OPW16/0189 - Development Application For Operational Works Prescribed Tidal Works - Extension To An Existing Deck 290 Gympie Terrace Noosaville

OPW16/0189 - DEVELOPMENT APPLICATION FOR OPERATIONAL WORKS PRESCRIBED TIDAL WORKS - EXTENSION TO AN EXISTING DECK 290 GYMPIE TERRACE NOOSAVILLE

Document information

Author	Planning Coordinator, Patrick Murphy
	Planning & Infrastructure Department
Index		ECM/Application/OPW16/0189
Attachments		1. 	Locality Plan

APPLICATION DETAILS
Applicant	Pile-It Pty Ltd
Proposal	Development Permit for Operational Works Prescribed Tidal Works – Extension to an existing deck
Properly Made Date	12 September 2016
Information Request Date	30 September 2016
Information Response Date	7 March 2017
Decision Due Date	4 April 2017

PROPERTY DETAILS
Property Address	Jetty 290 Gympie Terrace NOOSAVILLE  QLD  4566
RP Description	Lot 159 CP 901988
Land Area	1859 Square Metres
Existing Use of Land	Jetty for boat hire and ferry access

STATUTORY DETAILS
SEQRP Designation	N/A
Locality	Noosaville
Zone	N/A
Overlays	Acid Sulphate Soils, Flood Hazard
Assessment Type	Code
RECOMMENDATION
That Council note the report by the Coordinator Planning to the Planning & Environment Committee Meeting dated 11 April 2017 regarding Application No. OPW16/0189 for a Development Permit for Operational Works for Prescribed Tidal Works – Extension to an Existing Deck situated at 290 Gympie Terrace Noosaville and:
Refuse the application for the following reasons:
The proposed works are contrary to the Noosaville Locality Code as the works are for non-marine commercial purposes that will result in an increase in the overall scale and intensity of commercial operations on and adjacent to the Noosa River;
The proposed works are contrary to the Watercourses Works Code as the works are not for the sole purpose of providing access to vessels and the applicant has not demonstrated clear public benefit and support for the works; and
The proposed works are contrary to the IDAS Code for Prescribed Tidal Works as the proposal does not make any provision towards car parking facilities.
Advise the applicant that a Material Change of Use is required for the cafe to operate from the premises and that Council will give further consideration to the decks at the time the Material Change of Use application is lodged and once community consultation is undertaken for the Noosaville Foreshore Land Use Master Plan.

REPORT
PROPOSAL
The application seeks retrospective Operational Works approval for the construction of two decks. The decks are adjacent to the eastern and western side of an existing structure on the site. The proposed increases in area to the decks are:
Eastern side deck:  6.72m2- 1.60 metres x 4.20 metres
Western side deck: 6.84m2 - 5.7 metres x 1.20 metres
The applicant advises:
that the proposed extension to the existing decks was necessary to maintain a clear pathway for public access to the jetty and ferry pick-up area once the access stairs to the building were re-built to the current building code. The deck extensions provide a shaded seated waiting area away from the existing public footpath for customers waiting for hire boats and ferry pick-up. There are no changes/modifications to the existing premise to support the intended uses.
The following image details the area of proposed works.

Figure 1: Site Plan

Figure 2: Photograph of works area to eastern side of existing building during construction

site details
Background
Application number	Details of approval	Approval date
TPC 158	Extension workshop and office	16 December 1971
The plans submitted with the application identify existing decking to the east and west of the existing building. The approved plan for TPC 158 does not include any deck areas to the east and west of the existing building. There is no record on Council’s information systems of an approval being obtained for the ‘existing’ decks.

Figure 3: Plan approved under TPC 158
A review of aerial photography identifies that these decks were constructed after 1 September 2014.

