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Appendix F - Council Report - Change Application 28.2.19 · 51997.2302.01
Attached to the e-mail Change to DA Condition 4 (Cover over Restaurant) - 51997.2302.01.
Appendix F Noosa Council Planning Officer’s Report Request for Minor Change to Development – Condition 4 and Approved Plans 5/25 Hastings Street, Noosa Heads QLD 4567 described as Lot 5 on SP133504 Applicant: Goodger Holdings Pty Ltd T/A Seasons Restaurant Date: 28th February 2019 Unit 5, 100 Pickering Street, Enoggera 1
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Noosa Council documents
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< PLANNING OFFICERS’S (NG) REPORT
FILE: 11893TC
APPLICANT: Gary Skelton
OWNER: Tingirana Noosa Pty Ltd
SITE: 25 Hastings Street, Noosa Heads described as Lot 1 on
SP 133504, Parish of Weyba
AREA: 2023 m²
DEVELOPMENT Multiple Dwelling (18 units) accommodation building
APPROVAL: (18 units), 4 shops, restaurant and ancillary facilities
PROPOSAL: Change to an existing approval - modification to
conditions
DATE OF APPROVAL: 22 April 1998, (amended 25 November 1998 & 8 July
1999)
ZONE: Residential High Density
1 BACKGROUND
In April 1998, Council approved an application to redevelop the existing Tingirana Motel at
Hastings Street, Noosa Heads. The applicant proposed to demolish the existing building and
replace it with a multiple dwelling of 18 units, accommodation building of 18 units, 4 shops
and a restaurant.
Following approval of this proposal an application to modify conditions relating to
landscaping around the restaurant and a condition concerning parking was lodged in May
1998. Council agreed to the amendment of the landscaping however did not agree to the
amendment of the car parking conditions regarding access to the site by the public. This
aspect became the subject of a Planning & Environment Court Appeal, which was eventually
settled by a Consent Order.
In December 1998, Council considered a proposal to alter the approved plans with regard to
an overall net reduction in the scale of facilities and associated car parking requirements.
These changes included relocation of the restaurant, an increase in the size of the swimming
pool and pool concourse areas, provision of a second lift and relocation of the housekeeping
store and laundry areas. The application was subsequently approved.
In September 2000, the applicant requested release of the bond relating to performance of
conditions. Following a number of discussions and inspections of the site, the applicant was
advised that the outdoor dining area associated with Seasons restaurant was in breach of the
conditions of approval. Council requested that the guide rails, infills and plastic walls be
removed. The applicant removed the plastic infills, drop down sides and guide rails to ensure
compliance with the conditions of approval and the bank guarantee was released.
The plastic infills, drop down sides and guide rails have subsequently been reinstated.
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2 PROPOSAL
An application has now been lodged with Council to cancel a condition of the original
approval. The applicant requests deletion of Condition 4 of 11893TC which states:-
“the uncovered dining area on the northern side of the building must not be roofed or covered
by any form of structure. (Umbrellas not exceeding a dimension of 3.0 metres are
permitted).”
The applicant contends that this condition is unnecessarily restrictive and not required by any
provision of the Planning Scheme. The condition is indicated as not allowing adequate
weather protection for patrons and the applicant has submitted a sketch that shows the
proposed covering of the outdoor dining area (refer attachment 1). The covering comprises
“five umbrellas” which are joined by clear plastic infills to which clear plastic drop sides are
attached around the perimeter. The clear infills and drop sides are not permanently fixed and
can be removed whilst the applicant contends that the umbrellas are all fully operational and
can be moved up and down.
The applicant submits that the covering does not constitute a building but is a structure, which
is not fixed and therefore contends that the area does not constitute gross floor area or site
cover. The applicant further submits that as the outdoor dining area is lawfully approved and
that carparking was provided in accordance with the Scheme requirements at the time of
application, the issue of carparking should not be used to prevent deletion of Condition 4.
The applicant concludes that Condition 4 is considered unreasonable and irrelevant and
unnecessarily restricts the use of the outdoor dining area by preventing adequate weather
protection measures to be installed to improve amenity for patrons.
A copy of the applicant’s submission is included as Attachment 2.
