follow an impact assessment process and is identified as an inconsistent use in
     this zone.
•    The applicant requested a site meeting in May 2024. Council Officers attended the site on 21
     May 2024 to discuss the application with the applicant and consultant.
•    Council contacted the applicant on 30 May 2024 reiterating the advice provided on 4 February
     2024.
•    On 17 July 2024, the applicant contacted Council Officers and requested that Council finalise
     the assessment and that the matter be reported to Council for a decision to be made on the
     application.
3.        SITE BACKGROUND
•    An application for a shop was refused by Council in 1979.
•    Town Planning Consent (TPC 1503) for an extension to the existing dwelling house for the
     purpose of a kiosk for the vending of seafoods was approved on 18 November 1981. Condition
     18 of TPC 1503 requires:
     18.     The approval given herein is for the vending of take-away sea foods and does not
             permit the provision and serving of meals and refreshments for consumption on the
             land/or premises.
•    Town Planning Consent (TPC 1705) for an alteration to the kiosk (installation of cooking
     equipment) was approved on 23 January 1985. Condition 6 of TPC 1705 requires:
     6.            The approval granted permits the sale of takeaway seafoods only and no facilities
             shall be provided for the consumption of any food on the premises by the general
             public.



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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                                  10 SEPTEMBER 2024


•      Both TPC 1503 and TPC 1705 applications were lodged under the 1973 Town Planning
       Scheme for the Shire of Noosa. Under this scheme a kiosk was defined as a refreshment
       service and a bakery was a separately defined use being a service shop.
•      On 24 April 1989 Council issued a letter to the property owner in response to a request to
       provide onsite dining for ten (10) people. The letter refused the request, noting the conditions
       of TPC1705 which specifically prohibited the ‘consumption of any food on the premises by the
       general public’.
•      On 16 August 1990 Council resolved to register a Caterer’s Shop (seafood kiosk) over the site
       as an existing non-conforming use (NCU23). The use was pursuant to and in accordance with
       conditions of TPC 1503 and TPC 1705.
       Notably the registration of an existing non-confirming use is not an approval or continuing
       approval under the former planning legislation or the Planning Act 2016 and therefore no use
       rights are attributable to this registration. It was simply a register of, and an acknowledgement
       that the use was lawful despite the site being zoned for residential purposes.
•      On 2 April 2008 Council issued a letter in response to a ‘customised planning request’ received
       27 March 2008 requesting planning advice about the operation of a take-away fish and chip
       shop from the site. The letter noted Condition 18 of TPC1503 and Condition 6 of TPC1705,
       which specifically prohibited the consumption of food on site, further stating ‘in addition, these
       conditions make it clear that the use is for the sale of take-away sea-foods only. The sale of
       drinks and other food items is contrary to the approval.
4.       ASSESSMENT
4.1. Instruments for Statutory Assessment
Under the Planning Act 2016 the application must be assessed against each of the following
statutory planning instruments to the extent they are relevant to the development:
•      State Planning Policy;
•      South East Queensland Regional Plan;
•      Planning Regulation 2017;
•      The 1973 Town Planning Scheme for the Shire of Noosa;
•      Noosa Plan 2020.
Notably under s81 of the Planning Act 2016 Council must consider the planning scheme in effect
when the development applications for the development approvals were originally made (1973
Town Planning Scheme for the Shire of Noosa) but may give weight the Council considers
appropriate in the circumstances to the current planning scheme (Noosa Plan 2020).
4.2. Statutory Process
The applicant has requested to make a minor change to a development approval under s78 of the
Planning Act 2016. An application for a minor change to a development approval can only be made
in circumstances where a change would constitute a ‘minor change’.
A minor change to a development approval is defined under the Planning Act 2016 as meaning
that it:
(i)      would not result in substantially different development; and
(ii)      if a development application for the development, including the change, were made when
         the change application is made would not cause—
         (A)   the inclusion of prohibited development in the application;
         (B)   referral to a referral agency, other than to the chief executive, if there were no referral
               agencies for the development application; or
         (C)   referral to extra referral agencies, other than to the chief executive; or
                                                                                            Page 8 of 14

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                                10 SEPTEMBER 2024


