Minor Change Report 132001.210011.3

APPLICATION FOR A MINOR CHANGE TO A DEVELOPMENT APPROVAL
Author	Consultant Planner and Lisa Pienaar
Development Assessment

APPLICATION DETAILS
Application No.	132001.210011.3
Development Approval	Material Change of Use for Multiple Dwelling (20 Units), Shops, Medical Centre, Service Shops, Professional Offices, Commercial Services, Commercial Premises & Restaurants
Applicant	Mike Sunshine Pty Ltd TTE
Request Received On	18 July 2022
Report Reviewed By	Lisa Pienaar
Decision Due Date	15 August 2022

PROPERTY DETAILS
Property Address	Colonial Commercial 5/239-245 Gympie Tce Noosaville
RP Description	Lot 5 SP 158841
Land Area	N/A
Existing Use of Land	Shops, Medical Centre, Service Shops, Professional Offices, Commercial Services, Commercial Premises & Restaurants

STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Zone	Tourist Accommodation Zone
Precinct	Not applicable
Local Area Plan	Noosaville
Overlays	Land Subject to Acid Sulfate Soils
Assessment Type	Minor Change to Development Approval

PROPOSAL
The applicant seeks approval to change to an existing development approval to include a Food and Drink outlet use to Lot 5 while retaining the existing Shop use.  The application also seeks to include a 5m² of outdoor dining in front of the tenancy.  There is no proposed change to the built form of the tenancy. The development includes the following characteristics:
• Use area for indoor dining – 36.9m²
• Use area for outdoor dining – 5m2
• Kitchen, bar and cool room areas – 39.6m²
The locality and proposal plan are included below.

Figure 1 – Locality

Figure 2 – Floor Plan

background
A Development Permit for a Material Change of Use of Premises (Multiple Dwelling (20 Units), Shops, Medical Centre, Service Shops, Professional Offices, Commercial Services, Commercial Premises & Restaurants) was issued on 05/07/2001.Note: exipiry of appeal periods/decision outcome” \d “expiry of the applicants/submitter appeal period/s OR the issue of a Negotiated Decision Notice OR the outcome of a Planning & Environment Court appealNote: Provide brief discussion of the original approval and any subsequent approvals that have been issued in relation to the development (eg. OPW, other permissible changes.
On 16 February 2016 Council approved a change to Lot 4 from a Shop to a restaurant (132001.210011.1)
assessment
Instruments for Statutory Assessment
Under the Planning Act 2016 the application must be assessed against each of the following statutory planning instruments to the extent they are relevant to the development:
State Planning Policy;
South East Queensland Regional Plan;
Planning Regulation 2017; and
The Noosa Plan 2020.
Statutory Process
The applicant has requested to make a minor change to a development approval under s78 of the Planning Act 2016. An application for a minor change to a development approval can only be made in circumstances where a change would constitute a ‘minor change’.
The proposed change to the development approval requested by the applicant is determined to constitute a minor change on the grounds that:
the development would not result in substantially different development as the development already incorporates restaurant uses and there is no change to built form;
the change does not include prohibited development;
the change would not require the application to be referred to an additional referral agency or cause a referral agency to have regard to new matters prescribed by regulation;
where the original application was code assessable, the change would not cause the application to become impact assessable.
Statutory Instruments – Planning Scheme
The subject site is included within the Tourist Accommodation zone under The Noosa Plan. The proposed to utilised the existing shop to a Food and Drink use is consistent use within the zoning and generally demonstrates compliance with the current provisions of The Noosa Plan. Outdoor dining with external dining is encouraged under The Noosa Plan and the proposal will be a positive contribution to Gympie Terrace. While the proposed use is consistent and appropriate, car parking rates are further discussed below.
Car Parking
Carparking for the commercial precinct was approved with 43 car parks to shared across the 8 tenancies with a combined Gross floor area of 660m2.   Six (6) spaces were allocated to tenancy 8 for the medical centre (with a maximum of 2 practitioners) and the remaining 37 spaces were provided for the remaining tenancies.  The planning scheme parking rates for at the time of approval were

1 space per 10m2 for the approved 43m2 of outdoor dining for premises 1 and 3 (being restaurant uses) = deriving a demand of 4.3 = 5 spaces
1 space per 20m2 for the first 100m2 of the commercial precinct = 10 spaces,
1 space per 15m2 for the remaining 435m2 of the commercial precinct; = 29 spaces

Despite the carparking demand ratios, 43 spaces for the commercial tenancies were provided in total (including medical centre for tenancy 8), it also appears relaxation was given to allow 5 spaces for the first 100m2 of commercial floor area based on calculations provided on the approved plans.

