Council Planning Report MCU16/0088

MCU16/0088 Development application for Material change of use for an entertainment and dining business type 1 food and beverages (restaurant) at 3/287 Gympie Terrace, Noosaville

Document information

Author	Development Planner, Glen Conforti
Planning & Infrastructure Department

Index	ECM / Application / MCU16/0088

Attachments	Nil

APPLICATION DETAILS
Applicant	TWX Pty Ltd
Proposal	Development Permit for Material Change of Use of Premises - Entertainment & Dining Business Type 1 - Food & Beverages (restaurant)
Properly Made Date	04 August 2016
Decision Due Date	20 October 2016
Number of Submissions	Nineteen properly made submissions (18 objections and 1 conditional support) and 5 Not Properly Made
PROPERTY DETAILS
Property Address	Offshore Noosa 3/287 Gympie Terrace Noosaville
RP Description	BUP 106812 Lot 3 BUP 106812
Land Area	247m² 4164m²
Existing Use of Land	30 multiple dwelling and 2 shops
STATUTORY DETAILS
SEQRP Designation	Urban Footprint
Locality	Noosaville
Zone	Visitor Mixed Use
Overlays	Natural Hazard : High Potential Acid Sulfate Soils Overlay Natural Hazard : Flooding Overlay
Assessment Type	Impact
RECOMMENDATION
That Council note the report by the Development Planner to the Planning & Environment Committee Meeting dated 11 October 2016 regarding Application No. MCU16/0088 for a Development Permit for Material Change of Use for Entertainment and Dining Business Type 1 Food and Beverages (restaurant) situated at lot 3/287 Gympie Terrace, Noosaville and approve the application in accordance with the following conditions:
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.
Approved Plans
Development undertaken in accordance with this approval must generally comply with the approved plans of development. The approved plans are listed in the following table unless otherwise amended by these conditions.
Plan No.	Rev.	Plan/Document Name	Date
WD.20	E	Proposed Floor plan, prepared by Cab Roto	04/07/16
WD.03		Area Plan, prepared by Cab Roto	11/07/16
Noise
The development must be undertaken in accordance with the recommendations of the Acoustic Assessment prepared by RoadPro Acoustic dated 3 August 2016. In this regard, the acoustic wing walls and acoustic roof panel must be designed to complement the existing building and streetscape to the reasonable satisfaction of the chief executive officer. Prior to the installation of these works the plans must be submitted to Council demonstrating compliance with this condition.
External speakers or amplified music are not permitted.
Internal amplified music must be directed internally to the tenancy.
Refuse disposal, particularly glass bottles and the like, must be considerate of noise at all times.
The Noise Management Plan submitted with the application must be amended to include site specific operational measures to minimise potential noise nuisance for surrounding residents and a complaints management process. The Noise Management Plan must incorporate the recommendations of the Acoustic Assessment prepared by RoadPro Acoustic dated 3 August 2016. The amended Noise Management Plan must be submitted to Council prior to the commencement of the use.
Noise emissions from any new mechanical equipment associated with the development must comply with the following requirements:
Air-conditioning and Refrigeration
7am to 10pm: Background + 5dB(A)
10pm to 7am: Background + 3dB(A)
Written certification must be submitted from a suitably qualified person confirming noise levels from any new mechanical equipment comply when measured at either the residential boundary or outside the most exposed part of an affected building, whichever is the closest to the equipment.
The assessment and certification is required immediately after installation of the equipment and in a format approved by Council. All equipment should be operating at the same time to test the overall noise level created.
Advice: It is highly recommended the person you engage to certify the installation is involved prior to installation of any equipment so they can recommend where equipment is best located. They can also advise about noise enclosures and make other suggestions to avoid noise problems.  It is a lot more costly to try and deal with noise problems after installation.
Nature and Extent of Approved Use
The approved use must not operate outside the hours of:
6.30am to 9.30pm Monday to Thursday
6.30am to 10.30pm Friday, Saturday and public holidays
The outdoor dining area must not be used after 8pm until the acoustic wing walls and acoustic roof panel is installed pursuant to the recommendations of the RoadPro Acoustic Assessment dated 3 August 2016.
Service vehicle movements associated with the approved use (including loading and unloading) must not occur outside the hours of 7am to 6pm Monday to Saturday and not at all on Sundays or public holidays.
The use area including outdoor seating must not exceed 67m2 as indicated on the approved plan.
Protection of Privacy
To ensure privacy is protected between adjoining properties, the western acoustical designed wing wall must be designed to maintain privacy of the neighbouring unit. In this regard, the wall must be either translucent glazing or a solid portion to obscure direct views to the western unit.
Outdoor Lighting Devices
Light spillage from the development including advertising, security and flood lighting etc is designed, sited, installed, shaded and appropriately directed so as to prevent a nuisance to residential areas and vehicular traffic.
Kitchen Exhaust
Kitchen exhaust points for the development must be located and operated in accordance with Australian Standard AS1668.2-2002 “The use of ventilation and air-conditioning in buildings” (specifically Section 5.10 – Air Discharges).
Certification must be submitted to council from a qualified person* prior to commissioning the operation of the mechanical exhaust ventilation system for the kitchen which certifies that the system complies with AS1668.2-2002 and the requirements of this Decision Notice.
Refuse
Refuse containers must be provided in accordance with the requirements of the Environmental Protection (Interim Waste) Regulation 1996 and (Waste Management) Regulation 2000, for the storage and collection of refuse.