3 ASSESSMENT
In assessing this application it is interesting to note the background history relating to the
outdoor dining area. The original plans considered and approved in 1998, indicated a covered
dining area in the northwestern section of the site with lightweight roofing material. This
covered dining area was set back 7 metres from the northern boundary and attracted one
additional carparking space pursuant to the provisions current at that time. (It is noted that the
Planning Scheme would now require five carparking spaces to be provided).
As part of assessment of the proposal it was noted that the redevelopment had a fairly
substantial building on the site and achieved the full entitlement in terms of gross floor area
and site coverage. The proposed restaurant was intended to provide only light protection to
what was primarily to be an outdoor dining area. The area had not been previously assessed
as site coverage or gross floor area and if it was converted to a more built form it was cited as
being contrary to the intent of the approval.
The changes application lodged in September 1998 altered the arrangements and plans
relating to the restaurant and outdoor dining area. In particular, the previous plans, which
provided a covered dining area in a light tensile fabric, relocated the restaurant under the
existing building. The remainder of the area was to remain as outdoor seating of 85m² not
covered by any structures only umbrellas.
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The applicant has outlined that the original Condition 3 indicated that the covered dining area
on the northern side must only be roofed with lightweight material. This aspect is not
relevant to the current proposal as the minor amendments lodged in September 1998 deleted
the original covered dining area.
The applicant’s submission is based on the condition being unnecessarily restrictive and not
required by any provision of the Planning Scheme. The applicant admits that the coverings
constitute a structure, however in their opinion believe it does not constitute a building, as
defined by the Planning Scheme, and as such does not constitute gross floor area or site cover.
In accordance with the Planning Scheme, a building is defined as - any fixed structure that is
wholly or partly enclosed by walls and is roofed. The term included any part of any building.
The applicant’s contention that it is not a fixed structure as the structures can be lowered or
removed in extreme weather conditions is questionable. The structures are relatively
permanent as they are bolted to the ground and have conduits for heating installed. In
combination with the drop down sides that on the west attach to a concrete wall/planter and
appear and function as walls, the structures are substantial and therefore may be classed as
part of the building. This has implications in terms of site cover and gross floor area.
The intent of the original condition was clearly described through the report and the original
plans submitted with the application. At all times the original plans and the applicant’s
original submissions detailed that this area was to be used as an open outdoor dining area.
Under the Scheme provisions in force at the time of assessment and under the current
Scheme, open outdoor eating areas are defined as:-
An outdoor area associated with a restaurant that is:-
(a) uncovered and open to the elements or
(b) covered with a pergola or open roof structure and does not include walls, which offers
limited protection from the elements.
As demonstrated by this definition, in place at time of assessment, the open outdoor eating
area was to be uncovered or covered with an open roof structure, providing limited protection.
The structures that have been provided with the clear plastic infills and drop down sides are
now not considered to be in accordance with the intent of this definition. In particular the
“umbrellas” are bolted to the ground, have conduits and heating located on their upper
supports. Furthermore the steel/aluminium rail provides further permanence to the structure
attaches all umbrellas.
The applicant’s submission that the condition is not relevant is not considered acceptable.
The original intent of the area was for it to be for an open outdoor dining area. Carparking
was assessed at a lesser rate on the basis of the previous Scheme definition. This Scheme
definition detailed lightweight structures, which afforded limited protection. The structure
that is in place is considered to be of a permanent nature, as evidenced by its use in fine
weather and provides more than limited protection to the elements. In essence, whilst no
objection is raised to the use of umbrellas on the site, as this would be in accordance with
open outdoor dining areas, the structure that has been provided is more substantial and able to
be classed as part of the building and not in accordance with the intent of the condition.
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4 CONCLUSION
Whilst it is agreed that the structure is relatively attractive and made of lightweight materials,
it is fairly substantial and contributes significantly to further covered areas associated with the
development. As previously noted, the original development was approved at maximum
gross floor area and site cover provisions. Whilst it is agreed that the structure provides
adequate weather protection and improves the amenity for patrons, the applicant’s submission
does not address the intent of the condition, which was to provide an open outdoor dining
area. In accordance with the provisions in force at the time of lodgement and assessment, the
outdoor dining area was to remain open, providing limited protection to patrons.
