Minor Change Council Report MCU17 0024.01

MCU17/0024.01 – minor change to Development approval for Material Change of Use of Premises - Entertainment & Dining Business Type 1 Food & Beverages and Type 2 Recreation, Amusement and Fitness at 4 the esplanade, sunshine beach

Document information

Author	Development Planner, Lisa Pienaar
Environment and Sustainable Development Department

Index	ECM/ Application/ MCU17/0024.01

Attachments	Nil

APPLICATION DETAILS
Application No.	MCU17/0024.01
Development Approval	Development Permit for Material Change of Use of Premises - Entertainment & Dining Business Type 1 Food & Beverages and Type 2 Recreation, Amusement and Fitness
Applicant	Surf Life Saving Under Control of Council as Trustee, Sunshine Beach Surf Life Saving Club Inc
Request Received On	1 April 2020

PROPERTY DETAILS
Property Address	Sunshine Beach Surf Life Saving Club, 4 The Esplanade Sunshine Beach
RP Description	Lot 5 SP 269274
Land Area	594 m²
Existing Use of Land	Sunshine Beach Surf Life Saving Club

STATUTORY DETAILS
SEQRP Designation	Urban
Locality	Eastern Beaches
Zone	Open Space Recreation
Overlays	Biodiversity – Environmental Protection Natural Hazard –Landslide & Acid Sulfate Soils Natural Resources - Coastal Protection Area
Assessment Type	Minor Change to Development Approval
RECOMMENDATION
That Council note the report by the Development Planner to the General Committee Meeting dated 18 May 2020 regarding Application No. MCU17/0024.01 to make a minor change to an existing approval for a Development Permit for Material Change of Use of Premises - Entertainment & Dining Business Type 1 Food & Beverages and Type 2 Recreation, Amusement and Fitness situated at 4 The Esplanade, Sunshine Beach and:
A.	Approve a change to Condition 8 to read as follows:
Noise
All amplified noise at the premises must be conducted through a sound limiting device at all times to ensure that noise does not exceed the following:
between 6a.m. and 10p.m.—the adjusted maximum sound pressure level LA10, plus adjustments for tonal and impulse components, exceeding the background level LA90 by more than 10dB(A);
between 10p.m. and 6a.m.—the sound pressure level LOCT10, in a full octave band with centre frequencies from 63HZ to 2000HZ, exceeding the background level LOCT90 by more than 8dB in any octave band.
B.	Note the report is provided in accordance with Section 63(5) of the Planning Act 2016.

REPORT
PROPOSAL
The applicant requests a change to an existing development approval to amend Condition 8 relating to acoustic requirements for the Sunshine Beach Surf Club (Surf Club). The applicant has provided an Entertainment Noise report in support of the proposed change, which outlines acoustic testing of the entertainment activities pertaining to the recently constructed and operating Surf Club.  Refer Figure 1 – Subject Site and Figure 2 – Surf Club below.

Figure 1 – Subject Site
background
A development approval for a new surf club was issued on 19 October 2017. This approval has been acted on and a new building was constructed in 2019, with the associated car park and landscaping. The Surf Club entertaining and dining component had been operating from the new building for approximately 3 months until recently (due to COVID-19 restrictions).