REPORT
PROPOSAL
The application seeks approval for a Material Change of Use of Premises for an Entertainment & Dining Business - Type 1 Food & Beverages. The applicant seeks to change the existing shop/café use (formerly known as Riva and Elvis café) to a family orientated restaurant and wishes to continue utilising the covered forecourt for outdoor dining. The new layout includes a gelato bar, a small internal dining area centrally located toward the front of the tenancy and the majority of the dining area within the forecourt, similar to that exists.
The floor area is 182m² (including the outdoor dining area) and the proposed hours of operation are:
Sunday to Thursday – 6am to 10pm
Friday and Saturday – 6am to midnight
The proposal plan and site photograph are included as Figures 1 and 2 below. The application is before Council due to community interest particularly noise concerns raised by neighbours.

Figure 1 – Layout

Figure 2 – Street View
site details
Background
On 26 September 1996 Council approved 03997 TR for 30 multiple dwelling units, 2 shops and on site mangers office.
The previous business operator erected an impervious shade structure without the relevant building or planning approvals. It is estimated from historical aerials the structure has existed for more than 13 years. The applicant (new business operator) is now progressing toward gaining relevant building and planning approvals for the structure.
The building approval for the fit out triggered accessible access requirements as the existing disability ramp does not meet current standards. The ramp is proposed to be altered to comply, with minor changes to the landscaping within the frontage.
The Body Corporate provided consent for the lodgement of this application and is also a submitter providing conditional support for the proposal.
Site Description
The site is located on the corner of Gympie Terrace and Weyba Drive and is within the Village Mixed Use zone.  The subject tenancy sits approximately 0.8m above the footpath level nestled amongst the units. The outdoor seating area and shade structure sit forward of the built form within the frontage. A garden screens a portion of the outdoor dining area from Gympie Terrace and is well screened from Weyba Drive.

A locality and zoning plan of the site and surrounding area is shown in Figure 3 below.

Figure 3 – Locality and Zones
Surrounding Land Uses
To the north and across Gympie Terrace is the Noosa River Foreshore Park and T Boat and Jet Ski hire jetty.
To the south along Weyba Road are typical multiple dwellings except for 2 restaurants, 1 directly adjoining the subject site and the other near the Weyba Road/Noosa Parade roundabout.
To the east and across Weyba Street is the Attached Housing zone where multiple dwellings typically seen in Noosaville exist.
Directly adjoining (including above) within the complex are residential units. The Red Emperor fish shop is within the residential complex and located approximately 17m to the west. Further to the west within the Visitor Mixed Use zone along Gympie Terrace are residential developments, (except for a commercial restaurant development on the corner of James Street), until Edward Street where mixed use developments increase and dominate street level from Thomas Street to The Cockleshell.
assessment
Instruments for Statutory Assessment
Under the Sustainable Planning Act 2009 the application must be assessed against each of the following statutory planning instruments to the extent they are relevant to the development:
State Planning Policies;
the South East Queensland Regional Plan;
State Planning Regulatory Provisions; and
The Noosa Plan;
Of these, the statutory planning instruments relevant to this application are discussed in the sections that follow.
State and Other Statutory Instruments
The site is located within the Urban Footprint Area of the SEQ Regional Plan.  The proposed use is consistent with the regional policies and regulatory provisions of the SEQ Regional Plan.
Statutory Instruments – Planning Scheme
The subject site is located in the Noosaville Locality and is zoned Visitor Mixed Use. The proposed use is identified as a consistent use within the zone and is required to follow an impact assessable application process.
Locality Provisions
The relevant provisions of the Noosaville Locality Code for the Visitor Mixed Use zone include:
S55.1 	Business Uses are Entertainment & dining businesses or Retail businesses offering food, shopping, entertainment and personal services to residents and visitors.

S56.2 	Business Uses operate only between the hours of 7am to 10pm, 7 days a week, except Friday and Saturday, where Entertainment and dining business uses may operate until 12 midnight.