The applicant’s submission is not supported.
RECOMMENDATION
Council refuse to delete Condition 4 of development approval 11893TC for a Multiple
Dwelling (18 units) accommodation building (18 units) for shops, restaurant and ancillary
facilities at 25 Hastings Street, Noosa Heads described as Lot 1-3 on RP 56505, Parish of
Weyba, for the following reasons:-
1. The area was approved as an open outdoor eating area, which was to be uncovered and
open to the elements, or covered with a pergola or open roof structures, not including
walls, offering limited protection from the elements. The structure proposed is not
considered to be in accordance with the definition of the Planning Scheme relating to
open outdoor dining areas and Condition 4 reflects these provisions.
2. The structures on site are considered to constitute part of a building as they are bolted to
the ground, and have plastic infills, drop down plastic sides, reinforced rails around the
structures, conduits and heating located in the supports. When combined and connected
to the surrounding walls the structure becomes part of a building.
Directorates/Sections Consulted:
Business Corporate Services Community Services X Environ & Planning
Aquatic Centre Financial Services Art Gallery Building Services
Building Certific.Group Information Services Enterprise Group Environmental Services
Child Care Centre Legal Services Environmental Health Land Development
Council Laboratory Planning & Support Library X Land Use
Leisure Centre Revenue Services Public Order and Safety Plumbing Services
Water & Sewerage Recreational Services Strategic Planning
Respite Centre
Works Human Resources Exec. & Secretariat
Design
Survey
Works Administration
Works Implementation
Works Planning
Works Support
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Raul Weychardt (07) 54495228
TOWN PLANNING CONSENT PERMIT
NO.: 11893 TC
DATE OF ISSUE: 22 April 1998. Amended 25/11/98 with
changes to Conditions 3, 5, 27, 29, 41 &
43 and 2 additional conditions.
LAND: 25 Hastings Street Noosa Heads described
as Lots 1-3 on RP 56505 Parish of Weyba
AREA OF LAND: 2023m²
USE OF LAND AT THE TIME
OF APPLICATION: Motel, shops and restaurant
USE APPROVED IN THIS
PERMIT: Multiple dwelling (18 units),
accommodation building (18 units), shops,
restaurant and ancillary facilities
CONDITIONS:
Town Planning
1. There is to be no detrimental effect upon the amenity of the neighbourhood by reason of
the creation of excessive noise, lighting nuisance or other emissions. The developer is
to pay special attention to potential noise nuisances arising from the airconditioning
plant and swimming pool equipment and the potential for disturbance to the adjoining
residential property to the east. Swimming pool or spa pumps are to be located in a
manner which prevents noise disturbance beyond the subject land.
2. The open space and setback areas are to be landscaped in accordance with Council’s
Policy on Landscaping Guidelines and a properly prepared landscape plan to be
submitted to and approved by the Manager of Planning, prior to the issue of a Building
Approval. Such landscaping is to be completed in accordance with the approved
landscape plan, prior to the premises being occupied and maintained at all times
thereafter to the reasonable satisfaction of the Manager of Planning.
The plans are to address the existing dining area in The Parade, as required by the
relevant Engineering conditions.
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Town Planning Consent Permit - 11893 TC Page 2
Landscaping carried out in the Hastings Street setback area is to include some
substantial specimens to assist in an early landscaped treatment to the satisfaction of the
Manager of Planning. Landscaping works may also necessitate some modifications to
the proposed awning across the Hastings Street setback area.
3. Deleted.
4. The uncovered dining area on the northern side of the building must not be roofed or
covered by any form of structure. (Umbrellas not exceeding a dimension of 3.0 metres
are permitted).
5. The landscaped area on that part of the site between the dining areas and the northern
property boundary and the walkway to the west, must have a minimum width of
1000mm and a minimum average width of 1500mm over both landscaped areas.
6. No pedestrian access is to be obtained from the Parade to the dining area. Two
pedestrian accesses through the landscaping from the walkway to the dining area are
permitted but these must not exceed a width of 2.0 metres each.