It is noted that individual tenancies are not allocated specific car parks within the approved plan (see figure 3 below) and that the tenancies share the 43 spaces between the 8 tenancies.

Figure 3- Car Parking layout approved plan.

The proposed change application seeks to provide tenancy / lot 5 with the flexibility to operate as a commercial premises (shop) or a Food and Drink Outlet (restaurant) and provide an additional 5m2 of outdoor dining.   The food and drink outlet has a current car parking rate under the Noosa Plan of
“one space per 20m² of use area and outdoor business area, excluding kitchen and food storage areas; and”
The carparking demand rate of one per 20m2 is greater than the previously approved commercial rate of 1 per 15m2.  The rate does not include kitchen and food storage areas (being 64.1m2) and included outdoor business areas ie. outdoor dining (being 5m2) therefore the total carparking demand is 50.6m2 / 20m2 = 2.53 spaces rounded up = 3 spaces.  Which is less than the demand applied under the previously approved commercial rate.   Therefore, the proposed change does not generate any additional car parking demand based on the planning scheme car parking rates.
In order to facilitate the requested change the following conditions of approval need to be considered, some at the applicant request.
Condition 63
The restaurants are limited to tenancies 1, 2, 3 and 4 and shall not exceed a total use area of 318m2, inclusive of the outdoor dining areas (total of 67m2). No other tenancy shall be utilised as restaurant.
Applicant’s Request
“The last sentence is unnecessary as the other tenancies do not have approval for a restaurant in any case and it creates a messy Decision Notice when each tenancy has different use area parameters (indoor dining and outdoor dining). The following additional conditions provide more clarity on the approval parameters for the subject tenancy rather than relying on a bundled use area condition across a number of tenancies onsite.”
Assessment of Request
The applicants request to delete the last sentence “No other tenancy shall be utilised as a restaurant, creates conflict with the ability for tenancy 5 to operate as a restaurant.   Therefore, it is recommended the condition is updated to incorporate tenancy 5 to operate as a Food and Drink use (ie.  Restaurant).
Accordingly, Condition 63 should be updated to read as follows:
63. The restaurants are limited to tenancies 1, 2, 3, 4 and 5, and shall not exceed a total use area of 368.6m2 inclusive of the outdoor dining areas (total of 72m2). No other tenancy shall be utilised as restaurant.

It is recommended to change existing conditions 55, 68 & 77 to allow for the change to tenancy 5 as follows.  It is noted, the applicant has not made any request with respect to these conditions.
Development undertaken in accordance with this approval must generally comply with the approved plans of development. The approved plans are numbered 0089 SK02 Issue P3 & 0089 SK03 Issue P2, 0089 SK04, 0089 SK05 P1 and perspective submitted 5 June 2001 prepared by Greg Gibbs Architects and as may be amended by these conditions.
68.	The three areas of outdoor dining (28sqm, 15sqm & 24sqm) are to be clearly delineated to ensure that no further areas are utilised for such a purpose. In this regard the outdoor dining area for tenancy 1 is to be marked by a form of planters or the like and the outdoor dining for tenancy 3 and 4 is to be marked by brass or similar indicators in survey holes. The total number of tables and chairs permitted in the outdoor dining area for tenancy 3 shall be 7 tables with a maximum of 4 chairs at each table.
77.	The proposed outdoor dining area for the restaurant use of tenancy 4 is not to obstruct pedestrian passage and access within common property.

Assessment
As the above conditions are concerned with outdoor dining and the proposal includes outdoor dining it is considered necessary to update the above conditions to include reference to the proposed 5m2 of outdoor dining for tenancy 5.
Accordingly, it is recommended that conditions 55, 68 and 77 read as follows:
55.	Development undertaken in accordance with this approval must generally comply with the approved plans of development. The approved plans are numbered 0089 SK02 Issue P3 & 0089 SK03 Issue P2, 0089 SK04, 0089 SK05 P1 and perspective submitted 5 June 2001 prepared by Greg Gibbs Architects and as may be amended by these conditions.
Plan No.	Rev.	Plan/Document Name	Date
22122	A	MCU Floor Plan, prepared by Icon Venues (Tenancy 5)	14/07/22

68.	The four areas of outdoor dining (28sqm, 15sqm, 24sqm, & 5sqm) are to be clearly delineated to ensure that no further areas are utilised for such a purpose. In this regard the outdoor dining area for tenancy 1 is to be marked by a form of planters or the like and the outdoor dining for tenancy 3, 4 & 5 is to be marked by brass or similar indicators in survey holes. The total number of tables and chairs permitted in the outdoor dining area for tenancy 3 shall be 7 tables with a maximum of 4 chairs at each table.
77.	The proposed outdoor dining area for the restaurant use of tenancy 4 & 5 is not to obstruct pedestrian passage and access within common property.