Figure 4: Aerial photograph 1 September 2014 (NearMap)

Figure 5: Aerial photograph 9 April 2015 (NearMap)

Figure 6: Aerial photograph 17 February 2017 (NearMap)
It is estimated that at least 20 square metres of additional decking has been developed and the building extended towards the front of the site since approval TPC 158 was issued. There is no record within Council’s electronic records management systems of any approval for these works.
The building as indicated by TPC 158, has been previously used in association with boat hire and as a pick-up and drop off point for the Noosa River Ferry. It is also possible that there has been the incidental sale of drinks, ice cream, fishing tackle and the like, although Council holds no records of this.
In August 2014 Council officers provided written advice regarding the selling of coffee and pre-packaged food from the premises, the advice included the following:
Council considers the selling of coffee and limited food products from the T Boats lease area to be ancillary to the main use of the premises for boat hire, as long as it remains small scale and is operated in a “take away” style. There is to be no expansion of the lease area to accommodate the use or provision of seating on Council land; the coffee sale needs to be internal to the existing boat hire office/shop.
Whilst the application is for an Operational Works approval, assessment has identified that the works for which approval is sought, facilitate an intensification of the retail sales that may have been previously occurring on the land. This intensification of the use goes beyond that which may be allowed under existing use rights. The use is best described as a café. Due to the amount of patrons able to be accommodated on site the café is a separate land use requiring a Development Permit for a Material Change of Use for Entertainment and Dining Business – Type 1 Food and Beverages.
An inspection of the site confirmed that the seating capacity of the two deck areas is in excess of 10 persons. Other observations include that persons not using the ferry or boat hire facilities are also attending the premises to purchase coffee and take way items, and that the increased deck areas have facilitated the provision of seating for the café.