      (D)   a referral agency, in assessing the application under section 55(2), to assess the
            application against, or have regard to, a matter, other than a matter the referral agency
            must have assessed the application against, or had regard to, when the application
            was made; or
      (E)   public notification if public notification was not required for the development application.
The proposed changes do not constitute a minor change to the development approvals as the
proposal would result in a substantially different development to the approved seafood kiosk. The
proposal is for a new use and will result in new impacts and increase the severity of known impacts.
In this regard the following is noted:
•   Under the 1973 Town Planning Scheme a kiosk was defined as a refreshment service and a
    bakery was a separately defined use.
•   Both developments approvals (TPC 1503 and TPC 1705) restricted the use of the kiosk to the
    sale of takeaway seafoods only, with no on-site dining permitted.
•   The site was zoned Residential A under the 1973 Town Planning Scheme and is zoned Medium
    density residential under Noosa Plan 2020. Both planning schemes do not contemplate a
    bakery establishing in these zones.
•   The 1973 Town Planning Scheme identified that Service Shops (bakery) was a ‘purpose for
    which buildings or other structures may not be erected or used or for which land may not be
    used’ within the Residential A zone.
•   Noosa Plan 2020 defines both a kiosk and bakery as a food and drink outlet, with a food and
    drink outlet identified as an inconsistent use in the zone.
•   It is important to acknowledge the existing kiosk use has not been recognised as a commercial
    node in the Noosa Plan 2020, and therefore does not seek to encourage broader commercial
    activities in this location beyond the existing approved use.
•   While both uses are similarly defined as a food and drink outlet under Noosa Plan 2020, since
    they both prepare and sell food and drink for consumption on or off the premises, the proposed
    bakery is likely to raise additional impacts when considered in the context of the conditions of
    the existing approval and the site’s location in a residential area.
•   The existing takeaway seafood kiosk and proposed bakery have different operating times and
    peaks, with the bakery proposed to open very early in the morning at 6am with a baker on site
    at 4am, a second baker at 5am and 2 front of house staff commencing their shifts at 5.30am
    and 6am.
•   The proposal includes an expansion in use area compared to the takeaway seafood kiosk, with
    provision proposed on site for table and chairs for up to 10 persons for consumption of food
    and drinks. This on-site dining is likely to generate additional noise impacts and increase car
    parking demands compared to the takeaway seafood kiosk.
•   The proposed bakery is anticipated to have additional staff on site compared to the takeaway
    seafood kiosk.
•   Residents in the area are likely to raise valid objection to the proposed changes and ought to
    be afforded an opportunity to make a submission.
Subsequently, the proposed changes do not constitute a minor change as defined by the Planning
Act 2016, as the proposed change would result in a substantially different development when
considered in the context of the site’s location in a residential area.
It is noted that the applicant provided a legal opinion stating that they did not believe that an
approval was required for the proposed minor change, as the proposal did not constitute a ‘material
change of use’. In response, Council also sought its own independent advice regarding the
application and the applicant’s assertion that the proposal did not require approval. This advice did
not concur with the applicant’s legal opinion and confirmed Council Officer’s were correct in their
                                                                                         Page 9 of 14

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                                10 SEPTEMBER 2024


position that the proposal would constitute substantially different development, and as such does
not satisfy the requirements of a minor change.
The applicant has been previously advised by Council officers that the proposed changes to the
development approvals are not considered to constitute a minor change and should they wish to
proceed with their proposal for the site, a new application for a Development Permit for Material
Change of Use for a Food and drink outlet should be lodged. Notwithstanding this, the applicant
has chosen to proceed with this minor change application.
4.3. Statutory Instruments – Planning Scheme
Existing Conditions
    Condition 18 of TPC 1503
    18.       The approval given herein is for the vending of take-away sea foods and does not
              permit the provision and serving of meals and refreshments for consumption on the
              land/or premises.
    Condition 6 of TPC 1705
    6.              The approval granted permits the sale of takeaway seafoods only and no facilities
              shall be provided for the consumption of any food on the premises by the general
              public.
Applicant’s Request
The applicant has requested to amend Condition 18 of TPC 1503 and Condition 6 of TPC 1705 to
read as follows:




The applicant has provided the following commentary in support of the proposed changes:
•        On 18 November 1987 Council approved an extension to the existing dwelling house for the
         purposed of a kiosk for the vending of sea foods (TPC 1503). The 1973 Planning Scheme
         categorises a Kiosk under 'refreshment service'. At this time the kiosk was only able to trade
         fresh seafood.