7. The walkway at the western edge of the site is permitted to be closed during late night
and early morning hours as may be agreed by the Manager of Planning.
8. Not less than 16 carparking spaces will be available free of charge to customers and
patrons of the commercial premises whilst they are open for business and for staff
employed at the site. Any Community Management Statement must specify this
condition.
9. Existing trees on the site and within road reserves are to be retained, except where
required to be removed due to building operations or the conduct of the approved use.
The landscape plans referred to above are to denote areas of existing vegetation or
existing trees proposed to be retained. The existing Moreton Bay Ash tree in the south
eastern section of the site is to be retained. The developer shall submit a $20,000
security to ensure the protection of the tree. That security will be returned after a period
of 12 months has elapsed following completion of the construction and provided the
tree remains in a healthy state, to the satisfaction of the Manager of Planning. In the
event of the death of the tree or if there is evidence the tree is dying, during such period,
a replacement tree to the value of the security will be provided by the developer to the
satisfaction of the Manager of Planning.
It is noted that the existing rubber trees and umbrella trees present on the site will be
required to be removed to accommodate the proposed development.
10. Any advertising sign or device is to comply with the provisions of Council's policies on
advertising.
11. The footpath and setback areas are to be kept clear of goods, signs and street furniture
not approved by Council.
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Town Planning Consent Permit - 11893 TC Page 3
12. Where S.E.Q.E.B. require provision of a transformer, a pad mounted transformer,
together with access is to be located on site to the satisfaction of S.E.Q.E.B., the Shire
Engineer and Manager of Planning. The transformer is not to be located within
landscaped areas unless approved by the Manager of Planning.
13. Approval is to be obtained from the Beach Protection Authority for buildings or other
structures proposed to be located within the Coastal Management Control District.
14. A maximum of four shops are approved for this site.
15. Submission of security in the form of a cash bond or trading bank guarantee to the sum
of $30,000 to secure performance of conditions, prior to the issue of Building Approval.
This security is in addition to security referred to in any other conditions. The cash
bond or trading bank guarantee will be returned upon performance of the conditions of
approval.
The security required, must be lodged within two (2) years of the date of Council’s
decision. Alternatively, a written request may be made prior to this date, seeking an
extension of the two (2) year lodgement period. If neither of the above actions have
been undertaken within two (2) years of Council’s decision, then the decision in respect
of this application is void and ceases to have effect.
16. The provisions of this approval are to be effected, prior to the commencement of the
approved use. Council reserves the right to call upon the bond or guaranteed sum
referred to in this approval to effect compliance with conditions.
17. The Town Planning Consent Permit may be revoked pursuant to Section 4.14 of the
Local Government (Planning and Environment) Act if commencement of erection or
works have not been made in accordance with that Permit or the rights conferred by that
Permit are not exercised within two (2) years of the date of issue of the Permit.
18. The Town Planning Consent Permit lapses where:-
18.1 the use or erection of a building or other structure associated with the use, has not
been commenced within four (4) years of the date of issue of the Town Planning
Consent Permit, unless application is made and approved by Council for an
extension; or
18.2 the use of any premises pursuant to the Town Planning Consent Permit ceases for
a period of twelve (12) months.
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Health Department
19. Submission of two (2) sets of professionally drawn scale plans in compliance with
Council’s Code controlling food establishments for approval by Council’s
Environmental Health Officer, for any food premises proposed to be included in the
development. Approval is to be obtained prior to fitting out the building.
20. Submission of two (2) sets of professionally drawn scale plans in compliance with
Council’s Code controlling hair premises for approval by Council’s Environmental
Health Officer, for any hair premises proposed to be included in the development.
Approval is to be obtained prior to fitting out the building.
21. The developer is to assess the provision of refuse chutes, in accordance with Council’s
Policy for the storage of refuse in bulk containers. Loading areas are to be located off
street to the satisfaction of Council’s Shire Engineer and Environmental Health Officer.
The provision of refuse chutes is not a specific requirement under this approval.
