Appendix F - Council Report - Change Application 28.2.19 · 51997.2302.01

Noosa Council documents




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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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                                                                                                               Print Date: 10 December 2018, 9:45 AM