Decision Notice - Minor Change - MCU15/0086.02

Officer: 	Patrick Murphy
Direct Telephone: 	53296436
Our Reference:	MCU15/0086.02
Your Reference:	n/a
22 October 2018
Little Sister
10 Nairana Rest
NOOSA HEADS  QLD  4567
[email protected]
Dear Sir
Decision Notice – Minor Change
Planning Act 2016
I refer to your application received on 16 August 2018, requesting a minor change to an existing development approval. Council decided your requested changes.
Details of the decision are as follows:
APPLICATION details
Application No:	MCU15/0086.02
Street address:	2 Bottlebrush Ave Noosa Heads Qld 4567
Real property description:	Lot 157 RP 88772
Planning Scheme:	The Noosa Plan (8 June 2018)
Decision details
The following type of approval was issued on 16 June 2016
•	Development Permit for Material Change of Use of Premises - Entertainment & Dining Business Type 1 - Food & Beverages
In relation to the request to make a minor change to the existing approval, Council on 18 October 2018, decided the requested changes. The changes are detailed below.
A.	Refuse to delete Conditions 3 and 7 for the following reasons:
1.	The proposed change to the condition 3 is likely to have a detrimental effect on the amenity of local residents contrary to the Noosa Heads Locality Code and the Business Uses Code.
2.	Condition 7 is necessary to allow for ongoing review of the outdoor dining area operations to ensure the area continues to be appropriately managed and noise impacts are not exacerbated over time, given the proximity of the site to residential properties, the open aired nature of the dining area, permitted patron numbers and the complaints received by Office of Liquor and Gaming Regulation.
B.	Amend conditions 3 and 7 to read as follows:
The approved use must not operate outside the hours of 5am to 12am, with use of outdoor dining area permitted after 10pm only on Friday to Monday nights inclusive.
This development permit lapses on 18 October 2020, unless written consent is provided by Council’s delegate to extend the approval. In assessing an extension to the approval, Council will have regard to any breach details available from the Office of Liquor & Gaming Regulation and any other relevant matters.
currency period of approval
The currency period for this development approval is 4 years starting the day that the original development approval MCU15/0086 took effect.
assessment manager conditions
PLANNING
When Conditions Must be Complied With
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
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
The approved use must not operate outside the hours of 5am to 12am, with use of outdoor dining area permitted after 10pm only on Friday to Monday nights inclusive.
Patrons in the outdoor dining area must be seated and limited to 50.
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.
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.
This development permit lapses on 18 October 2020, unless written consent is provided by Council’s delegate to extend the approval. In assessing an extension to the approval, Council will have regard to any breach details available from the Office of Liquor & Gaming Regulation and any other relevant matters.
Noise
External speakers or amplified music are not permitted.
Internal amplified music must be directed away from the Bottlebrush Avenue frontage.
Refuse disposal, particularly glass bottles and the like, must be considerate of noise at all times.
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.
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.
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.
Noise emissions from any new mechanical equipment associated with the development shall comply with the following requirements:
14.1	Air-conditioning and Refrigeration
7am to 10pm: Background + 5dB(A)
10pm to 7am: Background + 3dB(A)
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
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
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.
referral agencies
Not Applicable
advisory notes
The following notes are included for guidance and information purposes only and do not form part of the assessment manager conditions:
Equitable Access and Facilities
The plans for the proposed building work have NOT been assessed for compliance with the requirements of the National Construction Code - Building Code of Australia (Volume 1) as they relate to people with disabilities.
property notes
Not Applicable
variation approval details
Not Applicable
further development permits required
Not Applicable
submissions
Not Applicable
rights of appeal
You are entitled to appeal against this decision. A copy of the relevant appeal provisions from the Planning Act 2016 is attached.
During the appeal period, you as the applicant may suspend your appeal period and make written representations to Council about the conditions contained within the development approval. If Council agrees or agrees in part with the representations, a negotiated decision notice will be issued. Only one negotiated decision notice may be given.
other details
If you wish to obtain more information about the decision, electronic copies are available on line at www.noosa.qld.gov.au or at Council Offices.
Yours faithfully,
Kerri Coyle
Manager Development Assessment

Enc:	Referral Agency Response
Appeal Rights
Infrastructure Charge Notice
Approved Plans/Documents
cc.	Unitywater
DECISION NOTICE HISTORY
Original Decision Notice – 16 June 2016.
Negotiated Decision Notice – 18 August 2016, with an amendment to conditions 7
Decision Notice - Minor MCU15/0086.02 – 18 October 2018, with an amendment to conditions 3 & 7 and refuse to delete conditions 3 & 7

