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L21 Add reps to conditions V2

Attached to the e-mail MCU13/0069 - Representations to Conditions of Approval Outdoor Dining.

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Council’s Reference:    MCU13/0069
Our Reference:          01290 L21 NG
Our Contact:            Nadine Gorton


   th
16 April 2014



Chief Executive Officer
Noosa Council
PO BOX 141
TEWANTIN QLD 4565

ATTENTION: GLEN CONFORTI

Confidential Email Transmission: [email protected]; [email protected] and
                                 [email protected]
Original in Post: No


Dear Sir/Madam,

RE:     REPRESENTATIONS TO CONDITIONS OF APPROVAL
Development Permit for Material Change of Use of Premises for Entertainment and Dining Type
1 Food & Beverages (Outdoor Dining) over Land situated at Sound Park, 90 Noosa Parade,
Noosa Heads described as Lot 32 on N21854.

                                    th
I refer to our correspondence of 7 January 2014 requesting suspension of the applicant appeal and our
                                   rd
subsequent representations lodged 3 February 2014.

Please find below further representations to 9 and 10 of those conditions imposed by Council in the above
Decision Notice:


Condition 9 – The approved use must not operate outside the hours of:

          a) 7am to 10 pm Sunday to Thursday
               i.   Except during the Christmas, Easter and September school holidays where the
                    use may operate from 7am to 10.30 pm Sunday to Thursday. The dates for these
                    holidays must be in accordance with the Department of Education, training and
                    Employment (Education Queensland) – school holidays for Queensland State
                    Schools.

          b) 7am to 12 midnight Friday and Saturday.

          The requirements of this condition must be included in the Community Management
          Statement for any body corporate for the subject site and/or any lease agreement with site
          tenancies.

Representation to condition 9 – The applicant has advised that the condition severely impacts on the
operation of the businesses on site and as a result jeopardizes the economic viability of the restaurant uses.
The applicant requests that the condition be amended to permit trading from 7am to 12 midnight on any
given day as currently permitted by the existing liquor license for the site and consistent with the times the
sites have been operating for over 10 years.

The condition is also to be amended to delete reference to the Body Corporate. The applicant notes that
they do not control the Body Corporate and cannot accept a condition which requires the terms to be
included in the Community Management Statement. The applicant’s solicitor advises that at best they can
seek to have the Body Corporate pass a resolution incorporating the provisions of an agreed Condition 9 in
to the lease and the condition is recommended to be altered accordingly.
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The following information is provided in support of the proposed change:

Background

  1.    Outdoor Dining Permits in Sound Park were issued by Noosa Council for several of the proposed
        outdoor dining areas.

  2.    These Outdoor Dining Permits were issued annually by Council and no planning approvals or
        approval from the State were obtained for use of the public parkland. The applicant paid Council
        annual fees for use of these areas.

  3.    These outdoor dining permits have been in place and utilised for over 10 years.

  4.    The current liquor licence for the site permits operation until 12 midnight on any given day.

  5.    The owners of the adjoining commercial lots in Q Place purchased these premises on the basis that
        the outdoor dining permits had Council approval and could be used in association with the
        restaurants on Q Place.

  6.    The owners of the restaurants modified and built up their businesses based on the use of the outdoor
        dining areas.

  7.    In the 10 years that the areas have been used for outdoor dining only one complaint has been
        received in relation to noise. As a result of this compliant a number of procedures were implemented
        including:

                           Removal of business that caused the complaint;
                           Preparation of Q Place Restaurant Neighbourhood Noise Policy in conjunction
                           with Council;
                           Establishment of Induction and Procedure document for staff with reference to
                           noise;
                           Establishment of Terms and Conditions for functions with specific reference to
                           noise; and
                           Establishment of specific Noise Policy for restaurants.


Noise

  8.    Rickys and Wood Fire Grill restaurants currently have liquor licenses that permit opening until 12
        midnight. Both these restaurants have been utilising the outdoor dining area until midnight for over 10
        years.

  9.    As part of the applicant’s response to the Information Request issued by Sunshine Coast Council on
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        2 July 2013, David Moore & Associates Pty Ltd undertook a Noise Assessment for the proposed
        use. A noise logger was located on the closest sensitive premises for an extended period (8 days)
        and the ambient noise data gathered was used to determine appropriate noise limits. The associated
        report titled Environmental Noise Level Impact Assessment for External Dining Areas Located Within
        Sound Park, Noosa Parade, Noosa Heads conducted for Ricky’s Noosa, Report No:
        R13103/D2829/Rev.0/10.10.2013 was provided to Council. This report found that the external
        dining in Sound Park, with no noise control measures in place, complied with the noise limits
        for the complete 24-hour day, at the closest noise sensitive premises (Noosa Shores Resort).

