MCU13-0069 Negotiated Decision Notice

Officer:	Glen Conforti
Direct Telephone:	07 5329 6241
Our Reference:	MCU13/0069
Your Reference:	01290L07NG

27 June 2014

Ogilvie Bacon Partnership
C/- Martoo Consulting Pty Ltd
PO Box 1684
NOOSA HEADS  QLD  4567

Dear Madam

Negotiated Decision Notice
Sustainable Planning Act 2009

I refer to your application and the representations you made in respect to the decision notice. On 26 June 2014, Council decided your representations.

Details of the decision are as follows:
application details
Application No:	MCU13/0069
Street Address:	Sound Park - 90 Noosa Parade Noosa Heads Qld 4567
Real Property Description:	Lot 32 N 21854
Planning Scheme:	The Noosa Plan (8 August 2011)
Decision details
Council on 16 December 2013, decided to issue the following type of approval:
Development Permit for Material Change of Use of Premises (Entertaining & Dining Business Type 1 - Food & Beverages (Outdoor Dining)

In relation to representations, Council on 26 June 2014 decided to:
A.	Approve a change to Condition 9.
B.	Agree to delete condition 10.

Relevant period of approval

The relevant period for this development approval is 4 years starting the day that this development approval takes 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.

The use of the outdoor dining area must be in accordance with the provisions of the Trustee Lease Agreement with Council and the conditions of this Decision Notice.

Approved Plans
Development authorised by this approval must be undertaken in accordance with the Approved Plans listed within this Decision Notice.

Advertising Devices
No advertising devices are permitted. In this regard advertising devices must not be painted, affixed to, or incorporated onto any structures including café blinds, temporary acoustic screens or movable signs such as A-Frames and the like.

Outdoor Dining
The outdoor dining areas (with associated lots) must not exceed the following:
Area 2 (Lot 2)- 24m2
Area 3 (Lot 3) – 26m²
Area 4 (Lot 4) – 24m²
Area 8 (Lot 8) – 31m²
Area 9 (Lot 9) – 22m²
Area 10 (Lot 10) – 52m²
The outdoor dining areas may include a light weight shade structure (membrane such as vinyl or the like) and roll down café blinds. The shade structure must be constructed in a manner that can be readily removed on expiration of the Trustee Lease Agreement.

Bicycle Parking
Bicycle facilities must be provided within Sound Park prior to the signing of the Trustee Lease Agreement and must include in particular:
4 stainless steel bicycle parking hoops securely fixed to a suitable sized concrete pad in accordance with AS2890.3 Bicycle Parking Facilities. In this regard the concrete pad must have a  decorative finish such as coloured concrete or exposed aggregate
a location determined by Council.

A plan of the bicycle parking facilities and location must be provided to Council for endorsement prior to construction.

ENVIRONMENT
The approved use must not operate outside the hours of 7am to 12 midnight seven days a week.
The requirements of this condition must be included in any lease agreement for the outdoor dining areas.

Deleted.

There must be no live and/or amplified entertainment at any time.

Where a complaint (other than a frivolous or vexatious complaint) is made to Council about noise from the approved use areas, Council may require the operator or site management entity to do the following:
have a suitably qualified acoustic consultant undertake a Noise Impact Assessment (NIA) in accordance with the Environmental Protection (Noise) Policy 2008. The NIA report must be submitted to Council for endorsement which outlines the findings and recommendations of the NIA. The recommendations must be implemented and may include a reduction to the operating hours.

referral agency conditions

Not Applicable

Approved plans

The following plans are Approved Plans for the development:
Plan No.	Rev.	Plan Name	Date
D-C01290-01-A		Proposed Park Dining Areas, prepared by Martoo Consulting Pty Ltd	04/12/2013

REFERENCED DOCUMENTS

Not Applicable.

Advisory notes

The following Advisory Notes are for information purposes only and do not form conditions of approval:

Equitable Access and Facilities
The plans for the proposed building work have NOT been assessed for compliance with the requirements of the Building Code of Australia – Part D3 as they relate to people with disabilities.  Your attention is also directed to the fact that in addition to the requirements of the Building Code of Australia – Part D3 as they relate to people with disabilities, one or both of the following may impact on the proposed building work:
The Disability Discrimination Act 1992 (Commonwealth)
Anti-Discrimination Act 1991 (Queensland)
Council recommends that the following matters be considered to address equitable access and facilities in the building:
The building and environs should be designed to meet the requirements of the Human Rights and Equal Opportunity Commission “Advisory Notes on Access to Premises” and AS 1428.2
Applicants should be aware that a “Disability Standard on Access to premises” is currently being developed and most likely will impose changes on the Building Code of Australia
Any services and facilities in the building complex should allow independent, dignified and equitable use of the services and facilities for all people.