Figure 7: Photograph of the western deck

Figure 8: Image from the T-Boat Hire website of the eastern deck
The provision of more than 10 seats is relevant as the planning scheme defines an Entertainment and Dining Business – Type 1 Food and Beverages as:
The use of premises involving the sale of food and beverages for consumption on the premises. The use class includes a function room or restaurant or cafe with dining facilities for 10 or more people.
A Material Change of Use application has not been made.
The intensification of commercial operations beyond that permitted under existing use rights has occurred to a number of premises with tidal leases on the Noosa River.
Council is currently formulating a foreshore management plan and it is considered that assessment of a Material Change of Use application associated with these activities would be most suitably undertaken once the management plan has been finalised.
Site Description
The site relates to a tidal lease area that is 1857 square metres in area. The site contains two jetties situated on the eastern and western side of the lease area. Each jetty is approximately 25 metres in length and a building is situated adjacent to the western side of the eastern jetty.
This application relates to works associated with the eastern jetty.
A business named T-Boat Hire operates from the site, the business provides for the hire of boats, jet skis, kayaks and stand up paddle boards. The site is also one of seven designated stops for the Noosa Ferry Cruise.
A café named Waterline Espresso operates from the site and services patrons of T-Boat Hire, the ferry service and the general public.
Surrounding Land Use
The subject site is situated adjacent to the foreshore which abuts Gympie Terrace. Commercial and residential land uses occur on the opposite side of Gympie Terrace.
assessment
Statutory Instruments – Planning Scheme
The subject site is located in the Noosaville Locality and takes on the zoning of the adjoining foreshore land which is Open Space Conservation Zone.
The proposed works require a Code assessment, the applicable codes are:
Noosaville Locality Code
Watercourses Works Code
IDAS code for Prescribed Tidal Works
The application has been assessed against each of the above applicable codes. The pertinent issues arising out of the assessment against the codes are discussed below:
Noosaville Locality Code:
Specific Outcomes:
Noosa River Outcome 27
Commercial development on and adjacent to the Noosa River is designed to
provide for uses for marine facility purposes only;
be compatible with the scenic values of the waterway;
provide a high level of amenity, including ensuring low ambient noise levels;
not increase the overall scale and intensity of commercial operations;
ensure no additional commercial leases on the Noosa River;
ensure no net increase in the gross floor area of buildings or structures;
use materials, natural finishes and colours that blend with the surrounding natural landscape; and
reflect the character and setting of the locality (such as timber and tin construction with a traditional pitched roof design).
The applicant’s response to this Outcome is detailed below:
Provides a safe, shaded seating area away from the public footpath for customer and the public accessing the existing marine facilities.
Is compatible with the scenic values of the waterways.
Provides a high level of amenity and ensures low ambient noise levels by moving customers and the public who are waiting to access the existing marine facilities off the public footpath.
There will be no increase to the overall scale and intensity of the existing commercial operation.
Is within the existing lease area
The minimal increase in gross floor area of the existing decks is only to accommodate the re-build of the stairs to meet the current building code while maintaining a clear pathway to the existing jetty.
Is constructed from marine grade natural timber to match the existing structures and blend with the natural landscaped surroundings.
The proposed deck extensions match the existing structure maintaining the character and setting of the locality.
It is important to note that the applicant’s response does not acknowledge the use of the new decks by patrons of the café.
It is acknowledged that the proposed decking areas could be used by patrons of T-Boat Hire, either for the purpose of consuming coffee and food or waiting to use the marine facilities. People waiting for the ferry or for hire equipment may expect that such a service be provided.
Notwithstanding this there is a clear change of use component irrespective as to whether this decking is being used by patrons of T-Boat Hire or the general public. The change of the use is not determined by who the patrons are but by the onsite changes and the scale of the activity being undertaken. In this instance the scale now exceeds any existing use rights that may exist and has also become a separate land use as defined by the planning scheme.
If it were contended that the café is only being used by patrons of the T-Boat Hire and that this accords with the existing use rights it is worth noting how the café is promoted on the T-Boat Hire website:
Artfully made Espresso, served with the perfect view.
Waterline Espresso is the newest addition to Noosa River and boutique café culture of Noosa. A collaborations between T-Boat Hire and star baristas Michael and Yvonne, together we share a passion for coastal living and fantastic coffee.
Serving super premium grade Arabica blends by Toby’s Estate, home-made baked pastries and healthy treats by Sunshine Coast’s best local suppliers, Waterline Espresso is the perfect location to lay back & soak up the sunshine, stop by on your way to work, set up your office for the day, refuel after your workout, or just kick back after a day on the water.
In light of the above the proposal does not accord with this overall outcome as the development provides for a commercial use other than a marine facility and increases the overall scale and intensity of commercial operations.
Watercourses Works Code
Outcome 4
Prescribed tidal work does not include extensions of on-site recreational areas unless there is a clear demonstrated public benefit and public support.
The works provide an extension to on-site recreational areas which can be used by both the general public and patrons of the T-Boat Hire business.
The applicant submits that there is clear public benefit and support for the proposed extensions as it allows for a safe, shaded seating area away from the public footpath for hire boat customers and the public waiting for the ferry.
