Council Planning Report MCU16/0137

MCU16/0137 – representations to conditions – DEVELOPMENT APPROVAL FOR MATERIAL CHANGE OF USE Entertainment & Dining Business Type 2 - Recreation, Amusement & Fitness (FITNESS CENTRE) AT 5/8 SELKIRK DRIVE NOOSAVILLE

Document information

Author	Development Planner, Lisa Pienaar
Environment & Sustainable Department

Index	ECM/Application/MCU16/0137

Attachments	Nil

APPLICATION DETAILS
Applicant	Gelherult No 2 Pty Ltd
Proposal	Development Permit for Material Change of Use of Premises - Entertainment & Dining Business Type 2 - Recreation, Amusement & Fitness (Fitness Centre)
Properly Made Date	7 November 2016
Information Request Date	19 December 2016
Information Response Date	02 March 2017
Decision Date	15 June 2017
Representations dated	20 June 2017
Number of Submissions	1
RECOMMENDATION
That Council note the report by the Development Planner to the Planning and Environment Committee Meeting dated 8 August 2017 regarding representations to conditions of approval for Development Permit for Material Change of Use of Premises - Entertainment & Dining Business Type 2 - Recreation, Amusement & Fitness (Fitness Centre) located at 5/8 Selkirk Drive Noosaville, and Approve the request to change Condition 7 as follows:
7.	The use must be in accordance with the David Moore & Associates Pty Ltd report ‘Desk Top Environmental Noise Level Impact Assessment of Proposed Fitness Centre, 5/8 Selkirk Drive Noosaville’, conducted for Gelherdt No.2 Pty Ltd, Report No. R17015/D3218/Rev.0/1.03.2017, unless varied by the following:
Ensure all windows and doors facing Walter Hay Drive are locked shut;
The fitness room is to be sound proofed;
Noise emanating from the premises, including amplified or non-amplified sound, must not exceed:
daytime (0700 to 1800 hours): 94 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
evening (1800 to 2200 hours): 89 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
night-time (2200 to 0700 hours): 84 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
All amplified sound at the premises must be conducted through a sound limiting device at all times to ensure that noise does not exceed levels prescribed in condition c);
The sound limiting device is to have a locking mechanism or be located within a locked enclosure, which is to be locked at all times except for inspection or maintenance work on the device;
Access to the sound limiting device, except for maintenance work, is restricted to the gym manager, nominee and the person in charge of the premises at any time; and
The sound limiting device must be checked and if necessary adjusted by a qualified acoustic consultant at least every 12 months to ensure compliance with condition c). Acoustic certification is to be kept on site.

REPORT
PROPOSAL
The applicant seeks representations on a development approval for a Material Change of Use of Premises - Entertainment & Dining Business Type 2 - Recreation, Amusement & Fitness (Fitness Centre) located at 5/8 Selkirk Drive Noosaville.
The application is before Council as the Development Permit was originally approved by Council.
Background
On 15 June 2017 Council approved a Material Change of Use of Premises for a Fitness Centre within an existing tenancy within the Noosa Home building on Walter Hay Drive.
assessment
Under the provisions of the Sustainable Planning Act the applicant suspended its appeal period and submitted representations to conditions of the approval. The superseded Sustainable Planning Act requires Council to consider the representations and give a new decision notice (a negotiated decision notice) to all relevant parties, where the representations are agreed with. The representations seek to amend a condition relating to acoustics. The applicant has provided information to support their case.
Representations to Conditions
Condition 7
The use must be in accordance with The ‘Desk Top Environmental Noise Impact Assessment of Proposed Fitness Centre, 5/8 Selkirk Drive Noosaville’, Report No. R17015, prepared by David Moore and Associates Pty Ltd dated 1 March 2017; unless varied by the following:
Ensure all windows and doors facing Walter Hay Drive cannot be opened;
Operating hours of the fitness room are to be limited to hours between 7am and 10pm;
Noise emanating from the premises including amplified or non-amplified noise and patron noise must not exceed 84db (A) when measured;
All amplified noise at the premises must be conducted through a sound limiting device at all times to ensure that noise does not exceed levels prescribed in condition c);
The sound limiting device is to have a locking mechanism, which is to be locked at all times except for inspection or maintenance work on the device;
Access to the sound limiting device, except for maintenance work, is restricted to the gym manager, nominee and the person in charge of the premises at any time; and
The sound limiting device must be checked and if necessary calibrated by a qualified acoustic engineer at least every 12 months to ensure compliance with condition c).
Applicant’s request
Condition 7 details restrictions on the operation of the proposed 24 hour gym with regard to hours and noise. The condition is considered unreasonable and not relevant as it imposes conditions that are not required and have no technical basis.
In response to the imposition of the above condition, further technical advice has been received from Noise Consultant David Moore who suggests an alternative condition that effectively allows the gym to operate and will control noise generated by the use.
Condition 7b) restricts the use of the internal fitness room to hours between 7am and 10pm. These hours do not reflect the noise report nor permit the 24 hour gym to operate effectively as the applicant proposes to run early morning classes for working women from 5.45am. These early morning classes are integral to the operations of the gym.
The condition does not take this aspect into consideration nor does it consider that the group fitness room:
Is internal to the building and is over 55 metres to the external wall of the nearest residential dwelling. Refer figure 1 below;
Is separated from the nearest residential dwelling by internal rooms and the external wall of the building;
Is separated from the nearest residential dwelling by a divided road, landscaping and acoustic fence. Refer figure 2 below;
Will be sound proofed;
Needs to operate at a level that does not disturb other activities within the actual gym such as offices; and
Is located in an existing industrial complex.