Aboriginal Cultural Heritage Act 2003
There may be a requirement to establish a Cultural Heritage Management Plan and/or obtain approvals pursuant to the Aboriginal Cultural Heritage Act 2003.
The ACH Act establishes a cultural heritage duty of care which provides that: “A person who carries out an activity must take all reasonable and practicable measures to ensure the activity does not harm Aboriginal cultural heritage.” It is an offence to fail to comply with the duty of care. Substantial monetary penalties may apply to individuals or corporations breaching this duty of care. Injunctions may also be issued by the Land and Resources Tribunal, and the Minister administering the Act can also issue stop orders for an activity that is harming or is likely to harm Aboriginal cultural heritage or the cultural heritage value of Aboriginal cultural heritage.

You should contact the Cultural Heritage Co-ordination Unit on 07 3239 3647 to discuss any obligations under the ACH Act.

property notes

Not Applicable.

preliminary approval overriding planning scheme

Not Applicable

further development permits required

Development Permit for Building Work (All Building Work)

self assessable codes

Not Applicable

submissions

There were 14 properly made submissions about the application. In accordance with Sustainable Planning Act 2009, the name and address of the principal submitter for each properly made submission is provided and attached.

grounds for approval despite conflcit with scheme

The outdoor dining area will benefit both the business and social values of the community while still maintaining the recreational values of Sound Park.
The outdoor dining contributes to the desired lifestyle of residents and visitors by offering a unique Noosa Heads outdoor dining experience.
The outdoor dining is consistent with the existing approved dining areas in the park and the reserve continues to be predominately used as a park.

RIGHTS OF APPEAL

You are entitled to appeal against this decision. A copy of the relevant appeal provisions from the Sustainable Planning Act 2009 is attached.

OTHER DETAILS

If you wish to obtain more information about Council’s decision, electronic copies are available on line at www.noosa.qld.gov.au, or at Council Offices.

DECISION NOTICE HISTORY Original Decision Notice 16 December 2013 Negotiated Decision Notice 26 June 2014

Yours faithfully

Kerri Coyle
Planning & Environment, Manager

Enc:	List of Submitters
Appeal Rights

cc:	Unitywater

	List of Submitters SUSTAINABLE PLANNING ACT 2009 & SUSTAINABLE PLANNING REGULATION 2009

Only Properly Made Submissions are to be included in this notice (s335 (1) (l))

Author	Address1
Allyson Penfold	[email protected]
Bronwyn Smith	[email protected]
Garry Maher	PO Box 17 NOOSAVILLE  QLD  4566
Rick & Aggie Hislop	38 Crank St TEWANTIN  QLD  4565
Wayne MacDonald & Donna Lea Sutor	PO Box 1233 NOOSA HEADS  QLD  4567
Roz Idiens	[email protected]
Tim Roberts	1 Aspera Place NOOSAVILLE  QLD  4566
Stephen Booker	PO Box 80 MONTVILLE  QLD  4560
Ingrid Jackson	[email protected]
Sally Spencer	[email protected]
Angela Fowler	[email protected]
Noosa Shores Body Corporate Committee	86 Noosa Parade NOOSA  QLD  4567
David Tynan	GPO Box 2707 BRISBANE  QLD  4001
Glenn Ellis	4 Quamby Place NOOSA  QLD  4567

	Appeal Rights SUSTAINABLE PLANNING ACT 2009 & SUSTAINABLE PLANNING REGULATION 2009

The following is an extract from the Sustainable Planning Act 2009  (Chapter 7).
MATERIAL CHANGE OF USE, RECONFIGURING A LOT & OPERATIONAL WORKS

Division 8 	Appeals to court relating to development applications and approvals

461 	Appeals by applicants
(1) 	An applicant for a development application may appeal to the court against any of the following—
(a) 	the refusal, or the refusal in part, of the development application;
(b) 	any condition of a development approval, another matter stated in a development approval and the identification or inclusion of a code under section 242;
(c) 	the decision to give a preliminary approval when a development permit was applied for;
(d) 	the length of a period mentioned in section 341;
(e) 	a deemed refusal of the development application.
(2) 	An appeal under subsection (1)(a), (b), (c) or (d) must be started within 20 business days (the applicant’s appeal period) after—
(a) 	if a decision notice or negotiated decision notice is given—the day the decision notice or negotiated decision notice is given to the applicant; or
(b) 	otherwise—the day a decision notice was required to be given to the applicant.
(3) 	An appeal under subsection (1)(e) may be started at any time after the last day a decision on the matter should have been made.