Figure 2 – Surf Club
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;
The Noosa Plan.
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 change relates to an approved use and is minor in nature;
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
Business uses in the Planning scheme are required to provide high levels of visual and acoustic amenity, particularly those close to residential premises. The Surf Club has a number of residences in close proximity and conditions relating to noise were included in the approval to minimise impacts. These conditions related to a building that had not yet been built. Now the building is established an Entertainment Noise Testing report dated February 2020 by SoundBASE Consulting Engineers has been submitted to Council to support the applicant’s request to change existing Condition 8. Condition 8 currently requires the following:
Condition 8
Noise
8.	All amplified noise at the premises must be conducted through a sound limiting device at all times to ensure that noise does not exceed the following:
Noise emanating from the premises including amplified or non-amplified noise and patron noise prior to 10.00pm must not exceed 90dBC, fast response, when measured approximately 3 metres from the source of the noise; and
Noise emanating from the premises including amplified or non-amplified noise and patron noise after 10.00pm must not exceed 85dBC, fast response, when measured approximately 3 metres from the source of the noise.
Applicant’s Request
We are seeking to change the two (2) very specific noise limits detailed in the above condition and replace them with the criteria that specifies an acoustic testing regimen used by the OLGR for licensed premises.
It is our understanding that these existing noise levels (conditions) were determined prior to the construction of the new clubhouse being completed and as such were not arrived at by way of a verifiable and transparent testing process?
We submit that it is in the interests of fairness that the noise levels applied to the venue should be ascertained using a robust and verifiable testing regime.
The OLGR have an acoustic testing regimen that is applied to all licensed venues and is detailed in the OLGR Liquor Guideline 51 (It was previously detailed in Guideline 50 which was updated as of Feb. 29th 2020).
This testing regimen is undertaken by independent Acoustic Engineer or Consultant.
The acoustic testing criteria that determines the maximum permitted noise level (under given operating scenarios) is designed to ensure the amenity of the local area is protected and that the licensee does not generate noise that would be considered unreasonable in terms of s187 of the Liquor Act 1992.
The licensee has now had acoustic testing done in accordance with Regulation 40 of the Liquor Regulations 2002, which states -
40 	Prescription of limits for noise that if exceeded constitute unreasonable noise
For the definition unreasonable noise in section 4 of the Act, the limits for noise are as follows—
(a) 	between 6a.m. and 10p.m.—the adjusted maximum sound pressure level LA10, plus adjustments for tonal and impulse components, exceeding the background level LA90 by more than 10dB(A);
(b) 	between 10p.m. and 6a.m.—the sound pressure level LOCT10, in a full octave band with centre frequencies from 63HZ to 2000HZ, exceeding the background level LOCT90 by more than 8dB in any octave band.
It is our submission that Condition # 8 (a) & (b) should be replaced with the Regulation 40 criteria.
This would apply a consistent level of standards and the results are able to be reviewed and verified.
The Acoustic Report provided to the OLGR details the various operating scenarios that would allow the licensee to provide elevated music noise levels within the venue and be compliant with the Reg. 40 noise levels.
These operating scenarios would be endorsed on the club’s liquor licence and the licensee would be required to comply with them or face potential punitive action.
Assessment of Request
The Surf Club was redeveloped in 2019 and opened early 2020.  Entertainment noise testing has been conducted to determine the appropriate entertainment noise source limits by an independent acoustic engineer including establishing existing background noise. The report by SoundBASE Consulting Engineers was prepared as per the Office of Liquor and Gaming Regulation (OLGR) requirements. This report has been peer reviewed by Council’s Environmental Health Co-ordinator.
The report lends support to the requested change in that it aligns with the OLGR criteria which requires noise measurements be conducted by an approved acoustics engineer before determining noise emissions from different activities.
Existing Condition 8 was included in the 2017 approval as the best possible condition at that time which was prior to the construction of the existing building. Now constructed, this type of building, based on design and size and noise testing completed, it is possible for background noise from patrons and light entertainment to reach 90dBA. Any other entertainment noise (may include a small rock band or Karaoke) could breach the existing condition on every occasion when tested at 3 meters from the source and would be in the range of 95dBC to 100dBC.
The OLGR uses a different frequency weighting to measure noise (LA10) than identified in existing Condition 8 (dBA). This is explained as follows:
Existing Condition 8 refers to ‘dBA’ which technically is described as A Weighting which is the most common weighting that is used in noise measurement. Like the human ear, this effectively cuts off the lower and higher frequencies that the average person cannot hear.
The proposed change to Condition 8 uses LA10 which is the A-weighted (weighted sound level) where the human ear responds more to frequencies between 500 Hz and 8 kHz and is less sensitive to very low-pitch or high-pitch noises. The frequency weightings used in sound level meters are often related to the response of the human ear, to ensure that the meter is measuring pretty much what you actually hear.  LA10 the A-weighted, sound level just exceeded for 10% of the measurement period, is calculated by statistical analysis.
The acoustic testing criteria followed determines the maximum permitted noise level which is designed to ensure the amenity of the local area is protected and that the licensee does not generate noise that would be considered unreasonable. Therefore the requested change of condition 8 aligns with Regulation 40 of the Liquor Regulations 2202 and is appropriate for the constructed venue.
It is noted that the applicant seeks no change to the approved operating hours as per below:
14.	The use may operate 7 days a week from 10am to 12am (with the exception of New Year’s Eve where it may operate until 2am). The outdoor dining area is not to be utilised after 10pm.
draft planning scheme
The requested change does not raise any issues under the draft Planning Scheme.
cONSULTATION
Referral Agencies
No Referral Agencies were required to be notified for this application.
Other Referrals
The application was forwarded to the following internal Council specialists:
Co-ordinator, Environmental Health
conclusion & reasons for decision
Approval is sought for a minor change to an approved and operating use. The applicant carried out acoustic testing which complies with the requirements of OLGR which applies to all licensed venues in Queensland. The supporting material has been peer reviewed and addresses the relevant criteria.  Most importantly, the requested change still protects the amenity for residents in the area.
The applicants request to change Condition 8 is therefore supported.
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
		x	Waste & Environmental Health		Revenue Services
					
	Executive Services	x	Environment & Sustainable Development		Infrastructure Services
	Community Engagement		Building & Plumbing Services		Asset Management
	Customer Service	x	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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GENERAL COMMITTEE MEETING REPORT	18 MAY 2020