New Proposed conditions (by the applicant)
78.	Lot 5 is approved to be used as a Food and drink outlet and a Shop. The Food and drink outlet is as defined by the Noosa Plan 2020 and the Shop use as defined by the planning scheme in force at the time of the original approval in 2001.
79. 	Lot 5 total use area of the Food and drink outlet, including outdoor dining (excluding the bar, kitchen and food storage areas) must not exceed 75m².
Applicant’s Request
The additional condition 78 gives clear direction on the use of lot 5.
With respect to condition proposed condition 79.
For the Food and drink outlet, while the application indicates a total use area for carparking purposes of 41.9m², a greater area could be utilised as carparking permits a total use area of 75m² (excluding bar, kitchen and food storage areas). Therefore, to maximise the applicants’ rights and provide flexibility, it is requested the maximum square metreage permitted (regulated by carparking) for the tenancy be identified in the condition.
Assessment of Request
The application seeks to utilise tenancy 5 as a shop (existing approved use) or food and drink outlet (proposed additional use) and it is considered an additional condition is necessary to provide clarification on the use entitlements and use areas (as per the approved plans) to ensure it is clear as to the use rights of tenancy 5.  The flexibility to change use areas within the restaurant floor plan is not agreed to as the methodology for car parking demand is not exclusive to tenancy 5, but must have regard to all uses on the site that share the car parking.    Further, the use area as per Noosa Plan only excludes kitchen and storage areas.  Therefore, the use area is dining 36.9m2 + Bar 8.7m2 & outdoor dining 5m2, totalling 50.6m2.
Accordingly, an additional condition 78 is recommended as follows:
Tenancy 5 is approved as a:
a)	Food and Drink outlet. The Food and Drink outlet is in accordance with the definition under the Noosa Plan 2020 and is limited to a total use areas as per the approved plan including 45.6m2  for indoor dining and 5m2 for outdoor dining.
or
b) 	A Shop with a gross floor area of 75m2 in accordance with the definition provided in Noosa Plan 2016.

4.	cONSULTATION
4.1	Referral Agencies
Not applicable
Internal Council Referrals
Not applicable
conclusion & reasons for decision
The proposed development generally complies with the requirements of the planning scheme and does not raise any significant issues that cannot be addressed by reasonable and relevant conditions. The application is therefore recommended for approval.
The report is provided in accordance with Section 63(5) of the Planning Act 2016.
RECOMMENDATION
With regard to Application No. 132001.210011.3, to make a minor change to an existing approval for Material Change of Use for Multiple Dwelling (20 Units), Shops, Medical Centre, Service Shops, Professional Offices, Commercial Services, Commercial Premises & Restaurants situated at Colonial Commercial 5/239-245 described as Lot 0 & 5 SP 158841, Council on 17 August 2022 decided to:
A.	Approve the change.
B.	Amend conditions 55, 63, 68, 77 to read as follows:
55. 	Development undertaken in accordance with this approval must generally comply with the approved plans of development. The approved plans are numbered 0089 SK02 Issue P3 & 0089 SK03 Issue P2, 0089 SK04, 0089 SK05 P1 and perspective submitted 5 June 2001 prepared by Greg Gibbs Architects and as below, as may be amended by these conditions.
Plan No.	Rev.	Plan/Document Name	Date
22122	A	MCU Floor Plan, prepared by Icon Venues (Tenancy 5)	14/07/22

63. 	The restaurants are limited to tenancies 1, 2, 3, 4 and 5, and shall not exceed a total use area of 368.6m2 inclusive of the outdoor dining areas (total of 72m2). No other tenancy shall be utilised as restaurant.
68.	The four areas of outdoor dining (28sqm, 15sqm, 24sqm, & 5sqm) are to be clearly delineated to ensure that no further areas are utilised for such a purpose. In this regard the outdoor dining area for tenancy 1 is to be marked by a form of planters or the like and the outdoor dining for tenancy 3, 4 & 5 is to be marked by brass or similar indicators in survey holes. The total number of tables and chairs permitted in the outdoor dining area for tenancy 3 shall be 7 tables with a maximum of 4 chairs at each table.
77.	The proposed outdoor dining area for the restaurant use of tenancy 4 & 5 is not to obstruct pedestrian passage and access within common property.
C.	Include the following additional condition:
78.  	Lot 5 (tenancy 5) is approved as:
a) 	Food and Drink outlet The food and drink outlet is in accordance with the definition under the Noosa Plan 2020 and is limited to a total use areas as per the approved plan including 50.6m2  including 5m2 to be used as outdoor dining.
or
b) 	A Shop with a gross floor area of 75m2 in accordance with the definition provided in Noosa Plan 2016.

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