  10. David Moore has reviewed Councils conditions and notes that with respect to environmental
      acoustics the time periods nominated by the Queensland environmental protection legislation
      (including the Planning for Noise Control Guideline) are:

                    Daytime: 0700 to 1800 hours;
                    Evening: 1800 to 2200 hours;
                    Night-time: 2200 to 0700 hours.

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      Council’s nominated time period of 7am to 10.30pm would suggest that Council consider any
      noise from the outdoor dining areas acceptable during the daytime (7am to 6pm), evening (6pm
      to 10pm) and night-time (from 10pm) periods for Sunday to Thursday. Based on the measured
      ambient noise levels for an 8-day period and detailed in Appendix B of the noise report, David
      Moore reported that he has considered the average ambient noise levels during the time period
      2200 to 2400 hours. For time varying noise sources such as people laughing and talking the
      relevant parameter is the LA10,T. Council have approved the operation of the outdoor dining
      areas between 2200 and 2400 hours on Friday and Saturday nights only. Interestingly, the
      average ambient noise level from 2200 to 2400 hours was 43.6 dB(A) LA10,T for these two
      nights, whereas for the nights when Council did not approve the operation of the outdoor dining
      areas the average ambient noise level from 2200 to 2400 hours was 47.8 dB(A) LA10,T.

      Based on the results of these ambient noise level measurements any noise impact from the
      outdoor dining areas, from 2200 to 2400 hours, would be less Sunday to Thursday than on a
      Friday and Saturday night. In addition to the above l calculated noise impact for the outdoor
      dining areas to the closest noise sensitive premises (Noosa Shores Resort) for 60 to 80 patrons
      dining. Even this number of patrons did not exceed the sleep disturbance night-time noise limit
      criteria inside the closest habitable rooms of the closest noise sensitive premises. Based on the
      time periods stipulated in the Queensland environmental protection legislation, the measured
      ambient noise levels and the calculated source noise levels, it is my opinion that Condition 9
      should permit outdoor dining to 12 midnight seven days per week.

 11. It is noted that there is only one permanent resident who resides in the Noosa Shores Resort which
     abuts the park and is over 350 metres from the outdoor dining area.

 12. As a result of the Development Application process, the manager of Rickys has established direct
     contact with the permanent resident at Noosa Shores Resort. This contact has enabled the
     surrounding residents to contact management if they have any issues with the site.


Noosa Plan


 13. The Noosa Plan highlights that the Quamby Place Neighbourhood Centre will form a focal point for
     the local community providing services and facilities whilst the Opens Space Recreation zone further
     refers to community interaction.

      r) For the Neighbourhood Centre Zone —
      The Quamby Place Neighbourhood Centre—
              i forms a focal point for the local community and visitors, provides services and facilities
              to meet their day to-day needs;
              ii provides Business Uses that respect the existing residential amenity of visitors and
              residents within and surrounding the development; and
              iii provides Business Uses that are of a scale and character consistent with the locality
              and Noosa’s retail hierarchy;

      u) For the Open Space Recreation Zone—
      areas of open space contribute to the desired lifestyle of residents by offering a variety of
      passive and active recreational experiences that are conducive to community interaction and
      wellbeing; an


Operational Aspects

 14. Restaurants often utilise the practice of double sittings or rolling bookings to cater for different needs
     of patrons and busy periods. It is generally acknowledged that the first sitting has a shorter seating
     period whilst the second sitting (which commences around 7.30pm to 8.30pm) is able to stay till
     closing time.

 15. During all holiday periods (not just Queensland) there is a strong preference for the 8.30pm
     reservation time. These 8.30pm diners generally take up to 3 hours to order and finish their meals.

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     The proposed operational finishing time of 10.30pm therefore severely impacts on the dining
     experience of these diners.

 16. Most patrons generally accept a 12 midnight closing time. A 10.30pm finishing time for a tourist area
     is not well accepted by patrons.

 17. Wednesday and Thursday night during non school holidays have become busy period as patrons
     avoid the larger groups or functions that occur on Friday and Saturday night. The 10pm finishing time
     again places an unrealistic time frame on diners to order and finish their meal and well as savouring
     the atmosphere of the locality.