462 	Appeals by submitters—general
(1) 	A submitter for a development application may appeal to the court only against—
(a) 	the part of the approval relating to the assessment manager’s decision about any part of the application requiring impact assessment under section 314; or
(b) 	the part of the approval relating to the assessment manager’s decision under section 327.
(2) 	To the extent an appeal may be made under subsection (1), the appeal may be against 1 or more of the following—
(a) 	the giving of a development approval;
(b) 	any provision of the approval including—
(i) 	a condition of, or lack of condition for, the approval; or
(ii) 	the length of a period mentioned in section 341 for the approval.
(3) 	However, a submitter may not appeal if the submitter—
(a) 	withdraws the submission before the application is decided; or
(b) 	has given the assessment manager a notice under section 339(1)(b)(ii).
(4) 	The appeal must be started within 20 business days (the submitter’s appeal period) after the decision notice or negotiated decision notice is given to the submitter.

463 	Additional and extended appeal rights for submitters for particular development applications
(1) 	This section applies to a development application to which chapter 9, part 7 applies.
(2) 	A submitter of a properly made submission for the application may appeal to the court about a referral agency’s response made by a prescribed concurrence agency for the application.
(3) 	However, the submitter may only appeal against a referral agency’s response to the extent it relates to—
(a) 	if the prescribed concurrence agency is the chief executive (environment)—development for an aquacultural ERA; or
(b) 	if the prescribed concurrence agency is the chief executive (fisheries)—development that is—
(i) 	a material change of use of premises for aquaculture; or
(ii) 	operational work that is the removal, damage or destruction of a marine plant.
(4) 	Despite section 462(1), the submitter may appeal against the following matters for the application even if the matters relate to code assessment—
(a) 	a decision about a matter mentioned in section 462(2) if it is a decision of the chief executive (fisheries);
(b) 	a referral agency’s response mentioned in subsection (2).

464 	Appeals by advice agency submitters
(1) 	Subsection (2) applies if an advice agency, in its response for an application, told the assessment manager to treat the response as a properly made submission.
(2) 	The advice agency may, within the limits of its jurisdiction, appeal to the court about—
(a) 	any part of the approval relating to the assessment manager’s decision about any part of the application requiring impact assessment under section 314; or
(b) 	any part of the approval relating to the assessment manager’s decision under section 327.
(3) 	The appeal must be started within 20 business days after the day the decision notice or negotiated decision notice is given to the advice agency as a submitter.
(4) 	However, if the advice agency has given the assessment manager a notice under section 339(1)(b)(ii), the advice agency may not appeal the decision.

465 	Appeals about decisions relating to extensions for approvals
(1) 	For a development approval given for a development application, a person to whom a notice is given under section 389, other than a notice for a decision under section 386(2), may appeal to the court against the decision in the notice.
(2) 	The appeal must be started within 20 business days after the day the notice of the decision is given to the person.
(3) 	Also, a person who has made a request under section 383 may appeal to the court against a deemed refusal of the request.
(4)	An appeal under subsection (3) may be started at any time after the last day the decision on the matter should have been made.

466 	Appeals about decisions relating to permissible changes
(1) 	For a development approval given for a development application, the following persons may appeal to the court against a decision on a request to make a permissible change to the approval—
(a) 	if the responsible entity for making the change is the assessment manager for the application—
(i) 	the person who made the request; or
(ii) 	an entity that gave a notice under section 373 or a pre-request response notice about the request;
(b) 	if the responsible entity for making the change is a concurrence agency for the application—the person who made the request.
(2) 	The appeal must be started within 20 business days after the day the person is given notice of the decision on the request under section 376.
(3) 	Also, a person who has made a request under section 369 may appeal to the court against a deemed refusal of the request.
(4)	An appeal under subsection (3) may be started at any time after the last day the decision on the matter should have been made.

467 	Appeals about changing or cancelling conditions imposed by assessment manager or concurrence agency
(1) 	A person to whom a notice under section 378(9)(b) giving a decision to change or cancel a condition of a development approval has been given may appeal to the court against the decision in the notice.
(2) 	The appeal must be started within 20 business days after the day the notice of the decision is given to the person.

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