Whilst the deck areas may provide some relief for patrons of T-Boat Hire the claim that they provide a public benefit is arguable. The primary purpose of the works appears to be associated with an increase in the commercial activity associated with the café. The works primarily benefit a commercial activity and the applicant has not demonstrated public benefit and support for the works.
Outcome 9
Prescribed tidal works are designed and constructed for the sole purpose of providing access to vessels and are sited and designed to avoid—
a)	cluttering of watercourses;
b)	excessive traffic volumes within foreshore areas and adjoining lands; and
c)	conflicts with uses on the foreshore and adjoining lands;
d)	unacceptable risks to personal and public safety.
The proposed deck areas are not for the sole purpose of providing access to vessel. In fact there appears to be no access provided from the decks. It is also noted that sufficient areas already exist to provide access to vessels.
The works are not in accordance with this outcome as they facilitate an increase in the commercial activity associated with the onsite café. There is also potential conflict with uses on the other side of Gympie Terrace in so far as many of these businesses have incurred greater expenses to operate entertainment and dining businesses associated with development approvals, rent, provision of car parking and infrastructure charges. These business operators are likely to expect that the café operator at T-Boat Hire is subject to the same assessment process as they were.
IDAS Code for Prescribed Tidal Works
The IDAS code sets out a number of specific outcomes and probable solutions for the works. The following specific outcomes are of most relevance for the assessment.
Outcome 3.1
Prescribed tidal work is of a height, scale and size to ensure the work is compatible with the character and amenity of its location, having regard to the following:
The height, scale and size of the natural features of the work’s immediate surroundings and the locality within which the work is located,
The height, scale and size of the existing buildings or other structures in the work’s immediate surroundings and the locality within which the work is located,
If the relevant planning scheme states the desired height, scale or size of buildings or other structures in the work’s immediate surroundings or the locality within which the work is located – the stated desired height, scale or size.
The low scale form of the development is compatible with the surrounding natural environment and the existing built form within and outside of the lease area.
Outcome 7.2
The location of prescribed tidal work ensures vegetation is cleared or disturbed only to the extent reasonably necessary for the work.
No vegetation removal was required for the works.
Outcome 8.1
Prescribed tidal work does not have a significant adverse effect on the availability of public access to foreshores, including public access proposed in the relevant planning scheme.
The works are contained within the lease area and do not significantly effect public access to the foreshore.
Outcome 11.1
Prescribed tidal work has appropriate infrastructure, including, in particular, road access, parking facilities, sewerage services and water services, having regard to—
(a) 	the nature and scale of the work; and
(b) 	the number of people that may be on or at the work at any time; and
(c) 	the number of vehicles that may be on or moored at the work at any time; and
(d) 	the protection of any foreshores near the work and the vegetation and marine plants on the foreshores.
The proposed changes to the deck areas facilitate an increase in commercial activity which allows for greater patronage of the onsite café. No car parking facilities are provided to accommodate the increased patronage and no toilets are available onsite. The site is situated adjacent to the Gympie Terrace Mixed Use Zone which has existing issues associated with availability of car parking. It is not considered reasonable to increase patronage without addressing increased parking demands.
Outcome 12.1
Prescribed tidal work is designed and constructed in a way to ensure it is structurally
sound, having regard to the following—
(a) 	relevant engineering standards;
(b)	the location of the work;
(c)	the purpose for which the work is to be used;
(d) 	the impact of flooding, tidal influences and hydrodynamic changes
As this application is a retrospective application there has been no opportunity to inspect the works during the construction phase to determine compliance with relevant engineering standards.
cONSULTATION
Concurrence
The application was referred to the Department of Infrastructure, Local Government and Planning (SARA) as a concurrence agency. The Department’s response was issued on the 27 February 2017.
The department’s response was an approval with conditions.
Other Referrals
The application was assessed by following internal Council specialists:
Development Engineer, Engineering
Their assessment forms part of this report.
conclusion
The application for an Operational Works Permit to develop deck additions at the T-Boat Hire facility at 290 Gympie Terrace is recommended for refusal. The proposed works facilitate an increase in non-marine commercial activity which will allow for the scale of existing use rights to be increased beyond what may have accrued. The works are not in accordance with the Noosaville Locality Code, the Watercourses Works Code or the IDAS Code for Prescribed Tidal Works. Furthermore the increase in commercial activity requires a Material Change of Use application which has not been submitted and it is not considered appropriate to approve the works without first considering a Material Change of Use application.

Departments/Sections Consulted:
	Chief Executive Officer		Community Services		Corporate Services
	Executive Officer to the Mayor & CEO		Community Facilities		Financial Services
	Executive Support		Community Development		ICT
			Libraries & Galleries		Procurement & Fleet
			Local Laws	x	Property & Facilities
			Waste & Environmental Health		Revenue Services
					
	Executive Office	X	Planning & Infrastructure		
	Community Engagement		Building & Plumbing Services		
	Customer Service		Civil Operations		
	Economic Development		Infrastructure Planning & Design		
	Governance	x	Planning & Environment		
	Human Resources		Strategic Land Use Planning		

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PLANNING & ORGANISATION COMMITTEE MEETING REPORT	11 APRIL 2017

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