Mr David Moore (applicant’s acoustic consultant) confirms that condition 7b) is not relevant and that the use can operate before 6am subject to defined noise limits and installation of sound limiting device. Mr Moore indicates a revised condition 7 that reflects the conclusion of his report and will ensure noise levels comply with relevant standards.

Proposed amended Condition 7 as requested by the applicant
The use must be in accordance with the David Moore & Associates Pty Ltd report ‘Desk Top Environmental Noise Level Impact Assessment of Proposed Fitness Centre, 5/8 Selkirk Drive Noosaville’, conducted for Gelherdt No 2 Pty Ltd, Report No. R17015/D3218/Rev.0/1.03.2017, unless varied by the following:
a) 	Whenever there is any amplified sound in the gymnasium ensure that all openable windows and doors facing Walter Hay Drive are closed. During those times when there is no management present at the gymnasium ensure that all openable windows and doors facing Walter Hay Drive are locked closed;
b) 	delete
c) 	Noise emanating from the premises, including amplified or non-amplified sound, must not exceed:
daytime (0700 to 1800 hours): 94 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
evening (1800 to 2200 hours): 89 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
night-time (2200 to 0700 hours): 84 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
d)	All amplified sound at the premises must be conducted through a sound limiting device at all times to ensure that noise does not exceed levels prescribed in condition c);
e) 	The sound limiting device is to have a locking mechanism or be located within a locked enclosure, which is to be locked at all times except for inspection or maintenance work on the device;
f) 	Access to the sound limiting device, except for maintenance work, is restricted to the gym manager, nominee and the person in charge of the premises at any time; and
g) 	The sound limiting device must be checked and if necessary adjusted by a qualified acoustic consultant at least every 12 months to ensure compliance with condition c).
Assessment
The proposal approved on 15 June 2017 attracted 1 submission from the residents of the Noosa Domain Village located opposite the proposed fitness centre who had concerns with possible noise impacts, and requested there be no open windows (no ability for noise to ‘escape’), which is consistent with the acoustic report submitted with the application.
These concerns have been considered in the applicant’s request to change the condition relating to acoustics associated with the use. Given the sensitive receiving environment across the road from the proposed activity, the tendency for this type of activity to use amplified music and its 24 hour use, it is recommended the windows facing Walter Hay drive be shut at all times. To remove the human element out of decisions around opening or shutting windows, it is recommended they are locked shut. For this reason it is not agreed to change a) of Condition 7.
The acoustic report didn’t address sound levels from the fitness room, albeit it is recognised that the room is internal, having greater acoustic ‘isolation’ from the closest residences. The applicant’s consultant advised that this room would be sound proofed and will be conditioned as such. This should overcome the need for any restriction on hours as previously proposed. Therefore it is agreed to amend b) of Condition 7 to ensure the fitness room is soundproofed.
The recommended decibel levels at various time periods were identified in the acoustic report which has calculated that those levels measured at 3 metres from the noise source will provide acceptable decibel levels if measured at the receiver.
Proposed amended Condition 7 (as recommended)
The use must be in accordance with the David Moore & Associates Pty Ltd report ‘Desk Top Environmental Noise Level Impact Assessment of Proposed Fitness Centre, 5/8 Selkirk Drive Noosaville, conducted for Gelherdt No 2 Pty Ltd, Report No. R17015/D3218/Rev.0/1.03.2017, unless varied by the following:
Ensure all windows and doors facing Walter Hay Drive are locked shut;
The fitness room is to be sound proofed;
Noise emanating from the premises, including amplified or non-amplified sound, must not exceed:
daytime (0700 to 1800 hours): 94 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
evening (1800 to 2200 hours): 89 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
night-time (2200 to 0700 hours): 84 dB(A) LAeq,adj,T when measured approximately 3 metres from the primary noise source;
All amplified sound at the premises must be conducted through a sound limiting device at all times to ensure that noise does not exceed levels prescribed in condition c);
The sound limiting device is to have a locking mechanism or be located within a locked enclosure, which is to be locked at all times except for inspection or maintenance work on the device;
Access to the sound limiting device, except for maintenance work, is restricted to the gym manager, nominee and the person in charge of the premises at any time; and
The sound limiting device must be checked and if necessary adjusted by a qualified acoustic consultant at least every 12 months to ensure compliance with condition c). Acoustic certification is to be kept on site.
conclusion
The proposed changes as suggested by the applicant and the further information from the applicant’s Noise Consultant have been assessed and it is considered the condition as recommended will ensure sound levels are appropriately mitigated for nearby residents.

Departments/Sections Consulted:
	Chief Executive Officer	x	Community Services		Corporate Services
	Executive Officer		Community Development		Financial Services
	Executive Support		Community Facilities		ICT
			Libraries & Galleries		Procurement & Fleet
			Local Laws		Property
			Waste & Environmental Health		Revenue Services
					
	Executive Services	x	Environment & Sustainable Development		Infrastructure Services
	Community Engagement		Building & Plumbing Services		Asset Management
	Customer Service		Development Assessment		Buildings and Facilities
	Governance		Economic Development		Civil Operations
	People and Culture		Environmental Services		Disaster Management
			Strategic Land Use Planning		Infrastructure Planning, Design and Delivery
					

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT	08 AUGUST 2017

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Figure 2 — aerial photograph illustrating separation of fitness room