S57.2 	Development incorporates outdoor dining or seating areas.
In addition to the above Probable Solutions, mixed use developments must meet Specific Outcome O56 which reads:
O56 	Mixed-use development, incorporating accommodation units, is designed and operated to ensure business uses do not have any adverse impact on the amenity enjoyed by residents, including impacts associated with—
a) 	visual and acoustic privacy;
b) 	safety and security; and
c) 	lighting.
The Noosa Plan provides support for the proposed restaurant providing the business does not adversely impact on the amenity of the residential uses that surround the site. The proposed use does not raise any significant planning concerns except for noise and some potential overlooking.
Noise
The applicant seeks the following operating hours:
6am to 10pm Sunday to Thursday
6am to midnight on Friday and Saturday nights
The applicant has submitted an Acoustic Assessment by RoadPro Acoustics that uses the Liquor Regulation 2000 noise criteria; criteria used by Office of Liquor and Gaming Regulation (OLGR) for enforcing noise under a liquor licence. The applicant has also provided an Operational Noise Management Plan which outlines processes to mitigate noise and noise complainant management.
The Body Corporate and submitters have also raised concerns in regard to noise, siting the extended trading hours (compared to the hours of the previous business). The Body Corporate has provided conditional support providing the noise mitigation measures are incorporated. Based on experience with previous business operators the Body Corporate requests the hours of operation are limited to:
7.30am – 9.30pm on weekdays (assume Monday to Friday)
7am – 10.30pm weekends and public holidays (assume includes Sunday night)
In response to the Body Corporate request to limit the hours of operation, as a compromise the applicant has advised the following:
The operating hours are vital to ensure viability and to be commercially competitive with adjoining cafes / restaurants within Noosaville. The breakfast trade through the morning is one where a 6.00am opening is vital and necessary to be consistent with other establishments along Gympie Terrace. In recognition of the items raised within the BC submission the applicant is accepting a 9.30pm close Sun – Thurs and a 10.30pm close on Fri, Sat and Public Holidays.
The Acoustic Assessment provides recommendations to minimise noise in relation to waste disposal, music and general operational noise but states in relation to patron noise that:
The calculated potential noise impact levels indicate that patrons conversing in the outdoor area pose a risk of the criteria being exceeded during all time periods. It is expected that during the daytime this is unlikely to be an issue, particularly given the previous use of the tenancy. However, adjoining residents could reasonably be expected to be more sensitive during the evening and night-time periods.
The Acoustic Assessment suggests the proposal is similar to the previous ‘Elvis Café’ which regularly seated up to 30 to 40 people in the outdoor dining area. It is agreed the proposed change of use from a shop to a restaurant is of a technical nature, as the outdoor dining area has historically been used for seating patrons of the former takeaway shop. Given that units directly adjoin the subject tenancy and patron noise may exceed noise criteria, the Acoustic Assessment suggests the outdoor dining area operate no later than 8pm where no noise mitigation measures are installed. To allow later operation the Acoustic Assessment recommends transparent acoustic barriers to the sides of the outdoor area (transparent to maintain the open feel) and replace the membrane roof with a ‘sandwich’ type panel to reduce noise to the unit above.
The Acoustic Assessment does not indicate modelled noise levels after these measures are incorporated but states:
The proposed café/restaurant can be operated in a manner that achieves the Outcomes of the Noosa Plan i.e. without adverse effects on noise in the area.
The measures required to do this are predominately operational in nature, and are therefore dependent on staff being very aware of the potential for noise generation, and pro-actively addressing it as required.
Suggestions have been made to address potential noise sources, however these shouldn’t be considered to be exhaustive. In particular, the outdoor dining area could be improved considerably from an acoustical viewpoint with relatively simple additional construction.
The Acoustic Assessment does not clearly demonstrate that when the noise mitigating measures are installed that the Liquor Regulation 2000 noise criteria can be achieved. However, given the historical use (including operating hours) and the proximity to the residential units, the following hours of operation are considered reasonable:
6.30am – 9.30pm Sunday to Thursday
6.30am  - 10.30pm Friday, Saturday and Public Holidays

To maintain amenity of the neighbouring and surrounding units, a condition is recommended to ensure the outdoor dining area is not used after 8pm until the noise mitigating measures recommended in the Acoustic Assessment are incorporated.
Overlooking
The patrons using the outdoor dining area may have the opportunity to overlook the adjoining unit to the west. A garden is established to this area but to ensure privacy, a portion of the acoustic screen, recommended by the Acoustic Assessment could be translucent to mitigate any overlooking. This will also maintain the outdoor ambiance. A condition is recommended accordingly.
Land Use & Works Provisions
The following codes which regulate land use and design are applicable to this application:
Noosaville Locality Code;
Business Uses Code;
Landscaping Code; and
Engineering Works Codes