	Appeal Rights PLANNING ACT 2016 & PLANNING REGULATION 2017

Chapter 6 Dispute resolution
Part 1 Appeal rights
229 Appeals to tribunal or P&E Court
(1)	Schedule 1 of the Planning Act 2016 states –
(a)	Matters that may be appealed to –
(i)	either a tribunal or the P&E Court; or
(ii)	only a tribunal; or
(iii)	only the P&E Court; and
(b)	The person-
(i)	who may appeal a matter (the appellant); and
(ii)	who is a respondent in an appeal of the matter; and
(iii)	who is a co-respondent in an appeal of the matter; and
(iv)	who may elect to be a co-respondent in an appeal of the matter.
(2)	An appellant may start an appeal within the appeal period.
(3)	The appeal period is –
(a)	for an appeal by a building advisory agency – 10 business days after a decision notice for the decision is given to the agency; or
(b)	for an appeal against a deemed refusal – at any time after the deemed refusal happens; or
(c)	for an appeal against a decision of the Minister, under chapter 7, part 4, to register premises or to renew the registration of premises – 20 business days after a notice us published under section 269(3)(a) or (4); or
(d)	for an appeal against an infrastructure charges notice – 20 business days after the infrastructure charges notice is given to the person; or
(e)	for an appeal about a deemed approval of a development application for which a decision notice has not been given – 30 business days after the applicant gives the deemed approval notice to the assessment manager; or
(f)	for any other appeal – 20 business days after a notice of the decision for the matter, including an enforcement notice, is given to the person.
Note –
See the P&E Court Act for the court’s power to extend the appeal period.
(4)	Each respondent and co-respondent for an appeal may be heard in the appeal.
(5)	If an appeal is only about a referral agency’s response, the assessment manager may apply to the tribunal or P&E Court to withdraw from the appeal.
(6)	To remove any doubt. It is declared that an appeal against an infrastructure charges notice must not be about-
(a)	the adopted charge itself; or
(b)	for a decision about an offset or refund-
(i)	the establishment cost of trunk infrastructure identified in a LGIP; or
(ii)	the cost of infrastructure decided using the method included in the local government’s charges resolution.
230 Notice of appeal
(1)	An appellant starts an appeal by lodging, with the registrar of the tribunal or P&E Court, a notice of appeal that-
(a)	is in the approved form; and
(b)	succinctly states the grounds of the appeal.
(2)	The notice of appeal must be accompanied by the required fee.
(3)	The appellant or, for an appeal to a tribunal, the registrar must, within the service period, give a copy of the notice of appeal to –
(a)	the respondent for the appeal; and
(b)	each co-respondent for the appeal; and
(c)	for an appeal about a development application under schedule 1, table 1, item 1 – each principal submitter for the development application; and
(d)	for and appeal about a change application under schedule 1, table 1, item 2 – each principal submitter for the change application; and
(e)	each person who may elect to become a co-respondent for the appeal, other than an eligible submitter who is not a principal submitter in an appeal under paragraph (c) or (d); and
(f)	for an appeal to the P&E Court – the chief executive; and
(g)	for an appeal to a tribunal under another Act – any other person who the registrar considers appropriate.
(4)	The service period is –
(a)	if a submitter or advice agency started the appeal in the P&E Court – 2 business days after the appeal has started; or
(b)	otherwise – 10 business days after the appeal is started.
(5)	A notice of appeal given to a person who may elect to be a co-respondent must state the effect of subsection (6).
(6)	A person elects to be a co-respondent by filing a notice of election, in the approved form, within 10 business days after the notice of appeal is given to the person.
231 Other appeals
(1)	Subject to this chapter, schedule 1 and the P&E Court Act, unless the Supreme Court decides a decision or other matter under this Act is affected by jurisdictional error, the decision or matter is non-appealable.
(2)	The Judicial Review Act 1991, part 5 applies to the decision or matter to the extent it is affected by jurisdictional error.
(3)	A person who, but for subsection (1) could have made an application under the Judicial Review Act 1991 in relation to the decision or matter, may apply under part 4 of that Act for a statement of reasons in relation to the decision or matter.
(4)	In this section –
decision includes-
(a)	conduct engaged in for the purpose of making a decision; and
(b)	other conduct that relates to the making of a decision; and
(c)	the making of a decision or failure to make a decision; and
(d)	a purported decision; and
(e)	a deemed refusal.
non-appealable, for a decision or matter, means the decision or matter-
(a)	is final and conclusive; and
(b)	may not be challenged, appealed against, reviewed, quashed, set aside or called into question in any other way under the Judicial Review Act 1991 or otherwise, whether by the Supreme Court, another court, a tribunal or another entity; and
(c)	is not subject to any declaratory, injunctive or other order of the Supreme Court, another court, a tribunal or another entity on any ground.
232 Rules of the P&E Court
(1)	A person who is appealing to the P&E Court must comply with the rules of the court that apply to the appeal.
(2)	However, the P&E Court may hear and decide an appeal even if the person has not complied with the rules of the P&E Court

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PO Box 141		P. (07) 5329 6500	[email protected]	
	TEWANTIN  QLD  4565	F. (07) 5329 6501	www.noosa.qld.gov.au
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