•        On 23 January 1985 Council approved alterations to an existing seafood kiosk (installation
         of cooking equipment) (TPC 1705). This installation of cooking equipment permitted the kiosk
         to trade as a takeaway fish and shop selling both fresh and cooked seafood to the public.

•        On 16 August 1990 council resolved to register a Caterer's Shop (seafood kiosk) over the
         site, as an existing non-conforming use (NCU 23). The use was pursuant to and in
         accordance with conditions of TPC 1503 and 1705.
         The 1985 Planning Scheme defines a 'Catering Shop' as-


                                                                                        Page 10 of 14

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                              10 SEPTEMBER 2024


      Any premises used or intended for use for the preparation by cooking or otherwise of light
      refreshments, take-away meals or bread, cakes or pastry and the supply of such on sale to
      the public for consumption elsewhere or on the premises.
      Therefore, it is clearly presented the change of conditions aligns with the existing use rights
      and will not impact upon the amenity of the locality. The bakery will not offer table service
      and all products will be sold in takeaway packaging.
Assessment
Under the 1973 Town Planning Scheme and Noosa Plan 2020, the land was included in a
residential zone and intended to accommodate residential uses. Residential uses surround the site
on all 3 sides and currently there is a critical demand for residential uses, with limited medium
density residential zoned land available.
Conversely, since the commencement of the seafood kiosk decades ago, a neighbourhood centre
has been established approximately 100 metres to the west of the subject site. This
neighbourhood centre includes a supermarket and various tenancies including The Bakers Pantry,
and is where food and drink outlets, shops and the like to service the neighbourhood are intended
to locate. Moreover, currently there is no shortage of commercial tenancies with vacant tenancies
available in nearby centres.
Both the 1973 Town Planning Scheme and Noosa Plan 2020 do not support the proposed bakery
with the nature and hours of the proposed bakery materially different to the seafood kiosk with very
early morning activity and on-site dining for 10 persons.
The Overall Outcomes of the Medium Density Residential Zone Code from Noosa Plan 2020 state
that:
(b)   Medium density residential neighbourhoods are predominantly home to permanent
      residents.
(d)   New uses are located, designed and managed to be compatible with surrounding uses.
(e)   The intrusion of incompatible uses, or uses which are more appropriately accommodated in
      other zones is avoided to protect land for dual occupancies, community residences, rooming
      accommodation, multiple dwellings, retirement and relocatable home park facilities.
(j)   Development maintains a high level of residential amenity having regard to traffic, noise,
      dust, odour, lighting and other locally specific impacts.
The Performance Outcomes and Acceptable Outcomes from the Code further state that:
PO1
Development provides for medium density dual occupancy and multiple dwellings in a range of
dwelling sizes and styles, which meet the needs of current and future resident populations including
small households, older persons, people on low incomes and people with special mobility needs.
PO5
Land uses are limited to those which are compatible with the medium density living in urban
neighbourhoods.
AO5.1
Land uses do not typically rely on people other than residents of the site to be present on the
site between the hours of 7:00pm and 7:00am.
AO5.2
Land uses do not result in adverse changes to the amenity of the residential neighbourhood by
the emission of noise, vibration, smell, fumes, smoke, vapour, steam, soot, ash, dust, grit, oil,
waste water, waste products, or radio or electrical interference.


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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                                10 SEPTEMBER 2024


The early morning working hours of 2 bakers, front of house staff and customers with on-site dining
for 10 people do not meet these outcomes, with the proposed bakery considered incompatible with
the surrounding residential uses and likely to have far greater adverse impact on residents than
the existing seafood kiosk. The applicant has not provided any acoustic report or the like to support
the application and demonstrate that no adverse amenity impacts will arise for surrounding
residents from the proposed bakery.
The proposed changes also seek to increase the total use area compared with the seafood kiosk,
however, provides no additional on-site car parking for customers or car parking for staff. The
proposed bakery includes an additional 7m2 internal area and a 48m2 outdoor dining area
compared to the seafood kiosk. The proposed bakery is also expected to have additional staff on
site compared to the previous seafood kiosk.
The Driveways & Carparking Code requires car parking at the rate of 1 space per 20m2 of total use
area for a bakery, which results in an additional 3 spaces being required. The applicant is unable
to provide additional functional car parking on site, with the existing carport clearly associated with
and required for the site’s existing dwelling.