22. As an alternative to the previous condition requesting for consideration to refuse chutes,
the developer shall otherwise provide an imperviously paved area to accommodate all
refuse and recycling containers to the reasonable satisfaction of Council’s
Environmental Health Officer. This area is to be aesthetically screened from any road
frontage or adjoining property boundary and is to be set back a distance of two (2)
metres from any road frontage. A suitable hosecock, hoses and approved drainage
outlet to Council’s sewer, are to be located in the vicinity of the refuse container area
for washing containers.
23. A plan of waste collection and storage methods should be developed in liaison with
Council’s Health Department due to the substantial size of the development and
expected waste generation.
24. A Trade Waste Permit is required for this business. A completed application together
with a fee of $125.00 and two (2) sets of professionally drawn plans showing the Trade
Waste requirements in accordance with the Noosa Trade Waste Policy are to be
submitted to Council. Approval is to be obtained prior to the commencement of any
construction associated with this development.
25. Any flat or unit intended to be let out for fee or reward is to be licensed annually with
Council’s Health Department in accordance with the provisions of Chapter 43 of
Council’s By-Laws prior to such letting.
26. The swimming pool shall be licensed annually with the Council’s Health Department in
accordance with the provisions of Chapter 42 of Council’s By-Laws.
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Engineering
27. Provision of at least 50 covered off-street car parking spaces and access thereto, which
are to be provided with a sealed pavement and designed, drained, constructed and
maintained in accordance with the Planning Scheme, Australian Standard 2890.1 (1993
edition), Council's Policies and to the reasonable satisfaction of the Shire Engineer.
Plans and specifications for these works are to be submitted to the Shire Engineer for
approval prior to a Development Permit being issued for Building Works. A
Development Permit for Building Works is not to be granted until the Shire Engineer
has approved of the carparking and access scheme.
28. All separate, adjoining lots that form part of this application are to be amalgamated into
one undivided lot in accordance with Section 5.11 of the Local Government (Planning
and Environment) Act, prior to the issue of a Building Approval.
29. The developer shall pay contributions in accordance with Council's Policy on Water
Supply Headworks Contributions and Sewerage Headworks Contributions. An estimate
only of the charges as at July 1998 under the current policy is as follows:-
Water Supply $ 45,378
Sewerage $ 55,101
TOTAL $100,479
Please note that the headworks charges will alter in accordance with Price Index
variations or if any amendment is made to Council's policy.
Headworks contributions shall be calculated and paid in accordance with either of the
following alternatives:-
29.1 Payment to be made prior to the issue of a Development Permit for building
works in the amount calculated under the Policy at that date; or
29.2 Payment may be deferred to a date:-
29.2.1 prior to Council sealing plans of the development for titling purposes;
29.2.2 prior to the issue of a Certificate of Classification for any building
works; or
29.2.3 prior to commencement of the approved use at the relevant premises;
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whichever is the sooner. Payment of deferred headworks contributions shall also be
subject to the following requirements:-
29.2.4 Payment of a bonding fee in the amount of $150 and submission of a
trading bank guarantee to the value of headworks assessed at the time
of submission, plus 20%, prior to the issue of a Development Permit
for building works;
29.2.5 Headworks shall be calculated as the value of headworks assessed at the
ordinarily due time of payment, plus interest charged at the rate set by
the Queensland Treasury Corporation for Local Government
borrowings as they apply to Noosa Shire. The interest rate used shall
be the rate current at the "time prescribed" above;
29.2.6 Should the contributions not be paid at the due time, Council shall call
upon the security lodged; and
in the case of a Development Permit for building works, if a permit expires the
securities will be returned.
30. The footpath across the Hastings Street frontage of the site is to be fully landscaped
from the kerb and channel to the property alignment to the satisfaction of the Shire
Engineer.
The pavement is to be designed and constructed to ensure pedestrian safety using non-
slip materials and to produce an evenly graded surface finish.
31. The developer will remove the existing dining facilities in The Parade. This area will be
reinstated to a suitable public area and landscaped to the requirements and satisfaction
of the Shire Engineer. Landscaping plans required by Condition 2 are to also address
this area.
32. The developer shall contribute toward, roadworks and landscaping improvements in the
Hastings Street locality in the amounts set out below. Such contributions shall be paid
prior to the issue of a Building Permit:-
Roadworks $24,000
Landscaping $12,000
33. The developer is to construct the basement carpark floor level to a minimum of 2 metres
AHD. This change in design is to be incorporated into the design of the ramp into the
carparking module, as well as in all other design drawings.