The application has been assessed against each of the above applicable codes. The pertinent matters arising out of the assessment against the codes are discussed below:
Car Parking
The original approval allowed 12 car spaces for the 2 shops in addition to the multiple dwelling spaces.
The subject tenancy, at the time, had a GFA of 146m² and was permitted to use the outdoor seating area. The second shop (currently the Red Emperor) has a GFA of 70m² which is equivalent to 3.5 spaces, leaving 8.5 spaces available for the subject tenancy.
The proposed use area of 67m² attracts 7 car spaces (1 space per 10m² or part thereof); within the 8.5 spaces allowed for under the original approval.
cONSULTATION
Referrals
The application was forwarded to Council’s Health department and their comments form part of this report.
Public Notification
The application was publicly notified for 15 business days in accordance with the Sustainable Planning Act 2009. Nineteen (19) properly made submissions and 5 not properly made submissions were received. The following table provides a summary and assessment of the issues raised by submitters.
Issues	Comments
The proposal would have a negative impact on Noosaville being a family friendly area	Disagree. The proposal is for a family orientated restaurant which is consistent with other restaurants along Gympie Terrace. It is also noted the proposal includes a gelateria (ice cream bar) and designated seating for that purpose.
Noise would have a negative impact on adjoining units	Agree. The applicant has submitted an Acoustic Assessment which addresses noise matters. Conditions are recommended to include acoustic measures which will reduce noise and limit operating hours to no later than 10.30pm and 8pm if no measures are incorporated.
Alcohol consumption increases patron noise.	The Planning Scheme does not regulate liquor consumption.
The proposal will create unruly and rowdy behaviour	Disagree. The proposal is for a family orientated restaurant and a gelato bar.
No establishments operate the proposed hours (most close around 9pm)	Although Gympie Terrace restaurants may generally close around 9pm they are permitted to operate (generally) to midnight on Friday and Saturday nights.
No buses run after 12.05am and therefore loitering could occur.	A condition is recommended to limit operating hours to no later than 10.30pm on Friday and Saturday nights and 9.30pm on other nights.
The garden was used in front of the complex as people didn’t know of the public toilets in the park near T-boats.	The applicant has provided toilets on-site including disabled facilities.
Dining and entertainment options are already available in the area and Hastings Street. It is not a commercial area and restaurants should be located toward Thomas Street.	The Planning Scheme supports restaurants in the Visitor Mixed Use zone providing there are no significant negative impacts on surrounding residents.
No car parking on-site	There is no additional traffic generation when compared to the previous shop use. The proposal meets the Planning Scheme requirements.
If the proposed hours of operation are approved it will open the flood gates.	Disagree. Each application is assessed on its merits. Restaurants in the area are permitted to operate to midnight on Friday and Saturday nights.
The proposal is a bar not a restaurant.	Disagree. The proposal meets the definition of Entertainment and dining type 1 food and beverages (restaurant). The layout does not appear to be conducive to that required for a bar. Furthermore, the proposal includes a gelato bar and associated seating area.
There is no change to the exhaust fan for the additional capacity required for the restaurant.	Conditions are included to ensure the exhaust fans meet the relative Australian Standards.
Patrons will have direct view into the adjoining unit.	The area has historically been used for outdoor seating. An established garden separates the seating area and the unit. To improve privacy a condition is included to provide a privacy screen. In addition, the outdoor seating plan indicates the seats setback from the edge of the outdoor area.
conclusion
The application is for a consistent food and beverage use within the Visitor Mixed Use zone. The proposal raises site specific noise concerns from surrounding residents. The Planning Scheme supports restaurants providing the business does not create adverse impacts on the surrounding residents. The former shop has historically operated as a takeaway food outlets where patrons used the outdoor seating area. It is considered the proposal is not unlike the historical use. The proposal can maintain amenity and meet the provisions of the Planning Scheme when the hours of operation are limited and some acoustic and privacy measures are incorporated. The proposal does not raise any other planning concerns and is recommended to be supported subject to conditions.
Departments/Sections Consulted:
	Chief Executive Officer	X	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		Property & Facilities
			Waste & Environmental Health		Revenue Services
					
	Executive Office		Planning & Infrastructure		
	Community Engagement		Building & Plumbing Services		
	Customer Service		Civil Operations		
	Economic Development		Infrastructure Planning & Design		
	Governance		Planning & Environment		
	Human Resources		Strategic Land Use Planning		
	Sustainability				

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PLANNING & ENVIRONMENT COMMITTEE MEETING REPORT	11 OCTOBER 2016

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PLANNING & ORGANISATION COMMITTEE MEETING REPORT	DD MONTH YYYY

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