                             NP2020 Requirements                  Proposed                Complies

  Dwelling house           2 covered carparks             2 covered carparks                  

  Food and drink outlet    1 space per 20m2 use area Nil                                      X
                           – 3 spaces

The applicant submits that the council has implemented two 10-minute parking spots on the street
to facilitate parking availability and there is abundant on-street parking accessible on both sides of
Weyba Road.
The proposal is expected to have a high turnover of customers, given it offers takeaway, with traffic
conditions and volumes on Weyba Road significantly different to what they were when the seafood
kiosk opened decades ago. On street parking is also often utilised by patrons to the neighbourhood
centre to the west and during larger events held at 155 Weyba Road, including the farmer’s market.
Residents and visitors to the area also frequent this car parking.




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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                                10 SEPTEMBER 2024




                      Figure 5 – Neighbour Centre approximately 100m to the west

It is noted that multiple planning schemes have commenced and been superseded in the 40 years
since the original kiosk was established on site, with the site remaining zoned for residential
purposes throughout each scheme iteration. The site has not been rezoned to reflect the
established commercial use on site, as it was considered any redevelopment of the site should be
for residential purposes to reflect the historic zoning and established character of the area.
As outlined above, the proposed changes do not constitute a minor change as defined by the
Planning Act 2016, as the proposed change would result in a substantially different development
when considered in the context of the site’s location in a residential area. The proposed bakery is
materially different to the approved takeaway seafood kiosk with its early morning starts, onsite
outdoor dining for 10 people, anticipated additional staff and increased car parking demands. The
proposed bakery is not consistent with the medium density residential zoning, with the site more
appropriately fully used for residential purposes and the proposed bakery located in a centre zone.
The applicant has also failed to demonstrate that the use will not adversely impact on surrounding
residents and has provided no additional on-site car parking to cater for the proposed increased
use area. The proposed minor change is therefore recommended for refusal.
5.    CONSULTATION
5.1. Referral Agencies
Not applicable
5.2. Other Referrals
The application was forwarded to the following internal Council specialists:
•    Development Engineer, Development Assessment
•    Principal Strategic Planner, Strategic Planning




                                                                                     Page 13 of 14

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT                               10 SEPTEMBER 2024


6.    CONCLUSION & REASONS FOR DECISION
It is concluded that the proposed changes do not constitute a minor change as defined by the
Planning Act 2016, as the proposed change would result in a substantially different development
when considered in the context of the site’s location in a residential area.
The proposed bakery is materially different to the approved takeaway seafood kiosk with its early
morning starts, onsite outdoor dining for 10 people, anticipated additional staff and increased car
parking demands. The proposed bakery is not consistent with the medium density residential
zoning, with the site more appropriately fully used for residential purposes and the proposed bakery
located in a centre zone. The applicant has also failed to demonstrate that the use will not
adversely impact on surrounding residents and has provided no additional on-site car parking to
cater for the proposed increased use area.
The application is therefore recommended for refusal.
Departments consulted:
     Office of the CEO, Mayor &               Community Services           Corporate Services
             Councillors
     Mayor & Councillors                   Director                     Director
     Chief Executive Officer               Community Development        Financial Services
     Executive Officers                    Sport & Active Lifestyles    Fleet
     Community Engagement                  Arts & Culture               Revenue Services
     People & Culture                      Community Connection         ICT
     Governance                            Customer Experience          Commercial Property
     Strategy & Environment &              Development & Regulation      Infrastructure Services
     Sustainable Development
     Director                          x   Director                     Director
 x   Strategic Land Use Planning       x   Development Assessment       Infrastructure Planning, Design
                                                                        and Delivery
     Economic     Development      &       Local Laws                   Civil and Asset operations
     Destination Management
     Environmental Services                Environmental Health         Asset Management
     Innovation & Digital Hub              Building & Plumbing          Building & Facilities
                                           Property / Permits           Disaster Management
                                                                        Waste




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