34. The developer shall bear the cost of alteration of any public utility or other facilities
necessitated by the development of the land or associated construction works external to
the site.
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35. The developer is to construct all walkways on the site in accordance with Council
requirements regarding grade, alignment and finishes.
In addition, the developer is to construct a drainage system along the western boundary
of the site to intercept any surface stormwater. In this regard, plans prepared by a
registered civil engineer are to be submitted to and approved by the Shire Engineer,
prior to the issue of a Building Approval.
36. Connection to Council's existing water supply and sewerage reticulation systems at the
developer's expense to the standards and requirements of Council's Shire Engineer.
37. The developer shall provide metered water connections from the water supply system to
the proposed development, in accordance with Council's standards and to the
satisfaction of the Shire Engineer.
38. Roof and surface water is to be collected on site and is to be discharged through a single
underground drain line into existing drainage in Hastings Street to the satisfaction of the
Shire Engineer. A Building Approval shall not be granted until the Shire Engineer has
approved of the drainage scheme.
39. Engineering drawings are to include sediment and erosion control plans from suitably
qualified consultants to be approved by the Shire Engineer. The plans are to show how
stormwater runoff within and from the site is to be controlled during construction. The
plans are to indicate measures to be taken to prevent erosion and the export of sediment
from the site and will embrace the basic principles set out in the Institution of Engineers
Australia Draft Engineering Guideline for Queensland Soil Erosion and Sediment
Control November 1994.
40. Advice from the Beach Protection Authority indicates that the existing rock protection
wall on the seaward side of the property is not capable of handling a storm surge of 1 in
10 years recurrence interval and will be overtopped under severe storm conditions.
The property owner should ensure that any improvements on the site are adequately
protected from wave inundation. Independent advice should be sought from a suitably
qualified professional engineer specialising in coastal engineering, as to whether any
additional protection works are required within the property boundary to afford greater
protection in the event that the sea overtopped or breached the rock protection wall.
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Building Department
41. Submission to and approval by Council of building plans in accordance with the
Building Act, Council’s By-laws and Policies, the conditions of this approval and
substantially in accordance with plans drawn by Goodwin & Southwell Architects
numbered 96/5/201-206 dated September, 1998 and the Shire of Noosa Planning
Scheme apart from where amendments are required or dispensations have been granted
in conjunction with this approval.
42. Construction work and other associated activities are permitted only during the hours of
7.00 a.m. to 6.00 p.m. Monday to Saturday. No work is permitted on public holidays,
except where extended hours are approved by the Building Surveyor.
43. Access for people with disabilities is required to comply with the requirements of Part
D3 of the Building Code of Australia 1996. The developer is to provide the required
number of units to be accessible and fitted out for use by people with disabilities.
Disabled access requirements must also be provided to the carparking access, access
from the road to the main entry foyer, access to the restaurant and other facilities
provided for use of the occupants.
44. Toilet facilities for use by staff and the public are to comply with the requirements of
the Building Code of Australia 1996. Restaurant facilities appear to be deficient and it
is also necessary to identify staff facilities for the restaurant.
45. Fire protection including the provision of on site fire hydrants, fire hose reels, smoke
detection and alarms, etc are to comply with the requirements of the Building Code of
Australia 1996.
46. Exit lighting and emergency lighting are to comply with the requirements of the
Building Code of Australia 1996.
47. The pool is to be isolated from the building with a complying pool safety fence.
48. Ventilation of the carpark basement is to comply with the requirements of the Building
Code of Australia 1996.
49. The developer is to install adequate protection including hoardings, if required, for
members of the public using the adjoining walkway to the west during construction to
the satisfaction of the Building Surveyor. Such protection shall also include adequate
protection to adjoining property.
50. The final design of the kitchen space of the proposed restaurant, shall be undertaken in
consultation with Council’s Chief Environmental Health Officer. The developer shall
comply with the reasonable requirements of the Chief Environmental Health Officer.
51. The restaurant approved on the site shall have a maximum of 100 diners/patrons.
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