 18. Patrons who have had a positive dining experience are generally content and will leave the area in a
     quieter mode.

 19. Functions including the wedding and corporate markets are a significant part of the existing Rickys
     Restaurant operations. Rickys can hold both small and large functions and provides a unique
     waterfront location for such activities. It is noted that there are limited places in Noosa that can
     provide such a waterfront experience and this area of the business has been growing. Due to the
     numbers of patrons involved with functions, the turn around is not as quick and a 10pm or 10.30pm
     finishing time does not provide a professional or relaxing dining experience.

 20. The proposed 10pm and 10.30pm finishing times is likely to detrimentally impact on the existing and
     future businesses and as a result the local economy. This market makes a significant contribution to
     the economy of the area as it provides employment, generates sales of local produce and supports
     local accommodation houses.


 Tourism

 21. As indicated by the Noosa Plan the Quamby Place Neighbourhood Centre is a focal point for the
     local and visiting community in terms of services and facilities. The area is currently used by both
     locals and visitors with the area to the west and immediately east and south predominantly providing
     visitor accommodation in the form of units and resort developments. The centre is also in proximity to
     the tourist areas of Hastings Street and Noosa River which combines to create a unique commercial
     area. This is significant in terms of the perceived normal operations of the area. The site is not
     located in a conventional residential area and therefore surrounding landowners will be aware of the
     existing commercial activities that occur in the area.

 22. The site and outdoor dining area are unique in providing a dining experience with park and river
     views.

 23. Southern visitors generally eat later as they tend to stay outdoors (on the beach) till sundown and
     then prepare for dining.

 24. The hours of operation will result in patrons who come in for an 8pm booking being told that they may
     have to finish early or be reseated resulting in a negative dining experience.

 25. Interstate visitors and Southern visitors tend to eat later as experienced in European countries.

 26. Visitors see Noosa as a cosmopolitan locality with the Official Tourism Noosa websites promoting a
     ‘cosmopolitan lifestyle’ and ‘inspired dining scene’. Visitors therefore expect a dining experience that
     reflects this ‘scene’. Closing restaurants at 10.00 and 10.30 during the week does not promote a
     positive experience and is a retrograde step with regard to dining opportunities in the area.

Compliance

 27. The Decision Notice issued by Sunshine Coast Council included condition 12 which states:

     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:

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               a) Have a suitability 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 finding and recommendations of the
               NIA. The recommendations must be implemented and may include a reduction to the
               operating hours.

       This condition provides Council with adequate recourse if the operators of the site permit excessive
       noise to occur on the outdoor dining areas.

Conclusion

The condition severely restricts the operation and economic viability of the restaurants that utilise the outdoor
dining areas and is not considered to be a reasonable imposition on outdoor dining areas that are integral to
the success of the existing businesses at Q Place. The condition does not recognise the fact that the Council
originally issued the approval for the outdoor dining areas without any restrictions and that the businesses
have been established on that premise, the unique location of the site, the tourist and community focus of
the centre nor that the noise levels comply with adopted standards. The condition is recommended to be
amended.


Proposed amended condition – Condition 9 –

The approved use must not operate outside the hours of 7am to 12 pm Sunday to Saturday

The requirements of this condition must be included in any lease agreement with site tenancies.




Condition 10 – Where the approved use operates later than 10 pm in accordance with this Decision
      Notice, temporary acoustic screens (café blinds or the like) must be erected on the sides on
      the dining areas to screen adjacent noise sensitive premises. The acoustic screens must be
      a minimum of 2m high and free from any gaps of openings.

Representation to condition 10 – The applicant raises concerns over the definition of ‘temporary acoustic
screens (café blinds)’ as the requirement for these screens negatively impacts on the operations of the
outdoor dining. The use of café blinds after 10pm will effectively enclose an area that is approved for
outdoor dining and will reduce the ambience of the associated restaurants. The blinds will detrimentally
impact on the dining experience especially during hot summers.

Further advice from David Moore & Associates has indicated that the screens will do little in terms of
reducing potential noise as they have limited acoustic qualities. The condition is requested to be deleted.


Proposed amended condition – Condition 10 – DELETE


The applicant requests that the matter now be determined. Please contact our Sunshine Coast office if you
have any queries in relation to the above.


Yours faithfully,




Nadine Gorton
Senior Planner
martoo consulting pty ltd

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